Question 1

What is a confidential submission of a draft registration statement?

Accepted Answer

A confidential (nonpublic) submission is the delivery of a draft registration statement (DRS) to the SEC's Division of Corporation Finance so the staff can review it before the registration statement is filed publicly on EDGAR. The draft submission is not a 'filing' of a registration statement, and it is not publicly disseminated when submitted. Because a draft registration statement is not filed with the Commission, the Division's FAQs state it is not required to be signed by the registrant or by any of its officers or directors and is not required to include the consents of auditors and other experts; the registration filing fee is not due until the registration statement is first filed publicly on EDGAR. Companies preparing an initial public offering commonly submit their Form S-1 (or Form F-1) in draft through this process before the public filing.

Question 2

What is the statutory basis for confidential submission by emerging growth companies?

Accepted Answer

Securities Act Section 6(e), added by Section 106(a) of the JOBS Act (Pub. L. 112-106, enacted April 5, 2012), permits any emerging growth company, prior to its initial public offering date, to confidentially submit a draft registration statement to the SEC for confidential nonpublic staff review before public filing. Section 6(e)(1) conditions the accommodation on the initial confidential submission and all amendments being publicly filed with the Commission not later than 15 days before the date on which the issuer conducts a road show, as defined in Securities Act Rule 433(h)(4) (17 CFR 230.433(h)(4)). As enacted in 2012 the period was 21 days; Section 71001 of the FAST Act (Pub. L. 114-94, December 4, 2015) shortened it to 15 days.

Question 3

How did nonpublic review become available to all issuers, not just emerging growth companies?

Accepted Answer

On June 29, 2017, the SEC's Division of Corporation Finance announced that, effective July 10, 2017, it would accept draft registration statements from all issuers — not only emerging growth companies — for nonpublic review. This is a staff accommodation announced by the Division, not a statute or Commission rule. As announced in 2017, the accommodation covered initial public offerings and other initial Securities Act registrations, initial registrations of a class of securities under Exchange Act Section 12(b) on Forms 10, 20-F, or 40-F, and subsequent offerings made within 12 months of the effective date of the issuer's initial Securities Act registration statement or its Exchange Act Section 12(b) registration statement. The SEC's press release described the change as expanding a popular JOBS Act benefit to all companies.

Question 4

What did the Division's March 3, 2025 enhanced accommodations change?

Accepted Answer

On March 3, 2025, the Division of Corporation Finance expanded the nonpublic-review accommodations: it added initial Exchange Act Section 12(g) registrations on Forms 10, 20-F, or 40-F; removed the 12-month limit on draft submissions for subsequent offerings; permitted issuers to omit underwriter names from initial draft submissions; and made the process available in de-SPAC transactions where the SPAC is the surviving entity, as long as the target is eligible to submit a draft registration statement. Under the enhanced accommodations, a reporting company may submit a draft registration statement for a subsequent offering regardless of how much time has passed since it became subject to Exchange Act Section 13(a) or 15(d) reporting. Underwriter names otherwise required by Regulation S-K Items 501 and 508 may be omitted from the initial draft submission only, provided they are included in subsequent submissions and public filings. The Division stated that the staff will monitor practices under the expanded procedures and may make modifications to limit or terminate them.

Question 5

When must the confidential drafts be filed publicly?

Accepted Answer

For an IPO or other initial Securities Act registration — and for an initial Exchange Act Section 12(b) or 12(g) registration on Form 10, 20-F, or 40-F — the issuer must publicly file its registration statement, the initial nonpublic draft, and all draft amendments at least 15 days before it conducts its road show or, if there is no road show, at least 15 days before the requested effective date. For a subsequent offering by a reporting company, the registration statement and the nonpublic draft submission must be publicly available on EDGAR at least two business days before any requested effective time and date. For emerging growth company IPOs the 15-day public-filing requirement is statutory under Securities Act Section 6(e); for other issuers it is a condition of the Division of Corporation Finance's policy, and the issuer confirms its agreement with these conditions in a cover letter to its draft submission. The two-business-day period for subsequent offerings — at least 48 hours under the 2017 policy — matches the two business days provided in Securities Act Rule 461 for acceleration requests, and the Division states it will consider reasonable requests to expedite it. An Exchange Act registration statement on Form 10, 20-F, or 40-F becomes effective automatically 30 calendar days after the Commission receives the exchange's listing certification (for a Section 12(b) registration, under Exchange Act Section 12(d)) or 60 calendar days after filing (Section 12(g)(1)), so the issuer must file publicly early enough for the full period to run before effectiveness.

Question 6

How is a draft registration statement submitted on EDGAR?

Accepted Answer

Draft registration statements are submitted electronically on the SEC's EDGAR system using submission type DRS; amendments are submitted as DRS/A, and related correspondence — including confidential-treatment requests — is submitted as DRSLTR. The EDGAR Filer Manual, Volume II (Chapter 7, 'Preparing and Transmitting EDGARLink Online Submissions'), contains the technical instructions for preparing and transmitting draft registration statements through the 'Draft Reg. Statement' link on the EDGAR Filing Website. DRS and DRS/A submissions accepted by EDGAR are not disseminated to the public at acceptance; they remain nonpublic until the filer disseminates them.

Question 7

How do previously confidential drafts become public on EDGAR?

Accepted Answer

When the issuer makes its first public filing, its previously submitted draft registration statements are made public on EDGAR: the filer disseminates the accepted DRS and DRS/A submissions using the Disseminate Draft Registration Statement function on the EDGAR Filing Website, and they then appear in the company's public EDGAR filing history. Section 7.7.1 of the EDGAR Filer Manual, Volume II describes the Disseminate Draft Registration Statement page, which lists a filer's previously accepted DRS and DRS/A submissions that have not yet been disseminated to the public; only primary registrants on those submissions can disseminate them. Public dissemination of the drafts, together with public filing of the registration statement itself, is how issuers satisfy the public-filing conditions of Securities Act Section 6(e) and the Division of Corporation Finance's policy.

Question 8

What must a draft registration statement contain when it is submitted?

Accepted Answer

The Division of Corporation Finance's announcement states that an issuer should take all steps to ensure a draft registration statement is substantially complete when submitted, and the Division's JOBS Act guidance describes that expectation as including a signed audit report of the registered public accounting firm covering the fiscal years presented, together with exhibits. Because the draft is not a filing, it is not required to be signed, to include auditor and expert consents, or to be accompanied by the registration fee. The staff has stated it will not delay processing a draft registration statement if the issuer omits financial information that the issuer reasonably believes will not be required at the time the registration statement is publicly filed. Separately, emerging growth companies rely on Section 71003 of the FAST Act (Pub. L. 114-94), which permits an EGC to omit financial information for historical periods otherwise required by Regulation S-X if it reasonably believes those periods will not be required at the time of the contemplated offering, provided the registration statement is amended to include all required financial information before the issuer distributes a preliminary prospectus. Per the Division's FAQs, the first publicly filed registration statement should be complete — including signatures, signed audit reports, consents, and exhibits — and accompanied by any required filing fees.

Question 9

What does SEC staff do — and not do — during a nonpublic review?

Accepted Answer

The Division of Corporation Finance staff reviews the nonpublic draft and issues comment letters to which the issuer responds — for initial registrations, through amended draft submissions; for subsequent offerings, nonpublic review is limited to the initial submission and the issuer responds to comments with public filings. The staff does not declare a registration statement effective from a draft, and review is not approval: the Division does not evaluate the merits of any transaction, and its review process is not a guarantee that the disclosure is complete and accurate. Effectiveness under Securities Act Section 8(a) operates on a filed registration statement, and the Division's public-filing conditions require the registration statement and prior drafts to be on file publicly before the road show or requested effective date. The staff publicly releases its comment letters and issuer responses relating to draft submissions on EDGAR no earlier than 20 business days following the effective date of the registration statement.

Question 10

How are draft submissions kept confidential before public filing?

Accepted Answer

Draft registration statements accepted for nonpublic review are not disseminated on EDGAR while the review is nonpublic. For emerging growth companies, Securities Act Section 6(e)(2) provides that the Commission may not be compelled to disclose information received under the confidential-submission provision and treats it as protected for purposes of the Freedom of Information Act (5 U.S.C. 552(b)(3)(B)). For issuers relying on the Division of Corporation Finance's policy rather than Section 6(e), the Division's FAQs state that the issuer should consider requesting confidential treatment under SEC Rule 83 (17 CFR 200.83) for the draft registration statement and associated correspondence; the request may be made electronically using submission type DRSLTR, with a legend at the top of each page of the draft indicating that confidential treatment has been requested.

Question 11

Can an issuer communicate with investors while its draft registration statement is still nonpublic?

Accepted Answer

Yes, within defined limits: 'testing-the-waters' provisions permit communications with institutional investors before or after a registration statement is filed. Securities Act Section 5(d), added by the JOBS Act, permits emerging growth companies to engage in oral or written communications with qualified institutional buyers and institutional accredited investors, and SEC Rule 163B (17 CFR 230.163B), effective December 3, 2019, extends comparable treatment to all issuers. Rule 163B exempts from Securities Act Sections 5(b)(1) and 5(c) communications made by or on behalf of any issuer to persons the issuer reasonably believes are qualified institutional buyers or institutional accredited investors, to gauge interest in a contemplated registered offering. The Commission adopted Rule 163B in Release No. 33-10699 (September 2019). The road show itself remains the trigger for the 15-day public-filing requirement: it must not occur until at least 15 days after the drafts are publicly filed.

Question 12

How does the confidential submission connect to the public S-1 filing that follows?

Accepted Answer

The confidential submission precedes — and never replaces — the public registration statement filing. To proceed to an offering, the issuer publicly files its registration statement (for an IPO, typically Form S-1 or Form F-1) on EDGAR, pays the registration fee at that first public filing, publicly files or disseminates all prior draft submissions, and then resolves any remaining staff comments through public amendments before effectiveness. The SEC's JOBS Act guidance states that a confidential submission under Section 6(e) is not a filing of a registration statement, so the filing fee is not due at submission, and the Section 6(e) confidential-submission process applies only to the Securities Act registration process. Statutory mechanics that run from filing — including effectiveness under Securities Act Section 8(a) and the Section 5 prohibition on sales before effectiveness — operate on the publicly filed registration statement, not on the draft.

Offering / issuer	Availability and basis	Public-filing condition	Authority
Emerging growth company — IPO	Statutory right, available prior to the IPO date; Securities Act Section 6(e), added by the JOBS Act (April 5, 2012)	Initial confidential submission and all amendments publicly filed not later than 15 days before the road show (21 days before the FAST Act amendment of December 4, 2015)	Securities Act §6(e) (15 U.S.C. 77f(e)) — govinfo · source
Any issuer — IPO or other initial Securities Act registration	Division of Corporation Finance policy, effective July 10, 2017; initial submission and draft amendments reviewed nonpublicly	Registration statement and all prior drafts publicly filed at least 15 days before the road show or, if there is no road show, at least 15 days before the requested effective date	SEC DCF — Enhanced Accommodations announcement · source
Any issuer — initial Exchange Act Section 12(b) registration (Forms 10, 20-F, 40-F)	Division of Corporation Finance policy, effective July 10, 2017	Registration statement and all prior drafts publicly filed at least 15 days before any road show or, in the absence of a road show, at least 15 days before the requested effective date; the filed registration statement becomes effective automatically 30 calendar days after the Commission receives the exchange's listing approval (Exchange Act Section 12(d))	SEC DCF — Enhanced Accommodations announcement · source
Any issuer — initial Exchange Act Section 12(g) registration (Forms 10, 20-F, 40-F)	Added by the Division's enhanced accommodations, March 3, 2025; a nonpublic submission does not satisfy the requirement to file the registration statement within 120 calendar days from the end of the issuer's fiscal year when registration under Section 12(g) is required	Registration statement and all prior drafts publicly filed at least 15 days before any road show or, in the absence of a road show, at least 15 days before the requested effective date; the filed registration statement becomes effective automatically 60 calendar days after filing (Exchange Act Section 12(g)(1))	SEC DCF — Enhanced Accommodations announcement · source
Reporting company — subsequent Securities Act offerings and Exchange Act registrations	Under the 2017 policy, limited to offerings within 12 months of the IPO or Section 12(b) effective date; the March 3, 2025 accommodations removed the 12-month limit. Staff review is limited to the initial draft submission, with responses to comments made in public filings	Registration statement and nonpublic draft submission publicly available on EDGAR at least two business days before any requested effective time and date (at least 48 hours under the 2017 policy); the two-business-day period matches Rule 461's acceleration-request timing, and the staff will consider reasonable requests to expedite it	SEC DCF — Enhanced Accommodations announcement · source
De-SPAC transaction — SPAC as the surviving entity	Added by the Division's enhanced accommodations, March 3, 2025; available where the co-registrant target would otherwise be independently eligible to submit a draft registration statement	Processed as if it were an initial Securities Act registration statement (an IPO), so the corresponding public-filing conditions apply; per the Division's FAQs, the primary registrant includes the co-registrant target's CIK and related submission information when it submits the draft (EDGAR Release 24.3)	SEC DCF — Enhanced Accommodations announcement; DRS FAQs (co-registrants) · source
All issuers — submission mechanics	Drafts are submitted on EDGAR as submission type DRS (amendments DRS/A; correspondence DRSLTR); a draft submission is not a filing of a registration statement	No registration fee is due at submission; the fee is due when the registration statement is first filed publicly on EDGAR	SEC DCF — Voluntary Submission of DRS FAQs · source

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Confidential Submission of a Draft Registration Statement