On May 19, 2026, the SEC proposed two separate rule changes that together represent the most significant modernization of the registered offering framework in more than twenty years. Operating in coordination with a companion release which proposes to recalibrate public company filer status and expand emerging growth company accommodations, this reform package is designed to dismantle historical regulatory friction, facilitate capital formation, and simplify the compliance architecture for a vast majority of public issuers
In the first of these transformative potential rule changes, the SEC has proposed registered offering reforms that would: (i) increase access to shelf registrations on Form S-3; (ii) allow the use of offering communications that currently are limited to use by well-known seasoned issuers (WKSI) by eliminating the definition of a WKSI for all companies other than foreign private issuers (FPIs) and creating a new set of issuer categories ; (iii) expand the availability of incorporation by reference into Form S-1; and (iv) expand state law preemption to cover all registered offerings.
In two multi-part blog series, I will provide a deep dive into both of these rule proposals starting with the registered offering reform proposal. In Part 1 of the series I provided background and a summary of the proposed rule changes – see HERE. In Part 2 I delved into the proposed changes completely transforming the eligibility requirements and availability to use Form S-3 – see HERE. In Part 3 I unpacked the significant changes to the current WKSI structure including the creation of the new Eligible Listed Issuer (ELI) and Seasoned Eligible Listed Issuer (SELI) designations and how that impacts offering communications, see HERE. In this Part 4 and final blog of this offering reform proposal series, I am covering proposed changes to Form S-1 to expand incorporation by reference, the new overarching state law preemption for registered offerings, and removal of the “delaying amendment” legend on registration statements.
FORM S-1 AMENDMENTS – INCORPORATION BY REFERENCE
Form S-1 is the default form that issuers can use to register securities offerings under the Securities Act. Form S-1 is referred to as the “default” form because it may be used by any issuer, other than foreign governments and asset-backed issuers for an offering for which no other form is authorized or prescribed and without any additional eligibility requirements. Form S-1 permits issuers to backward incorporate previously filed Exchange Act reports if they satisfy the form’s eligibility criteria to incorporate by reference.
In particular: (i) the company must be subject to the reporting requirements of the Exchange Act (not a voluntary filer); (ii) the company must have filed all reports and other materials required by the Exchange Act during the prior 12 months (or such shorter period that such company was reporting); (iii) the company must have filed an annual report for its most recently completed fiscal year; (iv) the company may not currently be, and during the past 3 years neither the company nor any of its predecessors were, (a) a blank check company; (b) a shell company other than a business combination shell company (SPAC), or (c) have offered a penny stock; (v) the company cannot be registering an offering for a business combination transaction; and (vi) the company must make its reports filed under the Exchange Act that are incorporated by reference, available on its website, and include a disclosure of such availability and that it will provide such document upon request.
When using incorporation by reference a company must incorporate its latest annual report on Form 10-K that contains financial statements for its latest fiscal year; and All other reports filed pursuant to section 13(a) or 15(d) of the Exchange Act or proxy or information statements filed pursuant to section 14 of the Exchange Act since the end of the fiscal year covered by the Form 10-K required to be incorporated by reference.
A company that utilizes incorporation by reference must describe material changes in the issuer’s affairs that have occurred since the end of the latest fiscal year for which audited financial statements were included in the latest Form 10-K except to the extent described in a Form 10-Q or Form 8-K.
Form S-1 does not, however, permit issuers other than smaller reporting companies (SRCs) to automatically update information in the prospectus via forward incorporation of their Exchange Act filings.
The SEC is proposing to modernize Form S-1 with respect to an issuer’s ability to backward incorporate and forward incorporate by reference. The SEC is proposing to: (i) eliminate the requirement that the company must have filed an annual report for its most recently completed fiscal year; and (ii) expanding the ability to use forward incorporation by reference to all companies that qualify for backward incorporation by reference.
The new rule would allow a company to incorporate by reference the Form 10-K for the year immediately preceding the most recently completed fiscal year until the date on which the annual audited financial statements for the most recently completed fiscal year are required to be disclosed in the registration statement. The new rules would also permit an issuer to use incorporation by reference during its first year as an Exchange Act reporting company when it had not yet been required to file a Form 10-K.
Each of the other requirements to utilize incorporation by reference would remain in place. Provided however, consistent with Form S-3, instead of listing out certain ineligible issuers such as shell companies, the SEC would prohibit the newly defined BSP ineligible issuer from utilizing incorporation by reference.
As a reminder, a “BSP issuer,” would be defined in Rule 405 as an issuer that is, or during the past three years the issuer or any of its predecessors was: (1) a blank check company as in Rule 419(a)(2); (2) a shell company, other than a business combination related shell company, each as defined in Rule 405, provided, however, that an issuer, other than a foreign private issuer, would not be deemed to be a shell company solely because during the past three years either the issuer or any of its predecessors was a “special purpose acquisition company (SPAC),” or (3) an issuer in an offering of a penny stock as defined in 17 CFR 240.3a51-1.
A company that incorporates by reference will be required to: (i) describe any and all material changes in the its affairs which have occurred since the end of the most recent fiscal year covered by the audited annual financial statements required to be included in the Form S-1 and that have not been described in a Form 10-Q or Form 8-K filed under the Exchange Act; (ii) incorporate by reference a Form 10-K that contains financial statements for the issuer’s most recently completed fiscal year but, if the issuer has not yet filed such a Form 10-K, instead require it to incorporate by reference a Securities Act or Exchange Act filing that contains Form 10 information; and (ii) incorporate by reference all reports filed pursuant to section 13(a) or 15(d) of the Exchange Act since the end of the most recent fiscal year covered by the audited annual financial statements required to be included in the Form S-1.
The SEC is also proposing to amend the instructions to Form S-1 to no longer allow FPIs to use the form at all.
STATE LAW PREEMPTION FOR ALL REGISTERED OFFERINGS
The SEC is proposing the federal preemption of state securities law registration and qualification requirements for all registered offerings. Currently, under Section 18 of the Securities Act of 1933, state-level “Blue Sky” registration is preempted only for “covered securities,” which are primarily those listed on national exchanges (or to be listed at the close of the offering) or sold to “qualified purchasers.” For a review of Section 18 see my blogs HERE and HERE.
To accomplish this change the SEC is proposing to add a new definition of “qualified purchaser” to Section 18 to include any person to whom securities are offered or sold pursuant to an offering registered under the Securities Act.
Smaller companies trading on over-the-counter (OTC) markets, as well as secondary transactions for certain unlisted issuers, have historically remained subject to a patchwork of state-level registrations. This multi-state process frequently subjects issuers to “merit reviews” by state administrators, which can result in unpredictable delays, high legal expenses, and transactional uncertainty.
ELIMINATION OF THE “DELAYING AMENDMENT”
Section 8(a) of the Securities Act provides that registration statements filed under that Act shall become effective on the 20th day after filing or such earlier date as the SEC shall determine. Section 8(a) also specifies that the filing of an amendment to a registration statement establishes a new filing date and restarts the 20-day period. In order to prevent a registration statement from automatically going effective prior to clearing SEC comments, practitioners include language known as “delaying” amendments on the facing page of registration statements.
The SEC is proposing to revise Rule 473 to provide that effectiveness of a registration statement filed with the SEC, other than those that become automatically effective in accordance with our rules and forms, would be deemed to be delayed, unless the issuer included on the registration statement’s facing page a legend stating that the registration statement is to become effective in accordance with the provisions of section 8(a) of the Securities Act. In other words, the effectiveness of all registration statements would automatically be delayed unless the company specifically includes language to the contrary.
AGE OF FINANCIAL STATEMENTS
Under Regulation S-X registrants are not required to provide, in a registration statement or proxy statement, audited financial statements for the most recently completed fiscal year when the date of effectiveness of such registration statement or mailing date of such proxy statement falls within the first 45 days after such fiscal year end (i.e. February 14 for December 31 FYE filers).
Under the rules, this time period can be extended for an additional 14-45 days depending on filer status (i.e. large accelerated, accelerated and all others) if: (i) the company files annual, quarterly, and other reports pursuant to section 13 or 15(d) of the Exchange Act and all reports due have been filed; (ii) for the most recent fiscal year for which audited financial statements are not yet available, the registrant reasonably and in good faith expects to report income attributable to the registrant, after taxes; and (iii) for at least one of the two fiscal years immediately preceding the most recent fiscal year the registrant reported income attributable to the registrant, after taxes. Practitioners often refer to this as an “income company.”
The SEC is proposing to eliminate the income requirements for obtaining extra time to complete financial statements. As a result, under the proposed amendments, an SRC that is either an Exchange Act reporting company that has filed all 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 or proxy statement, unless such financial statements become available earlier.
A non-SRC Exchange Act reporting company that has filed all required 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.
The Author
Laura Anthony, Esq.
Founding Partner
Anthony, Linder & Cacomanolis
A Corporate and Securities Law Firm
Securities attorney Laura Anthony and her experienced legal team provide ongoing corporate counsel to small and mid-size private companies, public companies as well as private companies going public on the Nasdaq, NYSE American or over-the-counter market, such as the OTCQB and OTCQX. For more than two decades Anthony, Linder & Cacomanolis, PLLC has served clients providing fast, personalized, cutting-edge legal service. The firm’s reputation and relationships provide invaluable resources to clients including introductions to investment bankers, broker-dealers, institutional investors and other strategic alliances. The firm’s focus includes, but is not limited to, compliance with the Securities Act of 1933 offer sale and registration requirements, including private placement transactions under Regulation D and Regulation S and PIPE Transactions, securities token offerings and initial coin offerings, Regulation A/A+ offerings, as well as registration statements on Forms S-1, S-3, S-8 and merger registrations on Form S-4; compliance with the Securities Exchange Act of 1934, including registration on Form 10, reporting on Forms 10-Q, 10-K and 8-K, and 14C Information and 14A Proxy Statements; all forms of going public transactions; mergers and acquisitions including both reverse mergers and forward mergers; applications to and compliance with the corporate governance requirements of securities exchanges including Nasdaq and NYSE American; general corporate; and general contract and business transactions. Ms. Anthony and her firm represent both target and acquiring companies in merger and acquisition transactions, including the preparation of transaction documents such as merger agreements, share exchange agreements, stock purchase agreements, asset purchase agreements and reorganization agreements. The ALC legal team assists Pubcos in complying with the requirements of federal and state securities laws and SROs such as FINRA for 15c2-11 applications, corporate name changes, reverse and forward splits and changes of domicile. Ms. Anthony is also the author of SecuritiesLawBlog.com, the small-cap and middle market’s top source for industry news, and the producer and host of LawCast.com, Corporate Finance in Focus. In addition to many other major metropolitan areas, the firm currently represents clients in New York, Los Angeles, Miami, Boca Raton, West Palm Beach, Atlanta, Phoenix, Scottsdale, Charlotte, Cincinnati, Cleveland, Washington, D.C., Denver, Tampa, Detroit and Dallas.
Ms. Anthony is a member of various professional organizations including the Crowdfunding Professional Association (CfPA), Palm Beach County Bar Association, the Florida Bar Association, the American Bar Association and the ABA committees on Federal Securities Regulations and Private Equity and Venture Capital. She is a supporter of several community charities including the American Red Cross for Palm Beach and Martin Counties, Susan Komen Foundation, Opportunity, Inc., New Hope Charities, the Society of the Four Arts, the Norton Museum of Art, Palm Beach County Zoo Society, the Kravis Center for the Performing Arts and several others.
Ms. Anthony is an honors graduate from Florida State University College of Law and has been practicing law since 1993.
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