October 10, 2025
Corp Fin’s Updated Shutdown Guidance: Getting that IPO Across the Finish Line
Yesterday, Corp Fin updated its government shutdown guidance, as evidenced in this redline* (thanks, Corp Fin!), with a welcome change that addresses one of the major difficulties associated with relying on Section 8(a) so your registration statement can go effective in times like these when the SEC isn’t able to review registration statements or declare them effective. If this isn’t your first rodeo, you probably remember/know that a registration statement can go effective by operation of law 20 calendar days after filing under Section 8(a) of the Securities Act. Under normal circumstances, an issuer includes “delaying amendment” language from Rule 473 on the cover page of its registration statement to postpone effectiveness until the SEC has reviewed the filing and “accelerated” its effectiveness.
The prior version of the Staff’s shutdown guidance indicated that you couldn’t rely on Rule 430A to omit your offering price when filing a registration statement that would become effective after 20 days pursuant to Section 8(a) due to language in 430A that refers to a registration statement that is declared effective. (This would mean that the price is fixed for those 20 calendar days — yikes!) The new guidance now says:
Because the staff is not available to review or accelerate the effectiveness of registration statements during the shutdown, we will not recommend enforcement action to the Commission if a company omits the information specified in Rule 430A from the form of prospectus filed as part of a registration statement during the shutdown and such registration statement goes effective, either during or after the shutdown, by operation of law pursuant to Section 8(a) of the Securities Act.
So what does this mean? This Davis Polk alert explains:
You can launch your IPO with a price range. The updated guidance says a company can rely on Rule 430A during the shutdown, which means a company can launch its IPO with a price range on the cover and include the offering price in the final prospectus after the registration statement becomes effective (as it normally would in an IPO where the SEC declares the registration statement effective).
The Davis Polk alert also goes one step further to say:
You can price outside the range as in a regular IPO. In addition, the availability of Rule 430A means companies have the ability to price above or below the range and benefit from the 20% safe harbor under the rule, just like they would in a regular way IPO that is declared effective by the SEC.
The staff’s existing guidance for IPOs is that a “price range in excess of $2, for offerings up to $10 per share, or in excess of 20% of the high end of the range, for offerings over $10 per share, will not be considered bona fide.” (C&DI 134.04)
We believe that given the price range will be included in the publicly filed registration statement 20 days before effectiveness, it would not be unreasonable for a company to include a price range in excess of the limits included in existing staff guidance, so long as the range is reasonable.
This is clearly a great change for companies looking to move forward with offerings right now because it makes using Section 8(a) a much more workable option. Cool beans! Although there are still a number of complicating factors that need to be considered — including where you stand with Staff comments. Take a look at these 10 Latham FAQs with more information on removing the delaying amendment. Even if you’re not removing the delaying amendment, as this Freshfields blog notes, you may want to flip public during the shutdown to start the 15-day clock so you could quickly move to effectiveness once the SEC is open for business.
* Note that there were a few now moot FAQs that were deleted, but not shown in the redline, since they were relevant before a shutdown, but not during.
– Meredith Ervine
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