On March 3, 2025, the Securities and Exchange Commission (SEC) adopted enhanced accommodations for filing registration statements. These accommodations build upon confidential review procedures originally enacted under the JOBS Act in 2012 for emerging growth companies conducting an IPO, and then made available to all companies conducting an IPO in 2017. In the SEC’s press release announcement, Cynthia LaMothe, Acting Director of the Division of Corporation Finance, noted that “[t]hese enhanced accommodations will further support capital formation while retaining investor protections available to purchasers in public offerings.” We discuss the expanded relief below.
Confidential Submission of Initial Section 12(g) Registration Statements
The SEC will now permit companies registering a class of securities under Section 12(g) of the Exchange Act on Forms 10, 20-F or 40-F to submit draft registration statements on a confidential basis, for non-public review. Section 12(g) of the Exchange Act requires companies to register a class of equity within 120 days of the company’s fiscal year end if the class is held by more than 2,000 persons or by more than 500 persons who are not accredited investors. A company may “go public” in this manner in certain situations, such as a spin-off, or if it will otherwise not obtain a listing for its shares. Previously, the SEC would only review draft registration statements on a confidential basis for a new registrant when a company was registering a class of securities under Section 12(b) of the Exchange Act (in connection with a listing). Companies should note that confidentially submitted draft registration statements, together with all SEC comment and response letters, are ultimately made publicly available on the SEC website.
Ongoing Ability to Confidentially Submit Initial Draft Registration Statements
The SEC will now permit public companies to submit an initial draft registration statement for an offering under the Securities Act (or the registration of a class of securities under the Exchange Act) on a confidential basis at any time after their IPO. Previously, this accommodation was only available for the 12-month period following the effective date of the company’s initial registration statement. Only the initial submission will be confidential under this accommodation. Permitting public companies to submit the initial drafts of such registration statements confidentially will allow them to delay signaling to the market plans for a transaction.
Confidential Submission of Registration Statements in de-SPAC Transactions
The SEC will now permit the confidential submission of draft registration statements in connection with a de-SPAC transaction when (i) the SPAC will be the surviving entity in the business combination (i.e. the SPAC will be the public company post-closing), and (ii) the target is a co-registrant and would otherwise be able to submit a draft registration statement under this policy. Target companies in de-SPAC transactions are often required to prepare SEC-compliant disclosures and financial statements for the first time, and this accommodation will allow them to undertake the early stages of SEC review of these disclosures on a confidential basis.
Omission of Certain Financial Information in Confidential Registration Statement Filings
The SEC requires that registration statements are substantially complete when filed, meaning that they include disclosures responsive to all requirements of the applicable form. Under the new accommodations, the SEC will not delay review of a confidentially submitted draft registration statement if the filer believes that financial information omitted from the filing will not be required at the time the registration statement is publicly filed. This allows a filer to, for example, omit the financial statements for a prior year (or interim period) if, due to the passage of time, such financial statements will not be required in the public filing.
Omission of Underwriter Name(s) in Initial Registration Statement Filings
Public companies may now omit underwriter name(s) from the initial submission of registration statements, if otherwise required, so long as such information is included in subsequent filings. Public companies sometimes consider an underwritten offering and wish to proceed with SEC review of a registration statement before any bank has been mandated. For companies required to file a long form registration statement (Forms S-1 and F-1), this accommodation will allow them to advance SEC review of a potential transaction before committing to an underwriter.
Final Thoughts
Public companies (and companies considering going public) may, under the right circumstances, obtain significant benefits from these accommodations.
