SEC Expands Ability to File Confidential Registrations for All Companies

Posted by on July 17, 2017

SEC Expands Ability to File Confidential Registrations for All Companies- 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.

Confidential submissions to the SEC are completed by choosing a “confidential” setting in the EDGAR system. The EDGAR filing manual has detailed instructions for filing confidential draft registration statements that were put into place for EGC’s but which instructions can now be followed by all companies for confidential submissions. The SEC will update the EDGAR manual at some point to conform the language for the new policy covering all companies.

To satisfy the requirement to publicly file the previous confidential information, the company can file all prior confidential information as an exhibit to its non-confidential filing, or change the setting in the EDGAR system on its prior filings, from “confidential” to “public.” In the event the company chooses to change its EDGAR setting to “public,” it would not have to re-file all prior confidential material as an exhibit to a new filing.

A confidential registration statement is subject to the same rules related to content and financial statements as a public filing. For example, if the company would be able to omit historical financial statements pursuant to the provisions of Section 71003 of the FAST Act, they could also do so in the confidential submission.

Confidential filings are not required to be signed by the company officers or directors. Also, filing fees for registration are not due until a public registration statement is filed.