In two companion releases—Registered Offering (Reform Release No. 33-11418) and Enhancement of Emerging Growth Company Accommodations and Simplification of Filer Status for Reporting Companies (Release No. 33-11419)—the SEC proposes to expand shelf registration access to substantially all reporting companies, replace the well-known seasoned issuer (WKSI) construct with a new tiered framework for listed companies, preempt state blue sky registration for all registered offerings, broaden research report safe harbors and simplify the public company reporting framework by reducing the existing five partially overlapping filer statuses into two primary categories-large accelerated filers (LAFs) and nonaccelerated filers (NAFs)—while extending nearly all disclosure accommodations currently available to emerging growth companies (EGC).
The SEC estimates that, if adopted, the registered offering reform proposal would increase the number of companies eligible to offer an unlimited amount of securities on Form S-3 by more than 60% and the number of companies eligible for WKSI-equivalent registration and communication benefits by more than 200%. Newly public companies, smaller reporting companies, companies that have gone public through a business combination with a special purpose acquisition company (deSPAC companies), and their sponsors, stand to benefit most.
Chairman Atkins, in his statement1 accompanying the proposals, framed the package as part of a broader agenda to reduce the costs of being a public company and to incentivize companies to “go and stay public.” Comments are due on or before July 27, 2026, 60 days after publication in the Federal Register.
This note summarizes the registered offering reform proposal and our preliminary observations. A companion note addresses the Enhancement of Emerging Growth Company Accommodations and Simplification of Filer Status for Reporting Companies rule proposal.
Expansion of Form S-3 shelf registration eligibility
Under the current rules, a company must (a) have been reporting under the Exchange Act for at least one year, and (b) meet the USD75 million public float threshold to use Form S-3 for primary offerings without certain restrictions. For example, primary offerings by companies with less than USD75m in public float are currently limited to no more than one-third of the company’s public float in any rolling 12-month period (the so-called “baby shelf” limitation).2 The most significant element of the registered offering reform is the proposed elimination of these two requirements for Form S-3 eligibility.
Under the proposal, a company would be eligible to use Form S-3 if it simply has a class of securities registered pursuant to Section 12(b) or 12(g), or is required to file reports pursuant to Section 15(d) of the Exchange Act. That would effectively make all public companies S-3 eligible, allowing a much greater number of public companies to conduct shelf offerings, thereby permitting quicker access to the public capital markets, regardless of public float.
The proposals would enable smaller public companies to access the shelf registration system and use its associated benefits, such as the ability to time offerings to market windows and reduced transaction costs. The elimination of the seasoning requirement is particularly significant for companies that have recently become public, which under current rules cannot file a Form S-3 shelf registration statement until they have been reporting for at least 12 full calendar months.
If adopted as proposed, a company would be eligible to use Form S-3 immediately after its IPO and could, subject to the customary 180-day contractual clear market period and lock-up periods, file (or confidentially submit) a Form S-3 shelf registration statement for a follow-on offering shortly thereafter.
The expansion of Form S-3 eligibility and the elimination of the public float threshold for shelf registration would significantly expand the universe of companies eligible for overnight marketed offerings, block trades and at-the-market (ATM) programs. Underwriters should expect increased demand for shelf-registered equity and debt offerings from smaller public companies that previously lacked shelf registration access. Newly listed registered closed-end funds and business development companies (BDCs) would also gain easier access to ATM programs. At the same time, the compressed timelines associated with earlier post-IPO shelf takedowns may heighten diligence challenges for underwriters, particularly with respect to newly public companies whose disclosure controls, financial reporting processes and public-company track record may be untested. The proposal would, however, limit ATM offerings to securities listed on a national securities exchange or on trading markets designated by the SEC.
The proposal would retain the requirement that a company be current and timely in its Exchange Act reporting during the 12-month lookback period. An important proposed modification is the introduction of a limited seven-day cure period, meaning a late filing would not cause a loss of Form S-3 eligibility so long as the filing is made within seven calendar days of the original due date (calculated without regard to any Rule 12b-25 extension). The cure would be available only once during the 12-month lookback period. The cure period would be available to periodic reports and current reports on Form 8-K. The proposed rule does not change the items of Form 8-K reporting that are tied to Form S-3 eligibility.
The proposal would also eliminate the Form S-3 eligibility conditions tied to the failure to make payments and defaults conditions3 (including those tied to dividends, sinking fund installments and material defaults on indebtedness or long-term leases) and electronic filing and XBRL.4
Primary shelf registrations would continue to expire three years after filing, and the proposal would not change the existing registration or disclosure framework for financings that include subsidiary debt guarantors.
Incorporation by reference into Form S-1
The proposal would also significantly expand a company’s ability to incorporate information by reference into Form S-1. It would eliminate the current requirement that an issuer have filed a Form 10-K for its most recently completed fiscal year before being able to incorporate by reference, and it would extend forward incorporation by reference—currently available on Form S-1 only to smaller reporting companies—to all companies that meet the incorporation-by-reference requirements. Companies that have not yet filed a Form 10-K would be permitted to incorporate by reference Form 10 information from an initial registration statement on Form S-1 or Form 10 (or another form, such as a so-called “Super 8-K”).
The proposal would also remove the existing income-based conditions for extending the 45-day grace period for audited financial statements. As a result, smaller reporting companies that have filed all required Exchange Act reports would generally have 90 days after fiscal year end, and reporting companies that are not smaller reporting companies that have filed all required reports would generally have until the due date of their Form 10-K, to include audited financials in a registration statement or proxy statement. In combination with the filer status proposal—which would extend smaller reporting company treatment to all non-accelerated filers, including newly public companies—an IPO company or non-accelerated filer would effectively have 90 days after fiscal year end before audited financial statements for the most recently completed fiscal year are required, which would expand the early-March offering window for calendar year companies that cannot satisfy current income-based conditions, subject to any considerations related to the delivery of comfort letters.
New Eligible Listed Issuer and Seasoned Eligible Listed Issuer framework
Under the current framework, Well-Known Seasoned Issuers (or WKSIs, which are companies with at least USD700m in worldwide public common equity float held by non-affiliates, or that have issued at least USD1 billion in registered non-convertible debt securities in the preceding three years) enjoy the most generous registration and communications accommodations, including the ability to file automatically effective shelf registration statements and use free writing prospectuses at any time. The proposal would eliminate the WKSI framework for domestic companies and replace it with a three-tier framework consisting of:
- Form S-3 Eligible Issuers
- Eligible Listed Issuers (or ELIs)
- Seasoned Eligible Listed Issuers (or SELIs).
These three categories, together, would extend many of the existing registration and communication flexibilities to a much broader population of listed companies, without regard to public float or prior registered debt issuances.
Under the proposed framework, all Form S-3 eligible issuers regardless of whether they are exchange-listed (even those that are neither ELIs nor SELIs) would benefit from:
- the Rule 139 research safe harbor for participating broker-dealers
- the ability under Rule 430B(b) to omit selling security holder information and the amounts of securities registered on their behalf from a resale registration statement
- the ability under Rule 433 to use a free writing prospectus without being preceded or accompanied by a Section 10 prospectus.
An ELI would be any Form S-3 eligible issuer that has at least one class of common equity listed on a national securities exchange, and would additionally gain access to:
- pre- and post-filing communications flexibility under Rules 163, 163A and 164
- the ability to register additional securities by post-effective amendment under Rule 413
- the ability to omit certain information from a base prospectus under Rule 430B(a)
- “pay-as-you-go” registration fee payment flexibility under Rules 456(b) and 457(r).
A SELI would be an ELI that has been subject to Exchange Act reporting for at least 12 calendar months. Importantly, only SELIs would be eligible for automatic shelf registration under Rule 462.
ELI and SELI status would be determined on the latest of:
- the date the company files its Form S-3
- the date of the most recent Section 10(a)(3) amendment (or its due date)
- the date of the company’s most recent Form 10-K.
A company would retain its status until the next determination date even if intervening events would otherwise have caused a loss of status. As a result, ELI and SELI status would be determined on an approximately annual basis.
This is a material development for mid-cap companies that currently fall between the Form S-3 and WKSI thresholds—such companies would gain meaningful communication and registration flexibility without regard to their public float.
Notably, companies that currently qualify as WKSIs solely on the basis of their USD1bn of registered non-convertible securities issuances and that do not have listed common equity would not qualify as ELIs or SELIs and would therefore lose access to the WKSI benefits they enjoy today. Most importantly, these debt-only registrants would not be able to file automatically effective registration statements on Form S-3.
The broadened WKSI-type communication flexibility afforded to ELIs and SELIs should allow offering participants to engage more freely with investors during the marketing process, potentially accelerating deal execution timelines and improving price discovery. Private equity sponsors in particular could expect faster access to follow-on offerings and secondary sales following an IPO, as portfolio companies would be eligible for Form S-3 shelf registration without the current one-year seasoning period—though customary lock-up arrangements would continue to constrain timing.
Modification of delaying amendments
The proposal would amend Rule 473 to eliminate the traditional “delaying amendment” practice. Under the current system, companies include a delaying amendment legend on the cover page of a non-automatic registration statement to prevent it from going effective by lapse of time before the SEC staff completes its review. Under the proposal, the default would be reversed so a registration statement (other than one that becomes effective automatically) would be deemed delayed unless the company affirmatively includes language on the cover stating that the registration statement is to become effective in accordance with Section 8(a) of the Securities Act. This change is intended to minimize foot faults in which a registration statement inadvertently goes effective 20 days after filing.
Expanded broker-dealer research report coverage
The proposal would expand the circumstances under which broker-dealers can provide research report coverage for public companies in connection with registered offerings. Under the current framework, the safe harbors in Rules 137, 138, and 139 of the Securities Act provide varying levels of protection depending on a company’s reporting history, the broker-dealer’s involvement in the offering and Form S-3 eligibility.
The new proposal would further broaden these safe harbors to cover a greater number of public companies, consistent with the overall expansion of Form S-3 eligibility, which could support broader analyst coverage of small and mid-cap companies.
State securities law preemption for all registered offerings
A notable provision is the proposed preemption of state securities law registration and qualification requirements for all registered offerings. Under current law, Section 18 of the Securities Act preempts state registration requirements for “covered securities,” which include, among other things, securities listed on a national securities exchange and securities sold to qualified purchasers. Certain registered offerings, however, such as those by smaller companies whose securities are not listed on a national exchange, may still be subject to state blue sky requirements.
The proposal would extend federal preemption to all registered offerings, including offerings of unlisted securities, by amending the definition of “qualified purchaser” under Section 18(b)(3) of the Securities Act to include any person to whom securities are offered or sold in a registered offering. States would retain antifraud enforcement authority, the ability to require notice filings and fees and the power to suspend offer or sale of securities within the State due to failure to submit any required filing or fee under Section 18(c). This change would eliminate a significant practical barrier for smaller reporting companies and for non-exchange-traded products distributed through private wealth channels (such as non-traded listed Real Estate Investment Trusts (REITs) and BDCs) that currently must navigate a patchwork of state registration requirements.
The proposal is also likely to simplify the subscription process for institutional investors participating in registered deals by smaller companies that, combined with the expansion of shelf registration, would likely increase the frequency and availability of registered offerings by a broader range of issuers, providing more investment opportunities with the protections of the Securities Act registration framework to investors.
Ineligible issuers and deSPACs
The proposal would import aspects of the existing Rule 405 “ineligible issuer” concept into Form S-3 eligibility, with a three-year lookback. “Ineligible” Form S-3 issuers would include blank check companies, shell companies (other than former SPACs) and penny stock issuers, issuers with certain criminal convictions or antifraud-related orders tied to disclosure misconduct (including those that have been ordered, or have a subsidiary that has been ordered, to cease and desist from violating the federal securities antifraud provisions in the past three years in connection with certain registration statements, exempt offering materials or Exchange Act filings), and issuers subject to certain Section 8 proceedings.
Importantly, a company that went public by completing a business combination with a SPAC would no longer be treated as an ineligible issuer and would be eligible to use Form S-3, and to qualify as an ELI or SELI, on the same terms as a traditional IPO company. Note, however, that for purposes of determining whether a former SPAC qualifies as a SELI, the SEC has indicated that the company would not be permitted to take into account the Exchange Act reporting history of the former SPAC.
The proposal would not, however, amend Rule 144(i) (which imposes a rolling 12-month current public information requirement on resales of securities issued by deSPACed companies that never sunsets) or Rule 145 (which deems certain parties involved in a deSPAC transaction to be statutory underwriters), so deSPACed companies would continue to be treated differently in these respects. Taken as a whole, the proposed change effectively eliminates the current multi-year wait before a deSPACed company can access WKSI-equivalent benefits, allowing those companies to be treated like traditional IPO issuers for shelf eligibility purposes.
Under the current rules, ineligible issuer status under Rule 405 resulted in a loss of WKSI status and the ability to file an automatically effective shelf registration statement, but Form S-3 generally remained available. The expanded ineligible-issuer construct, which would disqualify subject companies from using Form S-3 completely, is a significant and meaningful proposed change. We expect this change to see resistance from large, seasoned issuers (including financial institutions) whose operations depend on unrestricted capital markets access.
Parity for Form N-2 filers and insurance product advertising
The proposal would maintain parity for business development companies and registered closed-end funds that register on Form N-2 by removing the seasoning and public float requirements and extending registration and communication benefits similar to those available under the new ELI/SELI framework. Exchange-listed funds would qualify as ELI affected funds, and ELI affected funds that have been subject to Exchange Act and Investment Company Act reporting for at least 12 months would qualify as SELI affected funds (with automatic shelf registration reserved for SELI affected funds). The existing Rule 486 framework would continue to apply to most unlisted affected funds, including most interval funds, tender offer funds and non-traded BDCs.
No impact on foreign private issuers
The proposed rules would generally not extend to foreign private issuers (FPIs). FPIs would be prohibited from using Form S-3 (including those currently reporting on domestic forms) and would not be eligible to qualify as ELIs or SELIs. FPIs that are WKSIs today would retain WKSI status and would continue to use Form F-3. The SEC indicated that broader changes affecting FPIs will be deferred pending completion of its separate review of the FPI framework launched by its June 2025 concept release.
Key considerations and takeaways
Key points for companies, underwriters and investors to consider include:
- S-3 for (almost) all. The elimination of the seasoning and public float requirements would, by the SEC’s own estimates, expand Form S-3 eligibility to offer an unlimited amount of securities by more than 60% and the universe of issuers eligible for WKSI-equivalent benefits by more than 200%. Companies that recently completed an IPO, companies with a public float below USD 75m and deSPAC companies would all gain shelf access on substantially the same terms as their larger and more seasoned peers.
- Notably, the proposal would retain a one-year seasoning requirement for filing an automatically effective Form S-3, so a company that just recently completed an IPO and has likely gone through a thorough SEC staff review will have to file a Form S-3 and wait for the SEC staff to determine whether it will review the filing (the SEC staff rarely reviews) before the registration statement will be declared effective and the offering can be completed.
- The proposed expanded ineligible-issuer construct, which would disqualify subject companies from using Form S-3 completely rather than just WKSI eligibility, is a meaningful proposed change that could have significant impact on financial services companies.
- Goodbye to WKSI. A new ELI/SELI vocabulary will replace “WKSI” for domestic companies. For the time being, FPIs will continue to use the WKSI status.
- Public debt-only issuers that are currently eligible for WKSI status will no longer be able to access markets using an automatically effective shelf registration statement.
- Diligence and liability standards. Section 11 and Section 12 liability and the underwriter due diligence defense are unaffected by the rule proposal. Under the rule proposal, less seasoned companies will now gain shelf and WKSI-equivalent access. Underwriters should consider enhancements to standard diligence protocols to address a new group of companies, particularly for first-time shelf takedowns by newly public or smaller companies.
- State blue sky preemption for all registered offerings. Preemption of state merit review and registration requirements for all registered offerings, including unlisted equity offerings, would meaningfully reduce friction for non-traded REITs, non-listed BDCs and other products distributed through private wealth channels, while preserving current state antifraud authority, notice-filing rights and suspension powers.
- Smaller companies, newly public companies and deSPACed companies are big winners. Some of the biggest beneficiaries of these rule proposals are companies with less than a USD75m public float, companies that have just completed an IPO and deSPACed companies and their private equity sponsors looking for faster follow-on and secondary liquidity.
Next steps
Comments on the proposal are due on or before July 27, 2026, 60 days after publication in the Federal Register. Although adoption before year end appears unlikely, final rules could nonetheless take effect in time to impact 2027 registered offering activity.
The A&O Shearman Capital Markets practice stands ready to assist clients in evaluating the impact of these proposals on their businesses, preparing comment letters, and developing implementation plans in anticipation of final rules.
Footnotes
1 Paul S. Atkins, Chairman, SEC, Statement on Proposing Registered Offering Reform and Enhancement of Emerging Growth Company Accommodations and Simplification of Filer Status for Reporting Companies (May 19, 2026), https://www.sec.gov/newsroom/speeches-statements/atkins-statement-on-proposing-releases-for-enhancement-of-emerging-growth-company-accommodations-and-simplification-of-filer-status-for-reporting-companies-and-registered-offering-reform-051926.
2 See Form S-3 General Instruction I.B.6, 17 C.F.R. § 239.13(b)(6) (2026).
3 See General Instruction I.A.4, 17 C.F.R. § 239.13(a)(4) (2026).
4 See General Instructions I.A.7(a) and (b), 17 C.F.R. § 239.13(a)(7)(i)–(ii) (2026).
