On Oct. 9, 2025, the staff of the SEC’s Division of Corporation Finance (Staff) updated its government shutdown guidance. The updated guidance provides a way for companies to commence an initial public offering during the shutdown. As McGuireWoods noted on Oct. 2, 2025, the Staff will not declare registration statements effective during the shutdown. However, thanks to the updated guidance, a company seeking to go public can rely on Securities Act Rule 473 and Securities Act Rule 430A, allowing a company to launch its IPO by removing the delaying amendment (i.e., become effective in 20 days). Companies doing so, should include the statement required by Securities Act Rule 473(b) (“This registration statement shall hereafter become effective in accordance with the provisions of section 8(a) of the Securities Act of 1933.”) and can now provide an offering price range in the registration statement.
A preliminary prospectus for an IPO of equity securities must include a bona fide estimate of the range of the maximum offering price. The Securities Act 430A safe harbor rule allows a company to price above or below the price range. CD&I 134.04 provides guidance as to what will not be considered a bona fide offering price: “For [IPOs], a price range in excess of $2, for offerings up to $10 per share, or in the excess of 20% of the high end of the range, for offerings over $10, will not be considered bona fide.” The final prospectus will include the actual offer price.
The length of the SEC’s closure is uncertain. It is possible that a company could file its registration statement to go public and the government reopens before the 20-day delaying period is complete. The Staff stated in this update that when the shutdown ends, it will notify specific companies if such company should add back the delaying amendment language into its registration statements.
A company considering whether to file its IPO registration statement without the delaying amendment and including the offering price range should discuss the risks of forgoing Staff review and comments with legal counsel and financial advisers.
Besides what is noted above, the information in the Oct. 2, 2025, alert remains unchanged. In case of an emergency, Staff contact information can be found on page 15 of the SEC’s Operations Plan.
