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Securities Registration Issues from Retirement Plans

SEC Release 6281 - relevant quotes re retirement plan contributions:

  • In Release 6188 the staff expressed the view that the only types of employee benefit plans which are subject to the 1933 Act are those which are both voluntary and contributory on the part of participating employees. Some questions were raised in this regard about the types of plans that are considered "voluntary and contributory."
  • Many persons have asked the staff to discuss the availability of the Section 3(a)(2) exemption for interests in thrift, savings or similar plans which provide employees with several investment alternatives, one of which consists of securities of the employer. It is the staff's view that the exemption is available for such interests only if amounts invested in securities of the employer can be attributed to contributions made by the employer.

Matching Contributions invested in Employer Stock

  • SEC CD&I 139.33:  indicating -- through the converse of the analysis -- that an offer of employer securities will not occur – an no Securities Act registration will be required – if 401(k) plan does prohibits employee contributions from being invested in employer securities through the “brokerage window.”
  • SEC Release 33-4790: discussing when SEC registration of an employer’s action with respect to employee investment in its securities results in an “offer” that requires registration. Registration seems to be required only if employee contributions may be invested in employer stock.