On May 19, 2026, the Securities and Exchange Commission proposed a set of amendments that would fundamentally restructure the registered offering framework under the Securities Act of 1933. The proposal reflects a broad policy shift away from size‑based eligibility thresholds and toward a disclosure‑driven model that prioritizes reporting status, market access, and the availability of current information to investors. If adopted, the reforms would significantly expand access to short‑form registration and shelf offerings, recalibrate the allocation of offering flexibility across issuers, and streamline several procedural and disclosure requirements that have historically constrained capital raising. Expanded Form S-3 Eligibility and Shelf Access The proposed expansion of Form S‑3 eligibility is the centerpiece of the SEC’s reform package and would significantly broaden issuers’ ability to access the public capital markets. At a high level, the SEC is proposing to move away from the existing mix of seasoning and size‑based requirements and instead tie Form S-3 eligibility more directly to an issuer’s reporting status and the availability of current disclosure. Under the current framework, Form S‑3 eligibility is subject to both registrant and transaction‑based requirements. These include a minimum 12 month reporting history, current and timely Securities Exchange Act of 1934 reporting, and, for primary offerings, a $75 million public float threshold. Issuers that do not meet that threshold are subject to the “baby shelf” limitations, which cap the amount of securities that may be sold over a rolling 12‑month period. The SEC’s proposal would eliminate both the one‑year ‘seasoning’ reporting history requirement and the transaction‑based limitations, including the public float threshold and corresponding volume caps. In their place, eligibility would turn largely on whether the issuer is subject to Exchange Act reporting and is current in its filings. As a practical matter, this would allow issuers to become Form S‑3 eligible and conduct shelf take-downs to access capital more quickly and cost-effectively much earlier in their public company lifecycle, including shortly after an initial public offering. Issuers meeting the revised standard would also be able to establish shelf registration statements without delay and conduct offerings without regard to size‑based limits. In turn, a broader group of issuers would be positioned to take advantage of at‑the‑market programs and other flexible capital‑raising structures. The proposal would also streamline the existing framework by eliminating certain disqualifying conditions and placing greater weight on the availability of current disclosure. New Eligible Listed Issuers/Seasoned Eligible Listed Issuers (ELI/SELI) Framework Replacing the Well Known Seasoned Issuer (WKSI) Regime In parallel with the expansion of Form S-3 eligibility, the SEC has proposed to eliminate the existing WKSI framework and replace it with a new tiered issuer classification system that reallocates offering flexibility across a broader group of issuers. Under this system, issuers would be classified as Form S-3 Eligible Issuers, ELIs, and SELIs. Form S-3 Eligible Issuers would include all issuers that meet the revised eligibility criteria. ELIs would consist of Form S-3 eligible issuers with stock exchange-listed equity securities. SELIs would be ELIs that have been subject to Exchange Act reporting (or ‘seasoning’) for at least 12 months. Unlike the current WKSI definition, the proposed classifications would not rely on public float thresholds or debt issuance tests. Instead, eligibility would depend on disclosure status, exchange listing and reporting history. The proposal would allocate the benefits currently associated with WKSI status across these categories. All Form S-3 Eligible Issuers would gain access to certain procedural flexibilities, including greater ability to rely on Exchange Act reporting to update disclosure and to utilize offering communications. ELIs would receive additional accommodations that enhance offering flexibility, including expanded communications capabilities, the ability to update registration statements through post-effective amendments, and the ability to defer payment of SEC filing fees until securities are sold from their Form S-3 registration statement. SELIs would have access to automatically effective Form S-3 shelf registration statements, known as Form S-3ASRs, which would be the most significant accommodation under the current framework. A Form S-3ASR becomes effective automatically upon filing and permits issuers to execute offerings without prior SEC review, allowing for rapid access to capital raising. Form S-1 Modernization: Expanded Incorporation by Reference The proposal would expand the eligibility of issuers to use both backward and forward incorporation by reference when filing a Form S-1, allowing a broader group of issuers to avoid duplicative disclosure and reduce compliance costs for issuers. This expansion to permit incorporation by reference for a registration statement on Form S-1 gives a ‘short form’ registration statement pathway to more issuers in lieu of using Form S-3. The proposal would eliminate the current requirement for an issuer to have filed a form 10-K for its most recently completed fiscal year in order to use backward incorporation by reference on Form S-1. As a result, issuers that are not eligible to use Form S-3 will be allowed to use backward incorporation by reference prior to filing a Form 10-K for their most recently completed fiscal year. Issuers will also be allowed to use backward incorporation by reference during their first year as an Exchange Act reporting company even when they have not yet been required to file their annual report on Form 10-K. Second, the proposal would eliminate the current limitation that permits only smaller reporting companies (SRCs) to use forward incorporation by reference on Form S-1 and does not extend that ability to larger issuers. As a result, issuers that are eligible to use backward incorporation by reference would also be able to use forward incorporation by reference. By adopting this proposed amendment, registration statements would be automatically updated through subsequent Exchange Act reports, which will reduce the need to file post-effective amendments and prospectus supplement updates for offerings conducted using Form S-1. The proposed amendment, however, would not extend the forward incorporation on Form S-1 in context of delayed shelf offerings or primary at-the-market (ATM) offerings, which would continue to only be available using Form S-3. Business Development Companies (BDCs) and Closed-End Funds (CEFs) In addition to amending the registration and offering process for issuers that register securities on Form S-1 and Form S-3, the proposed amendment would extend similar modifications to the registration and offering process for BDCs and registered CEFs that register securities on Form N-2. These proposed amendments are described in our separate May 28, 2026, client alert titled “If Adopted, Proposed SEC Rules Should Make it Easier for More Closed-End Funds and BDCs to Register and Offer their Securities.” Preemption of State Securities Law Registration and Qualification Section 18(a) of the Securities Act currently provides that states may not require registration or qualification of “covered securities,” which includes securities with respect to the offer or sale to qualified purchasers. Currently, generally only registered offerings of securities that are listed or approved for listing on a national securities exchange are not subject to state securities laws registration and qualification requirements, while offerings of unlisted securities must comply with such requirements. The proposed amendments will add a new definition of “qualified purchaser” under section 18(b)(3) of the Securities Act to preempt state securities law registration and qualification requirements with respect to any registered offering under the Securities Act (including securities that are not listed or proposed to be listed on a national securities exchange). This proposed amendment would benefit issuers with shares quoted on the over-the-counter (OTC) market that are not listed on a national securities exchange. Federal preemption of state securities law registration for SEC registered offerings by OTC companies would reduce regulatory oversight and compliance costs for these issuers and simplify the process for conducting registered securities of unlisted securities. Other Proposed Rule Amendments Delaying Amendments The SEC proposes to amend Rule 473 under the Securities Act in such way that provides that a registration statement will be deemed delayed, unless the issuer includes on the facing page of the registration statement a legend stating that it should become effective in accordance with the provisions of Section 8(a) of the Securities Act. As a result, issuers will no longer need to include the delaying amendment for purposes of delaying a registration statement’s effectiveness. Issuers desiring that a registration statement become available on the 20th day after its filing would need to include an applicable legend on the facing page of the registration statement. Grace Period for Untimely Filing and Form S-3 Eligibility The SEC proposes to amend Form S-3 such that an issuer that makes a late filing which would otherwise render it ineligible to use Form S-3, it would not lose its ability to use Form S-3 if certain conditions are met. First, the late filing would need to have been made within seven calendar days of the original due date (without giving any effect to any applicable filing extension period under Rule 12b-25 under the Exchange Act). Second, the issuer could have made only one untimely filing during the issuer’s relevant lookback period (i.e., the 12 calendar months and any portion of a month immediately preceding the filing of the Form S-3). This grace period to cure an untimely filing would ensure that issuers are not faced with a harsh consequence for a single untimely filing and could instead retain access to use Form S-3 and its faster path to capital and lower compliance burdens than Form S-1.  Elimination of Certain Conditions Relating to Age of Financials The Proposed amendments would simplify the rules under Regulation S-X regarding how recent financial statements required for a registration statement or a proxy statement must be. Under the proposed amendments, an SRC that is either an Exchange Act reporting company that has filed all periodic reports due, or is a non-reporting company, would have 90 days after its fiscal year end to provide audited annual financial statements for its most recently completed fiscal year, regardless of the timing of a registration statement or a proxy statement, unless such financial statements become available earlier. Additionally, a non-SRC Exchange Act reporting company that has filed all required periodic reports would be required to provide annual audited financial statements in a registration statement no later than its Form 10-K due date, which is based on its filer status. For additional information about proposed changes to filer status categories, see our separate June 1, 2026, client alert titled “SEC Proposes Significant Changes to Public Company Reporting Rules, Including New Filer Categories and Expanded Disclosure Relief.” Such proposed amendments are intended to reduce costs of conducting registered offerings and certain proxy solicitation, especially for those loss generating issuers who may otherwise face unnecessary delays in raising capital via registered offering or completing strategic transactions through proxy solicitation, by expanding the population of issuers eligible for extended financial statement updating periods. Implications for Foreign Private Issuers (FPIs) At this time, the SEC’s proposed amendments do not extend to FPIs. The proposed amendments prohibit FPIs from using both Forms S-1 and S-3 entirely, even if the FPIs report on domestic Exchange Act forms. FPIs would continue to be able to use Form F-1, as well as Form F-3, which has similar eligibility requirements and benefits as Form S-3, and is available to FPIs. The SEC stated that given its ongoing comprehensive review of the FPIs framework, which was announced in June 2025, it would not extend to FPIs the benefits of the proposed amendments at this time. The SEC also stated that it expects minimal impact from this aspect of the proposed amendment based on its understanding that few FPIs file on domestic forms. * * * * * * * * If you would like further information regarding the proposed amendments to filer status and reporting requirements under the Exchange Act, or any other rule changes or guidance described above, please contact the lawyer at Sullivan & Worcester LLP with whom you regularly consult, or any of the lawyers listed above.

The SEC’s Division of Corporation Finance recently published a new Compliance and Disclosure Interpretation (CD&I) 103.12 regarding shareholders’ engagement with issuers’ management in the context of eligibility to report on Schedule 13G versus the more onerous Schedule 13D under Rule 13d-1 of the Securities and Exchange Act of 1934 (Exchange Act). The new CD&I clarifies under which circumstances shareholders may be disqualified to report on Schedule 13G due to their engagement with issuer’s management. Specifically, it addresses which engagements could result in a shareholder being deemed to hold the subject securities for a “purpose or the effect of changing or influencing the control of the issuer” and for such reason, lose eligibility to report on Schedule 13G, which is typically used for passive investments. Background: Section 13(d) and 13(g) of the Exchange Act require that shareholders (or certain groups of shareholders) who beneficially own more than 5% of a publicly traded company’s voting class of securities report on their beneficial ownership on a Schedule 13D or Schedule 13G, if eligible. Schedule 13D requires more detailed disclosure than Schedule 13G, mainly due to the potential active involvement of the shareholder in the issuer’s management. Shareholders may report on Schedule 13G only under certain exemptions, if they hold the subject securities with no intent to influence or control the issuer; however, they must certify that the securities were not acquired or held with the purpose of influencing the control of the issuer. Key Issue: The key issue addressed in CD&I 103.12, is under what circumstances a shareholder’s engagement with issuers crosses the line and disqualifies them from eligibility to file Schedule 13G. This may be critical to shareholders who seek to qualify for the simplified filing requirements of Schedule 13G, generally intended for passive investors. Disqualifying Engagement with Issuer’s Management: CD&I 103.12 expands upon the nature and scope the SEC may view as “influencing control”. It emphasizes that the determination of whether a shareholder may be disqualified from filing a Schedule 13G is dependent on the facts and circumstances surrounding their engagement with issuers. The key factor is whether the engagement could be seen as having a purpose or effect of influencing the control of the issuer. Such determination should be made based on the subject matter of the shareholder’s engagement with the issuer, and the context in which it occurs. Subject Matter of the Shareholders’ Engagement with the Issuer’s Management  Shareholders may lose eligibility to report on Schedule 13G if their engagement with the issuer’s management involves, for example, actions which specifically call or advocate for the sale of the issuer or significant amount of its assets, the restructuring of the issuer, or the election of director nominees other than the issuer’s nominees. Context in which the Engagement Occurs  While engagements that are focused on a specific topic and how the shareholder’s views may inform its voting decisions are generally not disqualifying, the SEC has clarified that if a shareholder goes beyond expressing views and actively pressures the issuer’s management to implement specific measures or change a policy, it could be seen as an effort to influence control over the issuer. For example, Schedule 13G may be unavailable to a shareholder who recommends that an issuer remove its staggered board, switch to a majority voting standard in uncontested director elections, eliminate its poison pill plan, change its executive compensation practices, if the shareholder discusses how the issuer fails to meet their expectations and when a shareholder conditions its support of the issuer’s director nominees on the issuer’s adoption of their recommendation. In addition, if a shareholder recommends the issuer to undertake specific actions on social, environmental or political policy as a means of pressuring the issuer to adopt its recommendation, this may disqualify the shareholder from Schedule 13G. Possible Implications: The examples provided in CD&I 103.12 may have significant impacts on institutional and other investors’ engagement relating to a variety of matters, including both environmental, social and governance, and traditional corporate governance topics. While advocating for changes in corporate governance practices or other actions does not automatically disqualify shareholders from filing Schedule 13G (provided that the engagement is part of a broad, non-specific initiative, rather than targeting control), if the engagement suggests a specific change to the issuer’s control or structure, or if the shareholder engages with issuer’s management on environmental, social and governance matters and conditions voting support on certain changes, Schedule 13G may no longer be available. Conclusion and Next Steps: Investors and asset managers should carefully assess the nature and scope of their engagements with issuers’ management as the determination of whether to file a Schedule 13D or 13G will be fact specific and may require some difficult determinations, particularly under the new C&DI. By publishing this new guidance, the SEC signals that the line between passive and active investing can be unclear and highlights the critical importance of shareholders’ intentions and the context of their engagements with issuers. Shareholders seeking to maintain eligibility for Schedule 13G must ensure that their activities and strategies do not cross into efforts to influence or change control, or adjust their engagement strategies, if necessary. As these matters may be complex, shareholders should consult legal advisors to ensure they are in compliance with the SEC’s new guidance. If you would like further information about how these changes may affect your reporting strategies, please contact the lawyers at Sullivan & Worcester LLP with whom you regularly consult or any of the lawyers listed above.