Securities Act Release No. 33-5951

Exchange Act Release No. 34-15008

July 28, 1978

Minor Amendments to Rules and Forms 

ACTION: Final rule and form amendments.

SUMMARY: The Commission is adopting minor rule and form amendments for the purpose of either codifying current administrative practices or clarifying existing requirements. The amendments will: (1) permit wider use of the rule which allows prospectuses for two or more securities offerings to be combined; (2) specify the circumstances under which the registration form for employee benefit plans must be signed by an entity other than the registrant; and (3) clarify certain requirements of the annual and quarterly reporting forms required to be filed under the Securities Exchange Act of 1934.

EFFECTIVE DATE: August 7, 1978.

FOR FURTHER INFORMATION CONTACT: Peter J. Romeo, Division of Corporation Finance, Securities and Exchange Commission, Washington, D.C. 20549 (202) 755-1240.

SUPPLEMENTARY INFORMATION: The Commission today announced the adoption of various minor amendments to Rule 429 17 CFR 230.429 and Form S-8 17 CFR 239.16b under the Securities Act of 1933 ("1933 Act") 15 U.S.C. 77a et seq. and Forms 10-K 17 CFR 249.310 and 10-Q 17 CFR 249.308a under the Securities Exchange Act of 1934 ("1934 Act") 15 U.S.C. 78a et seq., as amended by Pub. L. No. 94-29 (June 4, 1975). As explained in more detail below, the amendments are intended to revise the rules and forms mentioned above in order either to clarify certain of their requirements or to codify current administrative practices pertaining to them.

DISCUSSION OF THE AMENDMENTS

1. Rule 429

Rule 429 under the 1933 Act permits a registrant which has filed two or more registration statements with the Commission to combine the prospectuses contained in those registration statements into a single prospectus which meets the requirements of the Act. Paragraph (a) of the rule, however, has until now contained an exception to the general availability of Rule 429 for the combining of prospectuses. Specifically, the paragraph has stated that the rule shall not apply if the issuers latest registration statement was filed on Form S-14 17 CFR 239.23 or Form S-16 17 CFR 239.27.

On many occasions in the past several years, the staff of the Commission has been asked on an informal basis to disregard the limiting language of Rule 429 noted above and permit, for example, filings on Form S-16 for secondary offerings of securities to be combined. In almost all such instances, the staff has granted such requests. In view of the staffs general practice in this area, and because it does not appear that any useful purpose would be served by continuing to exclude from the availability of Rule 429 filings on Form S-14 and Form S-16, the Commission has determined to delete from the rule the phrase in paragraph (a) which states that the rule shall not apply where the latest registration statement was filed on Form S-14 or Form S-16.

2. Form S-8

Form S-8 under the 1933 Act is used for the registration of securities issued under employee benefit plans. It requires, as do all registration forms, that the issuer sign the registration statement. In addition, unlike most other registration forms, it requires entities other than the issuer to sign the form. Specifically, it provides that the employee benefit plan must sign (although the circumstances under which the plan must sign are not specified), and it states that where there is created under the plan an unincorporated association, a trust, a committee or other legal entity, such an entity must also sign the registration statement.

Although the instructions to the signature provision of Form S-8 do not indicate the circumstances under which the plan must sign the registration statement, the Commissions staff generally has required the plans signature only when interests in the plan are being registered on the form. ¹ The staff has deemed it appropriate to require the plans signature in such circumstances because, as the issuer of the interests being registered, full financial information on the plan must be provided. In view of the foregoing, and in order to codify the staffs general practice in this area, the Commission has revised Instruction 1 to the signature provision of Form S-8 to state that the plan need sign the S-8 only when interests in the plan are being registered.

In addition to the above change, the Commission has amended Instruction 1 by deleting the parenthetical clause which stated that the registration statement must be signed by any unincorporated association, trust, committee or other legal entity created under the plan. Generally, the staff has not strictly enforced this requirement in the past, due in large part to the refusal or reluctance of such entities as bank trustees to sign the registration statement. Among other things, these entities have stated that their contract with the issuer did not contemplate their signing the S-8, and that it is unreasonable to require them to sign the registration statement (and thereby assume liability for its contents) when they had no control over its preparation and could not, due to the expense involved, perform a due diligence inquiry into its adequacy under the 1933 Act. Moreover, it has been pointed out that if a registration form other than S-8 were utilized for the registration of the securities issued under the plan, the signature of these entities likely would not be required, since none of the other registration forms contain a signature requirement like that of S-8. In view of the above arguments and the staffs general practice in this area, the Commission has amended Instruction 1 in the manner previously noted in this paragraph.

Finally, the Commission has revised Instruction 1 so that it conforms in all material respects to Section 6(a) of the 1933 Act, which provides the basis for the signature requirement in registration statements. In this regard, Instruction 1, through oversight, has failed to state that the principal financial officer must sign the S-8. The staff in the past has disregarded this omission and taken the position that the principal financial officer nevertheless must sign the S-8, in accordance with Section 6(a). The revision to Instruction 1 being announced today will cure the oversight mentioned above and thereby conform the signature requirement of S-8 to the requirements of Section 6(a).

3. Forms 10-K and 10-Q-Front Cover Pages

In conjunction with the adoption of Rule 148 17 CFR 230.148 under the 1933 Act concerning the resale of bankruptcy-related securities, ² the Commission amended Forms 10-K and 10-Q to require issuers who had been involved in bankruptcy proceedings during the preceding five years to state on the front cover pages of those forms whether or not they had complied with the periodic reporting requirements of the 1934 Act during the five year period following termination of the bankruptcy proceedings. The release announcing the adoption of this requirement ³ indicated that the requisite statement need be included on the cover pages of Forms 10-K and 10-Q only during the five year period mentioned above, thereby implying that other issuers to whom it did not apply need not include the statement on their filings on those forms. Nevertheless, numerous issuers who have not been involved in bankruptcy proceedings have inquired whether they must include the statement on the front pages of their 10-K and 10-Q forms.

It was the Commissions intention that the statement at issue be included only on those 10-K and 10-Q forms filed by issuers who had been involved in bankruptcy proceedings during the preceding five years. All other issuers should omit the statement from their filings on those forms. To emphasize this position, the Commission has amended the front cover pages of Forms 10-K and 10-Q to indicate that the statement is "applicable only to issuers involved in bankruptcy proceedings during the preceding five years."

4. Form 10-Q-General Instruction F

It has come to the Commissions attention that General Instruction F to Form 10-Q, unlike the General Instructions to other periodic reporting forms under the 1934 Act, fails to specify how many copies of the form may be filed without exhibits. To cure this oversight, and to conform the filing requirements of Form 10-Q to the staffs administrative practice in this area, the Commission has amended General Instruction F to indicate that three copies shall be filed with exhibits and five other copies, which need not include exhibits, shall also be filed.

TEXT OF THE AMENDMENTS

I. Paragraph (a) of 17 CFR 230.429 is amended to read as follows:

§230.429 Prospectus relating to several registration statements.

(a) Where two or more registration statements have been filed by the same registrant, a prospectus which meets the requirements of the Act and the rules and regulations thereunder for use in connection with the securities covered by the latest registration statement shall be deemed to meet such requirements for use in connection with the securities covered by the earlier registration statements if such prospectus includes all of the information which would currently be required in a prospectus relating to the securities covered by the earlier statements.

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II. Instruction 1 to the "Signatures" section of Form S-8 is amended to read as follows:

§239.16b Form S-8, for registration under the Securities Act of 1933 of securities to be offered to employees pursuant to certain plans

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SIGNATURES

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INSTRUCTIONS

1. The registration statement shall be signed by the issuer, (and where interests in the plan are being registered, by the plan), their respective principal executive officers, principal financial officers, controllers or principal accounting officers, and by at least the majority of the respective boards of directors or persons performing similar functions (or, in the event there is no board of directors or persons performing similar functions, by the majority of the persons having the power of management).

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Secs. 6, 10, 19(a), 48 Stat. 78, 81, 85; secs. 205, 209, 48 Stat. 906, 908, sec 8, 68 Stat. 685; sec. 1, 79 Stat. 1051; sec. 308(a)(2), 90 Stat. 57; 15 U.S.C. 77f, 77j, 77s(a).

III. The front cover page of Form 10-K is revised to read as follows:

§249.310 Form 10-K, annual report pursuant to section 13 or 15(d) of the Securities Exchange Act of 1934.

(The following is to be inserted on the front cover page to replace the statement which reads: "If the registrant has been involved in bankruptcy proceedings during the preceding five years, indicate by check mark whether it has filed all documents and reports required to be filed by sections 12, 13 or 15(d) of the Securities Exchange Act of 1934 subsequent to the distribution of securities under a plan confirmed by a court.

YES______________________________ NO______________________________")

APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY PROCEEDINGS DURING THE PRECEDING FIVE YEARS:

Indicate by check mark whether the registrant has filed all documents and reports required to be filed by Sections 12, 13, or 15(d) of the Securities Exchange Act of 1934 subsequent to the distribution of securities under a plan confirmed by a court.

YES______________________________ NO______________________________

IV. The front cover page of Form 10-Q is revised to read as follows:

§249.308a Form 10-Q, for quarterly reports under section 13 or 15(d) of the Securities Exchange Act of 1934.

(The following is to be inserted on the front cover page to replace the statement which reads: "If the registrant has been involved in bankruptcy proceedings during the preceding five years, indicate by check mark whether it has filed all documents and reports required to be filed by sections 12, 13, or 15(d) of the Securities Exchange Act of 1934 subsequent to the distribution of securities under a plan confirmed by a court.

YES______________________________ NO______________________________")

APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY PROCEEDINGS DURING THE PRECEDING FIVE YEARS:

Indicate by check mark whether the registrant has filed all documents and reports required to be filed by Sections 12, 13, or 15(d) of the Securities Exchange Act of 1934 subsequent to the distribution of securities under a plan confirmed by a court.

YES______________________________ NO______________________________

V. General Instruction F of Form 10-Q is revised to read as follows:

§249.308a Form 10-Q, for quarterly reports under section 13 or 15(d) of the Securities Exchange Act of 1934.

GENERAL INSTRUCTIONS

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F. Signature and Filing of Report.

Three complete copies of the report, including any financial statements, exhibits or other papers or documents filed as a part thereof, and five additional copies which need not include exhibits, shall be filed with the Commission. At least one complete copy of the report, including any financial statements, exhibits or other papers or documents filed as a part thereof, shall be filed with each exchange on which any class of securities of the registrant is registered. At least one complete copy of the report filed with the Commission and one such copy filed with each exchange shall be manually signed. Copies not manually signed shall bear typed or printed signatures.

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Secs. 13, 15(d), 23(a), 48 Stat. 894, 895, 901; sec. 203(a), 49 Stat. 704; secs. 3, 8, 49 Stat. 1377, 1379; secs. 4, 6, 78 Stat. 569, 570-574; sec 2, 82 Stat. 454; secs. 1, 2, 84 Stat. 1479; secs. 10, 18, 89 Stat. 119, 155, sec. 308(b), 90 Stat. 47; 15 U.S.C. 78m, 78o(d), 78w(a).

AUTHORITY FOR THE AMENDMENTS

The amendments to Rule 429 and Form S-8 have been adopted by the Commission pursuant to the Securities Act of 1933, particularly sections 6, 10 and 19(a) thereof. The amendments to Forms 10-K and 10-Q have been adopted pursuant to the Securities Exchange Act of 1934, particularly sections 13, 15(d) and 23(a) thereof.

Because the amendments announced today generally represent a relaxation or clarification of provisions previously published for comment pursuant to the Administrative Procedure Act 15 U.S.C. 553, the Commission believes that none of them need to be republished for comment under the Act.

By the Commission.

George A. Fitzsimmons

Secretary

¹ Frequently, the interests in the plan are exempt from registration under Section 3(a)(2) of the 1933 Act, even though the securities underlying the plan (e.g., the issuers common stock) may have to be registered.

² See Release No. 33-5918 43 FR 14445 dated March 29, 1978.

³ See footnote 2, infra.