On October 15, 2026, the Securities and Exchange Commission’s (SEC’s) Division of Corporation Finance issued new and revised corporation finance interpretations (CFIs) guiding issuers on the use of Form S-8, the streamlined registration statement that registers the offer and sale of compensatory equity securities to employees, directors, and consultants. The CFIs reflect an expanded and more practical SEC staff view on the use of Form S-8 for equity compensation awards. Among other things, the CFIs provide increased flexibility for the registration of pre-initial public offering (IPO) equity awards and equity awards assumed pursuant to mergers or acquisitions. The CFIs also confirm that the registration of awards, such as restricted stock or restricted stock units (RSUs), is not required until vesting if the awards could have been registered on a Form S-8 at grant. This guidance represents a welcome response to a changing market landscape and evolving M&A activity by public companies.
The CFIs provide, among other things, that:
Issuers have long faced uncertainty regarding whether Form S-8 is available to register restricted stock and shares underlying RSUs granted prior to an issuer becoming a public reporting company. The CFIs answer this question in the affirmative.
The ability to register pre-IPO awards of restricted stock and shares underlying RSUs that are outstanding at the time of an IPO on Form S-8 provides useful flexibility to issuers and award holders. Although private companies are still required to have a valid exemption to grant such awards (often Rule 701 or Regulation D under the Securities Act), the ability for an issuer to register shares underlying such awards on a Form S-8 after going public greatly simplifies employees’ resale of the underlying shares, including for purposes of generating the necessary liquidity to cover the employees’ applicable withholding tax obligations which may result from the vesting of such awards.
Shares issued under a Form S-8 registration will not be “restricted securities” under Rule 144 and need not bear restrictive legends. Employees receiving shares under such a registration will be able to resell the shares publicly without the need for a Rule 144 holding period or the 90-day post-IPO waiting period that might otherwise apply to resales under Rule 701(g). Furthermore, this clarity provided by the CFIs may also streamline the issuer’s shift to a post-IPO stock plan administrator or online capitalization provider; it should be simpler to transfer over to the online system, since companies should be able to register shares underlying all outstanding equity awards.
IPO issuers that move pre-IPO grants onto Form S-8 in reliance on this guidance must ensure that the offering complies with Form S-8 eligibility rules at the time of registration. In particular, the Form S-8 can only include grants held by eligible “employees,” as defined in the Form S-8 instructions.
We note that pre-IPO companies organized as partnerships and LLCs increasingly use profits interests and similar management compensation programs. The CFIs do not directly address whether profits interests or other partnership unit awards that convert to public company stock in connection with an IPO may be registered on a Form S-8. However, based on the principles set forth in the CFIs, it may be possible to register the shares of public company stock received by eligible service providers in connection with the conversion of legacy awards of “profits interests” and other compensatory partnership units. Although the analysis will depend in part on the facts and circumstances of a particular conversion, this approach would provide issuers and their sponsors with a streamlined path to resale liquidity for management equity holders following the transition to public company equity compensation structures.
Prior to the release of the CFIs, many practitioners advised clients to file a Form S-8 prior to the grant of compensatory awards in the form of restricted stock or RSUs. This often created significant timing pressures and additional costs on the part of the issuer, especially for grants made outside of a registered equity plan reserve (such as through the grant of inducement awards or transaction-related awards). Before making such grants, the issuer would be required to obtain off-cycle auditor consents and prepare an accompanying plan prospectus.
The CFIs confirm that the SEC staff will not object to issuers registering shares underlying a grant of restricted stock or an RSU award on a Form S-8 where the grant is made prior to filing a Form S-8, if the issuer is Form S-8 eligible on the date the award is granted and the Form S-8 is filed before the award vests. In addition, as discussed below, while not explicitly stated in the CFIs, it is reasonable to infer that restricted stock awards and RSUs that are forfeited prior to vesting need not be included in the later Form S-8 registration (thereby receiving the same treatment as unexercised stock options).
Notably, the CFIs do not provide any additional relief to SPACs, business combinations, or other transactions involving shell companies, as issuers in those transactions are required to wait for 60 days following the filing of the associated Super 8-K to become Form S-8 eligible. Therefore, they remain unable to register awards granted prior to the expiration of this waiting period on a Form S-8.
There has long been a misalignment between the share counting methodology typically used in equity plan share recycling provisions and the share counting methodology used for Form S-8 registration purposes. Historically, an issuer would count forfeited RSUs and restricted stock awards against the pool of shares registered on a Form S-8 (including for filing fee purposes), even if the equity plan’s share recycling provisions permitted those shares to be added back to the equity plan share reserve for use as future awards.
With the CFIs, the SEC staff has indicated that issuers are permitted to apply the filing fees associated with the shares underlying forfeited RSUs to future registrations so that there is no duplication of fees. It is reasonable to apply this interpretive guidance to the grant of restricted stock awards as well. This relief has significant implications for the counting of shares for Form S-8 purposes. Under Rule 457(h) under the Securities Act, Form S-8 filing fees are calculated based on the number of shares issuable under an employee benefit plan.
The CFIs do not directly address whether the ability to delay the filing of a Form S-8 until an award vests and the ability to reapply filing fees associated with forfeited awards also means that forfeited restricted stock awards and shares underlying forfeited RSUs do not require registration and do not count against the share reserve registered on a Form S-8. This interpretation, however, would be consistent with the SEC staff’s recent publicly stated objectives to reduce the regulatory burden on public companies and the approach of the SEC staff in the CFIs to simplify Form S-8 registration practices, and eliminates the need for issuers to maintain two separate share counts when administering their equity plans.
To the extent that forfeited RSUs and restricted stock need not be registered on Form S-8, for purposes of Form S-8 share counting, plan administrators should be able to wait to count RSUs and restricted stock awards against the Form S-8 registered reserve until such awards vest. This would simplify Form S-8 share counting and more closely align Form S-8 share counting requirements with common equity plan share pool counting practices.
The SEC staff historically has taken the view that an acquiring company could not use Form S-8 to cover the issuance of shares upon exercise or settlement of compensatory equity awards held by former employees of the target company that the acquiror had assumed as part of the acquisition. As a result, unless the acquiror was willing to utilize a more burdensome registration approach such as Form S-4, awards held by former employees have typically been cashed out upon the closing of the transaction, rather than assumed by the acquiror.
By permitting the shares underlying these awards to be registered on an acquiror’s Form S-8, the CFIs simplify the path for an acquiror to assume outstanding awards held by former employees, directors, and consultants.
Based on the principles set forth in the CFIs, restricted or revested shares that are used as consideration by issuers in acquisitions and are considered to be compensatory rather than transaction-related consideration (e.g., the revesting of founder shares held outright prior to a transaction to be subject to a continued service requirement, or the issuance of earnout or contingent shares subject to additional vesting) may be eligible to be registered on Form S-8. To facilitate this registration, it would generally be advisable to document these share issuances through a stand-alone Form S-8 eligible plan or agreement, in addition to the merger agreement.