On May 19, 2026, the US Securities and Exchange Commission (SEC) proposed a broad set of amendments intended to reform the registered offering framework under the Securities Act of 1933. According to the SEC, the proposed amendments are designed to facilitate capital formation, give smaller public companies access to shelf registration statements, reduce regulatory burdens associated with registered offerings, and modernize existing registration and communication rules. The proposal would broaden eligibility for Form S-3, expand certain registration and communication accommodations currently available primarily to Well-Known Seasoned Issuers (WKSIs), broaden incorporation-by-reference provisions in Form S-1, amend requirements applicable to certain business development companies (BDCs) and registered closed-end funds, permit broader advertising of certain insurance products, and preempt state registration and qualification requirements for SEC-registered offerings.
This legal update summarizes the key takeaways of the SEC’s proposed registered offering reform.
Expanded Use of Form S-3
A principal component of the proposal is the expansion of eligibility to use Form S-3. The SEC proposes eliminating the current requirement that an issuer must have been a reporting company under the Securities Exchange Act of 1934 (the “Exchange Act”) for at least 12 calendar months before being eligible to file a Form S-3 registration statement. The proposal would also eliminate all of Form S-3’s transaction requirements, including the requirement that an issuer have a public float of at least $75 million in order to conduct unlimited offerings on Form S-3. Issuers would still be required to be timely in their Exchange Act filings and would prohibit certain ineligible issuers from using Form S-3, but an issuer that has a late filing within the last 12 months would be deemed current and timely for Form S-3 purposes if (i) the late filing was made within seven calendar days of the original due date and (ii) the issuer had only one late filing during the relevant lookback period. Also, former special purpose acquisition companies (SPACs), which initially were formed specifically for the purpose of identifying a private target and that have successfully completed a de-SPAC transaction by combining with such a target, should be eligible to use Form S-3 to the same extent as a newly public company that conducted a traditional IPO. The SEC believes the proposed amendments would significantly increase the number of issuers eligible to conduct offerings on Form S-3 and could increase by more than 60 percent the number of issuers eligible to offer an unlimited amount of securities using that form.
Enhanced Registration and Investor Communications Benefits
The SEC’s proposal also seeks to expand the availability of what the SEC describes as “Enhanced Registration and Communication Benefits,” which are currently available primarily to WKSIs. Under the existing SEC framework, WKSI status generally requires either a public float of at least $700 million or the issuance of at least $1 billion aggregate principal amount of qualifying non-convertible securities. The SEC proposes to remove those thresholds as eligibility criteria for the enhanced accommodations and replace WKSI status with two new categories: Eligible Listed Issuers, or ELIs, and Seasoned Eligible Listed Issuers, or SELIs.
Issuers generally would qualify as ELIs if they are eligible to use Form S-3 and have at least one class of common equity securities listed on a national securities exchange. Issuers further qualify as SELIs if they are ELIs that have been subject to Exchange Act reporting for at least 12 calendar months. Examples of the enhanced benefits to ELIs include greater flexibility in communicating with investors before and after registration statement filings, the ability to register securities by class without specifying a limit on the aggregate amount that may be offered, and the ability to pay registration fees at the time of a shelf takedown rather than when the registration statement is initially filed. SELIs are further eligible for automatic effectiveness of certain shelf registration statements. The SEC estimates that these amendments could increase by more than 200 percent the number of issuers eligible for all such benefits.
Expanded Form S-1 Incorporation by Reference
Another significant aspect of the proposal concerns incorporation by reference in Form S-1 registration statements. In particular, the SEC proposes expanding both backward and forward incorporation by reference. The SEC’s current rules generally limit backward incorporation by reference to issuers that have filed an annual report on Form 10-K for their most recently completed fiscal year, while forward incorporation by reference is generally limited to issuers that qualify as smaller reporting companies, or SRCs. Under the proposed amendments, eligible Form S-1 issuers would be permitted to incorporate previously filed documents by reference regardless of whether they have filed a Form 10-K for their most recently completed fiscal year and would be permitted to incorporate future filings by reference regardless of SRC status.
State “Blue Sky” Preemption
The proposal includes amendments intended to preempt state “blue sky” securities law registration and qualification requirements for SEC-registered offerings. Under current SEC regulations, state blue sky preemption is limited to offerings of securities listed or approved for listing on national securities exchanges. The proposal would extend blue sky preemption to all SEC-registered offerings, including offerings of securities not listed on a national securities exchange. Nevertheless, states would continue to have the ability to enforce state antifraud statutes. According to the release, the SEC views this proposal as a means of reducing costs and complexity associated with conducting registered offerings.
BDCs and Closed-End Funds
The SEC proposes corresponding amendments affecting certain business development companies and registered closed-end investment companies that register securities on Form N-2.
Insurance Product Advertising
The SEC proposes to amend the advertising rule available for variable annuities under Rule 482 to permit its use by insurance companies advertising registered index-linked annuities and registered market value adjustment annuities under certain circumstances.
Next Steps
Comments on the SEC’s registered offering reform proposal are due July 27, 2026. The SEC will review public comments and must vote again to finalize the proposed rules. The proposal is part of a broader set of public company reforms, including related proposals that would change the public company filer status framework and permit public companies to file financial results semiannually on new Form 10-S rather than quarterly.
