Yesterday, in the wake of engagement between the ABA’s JCEB (of which Cooley is a participant) and the Staff, Corp Fin issued three new CFIs under the “‘33 Act Rules,” one new CFI under “Section 16 Rules and Forms” and two new CFIs under “‘33 Act Forms” (as well as modified two other CFIs).
One biggie is Question 271.28 under the ’33 Act Rules, which is a new CFI allowing companies to move outstanding pre-IPO compensatory awards that were originally granted in reliance on an exemption from registration onto a Form S-8 after the IPO.
Two other related biggies are Question 271.29 under the ’33 Act Rules and Question 126.14 under the ’33 Act Forms, which liberalize the treatment of assumed awards in acquisitions as assumed awards held by former target employees can now be covered by Form S-8 for public-company buyers or Rule 701 for eligible private-company buyers.
Also check out Question 126.46 under the ’33 Act Forms under which Corp Fin will allow companies to apply the filing fees associated with securities underlying forfeited RSUs to future registrations of offers and sales of securities underlying the RSUs. As a result, companies should 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.
And Question 126.47 under the ’33 Act Forms is notable as well, under which Corp Fin will allow companies to register restricted stock and RSUs no later than the date of vesting, so long as a company was eligible to use Form S-8 on the date of grant. This brings the treatment of restricted stock and RSUs closer to the existing treatment of options under Question 126.02, which permits shares underlying options to be registered on Form S-8 at any time before exercise – regardless of when the options became exercisable.
Here are the new and revised CFIs:
- Securities Act Rules
Question: May an issuer rely on Securities Act Rule 457(o) to calculate the amount of the registration fee for an offering of securities pursuant to a defined contribution plan?
Answer: Yes. [October 15, 2026]
Question: Before becoming an Exchange Act reporting company, an issuer relied on an exemption from registration under the Securities Act to grant compensatory awards, including restricted stock, stock options and restricted stock units (“RSUs”). Once the issuer becomes an Exchange Act reporting company, can the issuer register the shares to be issued upon vesting of restricted stock awards and the securities underlying the outstanding stock options and RSUs previously granted to eligible recipients on a Form S-8?
Answer: Yes. Once the issuer becomes eligible to file a Form S-8, the staff will not object if the issuer moves the offering onto Form S-8 by registering the shares to be issued upon vesting of restricted stock and shares underlying the outstanding stock options and RSUs previously granted to eligible recipients on that form. [October 15, 2026]
Question: An issuer acquires an entity and assumes compensatory awards, including restricted stock, stock options and RSU awards, previously granted to eligible recipients by the acquired entity. May the acquiring company rely on the exemption provided by Rule 701 with regard to the restricted stock and the securities underlying stock options and RSUs that are held by persons whose employment or other service relationship with the acquired entity terminated prior to the acquisition transaction?
Answer: Yes. The staff will not object if the acquiring company relies on the exemption provided by Rule 701 with regard to the restricted stock or the securities underlying stock options and RSUs previously made to formerly eligible employees or service providers of the acquired company as long as the compensatory awards are assumed by the acquiring company in the acquisition transaction and the acquiring company is eligible to use Rule 701. [October 15, 2026]
- Section 16 Rules and Forms
Question: A Section 16 reporting person sells shares of a class of equity securities on a foreign exchange on August 25, 2026 at 9 a.m. local time (when it is August 24, 2026 in U.S. Eastern time). What is the Form 4 filing deadline?
Answer: Rule 16a-3(g)(1) requires a Form 4 to be filed before the end of the second business day following the day on which the subject transaction has been executed. The deadline is calculated beginning with the date in the time zone where the transaction was executed. In this scenario, the second business day would be August 27, 2026 so the reporting person must make the filing before the August 27, 2026 EDGAR filing deadline based on U.S. Eastern Time. Thus, the Form 4 must be filed by 10:00 p.m. U.S. Eastern time on August 27, 2026. [October 15, 2026]
Question: Company A acquires Company B and, in connection with the acquisition, assumes outstanding Company B compensatory awards, including stock options, restricted stock, and RSUs, held by current and former employees of Company B. May Company A register on Form S-8 Company A shares associated with the compensatory awards held by former employees of Company B that have been assumed by Company A?
Answer: Yes, the staff will not object to the registration on Form S-8 of the securities associated with the compensatory awards assumed by Company A. [October 15, 2026] [Comparison to prior version]
Question: A company’s 401(k) plan provides for an automatic company contribution of 1% of the employee’s salary, employee contributions up to 10% of the employee’s salary, and a company contribution to match the employee contributions up to 5% of the employee’s salary. The investment options for the 401(k) plan include the employer’s securities such that Securities Act registration is required. For which of these contributions would the company need to pay a registration fee?
Answer: The company would not have to pay a fee for the automatic contribution since it is made without regard to employee contributions. A fee would be paid with respect to the employee contributions and the matching contributions to the extent those contributions are invested in employer’s securities. In addition, in this situation, registration is required for an indeterminate amount of plan interests which are securities of the plan; however, no separate fee is required with respect to the plan interests. See Rule 416(c) and Rule 457(h)(2). [October 15, 2026] [Comparison to prior version]
Question: 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 associated filing fees. The RSUs never vested and were forfeited. Pursuant to the plan under which the RSUs were issued, the underlying securities became available for reissuance upon the RSUs’ forfeiture. Will the staff object if the issuer applies the filing fees associated with the securities underlying the forfeited RSUs to future registrations of offers and sales of securities underlying the RSUs, including securities that became available for reissuance under the plan, on Form S-8?
Answer: No. [October 15, 2026]
Question: An Exchange Act reporting company plans to grant awards of restricted stock or RSUs, with the restricted stock or RSUs vesting based on specified conditions at a subsequent date. Following vesting and upon settlement of the awards, recipients will receive shares of the company’s common stock. The company seeks to register on Form S-8 the offer and sale of the common stock issued upon settlement. Can the company register this offer and sale on Form S-8 by the date of vesting instead of the date of the grant?
Answer: For policy reasons, the staff will not object to the registration of the offer and sale by the date of vesting, as long as the company was also eligible to use Form S-8 on the date of grant. [October 15, 2026]
Authored by
Broc Romanek