Confidential Submission of Draft SEC Registration Statements

Draft registration statements may be submitted to the SEC if certain conditions are present. The Jumpstart Our Business Startups Act (the “JOBS Act”) allows an “emerging growth company” to submit a draft of its registration statement filed pursuant to the Securities Act of 1933, as amended and exhibits to the Securities and Exchange Commission (the “SEC”) on a confidential basis. The most commonly used registration statement under the Securities Act is Form S-1. This blog posts addresses the common questions we receive about confidential registration statement submissions on Form S-1.

Q. When does an emerging growth company have to file its Form S-1 registration statement if I want it to be a confidential submission?

A. The JOBS Act requires that emerging growth companies file the initial confidential submission of their Form S-1 registration statement and all amendments to the registration statement with the SEC within 21 days prior to the registration statement’s anticipated effectiveness or road shows.

These prior confidential submissions should be included as exhibits to the company’s later publicly filed registration statement, if any.

Q. How long will my company’s Form S-1 registration statement remain confidential?

A. Registration statements submitted to the SEC on a confidential basis do not remain confidential if a company completes its Direct Public Offering, Initial Public Offering (“IPO”) or pre-IPO offering.

Q. Will the SEC’s comment letters to a Form S-1 registration statement and company responses to the registration statement, remain confidential?

A. The registration statement comments and responses will become publicly available after the completion of the securities offering but not earlier than 20 business days following the effective date of the registration statement.

Q. What are the benefits of confidential submission of a Form S-1 registration statement to the SEC?

A. The confidential submission of a registration statement allows a company to keep the registration statement confidential and out of the public domain until it decides whether it will proceed with its public offering. If a company abandons its offering before its registration statement becomes effective, its submission remains confidential.

Q. If I submit my company’s Form S-1 registration statement on a confidential basis can the company still announce its registration statement or IPO?

A. SEC Rule 135 allows an issuer to announce limited information about the confidential submission of a registered securities offering submitted to the SEC.

Q. Does anything contained within a confidentially submitted Form S-1 registration statement remain confidential?

A. Limited information from the confidential submission of a registration statement can remain confidential. Rule 406 allows a company to keep portions of its registration statement confidential. Rule 406 requires the issuer to state the specific reasons why a confidential request is made and provide a detailed explanation, based on the related facts and circumstances, of why disclosure of the information is unnecessary to protect investors. The most common request for confidential submission of certain information in a registration statement is made for trade secrets, proprietary information, confidential commercial and financial information that would cause substantial competitive harm to the issuer if disclosed.

For further information about this securities law blog post, please contact Brenda Hamilton, Securities Attorney at 101 Plaza Real S, Suite 202 N, Boca Raton, Florida, (561) 416-8956, by email at [email protected] or visit  www.securitieslawyer101.com.   This securities law blog post is provided as a general informational service to clients and friends of Hamilton & Associates Law Group and should not be construed as, and does not constitute, legal and compliance advice on any specific matter, nor does this message create an attorney-client relationship. Please note that the prior results discussed herein do not guarantee similar outcomes.

Hamilton & Associates | Securities Lawyers
Brenda Hamilton, Securities Attorney
101 Plaza Real South, Suite 202 North
Boca Raton, Florida 33432
Telephone: (561) 416-8956
Facsimile: (561) 416-2855
www.SecuritiesLawyer101.com