SEC Expands Confidential Registration Statement Filing Process

The SEC announced that companies can now submit registration statements for confidential review before public filing in connection with most registered offerings. This expansion builds on the confidential filing process that began in 2012 for emerging growth companies and evolved through updates in 2017, 2020, and 2024. These changes align with acting SEC Chair Mark T. Uyeda’s focus on enhancing capital formation and making the registered offering process easier.

What Has Changed?

• Companies can now submit confidential registration statements at any time after their IPO, removing the previous 12-month limitation.
• Companies can now omit underwriter names from their initial confidential registration statement, provided they include these names in any subsequent submissions and public filings.
• Companies involved in a de-SPAC transaction can now submit a confidential registration statement when the SPAC is the surviving entity (i.e., SPAC-on-top structure), as long as the target also qualifies to submit a draft registration statement.
• Private companies that become required to register under Exchange Act Section 12(g) can now submit a confidential registration statement on Form 10, 20-F, or 40-F. Previously, only companies registering under Section 12(b) for exchange listings could file confidentially.

Practical Implications:

These changes will help companies maintain deal confidentiality longer and offer greater flexibility to explore and plan public offerings while minimizing premature media coverage and potential stock price impacts. They particularly benefit:

• Companies planning follow-on offerings.^[1]

• Companies ineligible to use a shelf registration statement (for any reason) may hesitate or avoid follow-on offerings due to the expected lengthy initial SEC review process, which can attract unwanted publicity and market speculation before a deal launches. The option for an initial confidential review allows these companies and their potential underwriters to assess whether extensive SEC comments might delay or derail a contemplated offering, without the associated publicity concerns.
• Companies eligible to use a shelf registration statement but without one currently available are also typically cautious about the timing of publicly filing an initial shelf registration statement, even if they don’t plan for immediate capital raising. This change provides more flexibility in the timing for submitting initial shelf registration filings, enabling companies to determine if the SEC will review and comment, and if so, the extent of those comments, before making it public.

• Companies involved in a de-SPAC transaction.

• Recognizing that the SEC treats de-SPAC transactions like the target’s initial public offering, companies can now file de-SPAC registration statements confidentially if the co-registrant target would otherwise be independently eligible to submit a confidential registration statement, which should usually be the case.

• Private companies required to register under Section 12(g).

• Although initial registration statements filed in this situation face fewer publicity risks, such companies may still benefit from the confidential submission and review process. Such companies must remember that the confidential submission does not satisfy the requirement to file a registration statement within 120 calendar days from the end of the fiscal year when they became required to register under Section 12(g). Companies should start early enough to receive staff comments and still meet the public filing deadline.

Except as described above, previous guidance and processes for confidential registration statement submission remain unchanged. For more information, see that guidance below:

• Voluntary Submission of Draft Registration Statements – FAQs
• Fixing America’s Surface Transportation (FAST) Act – C&DIs
• Securities Act Forms – C&DIs
• Jumpstart Our Business Startups Act Frequently Asked Questions – Generally Applicable Questions on Title I of the JOBS Act
• Jumpstart Our Business Startups Act Frequently Asked Questions – Confidential Submission Process for Emerging Growth Companies

Want to learn more? Please reach out to one of the members of the Orrick Capital Markets team.

^[1]The SEC will continue to limit confidential review for follow-on offerings to only the initial submission of a registration statement. A company responding to SEC comments on such a draft registration statement should do so with a public filing, not with a revised draft registration statement. However, since the SEC’s initial review typically takes about 30 days, this option still offers a significant advantage in avoiding early publicity.