S-8 requirements

[Guest PAL100759]

Our 401(k) plan has publicly traded employer stock. Our last S-8 filing was several years ago. I am trying to determine if a new/additional S-8 needs to be filed. For purposes of the S-8, how are the number of shares to be registered determined? Is it the number of shares the plan will buy due to contributions, loan payments, fund transfers and so forth? The number of shares the plan sells to raise money for plan distributions? The number of shares distributed in-kind to participants? Some combination (either add or net the purchases and sales) of these numbers?

Hopefully this makes sense to someone else because no one here seems clear on the matter…

Thanks.

PAL

P.S. Yes –- I am trying to see if we have a copy of BNA Tax Management Portfolio #362 in the corporate library but I am not in the same physical location so it may take me awhile to get out there.

[QDROphile]

SEC says you cannot net shares. All shares purchased or issued count against the number you registered, no matter how many are sold/distributed or when.

Further, I believe that once you register, all shares count. In other words, you would not have to register if the shares came in only as match. The elective deferrals invested in the employer securities are what causes the registration. But the shares purchased with match dollars (or issued to cover the match) count against the number you registered, not just the shares associated with elective deferrals. Seems odd, and others may disagree, but registration costs are low enough that it is not worth taking a chance on the issue to cut back on the number of shares registered.

You really should consult legal counsel when securities laws are involved.

[Kirk Maldonado]

QDROPhile is right; you need competent counsel to advise you. There are a number of different interpretations given by competent attorneys. You need somebody with experience to explain the different approaches, their advantages and disadvantages, etc.