On March 3, 20251, the Securities and Exchange Commission (the “SEC”) expanded the accommodations for the confidential submission and review of registration statements under the Securities Act of 1933 (the “Securities Act”) or the Securities Exchange Act of 1934 (the “Exchange Act”).
The SEC’s Division of Corporation Finance (the “Division”), the SEC division responsible for such filings, for many years would accept and review only registration statements that registrants publicly filed with the SEC. For some time, however, the Division has made accommodations allowing issuers that qualify as “foreign private issuers” to confidentially submit registration statements for nonpublic preliminary review2. As of 2012, the Jumpstart Our Business Startups Act (JOBS Act) expanded this dispensation to permit domestic or foreign issuers that qualify as “emerging growth companies” to confidentially submit a draft registration statement for nonpublic review for an initial public offering. In 20173, the SEC expanded this accommodation to permit all issuers to confidentially submit draft registration statements for initial public offerings for nonpublic review.
Now, the SEC has further expanded its accommodations for nonpublic review to encompass nearly every type of registration statement filed with the SEC under the Securities Act or the Exchange Act, through the following changes:
- expanding the nonpublic review process to include Exchange Act Section 12(g) registration statements on Forms 10, 20-F or 40-F;
- permitting an issuer to submit draft registration statements regardless of how much time has passed since it became subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act;
- allowing nonpublic review for a de-SPAC transaction in which the SPAC is the surviving entity so long as the target is eligible to submit a draft registration statement; and
- permitting an issuer to omit the identity of its underwriter(s) from its initial draft registration statement, so long as it includes the underwriter(s) in subsequent submissions and public filings.
Initial Securities Act and Exchange Act Registration Statements
The SEC confirmed that it will continue to review draft registration statements submitted under the Securities Act and under Section 12(b) of the Exchange Act. The new accommodations expand the nonpublic review process to include the initial registration of a class of securities under Section 12(g) of the Exchange Act, which is the provision requiring a company to register once its number of shareholders and asset value exceed certain thresholds.
Subsequent Securities Act Offerings and Exchange Act Registration
The new accommodations also now allow a public company to confidentially submit a draft registration statement regardless of how much time has passed since the issuer became subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act (or “went public”). This includes draft registration statements for any offering under the Securities Act or registration of a class of securities under the Exchange Act. Prior to the latest announcement, a company that was already public could only confidentially submit a draft registration statement for nonpublic review during the first 12 months after the effectiveness of its initial registration statement under the Securities Act or the Exchange Act.
The SEC noted that an issuer should confirm in its cover letter accompanying the submission that it will publicly file its registration statement and draft registration statement on EDGAR at least two business days prior to any requested effective date. The SEC staff still may comment on this public filing, affecting an issuer’s desired timing of effectiveness.
Further, for Exchange Act registration statements on Forms 10, 20-F and 40-F, the accommodations require that a registrant must publicly file the registration statement so that the applicable period after the public filing will fully run prior to effectiveness. For registration statements filed under Section 12(b) of the Exchange Act, the applicable period after the public filing and before the registration statement can take effect is 30 calendar days after the SEC receives approval of the company’s listing from the pertinent national securities exchange. Under Section 12(g) of the Exchange Act, the applicable period after the public filing and before the registration statement can take effect is 60 calendar days after the registrant files the registration statement.
The Division’s nonpublic review of such subsequent Securities Act offerings and Exchange Act registration will continue to be limited to the initial submission, and the registrant must respond to staff comments on the confidential draft registration statement with a public filing, not a revised draft. The Division will conduct any further review by following normal procedures, and it will act upon any requests to accelerate the effective date of the registration statement in line with Securities Act Rule 461.
De-SPAC Transactions
The SEC enacted new special purpose acquisition company (or “SPAC”) rules in 20244. In connection with those rules, the SEC is now allowing the SPAC and the target to confidentially submit a registration statement for a de-SPAC transaction as if it were an initial Securities Act registration statement (i.e., an IPO). This accommodation for de-SPACs is limited to situations where the co-registrant target would otherwise be independently eligible to submit a confidential draft registration statement.
Foreign Private Issuers
Foreign private issuers are permitted to follow these expanded accommodations. However, if preferred, foreign private issuers can utilize the procedures available to emerging growth companies (if applicable)5 or still follow the guidance set forth in the prior statement on Non-Public Submissions from Foreign Private Issuers6.
Content of Draft Registration Statements and Staff Processing
The SEC reiterated that the Division will not delay processing of a draft registration statement if an issuer omits financial information that it reasonably believes will not be required at the time it publicly files that registration statement. In addition, an issuer will now be allowed to omit the identity of its underwriter(s) from its initial submission, when such information is otherwise required by Items 501 and 508 of Regulation S-K, provided that it includes the underwriter(s) in subsequent submissions and public filings. Previously, the SEC had been inconsistent in whether it permitted initial filings of a registration statement to omit the underwriter(s).
The SEC was clear that otherwise an issuer should take all steps to ensure that a draft registration statement is substantially complete when submitted. The SEC also stated that it will consider reasonable requests to expedite processing of draft and filed registration statements, and it encourages issuers and their advisors to review their transaction timing with the staff assigned to the filing review.
Practice Notes
Public Release of Confidential Submissions
Issuers are reminded that draft registration statements that are confidentially submitted to the SEC will typically become publicly available during or after the SEC’s review process. The SEC requires an issuer that confidentially submits a draft registration statement for nonpublic review to include a cover letter in which it commits to eventually publicly file all previously submitted confidential drafts of registration statements. This “public flip” must occur no later than 15 calendar days prior to the road show for an IPO registration or initial Exchange Act registration (or in the absence of a road show, 15 days prior to effectiveness). For subsequent draft submissions after an issuer has become public, the period is two days prior to effectiveness.
Regulation of Public Offers
Under Section 5(c) of the Securities Act, no person may offer to sell a security unless a registration statement has been filed as to that security. Therefore, it is important to note that a confidential submission pursuant to the accommodations described here is not considered a “filing” for the purposes of Securities Act Section 5(c). Consequently, an issuer that confidentially submits a registration statement for its IPO pursuant to these new procedures may not make a public offer to sell its securities or a public announcement of its offering until it ultimately files the registration statement publicly.
[1] See Division of Corporation Finance, Enhanced Accommodations for Issuers Submitting Draft Registration Statements (Mar. 3, 2025), https://www.sec.gov/newsroom/whats-new/draft-registration-statement-processing-procedures-expanded.
[2] See, e.g., Division of Corporation Finance, Non-Public Submissions from Foreign Private Issuers (Aug. 8, 2013), https://www.sec.gov/corpfin/divisionscorpfininternatlnonpublicsubmissionshtm.
[3] See Press Release, SEC, SEC’s Division of Corporation Finance Expands Popular JOBS Act Benefit to All Companies (June 30, 2017), https://www.sec.gov/newsroom/press-releases/2017-121.
[4] For more background on this see our previous client alert here.
[5] See supra note 3.
[6] See supra note 2.
