On September 26, 2012, the SEC announced that starting October 1, 2012, certain emerging growth companies and foreign private issuers would be able to submit to the SEC draft registration statements for confidential nonpublic review via a modified EDGAR system instead of via the secure e-mail submission process in place at that time. As the EDGAR Filer Manual for EDGAR Release 12.2 became effective on October 15, 2012, what was voluntary is now mandatory. Any eligible issuer submitting a draft registration statement for confidential nonpublic review, or amendment or related correspondence, now must use the new EDGAR system.
To assist issuers with the use of the new confidential filing procedures, the SEC posted a set of detailed instructions on how to prepare an electronic submission of a draft registration statement, or an amendment. In addition, issuers that submit their original draft registration statement via the new EDGAR system will no longer need to file copies of previously submitted draft registration statements as exhibits to their publicly-filed registration statements to comply with the JOBS Act’s mandate that the drafts become publicly available at least 21 days prior to the start of the road show. The new EDGAR system will allow issuers to direct the EDGAR system to publicly file the drafts as individual documents on EDGAR.
To assist in the transition from the secure e-mail or paper system previously used for confidential submissions to EDGAR, in October 2012, the Division of Corporation Finance sent a letter to companies whose draft registration statements were under staff review to explain how they can transition to electronic filing via EDGAR. In contrast to issuers that submit their first draft registration statement via EDGAR, issuers that already submitted draft registration statements prior to transitioning to the new EDGAR system will have to submit those drafts as exhibits to the first draft registration statement submitted via the new EDGAR system. Issuers transitioning to the new EDGAR system will also have to submit copies of all prior correspondence from the issuer to the SEC, each as a separate “cover” document with the initial submission via EDGAR of a draft registration statement.
The new EDGAR system is part of the SEC’s efforts to meet the requirements of Section 106(a) of the JOBS Act mandating that certain pre-IPO EGCs be provided an opportunity to submit draft registration statements to the SEC for nonpublic confidential review. In addition, the new EDGAR system will support the SEC’s policies and procedures allowing certain foreign private issuers that are not EGCs to submit registration statements to the SEC for nonpublic review.