D.9 Proxy/Registration Statement Filing and Review Process

D.9.1 SEC Review Process

An entity can generally expect the SEC staff to complete its initial review of a proxy/registration statement and furnish the first set of comments within 27 calendar days. The entity would then respond to each of the SEC’s comments and reflect requested edits. It would include any other necessary updates in an amended proxy/registration statement that the SEC would also review. After the initial filing, the SEC’s review time can vary significantly but typically is within two weeks. There may be several rounds of comment letters with follow-up questions on responses to original comments as well as additional comments on new information included in the amended registration statement. For more information, see Section 1.4.1.

Connecting the Dots

The financial statement requirements and review of a proxy/registration statement are largely consistent with the requirements and review for a traditional IPO. Thus, in addition to performing a detailed analysis of the financial statement and pro forma requirements for the proxy/registration statement, targets may want to understand the types of comments that the SEC staff frequently issues. For more information about SEC comments, see Deloitte’s Roadmap SEC Comment Letter Considerations, Including Industry Insights.

D.9.2 Availability of Nonpublic Review

In a traditional IPO, companies may submit draft registration statements to the SEC for nonpublic review. The ability to file nonpublicly is a significant benefit because it allows companies to confidentially respond to SEC comments and update their draft registration statement while continuing to assess market conditions throughout the IPO process. As a result, companies are able to delay or withdraw the IPO, if desired, without public scrutiny. In limited circumstances, as described below, nonpublic review of an initial draft registration statement may be available for SPAC transactions.

The SEC staff may agree to review an initial draft Form S-4 for a SPAC transaction if it is submitted within 12 months of the SPAC’s IPO. As noted in the highlights of the September 2017 CAQ SEC Regulations Committee joint meeting with the SEC staff, the staff encourages SPACs to contact their respective industry review office of the Division to assess whether a nonpublic review would be acceptable. Note that a nonpublic review may only be used for the initial submission and any responses to the staff comments or other amendments to the Form S-4 must be included in a public filing; however, in alternative structures in which either the target or a newly formed company acquires a SPAC, the confidential review process may be available for a longer period. The draft registration statement in a nonpublic review must be “substantially complete”15 and (1) contain a signed audit report from the company’s independent registered public accounting firm and (2) meet all line item requirements applicable to the registration statement unless the company is using certain permitted accommodations for omitting otherwise required information (e.g., financial information [including financial statements] related to periods that are not reasonably expected to be required at the time the registration statement is filed publicly).

Footnotes

For more information, see the announcement on the SEC’s Web site.