Confidential Registration Statement Filings for Foreign Issuers
Posted by Attorney Laura Anthony on July 24, 2017
Confidential Registration Statement Filings for Foreign Issuers- The SEC recently expanded the ability to file confidential registration statements for all companies completing an initial public offering, secondary or follow-on offering made within the first year after a company becomes publicly reporting and for Section 12(b) Exchange Act registration statements. The ability to file confidential registration statements has previously been limited to emerging growth companies, or EGC’s and companies filing initial offering circular’s for first time Regulation A+ offerings.
Foreign private issuers may follow the new guidance, may follow the process available to emerging growth companies (if they so qualify) or may elect the confidential review process only available to such foreign private issuers. In particular, the SEC allows the nonpublic submission of draft registration statements for foreign issuers if the foreign registrant is: (i) a foreign government registering its debt securities; (ii) a foreign private issuer that is listed or is concurrently listing its securities on a non-U.S. securities exchange; (iii) a foreign private issuer that is being privatized by a foreign government; or (iv) a foreign private issuer that can demonstrate that the public filing of an initial registration statement would conflict with the laws of an applicable foreign jurisdiction. Shell companies and blank-check companies may not utilize a confidential submission.
If a company wants to keep certain information confidential, even after the required time to make such information public, it will need to submit two confidential requests, one as part of the registration review process and one when prior confidential filings are made public. During the confidential review process, the company should submit a request under Rule 83 in the same manner it would during a typical review of a registered offering. Once the company is required to make the prior filings “public” (15 days prior to qualification or effectiveness), the company would make a new request for confidential treatment under Rule 406 in the same manner other confidential treatment requests are submitted. In particular, for a confidential treatment request under Rules 83 and 406, a company must submit a redacted version of the document via EDGAR with the appropriate legend indicating that confidential treatment has been requested. Concurrently, the company must submit a full, unredacted paper version of the document to the SEC using the ordinary confidential treatment procedure (such filings are submitted via a designated fax line to a designated person to maintain confidentiality).