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SEC Guidance on Submitting Non-Public Registration Statements

Compliance Week | April 5, 2012

Attention all you pre-IPO companies eager to take advantage of the compliance loopholes granted to you under the new JOBS Act: the Securities and Exchange Commission has fresh guidance on that point.

The SEC this week released a short explanation of how a company can submit a confidential registration statement for a nonpublic review by SEC staff, as allowed under Section 106 of the law. The three-paragraph notice says that the SEC currently has no means to accept electronic submissions, so until further notice, companies should submit a text-searchable PDF file on a compact disc. Companies can also go old school and submit a paper filing. (“We ask that you not staple or bind them.”)

Whatever format of submission companies use, they should send it to the SEC offices (100 F St. NE, Washington DC, 20549) with “Draft Registration Statement” as the first line of the address. SEC staffers will then contact you to confirm receipt and let you know which officers will review the statement.

As stipulated in Section 106, SEC staffers will review the confidential registration statement and return it to filers for any follow-up action, and the original submission will remain nonpublic until no later than 21 days before a company goes on a road show to raise investor interest—by then, the filer will need to have filed the original submission and any amended language, and that document will be open for public inspection.

Who's eligible for Emerging Growth Company status? Any business with less than $1 billion in annual revenue and less than $700 million in market capitalization, which is just about every company other than Facebook that might hold an initial public offering.

The JOBS Act also exempts “EGCs” from many other standard governance and investor protections, which has led to fierce criticism from investor activists.