On March 3, 2025, the Securities and Exchange Commission’s (SEC) Division of Corporation Finance (Division) announced an expansion of the nonpublic review process for draft registration statements. This expansion aims to facilitate capital formation by accommodating a broader range of issuers and transactions and is a welcome development for existing public companies and those considering an initial public offering.
Background
The Jumpstart Our Business Startups Act in 2012 (JOBS Act) enabled Emerging Growth Companies (as defined in the Securities Act of 1933 (Securities Act)) to submit draft registration statements for an initial public offering (IPO) to the SEC for confidential, nonpublic staff review. While this accommodation benefited many companies undertaking IPOs, some larger private companies and others exceeded the criteria for classification as an Emerging Growth Company, and the accommodation did not extend to transactions beyond IPOs.
In 2017, the Division began accepting draft registration statements for IPOs from all issuers, not just Emerging Growth Companies, and extended the accommodation to an issuer’s initial Exchange Act Section 12(b) registration statements.1 Furthermore, the Division extended eligibility for nonpublic review to subsequent offerings within the 12-month period following the effective date of an issuer’s initial public offering or initial registration of a class of securities.
Enhancements
The enhanced accommodations announced by the Division will benefit a broader range of companies seeking to raise capital or pursue other transactions. The expanded accommodations enable companies to submit draft registration statements for nonpublic review for:
- registration statements filed for any offerings or registration of a class of securities more than 12 months after the company becomes subject to Exchange Act reporting requirements;
- de-SPAC transactions in cases where the SPAC is the surviving entity, and the target company is eligible to submit a draft registration statement; and
- initial registration of a class of securities under Exchange Act Section 12(g) on Forms 10, 20-F, and 40-F.
Additionally, the announcement notes that companies may omit the name of the underwriter(s) from initial draft registration statement submissions, when otherwise required, provided that the company includes the name in subsequent submissions and filings.
Companies seeking to take advantage of the nonpublic review process should bear in mind that the confidentiality afforded by the JOBS Act does not extend to the staff’s nonpublic review accommodations. To help protect the nonpublic nature of the draft submission, companies should consider using the SEC’s Rule 83 confidential treatment request procedures when submitting draft registration statements and related correspondence for nonpublic review.2
Consistent with the 2017 accommodations, a company seeking nonpublic review for an IPO must confirm in a cover letter when submitting the draft registration statement that it will publicly file its registration statement and nonpublic draft submission on EDGAR 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.
Similarly, for a draft registration statement submitted subsequent to an IPO or other initial registration, a company should confirm that it will publicly file its registration statement and nonpublic draft submission at least two business days prior to any requested effective date and time. Importantly, this guidance applies to all companies using the accommodation and differs slightly from the 2017 guidance to file at least 48 hours in advance. The Division emphasizes that these filings are still subject to potential staff review, which may impact a company’s timing.3 Furthermore, the Division notes that the nonpublic review process only applies to the initial registration statement submission, and any further submissions in response to SEC comments should be publicly filed.
The statement clarifies that foreign private issuers can continue to use the procedures available to Emerging Growth Companies, if available, or the guidance provided in its 2012 statement for foreign private issuers.
Finally, consistent with prior guidance, the statement notes that while a draft registration statement should be substantially complete when submitted, SEC staff will not delay processing if a company omits financial information relating to historical periods it reasonably believes will not be required at the time of public filing.
For any questions or more information on these or any related matters, please contact Tamara Brightwell, Rezwan Pavri, Michael Nordtvedt, Allison Spinner, or your regular Wilson Sonsini Goodrich & Rosati contact or any member of the firm’s capital markets practice.
[1] Section 12(b) requires registration of any class of securities to be listed on a national securities exchange. This could include, for example, registration statements filed for exchange-listed debt or listings by foreign private issuers that are already exchange-listed elsewhere.
[2] The Division states that nonpublic draft registration statements and related correspondence will be kept confidential subject to the provisions of applicable law, which includes the Freedom of Information Act and its exemptions.
[3] In addition, companies submitting Exchange Act registration statements on Forms 10, 20-F, or 40-F must also consider timing factors, as applicable 30-day or 60-day filing periods must run prior to effectiveness. Under Exchange Act Section 12(b), a registration statement on Forms 10, 20-F, or 40-F goes effective automatically 30 calendar days after the SEC receives approval of the company’s listing from a national securities exchange. Under Exchange Act Section 12(g), a registration statement on Forms 10, 20-F, or 40-F goes effective automatically 60 calendar days after the company files its registration statement.
