The Securities and Exchange Commission (the "SEC") recently announced an update to its statement of policy regarding the non-public review of initial registration statements submitted by foreign private issuers.
As discussed in more detail in Seward & Kissel's previous Client Bulletin of December 8, 2011, the SEC's policy permits certain foreign private issuers to take advantage of the non-public submission and review process for their initial SEC registration statements if (i) they have listed, or are concurrently listing, securities on a non-U.S. securities exchange, (ii) are a foreign private issuer that is being privatized by a foreign government, (iii) a foreign private issuer that can demonstrate that a public filing would conflict with the law of an applicable foreign jurisdiction.
Pursuant to the procedures established in the recently updated policy, a foreign private issuer that submits an initial registration statement on a non-public basis after May 20, 2012 must electronically file via the SEC's public website all drafts of the registration statement, staff comment letters and issuer response letters at the time that the registration statement is later electronically filed with the SEC. Prior to this policy update, there was no requirement to publicly file prior documentation with the SEC.
This new procedure, which is applicable to all foreign private issuers, is consistent with the requirements applicable to "emerging growth companies" under the Jumpstart Our Business Startups Act, or the JOBS Act. Unlike emerging growth companies under the JOBS Act, however, foreign private issuers are not subject to the requirement that the registration statement and other correspondence be filed with the SEC at least 21 days before the commencement of any road show presentation. The updated procedures do specify, however, that an issuer that is eligible for non-public review as both a foreign private issuer and an emerging growth company must follow the JOBS Act procedures for "emerging growth companies" (including filing not later than 21 days prior to any road show presentations) if it intends to take advantage of any other provisions of the JOBS Act applicable to emerging growth companies. Please see Seward & Kissel's Client Bulletin of March 30, 2012 for a discussion of these JOBS Act provisions.
The SEC's notice concludes with the statement that it will continue to assess use of the confidential filing process and may make changes in the future. Seward & Kissel will continue to monitor the SEC's announcement in this area and report on any further changes.
The SEC's press release can be viewed on its website by accessing the following hyperlink:
http://www.sec.gov/divisions/corpfin/internatl/nonpublicsubmissions.htm
If you have any questions concerning this bulletin, please contact your Seward & Kissel Capital Markets Group attorney.
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Seward & Kissel LLP, founded in 1890, is a leading U.S. law firm with an international reputation for excellence. We have offices in New York City and Washington, D.C.
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