December 8, 2011, updated May 30, 2012
Non-Public Submissions from Foreign Private Issuers
Registration statements for public offerings and U.S. listings by public companies are generally available to the public through the EDGAR system. The Division of Corporation Finance staff recognizes that foreign private issuers and foreign governments often face unique circumstances when accessing U.S. public markets in connection with the initial registration of their securities under the Securities Act of 1933 or the Securities Exchange Act of 1934. The Division has afforded to foreign private issuers and foreign governments the ability to submit to the staff registration statements and amendments on a non-public basis in connection with their first-time registration with the Commission, permitting the staff to review and comment on disclosure, and the issuer to respond to staff comments, before a public filing is made through the EDGAR system.
Historically, the majority of foreign private issuers registering securities with the Commission also had or were having their securities traded on a foreign securities exchange, and the foreign market ordinarily did not have a practice of requiring public disclosure of the registration statement before completion of review. More recently, however, the vast majority of foreign private issuers using this non-public review procedure did not and were not contemplating listing securities outside the United States.
In December 2011, the Division limited its policy with respect to the non-public submission of initial registration statements by foreign issuers. Since then, the staff reviews initial registration statements of foreign issuers that are submitted on a non-public basis only where the registrant is: (1) a foreign government registering its debt securities; (2) a foreign private issuer that is listed or is concurrently listing its securities on a non-U.S. securities exchange; (3) a foreign private issuer that is being privatized by a foreign government; or (4) a foreign private issuer that can demonstrate that the public filing of an initial registration statement would conflict with the law of an applicable foreign jurisdiction. In addition, shell companies, blank check companies and issuers with no or substantially no business operations are not permitted to use the non-public submission procedure. This change in policy was intended to promote transparency and investor protection. This non-public submission policy is separate from the confidential registration statement review procedures available to “emerging growth companies” under the Jumpstart Our Business Startups Act (JOBS Act). As described below, foreign private issuers that meet the requirements in the JOBS Act are eligible to be treated as emerging growth companies.
Foreign issuers should be aware that circumstances may develop in which the staff will request a foreign issuer to publicly file its registration statement even though it comes within the general parameters of the policy. Examples of these circumstances include a competing bid in an acquisition transaction or publicity about a proposed offering or listing.
Foreign issuers are reminded that, when non-public registration statements are submitted to the staff, the document must be complete. The timing and scope of staff review of non-public submissions of registration statements are generally the same as for publicly filed registration statements.
Foreign issuers are also reminded that the non-public submission of a registration statement under this policy does not constitute the filing of a registration statement under the Securities Act of 1933. Under Section 5(c) of the Securities Act, offers of securities cannot be made in the United States until a registration statement is publicly filed with the Commission using the EDGAR system.
Foreign issuers that are eligible under this policy for the non-public submissions must submit their draft registration statements in the same manner as “emerging growth companies” under the JOBS Act, as described in http://www.sec.gov/divisions/corpfin/cfannouncements/drsfilingprocedures101512.htm. Foreign private issuers who seek to qualify as “emerging growth companies” under the JOBS Act should consult the Division’s information relating to Title I of the JOBS Act; see http://www.sec.gov/divisions/corpfin/cfjobsact.shtml. Please note that foreign private issuers that are seeking to be treated as emerging growth companies must, among other things, follow the procedures applicable to emerging growth companies with respect to both confidential submissions and the timing of the public filing of their registration statements.
In addition, foreign private issuers, whether submitting draft registration statements pursuant to this foreign issuer non-public submission policy or as an emerging growth company under the JOBS Act, will be required, at the time they publicly file their registration statements, to also publicly file their previously submitted draft registration statements and resubmit all previously submitted response letters to staff comments as correspondence on EDGAR. All staff comment letters and issuer response letters will be posted on EDGAR in accordance with staff policy. For foreign private issuers making non-public submissions pursuant to this policy, and not pursuant to the procedures available to emerging growth companies, this requirement will only apply to registration statements where the initial draft submission is made after May 30, 2012.
Please contact the Division’s Office of International Corporate Finance in advance of any non-public submission by a foreign issuer under these procedures. Questions may be addressed to any staff attorney in the Office of International Corporate Finance at 202-551-3450, or submitted through the Division’s online form at: https://www.sec.gov/forms/corp_fin_interpretive.
The staff will continue to assess use of the procedure and may make changes in the future.