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The SEC Staff now allows confidential draft submissions for all follow-on offerings, shelf offerings, and M&A, enhancing flexibility.

By Michele Anderson, Alex Cohen, Paul Dudek, and Joel Trotter

The SEC Staff has expanded the ability of issuers to make confidential submission of draft registration statements and clarified the procedures for making confidential submissions. This new policy takes effect immediately.

The move follows a February 24, 2025, speech by Securities and Exchange Commission Acting Chairman Mark T. Uyeda in which he stated his first priority is for the Commission to “return[] to its narrow mission to facilitate capital formation, while protecting investors and maintaining fair, orderly and efficient markets.” For more detailed information on his speech, see this blog post. Here’s what you need to know:

  • All Securities Act registration statements for follow-on offerings may be submitted confidentially; shelf offerings and M&A transactions are now covered. Any Securities Act registration statement may now be submitted confidentially, regardless of how long an issuer has been a public reporting company. This notably includes shelf offerings on Form S-3/F-3, as well as registration statements on Form S-4/F-4 for business combinations and exchange offers. Previously, only registration statements submitted within 12 months of an issuer’s initial registration could benefit from confidential submission. 
  • Follow-on procedures have been clarified; two-business-day public flip for offerings. The Staff has clarified that a confidential submission for a follow-on offering must be made publicly available on EDGAR at least two business days prior to effectiveness. The policy previously referred to “48 hours,” which left open questions about the Staff’s expectations for public filing in the case of intervening weekends and holidays.
  • De–SPACs in which the target OPCO is a private company will be treated as an initial registration statement, regardless of transaction form. De-SPAC filings under the Securities Act in which target OPCO is a private company will now be treated as an initial Securities Act registration statement eligible for confidential submission, regardless of transaction form. Previously, if the SPAC was the surviving company, confidential submission would only be available as a follow-on within 12 months of the SPAC IPO. 
  • Names of underwriters and any financial information that will not be needed at the time of the public flip may be omitted from initial filings. Issuers may now omit the names of underwriters in their initial filings. Previously, Staff practice was inconsistent and filings without the names of underwriters risked being rejected. The Staff has also underlined that any financial information that will not be needed at the time of the public flip may be omitted.
  • Initial Exchange Act Section 12(g) registrations may now be made confidentially. Initial registration filings for a class of securities under Exchange Act Section 12(g) for a widely held class of equity securities (on Forms 10, 20-F, and 40-F) may now be made confidentially. Previously, only initial registration statements under Exchange Act Section 12(b) for exchange listings were permitted.
  • Subsequent Exchange Act registration statements may be confidentially submitted, even after one year. Any Exchange Act registration statement under Section 12(b) or 12(g) may be submitted confidentially, regardless of how long an issuer has been a public reporting company. Previously, only registration statements submitted within 12 months of an issuer’s initial registration could benefit from confidential submission.
  • 30- or 60-day public flip period for confidential Exchange Act filings. Trap for the unwary alert: the public flip period for an Exchange Act registration statement — whether initial or subsequent — is longer than for a Securities Act registration statement. In particular, the public flip period is 30 days for Section 12(b) registration and 60 days for Section 12(g) registration.
  • Staff email address for further questions. The Staff has published a dedicated email address for further questions about the new policy: CFDraftPolicy@sec.gov.