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.