Release No. 33-6867

Release No. 34-28094

June 6, 1990

Registration and Reporting Requirements for Employee Benefit Plans

ACTION: Final Rules

SUMMARY: The Commission today announced the adoption of rule and form amendments to revise registration and reporting requirements relating to employee benefit plans. The amendments are intended to reduce costs and expedite the effectiveness and updating of Form S-8 registration statements for such plans by: (1) streamlining Form S-8 registration procedures under the Securities Act of 1933; and (2) amending Form 11-K under the Securities Exchange Act of 1934 to eliminate the requirement for the annual description of the plan.

EFFECTIVE DATE: All amendments are effective [30 days after Federal Register publication]. Registrants may elect to comply with the new rules on or after the date of this release. Registrants electing early compliance and seeking immediate effectiveness for a registration statement filed after the release date must include a statement in the top right corner of the cover page of the Form S-8 registration statement requesting that the registration statement become automatically effective upon filing in accordance with Rule 462. Failure to include the statement will cause the Form S-8 registration statement to be subject to automatic effectiveness 20 days after filing. Refer to Section II.J. of the release for detailed information concerning transition to the new rules under the revised regulatory framework, including the applicability, if any, to ongoing offerings on Form S-8.

FOR FURTHER INFORMATION CONTACT: Elizabeth M. Murphy, Barbara C. Smith, or James R. Budge, Office of Disclosure Policy, Division of Corporation Finance, at (202) 272-2589, Securities and Exchange Commission, 450 Fifth Street, N.W., Washington, D.C. 20549. After the effective date, contact Mary Anne Busse, Office of Chief Counsel, Division of Corporation Finance, at (202) 272-2573.

SUPPLEMENTARY INFORMATION: The Commission is adopting amendments to Forms S-8, ¹ S-3, ² and F-3 ³ under the Securities Act of 1933 (Securities Act); ⁴ to Rules 402, ⁵ 405, ⁶ 416, ⁷ 424(b), ⁸ 457(h), ⁹ 472, ¹⁰ and 475a ¹¹ under Regulation C of the Securities Act; ¹² Items 512 ¹³ and 601 ¹⁴ of Regulation S-K; ¹⁵ and Form 11-K ¹⁶ and Rule 15d-21 ¹⁷ under the Securities Exchange Act of 1934 (Exchange Act). ¹⁸ The Commission also is adding Rules 428 and 462 to Regulation C.

Table of Contents

I. EXECUTIVE SUMMARY

The Commission is adopting substantial revisions to the procedures for registering employee benefit plan ¹⁹ securities on Form S-8. The abbreviated disclosure format of Form S-8 reflects the Commissions historic distinction between offerings made to employees ²⁰ primarily for compensatory and incentive purposes and offerings made by registrants for capital-raising purposes. In recognition of the benefits to employees of participation in benefit plans, the Commission traditionally has exercised its rulemaking authority to reduce the costs and burdens incident to registration of employee benefit plan securities, where consistent with investor protection. ²¹

The revisions adopted today should reduce costs to registrants by eliminating the need to prepare and file separate documents for federal securities law purposes that duplicate information otherwise provided to plan participants, while assuring timely delivery of information necessary for participants to make informed investment decisions. Under the new framework, the required plan information (excluding plan financial statements) and a written statement advising participants of the availability upon request of Exchange Act reports and other documents incorporated by reference into the Form S-8 registration statement are required to be delivered to participants, ²² but no longer will have to be in the form of a customary prospectus. ²³ Registrants will be given the flexibility to use materials prepared in the ordinary course of employee communications to advise employees about their benefits.

Many employee benefit plans involve the registration not only of employer securities, but also of interests in the plan constituting separate securities. ²⁴ To simplify the process of registering and reporting on plan interests, the Commission has: (1) amended Form 11-K, the annual report for employee benefit plans, to require only plan financial statements; ²⁵ (2) amended Rule 416 to provide for registration of an indeterminate amount of plan interests; ²⁶ and (3) amended Rule 457 to provide that there is no separate fee calculation for registration of plan interests. ²⁷

In addition, the Commission has expanded the availability of Form S-8. Under the amendments, the Form may be used by any registrant reporting under the Exchange Act, rather than only those that have been reporting for 90 days. ²⁸ Form S-8 will be available for securities issued pursuant to individually negotiated written compensation contracts ²⁹ and securities issued to compensate consultants and advisors employed by the registrant, under specified circumstances. ³⁰ Form S-8 will be available for securities acquired pursuant to transfers within plans by former employees or the exercise of employee benefit plan stock options by former employees as well as the executors, administrators or beneficiaries of the estates of deceased employees, guardians or members of a committee for incompetent former employees, or similar persons duly authorized by law to administer the estate or assets of former employees. ³¹ Form S-8 also will be available for securities issued to compensate insurance agents who are exclusive agents of the registrant, its subsidiaries or parents. ³²

Other amendments to facilitate Form S-8 offerings, reduce costs, and provide guidance include: permitting registrants to deliver to plan participants, in lieu of the annual report to security holders containing the information required by Exchange Act Rule 14a-3, one of several other documents containing substantially the same Rule 14a-3(b) information; ³³ automatic effectiveness of Form S-8 registration statements upon filing; ³⁴ clarification of filing fees for employee benefit plans; ³⁵ simplification of procedures for the registration of additional plan securities; ³⁶ streamlining Form S-8 disclosure requirements; ³⁷ and clarifying and expanding the provisions for use of Form S-8 for resales. ³⁸

The adopted amendments differ from the proposed revisions in seven significant respects: (1) registrants will be permitted to identify portions of documents deemed part of the Section 10(a) prospectus; (2) registrants will be required to maintain legended documents constituting the Section 10(a) prospectus for a five-year period after their last use; (3) as proposed, the adopted requirements regarding plan information include specific disclosure items but clarify that disclosure need only be made in response to an item if material to the particular plan being described; (4) financial data concerning two or more investment media must be presented for a minimum three-year period; (5) an opinion of counsel as to the legality of the securities being registered need be filed only if such securities are original issuance shares; (6) in lieu of the requirement to provide an opinion of counsel concerning compliance with the requirements of ERISA or a determination letter from the Internal Revenue Service (IRS) that the plan is qualified under Section 401 of the Internal Revenue Code, ³⁹ registrants will be permitted to undertake to submit the plan and amendment to the IRS in a timely manner and make all changes required by the IRS in order to qualify the plan; and (7) in lieu of the Form 11-K financial statement requirements, plans subject to the Employee Retirement Insurance Security Act of 1974 (ERISA) need furnish only such financial statements and schedules as are required to be filed under applicable ERISA regulations, except that the limited scope audit exemption permitted under ERISA ⁴⁰ will not be available. An ERISA plan also may file Form 11-K within 180 days after the plans fiscal year end.

Part III of the release contains two charts, the first showing changes to Form S-8 and the second comparing the Form S-8 undertakings to deliver information formerly required pursuant to Item 512(f) of Regulation S-K, which has been rescinded, to the delivery requirements of Rule 428(b). Significant changes effected by the adopted requirements are discussed below. Clarifying language revisions and other minor changes also have been adopted.

II. AMENDMENTS TO REGISTRATION AND REPORTING REQUIREMENTS

A. Prospectus Requirements

1. Plan Documents Constitute Section 10(a) Prospectus Under Revised Framework

The amendments adopted today eliminate the requirement that registrants prepare a separate document for federal securities law purposes in order to convey plan information to employees in connection with offers and sales of securities being made pursuant to an employee benefit plan. Instead, based on a recognition that materials containing plan information often are prepared by personnel and employee relations offices, the rules require that current plan information be delivered to employees in a timely fashion, but do not specify a legal format for that information, which may be contained in one or more documents provided to plan participants. ⁴¹

The amendments eliminate the requirement that registrants fulfill their prospectus delivery obligations imposed by Section 5 of the Securities Act ⁴² by disseminating a customary prospectus included in the registration statement. ⁴³ Rather, registrants will fulfill such obligations by providing plan participants: (1) document(s) containing the plan information required by Form S-8, updated as necessary; ⁴⁴ and (2) a written statement advising participants of the availability, upon written or oral request, of the documents incorporated by reference in the registration statement and stating that those documents are incorporated by reference in the prospectus. ⁴⁵ These delivered documents, together with the documents incorporated by reference into the Form S-8, ⁴⁶ will constitute a prospectus meeting the requirements of Section 10(a) of the Securities Act pursuant to paragraph (a)(1) of Rule 428. Item 3 to Form S-8, adopted as proposed, will permit incorporation by reference of an effective Exchange Act registration statement on Form 10 or 20-F ⁴⁷ as an alternative to the registrants annual report filed pursuant to Section 13(a) or 15(d) of the Exchange Act or Rule 424(b) prospectus. Registrants also no longer will be required to file the Section 10(a) prospectus with the Commission pursuant to Rule 424.

Several of the commenters suggested expanded use of summary plan descriptions (SPD) for plans subject to ERISA. ⁴⁸ As with any other document describing the plan, the SPD may be used to fulfill the plan information delivery requirements, provided that: (1) the SPD includes all material plan information required by Item 1 of Form S-8, or is supplemented with an additional document or documents containing required information not included in the SPD; ⁴⁹ (2) the required legend noting Securities Act registration is included in the forepart of the document; ⁵⁰ and (3) the SPD is prepared early enough to ensure timely delivery of current plan information to participants under the federal securities laws. Since ERISA mandates that plan administrators furnish an initial SPD to plan participants either within 90 days after an employee becomes a participant or within 120 days after the plan becomes subject to ERISA, ⁵¹ the SPD generally would have to be distributed to plan participants prior to the ERISA deadlines in order to be timely delivered for securities law purposes, as delivery would have to precede or accompany offers and sales of the registrants securities.

2. Legend on Plan Documents

To identify the documents constituting part of the Section 10(a) prospectus, registrants will have to include a legend ⁵² in a conspicuous place at the beginning of each document intended to meet the information delivery requirement 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. ⁵³ Consistent with former requirements, registrants also will have to date each document constituting part of the Section 10(a) prospectus. ⁵⁴

3. Identification of Portions of Documents Deemed Part of Section 10(a) Prospectus

The Proposing Release recognized that some of the documents delivered to plan participants may include information not required by Form S-8. Therefore, comment was solicited as to whether only required plan information contained in each of the documents delivered to plan participants, rather than the entire document, should be deemed part of the Section 10(a) prospectus. ⁵⁵

All but one of the commenters remarking on the issue supported identification of portions of documents deemed to constitute part of the prospectus, and Rule 428, as adopted, permits such identification. ⁵⁶ Rule 428 states, however, that unless a registrant clearly identifies the portions of a document constituting part of the prospectus, the entire document will be deemed to constitute part of the prospectus. A registrant choosing to provide that only portions of a document constitute part of the Section 10(a) prospectus may, for example: (i) include a statement in a conspicuous place at the beginning of the document clearly identifying the information constituting part of the prospectus by reference to section headings, section numbers, paragraphs or page numbers appearing within the document; or (ii) specifically designate throughout the text of the document those portions constituting part of the prospectus. Registrants will not be permitted to designate only words or sentences within a paragraph as part of the prospectus.

4. Section 10(a) Prospectus Documents Retained for Five Years

The Proposing Release provided that registrants would be required to maintain legended documents constituting the Section 10(a) prospectus for a period of three years after the securities had been offered or sold; the Commission also solicited comment on whether a different document maintenance requirement would be appropriate. The adopted rules ⁵⁷ require registrants to retain each document constituting part of the Section 10(a) prospectus in a document file until five years after it is last used as part of the Section 10(a) prospectus.

The adopted requirement clarifies, in response to comments, that the five year period is a rolling period that relates to last use of each document constituting part of the Section 10(a) prospectus, rather than the collective file. Upon request, a registrant must furnish to the Commission or its staff a copy of any or all of the documents constituting the Section 10(a) prospectus included in the file. The five year retention period has been adopted to ensure that documents constituting part of the Section 10(a) prospectus will be maintained throughout the statute of limitations period governing many private fraud claims. ⁵⁸

B. Updating the Section 10(a) Prospectus

Registrants are required to deliver current plan information to plan participants. Accordingly, documents containing plan information must be updated to reflect material changes. ⁵⁹ Registrants may update plan information simply by providing plan participants with a letter, memorandum, or other written document provided that the information is presented in a clear and organized fashion. As with information initially furnished, the updated information will have to be dated and include the legend stating that such information constitutes part of the Section 10(a) prospectus.

Registrants will have to furnish only the updating material to existing plan participants; previously furnished documents need to be delivered only upon an existing participants request. With respect to new plan participants, registrants must deliver the basic plan disclosure documents as well as all updates to such documents. If updates obscure the readability of the plan information or render it confusing, however, or otherwise unduly complicate presentation of the material information, registrants will be required to consolidate the documents and distribute the revised version to new plan participants. ⁶⁰

C. Section 10(a) Prospectus Liability

Under the amendments, non-financial plan information, which is not filed as part of the registration statement, will continue to be subject to Section 12(2) of the Securities Act, ⁶¹ as well as Section 17(a) of the Securities Act and Section 10(b) of the Exchange Act, but will not be subject to Securities Act Section 11 liability. ⁶² Section 11, as well as the other civil liability and antifraud provisions, will continue to apply to the Form S-8 registration statement, including the registrants and the plans filings that are incorporated by reference.

The elimination of Section 11 liability with respect to the narrative plan information should not increase the risk of inadequate disclosure to plan participants, since the compensatory nature of security offerings under employee benefit plans and the relationship between registrants and plan participants provide incentives for the preparation and distribution of accurate plan information. A review of the reported benefit plan cases asserting liability under the federal securities laws indicates that they have been based upon Sections 17(a) and 12(2) of the Securities Act and Section 10(b) of the Exchange Act and Rule 10b-5 thereunder, rather than Section 11. None of the commenters raised concerns with respect to this issue, and the liability aspects of the approach are adopted without modification.

D. Delivery Requirements

1. Delivery of Registrant Information

Formerly, to satisfy the eligibility requirements of Form S-8, a registrant had to furnish plan participants with an annual report to security holders for its latest fiscal year. ⁶³ Delivery of such annual report was required to precede or accompany delivery of the Form S-8 prospectus. ⁶⁴ This requirement caused difficulty for reporting issuers not subject to the Commissions proxy and information statement regulations. ⁶⁵

Under the revised requirements, delivery of the annual report to security holders is not the only means by which registrant information can be delivered to plan participants. Instead, registrants are permitted to use one of several other documents to disseminate registrant information to plan participants. Thus, a registrant not subject to the annual report to security holders requirement, ⁶⁶ and not choosing to prepare such a report, will nonetheless be eligible to use Form S-8.

Pursuant to the new requirement, ⁶⁷ registrants must deliver or cause to be delivered with the documents containing the information required by Part I of Form S-8, to each participant to whom such information is sent, a copy of one of the following: (1) the registrants annual report to security holders; (2) the registrants annual report on Form 10-K, U5S, ⁶⁸ or 20-F; ⁶⁹ (3) the registrants latest prospectus filed pursuant to Rule 424(b) under the Securities Act, ⁷⁰ provided that the prospectus contains substantially the information required by Rule 14a-3(b), or the registration statement was either on Form S-18 or F-1; ⁷¹ or (4) the registrants effective Exchange Act registration statement on either Form 10 or 20-F. ⁷² Audited financial statements for the registrants latest fiscal year must be included in whichever document is used. ⁷³

2. Delivery of Shareholder Communications

The rules adopted today will continue to obligate a Form S-8 registrant to furnish all shareholder communications and other reports furnished to shareholders on a continuing basis to plan participants who do not otherwise receive such information. ⁷⁴ However, the amendments codify the staffs interpretive position that registrants need not deliver shareholder communications and other reports to plan participants electing not to invest in employer securities unless they request such information. ⁷⁵

The amended requirements ⁷⁶ also codify the staffs interpretive position that registrants are not required to deliver shareholder communications and other reports to plan participants in the manner in which those materials are sent to their shareholders. ⁷⁷ Rather, registrants will be permitted to furnish such information by any means reasonably calculated to reach plan participants, provided that it is sent or delivered no later than the time such material is sent to its security holders. Therefore, desk-top delivery, for example, would be permitted. ⁷⁸

E. Registration Statement Requirements

1. Revised Format

The Form S-8 registration statement no longer contains narrative plan information or the Section 10(a) prospectus. While Part I of Form S-8 continues to set forth requirements for disclosure of plan information, documents containing that information will not be filed with the Commission, as explained above. Therefore, pursuant to the revisions, the registration statement will consist of: the facing page; enumeration of documents incorporated by reference into the registration statement (Item 3); description of securities (Item 4); interests of named experts and counsel (Item 5); indemnification of directors and officers (Item 6); exemption from registration claimed (Item 7); ⁷⁹ exhibits (Item 8); undertakings (Item 9); ⁸⁰ and the signature page. Section 11 liability will continue to apply to all information set forth in or incorporated by reference into the registration statement.

As formerly, documents containing information or plan financial statements incorporated by reference in the registration statement will be updated automatically by forward incorporation by reference of subsequently filed Exchange Act reports into the registration statement. Pursuant to Rule 428, these documents will constitute part of the Section 10(a) prospectus as well.

The updating procedures for plan and registrant information have been adopted as proposed, and are described in General Instruction G to Form S-8. As formerly, Form S-8 registrants will be required to describe any material changes in their affairs occurring since the end of the latest fiscal year that have not been previously included in Exchange Act filings incorporated by reference into the registration statement. General Instruction G(2) states that registrant information shall be updated by the incorporation by reference of Exchange Act reports into Form S-8 and that any material changes in the registrants 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 Form 8-K ⁸¹ pursuant to Item 5 thereof. ⁸² This will preserve Section 11 liability on all registrant information. As discussed in the Proposing Release, former Form S-8 permitted material changes in the registrants affairs to be set forth in the prospectus or supplement thereto in lieu of being disclosed in an Exchange Act filing. ⁸³ Requiring the changes to be set forth in Form 8-K reflects the elimination of the customary prospectus from the registration statement.

The requirement in former Item 14 of Form S-8 that registrants describe the securities being offered in accordance with Item 202 of Regulation S-K, ⁸⁴ or that, if such securities constitute capital stock registered under Section 12 of the Exchange Act, the description be incorporated by reference from Exchange Act documents, is included in Part II, Item 4 of the revised Form S-8, as proposed. ⁸⁵ This Item has been modified to provide that the incorporation by reference of the description of Section 12 securities no longer will be limited to capital stock. ⁸⁶ If the class of securities being offered is not registered under Section 12 of the Exchange Act, the information required by Item 202 of Regulation S-K must be included in the registration statement.

2. Elimination of Ninety Day Eligibility Requirement

The Form S-8 amendments eliminate the requirement that a registrant be subject to the reporting requirements of Exchange Act Section 13 or 15(d) for 90 days prior to filing a Form S-8 registration statement. ⁸⁷ Form S-8, as revised, permits any registrant to Form S-8 that: (a) immediately prior to the time the Form S-8 registration statement is filed, was subject to Section 13 or 15(d) reporting requirements; and (b) has filed all reports and other materials pursuant to such requirements during the preceding year or such shorter period that the registrant has been subject to the requirements. ⁸⁸ The condition that Form S-8 registrants be subject to Exchange Act reporting requirements has been retained to ensure that current public information about the registrant is available.

3. Use of Form S-8 for Securities Issued Pursuant to Compensatory Contracts, to Former Employees, and to Consultants and Advisors

As proposed, the General Instructions to Form S-8 would have been revised to indicate that Form S-8 will be available not only for the registration of securities offered pursuant to employee benefit plans ⁸⁹ but also for the registration of securities offerings pursuant to plans benefiting individuals in the form of individually negotiated written compensation contracts. The rules, as adopted, incorporate this proposal, but the amendment is included in Rule 405 for clarity and consistency. ⁹⁰ The amendments to General Instruction A ⁹¹ codify the staffs interpretive position ⁹² that Form S-8 is available for the exercise of non-transferable employee benefit plan stock options and the subsequent sale of the securities by plan participants who are no longer employed by the registrant at the time of exercise or sale, provided that such exercises are not prohibited under the plan. ⁹³

The revised General Instructions also clarify that the term employee includes executors, administrators or beneficiaries of the estates of deceased employees, guardians or members of a committee for incompetent former employees, or similar persons duly authorized by law to administer the estate or assets of former employees. The inclusion of such individuals in the term employee is only to permit Form S-8 registration in connection with: the exercise of employee benefit plan stock options that are non-transferable (except under the laws of descent and distribution) and subsequent sale of the underlying securities, and the acquisition of registrant securities pursuant to intraplan transfers among plan funds (including the reinvestment of earnings on plan funds) by former employees, provided that such exercises, sales or transfers are not prohibited under the terms of the plan.

Form S-8 will be available for offerings to consultants or advisors pursuant to compensatory benefit plans or written compensatory contracts under specified circumstances. The Securities Act definition of employee benefit plan ⁹⁴ and General Instruction A to Form S-8 have been revised to include consultants or advisors who render bona fide services to the registrant, provided that such services are not in connection with the offer or sale of securities in a capital-raising transaction. ⁹⁵ General Instruction A also has been revised to permit Form S-8 to be used for insurance agents who are exclusive agents of the registrant, its subsidiaries or parents.

F. Disclosure Requirements

1. Streamlined Plan Disclosure

As proposed, the amended Form S-8 streamlines and regroups certain form disclosure requirements ⁹⁶ relating to plan information, and consolidates them as Item 1. ⁹⁷ In the Proposing Release, the Commission solicited comment as to whether it would be practical to include the specified plan information in documents not specifically designed to comply with the Form S-8 disclosure requirements, as contemplated by the revised format. The Commission also requested comment on whether plan disclosure requirements should be more general, with each registrant having the flexibility to provide plan information which in its opinion is material to participants under the circumstances.

The majority of those remarking on the proposal supported replacement of detailed disclosure requirements with a more general requirement. Some commenters, however, supported retention of specific disclosure requirements on the grounds that: (i) they provide useful guidance to registrants; and (ii) inadequate disclosure could develop if the specific requirements were eliminated. One commenter noted that, for the most part, it is practical to include the information specified by revised Item 1 in documents not specifically tailored to comply with Form S-8 requirements, but suggested that registrants be given more flexibility to decide which information is material to participants in making an informed investment decision.

Based upon these comments, Item 1 states that registrants shall deliver or cause to be delivered to each participant material information regarding the plan and its operations that will enable participants to make informed decisions with respect to investment in the plan. This information must include, but is not limited to, disclosure in response to the specified information items to the extent that such disclosure is material to the particular plan being described.

Several of the specific disclosure items in Item 1 have been reorganized and modified in response to commenters remarks and for further clarification. The new requirements reflect the following modifications from those proposed:

(a)the former Form S-8 Item 4(f) requirement that unusual risks associated with plan participation be disclosed has been retained; ⁹⁸

(b)the requirement that the name of each company whose employees are entitled to participate in the plan, including subsidiaries, be disclosed has been eliminated;

(c)the item requiring registrants to briefly indicate whether the plan is subject to ERISA and those provisions to which it is subject has been amended to require disclosure only of the general nature of such provisions; ⁹⁹

(d)the item requiring identification of plan administrators has been amended to provide that only an address and a telephone number which participants may use to obtain additional information about the plan and its administrators must be disclosed; ¹⁰⁰

(e)the item requiring that any person, other than a participating employee, with investment discretion as to any or all plan assets in one or more investment media be named and that the investment policies to be followed be described has been retained with respect to ERISA as well as non-ERISA plans; ¹⁰¹

(f)the proposed requirement concerning the description of securities ¹⁰² to be included in delivered plan documents has been modified to state that documents must include the information required by Item 202 of Regulation S-K if other than common stock registered under Section 12 of the Exchange Act is being offered;

(g)the item requiring a description of the securities to be offered, ¹⁰³ has been amended to state that if plan interests are being registered, they need not be separately described;

(h)the instruction to the proposed requirements mandating disclosure as to whether the requirements of Regulations G ¹⁰⁴ or T ¹⁰⁵ had been met, if the plan involved the extension of credit to finance the acquisition of securities, has been converted to a note stating that consideration should be given to the applicability of these regulations; ¹⁰⁶

(i)the items regarding assignment of interests under the plan and charges and deductions that may be made against participants have been revised to indicate that no disclosure need be provided as to the effect of a qualified domestic relations order as defined in ERISA Section 206(d) [29 U.S.C. 1056(d)]; ¹⁰⁷

(j)the item regarding defaults under the plan has been retitled, Forfeitures and Penalties, and revised to require disclosure of any event which under the plan could result in a forfeiture by, or a penalty to, a participant, and the consequences thereof; ¹⁰⁸ and

(k)the item requiring comparative data about investment media has been revised to require financial data concerning alternative investment media to be set forth for at least a three-year period and any additional period necessary to make the data not misleading, but in no event need the total period exceed five years. ¹⁰⁹

Item 1 has been further revised, as proposed, to eliminate the requirements formerly specified by Items 1-3 of Form S-8 ¹¹⁰ concerning summary information, risk factors ¹¹¹ and ratio of earnings to fixed charges, as well as information to appear in the forepart of the registration statement, inside and outside front cover pages of the prospectus, and outside back cover page of the prospectus. ¹¹²

2. Financial Data Concerning Alternative Investment Media

Formerly, Item 12 of Form S-8 required registrants to provide five year financial data in tabular form about each investment medium, if participants could direct all or any part of the assets under a plan to two or more investment media. The proposed amendments would have continued to require that registrants set forth financial data that would enable plan participants to make informed decisions concerning the investment media, but would have eliminated the requirement that such financial data be presented for a specific time period. Moreover, the proposed amendments would have permitted financial data concerning investment alternatives to be in tabular form or other meaningful presentation. Comment was solicited as to whether it would be preferable to specify a definite time period for disclosing performance data and what the appropriate length of time should be, e.g., five years, three years, or two years.

Under Form S-8, as amended, registrants will be permitted to present financial data related to two or more investment media in tabular form or other meaningful presentation; however, in a change from the proposal, Item 1(g) of revised Form S-8 requires that this data be provided for a minimum of three years (or such lesser period for which the data with respect to each investment medium is available). Registrants must include information for additional fiscal years if necessary to make the required data not misleading, but the total period presented need not exceed five years. ¹¹³ A specific time period has been retained to ensure that participants have a sufficient basis for evaluating performance trends.

3. Exhibits, Signatures and Undertakings

The amendments modify the exhibit requirements for registration statements on Form S-8 with respect to opinions of counsel. ¹¹⁴ Pursuant to Section 7 of the Securities Act, the Commission today has determined to rescind the requirement that an opinion of counsel as to the legality of the securities being registered be filed unless such shares are original issuance shares. ¹¹⁵ In addition, in lieu of the requirement to provide an opinion of counsel concerning compliance with the requirements of ERISA or a determination letter that the plan is qualified under Section 401 of the Internal Revenue Code from the IRS, ¹¹⁶ registrants will be permitted to undertake to submit the plan or amendment to the IRS in a timely manner and make all changes required by the IRS in order to qualify the plan. ¹¹⁷ Both of these changes are made at the suggestion of a commenter who noted that the legality opinion requirement for open market purchases is particularly burdensome, indicating that counsel needed to opine on all prior issuances of the securities and that employees did not need greater protection under these circumstances than investors buying shares in the open market. With respect to obtaining an IRS determination letter in lieu of an opinion of counsel, the commenter noted the delays inherent in the process.

Elimination of these exhibit requirements is consistent with the Commissions traditional exercise of its rulemaking authority to reduce the costs and burdens incident to registration of employee benefit plan securities, where consistent with the protection of investors, and reflects the Commissions historic distinction between offerings made to employees primarily for compensatory and incentive purposes and offerings made by registrants for capital-raising purposes. Accordingly, the Commission finds that these requirements are inapplicable to offerings registered on Form S-8 under the circumstances specified, and that the Form S-8 disclosure requirements are adequate for the protection of investors. It should be noted, however, that if either employee benefit plan securities registered on Form S-8 are not legally issued, fully paid and non-assessable when offered or sold, or disclosure concerning compliance of the plan with ERISA is materially misleading, the civil liability provision of Section 12(2) of the Securities Act as well as the antifraud provisions of Section 17 of the Securities Act and Exchange Act Section 10(b) and Rule 10b-5 thereunder would apply.

A registrant filing on Form S-8 will be required to include in the registration statement the indemnification undertaking contained in Item 512(h) of Regulation S-K. ¹¹⁸ Form S-8 will continue to require disclosure in Part II of the registration statement of a registrants policies and arrangements with respect to the indemnification of its directors and officers. ¹¹⁹ Two notes have been added to Item 9, Undertakings. The first explains that the Regulation S-K Item 512(a) ¹²⁰ undertakings are required since Form S-8 registration statements usually involve the delayed or continuous offering and sale of securities. ¹²¹ The second clarifies that the undertaking requiring foreign private issuers to file a post-effective amendment to the registration statement, including any financial statements required by Article 3-19 of Regulation S-X, ¹²² at the start of any delayed offering or throughout a continuous offering, does not apply in the Form S-8 context. ¹²³

Finally, Instruction 1 to the Form S-8 signature requirements has been amended, as proposed, to restore the requirement that the chief financial officer sign the registration statement.

G. Reoffer and Resale Requirements

As formerly was the case, registration of reoffers or resales of employee benefit plan securities may continue to be effected by use of a reoffer prospectus filed in the customary format under cover of Form S-8 but containing the disclosure specified in Part I of Form S-3. ¹²⁴ General Instruction C to Form S-8 has been adopted substantially as proposed in order to clarify the reoffer procedure. ¹²⁵ The new structure highlights the distinction between treatment of control securities (securities issued under an employee benefit plan registered on Form S-8 to be reoffered by affiliates) ¹²⁶ and restricted securities ¹²⁷ (previously unregistered securities issued under an employee benefit plan pursuant to a Securities Act exemption to affiliates or non-affiliates). ¹²⁸

In particular, General Instruction C to Form S-8 has been amended to codify the staffs interpretive position that permits registrants to refer generically to selling security holders of control securities in the reoffer prospectus, provided that the names of those intending to resell are not known at the time of filing the Form S-8 registration statement. Later, as the names become known, registrants must supplement the reoffer prospectus with that information and file the supplement as required by Rule 424(b). ¹²⁹ This procedure will not be available with respect to reoffers by sellers of restricted securities, whether affiliates or non-affiliates of the registrant, since their identity should be known at the time the reoffer transaction is registered. ¹³⁰

The Commission has eliminated the 10% volume limitation on the number of securities that may be registered for resale, as proposed. The volume limitations imposed by Rule 144(e) ¹³¹ will continue to apply to the amount of securities reoffered or resold by means of the reoffer prospectus if the registrant does not meet the registrant requirements of Form S-3. ¹³²

In addition, the Instruction has been revised, as proposed, to specify less burdensome procedures for reoffers by selling shareholders of foreign private issuers eligible to file on Form 20-F. Formerly, General Instruction E to Form S-8 specified that resales by shareholders of such issuers could be made using the same procedures described in General Instruction C with respect to resales by shareholders of domestic registrants, except that a prospectus on either Form F-2 ¹³³ or F-3 would be used (depending on the issuers eligibility to use the respective form) in lieu of a reoffer prospectus prepared in accordance with the requirements of Form S-3. General Instruction E has been rescinded and General Instruction C revised to substitute Form F-3 for S-3 with respect to foreign private issuers eligible to file on Form 20-F wherever applicable. Thus, the reoffer prospectus used in connection with resales of plan securities by employees of any foreign private issuer eligible to file on Form 20-F will comply with the requirements of Form F-3, just as the Form S-3 prospectus is available for a domestic registrant. Similarly, if the foreign private issuer is eligible to use Form F-3, the volume limitations imposed by Rule 144(e) will not apply to reoffers, just as for a domestic registrant meeting the registrant requirements of Form S-3.

H. Other Proposed Amendments to Form S-8

The Commission has adopted, as proposed, the following other changes to Form S-8.

1. Immediate Effectiveness of Form S-8 Registration Statements Upon Filing

Form S-8 registration statements will become effective automatically upon filing, as proposed. ¹³⁴

2. Automatic Registration of Plan Interests

In order to simplify procedures for registering plan interests, ¹³⁵ paragraph (c) has been added to Rule 416 to provide that a registration statement covering both registrant securities offered pursuant to an employee benefit plan and plan interests that constitute separate securities will be deemed to cover such plan interests in an indeterminate amount. ¹³⁶ The facing page of Form S-8 has been modified to require registrants to include a statement, where appropriate, indicating that the registration statement covers an indeterminate amount of plan interests. Thus, plan interests will be registered automatically together with the other securities being offered.

3. Filing Fees

Formerly, the aggregate offering price and the amount of the registration fee for Form S-8 registration statements was computed with respect to the aggregate contributions of employees, except that employer contributions were included if employees could choose the medium in which the employers contributions were to be invested. ¹³⁷ As proposed and adopted, the method of calculating registration fees is based upon the aggregate offering price for the maximum amount of the registrants securities (other than plan interests) covered by the registration statement. ¹³⁸ If the offering price per share (or the option exercise price) is unknown, the fee is calculated on the basis of the market price of registrant securities of the same class as those to be offered, as determined in accordance with paragraph (c) of Rule 457. ¹³⁹ Rule 457(h)(2) provides that there is no separate fee calculation for plan interests. Paragraph (h)(3) of Rule 457 has been added, as proposed, to clarify that, as formerly, where a registration statement covers securities to be offered to employees pursuant to an employee benefit plan, as well as the resale of those securities, no additional filing fee must be paid with respect to the securities to be offered for resale. Also as formerly, a fee will have to be paid for restricted securities registered for resale by employees as permitted by General Instruction C to Form S-8.

4. Registration of Additional Securities

As discussed in the Proposing Release, when a registrant increases the number of securities that may be issued pursuant to an existing plan, it is required to file a new registration statement to cover the additional securities. When such registration statement is filed, Rule 429 ¹⁴⁰ allows the previously registered securities to be offered and sold through the delivery of the prospectus filed as part of the new registration statement. ¹⁴¹

The procedure specified by Rule 429, enabling registrants to disseminate a single prospectus to plan participants in connection with offerings of plan securities registered under two or more registration statements, will not be available with respect to Form S-8 registration statements under the revised framework since Rule 429 contemplates the filing of a prospectus. However, use of a prospectus applicable to securities registered at different times remains possible, without the Rule 429 procedure, because registrants will have the flexibility to modify prospectuses without filing them.

General Instruction E to Form S-8 provides a procedure for the filing of a simplified registration statement covering additional securities of the same class as other employee benefit plan securities for which a previously filed S-8 registration statement or registration statements are effective. ¹⁴² There is no need to repeat previously filed information. The registration statement would consist only of the facing page; a statement indicating that the contents of the earlier registration statement, identified by file number, are incorporated by reference; the signature page; the legality opinion; ¹⁴³ the consents of the accountant and counsel; ¹⁴⁴ and any additional required information not filed earlier, e.g., an exhibit not required to be filed as part of the earlier Form S-8 registration statement.

If the new registration statement covers restricted securities being offered for resale it must include the required reoffer prospectus. If the earlier registration statement included a reoffer prospectus, the new registration statement is deemed to include that reoffer prospectus; however, a revised reoffer prospectus must be filed if the reoffer prospectus is substantively different from that filed in the earlier registration statement.

Registrants will continue to update the Section 10(a) prospectus by delivery of plan information to employees and through incorporation by reference of registrant information and plan financial statements in the prospectus; this information also is incorporated by reference in the Form S-8 registration statement. A filing fee will be paid only with respect to the additional securities being registered.

I. Form 11-K

The amendments to Form 11-K ¹⁴⁵ have been adopted as proposed, except that the filing requirements for ERISA plans have been modified to address commenters concerns as discussed below. The requirements for disclosure of non-financial plan information have been eliminated.

Several commenters advocated an exemption from the Form 11-K annual reporting requirements for ERISA plans given ERISA regulatory requirements. Although such an exemption has not been adopted, the Form 11-K reporting framework has been modified in response to commenters remarks to eliminate the need to prepare and file separate Form 11-K financial statements for federal securities law purposes that duplicate information otherwise provided to plan participants. Under the amendments adopted today, Form 11-K financial statements may be prepared in accordance with the financial reporting requirements of ERISA. ¹⁴⁶ To the extent required by ERISA, the plan financial statements will be required to be examined by an independent public accountant, except that the limited scope exemption will not be available. ¹⁴⁷ Finally, plans subject to ERISA will be permitted to file their Forms 11-K within 180 days after the plans fiscal year end. ¹⁴⁸

Exchange Act Rule 15d-21 permits plan annual financial statements to be filed as part of a registrants annual report on Form 10-K, or as an amendment thereto, rather than on Form 11-K, within 120 days after the end of the plans fiscal year. The Proposing Release solicited comment as to whether such period should be reduced to 90 days to conform to the Form 11-K filing requirements. In view of the comments received as to the value to registrants in having this additional 30 day period, (e.g., so as not to overlap with a registrants Form 10-K preparation), the 120-day filing period option afforded by the Rule has been retained. ¹⁴⁹

J. Transition to New System

The Form S-8 amendments adopted today will become effective 30 days after publication in the Federal Register (Effective Date). All new Form S-8 registration statements filed with the Commission on or after the Effective Date must comply with the revised rule and form requirements and will become effective immediately upon filing in accordance with Rule 462.

Registrants may elect early compliance with the new rules and seek immediate effectiveness of a registration statement filed on or after the date of this Release (Release Date) but must include the following legend in the top right corner of the cover page of the registration statement: The registrant requests that the registration statement become effective immediately upon filing pursuant to Securities Act Rule 462. Any registrant filing a Form S-8 registration statement prior to the Effective Date that does not include this legend may file a pre-effective amendment to elect effectiveness upon filing. Failure to include the legend will cause a registration statement filed before the Effective Date to become effective on the twentieth day from the date of filing.

Registrants with ongoing offerings of securities on Form S-8 may elect to comply with the revised rules and forms at any time on or after the Release Date. ¹⁵⁰ If a registrant elects to continue to use its previously distributed prospectus as its new Section 10(a) prospectus, no additional filing is required, provided that the prospectus is current for federal securities law purposes. If a registrant elects to designate a previously distributed plan document(s), or parts thereof (other than a customary prospectus), as constituting part of the new Section 10(a) prospectus, then it must distribute a dated written notice to plan participants which indicates that the document constitutes part of the Section 10(a) prospectus and states that additional copies of the document(s) are available upon request. ¹⁵¹ All plan documents delivered to new participants under the revised rules must include a legend in accordance with Rule 428(b)(1)(iii).

Registrants with ongoing offerings of securities on Form S-8 will be required to comply with the revised rules and forms pursuant to Rule 401(b) ¹⁵² when Section 10(a)(3) of the Securities Act ¹⁵³ requires the registration statement to be updated. The Section 10(a)(3) updating requirement for a Form S-8 registration statement generally is fulfilled by the registrants filing of an annual report on Form 10-K. Many registrants becoming subject to the new requirements with the filing of the Form 10-K will not have to take any affirmative steps to comply with the new rules; no additional filing is required unless necessary to add Part II information newly required by Form S-8 that has not previously been filed, such as the indemnification undertaking required by Item 512(h) (formerly Item 512(i)) of Regulation S-K. ¹⁵⁴ Registrants with ongoing Form S-8 offerings may rely on Rule 416(c) ¹⁵⁵ with respect to the offer or sale of plan interests made on or after the Release Date; no additional filing needs to be made to indicate such reliance. Rule 416(c) will not apply to offers or sales of plan interests made prior to the Release Date. With respect to the Form 11-K revisions, plans with fiscal years ending on or after the Effective Date will become subject to the new rules. Optional early compliance with these rules also is permitted.

III. CHARTS REFLECTING REVISIONS

The following charts highlight the substantive changes between the former and revised Form S-8 and information delivery requirements. Editorial and clarifying changes are not noted.

A. Revisions to Form S-8

[Chart omitted]

B. Revisions to Information Delivery Requirements

(Form S-8 undertakings formerly specified by Item 512(f) of Regulation S-K now included in Rule 428(b))

[Chart omitted]

IV. COST-BENEFIT ANALYSIS

In the Proposing Release, the Commission requested commenters to provide views and data to aid in evaluating the costs and benefits associated with the proposed rule and form changes. Each of the three commenters who responded to the request indicated that there would be substantial savings to registrants due to the elimination of redundant and unnecessary disclosure. ¹⁵⁶

The Commission believes that the changes to the Form S-8 registration and reporting requirements will decrease significantly the time and expense incurred by reporting companies in registering employer securities to be offered pursuant to employee benefit plans while preserving investor protection and the availability of information to plan participants about the registrant and plan operations under the federal securities laws. The amendments to Form S-8 will reduce prospectus preparation, printing and distribution costs substantially by relying on employer communications to convey material information about employee benefit plans. Elimination of requirements for filing non-financial plan information with the Commission also will reduce costs associated with the issuance of securities pursuant to such plans.

Furthermore, the simplified registration form, with the attendant savings, will benefit a larger number of registrants than could take advantage of Form S-8 registration under the former regulations. Form S-8 registration is available to more issuers because the amended regulations no longer require that a registrant be subjected to the reporting requirements of Exchange Act Section 13 or 15(d) for 90 days prior to filing a Form S-8 registration statement. In addition, its use will be expanded to certain offerings to former employees as well as to those made pursuant to compensatory contracts. Moreover, Form S-8 may be used in connection with offers and sales to consultants and advisors under specified conditions and for securities issued to compensate insurance agents who are exclusive agents of the registrant, its subsidiaries or parents.

The revisions making Form S-8 registration statements effective upon filing, simplifying the method of calculating filing fees, and simplifying the procedures for the registration of additional securities and plan interests each will reduce the burdens and costs associated with the registration process. Finally, amendments to Form 11-K that eliminate the requirement for non-financial plan information and permit ERISA plans to furnish financial statements and schedules that are prepared in accordance with the financial reporting requirements of ERISA, in lieu of the Form 11-K financial statement requirements, should reduce substantially the costs of complying with reporting obligations of plans that are subject to Exchange Act Section 15(d).

V. FINAL REGULATORY FLEXIBILITY ANALYSIS

A Final Regulatory Flexibility Analysis in accordance with 5 U.S.C. 604 has been prepared regarding the amendments described in this release. Members of the public who wish to obtain a copy of the Final Regulatory Flexibility Analysis should contact Elizabeth M. Murphy, Barbara C. Smith, or James R. Budge, (202) 272-2589, Office of Disclosure Policy, Division of Corporation Finance, Securities and Exchange Commission, 450 Fifth Street, N.W., Washington, D.C. 20549. The corresponding Initial Regulatory Flexibility Analysis appears at 54 FR 25948 (Securities Act Release No. 6836).

VI. STATUTORY BASIS FOR RULES AND FORMS

Rules 428 and 462, amendments to Rules 402, 405, 416, 424(b), 457(h), 472, and 475a, Items 512 and 601 of Regulation S-K, and Forms S-8, S-3, and F-3 are being adopted by the Commission pursuant to Section 6, 7, 8, 10, and 19 of the Securities Act. ¹⁵⁷ The amendments to Form 11-K and Rule 15d-21 are being adopted pursuant to Sections 15(d) and 23(a) of the Exchange Act. ¹⁵⁸

List of Subjects in 17 CFR 229, 230, 239, 240 and 249

Prospectus delivery requirements, Reporting and recordkeeping requirements, Registration requirements, Securities.

VII. TEXT OF THE AMENDMENTS

In accordance with the foregoing, Title 17, Chapter II of the Code of Federal Regulations is amended as follows:

PART 229--STANDARD INSTRUCTIONS FOR FILING FORMS UNDER SECURITIES ACT OF 1933, SECURITIES EXCHANGE ACT OF 1934 AND ENERGY POLICY AND CONSERVATION ACT OF 1975--REGULATION S-K

1.The authority citation for Part 229 is revised to read as follows:

(citations before *** indicate general rulemaking authority)

Authority:15 U.S.C. 77f, 77g, 77h, 77j, 77s, 78l, 78m, 78n, 78o, 78w, as amended, unless otherwise noted. *** Section 229.512 also issued under 15 U.S.C. 80a-8, 80a-29, 80a-30 and 80a-37; Section 229.601 also issued under 15 U.S.C. 77aa(25) and (26).

2.The authority citations following Section 229.512 and Section 229.601 are removed.

3.By removing paragraph (f) of §229.512; redesignating paragraphs (g), (h), (i) and (j) as (f), (g), (h) and (i); and revising redesignated paragraph (h) introductory text as follows:

§229.512 (Item 512) Undertakings.

* * * * *

(h)Request for acceleration of effective date or filing of registration statement on Form S-8. Include the following if acceleration is requested of the effective date of the registration statement pursuant to Rule 461 under the Securities Act (§230.461 of this chapter), or if the registration statement is filed on Form S-8, and: ***

* * * * *

4.By amending §229.601 by adding a note to the end of paragraph (b)(5) to read as follows:

§229.601 (Item 601) Exhibits.

* * * * *

(b)*****

(5)***

Note: Attention is directed to Item 8 of Form S-8 for exemptions to this exhibit requirement applicable to that Form.

* * * * *

PART 230--GENERAL RULES AND REGULATIONS, SECURITIES ACT OF 1933

1.The authority citation for Part 230 is revised to read as follows:

(citations before *** indicate general rulemaking authority)

Authority:15 U.S.C. 77s, as amended, unless otherwise noted. *** Section 230.402 also issued under 15 U.S.C. 77f, 77g, 77h, 77j, 77sss, 78c, 78l, 78m, 78n, 78o, 78w, 79t, and 80a-37; Section 230.416 also issued under 15 U.S.C. 77f, 77g and 77j; Section 230.424 also issued under 15 U.S.C. 77b, 77g and 77j; Section 230.428 also issued under 15 U.S.C. 77j; Section 230.457 also issued under 15 U.S.C. 77f, 77g, 77h, 77j, 77sss, 78c, 78l, 78m, 78n, 78o, 78w, 79t, and 80a-37; Section 230.462 also issued under 15 U.S.C. 77f and 77h; Section 230.472 also issued under 15 U.S.C. 77f, 77g, 77h, 77j, 77sss, 78c, 78l, 78m, 78n, 78o, 78w, 79t, and 80a-37; Section 230.475a also issued under 15 U.S.C. 77f, 77g, 77h and 77j.

2.The authority citations following Sections 230.402, 230.416, 230.424, 230.457 and 230.472 are removed.

3.By adding paragraph (c) to §230.402 to read as follows:

§230.402 Number of copies; binding; signatures.

* * * * *

(c)Notwithstanding any other provision of this section, if a registration statement is filed on Form S-8 (§239.16b of this chapter), three copies of the complete registration statement, including exhibits and all other papers and documents filed as a part of the statement, shall be filed with the Commission. Each copy shall be bound, in one or more parts, without stiff covers. The binding shall be made on the side or stitching margin in such manner as to leave the reading matter legible. At least one such copy shall be manually signed by the persons specified in Section 6(a) of the Act. Unsigned copies shall be conformed. Three additional copies of the registration statement, similarly bound, also shall be furnished to the Commission for use in the examination of the registration statement, public inspection, copying and other purposes. No exhibits are required to accompany the additional copies of registration statements filed on Form S-8.

4.By amending §230.405 to revise the definition of Employee benefit plan to read as follows:

§230.405 Definitions of terms.

* * * * *

Employee benefit plan.The term employee benefit plan means any written purchase, savings, option, bonus, appreciation, profit sharing, thrift, incentive, pension or similar plan or written compensation contract solely for employees, directors, general partners, trustees (where the registrant is a business trust), officers, or consultants or advisors, provided that bona fide services shall be rendered by consultants or advisors and such services must not be in connection with the offer or sale of securities in a capital-raising transaction.

* * * * *

5.By revising the section heading and adding paragraph (c) to §230.416 to read as follows:

§230.416Securities to be issued as a result of stock splits, stock dividends and anti-dilution provisions and interests to be issued pursuant to certain employee benefit plans.

* * * * *

(c)Where a registration statement on Form S-8 relates to securities to be offered pursuant to an employee benefit plan, including interests in such plan that constitute separate securities required to be registered under the Act, such registration statement shall be deemed to register an indeterminate amount of such plan interests.

6.By amending paragraph (b) of §230.424 by adding a clause after the first citation (15 U.S.C. 77j), to read as follows:

§230.424Filing of prospectuses, number of copies.

* * * * *

(b)*** except for documents constituting a prospectus pursuant to Rule 428(a) (§230.428(a) of this chapter, ***

* * * * *

7.By adding §230.428 to read as follows:

§230.428Documents constituting a Section 10(a) prospectus for Form S-8 registration statement; requirements relating to offerings of securities registered on Form S-8.

(a)(1)Where securities are to be offered pursuant to a registration statement on Form S-8 (§239.16b of this chapter), the following, taken together, shall constitute a prospectus that meets the requirements of Section 10(a) of the Act: (i) the document(s), or portions thereof as permitted by paragraph (b)(1)(ii) of this section, containing the employee benefit plan information required by Item 1 of the Form; (ii) the statement of availability of registrant information, employee benefit plan annual reports and other information required by Item 2; and (iii) the documents containing registrant information and employee benefit plan annual reports that are incorporated by reference in the registration statement pursuant to Item 3.

(2)The registrant shall maintain a file of the documents that, pursuant to paragraph (a) of this section, at any time are part of the Section 10(a) prospectus, except for documents required to be incorporated by reference in the registration statement pursuant to Item 3 of Form S-8. Each such document shall be included in the file until five years after it is last used as part of the Section 10(a) prospectus to offer or sell securities pursuant to the plan. With respect to documents containing specifically designated portions that constitute part of the Section 10(a) prospectus pursuant to paragraph (b)(1)(ii) of this section, the entire document shall be maintained in the file. Upon request, the registrant shall furnish to the Commission or its staff a copy of any or all of the documents included in the file.

(b)Where securities are offered pursuant to a registration statement on Form S-8:

(1)(i)The registrant shall deliver or cause to be delivered, to each employee who is eligible to participate (or selected by the registrant to participate, in the case of a stock option or other plan with selective participation) in an employee benefit plan to which the registration statement relates, the information required by Part I of Form S-8. The information shall be in written form and 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. When updating information is furnished, documents previously furnished need not be re-delivered, but the registrant shall furnish promptly without charge to each employee, upon written or oral request, a copy of all documents containing the plan information required by Part I that then constitute part of the Section 10(a) prospectus.

(ii)The registrant may designate an entire document or only portions of a document as constituting part of the Section 10(a) prospectus. If the registrant designates only portions of a document as constituting part of the prospectus, rather than the entire document, a statement clearly identifying such portions, for example, by reference to section headings, section numbers, paragraphs or page numbers within the document must be included in a conspicuous place in the forepart of the document, or such portions must be specifically designated throughout the text of the document. Registrants shall not designate only words or sentences within a paragraph as part of a prospectus. Unless the portions of a document constituting part of the Section 10(a) prospectus are clearly identified, the entire document shall constitute part of the prospectus.

(iii)The registrant shall date any document constituting part of the Section 10(a) prospectus or containing portions constituting part of the prospectus and shall include the following printed, stamped or typed legend in a conspicuous place in the forepart of the document, substituting the bracketed language as appropriate: 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.

(iv)The registrant shall revise the document(s) containing the plan information sent or given to newly eligible participants pursuant to paragraph (b)(1)(i) of this section, if documents containing updating information would obscure the readability of the plan information.

(2)The registrant shall deliver or cause to be delivered with the document(s) containing the information required by Part I of Form S-8, to each employee to whom such information is sent or given, a copy of any one of the following: (i) the registrants annual report to security holders containing the information required by Rule 14a-3(b) (§240.14a-3(b) of this chapter) under the Securities Exchange Act of 1934 (Exchange Act) for its latest fiscal year; (ii) the registrants annual report on Form 10-K (§249.310 of this chapter), U5S (§259.5s of this chapter), or 20-F (§249.220f of this chapter) for its latest fiscal year; (iii) the latest prospectus filed pursuant to Rule 424(b) (§230.424(b) of this chapter) under the Act that contains audited financial statements for the registrants latest fiscal year, provided that the financial statements are not incorporated by reference from another filing, and provided further that such prospectus contains substantially the information required by Rule 14a-3(b) or the registration statement was on Form S-18 (§329.28 of this chapter) or F-1 (§239.31 of this chapter); or (iv) the registrants effective Exchange Act registration statement on Form 10 (§249.210 of this chapter) or 20-F containing audited financial statements for the registrants latest fiscal year.

Instructions. 1. If a registrant has previously sent or given an employee a copy of any document specified in clauses (i)(iv) of paragraph (b)(2) for the latest fiscal year, it need not be re-delivered, but the registrant shall furnish promptly, without charge, a copy of such document upon written or oral request of the employee.

2.If the latest fiscal year of the registrant has ended within 120 days (or 190 days with respect to foreign private issuers eligible to file on Form 20-F) prior to the delivery of the documents containing the information specified by Part I of Form S-8, the registrant may deliver a document containing financial statements for the fiscal year preceding the latest fiscal year, provided that within the 120 or 190 day period a document containing financial statements for the latest fiscal year is furnished to each employee.

(3)The registrant shall deliver or cause to be delivered promptly, without charge, to each employee to whom information is required to be delivered, upon written or oral request, a copy of the information that has been incorporated by reference pursuant to Item 3 of Form S-8 (not including exhibits to the information that is incorporated by reference unless such exhibits are specifically incorporated by reference into the information that the registration statement incorporates).

(4)Where interests in a plan are registered, the registrant shall deliver or cause to be delivered promptly, without charge, to each employee to whom information is required to be delivered, upon written or oral request, a copy of the then latest annual report of the plan filed pursuant to Section 15(d) of the Exchange Act, whether on Form 11-K (§249.311 of this chapter) or included as part of the registrants annual report on Form 10-K.

(5)The registrant shall deliver or cause to be delivered to all employees participating in a stock option plan or plan fund that invests in registrant securities (and other plan participants who request such information orally or in writing) who do not otherwise receive such material, copies of all reports, proxy statements and other communications distributed to its security holders generally, provided that such material is sent or delivered no later than the time it is sent to security holders.

(c)As used in this Rule, the term employee benefit plan is defined in Rule 405 of Regulation C (§230.405 of this chapter) and the term employee is defined in General Instruction A.1 of Form S-8.

8.By revising paragraph (h) of §230.457 to read as follows:

§230.457 Computation of fee.

* * * * *

(h)(1)Where securities are to be offered pursuant to an employee benefit plan, the aggregate offering price and the amount of the registration fee shall be computed with respect to the maximum number of the registrants securities issuable under the plan that are covered by the registration statement. If the offering price is not known, the fee shall be computed upon the basis of the price of securities of the same class, as determined in accordance with paragraph (c) of this section. In the case of an employee stock option plan, the aggregate offering price and the fee shall be computed upon the basis of the price at which the options may be exercised, or, if such price is not known, upon the basis of the price of securities of the same class, as determined in accordance with paragraph (c) of this section. If there is no market for the securities to be offered, the book value of such securities computed as of the latest practicable date prior to the date of filing the registration statement shall be used.

(2)If the registration statement registers securities of the registrant and also registers interests in the plan constituting separate securities, no separate fee is required with respect to the plan interests.

(3)Where a registration statement includes securities to be offered pursuant to an employee benefit plan and covers the resale of the same securities, no additional filing fee shall be paid with respect to the securities to be offered for resale. A filing fee determined in accordance with paragraph (c) of this section shall be paid with respect to any additional securities to be offered for resale.

* * * * *

9.By adding §230.462 to read as follows:

§230.462 Effective date of a registration statement filed on Form S-8.

A registration statement on Form S-8 (§239.16b of this chapter) shall become effective upon filing with the Commission.

10.By adding paragraph (d) to §230.472 to read as follows:

§230.472 Filing of amendments; number of copies.

* * * * *

(d)Notwithstanding any other provision of this section, if a registration statement filed on Form S-8 (§239.16b of this chapter) is amended, there shall be filed with the Commission three complete, unmarked copies of every amendment, including exhibits and all other papers and documents filed as part of the amendment. Three additional, unmarked copies of such amendments shall be furnished to the Commission. No exhibits are required to accompany the additional copies of amendments to registration statements filed on Form S-8.

11.By revising the section heading and introductory phrase in §230.475a up to the second ; to read as follows:

§230.475a Certain pre-effective amendments on Forms S-3, S-4, F-2, F-3 and F-4 deemed filed with the consent of Commission.

Amendments to a registration statement on Form S-3, F-2, or F-3 (§239.13, §239.32 or §239.33 of this chapter) relating to a dividend or interest reinvestment plan;***

Part 239--FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933

1.The authority citation for Part 239 continues to read, in part, as follows: Authority: The Securities Act of 1933, 15 U.S.C. 77a, et seq., ***

2.By revising General Instruction I.B.3 of Form F-3 (§239.33) to read as follows:

Note--The text of Form F-3 is not and the amendment will not be included in the Code of Federal Regulations.

Instructions and Form

FORM F-3

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

* * * * *

GENERAL INSTRUCTIONS

* * * * *

I.B.3. Transactions Involving Secondary Offerings

Outstanding securities to be offered for the account of any person other than the issuer, including securities acquired by standby underwriters in connection with the call or redemption by the issuer of warrants or a class of convertible securities, if the financial statements in the registrants latest filing on Form 20-F comply with Item 18 thereof. (In addition, attention is directed to General Instruction C to Form S-8 (§239.16b) for the registration of employee benefit plan securities for resale.)

* * * * *

3.By revising the last sentence of General Instruction I.B.3 of Form S-3 (§239.13) to read as follows:

Note--The text of Form S-3 is not and the amendment will not be included in the Code of Federal Regulations.

Instructions and Form

FORM S-3

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

* * * * *

GENERAL INSTRUCTIONS

* * * * *

I.B.3.*** (In addition, attention is directed to General Instruction C to Form S-8 (§239.16b) for the registration of employee benefit plan securities for resale.)

* * * * *

4.By revising §239.16b 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 employee benefit plans.

Any registrant that, immediately prior to the time of filing a registration statement on this form, is subject to the requirement to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, and has filed all reports and other materials required to be filed by such requirements during the preceding 12 months (or for such shorter period that the registrant was required to file such reports and materials), may use this form for registration under the Securities Act of 1933 (the Act) of the following securities:

(a)Securities of such registrant to be offered to its employees or employees of its subsidiaries or parents pursuant to any employee benefit plan.

(b)Interests in the above plans, if such interests constitute securities and are required to be registered under the Act. (See Release No. 33-6188 (February 1, 1980) and Section 3(a)(2) of the Act.)

5.By revising the text of Form S-8 (§239.16b) to read as follows:

Note--The text of Form S-8 is not and the amendments will not be included in the Code of Federal Regulations.

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  Instructions and Form
  Form S-8
  REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
  ...........................................................................................................
  (Exact name of registrant as specified in its charter)
  ...........................................................................................................
  (State or other jurisdiction of incorporation or                  (I.R.S. Employer Identification No.)
  organization)
  ...........................................................................................................
  (Address of Principal Executive Offices)                          (Zip Code)
  ...........................................................................................................
  (Full title of the plan)
  ...........................................................................................................
  (Name and address of agent for service)
  ...........................................................................................................
  (Telephone number, including area code, of agent for service)
  Calculation of Registration Fee
  Title of securities    Amount to be          Proposed               Proposed               Amount of
  to be registered       registered            maximum                maximum                registration fee

                                         offering price per     aggregate

                                         share                  offering price

(If plan interests are being registered, include the following: In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan(s) described herein.)

GENERAL INSTRUCTIONS

A.Rule as to Use of Form S-8.

1.Any registrant that, immediately prior to the time of filing a registration statement on this form, is subject to the requirement to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 (Exchange Act), and has filed all reports and other materials required to be filed by such requirements during the preceding 12 months (or for such shorter period that the registrant was required to file such reports and materials), may use this form for registration under the Securities Act of 1933 (Act) of the following securities:

(a)Securities of such registrant to be offered pursuant to any employee benefit plan to its employees or employees of its subsidiaries or parents. For purposes of this form, the term employee benefit plan is defined in Rule 405 of Regulation C (§230.405). For purposes of this form, the term employee is defined as any employee, director, general partner, trustee (where the registrant is a business trust), officer, or consultant or advisor, provided that bona fide services shall be rendered by consultants or advisors and such services must not be in connection with the offer or sale of securities in a capital-raising transaction. In addition, the term employee includes insurance agents who are exclusive agents of the registrant, its subsidiaries or parents. The term employee also includes former employees as well as executors, administrators or beneficiaries of the estates of deceased employees, guardians or members of a committee for incompetent former employees, or similar persons duly authorized by law to administer the estate or assets of former employees. The inclusion of all such individuals described in the preceding sentence in the term employee is only to permit registration on Form S-8 of: (i) the exercise of employee benefit plan stock options that are non-transferable (except under the laws of descent and distribution) and the subsequent sale of the securities, provided that such exercises and sales are not prohibited under the terms of the plan; and (ii) the acquisition of registrant securities pursuant to intra-plan transfers among plan funds, provided that such transfers are not prohibited under the terms of the plan. The term registrant as used in this form means the person whose securities are to be offered pursuant to the plan, and also may mean the plan itself.

(b)Interests in the above plans, if such interests constitute securities and are required to be registered under the Act. (See Release No. 33-6188 (February 1, 1980) and Section 3(a)(2) of the Act.)

2.Where interests in a plan are being registered and the plans latest annual report filed pursuant to Section 15(d) of the Exchange Act is to be incorporated by reference pursuant to the requirements of Form S-8, the plan shall either: (i) have been subject to the requirement to file reports pursuant to Section 15(d) and shall have filed all reports required to be filed by such requirements during the preceding 12 months (or for such shorter period that the plan was required to file such reports); or (ii) if the plan has not previously been subject to the reporting requirements of Section 15(d), concurrently with the filing of the registration statement on Form S-8, the plan shall file an annual report for its latest fiscal year (or if the plan has not yet completed its first fiscal year, then for a period ending not more than 90 days prior to the filing of this registration statement), provided that if the plan has not been in existence for at least 90 days prior to the filing date, the requirement to file an employee plan annual report concurrently with the Form S-8 registration statement shall not apply.

B.Application of General Rules and Regulations.

1.Attention is directed to the General Rules and Regulations under the Act, particularly those comprising Regulation C thereunder (17 CFR 230.400 to 230.499). That Regulation contains general requirements regarding the preparation and filing of registration statements. However, any provision in this form covering the same subject matter as any such requirement shall be controlling unless otherwise specifically provided in Regulation C (see §230.400).

2.Attention is directed to Regulation S-K (17 CFR Part 229) for the requirements applicable to the content of the non-financial portions of registration statements under the Act. Where this form directs the registrants to furnish information required by any item of Regulation S-K, information need only be furnished to the extent appropriate.

C.Reoffers and Resales.

1.Securities. Reoffers and resales of the following securities may be made on a continuous or delayed basis in the future, as provided by Rule 415 (§230.415), pursuant to a registration statement on this form by means of a separate prospectus (reoffer prospectus), which is prepared in accordance with the requirements of Part I of Form S-3 (or, if the registrant is a foreign private issuer eligible to file on Form 20-F, in accordance with Part I of Form F-3), and filed with the registration statement on Form S-8 or, in the case of control securities, a post-effective amendment thereto:

(a)Control securities, which are defined for purposes of this General Instruction C as securities acquired under a Securities Act registration statement held by affiliates of the registrant as defined in Rule 405 (§230.405). Control securities may be included in a reoffer prospectus only if they have been or will be acquired by the selling security holder pursuant to an employee benefit plan; or

(b)Restricted securities, which are defined for purposes of this General Instruction C as securities issued under any employee benefit plan of the registrant meeting the definition of restricted securities in Rule 144(a)(3) (§230.144(a)(3)), whether or not held by affiliates of the registrant. Restricted securities may be included in a reoffer prospectus only if they have been acquired by the selling security holder prior to the filing of the registration statement.

2.Limitations. The reoffer prospectus may be used as follows:

(a)If the registrant, at the time of filing such prospectus, satisfies the registrant requirements for use of Form S-3 (or if the registrant is a foreign private issuer eligible to file on Form 20-F, the registrant requirements for use of Form F-3), then control and restricted securities may be registered for reoffer and resale without any limitations.

(b)If the registrant, at the time of filing such prospectus, does not satisfy the registrant requirements for use of Form S-3 or F-3, as appropriate, then the following limitation shall apply with respect to both control securities and restricted securities: the amount of securities to be reoffered or resold by means of the reoffer prospectus, by each person, and any other person with whom he or she is acting in concert for the purpose of selling securities of the registrant, may not exceed, during any three month period, the amount specified in Rule 144(e) (§230.144(e)).

3.Selling Security Holders.

(a)Control Securities. If the names of the security holders who intend to resell are not known by the registrant at the time of filing the Form S-8 registration statement, the registrant may either: (1) refer to the selling security holders in a generic manner in the reoffer prospectus; later, as their names and the amounts of securities to be reoffered become known, the registrant must supplement the reoffer prospectus with that information; or (2) name in the reoffer prospectus all persons eligible to resell and the amounts of securities available to be resold, whether or not they have a present intent to do so; any additional persons must be added by prospectus supplement. Prospectus supplements must be filed with the Commission as required by Rule 424(b) (§230.424(b)). The registrant may file a reoffer prospectus covering control securities as part of the initial registration statement or by means of a post-effective amendment to the Form S-8 registration statement.

(b)Restricted Securities. All persons (including non-affiliates) holding restricted securities registered for reoffer or resale pursuant to a reoffer prospectus are to be named as selling shareholders in the reoffer prospectus; provided, however, that any non-affiliate who holds less than the lesser of 1000 shares or 1% of the shares issuable under the plan to which the Form S-8 registration statement relates need not be named if the reoffer prospectus indicates that certain unnamed non-affiliates, each of whom may sell up to that amount, may use the reoffer prospectus for reoffers and resales. The reoffer prospectus covering restricted securities must be filed with the initial registration statement, not a post-effective amendment thereto.

Notes to General Instruction C

1.The term person as used in this General Instruction C shall be the same as set forth in Rule 144(a)(2) (§230.144(a)(2)).

2.If the conditions of this General Instruction C are not satisfied, registration of reoffers or resales must be made by means of a separate registration statement using whichever form is applicable.

D.Filing and Effectiveness of Registration Statement; Requests for Confidential Treatment; Number of Copies.

A registration statement on this Form S-8 will become effective automatically (Rule 462, §230.462) upon filing (Rule 456, §230.456). In addition, post-effective amendments on this form shall become effective upon filing (Rules 464, §230.464 and 456). Delaying amendments are not permitted in connection with any registration statement on this form (Rule 473(d), §230.473(d)), and any attempt to interpose a delaying amendment of any kind will be ineffective. All filings made on or in connection with this form become public upon filing with the Commission. As a result, requests for confidential treatment made under either Rule 406 (§230.406), or Exchange Act Rule 24b-2 (§240.24b-2) in connection with documents incorporated by reference, must be acted upon, i.e., granted or denied, by the Commission staff prior to the filing of the registration statement. The number of copies of the filing required by Rules 402(c) and 472(d) (§230.402(c), §230.472(d)) shall be filed with the Commission.

E.Registration of Additional Securities.

With respect to the registration of additional securities of the same class as other securities for which a registration statement filed on this form relating to an employee benefit plan is effective, the registrant may file a registration statement consisting only of the following: the facing page; a statement that the contents of the earlier registration statement, identified by file number, are incorporated by reference; required opinions and consents; the signature page; and any information required in the new registration statement that is not in the earlier registration statement. If the new registration statement covers restricted securities being offered for resale, it shall include the required reoffer prospectus. If the earlier registration statement included a reoffer prospectus, the new registration statement shall be deemed to include that reoffer prospectus; provided, however, that a revised reoffer prospectus shall be filed, if the reoffer prospectus is substantively different from that filed in the earlier registration statement. The filing fee required by the Act and Rule 457 (§230.457) shall be paid with respect to the additional securities only.

F.Registration of Plan Interests.

Where a registration statement on this form relates to securities to be offered pursuant to an employee stock purchase, savings, or similar plan, the registration statement is deemed to register an indeterminate amount of interests in such plan that are separate securities and required to be registered under the Securities Act. See Rule 416(c) (§230.416(c)).

G.Updating.

Updating of information constituting the Section 10(a) prospectus pursuant to Rule 428(a) (§230.428(a)) 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) (§230.428(b)(1)). Such information need not be filed with the Commission.

(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 registrants 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 Form 8-K (§249.308) pursuant to Item 5 thereof.

(3)An employee plan annual report incorporated by reference in the registration statement from Form 11-K (or Form 10-K, as permitted by Rule 15d-21 (§240.15d-21)) shall be updated by the filing of a subsequent plan annual report on Form 11-K or 10-K.

Part I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

Note: The document(s) containing the information specified in this Part I will be sent or given to employees as specified by Rule 428(b)(1) (§230.428(b)(1)). Such documents need not be filed with the Commission either as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424 (§230.424). These documents and the documents incorporated by reference in the registration statement pursuant to Item 3 of Part II of this form, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. See Rule 428(a)(1) (§230.428(a)(1)).

Item 1. Plan Information.

The registrant shall 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 shall include, to the extent material to the particular plan being described, but not be limited to, the disclosure specified in (a) through (j) below. Any unusual risks associated with participation in the plan not described pursuant to a specified item shall be prominently disclosed, as, for example, when the plan imposes a substantial restriction on the ability of a participant to withdraw contributions, or when plan participation may obligate the participants 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. See Rule 421 (§230.421).

(a)General Plan Information

(1)Give the title of the plan and the name of the registrant whose securities are to be offered pursuant to the plan.

(2)Briefly state the general nature and purpose of the plan, its duration, and any provisions for its modification, earlier termination or extension to the extent that they affect the participants.

(3)Indicate whether the plan is subject to any provisions of the Employee Retirement Income Security Act of 1974 (ERISA), and if so, the general nature of those provisions to which it is subject.

(4)Give an address and a telephone number, including area code, which participants may use to obtain additional information about the plan and its administrators. State the capacity in which the plan administrators act (e.g., trustees or managers) and the functions that they perform. If any person other than a participating employee has discretion with respect to the investment of all or any part of the assets of the plan in one or more investment media, name such person and describe the policies followed and to be followed with respect to the type and proportion of securities or other property in which funds of the plan may be invested. If the plan is not subject to ERISA: (i) state the nature of any material relationship between the administrators and the employees, the registrant or its affiliates; and (ii) describe the manner in which the plan administrators are selected, their term of office, and the manner in which they may be removed from office.

(b)Securities to be Offered

(1)State the title and total amount of securities to be offered pursuant to the plan.

(2)Furnish the information required by Item 202 of Regulation S-K (§229.202), except that if common stock registered under Section 12 of the Exchange Act is offered, such information is unnecessary. If plan interests are being registered, they need not be described pursuant to this item.

(c)Employees Who May Participate in the Plan

Indicate each class or group of employees that may participate in the plan and the basis upon which the eligibility of employees to participate therein is to be determined.

(d)Purchase of Securities Pursuant to the Plan and Payment for Securities Offered

(1)State the period of time within which employees may elect to participate in the plan, the price at which the securities may be purchased or the basis upon which such price is to be determined, and any terms regarding the amount of securities that an eligible employee can purchase.

(2)State when and the manner in which employees are to pay for the securities purchased pursuant to the plan. If payment is to be made by payroll deductions or other installment payments, state the percentage of wages or salaries or other basis for computing such payments, and the time and manner in which an employee may alter the amount of such deduction or payment.

(3)State the amount each employee is required or permitted to contribute or, if not a fixed amount, the percentage of wages or salaries or other basis of computing contributions.

(4)If contributions are to be made under the plan by the registrant or any employer, state who is to make such contributions, when they are to be made and the nature and amount of each contribution. If such contributions are not a fixed amount, state the basis for computing contributions.

(5)State the nature and frequency of any reports to be made to participating employees as to the amount and status of their accounts.

(6)If the plan is not subject to ERISA, state whether securities are to be purchased in the open market or otherwise. If they are not to be purchased in the open market, then state from whom they are to be purchased and describe the fees, commissions or other charges paid. If the employer or any of its affiliates, or any person having a material relationship with the employer or any of its affiliates, directly or indirectly, receives any part of the aggregate purchase price (including fees, commissions or other charges), explain the basis for compensation.

Note: If the plan is one under which credit is extended to finance the acquisition of securities, consideration should be given to the applicability of Regulation G (12 CFR Part 207) or T