On October 15, 2026, the SEC’s Division of Corporation Finance issued new and revised Corporation Finance Interpretations (CFIs) providing additional flexibility for registering compensatory awards, including awards assumed in acquisitions and granted before an IPO. The guidance also clarifies registration fees for retirement plans and Form 4 filing deadlines for transactions executed on foreign exchanges.
Form S-8 for assumed awards held by former employees
Revised Securities Act Forms CFI 126.14 reverses the Staff’s longstanding position on registering assumed options held by former target employees. Previously, an acquirer could not use Form S-8 for those options because they had not been granted while the holders were employed by the acquirer, as contemplated by General Instruction A.1(a)(3) to Form S-8. The Staff instead directed the acquirer to another registration form for which it was eligible. The revised guidance expands the scope of the interpretation beyond stock options to include restricted stock and restricted stock units (RSUs) assumed in an acquisition. The Staff will not object to an eligible acquirer registering on Form S-8 the securities associated with those awards held by former target employees. This allows the acquirer to cover assumed awards held by current and former target employees on that form, subject to its other applicable requirements. Acquirers should review their registration approach for assumed awards in light of this change.
Rule 701 for assumed awards held by former service providers
Complementing the Form S-8 relief, new Securities Act Rules CFI 271.29 addresses assumed awards held by individuals whose employment or other service relationship with the target ended before the acquisition. The Staff will not object to an acquirer relying on Rule 701 for restricted stock and securities underlying options and RSUs previously granted to eligible target employees or service providers, provided the acquirer assumes the awards in the transaction and is itself eligible to use Rule 701. Together, these interpretations simplify the treatment of assumed awards held by former target employees, with Form S-8 available to eligible reporting companies and Rule 701 available to eligible nonreporting acquirers.
Moving awards granted before reporting status onto Form S-8
New Securities Act Rules CFI 271.28 confirms that, once a company becomes eligible to file Form S-8, it may move onto that form an offering involving compensatory awards granted under a Securities Act exemption before the company became an Exchange Act reporting company. The guidance covers shares to be issued upon vesting of restricted stock and shares underlying outstanding options and RSUs previously granted to eligible recipients. For companies preparing for or recently completing an IPO, the guidance provides a clear path to register these outstanding awards on Form S-8 once eligible. Companies should consider those awards when determining the coverage of their initial Form S-8.
Registering restricted stock and RSU settlements by vesting
New Securities Act Forms CFI 126.47 provides flexibility in the timing of Form S-8 registration for restricted stock and RSU awards. For policy reasons, the Staff will not object to registration of the offer and sale of common stock deliverable upon settlement by the vesting date, rather than the grant date, provided the company was also eligible to use Form S-8 at grant. Companies relying on this approach should confirm eligibility at grant and track vesting dates so that registration is effective no later than vesting, even if settlement occurs afterward. This interpretation does not extend to awards granted before Form S-8 eligibility; the transition of awards granted under an exemption before reporting status is addressed separately in CFI 271.28 discussed above.
Reusing filing fees for forfeited RSUs
New Securities Act Forms CFI 126.46 addresses filing fees paid for securities underlying RSUs that were registered on Form S-8 but never vested and were forfeited. Where the underlying securities become available for reissuance under the plan, the Staff will not object to applying the associated fees to future Form S-8 registrations of securities underlying RSUs, including securities returned to the plan for reissuance. The guidance permits reuse of fees in the circumstances described. It does not itself eliminate the need to register subsequent offers and sales.
Registration fees for 401(k) plans
Revised Securities Act Forms CFI 126.19 clarifies registration fee calculations for 401(k) plans that include employer securities as an investment option. The guidance addresses a plan with three contribution components: an automatic company contribution of 1% of salary, employee elective contributions of up to 10% of salary, and company matching contributions of up to 5% of salary.
The Staff’s position remains that no registration fee is required for the automatic company contribution because it is made without regard to employee contributions. For employee and matching contributions, however, the revised guidance expressly limits the fee requirement to the portion invested in employer securities, a qualification that was not included in the prior version. The Staff also clarifies that an indeterminate amount of plan interests must be registered, although no separate fee is required for those interests under Rules 416(c) and 457(h)(2).
Companies should review their registration fee calculations in light of this clarification to ensure that fees on employee and matching contributions reflect only the amounts invested in employer securities, which may help avoid overpayment of fees.
Fee calculations for defined contributions plans
Related new Securities Act Rules CFI 240.19 confirms that an issuer may use Rule 457(o) to calculate registration fees for a securities offering under a defined contribution plan. Rule 457(o) permits calculation based on the maximum aggregate offering price rather than the number of securities registered, providing an alternative where the number of shares to be issued is indeterminate at registration.
Form 4 deadlines for foreign exchange transactions
New Section 16 CFI 135.05 clarifies how to calculate the two-business-day Form 4 deadline for transactions executed on foreign exchanges when the local execution date differs from the date in U.S. Eastern time. The Staff confirms that the calculation begins with the transaction date in the time zone where the transaction was executed, while the filing cutoff on the resulting due date is determined using U.S. Eastern time.
In the Staff’s example, a sale executed at 9 a.m. local time on August 25, 2026, when it is still August 24 in U.S. Eastern time, must be reported by 10:00 p.m. U.S. Eastern time on August 27, 2026. Companies supporting Section 16 reporting persons who trade on foreign exchanges should ensure that their reporting procedures capture the local execution date and distinguish it from the U.S. Eastern time cutoff for filing.