The U.S. Securities and Exchange Commission (SEC) has expanded its nonpublic review process for draft registration statements, offering issuers greater flexibility when preparing for public offerings. The changes, which are effective immediately, aim to streamline the registration process while maintaining investor protections.
Key Enhancements
1. Expanded Eligibility
The SEC now allows all issuers—regardless of how long they have been reporting companies under Sections 13(a) or 15(d) of the Securities Exchange Act of 1934—to file draft registration statements for nonpublic review. Previously, this accommodation was limited to Emerging Growth Companies (EGCs) and certain recent registrants.
2. Inclusion of Additional Forms
Issuers registering a class of securities under Section 12(g) of the Exchange Act can now submit Forms 10, 20-F, or 40-F for nonpublic review. This change aligns Section 12(g) registrations with Section 12(b), ensuring a consistent approach to initial filings.
3. Greater Flexibility for De-SPAC Transactions
Special Purpose Acquisition Companies (SPACs) completing a business combination can now submit preliminary registration statements for nonpublic review, provided the target company qualifies. This accommodation recognizes the unique structure of de-SPAC transactions and aims to support efficient capital market transitions.
4. Delayed Disclosure of Underwriters
Issuers can now omit underwriter names from initial draft submissions, delaying disclosure until later filings, as required by Items 501 and 508 of Regulation S-K. This change allows issuers more flexibility early in the offering process.
A Continued Commitment to Modernization
These updates reflect the SEC’s ongoing commitment to modernizing the registration process while preserving investor protections. Since the Jumpstart Our Business Startups (JOBS) Act of 2012, which introduced confidential submissions for EGCs, the SEC has gradually expanded nonpublic review accommodations. This latest expansion builds on the 2017 decision to extend nonpublic reviews to all issuers.
Cicely LaMothe, Acting Director of the SEC’s Division of Corporation Finance, emphasized the importance of these changes:
“Expanding these accommodations provides issuers—both new and established—greater flexibility when exploring and planning public offerings. This initiative strengthens capital formation while ensuring the investor protections that define U.S. public markets.”
Issuers looking to utilize these new accommodations are encouraged to contact the SEC’s Division of Corporation Finance for guidance.
