- SEC Provides Guidance on Form S-8 and Fee Calculations
- November 24, 2016
- Law Firm: Greenberg Traurig LLP - New York Office
On Nov, 9, 2016, the Division of Corporation Finance issued guidance on Form S-8 and Fee Calculations:
- Filing fees associated with excess shares under a prior Form S-8 can be transferred only after completion or termination of a registered offering or the registration statement has been withdrawn.However, as discussed below, a separate newly-issued CDI provides that if the excess securities are or may become authorized for issuance under another issuer plan, the issuer may file a post-effective amendment to the original Form S-8 to disclose that these excess securities will be sold under the other plan.
- An issuer has two alternatives for registering on Form S-8 shares under a new option plan plus shares that will roll over from an earlier plan that were previously registered on Form S-8:
- The issuer can register on a new Form S-8:
- shares under the new plan,
- shares remaining under the earlier plan that are not subject to options, and
- an estimated number of shares underlying outstanding awards upon expiration or cancellation that are registered under the earlier plan.
- Alternatively, the issuer can file a post-effective amendment to the earlier Form S-8 indicating that the Form S-8 will also cover the issuance of the roll-over shares once they become authorized for issuance under a new plan. No new filing fee would be due upon the filing of the post-effective amendment.