IPO Basics: Confidential Filings
Federal securities laws generally require any company that is publicly held or that is registering its securities for public sale to disclose a broad range of information in its Securities and Exchange Commission (SEC) filings. For example, an IPO registrant must file all material contracts with its registration statement.
Because required disclosures of information, such as pricing terms or technical specifications, can harm a company's business and financial condition, the SEC allows companies to request confidential treatment of such information. Here are a few examples of contract terms that companies asked the SEC to treat with confidentiality.
Example - Confidential Agreements
Advertising Allowance. Vendor agrees to cooperate in Ingram's or Ingram's customers' and promotion of Product and hereby grants Ingram a cooperative advertising allowance of [ CONFIDENTIAL TREATMENT REQUESTED] ** of Product invoice amount for such advertising featuring Product and/or Vendor. Red Hat-Ingram Micro: Distribution Agreement.
Business Strategy. Create more value from relationships with electronic commerce merchants and customers by *** creating new services revenues. Sun-AOL: Strategic Development and Marketing Agreement.
Choice of Law. This Agreement will be governed by and construed in accordance with the laws of [ CONFIDENTIAL TREATMENT REQUESTED] ** and the applicable laws of the United States, exclusive of any provisions of the United Nations Convention on the International Sale of Goods and withoutregard to principles of conflicts of law. Red Hat-Dell: Software License and Shipment Agreement.
Definitions. A "Hit" occurs each time an end user accesses a Web page displaying the [ *] of a [ *] using the [ *] conducted by the end user through a [ *] ; the [ *] displayed on such [ *] is [ *] in determining the [ *] (for example, viewing a [ *] containing [ *] constitutes [ *] . A "Hit" does not occur when an end user [ *] or, if different from the applicable [ *] [ *] in which the end user [ *] , or [ *] the [ *] . Notwithstanding anything contained herein to the contrary, no "Hits" will be deemed to [ *] or otherwise until the [ *] of the [ *] is [ *] for [ *] by the [ *] . The parties acknowledge that access by an end user to a [ *] does not constitute a "Hit." Inktomi-Microsoft: Software Development Agreement.
Exclusivity. Ask Jeeves agrees that for one hundred (100) days after the Effective Date it will not deliver to [ *] , a production version of a question-answering system that is primarily designed to answer end-user pre-sale questions and that incorporates portions of Knowledgebase content that was first used for the Compaq "Prosignia II Pre-Sale" (Exhibit A1) system. AskJeeves-Compaq: License and Development Agreement.
Formulas. All airlines participating in the Priceline Service will be given the first opportunity to fill a customer ticket request based on a formula [ **] . If a participating airline fails to respond to a ticket request on its designated first look, then Priceline will allocate the request through a second round of preferred looks, [ **] for each O&D requested (but excluding the participating airline that failed to fulfill the ticket request on the first look). Priceline-Delta: Participation Agreement.
Payment Terms. Ingram's payment terms shall be [ CONFIDENTIAL TREATMENT REQUESTED] **. Payment shall be deemed made on the payment postmark date. Red Hat-Ingram Micro: Distribution Agreement.
Purchase Requirements. The prices set forth in Exhibit A are based on purchase by JetFax of a minimum of [ *] of Product in each year of the term of this Agreement. If, during the term of this Agreement JetFax does not purchase a minimum of [ *] of Product, OKIDATA may retroactively increase the unit price by [ *] . If, during the term of this Agreement, JetFax purchases between [ *] total units of Product, the unit price will be increased retroactively by [ *] per unit. JetFax-Okidata: OEM Purchase Agreement.
While the SEC will shield confidential contract terms, this protection does not last indefinitely. Instead, within the application for confidential treatment, the company must specify a date for the termination of the requested confidential treatment. A company should be aware that a request for confidential treatment may delay an initial offering.
Copyright 1999 Findlaw Inc.
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