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Draft Registration Statement Processing Procedures Expanded

Aug. 17, 2017

June 29, 2017 [supplemented August 17, 2017]

As part of the Division’s ongoing efforts to facilitate capital formation, beginning on July 10, 2017 we will accept voluntary draft registration statement submissions from all issuers for nonpublic review[1] as described below.[2]

This expanded nonpublic review process does not limit the process by which Emerging Growth Companies submit draft registration statements for confidential review.[3] We will continue to process those submissions and filed registration statements in the normal course.

Securities Act initial public offerings (IPOs) and initial registrations

We will review a draft initial Securities Act registration statement and related revisions on a nonpublic basis provided that the issuer 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, in the absence of a road show, at least 15 days prior to the requested effective date of the registration statement.

Initial registration of a class of securities under Exchange Act Section 12(b)

We will review a draft registration statement and related revisions on a nonpublic basis provided that the issuer 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 the anticipated effective date of the registration statement for its listing on a national securities exchange.

Securities Act offerings within one year of an IPO or Exchange Act Section 12(b) registration

We will also accept draft registration statements submitted prior to the end of the twelfth month following the effective date of an issuer’s initial Securities Act registration statement or an issuer’s Exchange Act Section 12(b) registration statement for nonpublic review. An issuer submitting a draft registration statement for nonpublic review in these circumstances should confirm in its cover letter that it will publicly file its registration statement and nonpublic draft submission such that it is publicly available on the EDGAR system at least 48 hours prior to any requested effective time and date.

We will limit our nonpublic review in these cases to the initial submission; an issuer responding to staff comments on such a draft registration statement should do so with a public filing, not with a revised draft registration statement. We will conduct any further review following our normal procedures and act upon requests for acceleration in accordance with Securities Act Rule 461. Similar to the initial registration procedures described above, the issuer should file the draft registration statement it had previously submitted for nonpublic review at the time it publicly files its registration statement.

Foreign Private Issuers

Foreign Private Issuers may elect to proceed in accordance with these procedures or those available to Emerging Growth Companies (if the issuer qualifies as an Emerging Growth Company) or follow the guidance in our May 30, 2012 statement.

Content of draft registration statements and staff processing

The nonpublic review process is available for Securities Act registration statements prior to the issuer’s initial public offering date and for Securities Act registration statements within one year of the IPO. In identifying the initial public offering date, we will refer to Section 101(c) of the JOBS Act. The nonpublic review process is available for the initial registration of a class of securities under Exchange Act Section 12(b) on Form 10, 20-F or 40-F. [added August 17, 2017]

An issuer that has a registration statement on file and in process may switch to the nonpublic review process for future pre-effective amendments to its registration statement provided it is eligible to participate in the nonpublic review process and it agrees to publicly file its amended registration statement and all draft amendments in accordance with the time frame specified above. [added August 17, 2017]

While an issuer should take all steps to ensure that a draft registration statement is substantially complete when submitted, we will not delay processing if an issuer reasonably believes omitted financial information will not be required at the time the registration statement is publicly filed.[4] In addition, we will consider an issuer’s specific facts and circumstances in connection with any request made under Rule 3-13 of Regulation S-X.

We will consider reasonable requests to expedite processing of draft and filed registration statements and encourage issuers and their advisors to review their transaction timing with the staff assigned to the filing review.

The staff will monitor practices under the expanded processing procedures and may make modifications to limit or terminate these procedures.

Issuers may submit questions about their eligibility to use the expanded processing procedures to CFDraftPolicy@sec.gov. [added August 17, 2017]

Technical Note

An issuer that does not yet have EDGAR access codes will need to file a Form ID to obtain them. Pending further updates to Form ID, the new issuer should indicate on that form that it intends to use the codes to submit a draft registration statement pursuant to JOBS Act §106, even if it is not an Emerging Growth Company. This will help preserve the nonpublic status of the issuer’s drafts until it publicly files them.


[1] Issuers should consider the Commission’s Rule 83 (17 CFR 200.83) in submitting draft registration statements for nonpublic review. We will keep submitted nonpublic draft registration statements confidential subject to the provisions of applicable law. See for example 5 U.S.C. 552(b)(4) (Exemption 4 of the Freedom of Information Act provides an exemption for “trade secrets and commercial or financial information obtained from a person and privileged or confidential.”).

[2] Any issuer choosing to take advantage of this accommodation should follow the process Emerging Growth Companies use to submit draft registration statements. See technical note below.

[3] These processing procedures extend to all issuers an accommodation to submit a draft registration statement for nonpublic review similar to that currently available only to Emerging Growth Companies. An issuer must qualify as an Emerging Growth Company to take advantage of the other accommodations the Jumpstart Our Business Startups Act provided to Emerging Growth Companies.

[4] This relief is intended to be similar to the relief provided by Section 71003 of the Fixing America’s Surface Transportation Act, which allows an EGC to omit financial information that "relates to a historical period that the issuer reasonably believes will not be required to be included…at the time of the contemplated offering."