On March 3, 2025, the Staff of the SEC Division of Corporate Finance announced an expansion of the accommodations that allow issuers to confidentially submit draft registration statements (DRSs) for nonpublic review. This is a welcome change that will allow an expanded group of issuers to proceed with a potential offering on a confidential basis—providing critical optionality especially in volatile and uncertain market environments.
Since the enactment of the Jumpstart our Business Startups Act in 2012, emerging growth companies seeking to go public in the US have been permitted to submit confidential draft registration statements and amendments thereto to the SEC. This was expanded to include foreign private issuers and then to all issuers for certain offerings within twelve months of an IPO. The new accommodations further expand the ability to submit confidential filings to include:
- confidential submissions regardless of timing—allowing issuers that have been public for more than twelve months to submit a DRS;
- in line with the prior guidance, only the initial filing can be submitted confidentially with any amendments subject to public filing;
- the registration statement must be filed publicly two business days prior to effectiveness (with the possibility of expedited effectiveness upon reasonable request to the Staff);
- initial registrations of a call class of securities under the Exchange Act on Form 10, 20-F and 40-F under Section 12(g);
- expanding the accommodations to issuers who are not listing on a national securities exchange under Section 12(b); and
- de-SPAC transactions where the SPAC is the surviving entity so long as the target (operating company) is eligible to submit a DRS.
In addition, the guidance permits the omission of the names of the underwriters but only in the initial DRS. The Staff also confirmed prior practice that permits the omission of financial information from an initial filing if the issuer reasonably believes that such information will not be required at the time of the public filing.
For issuers that do not qualify as WKSIs1 or have access to an effective shelf registration statement on Form S-3, these accommodations will provide additional flexibility when preparing for a registered offering..
1 Companies that qualify as well-known seasoned issuers, or WKSIs, may file registration statements on Form S-3 that are automatically effective.
