On May 19, 2026, the Securities and Exchange Commission (SEC) published a proposing release Registered Offering Reform (the “Proposed Amendments” or the “Proposing Release”) that was intended to facilitate capital formation in the public securities markets. These proposals are part of SEC Chairman Paul Atkins’ agenda to “Make IPOs Great Again.”
The Proposed Amendments and the discussion below apply to domestic companies and not to foreign private issuers.
Key Points
The key points in the Proposed Amendments:
- Expand Form S-3 eligibility.
- Expand the communication and registration benefits currently reserved for “well-known seasoned issuers” (WKSIs) to three new categories of companies that replace WKSIs.
- Expand the ability to incorporate by reference in Form S-1.
- Modify the age of financial statements requirements to allow a company that has reported losses in the last two years or expects to report a loss in the current year to update financial statements based on when the annual report is due.
Expand Form S-3 Eligibility
These Proposed Amendments could potentially save companies considerable time and costs to raise capital and/or have continued access to the public markets, along with increasing the amount that can be raised.
Most of the proposed changes will make it easier for companies to be able to use Form S-3. However, there are several new requirements.
Elimination of Requirements
Length of time for being a reporting company would be eliminated. Currently, a company cannot become Form S-3 eligible until it has been subject to Exchange Act reporting requirements for at least 12 calendar months. This condition is proposed to be eliminated, and a company could become Form S-3 eligible immediately upon becoming subject to the Exchange Act reporting requirements – e.g., filing Forms 10-Ks, 10-Qs, etc.
Minimum Public Float would be eliminated. Currently, a company cannot offer an unlimited amount of securities on Form S-3 unless its public float at the applicable measurement dates is $75 million or more. Companies that have a public float of less than $75 million can file on Form S-3 that is known as a “Baby Shelf Registration Statement”. Under the current rules, these companies are limited to offering only one-third of their public float in a 12-month period. Additionally, a company could not have a Baby Shelf Registration Statement if it was a shell company during the last 12 months.
Other conditions would be eliminated. Currently, a company is not eligible to file Form S-3 if they have (i) not filed all required electronic filings and submitted all required Interactive Data Files (XBRL) and (ii) failed to pay a dividend or sinking fund installment on preferred stock or defaulting on indebtedness for borrowed money or on any rental on long-term leases. The provisions currently required for Form S-3 eligibility would also be eliminated.
New Requirements
The Proposed Amendments would not allow a company to use Form S-3 if it or its predecessor was a (i) a blank check company, (ii) penny stock issuer or (iii) a shell company other than a business-combination-related shell company. These companies are referred to as a “BSP issuer.” However, a former SPAC would not be deemed to be a shell company, and as a result would not be a BSP issuer, solely because it or any of its predecessors was formerly a SPAC.
To address potential investor protection concerns, a company must be listed on a national securities exchange or traded in a market specifically designated by the SEC to conduct an at-the-money (ATM) offering using Form S-3.
What Will Not Change
Consistent with existing rules to be Form S-3 eligible, the company must be current and timely in its Exchange Act reporting – Sections 13(a), 14(a), 14(c) and 15(d) – during the last 12 months – the 12-month lookback period – except as noted below.
The Proposed Amendments provide an accommodation that does not exist under the current rules. Under the Proposed Amendments, a company would not lose Form S-3 eligibility if it is late with one Exchange Act filing during the 12-month lookback period provided it was filed within seven calendar days. This period is inclusive of any time provided by Rule 12b-25 for an extension to file.
Expand the Communication and Registration Benefits of WKSIs to Three New Categories of Companies That Replace WKSIs
Currently companies meeting certain conditions can file as a WKSI. Some of the advantages of filing a Form S-3 as a WKSI include:
- Relaxed Communication Rules: They are permitted to use a free writing prospectus and are subject to fewer restrictions regarding communications with prospective investors.
- Simplified Base Prospectuses: Certain information can be excluded from their base prospectus until an offering takes place.
- Automatic Shelf Registration: The registration statement becomes effective upon filing and therefore it is not subject to SEC review and taking action to declare the registration statement effective. This allows a company to go to market faster and on a predictable time schedule.
Currently, to qualify as a WKSI, a company must have at least $700 million in public float or have issued at least $1 billion in aggregate principal amount of nonconvertible securities in registered offerings over the prior three years.
Under the Proposed Amendments, which would eliminate the use of the term WKSI, the accommodations that are currently limited to a WKSI will be available to a much larger group. There will be no minimum public float requirement.
There would be three categories of companies that build on each other regarding accommodations:
Form S-3 Eligible Issuer: A Form S-3 eligible issuer are those Exchange Act reporting companies, other than specified ineligible issuers (e.g., BSP issuer), which are current and timely in their Exchange Act reporting. Some of the benefits that were limited to WKSIs would be available to all Form S-3 Eligible Issuers.
Eligible Listed Issuers (ELIs): An eligible listed issuer would be a Form S-3 eligible issuer that has at least one class of common equity securities listed on a national securities exchange. An ELI will have most of the benefits of a WKSI except automatic shelf registration.
Seasoned Eligible Listed Issuer (SELI): A seasoned eligible listed Issuer would be an ELI that has been subject to Exchange Act reporting requirements for at least 12 months. A SELI would be able to file an automatic shelf registration statement.
A SELI has substantially the same benefits as a WKSI but with no public float requirement. Accordingly, under the Proposed Amendments, companies that are listed on a national exchange and are timely and current with their Exchange Act reporting requirements will have the same benefits regarding communications and having the ability to file an automatic shelf registration statement that were previously limited to large companies that were WKSIs. The requirement to be listed on a national exchange is new; this was not a requirement to be a WKSI.
Expand the Ability to Incorporate by Reference Into Form S-1
Many companies that historically were not eligible to file on Form S-3 will be able to do so if the Proposed Amendments are adopted. However, a number of companies will still file registration statements on Form S-1 after becoming an Exchange Act reporting company.
The Proposed Amendments would make three significant changes to Form S-1’s incorporation by reference regime that will benefit many companies.
Eliminate the requirement that a company must have filed a Form 10-K for its most recently completed fiscal year to be eligible to use backward incorporation by reference (incorporating filings that have been made before the effective date of the registration statement).
The Proposed Amendments would extend forward incorporation by reference (incorporating filings that will be made after the effective date of the registration statement) to all companies that otherwise meet Form S-1’s incorporation by reference requirements, eliminating the current limitation that restricts this benefit solely to smaller reporting companies.
Companies that have gone through a de-SPAC transaction will be able to incorporate by reference. Currently if a company or its predecessor were a shell company, other than a business-combination related shell company, it could not incorporate by reference for three years after the de-SPAC transaction. As described above, a company would not be deemed to be a shell company, and as a result a BSP issuer, solely because its predecessor was formerly a SPAC.
A company will still need to be current in its Exchange Act reporting to be able to incorporate by reference.
Modify the Age of Financial Statements Requirements
Currently, audited financial statements for the most recent year are required if the registration statement/proxy is filed/goes effective/mailed more than 45 days after year end if the company has (i) incurred a loss in the two most recent fiscal years or (ii) expects to incur a loss in the current fiscal year. If the company is profitable and current in its Exchange Act reporting, its financial statements would become stale on the same day the Form 10-K is due.
Under the Proposed Amendments, a company that is current in its Exchange Act reporting would not need to include annual financial statements in a registration or proxy statement until the Form 10-K is due, regardless of profitability.
Should Your Company Provide a Comment Letter?
The SEC encourages all interested parties to provide their perspective on the Proposing Release. The Proposing Release is long at 511 pages. However, a large portion relates to areas of regulatory requirements that are not necessary to read to understand the Proposed Amendments and implications. The core of the Proposing Release is 203 pages.
There are 117 specific questions in the Proposing Release – excluding questions regarding the Economic Analysis. A company is not required to address all or any of the questions. The response can simply provide the responder’s perspective on the Proposed Amendments. If a company wants to submit a response, it should follow this process. Comment letters are due July 27, 2026. As with all proposed rules, the SEC posts Comment Letters they receive.
Please contact CBIZ CPAs if you have questions about the Proposed Amendments.
Frequently Asked Questions
The Proposed Amendments are designed primarily to modernize the registered offering framework and expand the availability of shelf registration to more companies by eliminating certain eligibility requirements.
If adopted as proposed, more companies could use Form S-3 for shelf offerings and other registered offerings regardless of public float. The Proposed Amendments would eliminate the current “baby shelf” limitations and expand to more companies certain offering communication and registration benefits that are currently limited to larger companies.
Yes. BSP issuers – as defined – cannot use Form S-3. Additionally, to conduct an at-the-money offering using Form S-3 the shares must be traded on a national securities exchange or a market specifically designated by the SEC.
Yes, a company must be current and timely in its Exchange Act reporting.
Yes. To be an ELI or SELI the company must be listed on a national securities exchange. Additionally, to be a SELI, an ELI must have been subject to the Exchange Act reporting requirements for at least 12 months.
The three main benefits of being a SELI include (i) relaxed communications rules, (ii) simplified base prospectus and (iii) the ability to use automatic shelf registration.
Other than BSP issuers, all companies that are current in their Exchange Act reporting will be able to incorporate by reference into Form S-1
Smaller and mid-sized public companies could benefit from faster access to capital markets, reduced compliance costs, and simplified disclosure obligations.
Companies that incurred a loss in the two most recent fiscal years or expect to incur a loss in the current fiscal year will not be required to update their financial statements more than 45 days after year end; rather, the financial statements can be updated in a registration statement or proxy statement based on when Form 10-K is due.
No. The Proposed Amendments only apply to domestic issuers.
These are Proposed Amendments, not final rules. Any final effective date would depend on whether and when the SEC adopts the proposals after reviewing comments.
Companies should monitor the rulemaking process, assess how the proposed changes may affect capital-raising plans and disclosure obligations, and consider whether to submit comments during the public comment period. It may also be helpful to discuss the potential impact with securities counsel and accounting advisors.
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