Confidential Registration Statements; IPO, Secondary, or Follow-on Offerings
Posted by Attorney Laura Anthony on July 18, 2017
Confidential Registration Statements; IPO, Secondary, or Follow-on Offerings- 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.
A registration statement under Section 12(b) of the Securities Exchange Act of 1934 is necessary to register a security for listing on a national securities exchange. A Form 10 or Form 8-A are used to register securities under Section 12(b). It should be noted that a Form 10 is also used to register securities under Section 12(g) of the Exchange Act. Section 12(g) requires registration under certain circumstances and also allows for voluntary registration.
As mentioned the SEC will accept confidential draft registration statements for follow-on offerings that are submitted prior to the end of the twelfth month following the effective date of the company’s initial Securities Act registration statement or Section 12(b) Exchange Act registration statement. In this case the company must submit a cover letter confirming that it was filing the registration statement and nonpublic draft submission at least 48 hours prior to any requested effective date.
In the case of a follow-on registration, the SEC will only allow a confidential submission of the first draft. Any subsequent amendments responding to SEC comments would need to be filed publicly. The company should also file the initial confidential filing, publicly, when it submits its first public filing of the registration statement.
In general, the SEC will review draft registration statements and related revisions on a nonpublic basis if the company files a cover letter with the initial draft registration statement confirming that the company will file publicly file the registration statement and all nonpublic draft submissions at least 15 days prior to the anticipated effective date of the registration for its listing on a national exchange.