Make IPOs Great Again: Can Being Public Really Be This Simple?

• Clarifying that a registrant that ceases to qualify as a smaller reporting company under the revenue test is a non-accelerated filer in the following year, rather than immediately becoming an accelerated filer subject to attestation requirements. Exchange Act Rules CFI 130.05
• Clarifying for FPIs that a change in accountant reported on Form 6-K will be considered “previously reported,” such that it does not need to be included in Form 20-F. Exchange Act Forms 110.10

• Overhauling the no-action process for Rule 14a-8 shareholder proposals.
  • In November 2025, staff in the SEC’s Division of Corporation Finance announced a new policy for the 2026 proxy season under which it would no longer provide substantive responses to Rule 14a-8 no-action requests from companies seeking to exclude shareholder proposals from their definitive proxy materials, except for requests based on Rule 14a-8(i)(1) state law violation arguments. Companies seeking to exclude a shareholder proposal must still submit a notice of intent to exclude the proposal under Rule 14a-8(j). While the policy may have been intended to encourage companies to pursue the types of Delaware state law violation arguments under Rule 14a-8(i)(1) contemplated by Atkins, no companies have done so to date.
  • Initial expectations that the policy would lead to widespread unilateral exclusions and greater proponent flexibility in negotiating withdrawals have not fully materialized. A significant number of companies chose to exclude proposals, and the uncertainty generated by the SEC staff’s current no-action policy appears to have influenced some negotiations. However, the percentage of proposals included in proxies remained generally consistent with prior years and in some proposal categories (social and anti-ESG proponent proposals) increased. In addition, the emergence of proponent-initiated litigation in March may further complicate the landscape if the SEC staff, as expected, maintains its current no-action policy for the 2027 season.
  • Notably, anticipated proxy advisor opposition to companies that unilaterally excluded shareholder proposals this season did not materialize, notwithstanding policy statements issued by Institutional Shareholder Services (ISS) and Glass Lewis indicating they would scrutinize companies’ Rule 14a-8(j) exclusion notices. Adverse vote recommendations on that basis were virtually nonexistent, with proxy advisors generally deferring to companies’ judgments where companies provided substantive explanations in support of the exclusion. Should proxy advisors adopt a more aggressive approach for the 2027 proxy season, companies would need to incorporate the prospect of proxy advisor opposition into their shareholder proposal exclusion analysis.
• Permitting a voluntary retail voting program. On September 15, 2025, Corporation Finance staff from the Office of Mergers and Acquisitions responded to a no-action request from ExxonMobil, confirming that the staff would not recommend enforcement action under Exchange Act Rule 14a-4(d)(2) or Rule 14a-4(d)(3) if the company adopted a proposed automatic retail voting program. The program, which Exxon began implementing with soliciting materials pursuant to Rule 14a-12 sent to investors on September 17, allows retail holders to opt in to provide standing instructions to vote their shares at all future meetings in support of the board’s recommendations, subject to parameters explained in the no-action letter. The program is intended to serve as a blueprint for other companies to follow and build on if desired.
• Stating that the staff will object to notices of exempt solicitation that are filed voluntarily on EDGAR (Form PX14A6G). Proxy Rules and Schedules 14A/C CFI 126.06
• Stating that institutional investors may jeopardize their Schedule 13(g) eligibility if engagement discussions are held with the purpose or effect of influencing control of a registrant, such as conditioning director support on certain corporate actions. Exchange Act Sections 13(d) and 13(g) and Regulation 13D-G Beneficial Ownership CFI 103.12
• Recognizing the “broker search” for proxy materials may be conducted less than 20 business days before the record date for the applicable meeting, if the registrant reasonably believes that its proxy materials will be timely disseminated and otherwise complies with Rule 14a-13. Proxy Rules and Schedules 14A/C CFI 133.02
• Clarifying that where written consents were solicited by a dissident security holder without the registrant’s knowledge, the effectiveness of the action is determined by state law or the company’s governing documents, and the staff will not object if the registrant sends the information statement as soon as practicable after becoming aware of the written consents, even if it is after the 20-day period required under Rule 14c-2. Proxy Rules and Schedules 14A/C CFI 182.01

For more analysis of SEC process changes and other proxy season trends, check out Cooley’s recent alert: 2026 Shareholder Proposal Season Early Review and Look Ahead to 2027.

• Clarifying that registrants conducting an at-the-market offering pursuant to an effective Form S-3 registration statement are not subject to “baby shelf” rules simply because they fail to meet the $75 million public float requirement at the time of their next Section 10(a)(3) update. Securities Act Forms CFI 116.26
• Allowing all Form S-3 registrants (not just WKSIs) to go effective on Form S-3 registration statements between the Form 10-K filing and the filing of the proxy statement containing forward-incorporated Part III disclosure. Registrants are responsible for ensuring that any prospectus used in a registered offering contains all required information. Securities Act Forms CFI 114.05 and Securities Act Rules CFI 198.05
• Government shutdown FAQs permitting:
  • Use of a Rule 430A pricing range when filing a registration statement that will become effective by operation of law due to a government shutdown.
  • Upsizing under Rule 462(b) in situations where the registration statement went effective by operation of law due to the staff being unavailable to review or accelerate effectiveness, so long as the other conditions of Rule 462(b) are satisfied.
  • See this November 5, 2025 case study – Rerouted but Not Delayed: How Navan’s IPO Stayed the Course – and this running government shutdown timeline for real-world details on how these interpretations allowed IPOs to get across the finish line during the 2025 government shutdown. Also check out this February 2, 2026 CapitalXchange blog for details on how the SEC’s Division of Corporation Finance prepared to keep IPOs moving during the brief government shutdown in early 2026.

• For verifying “accredited investor” status in Rule 506(c) (general solicitation) offerings, explaining that the list of verification in Rule 506(c)(2)(ii) is non-exclusive and non-mandatory, and addressing how minimum investment amounts can factor into the “reasonable steps to verify” requirement. Securities Act Rules CFIs 256.35 and 256.36
• Clarifying when Securities Act Rule 701 requires certain disclosures and the consequences of failing to provide the required disclosures within a reasonable period of time before the date of sale. Securities Act Rules CFIs 271.26 and 271.27 and other updates made in March 2026
• Modernizing Securities Act Corporation Finance Interpretations to reflect the integration clarity provided by Rule 152, which was adopted in 2020. Various Securities Act Rules and Securities Act Sections CFIs issued in January 2026

• Through an exemptive order, significantly reducing – from 20 business days to 10 business days – the minimum time a tender offer must remain open, for deals that meet certain conditions. This Cooley M&A blog – SEC Exemptive Order Halves Minimum Tender offer Period for Negotiated All-Cash Transactions – and this Cooley alert – Who’s Got That Kind of Time: SEC Shortens Tender Offer Window for Equity Awards in Certain Circumstances outline the types of deals that qualify for the shorter offer period:
  • All cash, fixed price. Consideration must consist exclusively of cash at a fixed price per share.
  
  
  • For public companies, third-party tenders must be a negotiated transaction for all shares of the target company. The offer is made pursuant to a negotiated merger agreement or similar business combination agreement and covers all outstanding shares of the subject class of equity securities.
  
  
  • Target board recommendation required promptly. The target company must file and disseminate its Schedule 14D-9 disclosing its recommendation no later than 5:30 pm ET on the first business day following commencement (i.e., when the acquiror files and disseminates its Schedule TO). Practically speaking, the target’s Schedule 14D-9 is commonly filed on the same day as the acquiror’s Schedule TO in a negotiated transaction, so this is already aligned with prevailing market practices.
  
  
  • Press release with hyperlink at commencement. By 10:00 am ET on the commencement date, the offeror must issue a widely disseminated press release disclosing the basic deal terms together with an active hyperlink to a website where holders may access the complete tender offer materials.
  
  
  • For private companies, only available for self-tenders. The relief is not available for third-party tender offers on private company shares.
  
  
  • In the M&A context, the shorter timeline has the potential to accelerate material information delivery to investors and provide a clear framework for structuring change-of-control transactions. The prolonged window of deal uncertainty associated with the 20-business-day period had been known to increase the risk of distorted trading activity, impose unnecessary costs, and expose both offerors and shareholders to market volatility.
  • In the equity award context, the relief may be most useful for option award buybacks. A company will now be able to launch and close a cash tender offer more quickly than has been the case in the past, and can do so without inadvertently disqualifying options intended to qualify as incentive stock options. It’s important to note that in the equity award context, the relief is essentially limited to company self-tenders for cash. It does not apply to tender offers in connection with repricings, modifications or option exchanges – areas where incentive equity compensation often implicates the tender offer requirements.
• Through an exemptive order, permitting certain tender and exchange offers for non-convertible debt to remain open for only five business days – superseding a 2015 no-action letter that had permitted five-business-day tender offers for non-convertible debt in more limited situations.
  • The 2026 exemptive order provides more liberal eligibility conditions than the 2015 no-action letter – for example, it permits certain partial offerings and permits offers made concurrently with a consent solicitation where the amendment requires simple majority approval.
  • Tender and exchange offers must meet the conditions set forth in the order in order to qualify for the exemption it provides from Exchange Act Rule 14e-1(a) and (b). For example:
    • The offer must be made by the issuer of the subject non-convertible debt securities, a direct or indirect wholly owned subsidiary of such issuer, or a parent company that directly or indirectly owns 100% of the capital stock (other than directors’ qualifying shares) of such issuer.
    • The offer must be made solely for cash and/or consideration consisting of “Qualified Debt Securities” (if the latter, the offer is restricted to certain types of purchasers).
    • The commencement of the offer and any material changes to the terms of the offer must be announced via a press release.
    • The issuer must provide certain withdrawal rights.
    • There are limitations on conducting offers after the public announcement of a change of control or other extraordinary transaction, in anticipation of or in response to other tenders for the issuer’s securities, or concurrently with a tender offer for any other class or series of the issuer’s securities made by the issuer (or any subsidiary or parent company of the issuer) if the effect of such offer, if consummated (by way of amendment, exchange, or otherwise), would be to add obligors, guarantors, or collateral (or increase the priority of liens securing such other class or series).
  • The order notes that offerors conducting a five business day tender offer should consider the anti-fraud and anti-manipulation provisions of the federal securities laws, and comply with all applicable provisions of the federal securities laws.
• Providing relief to issuers that miss the Rule 14e-2 10-business day deadline in response to a mini-tender offer, provided the issuer was unaware of the offer and disseminates its required statement as soon as practicable after becoming aware. Tender Offer Rules and Schedules 163.02
• Clarifying when to provide historical compensation information for a spun-off registrant. Regulation S-K CFI 217.01
• Expanding the scope of lock-up guidance, including permitting subsequent registration of securities on Form S-4 (or Form F-4), if certain conditions are met. Securities Act Sections CFIs 139.29, 139.30, and 239.13
• Allowing resale registrations of securities previously issued to officers, directors or affiliates of a target company in connection with a business combination on the Form S-4 covering that transaction, as contemplated by Securities Act Sections CFIs 139.29, 139.30, and 239.13. After closing, the registrant can file a post-effective amendment to the Form S-4 on an eligible form to maintain an updated prospectus. Securities Act Forms CFI 225.03
• Requiring registration statements for rights listings in connection with a business combination to include information about the contemplated business combination transaction and the business to be acquired, in order for the registration statement to be declared effective and the rights to qualify for listing. Securities Act Sections CFI 142.01

• Revising the Enforcement Manual, which is a non-binding guide for staff in the SEC’s Division of Enforcement, to reflect the current SEC administration’s focus on engagement and transparency. In this February 27, 2026 Securities Litigation + Enforcement blog, the Cooley team of Luke Cadigan, Tejal Shah, Elizabeth Skey and Bingxin Wu explain that the updates to the Enforcement Manual present an opportunity for respondents to engage more constructively with the staff and potentially achieve more favorable outcomes. Check out the blog for a thorough summary – but at a high level, the changes include:
  • Giving investigative targets a standard four weeks to respond to notices that they are under investigation, being more likely to grant a request for a meeting with the staff, providing guidelines on how to respond to a Wells notice, and giving investigative targets greater access to evidence and investigative files.   Memorializing the Commission’s willingness to consider a settlement offer simultaneously with a request to waive statutory disqualifications – e.g., of WKSI status or safe harbor availabilities – which can have significant collateral consequences.
  • Establishing formal procedures for criminal referrals.
  • Providing an expanded cooperation framework that guides companies on steps they can take to potentially receive cooperation credit.

• Eliminate complex, prescriptive and overly-burdensome line-item disclosure requirements in favor of a more principles-based framework. This effort would address executive compensation disclosure rules and more. It would go beyond the accommodations that would be provided through the proposed filer status changes, to address the line-items themselves. See this April 22, 2026 CapitalXchange blog for Cooley’s recommendations and this August 2025 comment letter that Cooley submitted on executive compensation disclosure requirements.
• Modify or rescind Rule 14a-8, which allows shareholders to submit non-binding proposals to be included in the company’s proxy statement. As explained in Cooley’s June 8, 2026 alert on proxy season trends, the SEC’s 2026 rulemaking agenda includes a potential proposal addressing Rule 14a-8, and many observers have speculated that the SEC may seek to rescind the rule entirely. Any such proposal would be subject to the SEC’s standard rulemaking process, including notice-and-comment procedures. Given Rule 14a-8’s central role in the shareholder proposal landscape, a rescission proposal would likely generate a substantial volume of public comments (e.g., investor groups are already petitioning to keep Rule 14a-8 in place), requiring meaningful consideration by the SEC before adoption of a final rule. Recent SEC rulemakings have frequently taken more than a year to progress from proposal to adoption, suggesting that one or more proxy seasons could continue under the SEC staff’s current no-action policy before any rescission would become effective. In addition, a rescission of Rule 14a-8 would almost certainly face legal challenges, which could result in injunctive relief or a voluntary SEC stay (as occurred with the SEC’s 2024 climate rules). Consequently, uncertainty surrounding the future of Rule 14a-8 could persist past the 2028 presidential election.
• Modernize the process for IPOs and other paths to the public market. On top of the proposed changes to Form S-3 eligibility and related matters, SEC Chair Paul Atkins recently indicated that the SEC is reviewing outdated “gun-jumping” communication rules and analyzing how to promote alternative paths to public markets. He encouraged market participants to submit public comments by July 27, 2026 to inform a proposal. See this May 28, 2026 post on “The Governance Beat.”
• Expand availability of safe-harbor resales under Rule 144. The Division of Corporation Finance is considering recommending that the Commission repropose amendments to Rule 144, a non-exclusive safe harbor that permits the public resale of restricted or control securities if the conditions of the rule are met, to increase instances in which the safe harbor would be available.
• Rethink eligibility and requirements for FPIs. See this June 12, 2025 post on “The Governance Beat” about the SEC’s 71-page concept release.

In early June, the SEC published a draft of its five-year strategic plan, which is subject to public comment. The SEC stated that the proposed plan is intended to support three goals:

1. Renew our regulatory policy focus to support innovation, capital formation, market efficiency, and investor protection –This goal promotes clear, fit-for-purpose rules that foster responsible innovation and deter misconduct. Modernizing and simplifying disclosure practices, expanding access to private markets, and enabling new capital-raising pathways are essential to ensuring that entrepreneurs and small businesses can thrive. One objective is to provide a firm regulatory foundation for digital assets and distributed ledger technologies through a rational, coherent, and principled approach.
2. Shift our regulatory practices to increase stakeholder engagement, facilitate compliance efforts of market participants, and effectively return our enforcement approach to Congress’ original intent –This goal seeks to increase staff engagement with business and industry groups while restoring an enforcement approach that polices violations of established law such as fraud and manipulation rather than expanding regulatory reach through ad hoc enforcement actions. Other objectives include periodic, retrospective reviews of existing rules as well as an assessment of the agency’s administrative law framework.
3. Optimize our operational efficiency by enhancing our organizational structure, modernizing our technology, reforming employee performance management, and implementing robust internal performance reporting that incorporates accountability for resources and program success –This goal prioritizes technology modernization as a critical enabler of regulatory effectiveness. A comprehensive review of legacy systems – such as EDGAR – and the adoption of secure, scalable infrastructure will enhance data integrity, reduce operational risk, and support advanced analytics. The responsible use of artificial intelligence and blockchain technologies can further improve oversight, reduce costs, and unlock new efficiencies.