- The SEC announced the expansion of the availability of confidential submission of draft registration statements for various new registrations, including initial registration of securities on Form 10; initial registration of securities on Form 20-F and Form 40-F for foreign private issuers and Canadian issuers, respectively; registration statements for follow-on offerings regardless of the time elapsed since the issuer completed its IPO; and registration statements for de-SPAC transactions.
- Companies will also be permitted to omit certain historical financial information and underwriter disclosures from their initial submissions, allowing the registration statement review process to start earlier.
- The guidance should boost access to public capital markets.
The SEC announced new guidance from the Division of Corporation Finance (the “Division”) that makes the confidential submission process available to more issuers conducting more types of offerings.1 The Division is expanding the types of forms eligible to be submitted as draft registration statements for nonpublic review, and is permitting reporting companies to submit draft registration statements for nonpublic review regardless of how much time has passed since their initial public offering (“IPO”).
Background
The confidential submission process launched in April 2012 with the enactment of the JOBS Act. The JOBS Act permitted Emerging Growth Companies (“EGCs”) to submit for nonpublic review a confidential draft registration statement for an IPO. In May 2012, the Division made available a similar accommodation for foreign private issuers and, in 2017, the Division expanded the accommodation to a broader set of offerings, including IPOs by all issuers and follow-on offerings within 12 months of an IPO.
New Accommodations for Additional Types of Registration Statements
The Division’s new guidance expands the availability of the nonpublic review process for the initial registration of a class of securities under Section 12(g) the Exchange Act to registration statements on Form 10, Form 20-F and Form 40-F.
As a result, an issuer using one of these forms may now submit for nonpublic review the initial registration of a class of securities under either Exchange Act Section 12(b) or Section 12(g). The Division advises that it will continue to review confidential draft registration statements submitted under the Securities Act and Exchange Act Section 12(b), and their subsequent revisions, on a nonpublic basis provided that the issuer confirms in a cover letter to the confidential draft submission that it will publicly file its registration statement and confidential draft submissions at least 15 days prior to any road show or, in the absence of a road show, at least 15 days prior to the requested effective date of the registration statement. In addition, the Division will continue to publicly release staff comment letters and issuer responses to those letters on EDGAR no earlier than 20 business days following the effective date of a registration statement.
The Division also advises that confidential submission of a draft registration statement does not satisfy an issuer’s requirement to publicly file a registration statement within 120 calendar days from the end of its fiscal year when required to register a class of securities under Section 12(g). Consequently, issuers availing themselves of the new accommodation to submit the draft registration statement confidentially should do so early enough to resolve Division staff comments and still meet the public filing deadline.
New Accommodations for Public Companies for Subsequent Offerings
Prior to its new guidance, the Division only accepted confidential submission of draft registration statements for follow-on offerings submitted within 12 months of the effective date of the issuer’s initial registration. The new guidance provides for nonpublic review of draft Securities Act registration statements (including shelf registration statements on Form S-3/F-3 and registration statements on Form S-4/F-4 for business combinations and exchange offers) for subsequent offerings regardless of how much time has passed since the issuer’s initial registration.
The Division advises that an issuer confidentially submitting a draft registration statement for a subsequent offering should confirm in its cover letter that it will publicly file its registration statement and the confidential draft submission at least two business days prior to any requested effective time and date (previously, guidance for subsequent offerings provided for a waiting period of 48 hours, which led to uncertainty as to the treatment of weekends and holidays). Issuers filing registration statements on Forms 10, 20-F, and 40-F must also publicly file those forms in time for the pre-effectiveness period to run.2
The Division adds that it will continue to limit its nonpublic review in these cases to the initial submission; an issuer responding to staff comments on such a draft registration statement should do so with a public filing, not with a revised draft registration statement.
New Accommodations for Registration Statements in Connection with de-SPAC Transactions
The new guidance allows issuers to confidentially submit a draft registration statement for a de-SPAC transaction as if it were an initial Securities Act registration statement (i.e., an IPO registration statement) where the target company would otherwise be eligible to submit a confidential draft registration statement under the Division’s new guidance. Previously, if the SPAC were the surviving company, confidential submission of a draft registration statement would only be permitted if such filing was made within 12 months of the SPAC’s IPO.
Content of Draft Registration Statements
Under the 2015 FAST Act, EGCs are permitted to omit financial information that relates to a historical period that the issuer reasonably believes will not be required to be included by the time the registration statement is publicly filed. The Division in its new guidance is expanding this accommodation to all draft registration statements, advising that it will not delay processing if the issuer reasonably believes that the omitted financial information will similarly be irrelevant when the registration statement is publicly filed.
The Division will also universally allow issuers to omit the name of the underwriters from initial submissions when such information is otherwise required, provided that the issuer includes the name of the underwriters in subsequent submissions and public filings. Previous requirements requiring named underwriters in the initial confidential draft submission were inconsistently applied.
Takeaways
The SEC’s expansion of the confidentiality accommodation for more issuers and more offerings is a welcome step toward facilitating capital raising and access to public capital markets. In light of the greater political context surrounding these changes,3 it remains to be seen whether the new guidance will be accompanied by still more accommodations in the registration process.
Although the confidential submission process has been expanded, companies should be aware that staff comment letters and issuer responses to those comment letters will eventually become publicly available on EDGAR.
1 See “Enhanced Accommodations for Issuers Submitting Draft Registration Statements” (March 3, 2025).
2 A registration statement on Form 10, 20-F, or 40-F for registration under Section 12(b) of the Exchange Act goes effective automatically 30 calendar days after the SEC receives approval of the company's listing from the national securities exchange. A registration statement on Form 10, 20-F, or 40-F for registration under Section 12(g) of the Exchange Act goes effective automatically 60 calendar days after the company publicly files the registration statement.
3 See Dechert OnPoint, “Post-Election Regulatory Changes to Corporate Governance Mirror Broader Political Shift” (Feb. 20, 2025).
