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SEC 2125 - Form S-8
Publication date: 30 Jun 2023
us PwC SEC Volume 2125
.1 General
.11 What is Form S-8 and where can I find it?
Form S-8 is the SEC registration form generally used to register (under the Securities Act):
- securities of the registrant to be offered under any employee benefit plan to its employees, or employees of its subsidiaries or parent; and
- interests in the plans specified in 1 above if such interests constitute securities and are required to be registered under the Securities Act (see SEC 2125.901).
General Instruction A.1(a) and (b) to Form S-8 include a detailed discussion of the types of securities that may be registered on Form S-8 and the definition of the term “employee” for purposes of Form S-8. See Securities Act Rule 405 for the definition of the term employee benefit plan.
Form S-8 becomes effective immediately upon filing. See Securities Act Rule 462(a) and General Instruction D to Form S-8.
The text of Form S-8 is available on the SEC’s website (https://www.sec.gov/files/forms-8.pdf).
.12 Who can use Form S-8?
The Form S-8 may be used by any registrant if:
(i) immediately prior to the Form S-8 filing, the registrant was subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act (see SEC 2125.902);
(ii) the registrant has filed all reports and other materials required to be filed by Section 13 or 15(d) of the Exchange Act during the preceding 12 months (or such shorter period that the registrant was required to file such reports and materials) (see SEC 2125.903); and
(iii) the registrant is not a shell company and has not been a shell company for the previous 60 calendar days (except as described immediately below) and, if it has been a shell company at any time previously, has filed current Form 10 information (as defined in General Instruction A.1(a)(6) to Form S-8) at least 60 calendar days previously reflecting its status as an entity that is not a shell company.
Registrants that are shell companies are not eligible to use Form S-8. See General Instruction A.1. to Form S-8. A business combination related shell company (as defined in Securities Act Rule 405) may use Form S-8 immediately after it ceases to be a shell company and files current Form 10 information (as defined in General Instruction A.1(a)(6) to Form S-8) reflecting its status as an entity that is not a shell company. See General Instruction A.1(a)(7) to Form S-8.
[Editor’s note: In March 2021, the SEC staff issued Staff Statement on Select Issues Pertaining to Special Purpose Acquisition Companies (SPAC) in which it reminded issuers that following a SPAC combination “[t]he combined company will not be eligible to use Form S-8 for the registration of compensatory securities offerings until at least 60 calendar days after the combined company has filed current Form 10 information.” [footnote omitted]]
.2 Disclosure requirements
.21 What are the prospectus disclosure requirements of Form S-8?
The prospectus disclosure requirements of Form S-8 are set forth in Part I of Form S-8 and consist of two items: Item 1 - Plan Information, and Item 2 - Registrant Information and Employee Plan Annual Information.
Item 1 requires the registrant to deliver, or cause to be delivered to each participant, material information regarding the plan and its operations that will enable participants to make an informed decision regarding investment in the plan. This information must include, to the extent material to the particular plan being described, but is not limited to, the disclosures specified in (a) through (j) of Item 1 of Form S-8. Any unusual risks associated with participation in the plan not described pursuant to a specified item shall be prominently disclosed (e.g., if the plan imposes a substantial restriction on the ability of a participant to withdraw contributions, or if plan participation may obligate the participant's general credit in connection with purchases on a margin basis). The information may be in one or several documents, provided that it is presented in a clear, concise and understandable manner.
Item 2 requires the registrant to provide a written statement to participants advising them of the availability without charge, upon written or oral request, of the documents incorporated by reference in Item 3 of Part II of the registration statement and stating that these documents are incorporated by reference into the prospectus. The statement must also indicate the availability without charge, upon written or oral request, of other documents required to be delivered to employees pursuant to Securities Act Rule 428(b).
.22 How are the required prospectus disclosures generally provided to plan participants?
Form S-8 allows registrants to use existing employee communications as the base for the prospectus. Issuers may generally meet prospectus delivery obligations by providing plan participants one or more documents which contain the required plan information, updated as necessary (see SEC 2125.4), including the written statement required by Part I – Item 2 (described above). The delivered documents, together with the documents incorporated by reference, will constitute a prospectus meeting the requirements of the Securities Act. Issuers are generally not required to file the prospectus with the SEC.
The documents which constitute part of the prospectus must be dated and bear the legend specified in Securities Act Rule 428(b)(1)(iii) stating:
"This document [Specifically designated portions of this document] constitutes [constitute] part of a prospectus covering securities that have been registered under the Securities Act of 1933."
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Unless a registrant clearly identifies the specific portions of a document which constitute part of the prospectus, the entire document will be considered part of the prospectus. See Securities Act Rule 428(b)(1)(ii).
Although issuers are generally not required to file the prospectus with the SEC, they are required to retain documents constituting part of the prospectus for five years after they are last used as part of the prospectus. Further, upon request, the registrant must furnish a copy of any or all of the documents constituting the prospectus to the SEC. See Securities Act Rule 428(a)(2).
See Securities Act Rule 428 for additional information.
.3 Financial statements requirements
.31 What are the financial statements requirements applicable to Form S-8?
Form S-8 does not set forth any separate financial statements requirements. Rather, Form S-8 relies on the incorporation by reference of previously filed financial statements for the registrant (or the plan, as applicable).
For example, a Form S-8 relating to a new stock option plan to be filed by:
- a long-time SEC registrant will incorporate by reference the registrant’s most recently filed annual report (e.g., Form 10-K), which would include its audited financial statements, as well as any subsequently filed Forms 10-Q and Forms 8-K.
- a company that recently completed an initial public offering of its common stock would likely incorporate by reference its IPO prospectus, which contains its most recently filed audited financial statements (and unaudited financial statements, if required), as well as any subsequently filed Forms 10-Q and Forms 8-K.
- a company that recently registered its common stock in connection with a spin-off transaction would likely incorporate by reference its Exchange Act registration statement (e.g., Form 10) filed in connection with the spin-off transaction, which contains its most recently filed audited financial statements (and unaudited financial statements, if required), as well as any subsequently filed Forms 10-Q and Forms 8-K.
Form S-8 is not subject to the same financial statement updating requirements as other registration statements. For example, the sponsor's financial statements incorporated by reference in a Form S-8 do not need to comply with the 45-day year-end rule specified in S-X 3-12. See SEC FRM 15120.4c.1.
See SEC 2125.904 regarding the SEC staff’s position relating to a Form S-8 to be filed after the filing of a Form 10-K but before filing the Form 10-K Part III information.
.4 Updating requirements
.41 What are the Form S-8 prospectus updating requirements?
As specified in General Instruction G to Form S-8, updating of information constituting the Section 10(a) prospectus during the offering of the securities shall be accomplished as follows:
(1) Plan information specified by Item 1 of Form S-8 required to be sent or given to employees shall be updated as specified in Rule 428(b)(1)(i). That information does not need to be filed with the SEC. Rule 428(b)(1)(i) requires that plan information shall be updated in writing, in a timely manner, to reflect any material changes during any period in which offers or sales are being made.
(2) Registrant information shall be updated by the filing of Exchange Act reports, which are incorporated by reference in the registration statement and the Section 10(a) prospectus. Any material changes in the registrant's affairs required to be disclosed in the registration statement but not required to be included in a specific Exchange Act report shall be reported on Item 8.01 Form 8-K ("Other Events") (or, if the registrant is a foreign private issuer, on Form 6-K) (see SEC 2125.42).
(3) An employee plan annual report incorporated by reference in the registration statement from Form 11-K or Form 10-K shall be updated by the filing of a subsequent plan annual report on Form 11-K or Form 10-K.
Updated plan information for material changes may be communicated to plan participants through letters, memoranda, or other documents, provided that the information is presented in a clear and organized fashion. Such information will also have to be dated, include the appropriate legend, and be retained for a period of five years after last use. See SEC 2125.22.
.42 Is a registrant required to file revised financial statements to give effect to events like discontinued operations, segment changes or changes in accounting principle prior to filing a new or amended Form S-8?
Certain events that occur after the end of a fiscal year may require retrospective application to previously filed financial statements if they are reissued. Such events may include (but are not limited to) a discontinued operation, a change in reportable segments, or a change in accounting principle.
As noted in SEC 2125.41, General Instruction G to Form S-8 requires disclosure of any material changes in the registrant's affairs that are not otherwise required to be filed in an Exchange Act report. There is no specific, written definition of what constitutes a "material change" in the context of Form S-8. However, we understand that the term "material change" is generally interpreted similarly to the term "fundamental change" as described in S-K 512.
The determination of what constitutes a "material change" is a legal question that registrants should discuss with their legal counsel. In our experience, registrants and their legal counsel generally do not view retrospective changes to previously issued financial statements due to discontinued operations, changes in segments, or accounting changes as "material changes" for purposes of Form S-8. Accordingly, most registrants conclude that they can file a new or amended registration statement on Form S-8, even if they would have been required to revise previously issued financial statements for one of the reasons described above if, instead of filing Form S-8, they were filing a different registration statement form (e.g., Form S-3). See the note to SEC FRM 13100 and Securities Act Forms CDI 126.40. See also SEC 2120.23 for information regarding the need to revise previously issued financial statements in connection with Form S-3.
[Editor’s note: Registrants should also consider whether a significant Type II subsequent event may be required to be disclosed in the financial statements (see ASC 855, Subsequent Events) and whether events subsequent to the date of original issuance of the financial statements indicate a substantial deterioration in the Company's financial condition.]
.7 Accountants' consent
.71 Where can I find information relating to the SEC’s requirements for accountants’ consents?
See SEC 2400 for a discussion of accountants’ consents.
.8 Experts language
.81 Is experts language usually included in Form S-8?
No. Because securities offerings using Form S-8 are typically not underwritten, it would be unusual for a Form S-8 to include experts language. See SEC 2300.15.
.9 Frequently asked questions
.901 What are some factors that an issuer might consider when evaluating whether interests in a plan constitute a security that is required to be registered under the Securities Act?
The determination of whether an interest in a particular plan constitutes a security as defined in Section 2(a)(1) of the Securities Act requires careful consideration by legal counsel. We understand that the Office of Chief Counsel to the SEC's Division of Corporation Finance has indicated that the SEC staff weighs the presence or absence in each plan of certain features in determining whether the interests therein should be registered. Although these features may not be conclusive individually, their presence in combination may suggest the existence of a "registerable interest." We understand that the features are as follows:
- A continuing program - the plan would be one of indefinite duration and not limited to a specified term of existence. A plan of this type would generally operate in much the same way as an open-end mutual fund, with the contributions being invested in marketable securities and the participants' shares being valued on the basis of the market value of the portfolio. Another feature of these plans is their liquidity, with the participants usually permitted to withdraw all or some of their interest in the plan under certain specified conditions.
- Administration - a separate administrative group would run the plan and generally be responsible to the trustee.
- Registrant - the plan, as represented by the trustees, signs the registration statement used to register the shares offered.
- Company contribution - a contribution would be made by the company, in most instances representing a prescribed percentage of the employee's compensation or contribution.
- Employee contribution - the interests of employees in a plan are securities only when the employees voluntarily participate in the plan and individually contribute thereto. Thus, employee interests in plans which are not both voluntary and contributory may not be required to be registered under the Securities Act.
.902 Can a “voluntary filer” use Form S-8?
No. The SEC staff has stated that Form S-8 would not be available to a company that is not statutorily required to file reports under Section 13 or 15(d) of the Exchange Act (so-called voluntary filers). See Securities Act Forms CDI 126.01.
.903 Is a registrant’s ability to use Form S-8 conditioned on having timely filed prior Exchange Act reports?
No. Although the registrant must have filed all reports and other materials required to be filed by Section 13 or 15(d) of the Exchange Act during the preceding 12 months (or such shorter period that the registrant was required to file such reports and materials), unlike certain other SEC registration forms (e.g., Form S-3), the availability of Form S-8 is not conditioned on the prior Exchange Act reports having been timely filed. See Securities Act Forms CDI 126.10.
.904 May a registrant file a new or amended Form S-8 after it files its most recent Form 10-K but before it files the information required by Part III of Form 10-K?
We understand the SEC staff would not object if a registrant files a new or amended Form S-8 when the Part III information relating to the most recent Form 10-K has not yet been filed as long as the issuer has determined that the prospectus satisfies the relevant requirements of the Securities Act. See Securities Act Forms CDI 126.11.
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