On March 3, 2025, the U.S. Securities and Exchange Commission (SEC) announced expanded accommodations for issuers submitting draft registration statements for nonpublic review. These enhancements are intended to facilitate capital raising for public companies and those planning to go public by providing greater flexibility and confidentiality during the registration process.
Filing confidentially allows issuers to address SEC comments and refine their registration statements without immediate public scrutiny. This process can help companies avoid potential market or competitive disadvantages that might arise if sensitive information were disclosed prematurely. By deferring public disclosure until later in the process, issuers can better control the timing and content of their filings, making it easier to access the U.S. capital markets.
Key Highlights of the Enhanced Accommodations:
- Expanded Eligibility for Confidential Submissions: The SEC now permits all issuers, including public companies and those planning initial public offerings, to confidentially submit draft registration statements for any Securities Act registration. This expansion includes follow-on offerings and shelf offerings on Form S-3/F-3 as well as business combinations and exchange offers on Form S-4/F-4.
- Removal of Time Limits for Post-IPO Confidential Submissions: Issuers may now submit subsequent draft registration statements for confidential review without regard to how much time has passed since their initial Securities Act or Exchange Act registration. The SEC had previously accepted for confidential submission a registration statement that was submitted within the first 12 months of the effectiveness of a company’s initial registration statement. This change offers additional and ongoing flexibility for existing public companies considering follow-on capital raises.
- Omission of Underwriter Names: In a significant change, issuers may omit the names of underwriters from their initial draft registration statement submissions, deferring this disclosure to subsequent submissions and public filings. This change provides greater flexibility for issuers who may not have finalized their underwriting syndicates but wish to start the SEC review process.
- Extended Confidential Submission for Exchange Act Registrations: Previously, issuers could not submit draft registration statements for Exchange Act registrations confidentially (Forms 10, 20-F, or 40-F). The new accommodations now allow issuers to submit these registration statements under both Section 12(b) and Section 12(g) of the Exchange Act for nonpublic review. These forms are typically used for registering a class of securities when no immediate offering is planned, allowing issuers to manage disclosure obligations more strategically and prepare for future public offerings without immediate public scrutiny.
Public Filing Timing Requirements
For IPO and initial Exchange Act registrations, the SEC will continue to review submissions on a confidential basis so long as the issuer publicly files its registration statement and draft confidential submissions at least 15 days before any roadshow or the requested effective date. For subsequent offerings under the Securities Act, confidential draft registration statements must be made publicly available on EDGAR at least two business days prior to the requested effective time and date. For Exchange Act registrations, the public filing requirement remains 30 days for Section 12(b) registrations and 60 days for Section 12(g) registrations.
Implications for Public Companies and Capital Raising:
By broadening the opportunities for confidential reviews, these new accommodations ease companies’ access to the U.S. public markets to raise capital more efficiently. The expanded accommodations are expected to be well received by issuers, underwriters and other market participants. Issuers should carefully evaluate these new options in planning their capital raising strategies.
