The Division of Corporation Finance of the Securities and Exchange Commission (the SEC) is expanding the available accommodations relating to nonpublic review of draft registration statements.
Previously, such accommodations had been available only to a subset of issuers: In 2012, pursuant to the Jumpstart Our Business Startups Act (the JOBS Act), the SEC staff began accepting draft registration statements for nonpublic review from emerging growth companies, or EGCs. In addition, foreign private issuers had benefitted from similar accommodations. Then, in 2017, the SEC staff expanded availability of nonpublic review to all IPO issuers and newly-public companies as discussed in our June 30, 2017 client memorandum.
The newly enhanced accommodations include:
- Expansion to Exchange Act Registrations: An issuer may now submit for nonpublic review the initial registration of a class of securities on Forms 10, 20-F or 40-F under Exchange Act Section 12(b) or Exchange Act Section 12(g).
- Expansion Beyond Newly-Public Companies: An issuer may now submit for nonpublic review a draft registration statement for any offering under the Securities Act or registration of a class of securities under either Section 12(b) or Section 12(g) of the Exchange Act, 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. Previously, the SEC staff accepted subsequent draft registration statements only from newly-public companies (i.e., draft registration statements submitted prior to the end of the twelve-month period following the effective date of the issuer’s initial Securities Act registration statement or Exchange Act Section 12(b) registration statement).
- De-SPACs: Under the new accommodations, nonpublic review is available in connection with certain de-SPAC transactions (business combination transactions between a special purpose acquisition company (SPAC) and a private operating company). Where the SPAC is the surviving entity (SPAC-on-top structure) and the co-registrant target would otherwise be independently eligible to submit a draft registration statement under the new policy, the registration statement for the de-SPAC transaction may be submitted for nonpublic review as if it were an initial Securities Act registration statement (i.e., an initial public offering).
- Omission of Underwriter Names: An issuer may now omit the name(s) of the underwriter(s) from an initial draft registration statement when such information is otherwise required by Reg. S-K Items 501 and 508.
Key Takeaways:
The new policies provide new flexibility for issuers raising capital:
- Non-WKSI public issuers will now have an option to confidentially submit draft registration statements for follow-on offerings where they do not yet have an effective registration statement. Well-known seasoned issuers (WKSIs) eligible to file automatically-effective registration statements without SEC staff review will continue to do so.
- The new policies provide expanded flexibility for de-SPAC transactions. Previously, nonpublic review was unavailable for SPAC-on-top structures where the SPAC had been public for more than 12 months.
- The new policies provide clarity with respect to omission of underwriter names, aligning SEC staff policy to an existing market practice.
- Foreign private issuers now have the option to elect to submit draft registration statements (i) under the new accommodations, (ii) under the procedures available to foreign private issuers under prior SEC guidance issued in 2012 or (iii) where applicable, under the procedures available to EGCs.
The general processes relating to nonpublic review remain generally unchanged:
- While the SEC staff will continue to require that a draft registration statement is substantially complete when submitted, the staff will not delay processing if an issuer reasonably believes omitted financial information will not be required at the time the registration statement is publicly filed. This expands to all issuers an accommodation originally afforded to EGCs under the Fixing America’s Surface Transportation Act (the FAST Act).
- Nonpublic review processes in connection with EGC and non-EGC initial public offerings remain unchanged, and the SEC staff will continue to require that an issuer publicly file its registration statement and nonpublic draft submissions at least 15 days prior to the road show.
- As before, only the first submission in connection with a subsequent registration statement may be submitted nonpublicly. An issuer responding to SEC staff comments on such a draft registration statement should do so with a public filing, not a revised draft registration statement.
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- An issuer submitting a subsequent draft registration statement for nonpublic review must publicly file its registration statement and nonpublic draft submission at least two business days prior to any requested effective time and date. SEC staff may still comment on such public filings, which may impact an issuer’s desired effectiveness timing.
- In addition, issuers will still need to publicly file Exchange Act registration statements on Forms 10, 20-F and 40-F in time for the required 30- or 60-day period, as applicable, to run prior to effectiveness.
- The SEC staff 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.
- In announcing the new policy, the SEC staff reemphasized its willingness to consider reasonable requests to expedite processing. This underscores the importance of a good dialogue with the SEC staff reviewer in the course of the registration process.
This post comes to us from Fried Frank LLP. It is based on the firm’s memorandum, “SEC Expands Nonpublic Review Accommodations for Registration Statements,” dated March 5, 2025, and available here.