Using a single Form S-8 for multiple plans. Revised Question 126.06 of the Securities Act Forms C&DIs clarifies how a company can register securities to be issued pursuant to two plans on the same registration statement on Form S-8. The C&DI states that the full title of each plan should be listed on the face of the Form S-8 on the appropriate line. The Part I information to be delivered pursuant to Rule 428 for 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.

Using multiple Form S-8 registration statements for outstanding and newly adopted plans. New Question 126.43 of the Securities Act Forms C&DIs (which was also added as new Question 240.15 of the Securities Act Rules C&DIs) sets out a fact pattern in which an issuer has an effective Form S-8 that registers shares of common stock to be issued under the issuer's 2006 equity compensation plan, and has recently adopted a new 2016 equity compensation plan. The 2006 plan authorized the issuer to grant awards for up to 20 million shares, and to date the issuer has granted options (all of which remain outstanding) exercisable for 15 million shares. On effectiveness of the 2016 plan, no further awards may be granted pursuant to the 2006 plan and the five million shares not covered by any award under the 2006 plan become authorized for issuance under the 2016 plan. The terms of the 2016 plan provide that the 15 million shares underlying outstanding options granted pursuant to the 2006 plan will also become authorized for issuance under the 2016 plan when the outstanding options under the 2006 plan expire or are terminated or canceled. The issuer plans to file a new Form S-8 to register ten million shares that are newly authorized for issuance under the 2016 plan. The C&DI asks whether the issuer can include on the new registration statement the five million shares and an estimated number of shares that will become available upon the cancellation or termination of awards, all of which were previously authorized for issuance pursuant to the 2006 plan and that will roll over to the 2016 plan. The C&DI indicates that the issuer can do this. However, it notes that because the offering is not yet completed under the 2006 plan, the issuer cannot credit the registration fee associated with the shares from the 2006 plan under Rule 457(p) as an offset against the registration fee due for the new Form S-8 registration statement.

The C&DI also highlights an alternative that is only available for Form S-8 registration statements. The issuer can instead file a post-effective amendment to the earlier Form S-8 for the 2006 plan. The post-effective amendment must indicate that the registration statement will also cover the issuance of those shares under the 2016 plan once they are no longer issuable pursuant to the 2006 plan and instead become authorized for issuance under the 2016 plan. The post-effective amendment, which would be required under Item 512(a)(1)(iii) of Regulation S-K to disclose a material change in the plan of distribution, should identify both the 2006 plan and the 2016 plan on the cover page, and describe how shares that will not be issued under the 2006 plan have or may become authorized for issuance under the 2016 plan. No new filing fee would be due upon the filing of the post-effective amendment. However, because additional securities may not be added to a registration statement by means of a post-effective amendment (per Rule 413(a) under the Securities Act), the newly authorized ten million shares must be registered on a separate Form S-8 registration statement.

Revised Question 240.11 of the Securities Act Rules C&DIs (which was also added as new Question 126.42 of the Securities Act Forms C&DIs) sets out a fact pattern in which an issuer has a Form S-8 on file that registers shares of common stock to be issued on the exercise of outstanding options. The issuer has decided to stop granting stock options and believes that it has more shares registered on the Form S-8 than it will need to cover the exercise of the outstanding options. The C&DI asks whether the issuer can transfer to a new registration statement the filing fees associated with the securities that the issuer believes it will not need to issue, and continue to use the Form S-8 to cover the exercise of the outstanding options. 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. The C&DI states that the issuer may not transfer the fees associated with the excess securities until it completes or terminates the offering registered on Form S-8. However, 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 (see Question 126.43). The Part I information delivered pursuant to Rule 428 with respect to each plan should be specific to that plan (see Question 126.06).

New Question 126.44 of the Securities Act Forms C&DIs (which was also added as new Question 240.16 of the Securities Act Rules C&DIs) describes how to disclose the offset of filing fees from prior Form S-8 registration statements against filing fees for a new Form S-8. Rule 457(p) under the Securities Act requires a note to the Calculation of Registration Fee table on the cover of the Form S-8 to state the name of the issuer, the file number and initial filing date of the earlier registration statement from which the offset is claimed, and the dollar amount of the offset. In addition, to assist the SEC staff in assessing its 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. The C&DI notes that an offering registered on Form S-8 is only terminated or completed 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.