The Staff of the Division of Corporation Finance posted questions and answers regarding the confidential submission process for draft registration statements.
The guidance provides additional clarity relating to the process applicable to companies that are not emerging growth companies and that submit draft registration statements for confidential review. For example, the Q&As address confidential treatment under Rule 83 for issuers that are not EGCs; how an issuer may submit a Rule 83 request for confidential treatment with respect to a draft registration statement; reiterates the items that may be omitted from a draft registration statement; and addresses other similar matters, including the addition of a Q&A regarding de-SPAC transactions.
The Q&As note that an issuer that is not an EGC cannot omit from its publicly filed registration statement financial information that it reasonably believes will not be required to be included in the registration statement at the time of the contemplated offering, since that relief is only available to EGCs by virtue of the FAST Act.
The Q&As confirm that a Canadian issuer filing under the Multi-Jurisdictional Disclosure System can take advantage of these accommodations. An asset-backed issuer, however, may not take advantage of these accommodations.
An issuer also cannot use the draft submission for a draft post-effective amendment to an effective registration statement.
As far as communications safe harbors, the Q&As note that if an issuer submits a draft registration statement for nonpublic review, it cannot rely on the Rule 134 safe harbor to make a public communication about its offering. The safe harbor is not available until the issuer files a registration statement that satisfies the requirements of Rule 134.
But an issuer that submits a draft registration statement for nonpublic review may make a public communication about its offering in reliance on the Securities Act Rule 135. This, however, may affect whether the Commission can withhold the draft registration statement in response to a request under the Freedom of Information Act.
Finally, the Q&As address the use of the confidential submission process in connection with a de-SPAC transaction and when to include information of a co-registrant. Since EDGAR does not allow for the entry of a co-registrant on a DRS submission, the primary registrant in connection with a de-SPAC transaction should submit the DRS without the co-registrant’s CIK and related submission information. The primary registrant should add the information on the co-registrant in EDGAR when it publicly files the registration statement. The co-registrant will not need to separately submit the DRS or related correspondence in EDGAR since the primary registrant’s reporting history will include all DRS submissions and related correspondence.
See the full Q&As here.