Alert

On May 19, 2026, the Securities and Exchange Commission (the “SEC”) issued two related proposals that, if approved, would change how public companies raise capital in registered offerings and the frequency with which they report to the SEC. The first proposal would substantially expand which issuers would be eligible to use Form S-3 and conduct shelf offerings.[i] The second proposal would reduce the current five filer-status categories to two, raise the public float threshold for large accelerated filer status, and make scaled disclosure and other accommodations available to most public companies. The SEC describes the offering proposal as the most significant change to the registered offering framework in more than 20 years.[ii]

Together, the proposals are intended to encourage more companies, particularly smaller and mid-sized companies, to go and remain public. Much of the relief would extend accommodations already available to smaller and emerging companies to a broader group.[iii] Among other things, the proposals would:

• Expand Form S-3 eligibility for primary offerings to significantly more issuers, regardless of public float;
• Extend registration and offering communication flexibilities currently limited to “well-known seasoned issuers” (“WKSIs”) to a broader group of issuers;
• Preempt State securities law registration and qualification requirements for all registered offerings;
• Replace the five existing filer-status categories with two categories: large accelerated filers and non-accelerated filers, and raise the large accelerated filer public float threshold from $700 million to $2 billion;
• Exempt all non-accelerated filers from auditor internal control attestations, and grant them the same accommodations as smaller reporting companies and emerging growth companies; and
• Create a new sub-category of “small non-accelerated filers” with extended periodic report filing deadlines.

I.  Registered Offering Reform

Form S-3 Eligibility

The proposal would substantially ease Form S-3 eligibility. It would remove the 12-month Securities Exchange Act of 1934 (the “Exchange Act”) reporting history requirement and Form S-3’s transaction requirements, including the $75 million public float threshold for registering an unlimited amount of securities. That change would also eliminate the “baby shelf” rule, which now limits an issuer with less than $75 million in public float to selling no more than one-third of that float in primary offerings over any 12-month period. Issuers would still be required to be up to date on their SEC reports, and “ineligible issuers” could not use Form S-3.

Incorporation by Reference on Form S-1

The proposal would expand Form S-1’s incorporation by reference rules. Issuers could incorporate information by reference into a Form S-1 filed before the registration statement becomes effective (backward incorporation), even before filing their latest annual report. Issuers could also incorporate information filed after the effective date (forward incorporation), even if they are not smaller reporting companies.

Enhanced Registration and Communication Benefits

A set of registration and communication benefits is currently limited to WKSIs, which generally must have a $700 million public float or $1 billion in non-convertible securities issued over the past three years. The proposal would eliminate the WKSI category for most domestic issuers, keeping it only for foreign private issuers, and create two new categories:

• Eligible Listed Issuer (“ELI”): an issuer that meets the proposed Form S-3 registrant requirements and has at least one class of common equity securities listed on a national securities exchange; and
• Seasoned Eligible Listed Issuer (“SELI”): an ELI that has been subject to the Exchange Act’s reporting requirements for at least 12 months.

ELIs would receive most WKSI registration and communication flexibilities; SELIs would also be able to use automatic shelf registration. ELI and SELI status would be tested annually on the current WKSI determination dates.

Preemption of State Securities Law Requirements

The proposal would define “qualified purchaser” under Section 18(b)(3) of the Securities Act of 1933 (the “Securities Act”) to preempt state securities law registration and qualification requirements for any registered offering. Today, that preemption applies only to registered offerings of securities listed, or approved for listing, on a national securities exchange.. Extending preemption would reduce the cost and complexity of clearing state registration and qualification requirements for registered offerings of unlisted securities. The SEC notes that this proposed definition of “qualified purchaser” is separate from, and does not affect, the term as defined under Section 2(a)(51) of the Investment Company Act of 1940.

Business Development Companies and Closed-End Funds

The proposal would align rules for business development companies and registered closed-end funds. By removing seasoning and public float requirements, it would expand their eligibility for short-form shelf registration on Form N-2 and extend WKSI-style registration and communication benefits to more of these funds.

Insurance Product Advertising

Rule 482 would be amended to allow, in certain circumstances, advertising for registered index-linked annuities and registered market value adjustment annuities under the same broad-based framework used for variable annuities.

II.  Simplified Filer Status and Expanded Emerging Growth Company Accomodations

Public companies that file periodic reports with the SEC currently fall into five partially overlapping filer statuses: large accelerated filers, accelerated filers, non-accelerated filers, smaller reporting companies, and emerging growth companies. Each filer status carries different deadlines, internal control over financial reporting (“ICFR”) obligations, and disclosure accommodations.

Two Primary Filer Categories

The proposal would replace that structure with two primary categories: large accelerated filers and non-accelerated filers. Any company that is not a large accelerated filer would be a non-accelerated filer, with a new “small non-accelerated filer” sub-category for the smallest issuers.

Large Accelerated Filer Threshold and Seasoning

For large accelerated filer status, the proposal would:

• Raise the public float threshold from $700 million to $2 billion, measured using the average of the closing prices over the last 10 trading days of the second fiscal quarter;
• Require the threshold to be met in two consecutive years, so a one-year swing would not change a company’s status; and
• Require at least 60 consecutive calendar months of reporting before a company can become a large accelerated filer. In practice, newly public companies would have at least a five-year “on-ramp” before large accelerated filer obligations would apply, regardless of public float.

Non-Accelerated Filers: Accommodations and ICFR Relief

Non-accelerated filers would be exempt from auditor ICFR attestation and would receive scaled disclosure and other accommodations currently available to smaller reporting companies and emerging growth companies, including no requirement for say-on-pay votes, scaled executive compensation disclosure, no pay-versus-performance disclosure, and reduced financial statement requirements.

Small Non-Accelerated Filers

The proposal introduces a “small non-accelerated filer” sub-category for non-accelerated filers with $35 million or less in total assets at the end of their two most recent second fiscal quarters. These filers would get extended deadlines: Form 10-K would move from 90 to 120 days after fiscal year-end, and Form 10-Q would move from 45 to 50 days after fiscal quarter-end.

Proposed Filer Categories

Category	Key Criteria	ICFR Auditor Attestation	Periodic Report Deadlines
Large Accelerated Filer	Public float ≥ $2 billion (met in two consecutive years) and 60+ consecutive months of reporting	Required	Form 10-K: 60 days; Form 10-Q: 40 days
Non-Accelerated Filer	Public float < $2 billion and/or fewer than 60 months of reporting; receives smaller reporting company and certain emerging growth company accommodations	Not required	Form 10-K: 90 days; Form 10-Q: 45 days
Small Non-Accelerated Filer	Non-accelerated filer with total assets ≤ $35 million as of the end of each of the two most recent second fiscal quarters	Not required	Form 10-K: 120 days; Form 10-Q: 50 days

* The large accelerated filer deadlines are the SEC’s existing deadlines, shown here for comparison; the proposals do not change them.

Transition

Existing registrants would determine their status at the end of the fiscal year before the final rules take effect, based on public float and, where relevant, total assets for that year and the prior year. They could use applicable accommodations and longer deadlines in their next Securities Act or Exchange Act filing.

What’s Next

Comments on both proposals are due 60 days after each is published in the Federal Register.

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[i]Registered Offering Reform, Securities Act Release No. 33-11418; Exchange Act Release No. 34-105513; Investment Company Act Release No. IC-36160; File No. S7-2026-17 (May 19, 2026), available at https://www.sec.gov/rules-regulations/2026/05/s7-2026-17#33-11418proposed.

[ii]Enhancement of Emerging Growth Company Accommodations and Simplification of Filer Status for Reporting Companies, Securities Act Release No. 33-11419; Exchange Act Release No. 34-105515; File No. S7-2026-18 (May 19, 2026), available at https://www.sec.gov/rules-regulations/2026/05/s7-2026-18#33-11419proposed.

[iii]U.S. Securities and Exchange Commission, Press Release No. 2026-46, SEC Proposes Transformative Reforms to Help Public Companies Conduct Registered Offerings and Simplify Reporting Requirements (May 19, 2026), available at https://www.sec.gov/newsroom/press-releases/2026-46-sec-proposes-transformative-reforms-help-public-companies-conduct-registered-offerings-simplify.