On May 19, 2026, the Securities and Exchange Commission (SEC) proposed amendments to certain rules and forms under the Securities Act of 1933, as amended (the “Securities Act”), intended to give issuers greater flexibility in determining the timing and structure of registered offerings and to reduce the cost of conducting those offerings. The SEC proposed these changes to further its goal of facilitating capital formation, one of the three prongs of its mission: “to protect investors, maintain fair, orderly, and efficient markets, and facilitate capital formation.”[1] The SEC believes its proposal is calibrated to ensure investors remain adequately protected while also making it less burdensome to access the public capital markets. For example, many of the proposed changes would be meaningful for issuers that do not currently satisfy the Form S-3 or public float requirements, including many debt-only issuers, and operating companies that entered the public markets through a business combination (a “de-SPAC transaction”) with a special purpose acquisition company (a “SPAC”).

The public comment period on the proposals ended on July 27, 2026, so it remains uncertain whether and when any of the proposed amendments would be adopted, when they might take effect, or what transition provisions, if any, would apply.

The proposed changes can be separated into several categories, discussed below.

One overarching proposal, however, is that any transaction registered under the federal securities laws would preempt state securities (“blue sky”) law registration and qualification requirements. We do not address that proposal in detail in this alert; however, the ramifications of that proposal are undoubtedly significant.

Expanding Form S-3 Eligibility

The SEC is proposing to revise Form S-3’s eligibility requirements to give a broader range of issuers access to the form, which under Securities Act Rule 415 allows delayed primary offerings (“shelf offerings”) and at-the-market (“ATM”) primary offerings. Under the proposed amendments, an issuer, instead of being subject to the current 12-month “seasoning” period, would immediately become eligible to use Form S-3 upon simply filing a Form 10 or a Form 8-A registering a class of securities pursuant to Section 12(b) or 12(g), or becoming subject to Section 15(d), of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

In addition to the elimination of the 12-month “seasoning” requirement for S-3 eligibility, the proposed amendments would eliminate the following current eligibility requirements for usage of Form S-3:

• Public Float Requirement: which currently requires an issuer to have an aggregate market value of voting and non-voting common equity held by non-affiliates (“public float”) of $75 million or more to offer an unlimited amount of securities on Form S-3;
• “No default” conditions: which currently disallow issuers from using Form S-3 if they failed to pay certain dividend or sinking fund installments, defaulted on certain indebtedness or on certain leases; and
• “Baby shelf” limits: which currently limit issuers with less than $75 million of public float that rely on General Instruction I.B.6 to selling no more than one-third of their public float in any 12-month period. Eliminating these limits would give smaller public companies more efficient access to the capital markets, allowing them to raise capital when market conditions are favorable rather than sizing offerings to fit within the one-third-of-float limit.

The current and timely reporting requirements would be retained; however, one significant benefit was added—in addition to the Form 8-K “safe harbor” for late filings, the SEC has proposed a once every twelve month “get out of S-3 jail” provision that would allow issuers not to lose Form S-3 eligibility for a late Exchange Act filing (not covered by the Form 8-K “safe harbor” provisions) so long as the filing is made within seven calendar days of its original due date.

For former SPACs, removal of the seasoning requirement is particularly significant. Currently, these companies must wait 12 calendar months after completing a de-SPAC transaction before they can use Form S-3, leaving them to rely on long-form Form S-1 registration statements during the period when access to capital is often most critical. Under the proposal, former SPACs would be eligible to use Form S-3 on the same basis as companies that went public through a traditional initial public offering (“IPO”), placing them on equal footing with their IPO peers. Additionally, for “debt-only” companies, elimination of the public float requirement would allow those companies to utilize Form S-3 for efficient shelf offerings—an advantage that Form S-1 does not currently provide.

Extending WKSI Benefits (Enhanced Registration and Communication Benefits)

The proposed rules would extend certain benefits currently reserved for “well-known seasoned issuers” (“WKSIs”) and other seasoned issuers to a larger set of issuers.

Currently, to qualify as a WKSI, an issuer must, among other things, meet the registrant requirements of Form S-3 and either (1) have a worldwide public float of $700 million or more or (2) have issued, in the last three years, at least $1 billion aggregate principal amount of non-convertible securities other than common equity in registered primary offerings for cash (not in exchange transactions). WKSI status also is conditioned on the issuer not being an “ineligible issuer” as that term is defined in Rule 405. WKSIs qualify for certain enhanced registration and communication benefits (the “Enhanced Registration and Communication Benefits”) that give eligible issuers more freedom to talk to the market before and during an offering, more flexibility in how they structure and update their shelf registration statements, the ability to use a “pay-as-you-go” system for SEC filing fees rather than paying up front when the registration statement is filed, and—perhaps most significantly—the ability to file a shelf registration statement that becomes effective automatically upon filing, without SEC staff review.[2] The proposal would extend most of these benefits to any exchange-listed company eligible to use Form S-3, but would reserve automatic shelf registration for those companies that have been reporting under the Exchange Act for at least 12 months.

The SEC is proposing to eliminate the WKSI definition (as it relates to all issuers other than foreign private issuers) and establish two new categories of issuers: Eligible Listed Issuer (“ELI”) and Seasoned Eligible Listed Issuer (“SELI”). The SEC proposes to define an ELI as an issuer that meets Form S-3’s proposed registrant requirements and has at least one class of common equity securities listed on a national securities exchange. The SEC proposes to define a SELI as an ELI that has been subject to the Exchange Act’s reporting requirements for a period of at least 12 calendar months and any portion of a month immediately preceding the relevant measurement date. Therefore, with respect to the Enhanced Registration and Communication Benefits, the proposed amendments would eliminate the three current categories of issuers—“unseasoned issuers,” “seasoned issuers,” and “WKSIs”—and create three new tiers: (1) Form S-3 eligible issuers, (2) ELIs, and (3) SELIs. Issuers that are not Form S-3 eligible would not be able to use any of the Enhanced Registration and Communication Benefits.

Under the proposed amendments, SELIs (and foreign private issuers that continue to be WKSIs when filing a Form F-3) would be the only issuers eligible for automatic shelf registration (a benefit currently available only to WKSIs). As the “top” tier of issuers under the proposed framework, SELIs also would be eligible for all the benefits available to ELIs and Form S-3 eligible issuers.

Former SPACs would face an important limitation under the proposed SELI definition. Under the proposal, a successor registrant generally would be deemed a SELI if it and its predecessor, taken together, satisfy the conditions to qualify as a SELI. However, a successor registrant could not count a predecessor’s Exchange Act reporting history toward those conditions for any period during which the predecessor was a SPAC. As a result, a company that goes public through a de-SPAC transaction could not rely on the SPAC’s pre-combination reporting history to satisfy the 12-month reporting requirement for SELI status. While a former SPAC could become eligible to use Form S-3, and potentially qualify as an ELI, shortly after its de-SPAC transaction, it generally would need to build its own 12-month Exchange Act reporting history after the combination before qualifying as a SELI.

Modernizing Form S-1

The proposed amendments would let more issuers utilize both backward and forward incorporation by reference when registering on Form S-1, avoiding duplicative disclosure and related compliance costs. Form S-1 currently permits backward incorporation of previously filed Exchange Act reports only by issuers that meet its eligibility criteria (generally, the issuer must be an Exchange Act reporting company, be current in its reports for the past 12 months, have filed its most recent annual report, and not be, or have been within the past three years, a blank check, shell, or penny stock issuer). Only smaller reporting companies (“SRCs”) may utilize forward incorporation by reference under the current rules.

The SEC proposes to (1) eliminate the General Instruction VII.C requirement that the issuer have filed an annual report for its most recently completed fiscal year, (2) amend Item 12(b) to extend forward incorporation to all issuers otherwise eligible to incorporate by reference, and (3) amend General Instruction I to bar foreign private issuers (“FPIs”) from using Form S-1. Note that while these changes certainly are positive, they do not get issuers to the efficient shelf process that is allowed under a Form S-3—that is because, with the exception of registered offerings for selling shareholders, Rule 415 restricts shelf offerings and ATM offerings to issuers that are eligible to use Form S-3.

Nevertheless, issuers not eligible to use Form S-3 could still benefit from incorporation by reference before filing a Form 10-K, including during their first year as reporting companies. To accommodate this, the SEC also proposes conforming amendments to General Instruction VII.D and Items 11A, 12(a)(1), and 12(a)(2), which generally adapt the form’s incorporation by reference mechanics to issuers that have not yet filed an annual report. General Instruction VII.D, which lists the issuers ineligible to incorporate by reference, would use the proposed “BSP issuer” category, which is described below. Item 12(a)(1), which requires incorporation of the latest annual report, would require incorporation of the Form 10-K for the most recent fiscal year for which a Form 10-K was required to be filed or, for an issuer not yet required to file a Form 10-K, a Securities Act or Exchange Act filing that contains Form 10 information. Items 11A and 12(a)(2), which address material changes and reports filed since the end of the fiscal year covered by the latest annual report, would be measured from the end of the most recent fiscal year covered by the audited annual financial statements required to be included in the Form S-1 under Item 11(e).

Revised General Instruction VII.D.1 would exclude any “BSP issuer,” which refers to Blank check companies, Shell companies, and Penny stock issuers. The proposed definition generally tracks paragraph (1)(ii) of the existing “ineligible issuer” definition in Rule 405, and would capture the same issuers as the current instruction, with one key difference: an issuer would not be a BSP issuer solely because it or a predecessor was a SPAC within the past three years. This SPAC carve-out would not be available to foreign private issuers.

For companies that went public through a de-SPAC transaction, the SPAC carve-out would remove a significant obstacle. Because a SPAC is a shell company, the combined company currently cannot incorporate by reference on Form S-1 for three years after the business combination, even once it is a fully reporting operating company. Under the proposal, a former SPAC that is current in its Exchange Act reports and is not otherwise a BSP issuer could incorporate by reference, both backward and forward, immediately following the de-SPAC transaction. Because General Instruction VII.C would also be eliminated, a company that recently completed its de-SPAC transaction would not need to wait for its first post-combination Form 10-K. Forward incorporation would also help keep its resale registration statements current. The proposed amendments would allow issuers to satisfy their Item 512(a)(1)(i), (ii), and (iii) undertakings under Regulation S-K through Exchange Act reports filed with or furnished to the SEC under Section 13 or 15(d), generally reducing the need for post-effective amendments to the extent the required information is contained in incorporated Exchange Act reports. These issuers, however, would remain ineligible to conduct delayed offerings under Rule 415(a)(1)(x) using Form S-1 because, as mentioned above, that rule restricts delayed offerings to Form S-3 eligible issuers.

That said, most former SPACs that are current and timely in their Exchange Act reporting, are not subject to disqualifying orders, and are not FPIs would generally be able to move to Form S-3 under the proposals, making these Form S-1 changes largely irrelevant to them. The Form S-1 amendments are best viewed as a backstop for former SPACs and other companies (e.g., companies with a late filing during the preceding 12-month period) that fail to meet the Form S-3 requirements. For issuers that qualify for and elect to use backward and forward incorporation by reference, an amended Form S-1 would function much like a short-form registration statement. Important differences between the two forms would remain, however. Most notably, as mentioned above, an issuer could conduct delayed shelf and ATM offerings under Rule 415 only on a registration statement filed, or eligible to be filed, on Form S-3.

Proposed Filer Status Reform

Also on May 19, 2026, the SEC proposed replacing the current five overlapping filer statuses with two principal categories: large accelerated filers (“LAFs”) and non-accelerated filers (“NAFs”). The proposal (Release No. 33-11419 (May 19, 2026), File No. S7-2026-18), a companion release to the Registered Offering Reform proposal, had a comment period that closed on July 20, 2026. As with the offering reforms, the existing filer status definitions continue to apply unless and until the SEC adopts final rules.

Today, SEC reporting companies fall into five partially overlapping filer statuses, each carrying varying deadline requirements for filings and different disclosure requirements and accommodations:

• Large accelerated filers
• Accelerated filers
• Non-accelerated filers
• Smaller reporting companies
• Emerging growth companies (“EGCs”)

The central structural change would eliminate the accelerated filer and SRC categories, so that every company that does not qualify as an LAF would be an NAF.

The LAF threshold would also become more demanding. The public float threshold would increase from $700 million to $2 billion, measured using the average share price over the last 10 trading days of the issuer’s second fiscal quarter of the last two consecutive fiscal years. Once a company is an LAF, that status would continue until its public float falls below $2 billion in each of two consecutive fiscal years. In addition, a company could not become an LAF until it had been subject to Exchange Act reporting for at least 60 consecutive calendar months, compared with 12 months under the current rules.

As a result, every company would begin as an NAF at its IPO and remain one for at least five years (similar to EGC status under current rules). All current accelerated filers, and many current large accelerated filers with public float below $2 billion or fewer than 60 months of reporting, would become NAFs.

The filer status proposal does not include any accommodations specific to SPACs. A SPAC would determine its filer status in the same way as an operating company, so the 60-month reporting period would begin with the SPAC’s IPO. In contrast to the proposed SELI definition, which would disregard a predecessor’s reporting history while it was a SPAC, this approach appears to allow a former SPAC to count the SPAC’s pre-combination reporting toward the 60-month requirement for LAF status.

NAFs would receive the scaled disclosure and other accommodations currently available to SRCs and EGCs, including:

• two years of audited financial statements instead of three;
• scaled executive compensation disclosure, with no pay-versus-performance disclosure;
• no say-on-pay or say-when-on-pay votes; and
• no auditor attestation of internal control over financial reporting.

All registrants, including NAFs, would, however, be required to disclose material unresolved SEC staff comments in their annual reports, an obligation that today applies only to LAFs, accelerated filers and WKSIs.

Filing deadlines for NAFs would remain 90 days for Form 10-K and 45 days for Form 10-Q.

The proposal would also create a new “small non-accelerated filer” subcategory. NAFs with total assets of $35 million or less as of the end of each of their two most recent second fiscal quarters would receive an additional 30 days to file Form 10-K (120 days total) and an additional 5 days to file Form 10-Q (50 days total).

Primarily because EGC status as well as certain accommodations are provided by statute, the proposal would retain the EGC definitions in Exchange Act Rule 12b-2 and Securities Act Rule 405, as well as the EGC check boxes on certain periodic reports and registration statements. The SEC indicated that this information regarding EGC status may remain useful to investors.