Enhanced Accommodations for Issuers Submitting Draft Registration Statements

March 3, 2025

What’s new?

The Division is expanding the accommodations available for issuers that submit draft registration statements for nonpublic review. We first expanded the voluntary draft registration statement submission accommodations beyond Emerging Growth Companies to include all issuers in 2017. Based on our experience, we believe that further expansion of these accommodations can facilitate capital formation, without diminishing investor protection.

The enhanced accommodations include:

• Expanding the availability of the nonpublic review process for the initial registration of a class of securities under the Exchange Act to include both Section 12(b) and Section 12(g) registration statements on Forms 10, 20-F, or 40-F.
• Permitting issuers to submit draft registration statements regardless of how much time has passed since they became subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act.
• Expanding the availability of the nonpublic review process for a de-SPAC transaction in situations where the SPAC is the surviving entity (i.e., SPAC-on-top structure) as long as the target is eligible to submit a draft registration statement.
• Permitting issuers to omit the name of the underwriter(s) from their initial draft registration statement submissions, when otherwise required by Items 501 and 508 of Regulation S-K, provided that they include the name of the underwriter(s) in subsequent submissions and public filings.

Background

The Jumpstart Our Business Startups Act, enacted in 2012, permits Emerging Growth Companies to submit for confidential, nonpublic staff review a draft registration statement for an initial public offering. In 2017, we began accepting voluntary draft registration statement submissions from all issuers for nonpublic review, [1] not just Emerging Growth Companies, as described below.[2]

As with the 2017 expanded nonpublic review process, the enhanced accommodations discussed here do not limit the process by which Emerging Growth Companies submit draft registration statements for confidential review.[3] We will continue to process those submissions and filed registration statements in the normal course.

Securities Act initial public offerings (IPOs) and initial Exchange Act registrations

Consistent with our past practices, we will continue to review draft initial registration statements submitted under the Securities Act and Exchange Act Section 12(b), and their related revisions, on a nonpublic basis provided that the issuer confirms in a cover letter to the nonpublic draft submission that it will publicly file its registration statement and nonpublic draft submissions at least 15 days prior to any road show or, in the absence of a road show, at least 15 days prior to the requested effective date of the registration statement.

Additionally, we 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 a change to our past practice, however, we are expanding the availability of the nonpublic review process for the initial registration of a class of securities under Exchange Act to also include Forms 10, 20-F, or 40-F filed to register a class of securities under Exchange Act Section 12(g).[4] As a result, 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 either Exchange Act Section 12(b) or Exchange Act Section 12(g).

Subsequent Securities Act offerings and Exchange Act registration

Prior to the enhanced accommodations discussed here, we accepted only subsequent draft registration statements submitted prior to the end of the twelve-month period following the effective date of an issuer’s initial Securities Act registration statement or an issuer’s Exchange Act Section 12(b) registration statement. We will now accept for nonpublic review a subsequent 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.

An issuer submitting a subsequent draft registration statement for nonpublic review should confirm in its cover letter that it will file its registration statement and nonpublic draft submission such that they are publicly available on the EDGAR system at least two business days prior to any requested effective time and date.[5] Note that the staff may comment on such public filings, which may impact an issuer’s desired effectiveness timing. In addition, issuers will need to publicly file Exchange Act registration statements on Forms 10, 20-F, and 40-F so that the full 30- or 60-day period, as applicable, will run prior to effectiveness.[6]

We will continue to limit our nonpublic review in these cases to the initial submission; an issuer responding to staff comments on such a draft registration statement should do so with a public filing, not with a revised draft registration statement. We will conduct any further review following our normal procedures and act upon requests for acceleration in accordance with Securities Act Rule 461. Similar to the initial registration procedures described above, the issuer should file the draft registration statement it had previously submitted for nonpublic review at the time it publicly files its registration statement.

Draft registration statements in connection with a de-SPAC transaction

In connection with the SPAC rules that became effective in July 2024,[7] we considered how the target co-registration requirements in the rules would impact submission of draft registration statements for nonpublic review. In particular, the target may be required to be a co-registrant in certain situations where the SPAC survives the business combination as the public company. We are permitting issuers to submit a registration statement for a de-SPAC transaction for nonpublic review as if it were an initial Securities Act registration statement (i.e., an initial public offering) where the co-registrant target would otherwise be independently eligible to submit a draft registration statement under this policy. We believe this approach is consistent with the Commission’s statement in the adopting release that the de-SPAC is the functional equivalent of the target’s initial public offering.

Foreign Private Issuers

Where desired, instead of submitting draft registration statements under these enhanced accommodations, Foreign Private Issuers may elect to proceed in accordance with those procedures available to Emerging Growth Companies (if the issuer qualifies as an Emerging Growth Company) or follow the guidance in our May 30, 2012 statement.

Content of draft registration statements and staff processing

While an issuer should take all steps to ensure that a draft registration statement is substantially complete when submitted, we 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.[8] In addition, we will consider an issuer’s specific facts and circumstances in connection with any request made under Rule 3-13 of Regulation S-X.

In a change of practice, under these enhanced accommodations, we will allow issuers to omit the name of the underwriter(s) from their initial submissions, when such information is otherwise required by Items 501 and 508 of Regulation S-K, provided that they include the name of the underwriter(s) in subsequent submissions and public filings.

We will consider reasonable requests to expedite processing of draft and filed registration statements and encourage issuers and their advisors to review their transaction timing with the staff assigned to the filing review.

The staff will monitor practices under the expanded processing procedures and may make modifications to limit or terminate these procedures.

Issuers may submit questions about their eligibility to use the expanded processing procedures to CFDraftPolicy@sec.gov. For more information, see the following documents:

• Voluntary Submission of Draft Registration Statements – FAQs
• Fixing America’s Surface Transportation (FAST) Act – C&DIs
• Securities Act Forms – C&DIs
• Jumpstart Our Business Startups Act Frequently Asked Questions – Generally Applicable Questions on Title I of the JOBS Act
• Jumpstart Our Business Startups Act Frequently Asked Questions – Confidential Submission Process for Emerging Growth Companies

[1] Issuers should consider the Commission’s Rule 83 (17 CFR 200.83) in submitting draft registration statements for nonpublic review. Where possible, we will keep submitted nonpublic draft registration statements and related correspondence confidential subject to the provisions of applicable law. See for example 5 U.S.C. 552(b)(4) (Exemption 4 of the Freedom of Information Act provides an exemption for “trade secrets and commercial or financial information obtained from a person and privileged or confidential.”).

[2] Any issuer choosing to take advantage of this accommodation should follow the process Emerging Growth Companies use to submit draft registration statements.

[3] These processing procedures extend to all issuers an accommodation to submit a draft registration statement for nonpublic review similar to that available only to Emerging Growth Companies. An issuer must qualify as an Emerging Growth Company to take advantage of the other accommodations provided to Emerging Growth Companies.

[4] The nonpublic submission does not satisfy an issuer’s requirement to file the registration statement within 120 calendar days from the end of its fiscal year when required to register a class of securities under Section 12(g). Issuers availing themselves of the accommodation to submit the registration statement nonpublicly should do so early enough to receive staff comments and still meet the public filing deadline.

[5] The 2017 expanded nonpublic review process contemplated that an issuer that submitted a subsequent draft registration statement for nonpublic review would make the registration statement and nonpublic draft submission publicly available on the EDGAR at least 48 hours prior to any requested effective time and date. The two business-day period in this enhanced accommodation is consistent with the two business days in Rule 461 for requesting acceleration of the effective date. We will consider reasonable requests to expedite this two business-day period and encourage issuers and their advisors to review their transaction timing with the staff assigned to the filing review.

[6] A registration statement on Form 10, 20-F, or 40-F for registration under Section 12(b) of the Exchange Act goes effective automatically 30 calendar days after the Commission receives approval of the company's listing from the national securities exchange. A registration statement on Form 10, 20-F, or 40-F for registration under Section 12(g) of the Exchange Act goes effective automatically 60 calendar days after the company files the registration statement. See Sections 12(d) and 12(g)(1) of the Exchange Act, respectively.

[7] Special Purpose Acquisition Companies, Shell Companies, and Projections, Release Nos. 33-11265; 34-99418 (Jan. 24, 2024) [89 FR 14158 (Feb. 26, 2024)].

[8] This relief is intended to be similar to the relief provided by Section 71003 of the Fixing America’s Surface Transportation Act, which allows an Emerging Growth Company to omit financial information that “relates to a historical period that the issuer reasonably believes will not be required to be included…at the time of the contemplated offering.”