SEC Staff Announces Process for Confidential Review of Registration Statements under the JOBS Act

April 6, 2012


The Jumpstart Our Business Startups Act (often referred to as the JOBS Act) was signed into law on April 5, 2012. Our Client Alert describing the JOBS Act can be found here.[1] Among its provisions, the JOBS Act provides for confidential submission and review of registration statements for initial public offerings of emerging growth companies. For this purpose, a registered offering is an “initial public offering” if the issuer has not previously sold common equity securities pursuant to an effective registration statement under the Securities Act of 1933.

Under the JOBS Act, an “emerging growth company” is an issuer (whether a U.S. issuer or a foreign issuer) with total gross revenues of less than $1 billion during its most recently completed fiscal year. However, an issuer will not qualify for treatment as an emerging growth company if it first sold its common equity securities pursuant to an effective registration statement on or before December 8, 2011.

Section 106 of the JOBS Act provides that an emerging growth company may now submit its IPO registration statement to the SEC in draft form, with confidential review of that registration statement. This confidential review process is conditioned on the emerging growth company filing the initial confidential submission and all amendments publicly with the SEC no later than 21 days prior to the date the issuer first conducts a road show for its IPO.

On April 5, 2012, the SEC’s Division of Corporation Finance provided guidance regarding the operation of the confidential submission and review process. Under this guidance, one copy of the draft registration statement should be sent to the following address:

       Draft Registration Statement
       U.S. Securities and Exchange Commission
       100 F Street, N.E.
       Washington, D.C. 20549

The Division also announced the following with regard to the submission of draft registration statements for IPOs of emerging growth companies:

  • the submission should include a transmittal letter confirming the issuer’s status as an emerging growth company;
  • the draft registration statement should be submitted either as a text-searchable PDF file supplied on a CD/DVD or, alternatively, on paper (it may not be stapled or bound if submitted on paper); and
  • there is no requirement to provide a registration fee at the time a confidential submission is made.

Following its receipt of a confidential submission, the Division will contact the emerging growth company to confirm receipt of the submission and to advise it of the office assigned to review the submission.

Emerging growth companies with questions regarding the draft registration statement submission and review process should call (202) 551-5867.

Confidential Submissions by Foreign Private Issuers

In addition to the confidential submission process for emerging growth companies, the Division has long had a confidential submission process for certain foreign private issuers. This process is described in our Client Alert here. In its guidance, the Division announced that, going forward, any foreign private issuer that is permitted to submit a draft registration statement (either as an emerging growth company or under the Division’s foreign private issuer confidential submission policy) must now submit that draft registration statement in the same format and to the same address discussed above. In connection with this requirement, foreign private issuers may no longer use the e-mail address that the Division had provided for confidential submissions.

Application of Section 5 to Confidential Submissions

The Division took the opportunity in the guidance to make clear that the confidential submission of a draft registration statement is not a public filing. Accordingly, a registration statement submitted through this process is not considered “filed” for purposes of Section 5 of the Securities Act. 

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[1] If you would like access to the O'Melveny & Myers webinar on the JOBS Act, please contact Rachel Cohen.