On August 17, 2017, the SEC supplemented the information in its June 29 announcement regarding its expanded draft registration statement processing procedures, which allowed companies that were not emerging growth companies to file confidentially.  The supplement relates to availability of the process and transition matters. The announcement also indicates that companies may submit questions about their eligibility to use the expanded processing procedures to CFDraftPolicy@sec.gov.

On June 29, Corp Fin announced that companies that were not emerging growth companies could, for the first time, submit a confidential draft registration statement for IPOs, as well as for most offerings made in the first year after going public.  (See this PubCo post.) The extension of this confidential process was designed to allow more companies to defer the public disclosure of sensitive or competitive information until they were almost ready to market the offering—and potentially to avoid the public disclosure altogether if they ultimately decided not to proceed with the offering.

The supplemented announcement indicates that the nonpublic review process is available for Securities Act registration statements prior to the IPO date and for Securities Act registration statements within one year of the IPO. The IPO date means “the date of the first sale of common equity securities of an issuer pursuant to an effective registration statement under the Securities Act,” per Section 101(c) of the JOBS Act. The nonpublic review process is also available for the initial registration of a class of securities under Exchange Act Section 12(b) on Form 10, 20-F or 40-F.

If a company has a registration statement on file and in process, it will be allowed to change to the nonpublic review process for future pre-effective amendments to its registration statement provided it is eligible to participate in the nonpublic review process and it agrees to publicly file its amended registration statement and all draft amendments in accordance with the time frame specified in the original announcement.

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