On October 15, the Staff of the Securities and Exchange Commission’s Division of Corporation Finance published several new Corporation Finance Interpretations, or CFIs, most of which relate to the use of Form S-8, the short-form registration statement used to register the offer and sale of securities issued pursuant to employee benefit and compensation plans under the Securities Act of 1933. The Staff also revised several existing CFIs on the same topic. In particular, new Securities Act Rules CFI 126.47 reflects an interesting interpretive position in terms of the Staff view of offers and sales of compensatory awards with vesting conditions, such as restricted stock awards, and the timing of these.
| CFI Reference | Guidance |
| Securities Act Rules CFIs | |
| Rule 457: New Question 240.19 | An issuer can rely on Securities Act Rule 457(o) to calculate the registration fee for an offering under a defined contribution plan. |
| Rule 701: New Question 271.28 | Before becoming an Exchange Act reporting company, an issuer relied on an exemption from Securities Act registration to grant compensatory awards, including restricted stock, stock options and restricted stock units. Once the issuer becomes an Exchange Act reporting company, it can register the shares to be issued upon vesting of these previously-granted restricted stock awards and the securities underlying the outstanding stock options and restricted stock units on Form S-8. |
| Rule 701: New Question 271.29 | An issuer acquires an entity and assumes compensatory awards previously granted by the acquired entity. The acquiror can rely on Rule 701 with regard to those awards held by persons whose employment or other service relationship with the acquired entity terminated prior to the acquisition as long as (i) the compensatory awards are assumed by the acquiror in the transaction and (ii) the acquiror is eligible to use Rule 701. |
| Securities Act Forms CFIs | |
| Form S-8: Revised Question 126.14 | Company A acquires Company B and assumes outstanding Company B compensatory awards held by current and former employees of Company B. Company A can use Form S-8 to register Company A shares associated with the compensatory awards held by former employees of Company B that are assumed by Company A. This is a reversal of previous Staff guidance, which held that where Company A assumes outstanding Company B options held by former employees of Company B, and these options become exercisable for Company A shares, such Company A shares could not be registered on Form S-8 (see General Instruction A.1(a)(3) to Form S-8). |
| Form S-8: Revised Question 126.19 | A company’s 401(k) plan provides for an automatic company contribution, employee contributions, and a company “matching” contribution, each up to a certain threshold. The investment options for the 401(k) plan include the employer’s securities such that Securities Act registration is required. The company would not have to pay a fee for the automatic contribution since it is made without regard to employee contributions, but would have to pay a fee with respect to the employee contributions and the matching contributions to the extent these are invested in employer’s securities. Registration is required for an indeterminate amount of plan interests that are securities of the plan; however, no separate fee is required with respect to plan interests (Rule 416(c) and Rule 457(h)(2)). |
| Form S-8: New Question 126.46 | An issuer registered on Form S-8 the offer and sale of securities underlying compensatory awards with vesting conditions, such as RSUs, and paid the filing fees. The RSUs never vested and were forfeited, and the underlying securities became available for reissuance. The issuer can apply the filing fees associated with the securities underlying the forfeited RSUs to future registrations of offers and sales of securities underlying RSUs, including those that became available for reissuance under the plan, on Form S-8. |
| Form S-8: New Question 126.47 | An Exchange Act reporting company granted awards of restricted stock and RSUs that vest based on specified conditions at a subsequent date; such awards settle in shares of the company’s common stock. The company can register the offer and sale of the common stock issued upon settlement on Form S-8 by the date of vesting instead of the grant date as long as the company was also eligible to use Form S-8 on the grant date. |
| Exchange Act Rules CFIs | |
| Form 4: New Question 135.05 | Form 4 must be filed by the end of the second business day following the date of the transaction being reported, calculated beginning with the date in the time zone where the transaction was executed. For example, a transaction is completed on foreign exchange on August 25, 2026 at 9 a.m. local time (when it is August 24, 2026 in U.S. Eastern time), so the Form 4 must be filed by 10 p.m. U.S. Eastern time on August 27, 2026. |
The new CFIs can be found here.