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Draft Registration Statement Guide

Introduction

The SEC (U.S. Securities and Exchange Commission) permits a company to submit a draft registration statement (DRS) for confidential, nonpublic review by the staff of the SEC’s Division of Corporation Finance prior to public filing. This DRS submission process offers several advantages, including:

  • Confidentiality of the review process
  • Flexibility in timing and the ability to test the waters for the proposed public offering prior to filing a registration statement
  • Reduced reputational risk if an offering is delayed or withdrawn

The DRS submission process enables the company to receive comments from division staff before making a public filing in EDGAR (Electronic Data Gathering, Analysis, and Retrieval), which allows the company to refine its disclosures and address regulatory concerns prior to an offering’s public launch. The division staff has expanded the availability and flexibility of the DRS submission process to support capital formation and reduce regulatory burdens. For example, in 2025, the staff announced significant enhancements to the DRS submission process, broadening its applicability and easing procedural constraints.

Evolution of the DRS

Historically, when a company wished to conduct an initial public offering (IPO) under the Securities Act of 1933 (Securities Act), as amended, or initially register a class of securities under the Securities Exchange Act of 1934 (Exchange Act), as amended, it was required to file its initial registration statement and subsequent amendments publicly. In the case of an IPO, the public filing of a registration statement signaled the company’s intention to pursue a public offering, and all of the disclosure about the company that was included in the filing would become public knowledge as soon as the process commenced. If a company that filed a public registration statement ultimately decided not to complete the contemplated public offering, then the public’s awareness of the company’s aborted attempt could have a negative effect on the company’s valuation and any future plans for conducting a public offering. The Division of Corporation Finance staff permitted DRS submissions in certain circumstances for foreign private issuers (FPIs) but did not extend the accommodations to other types of companies or circumstances.

In 2012, to improve access to the public markets and ease compliance for smaller companies, Congress passed the Jumpstart Our Business Startups (JOBS) Act. The JOBS Act provided emerging growth companies (EGCs) the ability to make voluntary confidential submissions of their registration statements for SEC review and comment. This process was designed to reduce regulatory burdens while also facilitating efforts by EGCs to test the waters for a proposed offering with certain investors and gauge interest in the proposed public offering prior to a registration statement’s public filing.

In 2015, the Fixing America’s Surface Transportation (FAST) Act revised the federal securities laws to enhance JOBS Act accommodations for EGCs, among other amendments. Section 71001 of the FAST Act revised Section 6(e) of the Securities Act to shorten the period in which EGCs are required to publicly file a draft registration statement and all previously submitted DRSs from no later than 21 days to no later than 15 days before the date on which the issuer conducts a road show or, if an EGC does not conduct a road show, at least 15 days before the registration statement’s effectiveness. Section 71003 of the FAST Act amended Section 102 of the JOBS Act to allow an issuer that is an EGC to “omit financial information for historical periods otherwise required by Regulation S–X […] as of the time of filing” a registration statement or submitting a DRS, if it “reasonably believes [the omitted information] will not be required to be included in the [filing] at the time of the contemplated offering,” so long as the issuer amends the registration statement prior to “distributing a preliminary prospectus […] to include all financial information required” at the time of the amendment.

Beginning in July 2017, the Division of Corporation Finance staff expanded the availability of the DRS submission process, opening it up to all domestic issuers and FPIs for IPOs under the Securities Act, initial registrations of a class of securities under Section 12(b) of the Exchange Act, and certain follow-on offerings if the company submitted the DRS within 12 months of its initial Securities Act registration statement or Exchange Act Section 12(b) registration effective date. The 2017 guidance permitting these companies to utilize the DRS submission process in certain circumstances was not mandated by statute or regulation but was implemented administratively by division staff.

In 2025, the division staff significantly expanded the availability of DRS accommodations again. These enhancements were intended to further facilitate capital formation by providing greater flexibility in the planning and timing of public offerings and Exchange Act registrations. Specifically, the enhanced accommodations

  • expanded the types of registration statements eligible to be submitted as DRS submissions;
  • removed the previous 12-month limitation on use of DRS for follow-on offerings and subsequent registration statements;
  • expanded the availability of DRS for de-SPAC (special purpose acquisition company) transactions with “SPAC-on-top” structures; and
  • permitted companies to omit the name of underwriter(s) from initial DRS submissions.

Benefits of DRS Submissions

The DRS submission process offers several strategic advantages for companies. It enables a company to maintain confidentiality during the early stages of the registration process, refine disclosures based on Division of Corporation Finance staff comments before public scrutiny of the registration statement, and better control their market entry timing. This flexibility is particularly valuable for companies navigating uncertain or volatile market conditions, managing regulatory approvals affecting the timing of an offering, or evaluating investor interest before launching a public offering. The submission of a DRS can serve as a tool for gauging market appetite without fully committing to a public offering.

By engaging with the division staff early in an offering process, companies can identify and resolve potential disclosure issues before the registration statement becomes public, reducing the risk of delays or surprises later in the offering timeline. The ability to delay public exposure of sensitive business or financial information until there is greater certainty regarding the completion of the offering can also protect a company’s competitive positioning and mitigate reputational risk. Additionally, if a company ultimately decides not to proceed with the offering, it may request that the staff effectively withdraw the DRS submission, allowing the company to terminate the process without making any public filings or disclosures.

Eligibility

Eligible Companies

All domestic issuers and FPIs may utilize the DRS submission process.

Securities Act IPOs and Initial Exchange Act Registration Statements

Companies may submit draft initial registration statements to register IPOs under the Securities Act, including Form S-1, Form F-1, or Form S-11. In addition, companies may also submit a DRS for the initial registration of a class of securities under Section 12(b) and Section 12(g) of the Exchange Act using Forms 10, 20-F, or 40-F.

A company submitting an initial registration statement under either the Securities Act or Exchange Act Section 12(b) is required to provide a cover letter with its DRS submission confirming that it will publicly file its registration statement and DRS 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 registration statement’s requested effective date.

Those companies that are required to register a class of securities under Section 12(g) — and choose to submit a DRS for an Exchange Act Section 12(g) registration statement — should allow for sufficient time to receive Division of Corporation Finance staff comments and still file their registration statements within the public filing deadline (i.e., 120 calendar days after the end of their fiscal year).

Subsequent Securities Act and Exchange Act Registration Statements

The division staff will accept DRS submissions for follow-on offerings under the Securities Act or subsequent registrations of a class of securities under either Section 12(b) or 12(g) of the Exchange Act, regardless of the length of time that has passed since the company became subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act.

Companies submitting a subsequent DRS should confirm in their cover letters submitted in EDGAR that they will file their registration statement and DRS submissions so they are publicly available in EDGAR at least two business days prior to any requested effective time and date. The staff may issue comments on such public filings, which could potentially affect a company’s timeline for effectiveness of the registration statement. With respect to Exchange Act registration statements on Forms 10, 20-F, and 40-F, companies must publicly file them so that the full 30- or 60-day period, as applicable, will elapse prior to their effectiveness.

The division staff only permits nonpublic staff reviews of initial DRS submissions for follow-on offerings and subsequent Exchange Act registration statements. Accordingly, companies responding to any division staff comments on an initial DRS submission for follow-on offerings and subsequent Exchange Act registration statements must respond with a publicly filed response letter and registration statement, not a revised DRS.

Similar to the initial registration procedures, a company should file the DRS it had previously submitted for nonpublic review at the time it publicly files its registration statement.

De-SPAC Transactions

The division staff accepts DRS submissions for de-SPAC transactions if the SPAC survives the business combination as the public company (i.e., so-called “SPAC-on-top” structures) as if the DRS submission were an initial Securities Act registration statement (i.e., an IPO), provided that the co-registrant target company is otherwise independently eligible to submit a DRS submission under the staff’s policy. The staff believes this approach is consistent with the SEC’s previous statement in its 2024 adopting release for the final rules on SPACs, shell companies, and projections, indicating that a de-SPAC transaction is effectively the target company’s IPO. This accommodation enables certain SPACs and target companies to submit their registration statements for de-SPAC transactions on Form S-4 or F-4 as nonpublic DRS submissions.

Submission Mechanics

Content of a DRS

In general, DRS submissions should be substantially complete when submitted. However, companies may omit offering-specific information, such as pricing, financial statements not required at the time of public filing, and signatures or consents, until the public filing stage. The Division of Corporation Finance staff will not “bedbug” or delay the processing of a registration statement if a company reasonably believes omitted financial information will not be required at the time the registration statement is publicly filed.

The division staff will consider a company’s specific facts and circumstances in connection with any request made under Rule 3-13 of Regulation S-X. Under Rule 3-13, the SEC may, upon informal written request from a company, allow the omission or substitution of required financial statements if it aligns with investor protection.

Companies may omit the names of underwriters from their initial DRS submission, when such information is required to be provided by items 501 and 508 of Regulation S-K, as long as the names of the underwriters are included in any subsequent DRS submissions and in public filings. This accommodation enables companies to submit DRSs at an earlier point in their offering timelines.

Submission Process

Companies must submit their DRSs via the SEC’s EDGAR system using the appropriate EDGAR submission types: “DRS” for the draft registration statement, and “DRSLTR” for SEC correspondence relating to a DRS. Letters to the SEC staff regarding DRS submissions must either be included in the DRS submission as a cover letter or submitted as a separate DRSLTR submission. The cover letter must confirm the timing of the public filing relative to the road show or effective date, depending on the type of offering. The EDGAR Filer Manual states that filers should not submit correspondence to the staff using the correspondence submission (CORRESP) form type until they begin making public filings to complete their offerings. This enables the SEC staff to easily associate correspondence during the draft review with the DRS.

Public Filing Transition

A confidential submission of a DRS does not constitute a “filing” for purposes of Securities Act sections 5(c) and 6(a).

A company submitting an initial registration statement under either the Securities Act or Section 12(b) of the Exchange Act must publicly file its registration statement and all DRS 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 registration statement’s requested effective date.

A company submitting a subsequent DRS for any offering under the Securities Act or the registration of a class of securities under either Section 12(b) or Section 12(g) of the Exchange Act must file its registration statement and all DRS submissions so they are publicly available in EDGAR at least two business days prior to any requested effective time and date. The Division of Corporation Finance staff may comment on the filing, and companies should consider this in their timelines. With respect to Exchange Act registration statements on Forms 10, 20-F, and 40-F, companies will need to publicly file them so that the full 30- or 60-day period, as applicable, will elapse prior to their effectiveness. Companies must respond to any staff comments issued on subsequent DRS submissions via public filings submitted in EDGAR.

Filing Fees

Filing fees are due when a company first publicly files a registration statement in EDGAR. A DRS submission does not trigger a filing fee obligation.

Working With Division Staff

Companies and counsel should communicate transaction timelines with the Division of Corporation Finance staff assigned to review their submission or filing to ensure they can meet expected timing. The staff has stated it will consider reasonable requests to expedite the processing of DRS submissions and filed registration statements, including expediting the two–business day period prior to any requested effective time and date applicable to subsequent registration statements.

Division Staff Comment Letters

SEC Division of Corporation Finance staff comment letters and company responses are released to the public in the EDGAR system no earlier than 20 business days following the registration statements’ effective dates.

Additional Considerations

Offering Activities

The submission of a DRS does not constitute a “filing,” including for purposes of Securities Act Section 5(c), which prohibits making offers of a security in advance of filing a registration statement with the SEC. Companies may rely on Securities Act Rule 135 to make public announcements of an offering and DRS submissions before a registration statement is filed; however, public statements about an offering may affect whether the SEC can withhold a DRS submission in response to a Freedom of Information Act (FOIA) request made by the public. By contrast, the safe harbor in Securities Act Rule 134 for certain communications to not be deemed prospectuses or free writing prospectuses cannot be relied on until a public filing of the registration statement is made.

In addition to a general announcement under Securities Act Rule 135, Securities Act Rule 163B allows for any company or any person acting on a company’s behalf to engage in “test-the-waters” communications with potential investors that are qualified institutional buyers or institutional accredited investors before or after the filing of a registration statement and can be relied on to engage in test-the-waters communications after a DRS submission. Section 5(d) of the Securities Act also provides for similar test-the-waters communications for EGCs only.

Options for EGCs

EGCs may choose to continue using the DRS procedures available to EGCs as described in the Division of Corporation Finance staff’s JOBS Act FAQ.

Options for FPIs

Instead of using the DRS accommodations, an FPI may choose to use the procedures available to EGCs, provided that the FPI qualifies as an EGC, or follow the division staff’s guidance provided in its 2012 statement titled “Non-Public Submissions from Foreign Private Issuers.”

Confidential Treatment of DRS Submissions

EGCs Prior to the IPO Date

Securities Act Section 6(e) provides that, prior to a company’s “initial public offering date,” EGCs may confidentially submit a DRS for nonpublic review by the SEC Division of Corporation Finance staff prior to public filing provided that the DRS and all amendments thereto are publicly filed no later than 15 days before the date that the EGC conducts a road show or the registration statement’s anticipated date of effectiveness if no road show is conducted. Section 101(c) of the JOBS Act defines “initial public offering date” as the “date of the first sale of common equity securities of an issuer pursuant to an effective registration statement under [the Securities Act].” The date of first sale could include a company’s initial primary offering of common equity securities for cash, an offering of common equity pursuant to an employee benefit plan registered on a Form S-8, as well as a sale of a securityholder’s secondary offering registered on a resale registration statement. An EGC submitting a DRS is not required to submit a Rule 83 request to preserve confidentiality of information in the DRS.

Non-EGCs and EGCs Following Their IPO Date

Because the confidentiality protections under Securities Act Section 6(e)(2) apply only to certain EGCs, issuers not covered by this provision should request confidential treatment under Rule 83 of the SEC’s FOIA rules for both the DRS and any related correspondence.

To request confidential treatment for a DRS submitted under the SEC staff’s policy, companies should use submission type DRSLTR when filing electronically. This submission type eliminates the need to send paper copies of the request or related materials to either the staff in the SEC’s Division of Corporation Finance or Office of FOIA Services. Each page of the electronically submitted draft should include a legend at the top indicating that confidential treatment has been requested pursuant to Rule 83. When responding to staff comments, companies must clearly identify any information they intend to keep confidential upon public filing to ensure that such information is not inadvertently disclosed in the staff’s comment letters. Finally, while companies may make public statements about their offering under Securities Act Rule 135 during the nonpublic review process, they should be aware that doing so may affect the staff’s ability to withhold the DRS in response to FOIA requests.

Practical Tips

When preparing and submitting a DRS submission, companies should keep the following practical tips in mind to ensure compliance with SEC procedures and preserve confidentiality when applicable:

  • For EGCs submitting IPO registration statements, include a clear header on the cover page of the DRS indicating that the submission is being made confidentially and has not yet been publicly filed with the SEC. This helps distinguish the submission as one eligible for confidential treatment under Section 6(e)(2) of the Securities Act.
  • For issuers that are not EGCs, or for any subsequent registration statements, include a legend at the top of each page of the electronically submitted DRS stating that confidential treatment is requested pursuant to Rule 83. This ensures that the SEC staff is aware of the issuer’s intent to withhold certain information from public disclosure under the FOIA.
  • Submit the Rule 83 confidentiality request concurrently with the DRS. Use EDGAR submission type DRSLTR to transmit the Rule 83 request at the same time as the DRS. This step is essential to preserve confidentiality protections during the SEC’s review process.
  • Coordinate with a financial printer when transitioning to public filing. Once the company decides to “flip” the DRS to a public registration statement, it is critical to instruct the printer to release the DRS and any related correspondence for public access in EDGAR. Failure to do so may result in delays or incomplete public disclosure.

This informational piece, which may be considered advertising under the ethical rules of certain jurisdictions, is provided on the understanding that it does not constitute the rendering of legal advice or other professional advice by Goodwin or its lawyers. Prior results do not guarantee similar outcomes.

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