|Investors Research Institute, Inc.|
P.O. 750471, Forest Hills, NY 11375-0471
Telephone 212-484-4747, Fax 718-523-2137
April 17, 1998
Via E-mail: firstname.lastname@example.org
Jonathan G. Katz,
SecretarySecurities and Exchange Commission
Mail Stop 6-9
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: File Number S7-2-98
On February 17, 1998 the Commission published certain proposed
amendments to Form S-8 and related rules and solicited public comments.
Release No. 33-7506.
The purpose of these comments is to address certain practical
aspects and applications of the S-8 Rulemaking process.
First, the non-profit Institute, whose missions advocated on behalf
of its small but diverse Membership include high standards for "disclosure"
and "accessibility" of information about public equities to public
shareholders and potential shareholders, was established during an
environment in which there has been insufficient guidelines for disclosure
of dilutive events, and far too many abuses of the S-8 rule whereby shares
appear to have been issued in many instances in amounts which far exceed the
monetary value of the services rendered to the issuer.
The Institute applauds the Commissioners for revisiting these
guidelines for the purpose of curing these inefficiencies of the present
rule. Public companies which enroll as Members of the Institute already
must agree to voluntarily adhere to such higher standards. Of course, the
Institute has no enforcement power nor staff to monitor abuses. It is
limited to the withdrawal of Membership privileges should a Member or the
public bring an abuse or instance of non-compliance with its standards to
its attention. And unfortunately, the investing public does not presently
have a commitment re: these "best practices in investor relations" standards
from the vast majority of public companies which have not to date adopted
the Institute's standards.
However, we would propose that the Commission move cautiously so as
not to "throw out the baby with the bath water."
More specifically, we are talking about the huge disparity between
the financial and resource-rich "blue chip" companies and the financial and
resource-poor "small capitalization" and "micro-cap" companies. In the
former instance, such companies often have entire departments devoted to
development and distributions of company information to investors and
potential investors. In the latter instance, some companies have no
assigned staff whatsoever for this purpose, and it remains in the best
interests of investors and potential investors for there to be a means by
which such companies and their investors to achieve a level of information
parity with their larger-capitalization peers.
It does not serve the investing public if such companies are left
without the necessary resources to pay for quality opportunities to present,
achieve professional scrutiny and distribute information in a timely and
We would argue that the rule here should be on what is reasonable
and proper in terms of compensation guidelines, what is reasonable and
proper in terms of investor relations activities, and what is reasonable and
proper in terms of disclosure as to whether products, services and resources
are paid through equity distributions where the investor's holdings are
diluted or are paid through operational expenditures where the investor's
holdings may be impacted by lesser profit margins.
It should be up to the management of the company to decide which of
these means to inform investors is in the best interests of the
shareholders, as the shareholders have remedies should management
subsequently make an inefficient choice.
Where the shareholder and investor needs protection is in the
issuance of stock for exhorbitant fees and compensation or to directly or
indirectly enrich insiders.
We would also ask the Commission to distinguish between
"promotional" activities by a Company which coincide with stock trading by
recipients of S-8 stock, perhaps putting limits on sales of stock during
periods that the recipients are in the process of aggressively distributing
information, and the strictly "informational" activities where services
designed to enhance exposure and investor scrutiny, such as conferences,
exhibitions, reviews and other means where the investor public has an
opportunity for dialogue and interaction with company executives is the
primary usage of S-8 distributions.
Also, a company may have legitimate purposes for S-8 distributions
to suppliers of non-investment related products and services, and the
Commission may wish to survey small capitalization public companies to
determine whether undue restrictions on the usage of such stock not
considering the appropriateness or comparative valuation of the products and
services received for operational purposes or for professional services,
such as legal, etc., may in some instances disserve the shareholder by
undermining the ongoing financial solvency of borderline entrepreneurial
enterprises in which members of the public have acquired an equity stake.
Thank you for your consideration, and we hope that we have given you
additional insights to assist you in your final determination on this matter.
Investors Research Institute, Inc.