SEC Policy Change: Non-Public Submissions from Foreign Private Issuers: SEC Limits Availability of Confidential Submission Procedures

Sullivan & Cromwell LLP - December 9, 2011

Registration statements that companies file with the SEC for public offerings and U.S. listings are generally filed on the SEC’s EDGAR system and immediately available to the public. Under an exception to this rule, the SEC staff has historically allowed foreign issuers filing with the SEC for the first time to submit registration statements and amendments on a non-public basis for SEC staff review. Issuers qualifying for the exception have the opportunity to respond to SEC staff comments before making a filing that becomes available to the public.

On December 8, 2011, the staff of the SEC Division of Corporation Finance announced a policy change limiting the availability of the non-public submission procedure. Under the new approach, the SEC will review initial registration statements of foreign issuers submitted on a non-public basis only where the registrant is: (1) a foreign government registering its debt securities; (2) a foreign private issuer that is listed or is concurrently listing its securities on a non-U.S. securities exchange; (3) a foreign private issuer that is being privatized by a foreign government; or (4) 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. In addition, the non-public submission procedure will not be available to shell companies, blank check companies or issuers with no or substantially no business operations.