SEC Expands Draft Registration Statement Accommodations
- The Securities and Exchange Commission (SEC) announced on March 3, 2025, further expansions to existing accommodations, allowing more companies to confidentially submit draft registration statements for nonpublic review.
- The accommodations provide more flexibility for certain companies to initiate registration of their securities,spin-offs,and other offering processes without making the process initially public.
- The new accommodations include several key changes designed to streamline the registration process:
SEC Expands Accommodations for Confidential Registration Submissions
Table of Contents
- SEC Expands Accommodations for Confidential Registration Submissions
- SEC Expands Accommodations for Confidential Registration Submissions: A Detailed Guide
- General Questions
- Exchange Act registrations
- How do the accommodations effect Exchange Act registrations?
- What is Section 12(b) registration?
- What is Section 12(g) registration?
- Is there a deadline for Section 12(g) registration after meeting the thresholds?
- How long before a road show or effective date must the registration statement be publicly filed?
- How long does the review period take for Exchange Act registration statements?
- foreign Private Issuers
- Follow-On Offerings
- How do the accommodations affect follow-on offerings?
- Can issuers submit shelf registration statements for nonpublic review?
- Are amendments to the registration statement also eligible for nonpublic review?
- How much notice is required before publicly filing a registration statement after nonpublic review?
- De-SPAC Transactions
- Omissions and Staff Processing
- Summary Table: Key Changes in SEC Accommodations
March 10, 2025
The Securities and Exchange Commission (SEC) announced on March 3, 2025, further expansions to existing accommodations, allowing more companies to confidentially submit draft registration statements for nonpublic review. These accommodations provide greater flexibility for companies initiating the registration of their securities, spin-offs, and other offering processes without initial public disclosure.
The accommodations provide more flexibility for certain companies to initiate registration of their securities,spin-offs,and other offering processes without making the process initially public.
Expanded Accommodations Details
The new accommodations include several key changes designed to streamline the registration process:
- Confidential submission is now available for initial registration statements under both Section 12(b) of the Exchange Act of 1934, as amended (the Exchange Act), in connection with a spin-off, and Section 12(g) of the Exchange Act for securities registrations upon triggering shareholder and asset value thresholds.
- Foreign private issuers have expanded options for submitting draft registration statements, including electing to be treated as an emerging growth company (EGC) if qualified, or following earlier SEC guidance issued in May 2012.
- Issuers can now confidentially submit registration statements nonetheless of their public status duration, benefiting non-WKSIs (well-known seasoned issuers) in follow-on offerings.
- public targets of de-SPAC transactions may confidentially submit registration statements as if conducting an IPO.
- Issuers can omit underwriter names in the initial draft registration statement submission, enabling an earlier start to the SEC review process.
Exchange Act Registrations
The accommodations broaden nonpublic review availability to classes of securities registered on Forms 10, 20-F, or 40-F under both Section 12(b) and Section 12(g) of the Exchange Act. Section 12(b) registration is typically used when a company intends to list securities on a national securities exchange, often during a spin-off.
Companies with total assets exceeding $10 million and 2,000 record holders (or 500 non-accredited investors) must register their securities under Section 12(g) of the Exchange Act.
Issuers registering under Section 12(g) should note that submitting a draft for nonpublic review does not fulfill the requirement to file a registration statement within 120 days of the fiscal year’s end.
Issuers must publicly file the registration statement and draft submissions at least 15 days before a road show or, without a road show, the requested effective date. For Exchange Act registration statements on Forms 10, 20-F, and 40-F, the full 30- or 60-day period must run before effectiveness.
Foreign Private Issuers and Draft Registration Statements
Foreign private issuers can choose to submit draft registration statements under these new accommodations or the prior 2017 accommodations.Alternatively, they may proceed as egcs (if qualified) or follow the SEC’s May 30, 2012 statement.The May 2012 guidance applies to:
- Foreign governments listing debt securities.
- Foreign private issuers already listed on non-U.S. exchanges.
- Foreign private issuers being privatized by foreign governments.
- Foreign private issuers demonstrating that a public filing of an initial registration statement would conflict with applicable foreign law.
Follow-on Offerings and Exchange act Registrations
The accommodations eliminate the requirement that draft registration statements be submitted confidentially within 12 months of the issuer becoming subject to Exchange Act reporting requirements under Section 13(a) or 15(d).
Previously, companies public for over a year were ineligible for nonpublic review. The new guidance allows nonpublic review regardless of a company’s public status duration, benefiting non-WKSI issuers conducting follow-on offerings. these issuers can submit registration statements,including shelf registration statements,for nonpublic review.
The SEC will continue to limit nonpublic review to the initial submission. Amendments responding to staff comments must be publicly filed.
Issuers submitting an initial draft registration statement for nonpublic review should confirm in their cover letter that they will publicly file the registration statement and draft submission at least two business days before any requested effective time and date,a change from the previous 48-hour requirement. The SEC will consider requests to expedite this period and encourages issuers and advisors to review transaction timing with SEC staff.
De-SPAC Transactions and Initial Public Offering
The expanded accommodations also apply to de-SPAC transactions. Previously, a SPAC had to publicly file its de-SPAC registration statement if the filing occurred more than one year after the SPAC’s IPO. Now,the target company of a de-SPAC transaction may confidentially submit a registration statement as if conducting an initial public offering,provided the SPAC survives as the public company and the target company is independently eligible to submit a draft registration statement. This reflects the SEC’s view that a de-SPAC transaction is functionally equivalent to the target company’s IPO.
Omissions and Staff processing
The SEC will again permit issuers to omit underwriter names from initial draft submissions (despite Regulation S-K Items 501 and 508 requirements), provided the underwriters are disclosed in subsequent submissions and public filings.This enables the registration process to start sooner.
The SEC will not delay its review process if an issuer omits certain financial information,provided the issuer reasonably believes the omitted information will not be required when the registration statement becomes publicly available.
Issuers must ensure their draft registration statements are substantially complete when submitted.
Conclusion
The primary affect of these accommodations is to broaden the range of issuers eligible for the nonpublic review process, reflecting the SEC’s willingness to expedite the registration process and facilitate capital formation, as stated in the release.
SEC Expands Accommodations for Confidential Registration Submissions: A Detailed Guide
On March 3, 2025, the Securities and Exchange Commission (SEC) announced further expansions to its accommodations, allowing more companies to confidentially submit draft registration statements for nonpublic review. These changes aim to streamline the registration process and facilitate capital formation.Here’s a comprehensive Q&A to help you understand these expanded accommodations.
General Questions
What are the SEC’s new accommodations for confidential registration submissions?
The SEC’s new accommodations broaden the range of issuers eligible for nonpublic review of draft registration statements. This includes:
Allowing confidential submissions for initial registration statements under Section 12(b) (spin-offs) and Section 12(g) (meeting shareholder and asset thresholds) of the Exchange Act of 1934.
Providing expanded options for foreign private issuers.
Enabling non-WKSIs (well-known seasoned issuers) to confidentially submit registration statements for follow-on offerings, irrespective of their public status duration.
Allowing public targets of de-SPAC transactions to confidentially submit registration statements as if conducting an IPO.
* Permitting issuers to omit underwriter names in the initial draft registration statement submission.
Why did the SEC expand these accommodations?
The primary goal is to expedite the registration process and facilitate capital formation by providing greater flexibility for companies initiating the registration of their securities, spin-offs, and other offering processes without initial public disclosure.
When did these changes take effect?
The SEC announced these changes on March 3, 2025.
Exchange Act registrations
How do the accommodations effect Exchange Act registrations?
the accommodations broaden nonpublic review availability to classes of securities registered on Forms 10, 20-F, or 40-F under both Section 12(b) and Section 12(g) of the Exchange Act.
What is Section 12(b) registration?
Section 12(b) registration is typically used when a company intends to list securities on a national securities exchange, often during a spin-off.
What is Section 12(g) registration?
Companies with total assets exceeding $10 million and 2,000 record holders (or 500 non-accredited investors) must register their securities under Section 12(g) of the Exchange Act.
Is there a deadline for Section 12(g) registration after meeting the thresholds?
Yes, companies triggering Section 12(g) requirements typically have 120 days from the fiscal year’s end to file a registration statement, however, note that submitting a draft for nonpublic review does not fulfill the final filing deadline.
How long before a road show or effective date must the registration statement be publicly filed?
Issuers must publicly file the registration statement and draft submissions at least 15 days before a road show or, without a road show, the requested effective date.
How long does the review period take for Exchange Act registration statements?
for Exchange Act registration statements on Forms 10, 20-F, and 40-F, the full 30- or 60-day period must run before effectiveness.
foreign Private Issuers
What options do foreign private issuers have for submitting draft registration statements?
Foreign private issuers can choose to submit draft registration statements under these new accommodations or the prior 2017 accommodations. Alternatively, they may proceed as emerging growth companies (EGCs), if qualified, or follow the SEC’s may 30, 2012 statement which applies to:
- Foreign governments listing debt securities.
- Foreign private issuers already listed on non-U.S. exchanges.
- Foreign private issuers being privatized by foreign governments.
- Foreign private issuers demonstrating that a public filing of an initial registration statement would conflict with applicable foreign law.
Follow-On Offerings
How do the accommodations affect follow-on offerings?
The accommodations eliminate the requirement that draft registration statements be submitted confidentially within 12 months of the issuer becoming subject to Exchange Act reporting requirements. Now, non-WKSI issuers can submit registration statements for nonpublic review, irrespective of how long they’ve been public.
Can issuers submit shelf registration statements for nonpublic review?
Yes, these issuers can submit registration statements, including shelf registration statements, for nonpublic review for the initial submission.
Are amendments to the registration statement also eligible for nonpublic review?
No, the SEC will continue to limit nonpublic review to the initial submission. Amendments responding to staff comments must be publicly filed.
How much notice is required before publicly filing a registration statement after nonpublic review?
Issuers submitting an initial draft registration statement for nonpublic review should confirm in their cover letter that they will publicly file the registration statement and draft submission at least two business days before any requested effective time and date. Previously this was 48 hours. The SEC will consider requests to expedite this period.
De-SPAC Transactions
How do the accommodations apply to de-SPAC transactions?
The target company of a de-SPAC transaction may confidentially submit a registration statement as if conducting an initial public offering, provided the SPAC survives as the public company and the target company is independently eligible to submit a draft registration statement. This reflects the SEC’s view that a de-SPAC transaction is functionally equivalent to the target company’s IPO.
What was the previous rule for de-SPAC transactions regarding public filing?
previously, a SPAC had to publicly file its de-SPAC registration statement if the filing occurred more than one year after the SPAC’s IPO.
Omissions and Staff Processing
Can issuers omit underwriter names in the initial draft submissions?
Yes, the SEC will again permit issuers to omit underwriter names from initial draft submissions (despite Regulation S-K Items 501 and 508 requirements), provided the underwriters are disclosed in subsequent submissions and public filings.
Summary Table: Key Changes in SEC Accommodations
| Feature | Previous Rule | New Accommodation |
| ————————— | ———————————————————————————————————– | ——————————————————————————————————————————————————— |
| Confidential Submissions | Limited to specific issuer types and scenarios. | Expanded to include Section 12(b) and 12(g) registrations,de-SPAC targets,and more follow-on offerings.|
| Foreign Private Issuers | Specific guidance from May 2012, 2017 accommodations.| Can choose new accommodations, previous accommodations, proceed as EGCs or follow May 2012 guidance. |
| Follow-On Offerings | Restricted to companies public for less than 12 months. | Available to non-WKSIs regardless of public status duration. |
| De-SPAC Transactions | Required public filing if occurred more than one year after SPAC IPO. | Target company may submit confidentially as if conducting an IPO. |
| Underwriter Names | Required in initial submissions. | Can be omitted from initial submissions, disclosed later. |
| Public Filing Notice Period | required at least 48 hours, before the requested effective time and date. | Issuers must publicly file the registration statement and draft submission at least two business days before any requested effective time and date. |