216.01 A company intends to register a stock option plan. Since certain participants in the plan are persons that do not meet the definition of "employee" under General Instruction A.1(a) of Form S-8, Form S-8 is not available for the plan. The registrant, however, meets the primary offering requirements of Form S-3, and the plan may be registered on that form as a primary offering. If the plan is registered on Form S-3, the information concerning the plan required by S-8 would have to be included in the Form S-3 prospectus. [Feb. 27, 2009]

216.02 Form S-3 is not available for the dividend reinvestment plan of a newly formed bank holding company because the annual report to shareholders of the predecessor bank contained only two years of audited financial statements. In this regard, General Instruction I.B.4 of Form S-3 requires that the registrant provide an annual report which meets the requirements of Rule 14a-3(b). That rule requires an annual report with three years of audited financial statements. [Feb. 27, 2009]

216.03 A long-term holder of convertible debentures and warrants to purchase common stock proposed to sell the debentures and the warrants to an underwriter who would exercise the warrants, convert the debentures and make an underwritten public offering of the common stock. Because the proposed distribution appeared to be a primary offering by the issuer, it therefore could not be registered on Form S-3 in reliance on General Instruction I.B.3 as a secondary offering. [Feb. 27, 2009]

216.04 A registrant with an obligation to make matching cash contributions to its profit sharing/401(k) plan sought to contribute shares of its common stock to the plan and then register those shares for resale by the plan's trustee. The proceeds from the sale of the shares were to be used to fund the registrant's obligations under the plan. The use of Form S-8 was inappropriate for trustee's resales because the offering was not for compensatory purposes but rather to satisfy the registrant's own contractual obligations under the plan. Since the offering was on behalf of the registrant and the registrant was not eligible to use Form S-3 for primary offerings, the use of that form was also inappropriate. [Feb. 27, 2009]

216.05 General Instruction I.B.1 of Form S-3 requires an issuer to have $75 million of voting and non-voting common equity held by non-affiliates. The instruction indicates that the $75 million public float requirement may be computed on the basis of the last price at which the issuer's common equity was sold as of a date within 60 days prior to the date of filing. An interim daily price may not be used instead of a closing daily price. In addition, an issuer may not include shares in the public float computation until they are actually issued. [Feb. 27, 2009]

216.06 A registrant wished to use Form S-3 for a combination primary offering by the registrant and secondary offering by an affiliate, but did not meet the $75 million float test of General Instruction I.B.1 to the form. The registrant asked for a waiver, contending that the securities to be sold in the secondary portion of the offering should be included in the float computation, and that the addition of such securities would permit the registrant to meet the float test. The waiver request was denied. [Feb. 27, 2009]

216.07 A waiver request for the use of Form S-3 for a primary offering by an issuer was denied when the aggregate market value of the issuer's voting and non-voting common equity held by non-affiliates was inadequate under General Instruction I.B.1 of Form S-3. The staff does not grant requests for waivers of the "float" tests set forth in General Instruction I.B.1. [Feb. 27, 2009]

216.08 General Instruction I.B.3 of Form S-3 permits the use of the form for secondary offerings if securities of the same class are listed on a national securities exchange or quoted on the automated quotation system of a national securities association. A prospective registrant desired to use Form S-3 for a secondary offering of preferred stock. Although one series of the company's preferred stock was listed on the NYSE, the stock proposed to be registered was a different series with different terms, most notably, a different dividend rate. Under the circumstances, Form S-3 was not available. [Feb. 27, 2009]

216.09 Pursuant to a private placement, securities were to be issued into an escrow account upon partial payment equal to the securities' par value. The issuer contemplated that the securities would be released from escrow upon payment of the remainder of the market price, simultaneously with effectiveness of a Form S-3 for resale of the securities. Although the securities would be considered outstanding under Delaware law at the time of issuance into escrow, they would not be "outstanding" for purposes of General Instruction I.B.3. In addition, the use of the escrow arrangement and the

de minimis

down payment suggests that the offering was in substance a "primary offering" for purposes of Form S-3 eligibility. [Feb. 27, 2009]

216.10 An issuer contemplating a rights offering believed that the offering would not be fully subscribed. In such event, the issuer contemplated offering the unsubscribed securities to its employees. Form S-3 would not be available because General Instruction I.B.4 contemplates rights offerings only to existing shareholders and not to employees. [Feb. 27, 2009]

216.11 A twelve-month reporting company wishes to use Form S-3 for a rights offering to its security holders and a standby offering to the public of any unsubscribed securities. Although the rights offering may be made on Form S-3, the standby offering can be included on the same form only if the issuer is eligible to make primary offerings under General Instruction I.B.1 to the form. The reference to eligible standby arrangements in General Instruction I.B.3 is limited to those done in connection with certain calls or redemptions. [Feb. 27, 2009]

216.12 General Instruction I.B.4 is intended to assure that issuers who are subject only to the periodic reporting obligations of Section 15(d) have provided annual report and proxy type information to persons who will be purchasing securities registered on Form S-3. Most issuers include the disclosure concerning executive officers required by Item 401(b) of Regulation S-K in the Form 10-K rather than in the proxy statement. As a result, that information often is not regularly delivered to shareholders. A separate distribution of that information would not be required in order for Form S-3 to be available to such issuers. [Feb. 27, 2009]

216.13 A company relied on General Instruction I.B.1 to file a Form S-3 that is now effective. When it files its next Form 10-K, the company will not meet the $75 million float requirement in General Instruction I.B.1, but it will meet the requirements of General Instruction I.B.6. Assuming a post-effective amendment is not needed for any other reason, the company does not need to file a post-effective amendment solely to include the information required by Instruction 7 to General Instruction I.B.6; this information may be included on the outside front cover of the prospectus via a prospectus supplement. [Feb. 27, 2009]

216.14 Secondary sales by affiliates may be made under General Instruction I.B.3 to Form S-3, even in cases where the affiliate owns more than 50% of the issuer's securities, unless the facts and circumstances indicate that the affiliate is acting as an underwriter or by or on behalf of the issuer. See Question 116.15. [Feb. 27, 2009]

216.15 A finance company, which is wholly-owned by an issuer that meets the eligibility requirements for Form S-3, proposed to issue a letter of credit guaranteeing certain lease payments on an exempt industrial revenue bond. Form S-3 was available for the registration of the letter of credit since it was considered investment grade debt by virtue of its AAA rating by one of the nationally recognized statistical rating organizations.

See

General Instructions I.B.2 and I.C.1 of Form S-3. [Feb. 27, 2009]

216.16 An issuer that proposes to register debt on Form S-3 is attempting to meet the "investment grade securities" test of General Instruction I.B.2 of the form. The rating of the issuer's securities by a nationally recognized statistical rating organization ("NRSRO") will not be completed by the date the issuer hopes to become effective. The NRSRO, however, will have assigned a preliminary rating indicating investment grade. General Instruction I.B.2 of Form S-3 allows such a Form S-3 to become effective with a preliminary rating.

See

also Instruction 3 to the Signatures section of Form S-3. [Feb. 27, 2009]

216.17 A registrant eligible to use Form S-3 only to register investment grade securities must amend that registration statement prior to sale — by filing an amendment on a form it is then eligible to use — if the securities receive a final rating which is below the four highest rating categories specified by General Instruction I.B.2 of Form S-3. The amendment should be filed pre-effectively if the rating is received prior to the effective date. [Feb. 27, 2009]

216.18 A domestic non-reporting subsidiary of a foreign private issuer that is eligible to file on Form F-3 seeks to register the issuance of investment grade debt that is not guaranteed by the parent. The domestic issuer is permitted to register this offering on Form F-3 under General Instruction I.A.5(ii), and would be permitted to register the offering on Form S-3 pursuant to General Instruction I.C.2 (as a subsidiary of the parent) were it not for the requirement that the parent meet the registrant requirements of Form S-3. (The parent does not file its Exchange Act reports on domestic forms.) Because registering the offering on Form S-3 would result in more information being provided to investors, the domestic subsidiary may register its offering of investment grade debt on Form S-3 rather than Form F-3, assuming that it filed, and went effective on, a Form 10 with full Form 10-K information and incorporated by reference the Form 10 into the Form S-3. The parent must meet the requirements for filing on Form F-3 at the time the subsidiary files the Form S-3. [Feb. 27, 2009]