A few days ago, Corp Fin issued this guidance expanding the accommodations available for nonpublic review of draft registration statements to all issuers, building on the 2017 expansion of nonpublic reviews initiated by the JOBS Act for emerging growth companies. This guidance reflects updates tied to the SEC’s 2024 SPAC rules, ensuring alignment with evolving market practices and it maintains existing EGC benefits while broadening access to all issuers.
Here are the Top 10 points from Corp Fin’s guidance:
1. Expanded nonpublic review eligibility
– The SEC now allows all issuers – not just EGCs – to submit draft registration statements for nonpublic review for initial Exchange Act registrations (Forms 10, 20-F, 40-F) under both Sections 12(b) and 12(g). This includes IPOs, SPAC mergers, and other transactions.
2. No time limit for subsequent filings
– Previously, issuers could only submit subsequent draft registration statements (e.g., follow-on offerings) within 12 months of their initial registration. Now, no time limit applies, even if the issuer is already subject to Exchange Act reporting requirements (Section 13(a) or 15(d)).
3. De-SPAC transaction accommodations
– Corp Fin allows nonpublic review for de-SPAC transactions (where the SPAC survives as the public entity) if the target company is eligible to submit a draft registration statement. This aligns with the SEC’s 2024 SPAC rules, treating de-SPACs as equivalent to a target’s IPO.
4. Underwriter omissions permitted
– Issuers may omit underwriter names in initial draft submissions (required by Items 501/508 of Regulation S-K) but must include them in later filings. This streamlines early-stage submissions.
5. Foreign private issuer flexibility
– Foreign private issuers can choose to follow either the EGC process (if eligible) or the expanded accommodations outlined here.
6. Streamlined financials omissions
– Drafts may omit financial information if the issuer reasonably believes it won’t be required at the time of public filing, similar to relief under the FAST Act for EGCs.
7. Public filing deadlines
– Initial registrations: Must publicly file drafts 15 days before a roadshow or requested effective date.
– Subsequent registrations: Must publicly file 2 business days before effectiveness (aligns with Rule 461 acceleration requests).
8. Staff comment transparency
– Staff comment letters and issuer responses will be publicly released on EDGAR no earlier than 20 business days after a registration statement’s effective date.
9. Focus on capital formation
– The SEC emphasizes that these changes aim to facilitate capital formation while maintaining investor protections. It encourages issuers to engage with the staff early about timing concerns.
10. Monitoring and flexibility
– The SEC will monitor usage of these accommodations and may adjust or terminate them. Issuers with questions can contact CFDraftPolicy@sec.gov.
Authored by
Broc Romanek