The federal government shutdown commenced at midnight on October 1, 2025, and proposals to reopen the government failed on October 3, extending the shutdown further into the fourth quarter.
On September 30, 2025, the SEC’s Division of Corporation Finance issued guidelines for the processing of registration statements during the shutdown, indicating that its operations will be extremely limited and that it will not review or accelerate the effectiveness of registration statements.
Implications of SEC Shutdown
In the guidelines, the SEC’s Division of Corporation Finance notes that, while EDGAR will accept registration statements and other filings during the shutdown, the SEC will not review or accelerate the effectiveness of registration statements. We discuss the key implications of the shutdown on registration statements for capital raising transactions and business combinations below.
Automatically Effective Registration Statements
- Well-known seasoned issuers (WKSIs) may file automatically effective registration statements on Form S‑3 or F-3 during the shutdown, so long as EDGAR remains open.[1] These filings become effective immediately and do not need to be declared effective by the SEC.
- Similarly, issuers can file automatically effective registration statements on Form S-8 and for dividend reinvestment plans on Form S-3 or F-3.
Offerings under Effective Registration Statements
- Issuers (WKSIs and non-WKSIs) with effective shelf registration statements may conduct shelf takedowns during the shutdown. This means equity and debt offerings by most seasoned issuers may proceed during the shutdown without interruption.
- Issuers that had a registration statement for a one-off offering (such as a primary offering on a Form S-1) declared effective before the shutdown must price the offering within 15 business days after the effective date. However, the SEC permits issuers that do not price within that time period to file an automatically effective Rule 462(c) amendment with updated pricing information to restart the 15-business day clock. The Rule 462(c) amendment may not include other substantive changes from, or additions to, the effective registration statement.
New and Pending Registration Statements
- Issuers may file registration statements and amendments so long as EDGAR remains open. The SEC will not, however, review the registration statement or declare it effective during the shutdown. Similarly, the SEC will not be available to respond to requests for written and oral guidance, such as pre-filing consultations or requests for no-action letters, exemptive relief and interpretive letters.[2]
- As an alternative, the SEC notes that issuers may consider omitting the typical Rule 473 delaying amendment language in the registration statement.[3] Without this language, the registration statement becomes effective automatically on the 20th calendar day after filing and does not need to be declared effective by the SEC. The filing date is counted as the first day, and the registration statement becomes effective at 5:30 p.m., Washington time, on the 20th day.[4] However, as discussed below, this alternative raises issues for many registered capital market transactions.
- Similarly, issuers that have already filed a registration statement with the typical delaying amendment language may amend the registration statement to remove the delaying amendment and instead include the following language: “This registration statement shall hereafter become effective in accordance with the provisions of section 8(a) of the Securities Act of 1933.” The registration statement will then become effective automatically on the 20th calendar day after the most recent amendment.
- If the SEC reopens during the 20-day period, the issuer may choose to reinsert the delaying amendment and request acceleration of effectiveness rather than wait for the 20-day period to expire.
Capital Raising Transactions
- While proceeding without a delaying amendment is permitted, it may not be practicable for many capital markets transactions. Each amendment to the registration statement restarts the 20-day clock,[5] and the registration statement must be complete at the time of the most recent amendment. This means an issuer must include all information required by the form – including pricing information for the securities offered – at least 20 calendar days before the registration statement for the offering is effective and sales may be confirmed.[6]
- These timing considerations are problematic for transactions involving price discovery, in particular firm commitment underwritings (e.g., traditional IPOs), which delayed these types of offerings during the last shutdown in 2018 / 2019. We expect a similar outcome if the shutdown is prolonged. On the other hand, proceeding without a delaying amendment may be practicable for transactions where size and offering price can be fixed in advance (e.g., SPACs) or for non-WKSI issuers that file a shelf registration statement on Form S-3 or F-3.
Business Combinations and Exchange Offers
- Proceeding without a delaying amendment may be a viable alternative for issuers with registration statements on Form S-4 or F-4 for business combinations or exchange offers. During the last shutdown in 2018 / 2019, a number of issuers removed or omitted the delaying amendment from their business combination registration statements, and we expect the same in the current shutdown. When doing so, issuers should be mindful of the need for the registration statement or most recent amendment filed 20 calendar days before effectiveness to include all information required by the form, such as meeting and record dates for a business combination.[7]
- If the SEC reopens during the 20-day period, an issuer that has removed the delaying amendment language may choose to reinsert it and request acceleration of effectiveness.
Disclosure Considerations
- For any registered securities offering, whether it involves a capital raising transaction or business combination, issuers should, as always, consider the quality and completeness of their disclosures, as well as timing pressure on the transaction vs. the flexibility offered by a delaying amendment and the risk that the SEC staff may subsequently review registration statements that went effective automatically during the shutdown.
- Issuers that have not cleared SEC comments should seek to address any unresolved SEC comments in the amendment. The SEC has noted that it may issue a stop order or take other emergency actions during the shutdown, if necessary.
Proxy Statements
- The SEC noted that it will not review preliminary proxy statements filed during the shutdown.
- If a preliminary proxy statement is required to be filed, then an issuer may file and mail definitive proxy materials 10 calendar days after the filing of the preliminary proxy statement. While of limited relevance for registered offerings, this can be relevant if the issuer needs to authorize additional shares or in transactions that require a vote of stockholders under stock exchange rules.
Key Takeaways
- The SEC shutdown has significant implications for registered securities offerings and may delay many transactions. The longer the shutdown lasts, the more severe its impact on transactions is likely to become.
- Issuers currently in the registration process or those considering undertaking a registered capital raise should evaluate their transaction status and the feasibility of proceeding with a transaction in light of the Division of Corporation Finance’s guidelines.
- Parties to an M&A transaction should weigh the risks of proceeding without SEC review against the risks associated with delaying a shareholder vote and other business considerations.
ENDNOTES
[1] EDGAR is expected to remain fully functional. If there is an interruption to funding of the SEC’s contractor that operates EDGAR, we would expect the SEC to provide additional guidance for how issuers may remain compliant with their filing obligations.
[2] In an emergency where Rule 3-13 may provide relief for issuers, the SEC has noted that it may act where there is some reasonable likelihood that the protection of property would be compromised, in some significant degree, by the delay. The SEC may consider a request consistent with those limitations. Requests can be submitted to CFEmergency@sec.gov and should describe the emergency and the significant property interest to be protected.
[3] Rule 473(a) provides that the following delaying amendment language may be included on the cover page of registration statements that are not automatically effective: “The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission acting pursuant to said Section 8(a), may determine.”
[4] Rule 459: “Saturdays, Sundays and holidays shall be counted in computing the effective date of registration statements under section 8(a) of the Act. In the case of statements which become effective on the twentieth day after filing, the twentieth day shall be deemed to begin at the expiration of nineteen periods of 24 hours each from 5:30 p.m. eastern standard time or eastern daylight-saving time, whichever is in effect at the principal office of the Commission on the date of filing.”
[5] Pre-effective amendments filed in reliance on General Instruction G of Form S-4 in connection with the organization of a bank or savings and loan holding company are deemed filed with the consent of the SEC and therefore will not commence a new 20-day period.
[6] The SEC noted specifically that “Rule 430A is not available in the absence of a delaying amendment because Rule 430A is only available with respect to registration statements that are declared effective by the Commission or the staff.”
[7] Until the registration statement becomes effective and is used for distribution to shareholders, Issuers should maintain the “red herring” legend prescribed by Item 501(b)(10) of Regulation S-K.
This post comes to us from Sullivan & Cromwell LLP. It is based on the firm’s memorandum, “Implications of the Government Shutdown on SEC Registered Securities Transactions,” dated October 6, 2025, and available here.