Public Offering System Filing Guide and Tips
ON THIS PAGE
- Issuer Name
- Effective Date
- SEC Filed Documents and Offering Proceeds
- Method of Distribution
Changes to the Shelf Review Process
Effective June 4, 2012, FINRA is modifying the review process for shelf filings to simplify the review as well as minimize the amount of information requested by the staff. All shelf filings will be categorized in two types: base or takedown filings.
The significant changes to the review process are:
- Requirement to obtain clearance prior to a member’s participation. FINRA‘s new shelf filing process is designed so that member(s) can file and obtain clearance prior to participating in a public offering. Consistent with the Same Day Clearance process launched in 2010, filers can submit a filing without documents or with preliminary documents if they are available, and provide a maximum estimate of the offering size and compensation terms. For most filings, the new filing system will display two review options to select when submitting a base or takedown filing:
- Same Day Clearance, in which filers obtain a No Objections Letter upon acceptance of their filing by FINRA,
- Pre-Participation Review which offers a voluntary review for those filers who have unique terms or arrangements and timing is not an immediate concern (please see the section with the heading “voluntary pre- participation review” below).
- Either option will require clearance before a member participates in the offering, in accordance with FINRA Rule 5110(b)(1).
- Wider eligibility for same day clearance. FINRA is expanding same day clearance to all types of shelf filings, including base and takedown filings that list selling security holders or have equity lines of credit.
- Each takedown must be filed separately. Each takedown must be filed separately and all base and takedown filings will be assigned a separate filing ID. This change eliminates the “concurrent” filing process. Filings containing multiple takedowns will not be accepted in the new system.
- Streamlined reviews. As a part of the Department’s effort to streamline the review of shelf filings, the new public offering filing system includes the following changes:
- The new system will designate the filing as a base filing or a takedown filing;
- A new shelf screen will be available with representations applicable to the type of offering; and
- We will no longer require the 8 percent underwriting compensation limitation language in base filings. Compensation received by a member firm(s) in takedowns will be evaluated based on the size and type of the offering as well as the level of risk assumed by the firm.
- Voluntary pre-participation review. Filers may elect to submit their filings using either the same day clearance process introduced in 2010 or request a review through the new “pre-participation review” option. When filers choose the pre-participation review option, a no objection letter will not be generated immediately because the staff will review the filing. The staff assigned will issue comments, if applicable, based on the complexity of the offering. For example, a filer may elect to have a pre-participation review if the participating members acquired unregistered securities that would be deemed underwriting compensation within 180 days preceding the filing of a takedown. This option is also suggested for participating members who seek assurance that their underwriting compensation proposal is not excessive.
Existing Base Filings in COBRADesk
Beginning on June 4, 2012, base filings received and cleared by May 30, 2012, will be available for takedown filings in the new public offering system. These base filings include all filings cleared during the preceding three-year period beginning June 1, 2009, and ending on June 1, 2012. Filings older than three years will have to be re-filed. Questions about re-filing should be directed to the Corporate Financing Department at (240) 386-4623.
Changes to the Process for Requesting an Expedited Review
In the new system, the process for requesting an expedited review will be modified for increased efficiency and predictability. A call to a Public Offering Review manager will not be necessary. Instead, firms can complete an expedited review request when submitting the initial filing. Firms should ensure they can meet the following criteria before requesting an expedited review:
- the offering is filed in compliance with the “Requirement for Filing” section of FINRA Rule 5110(b)(4)(A)(i); and
- the anticipated effective or commencement date is within a week or less of the initial filing with the SEC or other regulatory authority.
To request an expedited review, the filer must complete all of the representations and required information in the Expedited Review screen. These include representations regarding compliance with FINRA Rules 5110(f)(2) and 5121, appropriate disclosure of any association or affiliation between the issuer and any member, submission of all relevant documents and the completion of due diligence. All requests will be subject to review and approval after submission.
Please note that shelf offerings, PIPEs, resale offerings distributed on a best efforts basis, non-traded investment programs and offerings in which a participating FINRA member firm has acquired unregistered securities during the review period will not be eligible for an expedited review.
The SEC allows issuers to submit a draft registration statement on a confidential basis prior to making the registration statement available to the public. Similarly, other regulatory authorities allow for submission of confidential documents. All confidential filings should be submitted electronically to the Department no later than one business day after the confidential document has been filed with or submitted to the SEC, any state securities commission or other regulatory authority. See FINRA Rule 5110(b)(4)(A)(i) and Regulatory Notice 12-22. All such submissions should be attached as Non-SEC filed documents.
Once a registration statement is made available to the public, the registration statement must be filed as an SEC-filed document. Providing the Department with a draft of the confidential document under this timeline will allow Corporate Financing the time needed to complete the review of the filing prior to a FINRA member firm participating in a public offering of securities. See the User Guide for specific instructions on how to make a confidential filing.
JOBS Act Filings
The timely filing requirements and the confidential filing process are also applicable to filings made with the SEC pursuant to the Jumpstart Our Business Startups Act (JOBS Act) which provides that “emerging growth companies” (generally issuers with less than $1 billion in annual revenues) prior to their initial public offering may confidentially submit to the SEC a draft registration statement for nonpublic review by the SEC staff, not later than 21 days before the date the issuer conducts a road show, as that term is defined in section 230.433(h)(4) of title 17 of the Code of Federal Regulations.
Please enter the name of the Issuer exactly as it appears on the Registration Statement/Offering Document. Note that this field has a 40 character limitation. If the “Issuer Name" exceeds the 40 character limitation, please abbreviate.
If the offering has not been declared effective by the SEC prior to filing with FINRA, please enter the “Anticipated” date in D2.A and select “Anticipated”. This date should reflect the date the issuer intends to seek effectiveness from the SEC. We encourage you to update this date if there are changes after your initial filing.
If the offering was declared effective by the SEC prior to filing with FINRA, please enter the “Actual” date in D2.A and select “Actual”.
SEC Filed Documents and Offering Proceeds:
When entering the “Registration Number”, the “CIK Number” and the document’s “Accession Number”, please ensure that all the numbers are entered correctly.
The table in section D.2.D will be updated when all the document information is provided and “Add Row” is selected. When part of this information is entered incorrectly, the system will display the message “Invalid Link” when the document is entered.
For D2.D.1, there are three options to enter the proposed maximum aggregate offering price (PMAOP) and the documents filed with the SEC:
- (a) Carried forward securities:
- If the registration includes securities carried forward from a previous registration statement, select this option. Provide the effective date and the amount of securities being carried forward from the previous registration statement. Please note that a reference to the SEC Rule(s) 429; 457(p); 415(a)(5) or (6) should be disclosed in the current offering document.
- (b) Increase in offering size:
- If the issuer decides to increase the offering size pursuant to SEC Rule 462(b), please select this option. When this option is selected, provide the additional securities and the Previous Effective Date. When entering the Proposed Maximum Aggregate Offering Price (PMAOP), combine the previous and the new PMAOP.
- (c) All other filings:
- For any filing submitted to the SEC or any other reviewing authority that does not include carry forward securities or an increase in offering size (excluding pre-effective amendments), please select this option.
Method of Distribution:
Depending on the type of filing and how the questions are answered in the “Details” screen of the system, the methods of distribution will vary slightly. For most offerings, the correct selection will be clear.
For Shelf (Base) and WKSI offerings, we encourage filers to select “unspecified” as the proposed method of distribution.