On May 30, 2012, the staff of the Division of Corporation Finance of the SEC updated its guidance relating to confidential submissions to the SEC by foreign private issuers (the "FPI Policy"). Under the revised FPI Policy, foreign private issuers submitting draft registration statements to the staff for review on a non-public basis will be required at the time they publicly file their registration statements to also publicly file their previously submitted draft registration statements and resubmit all previously submitted response letters to staff comments as correspondence on EDGAR.
In the past, foreign private issuers utilizing the FPI Policy to submit their initial registration statements to the staff for review on a non-public basis were only required to publicly file the registration statement in the form declared effective by the SEC. There was no obligation to also file previously submitted draft registration statements and response letters to staff comments.
The staff revised the FPI Policy to align it with the confidential review procedure now available to issuers that qualify as emerging growth companies under the Jumpstart Our Business Startups Act (the "JOBS Act"). Foreign private issuers that meet the requirements of the JOBS Act are eligible to be treated as emerging growth companies and may choose which procedure to use. However, all non-public submissions must now be made in the same manner as emerging growth companies under the JOBS Act.
For foreign private issuers making non-public submissions pursuant to the FPI Policy, and not pursuant to the procedures available to emerging growth companies, this new disclosure requirement will only apply to registration statements where the initial draft submission was made after May 30, 2012.