Securities Exchange Act of 1934 - Form 18, Form 18-K
May 23, 2005
RESPONSE OF THE OFFICE OF INTERNATIONAL CORPORATE FINANCE
Based on the facts presented, this Division would raise no objection if L-Bank and Baden-Württemberg file with the Commission joint annual reports on Form 18-K under the Securities Exchange Act of 1934 and amendments to those annual reports on
Form 18-K/A, and if L-Bank and Baden-Württemberg incorporate by reference such filings into registration statements, including shelf registration statements, and related prospectuses filed with the Commission under the Securities Act of 1933, all as described in your letter.
Because this position is based on the representations made to the Division in your letter, it should be noted that different facts might require a different result. Further, this response only expresses this Division's position on enforcement action and does not express any legal conclusion on the questions presented.
April 18, 2005
Mr. Paul. M. Dudek, Chief
Landeskreditbank Baden-Württemberg - Förderbank
Dear Mr. Dudek:
We are writing on behalf of Landeskreditbank Baden-Württemberg - Förderbank ("L-Bank"), an institution organized under the public law of the State of Baden-Württemberg ("Baden-Württemberg"), a state of the Federal Republic of Germany ("Germany"), and Baden-Württemberg to request an interpretative letter that would facilitate the process by which L-Bank conducts public offerings of its debt securities in the United States.
The relief sought hereby is similar to the relief granted to: (i) Landwirtschaftliche Rentenbank and Germany in the Securities and Exchange Commission (the "Commission") Staff's letter of January 30, 20031 in response to the incoming letter dated January 29, 2003 from Landwirtschaftliche Rentenbank and Germany, (ii) Deutsche Ausgleichsbank ("DtA") and Germany in the Commission Staff's letter of June 30, 19992 in response to the incoming letter of the same date from DtA and Germany, and (iii) Kreditanstalt für Wiederaufbau ("KfW") and KfW International Finance Inc. in the Staff's letter of July 18, 19943 in response to the incoming letter of the same date from KfW and KfW International Finance Inc.
L-Bank is a "seasoned" Schedule B issuer eligible to use the procedures for delayed and continuous offering of securities set forth in Release No. 33-6424 (dated September 2, 1982) (the "Release").4
In accordance with the Release, L-Bank and Baden-Württemberg have filed a joint shelf registration statement (file no. 333-123605, the "Registration Statement") under Schedule B of the Securities Act 1933, as amended (the "Securities Act"), and a basic prospectus included in the Registration Statement dated March 28, 2005 and other information deemed material to investors. This basic prospectus will be updated at least annually and is distributed to dealers and prospective investors as required by the Release.
Specific securities are offered by a prospectus supplement containing the terms of the offering and a description of any material recent developments. The prospectus supplement, together with the basic prospectus, is delivered to purchasers, and all necessary filings are made pursuant to Rule 424 under the Securities Act.
L-Bank and Baden-Württemberg intend to file with the Securities and Exchange Commission joint Annual Reports on Form 18-K. As contemplated by this letter, the joint Annual Report on Form 18-K, together with amendments thereto on Form 18-K/A containing material developments, if any, will be incorporated by reference in prospectuses that may be used in connection with both continuous offerings, such as medium-term notes and delayed offerings such as shelf takedowns.
L-Bank and Baden-Württemberg hereby request an interpretative letter approving the implementation of the following procedures.
1. L-Bank and Baden-Württemberg will file joint Annual Reports on Form 18-K with the Commission during periods when L-Bank desires to have access to shelf registration procedures. Such Annual Reports would include, as of their dates: (i) all of the information and exhibits called for by Form 18-K, and (ii) as additional exhibits thereto, any additional information required under Schedule B to be included in a Schedule B registration statement under the Securities Act (except for certain Schedule B information, such as the description of securities and plan of distribution, which would continue to be included in the basic prospectus, prospectus supplements and, pricing supplements or "stickers", if applicable), together with additional information deemed material to investors. The resulting descriptions of L-Bank and Baden-Württemberg would be presented in substantially the same format as currently included on pages 5 to 64 and F-3 to F-83 of the current basic prospectus included in the Registration Statement, filed on March 28, 2005, and would be substantially as comprehensive as those currently included in the basic prospectus.
2. L-Bank's basic prospectus would contain a description of the securities offered thereby, a description of the explicit guaranty, the guarantee obligation (Gewährträgerhaftung), the maintenance obligation (Anstaltslast) and other aspects of L-Bank's relationship with Baden-Württemberg, the plan of distribution, the application of proceeds, L-Bank's and Baden-Württemberg's debt record, the name and address of L-Bank's and Baden-Württemberg's authorized representative in the United States and the names and addresses of counsel who will pass upon the validity of the securities. The basic prospectus, which could be used with respect to both continuous offerings such as medium-term note programs and delayed offerings such as shelf take-downs, would incorporate by reference the most recently filed joint Annual Report on Form 18-K of L-Bank and Baden Württemberg (and all exhibits thereto), and all amendments thereto filed on Form 18-K/A. In order to implement the proposal outlined in this letter, the basic prospectus would contain an undertaking to deliver upon request a copy of the joint Annual Report on Form 18-K and any other information incorporated by reference. The Registration Statement currently includes undertakings identical to the undertakings set forth in Item 512(a) (1), (2) and (3) of Regulation S-K. The undertakings currently included in the Registration Statement obligating L-Bank to file post-effective amendments (i) to include prospectuses required by Section 10(a) (3) of the Securities Act and (ii) to reflect in the basic prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereto) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement, would be modified so as not to apply if the information required is included in a report under the Securities Exchange Act of 1934 that has been incorporated by reference. As a result of the foregoing, except as required by the modified undertakings to be included in the Registration Statement, L-Bank and Baden Württemberg would not be required to file annual post-effective amendments to their Securities Act registration statements.
3. At the time when any registered securities are offered to the public, whether on a delayed offering basis or as part of a continuous offering, the basic prospectus, together with a prospectus supplement or, in the case of medium-term notes, a Pricing Supplement or "sticker", would be delivered to all purchasers. Any material recent developments subsequent to the date of the basic prospectus, or the most recent Annual Report on Form 18-K, will either be included in (A) a subsequent Annual Report on Form 18-K, or in a Form 18-K/A amendment that is incorporated by reference in the basic prospectus or (B) the prospectus supplement itself. L-Bank and Baden-Württemberg will amend their Annual Report on Form 18-K through the use of Form 18-K/A as often as is necessary to disclose material information contained in official budgetary, financial and statistical information and any other material information or developments. L-Bank and Baden-Württemberg anticipate that the time of filing of such joint Annual Report and such amendments will correspond to the periodic release of official budgetary, financial and statistical information, which will provide the basis for the joint Annual Report and amendments. At the present time, it is expected that such a filing typically would be made in June or July of each year after budgetary information in Baden-Württemberg becomes available.
The information and documents that, under current procedures, must be filed by post-effective amendment at the time of an offering (the standard underwriting terms, the terms agreement, the list of names and addresses of the underwriters, an itemized list of expenses and legal opinions with respect to the securities) would instead be filed on, and incorporated by reference by means of, Form 18-K or a Form 18-K/A amendment thereto.
4. The basic prospectus and prospectus supplement or, in the case of medium-term notes, a pricing supplement or "sticker", would be delivered to all purchasers, and L-Bank would provide to each such recipient who so requests a copy of the Form 18-K, together with all exhibits and amendments thereto. Otherwise, unless it chooses to do so, L-Bank would not make an annual public distribution of its Form 18-K, or of the exhibits or amendments thereto, or of its basic prospectus to dealers or prospective investors as contemplated by the Release.
Benefits of Proposal
This proposal will (i) enable L-Bank and Baden-Württemberg to use shelf procedures nearly identical to those available to foreign private issuers eligible to use Form F-3 and Rule 415 (the policy underlying the Release), (ii) regularly provide to the U.S. market all required Securities Act disclosure in a process that is significantly less burdensome and expensive than the current system, and (iii) result in better and more prompt disclosure of recent developments in the prospectus used for continuous and delayed offerings.
Timing and Implementation
We understand that all previous shelf registration statements that L-Bank and Baden-Württemberg filed previous to the Registration Statement have been exhausted. In connection with this year's annual update of the Registration Statement, L-Bank and Baden Württemberg desire to implement the proposal outlined in this letter by (i) filing an amendment to the Registration Statement with financial information regarding L-Bank for the fiscal year ended December 31, 2004, which would contain the additional information described above that was previously included in the basic prospectus, (ii) amending the Registration Statement to provide for the incorporation by reference of the aforesaid Annual Report on Form 18-K and any amendments thereto on Form 18-K/A, and (iii) amending the undertakings in Part II of the Registration Statement accordingly.
If you have any questions or need any further information with respect to the matters set forth in this letter, please contact me at (212) 848-5009, or Stephan Hutter at (+49-69) 9711-1230.
Very truly yours,
Antonia E. Stolper
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