On March 3, 2025, the Securities and Exchange Commission’s (the “SEC’s”) Division of Corporation Finance announced that it is expanding the accommodations available for issuers that submit draft registration statements for nonpublic review. The nonpublic review process permits issuers to submit a draft registration statement for confidential, nonpublic SEC review and comment before filing the registration statement publicly.
The enhanced accommodations expand the availability of the nonpublic review process to include:
- Any offering, regardless of how much time has passed since they became subject to the reporting requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”);
- The initial registration of a class of securities under the Exchange Act to include both Section 12(b) and Section 12(g) registration statements on Forms 10, 20-F, or 40-F; and
- De-SPAC transactions in situations where the SPAC is the surviving entity (i.e., SPAC-on-top structure) as long as the target is eligible to submit a draft registration statement.
Additionally, the enhanced accommodations permit issuers to omit the name of the underwriters from their initial draft registration statement submissions, provided that they include the name of the underwriters in subsequent submissions and public filings.
The SEC has expanded the nonpublic review process before. First made available to emerging growth companies submitting a draft registration statement for an initial public offering as part of the 2012 Jumpstart Our Business Startups Act, the SEC, in 2017, began accepting voluntary draft registration statement submissions from all issuers for up to one year following any issuer’s initial registration statement.
In a press release, the Acting Director of the SEC’s Division of Corporation Finance offered the rationale behind enhanced accommodations: “Over the years, staff have observed companies seeking to raise capital are taking advantage of the nonpublic review process when available. Expanding these popular accommodations will provide new and existing companies greater flexibility to explore and plan public offerings.”
