On Oct. 15, 2026, the staff of the U.S. Securities and Exchange Commission’s Division of Corporation Finance published a series of new and revised Corporation Finance Interpretations (CFIs) addressing interpretive issues under the Securities Act of 1933 (the Securities Act) and the Securities Exchange Act of 1934 (the Exchange Act).1 The updates, among other matters, provide additional flexibility for use of Form S-8 to register compensatory equity awards, in connection with mergers and acquisitions (M&A transactions) and following an initial public offering (IPO), as well as flexibility with respect to the calculation of registration fees for employee benefit plans.2
Taken together, the new guidance addresses longstanding issues that public-company acquirers, private-company acquirers, newly public companies, and their counsel have encountered when registering equity awards granted before an IPO or assumed in a M&A transaction.
A summary of the CFIs is set forth below:
Pre-IPO Awards that May be Registered on Form S-8
- Form S-8 registration of pre-IPO awards (New Securities Act Sections Question 271.28). An issuer that, before becoming a public company, relied on a Securities Act registration exemption to grant compensatory awards (including, without limitation, restricted stock, stock options, and RSUs) may, once eligible to file Form S-8 (e.g. following its IPO), move the offering and sale of such restricted shares or shares underlying such previously granted compensatory awards onto Form S-8. Under prior staff guidance, registration of shares underlying compensatory awards on Form S-8 after the grant date but before vesting was available only for unexercised options.
- Registering by vesting date rather than grant date (New Securities Act Forms Question 126.47). A public company that grants restricted stock or RSUs that vest and settle in common stock at a later date may register the offer and sale of the underlying common stock on Form S-8 by the date of vesting, rather than by the date of grant, provided that the company was eligible to file Form S-8 on the grant date. Previously, the common stock underlying RSUs granted by a public company outside of an existing Form S-8 was not eligible for Securities Act registration upon issuance, so the award recipient required an exemption from registration to resell the vested shares into the open market.
- Carrying forward fees from forfeited RSUs (New Securities Act Forms Question 126.46). Where an issuer registered the securities underlying vesting-conditioned awards such as RSUs on Form S-8 and the RSUs never vested and were later forfeited, with the underlying securities becoming available for reissuance under the applicable equity plan, the issuer may apply the filing fees previously paid for the securities underlying the forfeited RSUs to future Form S-8 registrations of securities underlying RSUs, including securities that became available for reissuance under the plan. As a practical matter, issuers would no longer need to register extra shares on Form S-8 simply to account for shares underlying forfeited RSUs that return to the plan pool.
Assumed Awards of Former Target Employees in M&A Transactions
- Form S-8 registration of assumed awards held by former target employees (Revised Securities Act Forms Question 126.14). Where an acquirer assumes a target’s outstanding compensatory awards (including, without limitation, stock options, restricted stock, and RSUs) held by both current and former target company employees, the staff confirmed that the acquirer may use Form S-8 to register the acquirer shares associated with awards held by former target company employees.
- Rule 701 exemption for assumed awards held by former target service providers (New Securities Act Sections Question 271.29). Where an acquirer assumes a target’s outstanding compensatory awards (including, without limitation, stock options, restricted stock, and RSUs) held by recipients whose employment or other service relationship with the target terminated before the acquisition, the acquirer may rely on Rule 701 to issue the securities underlying the compensatory awards held by those former target service providers. This exemption applies so long as the awards are assumed in the acquisition and the acquirer is eligible to use Rule 701. This interpretation may be particularly useful for private-company acquirers, who may continue to rely on Rule 701 for assumed awards held by former employees and service providers of a target.
Registration Fees for Employee Benefit Plans
- Fee calculation under Rule 457(o) for defined contribution plan offerings (New Securities Act Rules Question 240.19). An issuer may rely on Securities Act Rule 457(o) to calculate the registration fee for an offering of securities pursuant to a defined contribution plan, which permits registration on an aggregate-dollar-amount basis, rather than on a number-of-share basis. This may give issuers registering 401(k) and similar defined contribution plan offerings additional flexibility in computing filing fees, particularly where the number of shares that will ultimately be purchased through plan contributions is difficult to estimate in advance.
- Fee calculation for 401(k) plan contributions (Revised Securities Act Forms Question 126.19). For a 401(k) plan that includes employer securities as an investment option and provides for (i) an automatic company contribution of 1% of salary, (ii) employee contributions of up to 10% of salary, and (iii) a company matching contribution of up to 5% of salary, the staff explained that:
- Equity awards can be migrated to Form S-8 flexibly. The staff confirmed that previously exempt awards — whether granted pre-IPO or assumed from a target, and whether held by current or former service providers of an acquired company — can be moved onto Form S-8 once the issuer is eligible to use that form and that registration may be completed by the vesting date rather than the grant date. Issuers should continue to track scheduled vesting dates and applicable acceleration provisions carefully and may wish to confirm their Form S-8 eligibility on both the grant and vesting dates.
- Filing fees are not lost on forfeiture. Fees paid for forfeited RSUs may be applied to future Form S-8 registrations, including securities that become available for reissuance under the equity plan, reducing the cost of administering ongoing equity programs. However, issuers should consider tracking and analyzing Form S-8 fee credits and shares available for issuance under the applicable equity plan.
- Rule 701 extends to assumed awards held by former target service providers. Acquirers assuming target awards held by individuals whose service relationship with the target terminated before the acquisition may continue to rely on Rule 701, provided the acquirer is eligible to use Rule 701. However, the interpretive guidance does not authorize the grant of new awards under Rule 701.
- Registration timing for restricted stock and RSUs is more flexible. Previously, an issuer was able to file a Form S-8 to register shares issuable upon the exercise of compensatory option grants, as long as the issuer filed the Form S-8 prior to the exercise of the options. Because the guidance did not clearly extend to RSUs, and market practice generally required a Form S-8 to be on file before restricted stock was granted, companies typically filed Form S-8 prior to the issuance of RSUs and restricted stock. Under the new CFIs, a company eligible to use Form S-8 at the grant date may grant RSUs and restricted stock before filing the Form S-8, provided that the form is filed before the awards vest.
–No registration fee is required for the automatic company contribution, because it is made without regard to employee contributions.
–A fee is required for the employee contributions and the matching contributions, to the extent those contributions are invested in employer securities.
–Registration is also required for an indeterminate amount of plan interests (which are securities of the plan), but no separate fee is required for the plan interests.
Key Takeaways
The new and revised CFIs provide additional flexibility for public companies, private issuers approaching an IPO, and acquirers managing equity compensation in M&A transactions:
Companies and their advisors should consider incorporating the staff’s guidance into equity compensation plan design, registration practices, and acquisition integration planning.
1 In March 2026, SEC’s Division of Corporation Finance changed the name of its staff interpretative guidance from “Compliance and Disclosure Interpretations” to “Corporation Finance Interpretations.”
2 The SEC also publishes a new CD&I (New Section 16 Rules and Forms CFI Question 135.05) to clarify that the clock for counting the two-business-day filing deadline for Form 4 starts using transaction date in the time zone in which the transaction was executed. The filing cutoff on the resulting due date remains the applicable EDGAR deadline measured in U.S. Eastern Time.