226.01 Plan interests were inadvertently omitted from the Form S-8 registering company securities to be offered under the employee benefit plan. In this situation the company may register an indeterminate amount of plan interests pursuant to Rule 416(c), and there would be no filing fee. [Feb. 27, 2009]

226.02 A company issues options to independent distributors of pharmaceutical products. The company considered the individual distributors to be de facto employees of the issuer because they would be doing this kind of work only for the issuer, and the issuer would keep them informed through the distribution of Exchange Act reports. Based on these facts and considering that the nature of the services provided to the issuer would be Amway-style pyramid "network distribution," which would not necessarily be the primary source of the distributors' earned income, the use of Form S-8 was not permitted. [Feb. 27, 2009]

226.03 Item 8.A.5 of Form 20-F requires foreign private issuers to provide interim financial statements as of an interim date within nine months of the effective date. The undertaking in Item 512(a)(4) of Regulation S-K generally requires a foreign private issuer to update its financial statements in a registration statement, as required by Item 8.A of Form 20-F, during continuous offerings under Rule 415. However, for offerings on Form S-8, pursuant to Note 2 to Item 9 of that form, foreign private issuers are not required to provide the Regulation S-K Item 512(a)(4) undertaking and thus are not subject to this updating requirement. [Feb. 27, 2009]

226.04 A Form S-8 registration statement is being filed for an employee benefit plan that is available only to Canadian employees. Under these circumstances, the discussion and legal opinion relating to U.S. tax aspects of the plan are not required, but an opinion of Canadian counsel on the Canadian tax treatment is required. [Feb. 27, 2009]

226.05 An issuer is preparing to register additional shares of employer stock for its employee thrift plan. The plan trustee, which is an affiliate, participates in the issuer's dividend reinvestment plan (DRIP), which is registered on Form S-3. In calculating the number of shares remaining available under the Form S-8, the issuer need not subtract the number of shares distributed through the registered DRIP. This position is based on the view that the DRIP shares were taken on behalf of thrift plan participants, so that the trustee's distribution of such shares should not require further registration. [Feb. 27, 2009]

226.06 Item 8(b) of Form S-8 permits registrants, in lieu of filing an opinion of counsel concerning compliance with the requirements of ERISA or a determination letter with the IRS that the plan is qualified under Section 401 of the IRC (see Item 601(b)(5)(ii) and (iii) of Regulation S-K), to undertake to submit a plan or amendment to the IRS in a

timely

manner and make all changes required by the IRS in order to qualify the plan.

Prior to seeking a determination letter, and in order to avoid certain sanctions for plan "defects" under the IRC, a registrant wished to voluntarily contact the IRS under its "Closing Agreement Program" ("CAP," and when done voluntarily, a "Walk-in CAP") to resolve the "defects." If a registrant filed a Form S-8, but participated in the Walk-in Cap (estimated to take 3-6 months) prior to seeking the IRS determination letter, such participation prior to the submission of the plan or amendment for a determination letter would not render the submission "untimely" for purposes of Item 8(b) of Form S-8, as long as the registrant was diligently and in good faith participating in this Walk-in CAP program. This is based in part on the recognition in Securities Act Release No. 6867 (June 6, 1990) of delays inherent in the determination letter process. [Feb. 27, 2009]

226.07 Rule 428(b)(2) requires the registrant to deliver, along with the documents containing the information required by Part I of Form S-8, one of: the latest Rule 14a-3(b) annual report, the latest Form 10-K, the latest Rule 424(b) prospectus, or an effective Form 10. An issuer that changed its fiscal year filed a six-month transition report on Form 10-K subsequent to its latest annual report on Form 10-K. When such issuer is relying on the Rule 428(b) Form 10-K delivery alternative, it must deliver both the latest annual report on Form 10-K and the transition report on Form 10-K in order to satisfy the Rule 428(b) requirement. [Jan. 26, 2009]

226.08 A registrant filing on Form S-8 incorporated a Form 10-K that contained its 2007 financial statements certified by one accounting firm, and its 2005 and 2006 financial statements certified by a different accounting firm. Rule 436 would require the filing of the consents of both accounting firms for purposes of the Form S-8 registration statement. [Jan. 26, 2009]

226.09 In its effective Form S-8, a company registered 500,000 shares for sale by the company pursuant to an option plan, and 1,000 previously unregistered shares for resale on a resale prospectus pursuant to General Instruction C to Form S-8. The company may not rely on General Instruction C.3.(a) (which applies only to control securities and allows the addition of persons to the resale prospectus list of selling shareholders by means of a post-effective amendment or Rule 424(b) prospectus supplement) to shift any of the 500,000 shares registered on the primary portion to the resale prospectus since to do so would amount to registering additional securities by means of a post-effective amendment in contravention of Rule 413. [Jan. 26, 2009]

226.10 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 for trustee's resales was inappropriate 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]

226.11 A company was registering shares issuable on exercise of stock options. At the time of filing, the company had not yet issued options so that there was no option exercise price. The company only had public debt outstanding and there was no market for its common stock. The company had a negative book value. The company was advised to calculate the filing fee, for purposes of Rule 457(h), based on a good faith estimate of the value of the securities underlying the options. [Jan. 26, 2009]

226.12 A limited liability company sought to issue to its employees the stock of its financing member, which has the sole purpose of issuing stock to the public and investing the proceeds thereof in the LLC's securities. Because of this relationship, Rule 140 requires the LLC to register as co-issuer on any Securities Act registration statement filed by the financing member for the sale of the financing member's stock. Accordingly, the LLC would be included as a registrant on any Form S-8 filed by the financing member. It is therefore not necessary to analyze whether the financing member is a "subsidiary" of the LLC for purposes of determining whether the finance member may register its stock on Form S-8 for sale to employees of its "parent." [Jan. 26, 2009]

226.13 The Pension Protection Act of 2006 conditions IRC Section 401 tax qualification for defined contribution plans on providing employees the opportunity to diversify out of company stock. Related regulations require the opportunity to reinvest the diversified funds in company stock. In some circumstances, the reinvestment of diversified funds in company stock may require a plan that otherwise did not require registration to file a Form S-8. If a plan was completely noncontributory (i.e., no employee money can be contributed to any investment under the plan), there would be no requirement to register. If the plan permits employee contributions, but only to investments other than company stock (so that Securities Act Section 3(a)(2) exempts the plan from registration), registration would be required if the plan commingles the diversified funds with employee contribution funds. This is because employee contributions could possibly be invested in company stock, making the Section 3(a)(2) exemption unavailable. If, however, diversified funds that originated from non-employee contributions are segregated from employee contribution funds, the non-employee funds could be reinvested in company stock without losing the Section 3(a)(2) exemption. [Feb. 27, 2009]

226.14 If securities being registered are issued under a plan and the plan is subject to the requirements of ERISA, Item 601(b)(5)(ii) requires the filing of either: (1) an opinion of counsel confirming compliance with certain requirements of ERISA; or (2) a copy of the IRS determination letter indicating the plan is qualified under Section 401 of the Internal Revenue Code. A Puerto Rican plan is not subject to the IRS, but rather to a Puerto Rican governmental authority. Because Puerto Rico is a United States territory, a Puerto Rican plan may file a letter akin to the IRS determination letter that is issued by the Puerto Rican governmental authority. [Feb. 27, 2009]

226.15 withdrawn [Sep. 22, 2016; see 126.41]

226.16 When the shares of Company A and Company B are paired for trading and issuance, A and B may file a registration statement for B's stock option plan on Form S-8 which will be signed by both A and B and will contain information about both companies. [Feb. 27, 2009]