SEC Revises Policy on Confidential Submissions by Foreign Private Issuers

On December 8, 2011, the U.S. Securities and Exchange Commission announced that it had revised its policy relating to confidential submissions of registration statements (and amendments) by foreign private issuers.

In contrast to U.S. issuers, foreign private issuers registering their securities for the first time in certain circumstances can generally submit registration statements to the SEC on a confidential basis. This allows foreign private issuers to resolve any complicated issues with the SEC before publicly filing a registration statement. Many Canadian companies undertaking a cross-border initial public offering or an initial offering of securities in the United States have taken advantage of the SEC’s confidential filing policy.

Effective as of December 8, 2011, the SEC has revised this policy to limit confidential submissions of initial registration statements by foreign issuers to

(i) foreign governments registering their debt securities;

(ii) foreign private issuers that are listed or are concurrently listing their securities on a non-U.S. securities exchange;

(iii) foreign private issuers that are being privatized by a foreign government; or

(iv) foreign private issuers that can demonstrate that the public filing of an initial registration statement would conflict with the law of an applicable foreign jurisdiction.

Shell companies, blank check companies and issuers with no or substantially no business operations will be unable to make confidential submissions.

Nevertheless, even if a foreign issuer falls within one of the categories described above, the SEC may still request a foreign issuer to file publicly if the SEC believes circumstances warrant public disclosure (such as when there has already been significant publicity about the offering or registration).

The new policy applies to all confidential submissions made after December 8, 2011 and to all amendments to confidential submissions that had been originally submitted before December 8, 2011.

To discuss these issues, please contact the author(s).

This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, we would be pleased to discuss the issues in this publication with you, in the context of your particular circumstances.

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