The 2012 JOBS Act permitted Emerging Growth Companies to initiate the IPO process by submitting their IPO registration statements confidentially to the SEC for nonpublic review by the SEC staff. The confidential process was intended to allow an EGC to defer the public disclosure of sensitive or competitive information until it was almost ready to market the offering—and potentially to avoid the public disclosure altogether if it ultimately decided not to proceed with the offering. In 2017, Corp Fin extended that benefit to companies that were not EGCs, allowing them, for the first time, to submit confidential draft registration statements for IPOs, as well as for most offerings made in the first year after going public. (See this PubCo post, this PubCo post and this PubCo post) This week, Corp Fin posted newly updated FAQs regarding voluntary submissions of DRS for nonpublic review under the expanded procedures. Unfortunately, unlike its practice with CDIs, Corp Fin does not identify which FAQs have been changed—hint, hint—but it appears that the one notable change was to the last FAQ regarding de-SPACs in light of new EDGAR release 24.3.
In its earlier version of FAQ 19, when asked about co-registrants on DRS submissions in connection with de-SPAC transactions, Corp Fin had to respond that EDGAR did not then allow the entry of a co-registrant on DRS submissions. As a result, if a registrant used the confidential submission process to submit a DRS in connection with a de-SPAC transaction, the primary registrant was required to submit the DRS without the CIK and related submission information of any co-registrant. The primary registrant then had to add the co-registrant’s CIK and related submission information on EDGAR when it publicly filed the registration statement.
On September 16, the SEC announced that EDGAR was being updated to permit co-registrants in a DRS submission. Accordingly, FAQ 19 has now been updated to provide that, if a registrant uses the confidential submission process to submit a DRS in connection with a de-SPAC transaction, the primary registrant must include any co-registrant’s CIK and related submission information in EDGAR when it submits the DRS. (See Section 7.3.3.1 Entering Submission Information of the EDGAR Filer Manual.) The DRS must also contain the information required by the applicable registration statement form, including required information about the target company. Co-registrants do not need to separately submit the DRS or related correspondence in EDGAR.
