SEC to spur capital formation with new accommodations

On March 3, 2025, the SEC's Division of Corporation Finance announced enhanced accommodations for companies submitting draft registration statements for nonpublic review. This initiative builds upon the 2017 changes that allowed all issuers, not just Emerging Growth Companies (EGCs), to submit draft registration statements confidentially. The SEC’s goal is to support capital formation while ensuring investor protection.

The enhanced accommodations include:

• Expansion of eligible forms: The nonpublic review process now includes the initial registration of a class of securities on Forms 10, 20-F, or 40-F under either Section 12(b) or Section 12(g) of the Exchange Act.
• Submission flexibility: Companies can submit draft registration statements for offerings under the Securities Act or Section 12(b) and Section 12(g) of the Exchange Act, regardless of how much time has passed since they became subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act. Previously, the submission had to be within 12 months following the effective date of the initial Securities Act registration statement or Exchange Act Section 12(b) registration statement. Additionally, regarding these types of submissions, confirmation in a cover letter must be provided stating that the registration statement and nonpublic draft submission will be filed such that they are publicly available on EDGAR at least two business days prior to the requested effective time and date.
• De-SPAC transactions: The nonpublic review process now includes the registration statement for a de-SPAC transaction where the SPAC is the surviving entity (i.e., SPAC-on-top structure) and the co-registrant target is independently eligible to submit a draft registration statement under the new accommodations. This approach aligns with the view that the de-SPAC is the functional equivalent of the target’s initial public offering.
• Underwriter name omission: Companies may omit the name of the underwriter(s) from their initial draft registration statement submissions (when otherwise required by Items 501 and 508 of Regulation S-K) if they include the name of the underwriter(s) in subsequent submissions and public filings.

Foreign private issuers have the option to 1) submit draft registration statements under the enhanced accommodations above, 2) follow procedures available to EGCs (if it qualifies), or 3) adhere to the guidance in the SEC's May 30, 2012 statement. 

In the announcement, the SEC noted that the following practices will continue to apply:

• SEC staff will review draft initial registration statements on a nonpublic basis, provided the company confirms in a cover letter to the nonpublic draft submission that it will publicly file its registration statement and nonpublic draft submissions at least 15 days prior to any road show, or the requested effective date of the registration statement.
• SEC staff comment letters and the company’s responses to those letters will be publicly released on EDGAR no earlier than 20 business days following the registration statement’s effective date.
• Nonpublic reviews are limited to the initial submission of subsequent Securities Act registration statements and Exchange Act registration statements. Responses to SEC staff comments should be made with a public filing. Additionally, the draft registration statement submitted for nonpublic review must be filed at the time the registration statement is publicly filed.

The announcement also indicated that draft registration statements should be substantially complete upon submission; however, omitted financial information may be permissible if not required at the time of the public filing. SEC staff will consider requests to omit or substitute certain financial information under Rule 3-13 of Regulation S-X as well as reasonable requests to expedite processing of draft or filed registration statements.