On March 3, 2025, the SEC Division of Corporation Finance announced a significant expansion of accommodations for issuers who wish to submit a draft registration statement (DRS) for the SEC staff’s nonpublic review. These enhanced accommodations include the following:
- Additional Registration Statement Forms Eligible to be Submitted as DRS
Previously, the nonpublic DRS review process was limited to initial registration statements under the Securities Act of 1933 and Section 12(b) of the Securities Exchange Act of 1934 (the Exchange Act). Under this new guidance, the nonpublic review process will now be expanded to include Forms 10, 20-F, and 40-F filed to initially register a class of securities under Section 12(g) of the Exchange Act.
- Ability for All Public Companies to Use DRS Review Process
Previously, the nonpublic DRS review process was only available for initial public offerings (IPOs) and for companies that had been public for less than one year. Under this new guidance, all registrants — regardless of how much time has passed since they became subject to SEC reporting requirements — can use a DRS to submit an initial draft of a registration statement (including on Forms S-1, S-3, and S-4). Consistent with the current practice, the nonpublic SEC staff review will be limited to just the initial DRS submission; companies responding to staff comments will have to do so with a public filing.
- No Requirement to Name an Underwriter in an Initial DRS
Issuers now will be able to submit their initial DRS without naming an underwriter, provided they include the name of the underwriter(s) in subsequent submissions and public filings. This will be a welcome change for companies considering a potential public offering that may not have formally engaged underwriters but wish to jump-start the SEC review process.
- Additional De-SPAC Structures Qualify for DRS Review Process
Previously, de-SPAC registration statements on Forms S-4 and F-4 were not eligible for nonpublic DRS review in de-SPAC transactions in which the special purpose acquisition company (SPAC) was the surviving publicly traded entity and more than 12 months had passed since the SPAC’s IPO. Under this new guidance, the nonpublic review process will be available for all de-SPAC transaction structures, provided the privately held target company is independently eligible to submit a DRS.
