Issuer Delaying Amendment

Summary

This template delaying amendment letter may be used to block automatic effectiveness of an issuer’s registration statement under Section 8(a) (15 U.S.C. § 77h) of the Securities Act of 1933, as amended (Securities Act). This template includes practical guidance and drafting notes. Generally, under Section 8(a) of the Securities Act, a registration statement will automatically become effective on the twentieth day after filing with the Securities and Exchange Commission (SEC) (unless accelerated or subject to an SEC stop order). However, the twenty-day window often does not give the SEC enough time to review issuer submissions or the issuer enough time to market the securities or conduct a road shows. A delaying amendment blocks automatic effectiveness of the registration statement and is commonly used. Note that a delaying amendment may not be used by a well-known seasoned issuer (WKSI), as a registration statement filed by a WKSI is automatically effective. The delaying amendment letter should be filed with the SEC along with the registration statement, or with a pre-effective amendment to the registration statement. Alternatively, the issuer may include certain representations directly on the front cover of their registration statements as a so-called delaying amendment legend. The language for the delaying amendment legend is found in Rule 473 (17 C.F.R. § 230.473) of the Securities Act. Once automatic effectiveness is blocked, the issuer must specifically request that its registration statement go effective by submitting an acceleration request to the SEC. In an underwritten offering, the underwriters must join with the issuer in requesting acceleration. For a template of this acceleration request, see Issuer Acceleration Request and Accompanying Underwriter Letter. Note, if a delaying amendment is used, the issuer must amend its registration statement and include the language required by Rule 473(b). For additional information on offerings, see Registered Offerings: Applicable Laws, Rules, and Regulations, Initial Public Offerings Resource Kit, and Follow-On Offerings Resource Kit. For more on IPOs generally, see Initial Public Offerings Resource Kit.