The SEC has issued a number of frequently asked questions outlining the interaction between confidential registration statements permitted under the JOBS Act and the balance of the registration and offering process. We expect many of these FAQs will be subsequently incorporated into the SEC’s rules with perhaps some adjustments as the process becomes more formalized. The FAQs warn that the FAQs are not rules, regulations or statements of the Commission. and that the Commission has neither approved nor disapproved these FAQs.
Some of the more interesting points of the FAQs are:
No Press Releases. The Rule 134 safe harbor for a press release announcing an offering is not available until the issuer files a registration statement that satisfies the requirements of Rule 134. The confidential submission of a draft registration statement does not constitute the filing of a registration statement.
Filing Fees: The filing fee is due when the registration statement is first filed publicly on EDGAR.
Contents of Draft Registration Statement. As the confidential submission of the draft registration statement does not constitute a “filing” for purposes of Securities Act Sections 5(c) and 6(a), it is not required to be signed or to include the consent of auditors and other experts. The SEC expects draft registration statements to be substantially complete at the time of initial submission, including a signed audit report of the registered public accounting firm covering the fiscal years presented in the registration statement and exhibits. The staff will defer review of any draft registration statement that is materially deficient.
When to Publicly File the Registration Statement. The confidential submissions have to be publicly filed at least 21 days before the issuer conducts a “road show” as defined in Rule 433(h)(4). That rule defines “road show” as “an offer…that contains a presentation regarding an offering by one or more members of the issuer’s management…and includes discussion of one or more of the issuer, such management, and the securities being offered.” It is possible that there may be meetings with potential investors under the new test-the-waters communications provisions of the JOBS Act that could also be viewed as coming within the Rule 433(h)(4) definition of road show, which could theoretically trigger a requirement to file the registration statement 21 days before those meetings. However, the staff will not treat test-the-waters communications under the JOBS Act as a road show. Please note that test-the-waters communications are limited to communications with QIBs and institutional accredited investors.
How Are the Confidential Submissions Made Publicly Available? Confidential submissions should be filed as exhibits to the first registration statement filed on EDGAR, with each confidential submission filed as a separate Exhibit 99.