Securities Law

Archive for May 2012

Posted on Wednesday, May 16 2012 at 3:26 pm by

SEC Updates Procedures for Confidential Submission of Registration Statements by Emerging Growth Companies under JOBS Act

As previously discussed (see our April 6, 2012 posting), the recently enacted Jumpstart Our Business Startups Act (JOBS Act), permits an “emerging growth company” (generally, a pre-IPO company with annual gross sales of less than $1 billion) to submit a draft of its IPO (or pre-IPO) registration statement for confidential non-public review and comment by the SEC. Because the normal EDGAR filing process is not confidential, the SEC initially provided for submission of these draft registration statements in paper copy or on CD. The SEC has now updated its confidential filing procedures to provide for filing by secure e-mail of a searchable pdf copy of the registration statement using the SEC’s secure e-mail system. The e-mail filing must include a transmittal letter that identifies the issuer and the type of submission, and confirms the issuer’s status as an emerging growth company. The new procedures (available here) became mandatory on May 14, 2012, and replace the prior procedures.

The purpose of the confidential filing procedure is to allow pre-IPO companies to begin pursuing an IPO without fear of becoming “damaged goods” if, as can frequently be the case, market conditions later require them to cancel or delay their IPO. Interestingly, at least one emerging growth company, SolarCity, recently issued a press release to announce that it had made a confidential filing and planned to go public when the review process was complete.

Posted on Thursday, May 3 2012 at 9:00 am by

SEC Guidance on JOBS Act Accumulating

The SEC is currently collecting its informal JOBS Act guidance here.

The guidance posted to date includes:

  • FAQs on “emerging growth company” status and Exchange Act registration/deregistration;
  • A warning that the crowdfunding exemption is not currently available, pending SEC rulemaking (we note that general solicitation in connection with Rule 506 private placements is not available yet either, also pending SEC rulemaking); and
  • Guidance and FAQs on confidential draft pre-IPO registration statement submissions by emerging growth companies (see our April 6, 2012 posting).

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