On December 8, 2011, the United States Securities and Exchange Commission (the “SEC”) announced a new policy to the effect that, subject to certain exceptions discussed below, foreign private will no longer be able to submit initial registration statements to the SEC on a confidential basis.
Under the prior policy, foreign private issuers had the ability to submit registration statements (and amendments) to the SEC on a non-public basis in connection with their first time registration, permitting the SEC to review and comment on disclosure, and the issuer to respond to the SEC’s comments before making a public filing through the Electronic Data Gathering, Analysis and Retrieval (EDGAR) system.
As of December 8, 2011, the SEC will review initial registration statements submitted by foreign private issuers on a confidential basis only if the foreign private issuer is either:
• a foreign government registering its securities;
• listed or concurrently listing on a non-U.S. securities exchange;
• being privatized by a foreign government; or
• a foreign private issuer that can demonstrate that the public filing of an initial registration statement would conflict with the law of an applicable foreign jurisdiction.
The SEC will continue to assess use of this procedure and will make changes in the future.