by Cydney Posner
More new CDIs from Corp Fin, some relating to Form S-8 and the computation of registration fees under Rule 457:
Rule 457 – Computation of Fee
- Revised 240.11 Rule 457(p) permits filing fees to be transferred only after the registered offering has been completed or terminated or the registration statement has been withdrawn. As a result, an issuer that has an S-8 that registers more shares than it will need to cover the exercise of outstanding options may not transfer the fees associated with the excess shares until it completes or terminates the offering registered on the Form S-8; i.e., it may not transfer fees and still continue to use the S-8 to cover the exercise of outstanding options. However, as provided in New 240.15 (discussed below), 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 Form S-8 to disclose that these securities will be sold under the other plan. The Part I information delivered pursuant to Rule 428 with respect to each plan should be specific to that plan.
- New 240.15 There are two potential approaches to registration when an issuer plans to roll over, from one equity comp plan to another later new plan, shares remaining under the earlier plan that are not subject to outstanding options and any shares subject to outstanding options under the earlier plan that expire or are terminated or canceled. The issuer can register the roll-over shares (including an estimate of the shares that may become available upon cancellation or termination of awards granted) that will be issuable under the new plan, plus any shares newly authorized under the new plan (i.e., not roll-over shares) on a new Form S-8. However, because the offering is not yet completed under the earlier plan, Rule 457(p) would not permit the issuer to offset the fee associated with the shares rolled over from the earlier plan against the registration fee for the new registration statement. See Revised 240.11, discussed above. Alternatively, the issuer can file a post-effective amendment to the earlier Form S-8 for the earlier plan to indicate that the registration statement will also cover the issuance of the roll-over shares when they become available for issuance under the new plan. The post-effective amendment should disclose a material change in the plan of distribution (Reg S-K Item 512(a)(1)(iii)), identify both the earlier plan and the new plan on the cover page, and describe the roll over from one plan to the other. No new filing fee would be due upon the filing of the post-effective amendment. Any shares newly authorized under the new plan must be registered on a separate registration statement (because, under Rule 413(a), additional securities may not be added to a registration statement by means of a post-effective amendment. The CDI advises that this alternative applies only with respect to Form S-8.
- New 240.16 When filing fees paid in connection with a prior registration statement are used to offset fees due on a subsequent registration statement pursuant to Rule 457(p), the issuer should include a note to the fee table stating the name of the issuer, the file number, the initial filing date of the earlier registration statement and the dollar amount of the offset. In addition, to assist the staff in assessing the issuer’s eligibility for offset, the issuer “should quantify the amount of unsold securities from the prior registration statement associated with the claimed offset and disclose either that the prior registration statement has been withdrawn or that any offering that included the unsold securities has been terminated or completed.” An offering registered on Form S-8 is completed or terminated only when no additional securities will be issued pursuant to the plan covered by the Form S-8, including through the exercise of any outstanding awards.
Form S-8
- Revised 126.06 A company may register securities to be issued pursuant to two plans on the same registration statement by listing the full title of each plan on the face of the registration statement on the appropriate line. The Part I information delivered pursuant to Rule 428 with respect to each plan should be specific to that plan. If any Part II information relates specifically to one plan, the disclosure should make that relationship clear.
- Revised 126.42 Same as 240.11 above
- New 126.43 Same as 240.15 above.
- New 126.44 Same as 240.16 above.
