On May 19, 2026, as part of its "Make IPOs Great Again" agenda, the Securities and Exchange Commission proposed two sets of transformative amendments to its rules and forms intended to encourage companies to become and remain public.[1] The first set of amendments is a Registered Offering Reform package that would materially expand access to registered offerings for public companies and certain funds. The second group, titled Enhancement of Emerging Growth Company Accommodations and Simplification of Filer Status for Reporting Companies, would simplify the SEC's existing categories of filers and extend scaled disclosure accommodations.
This Venable client alert addresses the Registered Offering Reform. For our discussion of the Enhancement of Emerging Growth Company Accommodations and Simplification of Filer Status for Reporting Companies, see our client alert available here.
Introduction
The Registered Offering Reform proposal contains a comprehensive set of amendments intended to reshape and simplify the registered offering mechanics, thereby facilitating public companies' access to the capital markets. The proposal builds on the premise that the legal framework of registered offerings benefits not just issuers but also investors by providing investors with the protections of the Securities Act, including required disclosures and additional liability provisions for registered offerings (such as Section 11 liability for material misstatements or omissions in the registration statement and Section 12(a)(2) liability for materially deficient prospectuses). To make registered offerings more accessible, the SEC proposed a series of amendments that would make Form S-3 and shelf offerings available to substantially more issuers, replace the domestic seasoned issuers and WKSI categories with a new framework of the S-3 eligible issuers, Form S-3 eligible listed issuers (ELIs) and seasoned eligible listed issuers (SELIs) categories, modernize Form S-1 forward and backward incorporation by reference rules, conform aspects of the Form N-2 regime for affected funds, permit broader advertising for registered non-variable annuities, preempt state registration and qualification requirements for all types of registered offerings, and adopt several other process-oriented rule amendments.
The proposal is not final and remains subject to the SEC comment process. If adopted substantially as proposed, the package would change the capital-raising playbook for newly public companies, smaller public companies, former de-SPAC issuers, non-WKSI listed companies, non-exchange-listed reporting companies and certain funds and insurance-product issuers. When considered together with the companion filer status proposal and the separately proposed semiannual reporting option,[2] these amendments could materially alter the regulatory calculus for companies weighing whether to become and remain public. Collectively, the three proposals would reduce the ongoing costs of public-company status while expanding offering flexibility to a significantly broader population of issuers.
Key Takeaways
- Form S-3 would become available immediately to many reporting companies. The proposal would eliminate the one-year Exchange Act reporting seasoning requirement and all Form S-3 transaction requirements, including the $75 million public float threshold and the "baby shelf" rules (General Instruction I.B.6). S-3 eligibility would be dependent on Exchange Act reporting status, current and timely reporting, and would prohibit certain specified ineligible-issuers from using Form S-3.
- Public float would no longer determine shelf access or domestic WKSI-style benefits. For domestic issuers, the proposal would replace the current seasoned-issuer and WKSI framework with three tiers: Form S-3 eligible issuers, eligible listed issuers (ELIs) and seasoned eligible listed issuers (SELIs). All Form S-3 eligible issuers would receive certain communication and resale-registration benefits; ELIs would receive additional registration and communication flexibility; and SELIs would be eligible for automatic shelf registration.
- Form S-1 mechanics would be modernized to accommodate backward and forward incorporation by reference. The proposal would eliminate the requirement that an issuer have filed a Form 10-K for its most recently completed fiscal year before backward incorporating by reference on Form S-1. Additionally, forward incorporation by reference would be extended beyond smaller reporting companies to all eligible Form S-1 issuers.
- Funds and insurance-product issuers would receive parallel or tailored relief. Exchange-listed business development companies and registered closed-end funds would receive analogous Form N-2 reforms where feasible, and registered non-variable annuity issuers would receive a Rule 482 advertising pathway with product-specific guardrails.
- Blue Sky preemption would be extended to all registered offerings. Current federal preemption under Section 18(b)(1) of the Securities Act covers only registered offerings of securities listed on a national securities exchange. The SEC proposes to define "qualified purchaser" under Section 18(b)(3) in new Rule 146 to include any person to whom securities are offered or sold pursuant to any registered offering, thereby preempting state registration and qualification requirements for all registered offerings while preserving state antifraud authority.
Expanded Eligibility for Form S-3
General
The centerpiece of the proposal is a fundamental overhaul of Form S-3 eligibility. Under current rules, Form S-3 generally requires at least 12 calendar months of Exchange Act reporting history, current and timely reporting, and satisfaction of transaction-based requirements. For unlimited primary offerings, an issuer generally must have at least $75 million in public float. Issuers below that threshold often rely on the "baby-shelf rule," which caps primary offerings over any 12-month period at one-third of public float and requires exchange listing of the class being offered.
The proposal would eliminate the one-year seasoning requirement and all transaction requirements. An issuer would become eligible to use Form S-3 immediately upon having a class of securities registered under Section 12(b) or 12(g) of the Exchange Act or becoming subject to Section 15(d), so long as it satisfies the current and timely Exchange Act reporting requirements for the applicable lookback period and is not otherwise excluded. The proposal would also eliminate eligibility conditions tied to certain payment defaults, EDGAR filing mechanics and interactive data files.
As the SEC observes, in a typical shelf offering the base registration statement functions mainly as the platform for later takedowns. The prospectus supplement that investors receive only at the time of sale is the document that contains the deal terms, plan of distribution details, pricing, and transaction-specific disclosure. The SEC acknowledges that staff generally does not review Rule 424 prospectuses for individual shelf takedowns because review of the base prospectus at the S-3 registration statement effectiveness stage typically does not encompass the key terms of the transaction, and the prospectus supplement is filed outside of the review process. This observation suggests that the current review architecture is somewhat formalistic and, in certain cases, perfunctory. If the market-facing takedown document is not ordinarily reviewed before sale, there is less justification for denying smaller or newly public issuers access to Form S-3 solely because the base registration statement might receive staff review.
New Eligibility Framework
The proposed amendments would eliminate the one-year seasoning requirement. A company could complete an IPO, become subject to Exchange Act reporting and file a Form S-3 shelf registration statement without waiting 12 months, provided it is current and timely in its Exchange Act reports and is not otherwise excluded. Similarly, a company that becomes an Exchange Act reporting company by registering a class of securities on Form 10 in connection with a spin-off or other transaction would immediately be eligible to use Form S-3.
The SEC would retain the current and timely Exchange Act reporting gating requirement. The proposal would add limited forgiveness for one untimely filing during the relevant lookback period if the filing is made within seven calendar days of the original due date. The seven-day grace period would not cure a failure to furnish Part III Form 10-K information within 120 days after fiscal year end.
Ineligible Issuers
Form S-3 would remain unavailable to specified issuer categories, including "BSP issuers" (which would be defined in Rule 405 to include blank check companies, shell companies and penny stock issuers) as well as issuers with certain disclosure-related criminal, administrative or judicial events and issuers subject to specified Section 8 or Section 8A proceedings. Foreign private issuers, foreign governments, asset-backed issuers, investment companies and BDCs also would be excluded from Form S-3, with separate forms and regimes continuing to apply.
At-the-Market Offerings
By eliminating Form S-3's transaction requirements, the proposal would significantly expand eligibility to conduct at-the-market offerings, opening ATM access to a substantially broader group of issuers. Accordingly, to address investor-protection concerns that could arise from such broader ATM access, the SEC would amend Rule 415(a)(4) to define when a "trading market" exists for ATM purposes. Under the proposed definition, at-the-market offerings would be limited to securities listed and traded on a national securities exchange (or, for unlisted securities, traded in a market designated by the SEC). In determining whether to designate an unlisted market, the SEC would consider attributes such as information reporting, minimum bid price requirements, minimum shareholder requirements, minimum public float, and dollar and share trading volume, among others. The release indicates that, based on their current eligibility criteria, OTCQX and OTCQB would continue to qualify, consistent with historical Commission staff practice, while the proposed designation mechanism would allow the SEC to recognize additional markets, or withdraw recognition of OTCQX, OTCQB or another market, if the relevant market's criteria or operations change. The proposal is, therefore, both an expansion of ATM access and an effort to preserve liquidity, transparency and investor-protection safeguards for the markets in which ATM sales occur.
Former SPACs and De-SPAC Companies
The proposal would treat former SPACs more favorably than the current shell-company lookback might suggest. A domestic issuer would not be deemed a shell company for purposes of the three-year ineligible-issuer lookback solely because it or a predecessor was a SPAC, provided the issuer is not a shell company when it files the Form S-3. In the SEC's view, a company that has completed a de-SPAC transaction should be eligible to use Form S-3 on substantially the same basis as a newly public company that completed a traditional IPO.
Implications for Foreign Private Issuers
The proposed operating-company reforms would not extend to foreign private issuers at this time. FPIs would be prohibited from using Form S-3, even if they report on domestic forms, while the WKSI definition would be retained for FPIs pending the SEC's separate review of the FPI framework. FPIs would continue to use Form F-3 or the MJDS regime where applicable, and foreign issuers that are not FPIs generally would remain eligible to use Form S-3 if they satisfy the form's requirements. Unlike domestic issuers, FPIs would not benefit from the proposed former-SPAC carve-out to the three-year shell company lookback.
Enhanced Registration and Communication Benefits: ELI/SELI Would Replace Domestic WKSI
For domestic issuers, the proposal would eliminate the WKSI definition and replace the existing unseasoned issuer, seasoned issuer and WKSI architecture with three tiers: Form S-3 eligible issuers, eligible listed issuers and seasoned eligible listed issuers. The change would sever WKSI-style benefits from the current $700 million public float and $1 billion registered-debt thresholds.
- All Eligible Issuers. All Form S-3 eligible issuers would be able to rely on Rule 139 issuer-specific research-report treatment, Rule 430B(b) resale omission mechanics and Rule 433 free-writing-prospectus use without prior or accompanying statutory prospectus delivery.
- ELIs. Form S-3 eligible issuers with at least one class of common equity listed on a national securities exchange would receive additional benefits, including pre-filing communications flexibility under Rules 163 and 163A, certain Rule 164 Form S-8 communications benefits, Rule 413 registration of additional securities or classes by post-effective amendment, Rule 430B(a) base-prospectus omission mechanics and pay-as-you-go fee payment under Rules 456(b) and 457(r).
- SELIs. ELIs with at least 12 calendar months and any portion of a month of Exchange Act reporting history immediately preceding the relevant measurement date would be eligible for automatic shelf registration under Rule 462(e).
- Majority-owned subsidiaries. The proposal would preserve parent-level ELI/SELI benefits for certain majority-owned subsidiaries, but conform the mechanics to the new framework. A subsidiary that is not itself an ELI or SELI could rely on its parent's status for specified Form S-3 offerings if the parent and subsidiary are co-registrants on the same registration statement and applicable conditions are met. For guarantee-related offerings, the subsidiary would need to satisfy the proposed Form S-3 ineligible-issuer and prohibited-issuer screens, but not the Exchange Act reporting or current-and-timely requirements. For offerings of non-convertible securities other than common equity, the subsidiary would need to be independently Form S-3 eligible. If the parent is a SELI, the subsidiary could use automatic shelf registration for the offering with the parent as co-registrant.
ELI and SELI status generally would be tested on an annual basis, using determination dates that track Form S-3 filing, Section 10(a)(3) updates and annual-report filing dates. As with the existing WKSI framework, an intervening event generally would not cause the issuer to lose ELI or SELI status before the next determination date.
The exchange-listing predicate does meaningful investor-protection work in the proposed framework. It supplies market infrastructure, exchange listing standards and an additional layer of disclosure discipline. That makes the SEC's request for comment about trading suspensions, delisting notices and pending delisting proceedings especially important.
The SEC specifically requests comment on whether trading suspensions, delisting notices or commenced delisting proceedings should affect ELI or SELI status; a related question is whether the analysis should also reach unresolved material continued-listing deficiencies that have not yet resulted in a formal suspension, delisting notice or delisting proceeding. Because ELI and SELI status rest on the premise that an exchange listing supplies market discipline and public-market infrastructure, unresolved material continued-listing deficiencies, particularly deficiencies tied to minimum market value, public float, bid price or minimum stockholders' equity, could arguably warrant disqualification or suspension of SELI status unless cured or otherwise resolved. A narrower alternative would be enhanced disclosure and an officer certification that no unresolved material continued-listing deficiency exists at the relevant measurement date.
Form S-1: Incorporation by Reference Modernization
For issuers that do not use Form S-3, the proposal would make Form S-1 less cumbersome by expanding both backward and forward incorporation by reference. First, an issuer would no longer need to have filed a Form 10-K for its most recently completed fiscal year before using backward incorporation by reference. In specified circumstances, the issuer could incorporate a Securities Act or Exchange Act filing containing the audited annual financial statements required for Form S-1, together with required post-year-end Exchange Act reports, business updates and disclosure of material changes not otherwise reflected in incorporated filings.
Second, forward incorporation by reference would be extended from smaller reporting companies to all eligible Form S-1 issuers. That change would reduce the need for post-effective amendments, repetitive auditor consent exercises and prospectus updates solely to keep a Form S-1 current. The proposal also would eliminate the website-posting requirement for incorporated reports given their availability on EDGAR, while retaining disclosure of the registrant's internet address, if any.
Even with forward incorporation, Form S-1 would not become a substitute for Form S-3 for delayed primary shelf offerings or primary ATM programs, each of which would continue to require S-3 eligibility. The former-SPAC carveout described above would also apply in the Form S-1 incorporation-by-reference framework.
Business Development Companies and Registered Closed-End Funds
The proposal would extend analogous registration, offering and communications changes to business development companies and registered closed-end funds that register on Form N-2, referred to in the release as affected funds. The proposed amendments would build on the 2020 closed-end fund offering reforms and seek parity with operating companies where feasible.
Exchange-listed affected funds that qualify as ELIs or SELIs would have expanded access to Short-Form N-2. A SELI affected fund would be able to use automatic shelf registration if it satisfies the applicable 12-month Exchange Act and Investment Company Act reporting seasoning requirements. The proposal would also expand Rule 139b research-report treatment by removing the minimum public float requirement, making the safe harbor available more broadly to covered investment funds.
The SEC would not, however, extend Short-Form N-2 to unlisted affected funds. Many unlisted affected funds, including most interval funds, tender offer funds and non-traded BDCs, would continue to rely on the Rule 486 framework, which the SEC views as a tailored offering process for those funds. In that respect, the proposal is not a wholesale transposition of the operating-company model; it is a targeted harmonization designed to provide parity with the operating-company framework where feasible, while preserving the existing Rule 486 process for unlisted affected funds.
Registered Non-Variable Annuity Advertising
The proposal also addresses advertising for registered non-variable annuities. Registered index-linked annuities and registered market value adjustment annuities are now registered on Form N-4, but Rule 482 does not currently provide the same broad advertising pathway for these products that it provides for registered investment company advertisements.
The SEC proposes to amend Rule 482 to permit broad-based advertising for registered non-variable annuities, such as print advertisements, television commercials and similar media, without requiring Form S-3 eligibility or reliance on the Rule 433 free-writing-prospectus framework. The SEC would rescind the special Rule 433 exception for Form S-3 eligible registered non-variable annuity issuers because Rule 482 would become the principal advertising pathway.
The flexibility would come with tailored guardrails. RILA advertisements could not include performance data of the annuity itself, and historical index performance would need to be framed so that it is not presented as RILA performance. Advertisements would also require specified disclosure about the tradeoff between capped upside and protection against index losses, remain subject to Rule 156 antifraud principles and generally be filed with the SEC or FINRA.
Blue-Sky Preemption for All Registered Offerings
Current federal law generally preempts state registration and qualification requirements for listed securities and certain senior securities, but not for every registered offering of unlisted securities. The SEC proposes to use its authority under Section 18(b)(3) of the Securities Act to define qualified purchaser in Rule 146 to include any person to whom securities are offered or sold pursuant to a registered offering. The result would be covered-security status for all registered offerings, with state antifraud authority and notice and fee rights preserved.
This is an overdue rationalization. Registered offerings are national offerings conducted under a federal disclosure regime, with Securities Act liability and SEC rulemaking authority. Requiring state-by-state registration or merit review on top of Securities Act registration can add delay, expense and uncertainty without commensurate investor-protection benefit, particularly where the securities are unlisted only because of product design, issuer size or transaction structure.
The recent SPARC structure illustrates why the preemption change is sensible. A SPARC, or special purpose acquisition rights company, distributes acquisition rights rather than raising cash in a traditional SPAC IPO. The rights generally give holders the option to invest later, after a business combination has been identified and disclosed. In the known SPARC structure, the rights were distributed pursuant to an effective Securities Act registration statement, no proceeds were raised at the initial distribution, and public capital would be raised only after a definitive business-combination agreement and post-effective amendment or prospectus process. Because SPARC acquisition rights may not be listed on a national securities exchange, they fall outside existing listed-security covered-security preemption and become subject to state-by-state blue-sky compliance. Proposed Rule 146 would make the preemption result turn on the federal registration process rather than exchange listing, which should eliminate a significant source of regulatory friction for SPARC rights and similar registered, non-exchange-traded products, including products traded on exchanges other than national securities exchanges, such as tokenized securities.
The same logic applies to compensatory securities awards offerings. The Securities Act Rule 701 exemption is not available to Exchange Act reporting companies. Therefore, a reporting company that intends to issue compensatory equity awards must generally register those securities on Form S-8 or rely on exemptions not specifically designed for compensatory awards, such as Regulation D, assuming all recipients are accredited investors. If the company's securities are not listed on a national securities exchange, however, securities issued under a Form S-8 registration statement do not have the same covered-security path as securities of exchange-listed companies. As a result, the reporting company may still need to comply with applicable state Blue Sky requirements (often including state-level conditions that track, or require compliance with, Rule 701) even though the company is required to file a federal registration statement. Proposed Rule 146 would eliminate this anomaly by tying federal preemption to the fact of federal registration.
Other Amendments: Rule 473, Financial-Statement Age and Conforming Changes
The SEC proposed a number of common sense and quality of life amendments, including:
- Delaying amendments. The SEC proposes to amend Rule 473 so that registration statements that are not otherwise automatically effective would be deemed delayed unless the issuer affirmatively includes a facing-page legend stating that the registration statement will become effective on the twentieth day after filing under Section 8(a). This would eliminate the need for the traditional delaying-amendment legend and reduce the risk of inadvertent effectiveness, which can create Section 15(d) reporting obligations and stop-order issues.
- Age of financial statements. The SEC proposes to remove income-based conditions in Rules 3-01(c) and 8-08(b) of Regulation S-X that currently affect whether a registration statement or proxy statement must include audited financial statements for the most recently completed fiscal year. The change would help loss-generating companies avoid the incongruous result of having to accelerate audit completion or delay a registered offering solely because they cannot satisfy profitability conditions.
- Conforming technical changes to forms. The SEC proposes various conforming and technical amendments across its forms.
Key Implications
The offerings reform proposal could reduce unnecessary complexity, unlock cost savings and facilitate registered capital formation while preserving the core disclosure and liability protections of the federal registration system:
All newly public companies, including those who de-SPACed could become Form S-3 eligible immediately after their IPO/de-SPAC business combination, subject to current and timely reporting and other eligibility conditions. Potential follow-on offerings after a traditional IPO and resale registration statements typical immediately following de-SPAC transactions could be filed on Form S-3.
Smaller public companies and non-WKSIs could obtain an array of WKSI-like benefits as ELIs and, after the seasoning period, automatic shelf eligibility as SELIs. The incentive for existing reporting companies to seek an exchange listing would increase significantly, given that ELI and SELI status would be conditioned on having at least one class of common equity listed on a national securities exchange.
Proposed Rule 146 could meaningfully reduce Blue Sky friction for registered offerings of unlisted securities, including SPARC rights, Form S-8 offerings by non-exchange-listed reporting companies and certain non-traded products. That change may be especially important where exchange listing is absent for strategic reasons.
Comments should be received on or before July 27, 2026.[3]
[1] Statement of Charman Paul S. Atkins in connection with the proposals is available here.
[2] For more information on the proposed amendments to permit optional semiannual reporting by public companies, see the Venable client alert here.
[3] The Federal Register version of the proposal is available here.