On Nov, 9, 2016, the Division of Corporation Finance issued guidance on Form S-8 and Fee Calculations:

  • Filing fees associated with excess shares under a prior Form S-8 can be transferred only after completion or termination of a registered offering or the registration statement has been withdrawn.However, as discussed below, a separate newly-issued CDI provides that if the excess securities are or may become authorized for issuance under another issuer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 original Form S-8 to disclose that these excess securities will be sold under the other plan.

  • An issuer has two alternatives for registering on Form S-8 shares under a new option plan plus shares that will roll over from an earlier plan that were previously registered on Form S-8:

  • The issuer can register on a new Form S-8:

    • shares under the new plan,

    • shares remaining under the earlier plan that are not subject to options, and

    • an estimated number of shares underlying outstanding awards upon expiration or cancellation that are registered under the earlier plan.

However, under this alternative, issuers are not able to transfer the registration fee as an offset against the registration fee due for the new Form S-8.

  • Alternatively, the issuer can file a post-effective amendment to the earlier Form S-8 indicating that the Form S-8 will also cover the issuance of the roll-over shares once they become authorized for issuance under a new plan. No new filing fee would be due upon the filing of the post-effective amendment.