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..
Footnote
1 Companies that qualify as well-known seasoned issuers, or WKSIs, may file registration statements on Form S-3 that are automatically effective.
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