[Federal Register Volume 72, Number 131 (Tuesday, July 10, 2007)]
[Proposed Rules]
[Pages 37608-37624]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-13324]



[[Page 37607]]

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Part III





Securities and Exchange Commission





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17 CFR Part 240



 Exemption of Compensatory Employee Stock Options From Registration 
Under Section 12(g) of the Securities Exchange Act of 1934; Proposed 
Rule

  Federal Register / Vol. 72, No. 131 / Tuesday, July 10, 2007 / 
Proposed Rules  

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SECURITIES AND EXCHANGE COMMISSION

17 CFR Part 240

[Release No. 34-56010; International Series Release No. 1303; File No. 
S7-14-07]
RIN 3235-AJ91


Exemption of Compensatory Employee Stock Options From 
Registration Under Section 12(g) of the Securities Exchange Act of 1934

AGENCY: Securities and Exchange Commission.

ACTION: Proposed rule.

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SUMMARY: The Commission is proposing two exemptions from the 
registration requirements of the Securities Exchange Act of 1934 for 
compensatory employee stock options. The first exemption would be 
available to issuers that are not required to file periodic reports 
under the Exchange Act. The proposed exemption would apply only to the 
issuer's compensatory employee stock options and would not extend to 
the class of securities underlying those options. The second exemption 
would be available to issuers that are required to file those reports 
because they have registered under Exchange Act Section 12 the class of 
securities underlying the compensatory employee stock options.

DATES: Comments must be received on or before September 10, 2007.

ADDRESSES: Comments may be submitted by any of the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/proposed.shtml); or
     Send an e-mail to [email protected]. Please include 
File Number S7-14-07 on the subject line; or
     Use the Federal eRulemaking Portal (http://www.regulations.gov). Follow the instructions for submitting comments.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number S7-14-07. This file number 
should be included on the subject line if e-mail is used. To help us 
process and review your comments more efficiently, please use only one 
method. The Commission will post all comments on the Commission's 
Internet Web site http://www.sec.gov/rules/proposed.shtml. Comments 
also are available for public inspection and copying in the 
Commission's Public Reference Room, 100 F Street, NE., Washington, DC 
20549. All comments received will be posted without change; we do not 
edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly.

FOR FURTHER INFORMATION CONTACT: Amy M. Starr, Senior Special Counsel 
to the Director, at (202) 551-3115, Division of Corporation Finance, 
U.S. Securities and Exchange Commission, 100 F Street, NE., Washington, 
DC 20549.

SUPPLEMENTARY INFORMATION: We are proposing amendments to rule 12h-1\1\ 
under the Securities Exchange Act of 1934.\2\
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    \1\ 17 CFR 240.12h-1.
    \2\ 15 U.S.C. 78a et seq.
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I. Introduction and Background

A. Introduction

    In the 1980s, private, non-reporting issuers began using 
compensatory employee stock options \3\ to compensate a broader range 
of employees, including executive, middle, and lower-level employees, 
directors, and consultants.\4\ Compensatory employee stock options 
provide a method to use non-cash compensation to attract, retain, and 
motivate company employees, directors, and consultants.\5\ Since the 
1990s, a number of private, non-reporting issuers have granted 
compensatory employee stock options to 500 or more employees, 
directors, and consultants.\6\
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    \3\ Throughout this release, we use the term ``compensatory 
employee stock options'' to refer to stock options issued to 
employees, directors, consultants, and advisors (to the extent 
permitted under Securities Act Rule 701 [17 CFR 230.701]).
    \4\ The National Center for Employee Ownership surveyed 275 
venture capital-backed private businesses in the technology and 
telecommunications businesses. Of these firms, 77% provided options 
to all employees while 23% provided them to only select employees. 
``New Data Show Venture-Backed Companies Still Issue Options 
Broadly,'' http://www.nceo.org/library/option_venturebacked.html; 
See also J. Hand, 2005 ``Give Everyone a Prize? Employee Stock 
Options in Private Venture-Backed Firms,'' Working Paper, Kenan-
Flagler Business School, UNC Chapel Hill, available at http://ssrn.com/abstracts=599904 (``Hand Paper'') (study investigating the 
impacts on the equity values of private venture-backed firms of the 
organizational depth to which they grant employee stock options).
    Rule 701, which provides an exemption from Securities Act 
registration for non-reporting issuers for offerings of securities 
to employees, directors, consultants and advisors, and specified 
others, pursuant to written compensatory benefit plans or 
agreements, has given private issuers great flexibility in granting 
compensatory employee stock options to employees (and other eligible 
persons) at all levels. See Rule 701(d) [17 CFR 230.701(d)]; Rule 
701 Exempt Offerings Pursuant to Compensatory Arrangements, Release 
No. 33-7645, 64 FR 11095 (March 8, 1999) (``Rule 701 Release''); See 
also Compensatory Benefit Plans and Contracts, Release No. 33-6768, 
53 FR 12918 (April 14, 1988).
    \5\ See Hand Paper, note 4 supra.
    \6\ See e.g., no-action letters to Starbucks Corporation 
(available April 2, 1992); Kinko's, Inc. (available Nov. 30, 1999); 
Mitchell International Holding, Inc. (available Dec. 27, 2000) 
(``Mitchell International''); AMIS Holdings, Inc. (available July 
30, 2001) (``AMIS Holdings''); Headstrong Corporation (available 
Feb. 28, 2003); and VG Holding Corporation (available Oct. 31, 2006) 
(``VG Holding'').
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    Under Section 12(g) \7\ of the Exchange Act, an issuer with 500 or 
more holders of record of a class of equity security and assets in 
excess of $10 million at the end of its most recently ended fiscal year 
must register that class of equity security, unless there is an 
available exemption from registration.\8\ Stock options, including 
stock options issued to employees under stock option plans, are a 
separate class of equity security for purposes of the Exchange Act.\9\ 
Accordingly, an issuer with 500 or more optionholders and more than $10 
million in assets is required to register that class of options under 
the Exchange Act, absent an available exemption. While there is an 
exemption from Exchange Act Section 12(g) registration for interests 
and participations in certain other types of employee compensation 
plans involving securities,\10\ currently there is no

[[Page 37609]]

exemption for compensatory employee stock options.
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    \7\ 15 U.S.C. 78l(g).
    \8\ The asset threshold was set originally at $1 million in 
Section 12(g). Pursuant to its authority under Section 12(h) of the 
Exchange Act, the Commission has increased the amount three times; 
from $1 million to $3 million in 1982 [System of Classification for 
Purposes of Exempting Smaller Issuers From Certain Reporting and 
Other Requirements, Release No. 34-18647 (April 13, 1982)], from $3 
million to $5 million in 1986 [Reporting by Small Issuers, Release 
No. 34-23406 (July 8, 1986)], and from $5 million to $10 million in 
1996 [Relief from Reporting by Small Issuers, Release No. 34-37157 
(May 1, 1996)].
    \9\ Exchange Act Section 3(a)(11) [15 U.S.C. 78c(11)] defines 
equity security to include any right to purchase a security (such as 
options) and Exchange Act Rule 3a-11 [17 CFR 240.3a-11] explicitly 
includes options in the definition of equity security for purposes 
of Exchange Act Sections 12(g) and 16 [15 U.S.C. 78l(g) and 78p]. 
Exchange Act Section 12(g)(5) [15 U.S.C. 78l(g)(5)] defines class to 
include ``all securities of an issuer which are of substantially 
similar character and the holders of which enjoy substantially 
similar rights and privileges.''
    \10\ The exemption from registration under Exchange Act Section 
12(g) which is contained in Exchange Act Rule 12h-1(a), was adopted 
in 1965, for ``[a]ny interest or participation in an employee stock 
bonus, stock purchase, profit sharing, pension, retirement, 
incentive, thrift, savings or similar plan which is not transferable 
by the holder except in the event of death or mental incompetency, 
or any security issued solely to fund such plans.'' Rule 12h-1 is 
intended to exempt from Section 12(g) registration the same types of 
employee benefit plan interests as Section 3(a)(2) [15 U.S.C. 
77c(a)(2)] of the Securities Act of 1933 [15 U.S.C. 77a et seq.] 
exempts from Securities Act registration and, thus, does not cover 
stock options. See e.g., L. Loss and J. Seligman, Securities 
Regulations, 3d., at Sec.  6-A-4.
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    We are proposing an exemption for private, non-reporting issuers 
from Exchange Act Section 12(g) registration for compensatory employee 
stock options issued under employee stock option plans. We also are 
proposing an exemption from Exchange Act Section 12(g) registration for 
compensatory employee stock options of issuers that have registered 
under Exchange Act Section 12 the class of equity security underlying 
those options.

B. Overview of Applicable Exchange Act Provisions

    The addition of Section 12(g) to the Exchange Act was intended ``to 
extend to investors in certain over-the-counter securities the same 
protection now afforded to those in listed securities by providing that 
the issuers of certain securities now traded over the counter shall be 
subject to the same requirements that now apply to issuers of 
securities listed on an exchange.'' \11\ Further, Section 12(g) 
extended the disclosure and other Exchange Act safeguards to unlisted 
securities as a means to prevent fraud.\12\ The Commission has noted 
that the registration requirement of Section 12(g) was aimed at issuers 
that had ``sufficiently active trading markets and public interest and 
consequently were in need of mandatory disclosure to ensure the 
protection of investors.'' \13\
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    \11\ House of Representatives Report No. 1418 (1964), 88th 
Cong., 2d Sess., HR 679, p.1. See also Section 3(c) of the 
Securities Act Amendments of 1964, Pub.L. 88-467; 78 Stat. 565.
    \12\ Senate Committee Report, No. 379 (1963), 88th Cong., 1st 
Sess., p. 63.
    \13\ Reporting by Small Issuers, Release No. 34-23407 (July 8, 
1986).
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    Exchange Act Section 12(h) \14\ provides the Commission with 
exemptive authority with regard to certain provisions of the Exchange 
Act. Included in Exchange Act Section 12(h) is the authority to create 
appropriate exemptions from the Exchange Act registration requirements. 
Under Exchange Act Section 12(h), the Commission may exempt a class of 
securities by rules and regulations or by exemptive order if it 
``finds, by reason of the number of public investors, amount of trading 
interest in the securities, the number and extent of the activities of 
the issuer, income or assets of the issuer, or otherwise, that such 
action is not inconsistent with the public interest or the protection 
of investors.'' \15\
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    \14\ 15 U.S.C. 78l(h).
    \15\ Exchange Act Section 12(h) [15 U.S.C. 78l(h)].
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C. Historical Treatment of Compensatory Employee Stock Options Under 
Exchange Act Section 12(g)

    A number of private, non-reporting issuers faced with registration 
under Exchange Act Section 12(g) due solely to their compensatory 
employee stock options being held by 500 or more holders of record (as 
well as having more than $10 million in assets) at the end of their 
fiscal year have requested registration relief from our Division of 
Corporation Finance.\16\ Since 1992, the Division has provided relief 
through no-action letters \17\ to these private issuers when specified 
conditions were present.
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    \16\ The Division has delegated authority to grant (but not 
deny) applications for exemption under Exchange Act Section 12(h). 
See Rule 200.30-1(e)(7) [17 CFR 200.30-1].
    \17\ For the conditions necessary to receive relief under these 
letters and orders see, for example, the no-action letter to 
Mitchell International, note 6 supra (for the pre-2001 relief) and 
the no-action letters to AMIS Holdings, note 6 supra; ISE Labs, Inc. 
(available June 2, 2003); Jazz Semiconductor, Inc. (available Nov. 
21, 2005) (``Jazz Semiconductor''); and VG Holding, note 6 supra 
(for the modified relief beginning in 2001).
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    Before 2001, the Division's no-action relief in this area was 
conditioned on, among other things, the options terminating at the time 
employment terminated. Further, that relief was conditioned on the 
compensatory employee stock options not being exercisable until after 
either the issuer's initial public offering or the time at which the 
issuer was no longer relying on the relief.\18\ Beginning in 2001, the 
Division announced modified conditions to registration relief for 
compensatory employee stock options of private, non-reporting issuers 
that, due to market conditions, were delayed in their plans to go 
public.\19\ Because the Division's no-action relief applies only to the 
private, non-reporting issuer's compensatory employee stock options, 
once that issuer has 500 or more holders of record of any other class 
of equity security (including, for example, common stock outstanding as 
a result of stock issuances, including option exercises), it would be 
required to register that other class of equity security under Exchange 
Act Section 12(g).
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    \18\ See e.g., no-action letters to Kinko's, Inc., note 6 supra; 
General Roofing Services, Inc. (available April 5, 2000); and 
Mitchell International, note 6 supra.
    \19\ See Division of Corporation Finance, Current Issues and 
Rulemaking Outline Quarterly Update (March 31, 2001).
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    The Division's no-action letters providing Exchange Act Section 
12(g) registration relief to private, non-reporting issuers currently 
include the following parameters:\20\
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    \20\ Following the announcement of the modified conditions to 
relief in 2001, issuers were still able to request relief under the 
former conditions. Since 2002, however, issuers have received relief 
based on the modified factors only. See e.g., no-action letters to 
Jazz Semiconductor, note 17 supra; Network General Corporation 
(available May 22, 2006); Avago Technologies Limited (available Oct. 
6, 2006); and VG Holding, note 6 supra. Our discussion regarding the 
current conditions to relief under the no-action letters refers only 
to the modified conditions set forth in the most recently issued no-
action letters.
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Scope of Relief
     The relief is limited solely to compensatory employee 
stock options granted under stock option plans; and
     No security appreciation rights or other rights may be 
issued in connection with the compensatory employee stock options.
Eligible Participants
     The compensatory employee stock options may be issued to a 
broad class of participants comprised only of employees, directors, and 
consultants (to the extent permitted under Securities Act Rule 701) of 
the issuer, its parents, or of majority-owned, direct or indirect, 
subsidiaries of the issuer or its parents.
Exercisability
     The exercisability of the compensatory employee stock 
options need not be limited while the optionholder is an employee, 
director, or consultant; however, if the compensatory employee stock 
options are not exercisable, there are modified information conditions.
Transferability and Ownership Restrictions
     There may be no means through which optionholders may 
receive compensation or consideration for the compensatory employee 
stock options (or the securities to be received on exercise of the 
compensatory employee stock options) before exercise; \21\
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    \21\ This would not include payments received on exercise by an 
issuer or its affiliates of a repurchase right or obligation with 
regard to the options or the shares received on exercise of the 
options. See e.g., no-action letter to VG Holding, note 6 supra.
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     The compensatory employee stock options must remain non-
transferable in most cases, but the compensatory employee stock options 
may transfer on death or disability of the optionholder or to family 
members (as defined in Securities Act Rule 701) by gift or pursuant to 
domestic relations orders. These permitted transferees are not allowed 
to further transfer compensatory employee stock options. There may be 
no other pledging,

[[Page 37610]]

hypothecation or donative transfer of compensatory employee stock 
options or the securities underlying the options;
     The securities received on exercise of the compensatory 
employee stock options may not be transferable, except back to the 
issuer (or to affiliates of the issuer if the issuer is unable to 
repurchase the shares), to family members under Rule 701 by gift or 
pursuant to domestic relations orders, or in the event of death or 
disability. These permitted transferees are not allowed to further 
transfer these securities. There may be no other pledging, 
hypothecation or donative transfer of these securities; and
     The ability of former employees to retain and exercise 
their vested compensatory employee stock options for a period of time 
following termination of employment need not be limited.
Information Requirements
     The issuer must provide optionholders and holders of 
shares received on exercise of compensatory employee stock options with 
essentially the same Exchange Act registration statement, annual 
report, and quarterly report information they would receive if the 
issuer registered the class of securities under Exchange Act Section 
12, including audited annual financial statements (prepared in 
accordance with generally accepted accounting principles (``GAAP'')) 
and unaudited quarterly financial information, with the following 
specific conditions:

--The registration statement-type document must be delivered promptly 
after the issuer receives no-action relief;
--The annual report must be delivered within 90 days after the issuer's 
fiscal year end; \22\
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    \22\ Since 2006, the time period to deliver the annual report 
and the quarterly report was shortened to 90 days and 45 days, 
respectively, from the 120 days for the annual report and 60 days 
for the quarterly report that was allowed in the earlier no-action 
letters relying on the modified conditions. See no-action letters to 
VG Holding, note 6 supra and AMIS Holdings, note 6 supra.
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--The quarterly reports must be delivered within 45 days after the end 
of the issuer's fiscal quarter; \23\
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    \23\ Id.
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--The issuer may condition delivery of the information to an 
optionholder on the optionholder signing an appropriate confidentiality 
agreement but it must make the information available for examination at 
the issuer's offices by optionholders and holders of shares received on 
exercise of options unwilling to enter into confidentiality agreements;
--The issuer must provide certifications similar to those required of 
reporting issuers; \24\ and
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    \24\ The certification condition requires that the issuer's 
chief executive officer and chief financial officer include a 
certification as required by the first three paragraphs of the 
certification required under Item 601(b)(31) of Regulation S-K [17 
CFR 229.601(b)(31)]. See e.g., no-action letter to VG Holding, note 
6 supra.
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--The issuer must provide specified information relating to option 
vesting and changes in the stock option plan.\25\
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    \25\ See e.g., no-action letter to VG Holding, note 6 supra.
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D. Recommendation of the Advisory Committee on Smaller Public Companies

    The Advisory Committee on Smaller Public Companies, in its Final 
Report, recommended that the Commission provide Exchange Act Section 
12(g) registration relief for compensatory employee stock options.\26\ 
In this regard, the Advisory Committee stated:
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    \26\ Final Report of the Advisory Committee on Smaller Public 
Companies to the Securities and Exchange Commission, April 23, 2006 
(``Final Report of the Advisory Committee'').

[H]olders of employee stock options received in compensatory 
transactions are less likely to require the full protections 
afforded under the registration requirements of the federal 
securities laws. Therefore, we believe that such stock options 
should not be a factor in determining the point an issuer becomes 
subject to the burdens of a reporting company under the Exchange 
Act.\27\
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    \27\ Id at p. 87.
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E. Overview of the Proposed Exemptions

    We believe that it is appropriate at this time to propose two new 
exemptions from the registration provisions of Exchange Act Section 
12(g) for compensatory employee stock options issued under employee 
stock option plans that are limited to employees, directors, 
consultants, and advisors of the issuer, its parents, and majority-
owned subsidiaries of the issuer or its parents.\28\ Given the 
differences between issuers that are required to file reports under the 
Exchange Act and those issuers that do not have such an obligation, 
including the nature of the trading markets and the amount of publicly 
available information, we believe that it is appropriate to propose 
separate exemptions for these different types of issuers.
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    \28\ The proposed exemptions would allow compensatory employee 
stock options to be held only by those persons described in 
Securities Act Rule 701(c) [17 CFR 230.701(c)]. Securities Act Rule 
701(c) lists the categories of persons to whom offers and sales of 
securities under written compensatory benefit plans or contracts may 
be made in reliance on Rule 701 by an issuer, its parents, and 
majority-owned subsidiaries of the issuer or its parents. The 
categories of persons are: Employees (including specified insurance 
agents); directors; general partners; trustees (where the issuer is 
a business trust); officers; consultants and advisors (under certain 
conditions); family members who acquire their securities from such 
persons through gifts or domestic relations orders; and former 
employees, directors, general partners, trustees, officers, 
consultants and advisors only if such persons were employed by or 
providing services to the issuer at the time the securities were 
offered. As we note, the proposed amendments use the term ``those 
persons described in Rule 701(c)'' to refer to these permitted 
holders. For ease of discussion, in this release we use the phrase 
``employees, directors, consultants and advisors of the issuer'' to 
refer to those persons described in Securities Act Rule 701(c).
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1. Exemption for Issuers That Are Not Exchange Act Reporting Issuers
    We believe that an exemption from Exchange Act registration of 
compensatory employee stock options for private, non-reporting issuers 
will provide useful certainty to those issuers in their compensation 
decisions and will help them avoid becoming subject to the registration 
and reporting requirements of the Exchange Act prior to the time they 
have public shareholders.\29\ Based on the factors identified in 
Exchange Act Section 12(h), we believe that it is appropriate to 
provide an exemption from Exchange Act Section 12(g) registration to a 
specified class of compensatory employee stock options.\30\ We believe 
that the conditions to the proposed exemption and the existing 
statutory provisions and rules provide holders of compensatory employee 
stock options in private, non-reporting issuers appropriate disclosure 
and investor protections under the federal securities laws, given the 
compensatory circumstances of the securities issuance

[[Page 37611]]

and the restrictions on transferability of the compensatory employee 
stock options and shares received on exercise of those options. As 
such, we are proposing to amend Exchange Act Rule 12h-1 to provide an 
exemption from Exchange Act Section 12(g) registration for compensatory 
employee stock options issued under written compensatory stock option 
plans of an issuer that does not have a class of securities registered 
under Exchange Act Section 12 and is not subject to the reporting 
requirements of Exchange Act Section 15(d), where the following 
conditions are present: \31\
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    \29\ While we agree that an exemption from Exchange Act Section 
12(g) registration for compensatory employee stock options is 
appropriate, in this regard, we do not agree with the Advisory 
Committee statement that holders of employee stock options received 
in compensatory transactions do not require the full protections 
afforded under the registration requirements of the federal 
securities laws.
    \30\ We believe that our proposal is consistent with the 
exemption provided for other employee benefit plans in Exchange Act 
Rule 12h-1, which is not available for stock option plans, the 
compensatory employee stock options issued pursuant to such plans, 
or the securities issued on exercise of such compensatory employee 
stock options. We believe that the characteristics of many employee 
benefit plans, which are by their own terms limited to employees, 
not available to the general public, and subject to transfer 
restrictions, obviate the need for applicability of all the rules 
and regulations aimed at public trading markets. In addition, 
because many of the proposed conditions refer to certain Securities 
Act Rule 701 definitions and requirements, we believe that the 
proposed exemption from Exchange Act Section 12(g) registration will 
allow non-reporting issuers to continue to rely on Securities Act 
Rule 701 in offering and selling compensatory employee stock options 
and the shares issued on exercise of those options.
    \31\ The conditions build on and modify the current conditions 
to relief in the no-action requests discussed above. For example, 
the transferability restrictions in the proposed exemption are more 
clearly defined; there is no proposed restriction on the 
exercisability of the compensatory employee stock options; and the 
level of disclosure required to be provided to optionholders and 
holders of shares received on exercise of those options is the same 
level of information that private, non-reporting issuers relying on 
Securities Act Rule 701 for the offers and sales of those options 
and securities may be required to provide, rather than the level of 
information an issuer with public shareholders is required to 
provide. See the discussion under ``Proposed Exemption For 
Compensatory Employee Stock Options of Issuers That Are Not Exchange 
Act Reporting Issuers,'' below.
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     Eligible optionholders are limited to employees, 
directors, consultants, and advisors of the issuer;
     Transferability by optionholders and holders of shares 
received on exercise of the options of compensatory employee stock 
options, shares received, or to be received, on exercise of those 
options, and shares of the same class as those underlying those options 
is restricted; and
     Risk and financial information is provided to 
optionholders and holders of shares received on exercise of those 
options that is of the type that would be required under Rule 701 if 
securities sold in reliance on Rule 701 exceeded $5 million in a 12-
month period.\32\

    \32\ See the discussion under ``Required Information,'' below.
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    The proposed exemption would apply only to a private, non-reporting 
issuer's compensatory employee stock options and would not extend to 
the class of securities underlying those options.\33\
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    \33\ A private, non-reporting issuer would have to apply the 
registration requirements of Exchange Act Section 12 to the class of 
equity security underlying the compensatory employee stock options 
without regard to the proposed exemption. For the class of equity 
security underlying the options, for which there could be public 
shareholders, no transferability restrictions, and trading interest, 
we do not believe a Section 12 registration exemption would be 
appropriate.
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    The proposed restrictions on the type of issuer eligible to rely on 
the exemption, the limitation on who may be granted and hold the 
compensatory employee stock options, the transferability restrictions, 
and the limitation of the exemption to the compensatory employee stock 
options are intended to assure that there is no trading in the options 
or shares received on exercise of the options and that there are no 
public investors in the compensatory employee stock options that need 
the full range of protections that Exchange Act registration and 
reporting afford. In light of the circumstances under which private, 
non-reporting issuers issue compensatory employee stock options, the 
terms of those options, and the information provision requirements of 
the proposed exemption, we believe that the proposed amended rule 
contains appropriate conditions to an exemption of such compensatory 
employee stock options of private, non-reporting issuers from 
registration under Exchange Act Section 12(g). As such, we believe that 
the proposed exemption is in the public interest, in that it would 
clarify and routinize the basis for an exemption from Exchange Act 
Section 12(g) registration for compensatory employee stock options so 
private, non-reporting issuers would be able to continue to issue 
compensatory employee stock options and would provide appropriate 
investor protections for optionholders and holders of shares received 
on exercise of the options.
2. Exemption for Exchange Act Reporting Issuers
    We are proposing to amend Exchange Act Rule 12h-1 to provide an 
exemption for compensatory employee stock options of issuers that are 
required to file reports under the Exchange Act because they have 
registered under Exchange Act Section 12 the class of equity security 
underlying those options. The proposed exemption would be available 
only where the options were issued pursuant to a written compensatory 
stock option plan and the class of persons eligible to receive or hold 
the options is limited appropriately. We believe that the proposed 
exemption of compensatory employee stock options from Exchange Act 
registration is appropriate for purposes of investor protection and the 
public interest because the optionholders would have access to the 
issuer's publicly filed Exchange Act reports and the appropriate 
provisions of Exchange Act Sections 13, 14, and 16 \34\ would apply to 
the compensatory employee stock options and the securities issuable on 
exercise of the compensatory employee stock options.
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    \34\ 15 U.S.C. 78m, 78n, and 78p.
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II. Discussion of Proposals

    We are proposing two amendments to Exchange Act Rule 12h-1. These 
amendments would:
     Provide an exemption for private, non-reporting issuers 
from Exchange Act Section 12(g) registration for compensatory employee 
stock options issued under employee stock option plans; and
     Provide an exemption from Exchange Act Section 12(g) 
registration for compensatory employee stock options issued by issuers 
that have registered under Exchange Act Section 12 the class of equity 
security underlying the compensatory employee stock options.

A. Proposed Exemption for Compensatory Employee Stock Options of 
Issuers That Are Not Exchange Act Reporting Issuers

    We believe it is appropriate to provide an exemption from Exchange 
Act registration for compensatory employee stock options of issuers 
that are not required to file reports under the Exchange Act. The 
availability of this proposed exemption would be subject to specified 
limitations, including limitations concerning permitted optionholders, 
transferability and provision of information.
1. Eligible Issuers
    The proposed amendment would provide an exemption from Exchange Act 
Section 12(g) registration for compensatory employee stock options of 
the following types of issuers:
     Issuers that do not have a class of securities registered 
under Exchange Act Section 12; and
     Issuers that are not subject to the reporting requirements 
of Exchange Act Section 15(d).\35\
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    \35\ Under Section 15(d) of the Exchange Act, an issuer's ``duty 
to file [reports under Section 15(d) is] automatically suspended if 
and so long as any issue of securities of such issuer is registered 
pursuant to section 12 of this title.''[15 U.S.C. 780(d)].
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    The proposed exemption is intended to be available only to those 
issuers that are not reporting under the Exchange Act. As such, the 
proposed exemption would terminate once the issuer became subject to 
the reporting requirements of the Exchange Act.\36\
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    \36\ The proposed exemption under Exchange Act Section 12 would 
allow issuers 60 calendar days to register the class of options once 
an issuer was no longer able to rely on the proposed exemption. 
Currently, the no-action letter relief terminates once an issuer 
becomes subject to the Exchange Act reporting requirements. See 
e.g., no-action letter to VG Holding, note 6 supra.

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[[Page 37612]]

Request for Comment
     Should the proposed exemption be available to any private, 
non-reporting issuer? If not, which categories of non-reporting issuers 
should be ineligible for the exemption?
     Should the proposed exemption be available to those 
issuers that file Exchange Act reports and, thus, hold themselves out 
as Exchange Act reporting issuers, but who have neither a class of 
securities registered under Exchange Act Section 12 nor an existing 
reporting obligation under Exchange Act Section 15(d) (also known as 
``voluntary filers'')? Should ``voluntary filers'' be treated 
differently under the proposed exemption if they do not have any public 
shareholders of any class of their equity securities?
2. Eligible Compensatory Employee Stock Options
    The proposed exemption for compensatory employee stock options 
would:
     Apply only to compensatory employee stock options that are 
issued under a written compensatory stock option plan \37\ that is 
limited to employees, directors, consultants, and advisors of the 
issuer; \38\
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    \37\ Securities Act Rule 701 is available only for offers and 
sales of compensatory employee stock options and the shares issuable 
upon exercise of those options that are issued under written 
compensatory employee benefit plans of an issuer, its parents, or 
majority-owned subsidiaries of the issuer or its parents. See 
Securities Act Rule 701(c) [17 CFR 230.701(c)]. Thus, the proposed 
requirement that the options be issued under written compensatory 
stock option plans would not impose a new obligation on issuers 
relying on Securities Act Rule 701 in offering and selling its 
compensatory employee stock options or the shares issued on exercise 
of those options.
    \38\ The proposed exemption for the compensatory employee stock 
options would not extend to other rights issued in connection with 
the compensatory employee stock options, such as stock appreciation 
rights. Any such other rights would be evaluated separately for 
purposes of Exchange Act Section 12(g) registration.
---------------------------------------------------------------------------

     Apply to all compensatory employee stock options issued 
under all of the issuer's written compensatory stock option plans on a 
combined basis where the securities underlying the compensatory 
employee stock options are of the same class of securities, with the 
proposed exemptive conditions applying to the compensatory employee 
stock options issued under each option plan; and
     Not extend to any class of securities received or to be 
received on exercise of the compensatory employee stock options.
    The proposed exemption would cover all compensatory employee stock 
options of an issuer meeting the conditions of the exemption, even if 
the compensatory employee stock options were issued under separate 
written option plans. For this purpose, the compensatory employee stock 
options would be considered to belong to the same class of equity 
security if the same class of securities would be issuable on exercise 
of the compensatory employee stock options.\39\
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    \39\ See Exchange Act Section 12(g)(5) [15 U.S.C. 78l(g)(5)].
---------------------------------------------------------------------------

    The proposed exemption would apply to the compensatory employee 
stock options only and not to the securities issued (or to be issued) 
on exercise of the compensatory employee stock options. Thus, the 
issuer would have to apply the registration requirements of Exchange 
Act Section 12 to the class of equity security underlying the 
compensatory employee stock options without regard to the proposed 
exemption.\40\
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    \40\ For example, if an issuer had more than $10 million in 
assets and 500 or more holders of a class of equity security 
underlying the compensatory employee stock options as of the end of 
its fiscal year, it would have to register under Exchange Act 
Section 12 that class of equity security.
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Request for Comment
     Should the exemption cover all compensatory employee stock 
options issued under all employee stock option plans of a private, non-
reporting issuer?
     Are there employee stock option plans that are not written 
that should be included? If so, what types of unwritten plans should be 
included and why?
     Are there employee stock options issued under written 
stock option contracts, other than written stock option plans, that 
should be included? If so, what types of written stock option contracts 
should be included and why?
     We have proposed to provide that the exemption would apply 
to all of the issuer's option plans on a combined basis where the 
securities underlying the compensatory employee stock options are of 
the same class of securities, while the options may be held by 
employees, directors, consultants, or advisors of an issuer, its 
parents, or majority-owned subsidiaries of the issuer or its parents. 
Should the class of options covered by the proposed exemption include 
only options issued by the issuer under its written compensatory plans 
or should the class of options covered by the proposed exemption also 
include options on the issuer's securities that are issued under 
written compensatory plans of the issuer's parent, its majority-owned 
subsidiaries or majority-owned subsidiaries of the issuer? Please 
explain.
3. Eligible Option Plan Participants
    The proposed exemption would be available only where the class of 
persons eligible to receive compensatory employee stock options under 
the stock option plans is limited to those persons described in the 
exemption. These eligible optionholders would be the same as those 
participants permitted under Rule 701 and would include: \41\
---------------------------------------------------------------------------

    \41\ See the discussion at note 28 supra.
---------------------------------------------------------------------------

     Employees of the issuer, its parents, or majority-owned, 
direct or indirect, subsidiaries of the issuer or its parents;
     Directors of the issuer, its parents, or majority-owned, 
direct or indirect, subsidiaries of the issuer or its parents; and
     Consultants and advisors of the issuer, its parents, or 
majority-owned, direct or indirect, subsidiaries of the issuer or its 
parents.
    We have proposed that the exemption be limited to those situations 
where compensatory employee stock options may be held only by those 
persons who are permitted to hold or be granted compensatory employee 
stock options under Securities Act Rule 701. We believe that the 
experience of issuers and their counsels with Rule 701 will ease 
compliance with and limit uncertainty regarding the exemption.\42\
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    \42\ In this regard, we note that this category of eligible 
optionholders is broader than the category of persons to whom 
employee benefit securities, including compensatory employee stock 
options may be offered and sold by reporting issuers using a Form S-
8 registration statement. See General Instruction 1(a) to Form S-8 
[17 CFR 239.16b].
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    Just as Securities Act Rule 701 was designed specifically not to be 
available for capital-raising transactions, the proposed exemption 
would apply only to employee stock options issued for compensatory 
purposes. The restrictions on the eligible participants in the stock 
option plans are intended to assure that the proposed exemption is 
limited to employee stock options issued solely for compensatory 
purposes.\43\
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    \43\ All option grants and exercises must, of course, comply 
with the requirements of the Securities Act.
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Request for Comment
     Should the proposal limit further the types of persons 
eligible to hold compensatory employee stock options for purposes of 
the exemption? If so, what types of persons should not be eligible?
     Is the use of the Securities Act Rule 701 definitions of 
eligible participants appropriate for purposes of the proposed 
exemption? If not, what definitions should be used to characterize the 
optionholders who

[[Page 37613]]

have received the compensatory employee stock options solely for 
compensatory purposes and why should another definition be used?
     Would the proposed eligibility conditions affect an 
issuer's ability to rely on compensatory employee stock options to 
attract, retain, and motivate employees, directors, consultants, and 
advisors of the issuer?
4. Option Terms
a. Compensatory Employee Stock Option and Share Transferability 
Restrictions
    The proposed exemption would be available only where there are 
certain restrictions on the transferability by an optionholder or 
holder of shares received on exercise of a compensatory employee stock 
option of those options, the shares issuable on exercise of those 
options, or shares of the same class of equity security as those 
underlying those options.\44\ Specifically, the proposed exemption 
would be available only if: \45\
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    \44\ The proposed exemption would not impose any limitations on 
the ability of current or former employees, directors, consultants, 
or advisors of an issuer to retain or exercise their compensatory 
employee stock options. The current no-action letters do, however, 
contain certain limitations on retention of both vested and unvested 
compensatory employee stock options. See e.g., no-action letter to 
VG Holding, note 6 supra.
    \45\ The current no-action letters contain similar conditions on 
transferability, although the proposed rule clarifies the 
limitations on the ability to engage in certain derivative 
transactions, such as restrictions on an optionholder or holder of 
shares received on exercise of options from entering into a ``put 
equivalent position'' or ``call equivalent position'' until the 
issuer become subject to the reporting requirements of the Exchange 
Act. See e.g., no-action letter to VG Holding, note 6 supra.
---------------------------------------------------------------------------

     The compensatory employee stock options and the shares 
received or to be received on exercise of those options could not be 
transferred except: \46\
---------------------------------------------------------------------------

    \46\ The proposed transferability restrictions would not 
supersede other transferability restrictions imposed for other 
reasons, including under the Internal Revenue Code of 1986, as 
amended [26 U.S.C. 422(b)(5)].

--To family members (as defined in Rule 701) by gift or pursuant to 
domestic relations orders; or
--On death or disability of the optionholder; \47\
---------------------------------------------------------------------------

    \47\ These permitted transferees are intended to be the same as 
those permitted under Securities Act Rule 701(c). See note 28 supra.

     Optionholders or holders of shares received on exercise of 
the compensatory employee stock options through a permitted transfer 
from the original holder could not transfer those options or shares 
further;
     There could be no other permitted pledges, gifts, 
hypothecations, or other transfers of the compensatory employee stock 
options, shares issued or issuable on exercise of those options, or 
shares of the same class of equity security as those underlying those 
options by the optionholder or holder of shares received on exercise of 
an option, other than transfers back to the issuer (or to affiliates of 
the issuer if the issuer is unable to repurchase those options or 
shares received on exercise of those options), until the issuer becomes 
subject to the reporting requirements of the Exchange Act; \48\
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    \48\ If an express prohibition on transfer is not permitted 
under applicable state law, the proposed exemption would be 
available if the issuer retained the obligation, either directly or 
by assignment to an affiliate of the company, to repurchase the 
option or the shares issued on exercise of the options until the 
issuer becomes subject to the reporting requirements of the Exchange 
Act. This repurchase obligation would have to be contained in the 
stock option agreement pursuant to which the option is exercised, in 
a separate stockholders agreement, in the issuer's by-laws, or 
certificate of incorporation. See the discussion under ``Issuer 
Obligation to Impose the Conditions to the Proposed Exemption,'' 
below.
---------------------------------------------------------------------------

     The compensatory employee stock options, the securities 
issued or issuable upon exercise of those options, or shares of the 
same class of equity security as those underlying those options could 
not be the subject of a short position, a ``put equivalent position'' 
\49\ or a ``call equivalent position'' \50\ by the optionholder or 
holder of shares received on exercise of an option until the issuer 
becomes subject to the reporting requirements of the Exchange Act; and
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    \49\ 17 CFR 240.16a-1(h). Rule 16a-1(h) defines a ``put 
equivalent position'' as a derivative security position that 
increases in value as the value of the underlying equity decreases, 
including, but not limited to, a long put option and a short call 
option position.
    \50\ 17 CFR 240.16a-1(b). Rule 16a-1(b) defines a ``call 
equivalent position'' as a derivative security position that 
increases in value as the value of the underlying equity increases, 
including, but not limited to, a long convertible security, a long 
call option, and a short put option position.
---------------------------------------------------------------------------

     There could be no market or available process or 
methodology that would permit optionholders or holders of shares 
received on exercise of an option to receive any consideration or 
compensation for the options, the shares issuable on exercise of the 
options, or shares of the same class of equity security as those 
underlying the options, except from permitted transfers to the issuer 
or its affiliates as discussed above, until the issuer becomes subject 
to the reporting requirements of the Exchange Act.
    Under the proposal, the exemption would not be available if 
optionholders and holders of shares received on exercise of 
compensatory employee stock options could enter into agreements, prior 
to or after the exercise of those options, that would allow those 
holders to monetize or receive compensation from or consideration for 
such compensatory employee stock options, the shares to be received 
upon exercise of those options, or shares of the same class of equity 
security as those underlying those options. Thus, the proposed 
conditions provide that, except with regard to the limited permitted 
transfers specified in the proposed conditions, an optionholder cannot 
be permitted to pledge, hypothecate, or otherwise transfer the 
compensatory employee stock options, the shares underlying those 
options, or shares of the same class of equity security as those 
underlying those options, including through a short position, a ``put 
equivalent position,'' or a ``call equivalent position,'' until the 
issuer becomes subject to the reporting requirements of the Exchange 
Act. The proposed exemption would be conditioned on a similar 
restriction on the holders of shares received on exercise of the 
options.
    The proposed restrictions on transfer of the compensatory employee 
stock options, the shares underlying those options, and shares of the 
same class of equity security as those underlying those options by an 
optionholder or holder of shares received on exercise of an option are 
intended to limit the possibility for a trading market to develop for 
the compensatory employee stock options or the securities issued on 
exercise of those options while the issuer is relying on the proposed 
exemption. These restrictions also are intended to assure that an 
optionholder or holder of shares received on exercise of an option is 
not able to profit from the compensatory employee stock options or the 
securities received or to be received on exercise of those options 
(except from permitted transfers to the issuer or its affiliates as 
discussed above), until the issuer becomes subject to the reporting 
requirements of the Exchange Act.
    While, in most cases, the securities of private, non-reporting 
issuers that are issued on exercise of compensatory employee stock 
options are deemed to be restricted securities as defined in Securities 
Act Rule 144,\51\ we believe that the proposed transferability 
restrictions are necessary to limit further the possibility of a market 
developing in the securities issued or issuable on exercise of 
immediately exercisable compensatory employee stock options while the 
issuer is not reporting under the Exchange Act. Thus, the proposed

[[Page 37614]]

amendments would require that the issuer's securities received on 
exercise of compensatory employee stock options be restricted as to 
transfer until the issuer becomes subject to the reporting requirements 
of the Exchange Act.\52\
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    \51\ 17 CFR 230.144. See, e.g., Securities Act Rule 701(g).
    \52\ After an issuer becomes subject to the reporting 
requirements of the Exchange Act, the issuer would be able to rely 
on the exemption for Exchange Act reporting issuers only if it 
becomes subject to Exchange Act reporting as a result of its 
Exchange Act Section 12 registration of the class of equity security 
underlying the compensatory employee stock options.
---------------------------------------------------------------------------

    The proposed transfer restrictions for the compensatory employee 
stock options and the shares received or to be received on exercise of 
those options are consistent in most respects with the transfer 
restrictions on compensatory securities in Securities Act Rule 701.\53\ 
In addition, we understand that private, non-reporting issuers 
generally restrict the transferability of shares received on exercise 
of compensatory employee stock options until the issuer becomes subject 
to the reporting requirements of the Exchange Act. As such, we believe 
that transferability restrictions should not impose additional 
constraints on such private, non-reporting issuers.
---------------------------------------------------------------------------

    \53\ Securities Act Rule 701(c) and (g). The securities sold in 
Rule 701 transactions are deemed to be restricted securities as 
defined in Securities Act Rule 144 [17 CFR 230.144]. The transfer 
restrictions in the proposed exemption are more restrictive than 
those in Rule 701.
---------------------------------------------------------------------------

Request for Comment
     Should there be any other restrictions on the 
transferability by the optionholder or holder of shares received on 
exercise of the options of the compensatory employee stock options, the 
shares received on exercise of those options, or shares of the same 
class of equity security as those underlying those options prior to the 
issuer becoming subject to the reporting requirements of the Exchange 
Act?
     Should there be any other restrictions on the 
transferability of the securities received or to be received on 
exercise of the compensatory employee stock options or shares of the 
same class of equity security as the shares underlying those options?
     Should an optionholder be allowed to enter into agreements 
to transfer the shares to be received on exercise of the compensatory 
employee stock options or shares of the same class of equity security 
as the shares underlying those options prior to the exercise of those 
options while the issuer is relying on the exemption? If yes, why 
should an optionholder be able to enter into such arrangements and how 
would such arrangements affect whether an optionholder has received 
value for the compensatory employee stock options?
     Should there be restrictions on permitted transferees of 
compensatory employee stock options being able to further transfer such 
options? Should the permitted transferees be able to further transfer 
such options to other permitted transferees by gift, pursuant to 
domestic relations orders, or on death or disability? What types of 
other transfers, if any, should be permitted and why?
     Do the proposed restrictive provisions sufficiently cover 
hedging transactions by optionholders or holders of shares received on 
exercise of the options that would permit such persons to circumvent 
the proposed transferability conditions in the proposed exemption?
     Should the proposed exemption provide explicitly that the 
issuer may repurchase the compensatory employee stock options or shares 
received on exercise of those options if the issuer is unable to 
prohibit transfers of such options or shares under state law?
     Should the restrictive provisions of the proposed 
exemption apply to the securities received on exercise of the 
compensatory employee stock options for so long as the issuer is 
relying on the proposed exemption? If not, please explain.
     Should the transfer restrictions on the shares received on 
exercise of the compensatory employee stock options, following such 
exercise, be a condition to the proposed exemption only if the issuer 
does not restrict the transferability of any of the shares of the same 
class of its equity security prior to the issuer becoming subject to 
the reporting requirements of the Exchange Act?
     The proposed exemption provides that there can be no 
market or methodology that would permit optionholders or holders of 
shares received on exercise of an option to profit from or monetize the 
options, the shares received on exercise of the options, or shares of 
the same class of equity security as those underlying the options. 
These proposed restrictions are not intended to interfere with any 
means by which the issuer values its compensatory employee stock 
options for purposes of Statement of Financial Accounting Standards No. 
123R (``Statement No. 123R'').\54\ Do the proposed conditions affect an 
issuer's ability to value compensatory employee stock options for 
purposes of Statement 123R? If so, how would the valuation ability be 
affected? If affected, what alternative provisions should we consider 
that would not interfere with such valuation, yet not permit an 
optionholder or holder of shares received on exercise of an option to 
monetize or profit from the option, the shares received or to be 
received on exercise of the options, or shares of the same class of 
equity security as those underlying the options, prior to the issuer 
becoming subject to the reporting requirements of the Exchange Act?
---------------------------------------------------------------------------

    \54\ See Financial Accounting Standards Board Statement of 
Financial Accounting Standards No. 123 (revised 2004) Share-Based 
Payment.
---------------------------------------------------------------------------

b. Permitted Exercisability of Compensatory Employee Stock Options
    The proposed exemption would not require that there be any 
restriction on the timing of the exercise of the compensatory employee 
stock options:
     By the optionholder (regardless of whether the 
optionholder continues to be an employee, director, consultant or 
advisor of the issuer);
     In the event of the death or disability of the 
optionholder, by the estate or guardian of the optionholder; or
     By a family member (as defined in Rule 701) who acquired 
the options through a gift or domestic relations order.
Request for Comment
     Should there be any restriction on the exercisability of 
the compensatory employee stock options while an issuer is relying on 
the proposed exemption?
     Should the compensatory employee stock options be required 
to terminate if the optionholder is no longer an employee, director, 
consultant or advisor of the issuer? If so, under what conditions 
should the options terminate?
     Should the proposed exemption be available only if the 
compensatory employee stock options are exercisable only for a limited 
time period after the optionholder ceases to be an employee, director, 
consultant or advisor of the issuer? If so, should such a limitation on 
exercise be different if such a cessation is because of death or 
disability, or because of a termination with cause or without cause? 
What limited time period should apply and why?
5. Required Information
    The proposed exemption would require the issuer to provide 
information to optionholders and holders of shares received on exercise 
of compensatory employee stock options. This condition would require 
the issuer, for purposes of the proposed exemption, to provide the 
following information to optionholders (and holders of shares

[[Page 37615]]

received on exercise of compensatory employee stock options):\55\
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    \55\ The information conditions may terminate once the company 
becomes subject to the reporting requirements of the Exchange Act.
---------------------------------------------------------------------------

     The same risk and financial information that would be 
required to be provided under Securities Act Rule 701 if securities 
sold in reliance on Securities Act Rule 701 in a 12-month period 
exceeded $5 million, with the optionholders and holders of shares 
received on exercise of the compensatory employee stock options always 
having been provided required financial statements that are not more 
than 180 days old;\56\ and
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    \56\ See Securities Act Rule 701(e) [17 CFR 230.701(e)] for a 
description of the risk factor and financial statement requirements. 
The required information would have to be provided under the terms 
of the proposed exemption regardless of whether the issuer would be 
required to provide the information under Rule 701 (for example 
because the issuer did not sell $5 million in securities in a 12-
month period in reliance on Rule 701).
---------------------------------------------------------------------------

     The issuer's books and records, including corporate 
governance documents, to the same extent that they are available to 
other shareholders of the issuer.
    The issuer would be permitted to provide the required information 
(other than the issuer's books and records) to the optionholders and 
holders of shares received on exercise of compensatory employee stock 
options either by:
     Physical or electronic \57\ delivery of the information; 
or
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    \57\ Electronic delivery of such information would have to be 
made in compliance with the Commission's interpretations regarding 
the electronic delivery of information. See e.g., ``Use of 
Electronic Media,'' Release No. 34-42728 (April 28, 2000).
---------------------------------------------------------------------------

     Notice to the optionholders and holders of shares received 
on exercise of compensatory employee stock options of:

--The availability of the information on a password-protected Internet 
site; and
--Any password needed to access the information.

    The basis of the information requirement in the proposed exemption 
is the information that would be required to be provided pursuant to 
the exemption from Securities Act registration provided in Securities 
Act Rule 701 if securities sold in reliance on Securities Act Rule 701 
in a 12-month period exceeded $5 million. In Securities Act Rule 701, 
we established the type of information that employees holding 
compensatory employee stock options must be provided before the 
exercise of those options.\58\ The Securities Act Rule 701 information 
provisions provide optionholders and other persons who purchase 
securities without registration under Rule 701 with important 
information. We believe that the ongoing provision of the same 
information is necessary and appropriate for purposes of the proposed 
exemption from Exchange Act registration.\59\
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    \58\ See Rule 701 Release, note 4 supra. ``The type and amount 
of disclosure needed in a compensatory securities transaction 
differs from that needed in a capital-raising transaction. In a bona 
fide compensatory arrangement, the issuer is concerned primarily 
with compensating the employee-investor rather than maximizing its 
proceeds from the sale. Because the compensated individual has some 
business relationship, perhaps extending over a long period of time, 
with the securities issuer, that person will have acquired some, and 
in many cases, a substantial amount of knowledge about the 
enterprise. The amount and type of disclosure required for this 
person is not the same as for the typical investor with no 
particular connection with the issuer.'' Id.
    \59\ As the Commission reminded issuers when it adopted the 
amendments to Securities Act Rule 701 in 1999, issuers should be 
aware that compliance with the minimum disclosure standards for Rule 
701 may not necessarily satisfy the antifraud standards of the 
securities laws. See Rule 701 Release, note 4 supra. (Preliminary 
Note 1 to Rule 701 states that issuers and other persons acting on 
their behalf have an obligation to provide investors with disclosure 
adequate to satisfy the antifraud provisions of the federal 
securities laws.) We recognize that the Advisory Committee has 
recommended modifications to Rule 701 that would affect the 
thresholds that would trigger the disclosure provisions of that 
rule. Our proposals do not address the Advisory Committee's 
recommendations regarding Rule 701. See Final Report of the Advisory 
Committee, at p. 92-93.
---------------------------------------------------------------------------

    Securities Act Rule 701 provides that the required information must 
be provided to an optionholder a reasonable period of time before the 
date of exercise of the compensatory employee stock options. Rule 701 
also requires that the required financial statements must be as of a 
date no more than 180 days before the sale of the securities (which in 
the case of compensatory employee stock options is the date of exercise 
of the options). We believe that the proposed exemption from Exchange 
Act registration presents the need for ongoing information to be 
provided to optionholders and holders of shares received on exercise of 
those options. As such, the proposed exemption would require that the 
optionholders and holders of shares received on exercise of the 
compensatory employee stock options always be provided the required 
financial statements that are not more than 180 days old.
    While requiring private, non-reporting issuers to provide 
information, the proposed exemption would allow flexibility in the 
means of providing the information by permitting physical, electronic, 
or Internet-based delivery. Under the proposal, the issuer would be 
required to make its books and records available for inspection by the 
optionholder and holders of shares received on exercise of compensatory 
employee stock options to the same extent that they are available to 
other shareholders of the issuer.
    To permit issuers to safeguard proprietary or confidential 
information that may be contained in the information to be provided, 
the proposed exemption would permit provision of the disclosure to be 
conditioned on the optionholder (or holder of shares received on 
exercise of compensatory employee stock options) agreeing to maintain 
the confidentiality of the information.\60\ As proposed, if an 
optionholder (or holder of shares) chooses not to enter into such a 
confidentiality agreement, the exemption would permit the issuer to 
choose to not provide the information to that optionholder or holder of 
shares received on exercise of options if it allows inspection of the 
documents at one of the described issuer offices.
---------------------------------------------------------------------------

    \60\ This proposed provision is consistent with the related 
information required under Securities Act Rule 701.
---------------------------------------------------------------------------

    In the no-action registration relief provided to issuers to date, 
the staff of the Division of Corporation Finance has provided that 
relief only where the issuer commits to providing essentially the same 
Exchange Act information and reports as if it was subject to the 
Exchange Act reporting requirements. We believe that our experience 
with Securities Act Rule 701 and the combined conditions of the 
proposed exemption, including the eligibility and transferability 
provisions, alleviate the need for that level of information in the 
context of an on-going reporting exemption relating to compensatory 
employee stock options.\61\ As such, we believe that the scope of 
information that the optionholders and holders of shares will be 
provided under the proposed exemption is not inconsistent

[[Page 37616]]

with investor protection and the public interest.\62\
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    \61\ As the Commission also recognized when it adopted the 
Securities Act Rule 701 amendments in 1999, and because many issuers 
that have 500 or more optionholders and more than $10 million in 
assets are likely to have received venture capital financing (see 
for example the data in the Hand Paper, note 4 supra), we believe 
that many of these issuers already have prepared the type of 
disclosure required in their normal course of business, either for 
using other exemptions, such as Regulation D, or for other purposes. 
As a result, the disclosure requirement generally would be less 
burdensome for them. In adopting the amendments to Rule 701, we 
stated that a minimum level of disclosure was essential to meet even 
the reduced level of information needed to inform compensatory-type 
investors such as employees and consultants. See Rule 701 Release, 
note 4 supra.
    \62\ For a private, non-reporting issuer with a significant 
number of optionholders (and with more than $10 million in assets at 
the end of its fiscal year), we believe it is likely that such 
issuer either already is obligated to provide the same information 
to optionholders due to sales of securities in reliance on 
Securities Act Rule 701 or already prepares and, as such, provides 
such information to its shareholders. As a result, it is likely that 
optionholders and holders of shares received on exercise of those 
options already will have received such disclosures in connection 
with the option grants and exercises and, because of the proposed 
transferability restrictions on the compensatory employee stock 
options and the shares received or to be received on exercise of 
those options, will not have further investment decisions to make, 
until the issuer becomes subject to the reporting requirements of 
the Exchange Act. Consequently, we believe that the disclosure 
required under the proposed exemption is the appropriate level of 
disclosure to be provided option holders and holders of shares 
received on exercise of those options until the issuer becomes 
subject to the reporting requirements of the Exchange Act.
---------------------------------------------------------------------------

Request for Comment
     Should the proposed exemption require additional 
information to be provided? If so, what additional information should 
be required?
     Should the proposed exemption require that audited 
financial statements be provided in all cases, even if the issuer does 
not otherwise prepare audited financial statements?
     Should the proposed exemption also require that the 
information be provided in specified time frames prior to the exercise 
of the compensatory employee stock options?
     Should the proposed exemption require that the information 
be provided to holders of shares received on exercise of the 
compensatory employee stock options until the issuer becomes subject to 
the reporting requirements of the Exchange Act or for so long as the 
issuer is relying on the proposed exemption? If not, should there be 
restrictions on the information provided and, if so, what restrictions 
should be imposed and why?
     Should the proposed exemption apply to holders of shares 
received on exercise of compensatory employee stock options only if the 
issuer has a repurchase right in the event of an attempted transfer of 
the shares? If so, what information would be provided to a holder of 
shares prior to the issuer becoming a reporting issuer under the 
Exchange Act?
     As proposed, the issuer could provide the required 
information by physical, electronic, or Internet-based delivery. Is it 
appropriate to allow issuers to choose how to satisfy this requirement 
by using these alternate means? What role should investor preference 
play?
     Should the condition specifying the manner in which the 
information should be provided mandate that the information be 
available through a password-protected Internet site?
     The proposed exemption would require that issuers make 
their books and records available to optionholders and to holders of 
shares received on exercise of the options to the same extent they are 
available to other shareholders of the issuer. Is this an appropriate 
information requirement for the proposed exemption? If not, why not? 
What books and records and corporate governance documents do private, 
non-reporting issuers provide to optionholders and holders of shares 
received on exercise of options? Would this condition affect issuers' 
practices of granting options to consultants and advisors? If so, why?
     As proposed, the exemption does not require private, non-
reporting issuers to provide optionholders or holders of shares 
received on exercise of an option with the information that would be 
required to be disclosed by our issuer tender offer rules (Exchange Act 
Rule 13e-4) \63\ or going private transaction rules (Exchange Act Rule 
13e-3) \64\ if the compensatory employee stock options (or shares 
received on exercise of those options) were registered pursuant to 
Exchange Act Section 12(g). Should the information disclosure 
requirements of the proposed exemption be expanded to require 
disclosure of additional information such as any information that would 
otherwise be required by Rule 13e-3 or Rule 13e-4? If so, what 
information should be required to be provided?
---------------------------------------------------------------------------

    \63\ 17 CFR 240.13e-4.
    \64\ 17 CFR 240.13e-3.
---------------------------------------------------------------------------

     In addition, beneficial ownership of compensatory employee 
stock options not Exchange Act Section 12-registered in reliance on the 
proposed exemption would not trigger the beneficial ownership reporting 
requirements in Exchange Act Regulation 13D-G \65\ unless the options 
were exercisable for Section 12 registered securities within 60 days. 
Is this the correct result?
---------------------------------------------------------------------------

    \65\ 17 CFR 240.13d-1 through 240.13d-102.
---------------------------------------------------------------------------

6. Issuer Obligation To Impose the Conditions to the Proposed Exemption
    For the proposed exemption to be available, a private, non-
reporting issuer would be required to include the necessary limitations 
and conditions either in the written stock option plans or within the 
terms of the individual written option agreements. In addition, the 
transferability restrictions on the shares received on exercise of the 
compensatory employee stock options also must be included in the 
issuer's by-laws, certificate of incorporation, or a stock purchase or 
stockholder agreement between the issuer and the exercising 
optionholder or holder of shares received on exercise of an option. We 
believe that the self-executing nature of the proposed exemption 
necessitates the inclusion of the conditions to the exemption in an 
enforceable agreement between the issuer, the optionholders, and the 
holders of shares received on exercise of an option, or in the issuer's 
by-laws or certificate of incorporation.
Request for Comment
     Should the proposed exemption require that the conditions 
be contained in a particular written document or should the proposed 
exemption allow the conditions to be contained in any agreement between 
the issuer, the optionholders, and the holders of shares received on 
exercise of an option?
     Should the proposed exemption permit any of the 
conditions, including the transferability restrictions on the shares 
received on exercise of the compensatory employee stock options, to be 
included in the issuer's by-laws or certificate of incorporation?

B. Proposed Exemption for Compensatory Employee Stock Options of 
Exchange Act Reporting Issuers

    To provide certainty regarding the obligations of issuers that 
already have registered the securities underlying the compensatory 
employee stock options under the Exchange Act, we believe it is 
appropriate to provide an exemption from Exchange Act registration for 
compensatory employee stock options of these reporting issuers.\66\ The 
proposed exemption would be available only for an issuer that has 
registered under Exchange Act Section 12 the class of equity security 
underlying the compensatory employee stock options. Such a registration 
gives rise to a requirement to file the reports required under Exchange 
Act Section 13.\67\ The filing of these reports is essential to the 
proposed exemption, as we believe the

[[Page 37617]]

exemption is appropriate because the Exchange Act reports of those 
issuers will provide the appropriate information to optionholders.
---------------------------------------------------------------------------

    \66\ Public reporting issuers may be unclear regarding the need 
to comply with the Exchange Act Section 12(g) registration 
requirements for compensatory employee stock options if the issuer 
has registered under Exchange Act Section 12 the class of equity 
security underlying those options or has registered under the 
Securities Act the offer and sale of the options and the shares 
issuable on exercise of the options on Form S-8. Consequently, we 
believe the proposed exemption will provide important guidance 
regarding, and an appropriate exemption to eligible issuers from, 
the Exchange Act registration requirement for compensatory employee 
stock options.
    \67\ 15 U.S.C. 78m.
---------------------------------------------------------------------------

    As with the proposed exemption for private, non-reporting issuers, 
the proposed exemption for issuers subject to the reporting 
requirements of the Exchange Act would be available only where the 
options were issued pursuant to a written compensatory stock option 
plan and where the class of persons eligible to receive or hold 
compensatory employee stock options under the stock option plans was 
limited to those participants permitted under Securities Act Rule 
701.\68\ The proposed exemption from Section 12(g) registration for 
compensatory employee stock options of Exchange Act reporting issuers 
would not include any information conditions, other than those arising 
from the registration of the class of equity security underlying the 
options.
---------------------------------------------------------------------------

    \68\ See the discussion under ``Eligible Option Plan 
Participants,'' above, for a description of the eligible 
optionholders.
---------------------------------------------------------------------------

    As proposed, the availability of the exemption would not be 
conditioned on the issuer being current in its Exchange Act reporting. 
We have not proposed such a condition, as it would seem inappropriate 
for the issuer to lose the exemption, and be required to register a 
class of compensatory employee stock options under Exchange Act Section 
12(g), because it was late in filing a required Exchange Act report 
and, for the days before that report was filed, was not ``current'' in 
its Exchange Act reporting. We are requesting comment as to whether it 
would be appropriate to include a requirement in the exemption 
regarding the issuer's ongoing satisfaction of its Exchange Act 
reporting obligations.
    While the proposed exemption would apply to the registration of 
compensatory employee stock options as a separate class of equity 
security, the protections of Exchange Act Sections 13(e) and 14(e) will 
continue to apply to offers for those compensatory employee stock 
options. Further, the requirements of Exchange Act Section 16 also will 
apply to the equity securities underlying the compensatory employee 
stock options and the beneficial ownership reporting requirements of 
Exchange Act Sections 13(d) and 13(g) \69\ will continue to apply if 
the compensatory employee stock options are exercisable for Exchange 
Act Section 12 registered securities.\70\ The proposed exemption, 
therefore, would be available only to an issuer that had registered 
under Exchange Act Section 12 the class of equity security to be issued 
on exercise of the compensatory employee stock options. As a result, 
the proposed exemption would not be available to an issuer that is 
required to file Exchange Act reports solely pursuant to Exchange Act 
Section 15(d).
---------------------------------------------------------------------------

    \69\ 15 U.S.C. 78m(d) and (g).
    \70\ The provisions of Exchange Act Section 16 would apply to 
the options if the securities to be issued upon exercise of the 
options are registered as a class of equity security under Section 
12. See 15 U.S.C. 78p and the rules promulgated thereunder. As a 
result, we do not believe it is necessary for compensatory employee 
stock options to be subject to Section 16 as a separate class of 
equity security.
---------------------------------------------------------------------------

Request for Comment
     Should the proposed exemption apply to any issuer that is 
required to file Exchange Act periodic reports, whether or not the 
issuer has registered the class of equity security underlying the 
compensatory employee stock options under Exchange Act Section 12? If 
so, why?
     Should the proposed exemption be available only to issuers 
that are current in their Exchange Act reporting obligations? Should 
the proposed exemption be available only to issuers that, at the end of 
their fiscal years, are current in their Exchange Act reporting 
obligations? If so, why? If not, why not?
     Should the proposed exemption be available to issuers that 
are required to file reports under the Exchange Act solely pursuant to 
Section 15(d)? If so, why?
     How would the exclusion from the proposed exemption affect 
issuers required to file reports solely pursuant to Section 15(d) of 
the Exchange Act? How many issuers would be affected?
     Should the proposed exemption be available to those 
issuers that are not required to file Exchange Act reports but file 
such reports on a voluntary basis (also known as ``voluntary filers'') 
and, if so, why?
     Should the proposed exemption apply only to the reporting 
obligations under Section 13(a) of the Exchange Act and not to the 
application of other Exchange Act provisions, such as the tender offer 
provisions of Section 13(e) and Section 14(e) of the Exchange Act? 
Please explain.
     Is the use of the Securities Act Rule 701 definitions of 
eligible participants appropriate for purposes of the proposed 
exemption? If not, what definitions should be used to characterize the 
eligible optionholders? Should the eligible optionholders only be those 
persons permitted to be offered and sold options pursuant to a 
registration statement on Form S-8? If so, why?
     Should there be any restrictions on the transferability or 
ownership of the compensatory employee stock options, the shares 
received on exercise of those options, or shares of the same class of 
equity security as those underlying those options under the proposed 
exemption for reporting issuers?

C. Transition Provisions

    The proposed exemption from Exchange Act Section 12(g) registration 
for compensatory employee stock options for private, non-reporting 
issuers would not affect the no-action relief from Exchange Act Section 
12(g) registration of compensatory employee stock options that issuers 
have received from our Division of Corporation Finance. While the 
existing no-action letters will remain unaffected by the proposed 
exemption if adopted, issuers who have received such letters would be 
able, of course, to rely instead on the proposed exemption.
    The proposed exemptions are self-executing. If the issuer becomes 
ineligible to rely on an applicable proposed exemption, the issuer 
would be permitted up to 60 calendar days from the date it became 
ineligible to rely on the proposed exemption to file a registration 
statement to register under Exchange Act Section 12(g) the class of 
compensatory employee stock options or, in the case of a reporting 
issuer, the class of equity security underlying such options.
Request for Comment
     Do the proposed transition provisions of 60 calendar days 
provide enough time for private, non-reporting and reporting issuers to 
comply with the Exchange Act Section 12 registration requirements upon 
the loss of an exemption for the compensatory employee stock options? 
Should it be 30 calendar days? 90 calendar days? If not, what time 
frame should be provided and why?
     Should the proposed exemptions be exclusive exemptions for 
Section 12 registration of compensatory employee stock options?

D. General Request for Comment

    We request and encourage any interested person to submit comments 
on the proposed exemptions and any other matters that might have an 
impact on the proposed exemptions. With respect to any comments, we 
note that such comments are of greatest assistance to our rulemaking 
initiative if accompanied by supporting data and analysis of the issues 
addressed in those comments.

[[Page 37618]]

III. Paperwork Reduction Act Analysis

A. Background

    Certain provisions of the proposed amendments to Rule 12h-1 \71\ 
contain ``collection of information'' requirements within the meaning 
of the Paperwork Reduction Act of 1995 (``PRA'').\72\ We are submitting 
these to the Office of Management and Budget (``OMB'') for review and 
approval in accordance with the PRA.\73\ An agency may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless it displays a currently valid OMB control number. 
The title for this information is:
---------------------------------------------------------------------------

    \71\ 17 CFR 240.12h-1.
    \72\ 44 U.S.C. 3501 et seq.
    \73\ 44 U.S.C. 3507(d) and 5 CFR 1320.11.
---------------------------------------------------------------------------

     Exchange Act Rule 12h-1.
    The hours and costs associated with preparation of notices, 
maintaining Internet sites, and preparation of information to be 
disclosed to optionholders and holders of shares received on exercise 
of compensatory employee stock options for private, non-reporting 
issuers relying on the proposed exemption from Exchange Act Section 
12(g) \74\ registration constitute cost burdens imposed by the 
collection of information. The proposed exemption available to 
reporting issuers would not constitute new collections of information. 
The proposed amendments would not affect existing collections of 
information.
---------------------------------------------------------------------------

    \74\ 15 U.S.C. 78l(g).
---------------------------------------------------------------------------

    The proposed exemptions from Exchange Act Section 12(g) 
registration would be adopted pursuant to the Exchange Act. The 
information collection requirements related to the proposed exemption 
for private, non-reporting issuers would be a condition to reliance on 
the exemption. There is no mandatory retention period for the 
information disclosed and the information disclosed is not required to 
be filed with the Commission.

B. Summary of Collection of Information

    Our proposed amendments to Exchange Act Rule 12h-1 would provide an 
exemption for private, non-reporting issuers from Exchange Act Section 
12(g) registration for compensatory employee stock options issued under 
employee stock option plans. The proposed amendments also would provide 
an exemption from Exchange Act Section 12(g) registration for 
compensatory employee stock options of issuers that have registered 
under Exchange Act Section 12 the class of equity security underlying 
those options.
    The proposed requirements regarding notice of information 
availability, Internet availability of information, and, for certain 
issuers, the preparation of information related to the proposed 
exemption from Exchange Act Section 12(g) for compensatory employee 
stock options of private, non-reporting issuers would, if adopted, 
constitute a new collection of information under the Exchange Act. The 
proposed information provision in the proposed exemption for private, 
non-reporting issuers would not be a new collection of information for 
those private, non-reporting issuers that also are required to provide 
such information to optionholders pursuant to Securities Act Rule 701 
\75\ or that already prepare and provide such information to their 
shareholders.
---------------------------------------------------------------------------

    \75\ 17 CFR 230.701.
---------------------------------------------------------------------------

    The collection of information would be required for those private, 
non-reporting issuers that rely on the proposed exemption because they 
had 500 or more optionholders and more than $10 million in assets at 
the end of their fiscal year. The issuers likely to use the proposed 
exemption would be those private, non-reporting issuers that had more 
than $10 million in assets and had used stock options to compensate 
employees, directors, consultants, and advisors on a broad basis. The 
proposed exemption from Section 12(g) registration for compensatory 
employee stock options of reporting issuers that have registered under 
Exchange Act Section 12(g) the class of equity security underlying such 
options does not impose any new collection of information on these 
reporting issuers.

C. Paperwork Reduction Act Burden Estimates

    If the proposed exemption for private, non-reporting issuers is 
adopted, we estimate that the annual burden for responding to the 
collection of information in the proposed exemption would not increase 
significantly for most private, non-reporting issuers, due to the 
current disclosure provisions of Securities Act Rule 701 and the 
probability that such issuers already prepare such information for 
other purposes. The costs may increase for those private, non-reporting 
issuers who are not relying on Securities Act Rule 701 when they grant 
compensatory employee stock options or who do not prepare the 
information for other purposes. The cost of providing such information 
may increase because of the requirement in the proposed exemption for 
private, non-reporting issuers to provide the required information. We 
seek comment on the number of private, non-reporting issuers that would 
rely on the proposed exemption that already prepare the information 
required by the proposed exemption for other purposes.
    Our estimates represent the burden for private, non-reporting 
issuers eligible to rely on the proposed exemption. Because the 
registration provisions of Section 12(g) apply only to an issuer with 
500 or more holders of record of a class of equity security and assets 
in excess of $10 million at the end of its most recently ended fiscal 
year, only those private, non-reporting issuers satisfying those 
thresholds would be subject to the collection of information. The 
Division of Corporation Finance has granted no-action relief from 
registration of compensatory employee stock options to 30 private, non-
reporting issuers during the period 1992 through 2006. If we assume 
that approximately 3 new private, non-reporting issuers would be 
relying on the proposed exemption each year and that a certain number 
of private, non-reporting issuers will no longer be relying on the 
exemption because they have become reporting issuers, have been 
acquired, or have terminated business, we estimate that approximately 
40 private, non-reporting issuers each year may be relying on the 
exemption. The proposed exemption for private, non-reporting issuers 
would terminate once such issuer became subject to the reporting 
requirements of the Exchange Act. Thus, the number of private, non-
reporting issuers that may rely on the proposed exemption may vary from 
year to year.
    For purposes of the PRA, we estimate the annual paperwork burden 
for private, non-reporting issuers desiring to rely on the proposed 
exemption and to comply with our proposed collection of information 
requirements to be approximately 20 hours of in-house issuer personnel 
time and to be approximately $24,000 for the services of outside 
professionals.\76\ These estimates include the time and the cost of 
preparing and reviewing the information and making the information 
available to optionholders and holders of shares received on exercise 
of the options. We assume that the same number of private, non-
reporting issuers would rely on the proposed exemption each year.
---------------------------------------------------------------------------

    \76\ For administrative convenience, the presentation of the 
totals related to the paperwork burden hours have been rounded to 
the nearest whole number and the cost totals have been rounded to 
the nearest hundred.

---------------------------------------------------------------------------

[[Page 37619]]

    We estimate that 25% of the burden of preparation and provision of 
the information required by the proposed exemption is carried by the 
issuer internally and that 75% of the burden is carried by outside 
professionals retained by the issuer at an average cost of $400 per 
hour.\77\ The portion of the burden carried by outside professionals is 
reflected as a cost, while the portion of the burden carried by the 
issuer internally is reflected in hours. We request comment and 
supporting empirical data on the number of private, non-reporting 
issuers that would rely on the proposed exemption and the burden and 
cost of preparing and providing the information required by the 
proposed exemption.
---------------------------------------------------------------------------

    \77\ In connection with other recent rulemakings, we have had 
discussions with several private law firms to estimate an hourly 
rate of $400 as the average cost of outside professionals that 
assist issuers in preparing disclosures for offerings.
---------------------------------------------------------------------------

D. Request for Comment

    We request comment in order to evaluate the accuracy of our 
estimate of the burden of the collections of information.\78\ Any 
member of the public may direct to us any comments concerning the 
accuracy of these burden estimates. Persons who desire to submit 
comments on the collection of information requirements should direct 
their comments to the OMB, Attention: Desk Officer for the Securities 
and Exchange Commission, Office of Information and Regulatory Affairs, 
Washington, DC 20503, and should send a copy of the comments to Nancy 
M. Morris, Secretary, Securities and Exchange Commission, 100 F Street, 
NE., Washington, DC 20549-1090, with reference to File No. S7-14-07. 
Requests for materials submitted to the OMB by us with regard to this 
collection of information should be in writing, refer to File No. S7-
14-07, and be submitted to the Securities and Exchange Commission, 
Office of Filings and Information Services, Branch of Records 
Management, 6432 General Green Way, Alexandria, VA 22312. Because the 
OMB is required to make a decision concerning the collections of 
information between 30 and 60 days after publication, your comments are 
best assured of having their full effect if the OMB receives them 
within 30 days of publication.
---------------------------------------------------------------------------

    \78\ Comments are requested pursuant to 44 U.S.C. 3506(c)(2)(B).
---------------------------------------------------------------------------

IV. Cost-Benefit Analysis

A. Background

    Compensatory stock options provide a method to use non-cash 
compensation to attract, retain, and motivate issuer employees, 
directors and consultants. Since the 1990s, a number of private, non-
reporting issuers have granted compensatory employee stock options to 
500 or more employees, directors, and consultants. Compensatory 
employee stock options also are used routinely by issuers required to 
report under the Exchange Act.
    Stock options, including stock options issued to employees under 
stock option plans, are a separate class of equity security for 
purposes of the Exchange Act. Under Section 12(g) of the Exchange Act, 
an issuer with 500 or more holders of record of a class of equity 
security and assets in excess of $10 million at the end of its most 
recently ended fiscal year must register that class of equity security, 
unless there is an available exemption from registration. While there 
is an exemption from Exchange Act Section 12(g) registration for 
interests and participations in certain other types of employee 
compensation plans involving securities, currently there is no 
exemption for compensatory employee stock options.

B. Summary of Proposed Amendments

    We are proposing two exemptions from the registration provisions of 
Exchange Act Section 12(g) for compensatory employee stock options 
issued under employee stock option plans that are limited to employees, 
directors, consultants, and advisors of the issuer.
    One proposed amendment to Rule 12h-1 would provide an exemption 
from Exchange Act Section 12(g) registration for compensatory employee 
stock options of an issuer that does not have a class of securities 
registered under Section 12 and is not subject to the reporting 
requirements of Exchange Act Section 15(d), where the following 
conditions are present:
     Eligible optionholders are limited to employees, 
directors, consultants, and advisors of the issuer;
     Transferability by optionholders and holders of shares 
received on exercise of the options of compensatory employee stock 
options, the shares received, or to be received, on exercise of those 
options, and shares of the same class as those underlying those options 
is restricted; and
     Risk and financial information is provided to 
optionholders and holders of shares received on exercise of those 
options that is of the type that would be required under Rule 701 if 
securities sold in reliance on Rule 701 exceeded $5 million in a 12-
month period.
    The second proposed amendment to Exchange Act Rule 12h-1 would 
provide an exemption for compensatory employee stock options of issuers 
that are required to file reports under the Exchange Act because they 
have registered under Exchange Act Section 12 the class of equity 
security underlying those options.
1. Expected Benefits
    Benefits of the proposed exemption for private, non-reporting 
issuers are likely to include the following: (1) Lower costs to, and 
reduced uncertainty for, private, non-reporting issuers desiring relief 
from registration under Section 12(g) for compensatory employee stock 
options issued to employees, directors, consultants, and advisors for 
compensatory purposes; (2) benefits to private, non-reporting issuers 
in designing and implementing employee stock option plans without 
regard to concerns arising from Exchange Section 12(g) registration of 
the compensatory employee stock options; (3) benefits to private, non-
reporting issuers arising from the use of electronic or Internet-based 
methods of providing the information necessary to satisfy the 
information requirement of the proposed exemption; and (4) benefits to 
optionholders and holders of shares received on exercise of options of 
private, non-reporting issuers arising from the required provision of 
information under the proposed exemption.
    Private, non-reporting issuers would benefit from cost savings as a 
result of the proposed exemption from Section 12(g) registration of 
their compensatory employee stock options. A number of private, non-
reporting issuers that have 500 or more optionholders and assets in 
excess of $10 million have hired attorneys and requested no-action 
relief from the Division of Corporation Finance with regard to the 
registration of the options. The conditions to no-action relief from 
the Division include information provision conditions that are more 
extensive than in the proposed exemption. The proposed exemption, which 
would be self-executing if the provisions of the exemption were 
satisfied, would reduce the legal and other costs to a private, non-
reporting issuer arising from the no-action request and relief. Such 
cost savings include reduced legal and accounting fees arising from 
both the request for no-action relief and for preparation of reports 
equivalent to Exchange Act reports of a reporting issuer on an ongoing 
basis. Because we expect that a number of the issuers that may take 
advantage of the proposed exemption may be smaller issuers, these cost

[[Page 37620]]

savings could be significant relative to revenues.
    The proposed amendments would require the same information that the 
issuer otherwise would be required to provide if securities sold in 
reliance on Securities Act Rule 701 exceeded $5 million during any 
consecutive 12-month period. Thus, for private, non-reporting issuers 
with a significant number of optionholders (and with more than $10 
million in assets at the end of its fiscal year), it is likely that 
such issuer either already is obligated to provide the same information 
to optionholders due to sales of securities in reliance on Securities 
Act Rule 701, or already prepares and, as such, provides such 
information to its shareholders. Further, any private, non-reporting 
issuer that has received no-action relief regarding registration of its 
compensatory employee stock options will face reduced disclosure costs 
under the proposed exemption.
    The proposed amendment also would benefit private, non-reporting 
issuers by providing the less expensive alternative of electronic or 
Internet-based methods of providing the information necessary to 
satisfy the information requirement of the proposed exemption.
    Private, non-reporting issuers also would benefit from the 
certainty that the proposed exemption would provide in designing and 
implementing compensation programs and employee stock option plans. The 
proposed amendments would identify the eligibility provisions and 
transfer restrictions that would need to be contained in compensatory 
stock option plans or agreements, thereby lessening the need for 
issuers, at the time that Section 12(g) registration relief is needed 
for the compensatory employee stock options, to amend their stock 
option plans and outstanding options to include provisions that would 
be necessary to obtain no-action relief. The proposed exemption would 
help private, non-reporting issuers avoid becoming subject to the 
registration and reporting requirements of the Exchange Act prior to 
the time they have public shareholders.
    Optionholders and holders of shares received on exercise of options 
also would benefit from the proposed exemption. The proposed exemption 
assures the provision of the information, including financial 
information that is not more than 180 days old, to optionholders and 
holders of shares received on exercise of options. Employees, 
directors, consultants, and advisors would benefit from the proposed 
exemption because private, non-reporting issuers would be able to use 
options for compensatory purposes without concern that the option 
grants would subject the issuer to Exchange Act registration.
    The proposed exemption for reporting issuers also would benefit 
optionholders and holders of shares received on exercise of options. 
Optionholders and holders of shares received on exercise of options 
would have access to the issuer's publicly filed Exchange Act reports. 
Further, certain provisions of Sections 13, 14, and 16 would apply to 
the options and the securities issuable on exercise of the options. 
Holders of shares issued on exercise of those options would have the 
same rights as other shareholders of the issuer. Thus, the proposed 
exemption eliminates a possible disincentive for issuers to use certain 
compensatory employee stock options. This may be a benefit if this type 
of compensation is useful in attracting and retaining qualified 
employees that increase the issuer's competitiveness.
2. Expected Costs
    Issuers would be required to satisfy the provisions of the proposed 
amendments, if adopted, to avoid registering under Section 12(g) their 
compensatory employee stock options if the registration thresholds are 
met at the end of the issuer's fiscal year. Private, non-reporting 
issuers may incur certain costs to rely on the proposed exemption 
including (1) costs to amend their existing employee stock option plans 
if the plans and option grants do not contain the restrictive and 
information provisions of the proposed exemption; (2) costs arising 
from preparing and providing the information required by the proposed 
exemption to the extent that the issuer does not already prepare or 
provide such information for other purposes; and (3) costs of 
maintaining an Internet site on which the information may be available 
if the issuer chooses to use that method to provide the required 
information to optionholders and holders of shares received on exercise 
of options.
    We believe that the provisions of the proposed exemption are 
consistent in many respects with the restrictive provisions of other 
laws and rules governing option grants and, thus, the costs to private, 
non-reporting issuers should not be increased. The proposed exemption 
provisions also are consistent with or are more flexible than the 
existing conditions for obtaining no-action relief from the Division of 
Corporation Finance. Therefore, the costs to private, non-reporting 
issuers to prepare the information required by the proposed exemption 
may be the same or less than the current costs to the issuer relying on 
registration relief provided in a no-action letter issued by the 
Division of Corporation Finance.
    Those private, non-reporting issuers who do not already prepare the 
required information will face costs if they desire to avail themselves 
of the proposed exemption. In addition to the costs discussed in the 
Paperwork Reduction Act Analysis,\79\ as described below, issuers may 
face costs in maintaining the confidentiality of the information 
required to be provided, including preparation and enforcement of 
confidentiality agreements entered into with optionholders and holders 
of shares received on exercise of options. It should be noted, however, 
that these increased costs would be borne voluntarily, as it is within 
the issuer's control as to the number of optionholders it may have. 
Issuers would be able to perform their own cost-benefit analysis to 
determine whether to comply with the conditions to the exemption or 
avoid issuing options to 500 or more optionholders.
---------------------------------------------------------------------------

    \79\ See discussion under ``PAPERWORK REDUCTION ACT ANALYSIS,'' 
above.
---------------------------------------------------------------------------

    Private, non-reporting issuers may incur costs in providing the 
information required under the exemption. These costs may include 
printing and sending the information or making the information 
available on an Internet site. We request comment on the magnitude of 
these potential costs and whether there are any other additional 
potential costs.
    The Division of Corporation Finance has granted no-action relief 
from registration of compensatory employee stock options to 30 private, 
non-reporting issuers during the period 1992 through 2006. If we assume 
that approximately 3 new private, non-reporting issuers would be 
relying on the proposed exemption each year and that a certain number 
of private, non-reporting issuers will no longer be relying on the 
exemption because they have become reporting issuers, have been 
acquired, or have terminated business, we estimate that approximately 
40 private, non-reporting issuers each year may be relying on the 
exemption. The proposed exemption for private, non-reporting issuers 
would terminate once such issuer became subject to the reporting 
requirements of the Exchange Act. Thus, the number of private, non-
reporting issuers that may rely on the proposed exemption may vary from 
year to year.
    For purposes of the Paperwork Reduction Act, the Commission staff 
has estimated that the annual paperwork

[[Page 37621]]

burden for private, non-reporting issuers desiring to rely on the 
proposed exemption and to comply with our proposed collection of 
information requirements to be approximately 20 hours of in-house 
issuer personnel time, which is equivalent to $3,500, and to be 
approximately $24,000 for the services of outside professionals, for a 
total paperwork burden cost of $27,500.\80\ These estimates include the 
time and the cost of preparing and reviewing the information and making 
the information available to optionholders and holders of shares 
received on exercise of the options. The Commission staff assumed that 
the same number of private, non-reporting issuers would rely on the 
proposed exemption each year. The Commission staff estimated that 25% 
of the burden of preparation and provision of the information required 
by the proposed exemption would be carried by the private, non-
reporting issuer internally and that 75% of the burden would be carried 
by outside professionals retained by the private, non-reporting issuer 
at an average cost of $400 per hour.\81\
---------------------------------------------------------------------------

    \80\ For administrative convenience, the presentation of the 
totals related to the paperwork burden hours have been rounded to 
the nearest whole number and the cost totals have been rounded to 
the nearest hundred.
    \81\ In connection with other recent rulemakings, we have had 
discussions with several private law firms to estimate an hourly 
rate of $400 as the average cost of outside professionals that 
assist issuers in preparing disclosures and conducting registered 
offerings. Consistent with recent rulemaking releases, we estimate 
the value of work performed by the company internally at a cost of 
$175 per hour.
---------------------------------------------------------------------------

    Although a private, non-reporting issuer relying on the proposed 
exemption would benefit from cost savings associated with not having to 
register the compensatory employee stock options as a separate class of 
equity security under the Exchange Act, or obtaining no-action relief, 
by not doing so, an optionholder or holder of shares received on 
exercise of an option would not have the benefit of the disclosures 
contained in Exchange Act reports that the issuer otherwise would be 
obligated to file with us, including audited financial statements, or 
the disclosures required to be provided under the terms of the no-
action relief.
    Optionholders and holders of shares received on exercise of options 
also would not be able to freely sell their options or shares received 
on exercise of such options while the private, non-reporting issuer is 
relying on the proposed exemption. Optionholders and holders of shares 
received on exercise of such options would not be able to realize value 
from the options or shares until after the private, non-reporting 
issuer becomes subject to the reporting requirements of the Exchange 
Act. Many private, non-reporting issuers that grant options, however, 
currently restrict the transfer of securities held by holders of shares 
received on exercise of options, in most cases until after the issuer 
becomes subject to the reporting requirements of the Exchange Act or 
unless the issuer is acquired by another entity. In some cases, 
private, non-reporting issuers retain the right to repurchase options 
or shares received on exercise of an option. Any exercise of such 
repurchase right by the issuer would be a cost to such issuer.
Request for Comment
    We request comment on the costs and benefits to optionholders, 
holders of shares received on exercise of compensatory employee stock 
options, private, non-reporting issuers, reporting issuers, and others 
who may be affected by the proposed exemptions in Rule 12h-1. We 
request your views on the costs and benefits described above as well as 
on any other costs and benefits that could result from adoption of the 
proposed exemptions. We also request data to quantify the costs and 
value of the benefits identified.

V. Consideration of Impact on the Economy, Burden on Competition and 
Promotion of Efficiency, Competition and Capital Formation Analysis

    Section 23(a)(2) \82\ of the Exchange Act requires us, when 
adopting rules under the Exchange Act, to consider the impact that any 
new rule would have on competition. In addition, Section 23(a)(2) 
prohibits us from adopting any rule that would impose a burden on 
competition not necessary or appropriate in furtherance of the purposes 
of the Exchange Act. We are proposing an exemption for private, non-
reporting issuers from Exchange Act Section 12(g) registration for 
compensatory employee stock options issued under employee stock option 
plans. We also are proposing an exemption from Exchange Act Section 
12(g) registration for compensatory employee stock options of issuers 
that have registered under Exchange Act Section 12 the class of equity 
security underlying those options.
---------------------------------------------------------------------------

    \82\ 15 U.S.C. 78w(a)(2).
---------------------------------------------------------------------------

    We expect that the proposed exemption for private, non-reporting 
issuers from Exchange Act registration of compensatory employee stock 
options will provide necessary certainty to those issuers in their 
compensation decisions and will help them avoid becoming subject to the 
registration and reporting requirements of the Exchange Act prior to 
the time they have public shareholders. We anticipate that the 
exemption would save such private, non-reporting issuers significant 
costs and would not require that their confidential issuer information 
become public prior to the issuer voluntarily determining to become a 
public reporting issuer. Further, we anticipate that the proposed 
exemption would continue to provide private, non-reporting issuers 
freedom to determine appropriate methods of compensating their 
employees, directors, consultants, and advisors without concern that 
they would be required to register their compensatory employee stock 
options as a class of equity security under Exchange Act Section 12. 
Thus, the proposed exemption eliminates a possible disincentive for 
issuers to use certain compensatory employee stock options. This may be 
a benefit if this type of compensation is useful in attracting and 
retaining qualified employees that increase the private, non-reporting 
issuer's competitiveness.
    The proposed exemption for reporting issuers will provide certainty 
regarding the obligations of issuers that already have registered under 
the Exchange Act the securities underlying compensatory employee stock 
options to register those options under the Exchange Act. In addition, 
in the case of these reporting issuers, the optionholders would have 
access to the issuer's publicly filed Exchange Act reports and the 
appropriate provisions of Sections 13, 14, and 16 would apply to the 
compensatory employee stock options and the equity securities issuable 
on exercise of those options.
    Section 3(f) \83\ of the Exchange Act requires us, when engaging in 
rulemaking that requires us to consider or determine whether an action 
is necessary or appropriate in the public interest, to consider, in 
addition to the protection of investors, whether the action will 
promote efficiency, competition, and capital formation.
---------------------------------------------------------------------------

    \83\ 15 U.S.C. 78c(f).
---------------------------------------------------------------------------

    We anticipate that the proposed amendments, if adopted, would allow 
private, non-reporting issuers to continue to maintain the 
confidentiality of information regarding their business and operations 
through the use of confidentiality agreements with optionholders and 
holders of shares received on exercise of the options. For issuers that 
are voluntarily reporting under the Exchange Act or those reporting 
issuers that are subject to Exchange Act reporting under Section

[[Page 37622]]

15(d), the proposed exemption from Section 12(g) for compensatory 
employee stock options would be unavailable and such issuers would be 
required to register under Exchange Act Section 12 the class of equity 
security underlying the options in order to take advantage of the 
proposed exemption.
    We believe that the proposed exemption from Exchange Act 
registration for the compensatory stock options may beneficially affect 
the issuer's ability to compete for employees because it will allow 
such issuers to continue to use employee stock options in their 
compensation programs, thus enabling them to compete for such employees 
with both private, non-reporting issuers and public reporting issuers. 
The proposed exemption also will provide an eligible issuer a more 
efficient, self-executing exemption from Exchange Act Section 12(g) 
registration of compensatory employee stock options, instead of such 
issuer having to seek no-action relief.
    The proposed exemptions do not relate to or affect capital 
formation, as the compensatory employee stock options covered by the 
proposed exemptions are issued for compensatory and not capital raising 
purposes.
    The proposed exemptions would allow eligible issuers to continue to 
have freedom to determine appropriate methods of compensating their 
employees, directors, consultants, and advisors. For private, non-
reporting issuers, these compensation decisions could be made without 
concern that the issuer would become subject to the Exchange Act 
reporting requirements before they had public shareholders.

Request for Comment

    We request comment on whether the proposed rule would impose a 
burden on competition or whether it would promote efficiency, 
competition, and capital formation. Commenters are requested to provide 
empirical data and other factual support for their views if possible.

VI. Initial Regulatory Flexibility Analysis

    This Initial Regulatory Flexibility Analysis has been prepared in 
accordance with 5 U.S.C. 603. It relates to proposed amendments to Rule 
12h-1 that would provide two exemptions from the registration 
provisions of Exchange Act Section 12(g) for compensatory employee 
stock options issued under employee stock option plans that are limited 
to employees, directors, consultants, and advisors of the issuer, its 
parents, and the majority-owned subsidiaries of the issuer or its 
parents.

A. Reasons for the Proposed Action

    Compensatory stock options provide a method to use non-cash 
compensation to attract, retain, and motivate issuer employees, 
directors and consultants. Since the 1990s, a number of private, non-
reporting issuers have granted compensatory employee stock options to 
500 or more employees, directors, and consultants. Compensatory 
employee stock options routinely are used by issuers required to report 
under the Exchange Act as well.
    Stock options, including stock options issued to employees under 
stock option plans, are a separate class of equity security for 
purposes of the Exchange Act. Under Section 12(g) of the Exchange Act, 
an issuer with 500 or more holders of record of a class of equity 
security and assets in excess of $10 million at the end of its most 
recently ended fiscal year must register that class of equity security, 
unless there is an available exemption from registration. While there 
is an exemption from Section 12(g) registration for interests and 
participations in certain other types of employee compensation plans 
involving securities, currently there is no exemption for compensatory 
employee stock options.

B. Objectives

    The primary objective of the proposed amendments is to provide two 
exemptions from Exchange Act Section 12(g) registration for 
compensatory employee stock options. One proposed exemption would be 
for compensatory employee stock options of issuers that do not have a 
class of securities registered under Section 12 and are not subject to 
the reporting requirements of Exchange Act Section 15(d). The second 
proposed exemption would be for compensatory employee stock options of 
issuers that are required to file reports under the Exchange Act 
because they have registered under Exchange Act Section 12 the class of 
equity security underlying those options.
    Codifying an exemption from registration for compensatory employee 
stock options will provide necessary certainty to issuers in their 
compensation decisions and will help private non-reporting issuers 
avoid becoming subject to the registration and reporting requirements 
of the Exchange Act prior to the time they have public shareholders. 
For reporting issuers that have registered under Section 12 the class 
of security underlying the compensatory employee stock options, we 
believe the proposed exemption of compensatory employee stock options 
from Exchange Act registration is appropriate because the optionholders 
would have access to the issuer's publicly filed Exchange Act reports 
and the appropriate provisions of Sections 13, 14, and 16 would apply 
to the compensatory employee stock options and the equity securities 
issuable on exercise of those options. The proposed exemptions would 
allow private, non-reporting issuers, as well as reporting issuers, to 
continue to reward and retain employees with the issuers' securities.

C. Legal Basis

    We are proposing the amendments to Rule 12h-1 under the authority 
set forth in Sections 12,\84\ 23,\85\ and 36 \86\ of the Securities 
Exchange Act of 1934, as amended.
---------------------------------------------------------------------------

    \84\ 15 U.S.C. 78l.
    \85\ 15 U.S.C. 78w.
    \86\ 15 U.S.C. 78mm.
---------------------------------------------------------------------------

D. Small Entities Subject to the Proposed Rules

    The proposed exemptions would not affect issuers that are small 
entities. Exchange Act Rule 0-10(a) \87\ defines an issuer to be a 
``small business'' or ``small organization'' for purposes of the 
Regulatory Flexibility Act if it had total assets of $5 million or less 
on the last day of its most recent fiscal year. The registration 
requirements of Section 12(g) arise only if an issuer has more than $10 
million in assets and has 500 or more holders of a class of equity 
security at the end of its most recently ended fiscal year. Small 
entities do not satisfy the asset threshold of Section 12(g) and 
therefore the proposed exemptions would not be needed by such entities 
until their asset size increased to more than $10 million at the end of 
a fiscal year.
---------------------------------------------------------------------------

    \87\ 17 CFR 240.0-10(a).
---------------------------------------------------------------------------

    Because the registration requirements of Section 12(g) are not 
implicated unless an entity has assets in excess of $10 million at the 
end of a fiscal year, we conclude that there are not a large number of 
small entities that may be impacted. We request comment on this 
conclusion, including any available empirical data.

E. Reporting, Recordkeeping and Other Compliance Requirements

    The proposed exemptions would not affect small entities. The 
proposed amendments would require the same information that the issuer 
otherwise would be required to provide if securities sold in reliance 
on Securities Act Rule 701 exceeded $5 million

[[Page 37623]]

during any consecutive 12-month period. Thus, for private, non-
reporting issuers with a significant number of optionholders (and with 
more than $10 million in assets at the end of its fiscal year), it is 
likely that such issuer either already is obligated to provide the same 
information to optionholders due to sales of securities in reliance on 
Securities Act Rule 701 or already prepares and provides such 
information to its shareholders.

F. Duplicative, Overlapping or Conflicting Federal Rules

    We believe that there are no rules that conflict with or duplicate 
the proposed amendments to Exchange Act Rule 12h-1.

G. Significant Alternatives

    The Regulatory Flexibility Act directs us to consider significant 
alternatives that would accomplish the stated objective, while 
minimizing any significant adverse impact on small entities. Insofar as 
the amendments only apply to entities that are subject to Section 12(g) 
registration with regard to a class of equity security and, therefore, 
do not apply to small entities, we did not consider any alternatives to 
the proposed amendments specifically with respect to small entities. In 
connection with the proposed exemptions, we considered alternatives 
related to the scope of issuers eligible for the exemption, the 
information required to be provided, and transfer restrictions on the 
options and shares issuable on exercise of the options.

H. Request for Comment

    We encourage the submission of comments with respect to any aspect 
of this Initial Regulatory Flexibility Analysis. Commenters are asked 
to describe the nature of any impact and provide empirical data 
supporting the extent of any impact on small entities. Such comments 
will be considered in the preparation of the Final Regulatory 
Flexibility Analysis, if the proposed amendments are adopted, and will 
be placed in the same public file as comments on the proposed 
amendments.

VII. Small Business Regulatory Enforcement Fairness Act

    For purposes of the Small Business Regulatory Enforcement Fairness 
Act of 1996 \88\ (``SBREFA''), a rule is ``major'' if it has resulted, 
or is likely to result in:
---------------------------------------------------------------------------

    \88\ Pub. L. 104-121, Title II, 110 Stat. 857 (1996).
---------------------------------------------------------------------------

     An annual effect on the economy of $100 million or more;
     A major increase in costs or prices for consumers or 
individual industries; or
     Significant adverse effects on competition, investment or 
innovation.

We request comment on whether our proposed exemptions would be a 
``major rule'' for purposes of SBREFA. We solicit comment and empirical 
data on:
     The potential effect on the U.S. economy on an annual 
basis;
     Any potential increase in costs or prices for consumers or 
individual industries; and
     Any potential effect on competition, investment or 
innovation.

VIII. Statutory Basis and Text of Proposed Rule Amendments

    We are proposing to amend Exchange Act Rule 12h-1 under the 
authority in Sections 12, 23, and 36 of the Securities Exchange Act of 
1934, as amended.

List of Subjects in 17 CFR Part 240

    Reporting and recordkeeping requirements, Securities.

Text of Proposed Rule

    For the reasons set out in the preamble, we propose to amend Title 
17, Chapter II of the Code of Federal Regulations as follows:

PART 240--GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF 
1934

    1. The authority citation for Part 240 continues to read in part as 
follows:

    Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3, 
77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i, 
78j, 78j-1, 78k, 78k-1, 78l, 78m, 78n, 78o, 78p, 78q, 78s, 78u-5, 
78w, 78x, 78ll, 78mm, 80a-20, 80a-23, 80a-29, 80a-37, 80b-3, 80b-4, 
80b-11, and 7201 et seq.; and 18 U.S.C. 1350, unless otherwise 
noted.
* * * * *
    2. Amend Sec.  240.12h-1 to add paragraphs (f) and (g) to read as 
follows:


Sec.  240.12h-1  Exemptions from registration under section 12(g) of 
the Act.

* * * * *
    (f)(1) Stock options issued under written compensatory stock option 
plans of an issuer under the following conditions:
    (i) The issuer of the stock options does not have a class of 
security registered under section 12 of the Act and is not required to 
file reports pursuant to section 15(d) of the Act;
    (ii) The stock options have been issued by the issuer pursuant to 
one or more written compensatory stock option plans established by the 
issuer, its parents, its majority-owned subsidiaries or majority-owned 
subsidiaries of the issuer's parents;

    Note to paragraph (f)(1)(ii): All stock options issued under all 
of the issuer's written compensatory stock option plans on the same 
class of equity security will be considered part of the same class 
of equity security for purposes of the provisions of this section.

    (iii) The stock options are held only by those persons described in 
Rule 701(c) under the Securities Act (17 CFR 230.701(c));
    (iv) The stock options and the shares issuable upon exercise of 
such stock options are restricted as to transfer by the optionholder or 
holder of the shares received on exercise of the option other than to 
persons who are family members (as defined in Rule 701(c)(3) under the 
Securities Act (17 CFR 230.701(c)(3)) through gifts or domestic 
relations orders, or to an executor or guardian of the optionholder or 
holder of shares received on exercise of such stock option upon the 
death or disability of the optionholder or holder of shares, until the 
issuer becomes subject to the reporting requirements of section 13 or 
15(d) of the Act; provided that the optionholder or holder of shares 
may transfer the options or shares to the issuer (or its designated 
affiliate if the issuer is unable to repurchase the options or shares) 
if applicable law prohibits a restriction on transfer;

    Note to paragraph (f)(1)(iv): For purposes of this section, 
optionholders and holders of shares received on exercise of an 
option may include any permitted transferee under paragraph 
(f)(1)(iv) of this section; provided that such permitted transferees 
may not further transfer the stock options or shares issuable upon 
exercise of such stock options;

    (v) The stock options, the shares issuable upon exercise of such 
stock options, and shares of the same class of equity security as those 
underlying the options are restricted as to any pledge, hypothecation, 
or other transfer, including any short position, any ``put equivalent 
position'' (as defined in Sec.  240.16a-1(h) of this chapter), or any 
``call equivalent position'' (as defined in Sec.  240.16a-1(b) of this 
chapter) by the optionholder or holder of shares received on exercise 
of an option, except as permitted in paragraph (f)(1)(iv) of this 
section, until the issuer becomes subject to the reporting requirements 
of section 13 or 15(d) of the Act;
    (vi) There can be no market or available process or methodology 
that permits an optionholder or holder of shares received on exercise 
of an option to receive any consideration or compensation for the 
options, the shares issuable on exercise of the options, or shares of 
the same class of equity security as those underlying the options,

[[Page 37624]]

except as permitted in paragraph (f)(1)(iv) of this section, until the 
issuer becomes subject to the reporting requirements of section 13 or 
15(d) of the Act;

    Note to paragraphs (f)(1)(iv), (f)(1)(v), and (f)(1)(vi): The 
transferability restrictions in paragraphs (f)(1)(iv), (f)(1)(v), 
and (f)(1)(vi) of this section must be contained in either the 
written compensatory stock option plan, individual written 
compensatory stock option agreement, or other stock purchase or 
stockholder agreement to which the issuer and the optionholder or 
holder of shares are a signatory or party, or in the issuer's by-
laws, certificate of incorporation; and

    (vii) The issuer has agreed in the written compensatory stock 
option plan or the individual written compensatory stock option 
agreement to provide the following information to optionholders and 
holders of shares received on exercise of an option until the issuer 
becomes subject to the reporting requirements of section 13 or 15(d) of 
the Act:
    (A) The information described in Rules 701(e)(3), (4), and (5) 
under the Securities Act (17 CFR 230.701(e)(3), (4), and (5)), with 
such information provided either by physical or electronic delivery to 
the optionholders and holders of shares received on exercise of an 
option or by written notice to the optionholders and holders of shares 
received on exercise of an option of the availability of the 
information on a password-protected Internet site and of any password 
needed to access the information; and
    (B) Access to the issuer's books and records, including corporate 
governance documents, to the same extent that they are available to 
other shareholders of the issuer.

    Note to paragraph (f)(1)(vii): The issuer may request that the 
optionholder or holder of shares received on exercise of an option 
agree to keep the information to be provided pursuant to this 
section confidential. If an optionholder or holder of shares 
received on exercise of an option does not agree to keep the 
information to be provided pursuant to this section confidential, 
then the issuer is not required to provide the information; 
provided, that the issuer must then allow the optionholder or holder 
of shares received on exercise of an option to inspect the 
information and documents at one of the issuer's offices that is at 
or near where the optionholder or holder of shares received on 
exercise of an option is or was employed or retained by the issuer.

    (2) If the exemption provided by paragraph (f)(1) of this section 
ceases to be available, the issuer of the compensatory stock options 
that is relying on the exemption provided by this section must file a 
registration statement to register the class of options under section 
12 of the Act within 60 calendar days after the conditions in paragraph 
(f)(1) of this section are no longer satisfied.
    (g)(1) Stock options issued under written compensatory stock option 
plans of an issuer under the following conditions:
    (i) The issuer of the stock options has registered the class of 
equity security issuable on exercise of the options under section 12 of 
the Act;
    (ii) The stock options have been issued by the issuer pursuant to 
one or more written compensatory stock option plans established by the 
issuer, its parents, its majority-owned subsidiaries or majority-owned 
subsidiaries of the issuer's parents;

    Note to paragraph (g)(1)(ii): All stock options issued under all 
of the issuer's written compensatory stock option plans on the same 
class of equity security will be considered part of the same class 
of equity security for purposes of the provisions of this section; 
and

    (iii) The stock options are held only by those persons described in 
Rule 701(c) under the Securities Act (17 CFR 230.701(c)).
    (2) If the exemption provided by paragraph (g)(1) of this section 
ceases to be available, the issuer of the compensatory stock options 
that is relying on the exemption provided by this section must file a 
registration statement to register the class of options or the class of 
equity security issuable on exercise of the options under section 12 of 
the Act within 60 calendar days after the conditions in paragraph 
(g)(1) of this section are no longer satisfied.

    Dated: July 5, 2007.

    By the Commission.
Nancy M. Morris,
Secretary.
[FR Doc. E7-13324 Filed 7-9-07; 8:45 am]
BILLING CODE 8010-01-P