The Securities and Exchange Commission's Division of Corporation Finance has released responses to “Frequently Asked Questions” regarding the JOBS Act provision that allows “emerging growth companies” to submit a draft registration statement to the SEC for confidential, non-public review prior to public filing.

The initial confidential submission and all amendments must be filed no later than 21 days before the date on which the issuer conducts a road show—a presentation of securities to potential buyers. The SEC is moving quickly to clear up any confusion around the new registration process.

The SEC noted that the FAQs “are not rules, regulations or statements of the Commission. Further, the Commission has neither approved nor disapproved these FAQs.”

Some of the more significant clarifications made by the SEC include:

A foreign private issuer that qualifies as an emerging growth company may use the confidential submission process to the same extent as a domestic company. Foreign private issuers eligible to submit draft registration statements must do so in the same manner and to the same address as domestic companies.

As the confidential submission of the draft registration statement does not constitute a “filing” for purposes of Securities Act, an auditor's signature or consent is not required. Additionally, emerging growth companies may omit certain limited information from their initial submissions in reliance on existing rules and regulations relating to the content of filed registration statements, such as the public offering price or other offering-related information.

Such draft registration statements must be “substantially complete” at the time of initial submission, including a signed audit report of the registered public accounting firm and exhibits consistent with the existing requirements for non-public submissions by foreign private issuers.

The SEC will not object if an emerging growth company does not treat test-the-waters communications conducted in reliance on new Section 5(d) as a road show for purposes of Section 6(e). Keep in mind: Section 5(d) test-the-waters communications are limited to communications with qualified institutional buyers and institutional accredited investors.

If an emerging growth company does not conduct a traditional road show, other than test-the-waters communications that comply with Section 5(d), then its registration statement and confidential submissions should be filed publicly on EDGAR no later than 21 days before the anticipated date of effectiveness of the registration statement

A company currently in registration at the time of enactment of the JOBS Act that qualifies as an emerging growth company may switch to the confidential submission process for future amendments.

A complete discussion of the FAQs can be found on the SEC's Website here.