- 306 -
communications and relaxed integration rules). We also believe
that our proposals balance these benefits with enhanced
protection for investors (e.g., earlier prospectus delivery,
filing of free writing prospectuses). We solicit comment on the
impact that our proposals may have on microcap companies and
microcap fraud. Should we exclude microcap companies from some
of our proposals as a precautionary measure against microcap
fraud? If so, which proposals? By excluding microcap companies
from certain proposals would we be providing a competitive
advantage to their non-microcap competitors? Rather than
excluding microcap companies, should we provide for enhanced
monitoring of microcap companies?
We encourage your comments on whether and how our proposal
would affect the secondary trading markets for securities. How
would our proposal affect public investors, broker-dealers and
the companies whose securities are traded in the secondary
markets? Our proposed changes to the Exchange Act disclosure
system would enhance and speed corporate information to the
marketplace, would add Commission resources to oversight of the
secondary markets and should provide valuable benefits to
investors. Besides the proposed Exchange Act reporting changes,
our proposal relates primarily to the securities offering
process, rather than secondary trading. Would these proposed
changes adversely affect participants in secondary trading?
Would investor protection in secondary market transactions be
affected by our proposed changes? If so, how?
Any interested person wishing to submit written comments on
any aspect of the proposals, as well as on other matters that
might have an impact on the proposals, is requested to do so. In
addition, the Commission requests comment on whether any further
changes to the Commission's rules and forms are necessary or
appropriate to implement the objectives of the proposals.
Comments should be submitted in triplicate to Jonathan G. Katz,
Secretary, U.S. Securities and Exchange Commission, 450 Fifth
Street, N.W., Washington, D.C. 20549 and should refer to file
number S7-30-98.
XVIII. STATUTORY BASES
The proposed new rules, forms and amendments to the
Commission existing rules and forms are being proposed pursuant
to Sections 2(b), 6, 7, 8, 10, 19(a) and 28 of the Securities Act
of 1933 as amended and Sections 3, 4, 10, 12, 15, 23 and 36 of
the Securities Exchange Act of 1934.
List of Subjects
17 CFR Part 200
Administrative practice and procedure, Authority delegation
(Government agencies).
17 CFR Part 202
Administrative practice and procedure, Securities.
17 CFR Part 210
Accountants, Accounting.
17 CFR Part 228
Reporting and recordkeeping requirements, Securities, Small
business.
17 CFR Parts 229, 239 and 249
Reporting and recordkeeping requirements, Securities.
17 CFR Part 230
Advertising, Investment companies, Reporting and
recordkeeping requirements, Securities.
17 CFR Part 240
Brokers, Reporting and recordkeeping requirements,
Securities.
TEXT OF PROPOSED AMENDMENTS
In accordance with the foregoing, the Securities and
Exchange Commission proposes to amend Title 17, chapter II of the
Code of Federal Regulations as follows:
PART 200 -ORGANIZATION; CONDUCT AND ETHICS; AND INFORMATION AND
REQUESTS
1. The authority citation for Part 200 continues to read
in part as follows:
Authority: 15 U.S.C. 77s, 78d-1, 78d-2, 78w, 78ll(d), 78mm,
79t, 77sss, 80a-37, 80b-11, unless otherwise noted.
* * * * *
2. By removing paragraph (a)(4) in ง 200.30-1 and by
redesignating paragraphs (a)(5), (a)(6), (a)(7) and (a)(8) as
paragraphs (a)(4), (a)(5), (a)(6) and (a)(7).
- 307 -
PART 202 - INFORMAL AND OTHER PROCEDURES
3. The authority citation for Part 202 continues to read
in part as follows:
Authority: 15 U.S.C. 77s, 77t, 78d-1, 78u, 78w, 78ll(d),
79r, 79t, 77sss, 77uuu, 80a-37, 80a-41, 80b-9, and 80b-11, unless
otherwise noted.
* * * * *
4. By revising the seventh sentence of the introductory
text of ง 202.3a to read as follows:
ง 202.3a Instructions for filing fees.
* * * Filing fees paid pursuant to Section 6(b) of the
Securities Act of 1933 ( 15 U.S.C. 77a et. seq.) or pursuant to
Section 307(b) of the Trust Indenture Act of 1939 (15 U.S.C.
77aaa et. seq.) should be designated as "restricted," except that
filing fees paid with respect to registration statements filed in
accordance with Form SB-1, SB-2 and SB-3 (งง 239.9, 239.10 and
239.11 of this chapter) or pursuant to งง 230.462(b), 230.462(e)
and 230.462(f) of this chapter should be designated as
"unrestricted." * * *
* * * * *
PART 210 - FORM AND CONTENT OF AND REQUIREMENTS FOR FINANCIAL
STATEMENTS, SECURITIES ACT OF 1933, SECURITIES
EXCHANGE ACT OF 1934, PUBLIC UTILITY HOLDING
COMPANY ACT OF 1935, INVESTMENT COMPANY ACT OF
1940, AND ENERGY POLICY AND CONSERVATION ACT OF
1975
5. The authority citation for Part 210 continues to read
as follows:
Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77z-2,
77aa(25), 77aa(26), 78j-1, 78l, 78m, 78n, 78o(d), 78u-5, 78w(a),
78ll(d), 79e(b), 79j(a), 79n, 79t(a), 80a-8, 80a-20, 80a-29, 80a-
30, 80a-37(a), unless otherwise noted.
6. By amending the Note following paragraph (a)(1) of ง
210.3-14 by removing the words "Item 15 of Form S-11" and adding,
in their place the words "Item 1107(b) of Regulation S-K (ง
229.1107(b) of this chapter)".
PART 228 -INTEGRATED DISCLOSURE SYSTEM FOR SMALL BUSINESS ISSUERS
7. The authority citation for Part 228 continues to read
as follows:
Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s,
77z-2, 77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77jjj,
77nnn, 77sss, 78l, 78m, 78n, 78o, 78u-5, 78w, 78ll, 80a-8, 80a-
29, 80a-30, 80a-37, 80b-11, unless otherwise noted.
8. By amending ง 228.10 by removing paragraph (b)(4); and
revising paragraph (a) to read as follows:
ง 228.10 (Item 10) General.
(a) Application of Regulation S-B. Regulation S-B is the
source of disclosure requirements for "small business issuer"
filings under the Securities Act of 1933 (the "Securities Act")
and the Securities Exchange Act of 1934 (the "Exchange Act").
(1) Definition of small business issuer. A small business
issuer is defined as a company that meets all of the following
criteria:
(i) Has revenues (including revenues of any consolidated
subsidiaries) of less than $50,000,000;
(ii) Is a U.S. or Canadian issuer;
(iii) Is not an investment company;
(iv) If a majority-owned subsidiary, the parent corporation
is also a small business issuer; and
(v) Each majority-owned subsidiary of the company, if any,
meets the criteria of paragraphs (a)(1)(ii) and (a)(1)(iii) of
this section.
(2) Entering and exiting the small business disclosure
system.
(i) A company that meets the definition of small business
issuer may use Form SB-1, SB-2 or SB-3 (งง 239.9, 239.10 and
239.11 of this chapter), whichever is appropriate, for
registration of its securities under the Securities Act; Form 10-
SB (ง 249.210b of this chapter) for registration of its
securities under the Exchange Act; and Forms 10-KSB and
10-QSB (งง 249.310b and 249.308b of this chapter) for its annual
and quarterly reports.
(ii) For a non-reporting company entering the disclosure
system for the first time either by filing a registration
statement under the Securities Act or a registration statement
under the Exchange Act, the determination as to whether the
company is a small business issuer is made with reference to its
revenues during its last fiscal year.
(iii) Once a small business issuer becomes a reporting
company, it will remain a small business issuer until it exceeds
the revenue limit at the end of two consecutive years (or until
it fails to meet one of the other criteria in the small business
issuer definition).
(iv) A reporting company that is not a small business issuer
must meet the definition of a small business issuer at the end of
two consecutive fiscal years before it will be considered a small
business issuer.
(v) The determination as to the reporting category (small
business issuer or other issuer) made for a non-reporting company
at the time it enters the disclosure system governs all Exchange
Act reports relating to the remainder of that fiscal year. The
determination made for a reporting company at the end of its
fiscal year governs all Exchange Act reports relating to the next
fiscal year. An issuer may not change from one category to
another with respect to reports under the Exchange Act for a
single fiscal year. A small business issuer may, however, choose
not to use Form SB-1 or SB-2 (ง 239.9 or ง 239.10 of this
chapter) for registration under the Securities Act.
(vi) Notwithstanding paragraph (a)(2)(v) of this section, a
company that is a reporting company as of _______________ [insert
date of effectiveness of this amendment] may determine at any
time between _________ [insert date of effectiveness of this
amendment] and _________ [insert date one year after
effectiveness of this amendment] to begin reporting under the
Exchange Act on the forms available only to small business
issuers if it satisfies the small business issuer definition
through having revenues of less than $50 million in each of its
last two fiscal years and satisfying the other criteria in
paragraph (a)(1) of this section.
* * * * *
9. By amending ง 228.304 by revising the introductory text
of paragraph (a)(1), paragraphs (a)(1)(i), (a)(1)(iii),
(a)(1)(iv)(A), (a)(1)(iv)(B), (a)(1)(iv)(B)(2), (a)(1)(iv)(B)(3),
(a)(1)(iv)(D) and (a)(1)(iv)(E); and by adding a sentence at the
end of paragraph (a)(3) to read as follows:
ง 228.304 (Item 304) Changes in and disagreements with
accountants on accounting and financial disclosure.
(a)(1) The disclosure described below is required if the
small business issuer, during its two most recent fiscal years or
any subsequent interim period, dismissed its principal
independent accountant or a significant subsidiary dismissed its
independent accountant on whom the small business issuer's
principal accountant expressed reliance in its report. The
disclosure also is required if, during that time, any of those
accountants: resigned; declined to stand for re-election after
the current audit; notified the registrant or a significant
subsidiary that reliance on the accountant's prior audit report
is no longer permissible; or notified the registrant or a
significant subsidiary that it will not consent to the use of the
accountant's prior audit report in a filing with the Commission.
State:
(i) Which of the actions described in paragraph (a)(1) of
this section occurred and when;
* * * * *
(iii) If a change in accountants resulted, whether the
decision to change accountants was recommended or approved by the
board of directors or a committee thereof; and
(iv)(A) Whether, during the small business issuer's two
fiscal years and any subsequent interim period immediately
preceding the date of the action described in paragraph (a)(1) of
this section, there were disagreements with the accountant,
whether or not resolved to the accountant's satisfaction, on any
matter of accounting principles or practices, financial statement
disclosure, or auditing scope or procedure;
(B) The following information, if applicable. Indicate
whether the accountant advised the small business issuer that:
* * * * *
(2) Information has come to the attention of the accountant
that made the accountant unwilling to rely on management's
representations, or unwilling to be associated with the financial
statements prepared by management; or
(3) The scope of its audit should be expanded
significantly, or that information has come to the accountant's
attention that the accountant has concluded will, or if further
investigated might, materially impact the fairness or reliability
of a previously issued audit report or the underlying financial
statements, or the financial statements issued or to be issued
covering the fiscal period(s) subsequent to the date of the most
recent audited financial statements (including information that
might preclude the issuance of an unqualified audit report); and
* * * * *
(D) Whether the board of directors or any committee thereof
discussed the subject matter of each such disagreement with the
accountant;
* * * * *
(E) If a change in accountants resulted, whether the small
business issuer has authorized the former accountant to respond
fully to the inquiries of the successor accountant concerning the
subject matter of each such disagreement. If not, describe the
nature of any limitation on responses and the reason for that
limitation.
* * * * *
(a) * * *
(3) If the former accountant declines to furnish the
registrant with a letter addressed to the Commission stating
whether the accountant agrees with the statements made by the
registrant in response to this Item 304(a), so state.
* * * * *
10. By amending ง 228.512 by removing the words "Form S-3
or S-8 (งง 239.13 or 239.16b of this chapter)" from the Note to
paragraph (a)(1) and adding in their place the words "Form B or
S-8 (งง 239.5 or 239.16b of this chapter)"; and by adding
paragraphs (g), (h) and (i) to read as follows:
ง 228.512 (Item 512) Undertakings.
* * * * *
(g) Registration on Form SB-3 of securities offered for
resale. Include the following if the securities are being
registered on Form SB-3 (ง 239.11 of this chapter) in connection
with a transaction specified in paragraph (a) of ง 230.145 of
this chapter:
(1) Before a public reoffering of securities registered on
this Form by any person who is considered an underwriter within
the meaning of ง 230.145(c) of this chapter through use of a
prospectus that is a part of this registration statement, [Name
of registrant] will ensure that the reoffering prospectus
contains all the information called for by the Form concerning
the reoffering by the underwriter(s) (in addition to the
information required by other items of the Form).
(2) [Name of registrant] will file as part of an amendment
to the registration statement any prospectus that is filed under
paragraph (g)(1) of this Item or purports to meet the
requirements of Section 10(a)(3) of the Securities Act (15 U.S.C.
77j(a)(3)) and is used in connection with an offering of
securities subject to ง 230.415 of this chapter. We will not use
such prospectus until the amendment containing the prospectus is
effective. For purposes of determining any liability under the
Securities Act of 1933 (15 U.S.C. 77a et. seq.), we acknowledge
that each amendment will be considered a new registration
statement relating to the securities being offered, and the
offering of those securities at that time will be considered the
initial bona fide offering of those securities.
(h) Delayed payment of registration fee. A small business
issuer relying on ง 230.456 of this chapter to delay paying the
registration fee, must include the following undertaking:
[Name of registrant] will pay the required registration
fee no later than the earlier of:
(1) the date on which we request that the Commission
grant effectiveness of this registration statement
under Section 8(a) of the Act (15 U.S.C. 77h(a)); or
(2) the date on which we file an amendment to the registration
statement that contains the statement set
forth in ง 230.473(b).
(i) Registration on Form SB-1, SB-2 or SB-3. If the
securities are being registered on Form SB-1 (ง 239.9 of this
chapter), Form SB-2 (ง 239.10 of this chapter) or on Form SB-3 (ง
239.11 of this chapter) include the following:
The registrant will file with the Commission, on or
before the date of first use, all free writing
materials used in connection with the securities
registered on this registration statement after
effectiveness and before the offering is completed.
11. By amending ง 228.601 by removing from paragraph (b)(1)
the words "Form S-3 (ง 239.13)" and adding, in their place, the
words "Form B (ง 239.5)"; by removing from paragraph
(b)(10)(ii)(B)(5) the words ", or registering debt or non-voting
preferred stock on Form S-2 (ง 239.12)"; by removing from Note 2
to paragraph (c)(1)(ii) the words "Form S-3 (ง 239.13 of this
chapter)" and adding, in their place, the words "Form B (ง 239.5
of this chapter)"; by removing from Note 1 to paragraph (c)(1)
the words "Form S-2 (ง 239.12 of this chapter), Form S-3 (ง
239.13 of this chapter)" and adding, in their place, the words
"Items 11 and 12 of Form SB-2 (ง 239.10 of this chapter), Form B
(ง 239.5 of this chapter)"; by removing from the introductory
text of paragraph (c)(3) the words "Form S-1 (ง 239.11 of this
chapter)" and adding, in their place, the words "Form A (ง 239.4
of this chapter)"; and by revising the exhibit table to read as
follows:
- 308 -
Securities Exchange
Act Act
forms forms
B SB-2 SB-3 S-8 10-SB 8-K 10- 10-
QSB KSB
(1) Underwriting X X X X
agreement
(2) Plan of
acquisition,
reorganization,
arrangement,
liquidation X X X X X X X
or succession
(3) (i) Articles
of X X X X X
Incorporation
(ii) By-Laws X X X X X
(4) Instruments
defining
the rights
of security
holders,
including
indentures X X X X X X X X
(5) Opinion re X X X X
legality
(6) No exhibit N/A N/A N/A N/A N/A N/A N/A N/A
required.
(7) [Removed and reserved]
(8) Opinion re X X X
tax matters
(9) Voting trust X X X X
agreement
(10) Material X X X X X
contracts
(11) Statement re
computation
of per
share X X X X X
earnings
(12) No exhibit N/A N/A N/A N/A N/A N/A N/A N/A
required
(13) Annual or
quarterly
reports, X X X
Form 10-Q[1]
(14) [Removed and reserved]
(15) Letter re
unaudited
interim
financial
information X X X X X
(16) Letter re
change in
certifying X X X X X
accountant[3]
(17) Letter re
director
resignation X
(18) Letter re
change in
accounting X X
principles
(19) Report
furnished to
security X
holders
(20) Other
documents or
statements
to security
holders X
(21) Subsidiaries
of the
registrant X X X X
(22) Published
report
regarding
matters
submitted
to vote of
security X X
holders
(23) Consents of
experts and
counsel X X X X X[2] X[2] X[2]
(24) Power of X X X X X X X X
attorney
(25) Statement of
eligibility
of trustee X X X
(26) Invitation
for competitive
bids X X X
(27) Financial Data
Schedule[4] X X X X X X X
(28) [Removed and reserved]
(29) Underwriter
Concurrence
with X
Effective Date
[Reserved (30) through (98)]
(99) Additional X X X X X X X X
Exhibits
1 Only if incorporated by reference into a prospectus and delivered to holders along
with the prospectus as permitted by the registration statement; or in the case of a
Form 10-KSB, where the annual report is incorporated by reference in to the text of
of the Form 10-KSB.
2 Where the opinion of the expert or counsel has been incorporated by reference into a
previously filed Securities Act registration statement.
3 If required under Item 304 of Regulation S-K.
4 Financial Data Schedules must be filed by electronic filers only. Such Schedule must
be filed only when a filing includes annual and/or interim financial statements that
have not been previously included in a filing with the Commission. See Item 601(c)
of Regulation S-B.
- 310 -
PART 229 - STANDARD INSTRUCTIONS FOR FILING FORMS UNDER
SECURITIES ACT OF 1933, SECURITIES EXCHANGE ACT OF 1934 AND
ENERGY POLICY AND CONSERVATION ACT OF 1975 - REGULATION S-K
12. The authority citation for Part 229 continues to read
in part as follows:
Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s,
77z-2, 77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77iii,
77jjj, 77nnn, 77sss, 78c, 78i, 78j, 78l, 78m, 78n, 78o, 78u-5,
78w, 78ll(d), 79e, 79n, 79t, 80a-8, 80a-29, 80a-30, 80a-37,
80b-11, unless otherwise noted.
* * * * *
13. By amending ง 229.10 by removing in paragraph
(c)(1)(iii) the words "Form S-3 (ง 239.13 of this chapter)" and
adding, in their place, the words "Form B (ง 239.5 of this
chapter)".
14. By amending ง 229.101 by removing in paragraph
(a)(2)(i) the words "Form S-1 (ง239.11 of this chapter)" and
adding, in their place, the words "Form A (ง239.4 of this
chapter)", and by removing in paragraph (a)(2)(iii)(B)(1) the
words "Form S-1" and adding, in their place, the words "Form A".
15. By amending ง 229.102 by removing the words "Office of
Engineering" in Instruction 4. to Instructions to Item 102 and
adding, in their place, "Office of Natural Resources".
16. By amending ง 229.201 by removing in paragraph (a)(2)
the words "Form S-1 (ง239.11 of this chapter)" and adding, in
their place, the words "Form A (ง239.4 of this chapter)".
17. By amending ง 229.304 by revising the introductory text
of paragraph (a)(1), paragraph (a)(1)(i), the introductory text
of paragraph (a)(1)(iii), paragraph (a)(1)(iv), the first
sentence of the introductory text of paragraph (a)(1)(v),
paragraph (a)(1)(v)(C)(2), paragraph (a)(1)(v)(D)(2); and by
adding a sentence at the end of paragraph (a)(3) to read as
follows:
ง 229.304 (Item 304) Changes in and disagreements with
accountants on accounting and financial disclosure.
(a)(1) The disclosure described below is required if the
registrant, during its two most recent fiscal years or any
subsequent interim period, dismissed its principal independent
accountant or a significant subsidiary dismissed its independent
accountant on whom the registrant's principal accountant
expressed reliance in its report. The disclosure also is
required if, during that time, any of those accountants:
resigned; declined to stand for re-election after the current
audit; notified the registrant or a significant subsidiary that
reliance on the accountant's prior audit report is no longer
permissible; or notified the registrant or a significant
subsidiary that it will not consent to the use of the
accountant's prior audit report in a filing with the Commission.
(i) State which of the actions described in paragraph
(a)(1) of this section occurred and when;
* * * * *
(iii) If a change in accountants resulted, state whether the
decision to change accountants was recommended or approved by:
* * * * *
(iv) State whether, during the registrant's two fiscal years
and any subsequent interim period immediately preceding the date
of the action described in paragraph (a)(1) of this section,
there were disagreements with the accountant on any matter of
accounting principles or practices, financial statement
disclosure, or auditing scope or procedure. In addition:
(A) Describe each such disagreement;
(B) State whether the board of directors or any committee
thereof discussed the subject matter of each such disagreement
with the accountant; and
(C) If a change in accountants resulted, state whether the
registrant has authorized the former accountant to respond fully
to the inquiries of the successor accountant concerning the
subject matter of each such disagreement. If not, describe the
nature of any limitation on responses and the reason for that
limitation.
Instructions to Item (a)(1)(iv).
1. The registrant need only disclose information in
response to this Item if the disagreement(s), if not
resolved to the satisfaction of the accountant, would have
caused it to make reference to the subject matter of the
disagreement(s) in connection with its report.
2. The disagreements required to be reported in
response to this Item include both those resolved to the
accountant's satisfaction and those not resolved to the
accountant's satisfaction.
3. Disagreements contemplated by this Item are those
that occur at the decision-making level, i.e., between
personnel of the registrant responsible for the presentation
of its financial statements and personnel of the accounting
firm responsible for rendering its report.
(v) If, during the registrant's two fiscal years and any
subsequent interim period immediately preceding the date of the
action described in paragraph (a)(1) of this Item, any of the
events listed in paragraphs (a)(1)(v)(A) through (a)(1)(v)(D) of
this Item occurred, provide the information required by paragraph
(a)(1)(iv) of this Item for each event (even if the registrant
and the accountant did not express a difference of opinion
regarding the event). * * *
* * * * *
(C) * * *
(2) Due to the action described in paragraph (a)(1) of this
Item, or for any other reason, the accountant did not so expand
the scope of its audit or conduct such further investigation; or
(D) * * *
(2) Due to the action described in paragraph (a)(1) of this
Item, or for any other reason, the issue has not been resolved to
the accountant's satisfaction prior to such action.
* * * * *
(3) * * * If the former accountant declines to furnish
the registrant with a letter addressed to the Commission stating
whether the accountant agrees with the statements made by the
registrant in response to this Item 304(a), so state.
* * * * *
18. By amending ง 229.305 by revising Instruction 2.D. to
General Instructions to Paragraphs 305(a), 305(b), 305(c),
305(d), and 305(e), to read as follows:
ง 229.305 Quantitative and Qualitative Disclosures About Market
Risk
* * * * *
General Instructions to Paragraphs 305(a), 305(b), 305(c),
305(d), and 305(e):
2. * * *
D. For purposes of Instruction 1. of the General
Instructions to Paragraphs 305(a), 305(b), 305(c), 305(d), and
305(e), market capitalization is the aggregate market value of
common equity. The term "common equity" is as defined in
Securities Act Rule 405 (ง230.405 of this chapter). The
aggregate market value of the registrant's outstanding voting and
non-voting common equity shall include the common equity held by
affiliates and shall be computed by use of the price at which the
common equity was last sold, or the average of the bid and asked
prices of such common equity, in the principal market for such
common equity as of January 28, 1997.
19. By amending ง 229.404 by removing in the introductory
text of paragraph (d) the words "Form S-1 under the Securities
Act (ง239.11 of this chapter)" and adding, in their place, the
words "Form A under the Securities Act (ง239.4 of this chapter)".
20. By amending ง 229.501 by revising the section heading
to read as follows:
ง 229.501 (Item 501)Front cover page of the registration
statement and outside front cover page of the
prospectus.
* * * * *
21. By amending ง 229.512 by removing in paragraph
(a)(1)(iii) the words "on Form S-3 (ง 239.13 of this chapter)"
and adding in their place the words "on Form B (ง 239.5 of this
chapter)"; in paragraph (a)(4), by removing in the third sentence
the words "on Form F-3 (ง 239.33 of this chapter)" and adding, in
their place, the words "on Form B (ง 239.5 of this chapter)", and
removing the words "in the Form F-3." and adding in their place
"in the Form B."; by revising paragraph (b) and the introductory
text of paragraph (g); and by adding paragraph (k) to read as
follows:
ง 229.512 (Item 512) Undertakings.
* * * * *
(b) Filings incorporating by reference subsequent Exchange
Act documents. Include the following if the registration
statement incorporates by reference any Exchange Act document
filed subsequent to the initial effective date of the
registration statement:
The undersigned registrant hereby undertakes that, for
determining liability under the Securities Act of 1933, each
of the registrant's reports pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
* * * * *
(g) Registration on Form C or Form SB-3 of securities
offered for resale. Include the following if the registrant is
registering an offering on Form C or Form SB-3 (งง 239.6 or
239.11 of this chapter) in connection with a transaction
specified in paragraph (a) of Rule 145 (ง 230.145 of this
chapter).
* * * * *
(k) Registration on Form A, Form B or Form C. If the
securities are being registered on Form A (ง 239.4 of this
chapter), Form B (ง 239.5 of this chapter) or on Form C (ง 239.6
of this chapter) include the following:
The registrant will file with the Commission, on or
before the date of first use, all free writing
materials used in connection with the securities
registered on this registration statement after
effectiveness and before the offering is completed.
22. By amending ง 229.601 by removing from paragraph
(b)(10)(iii)(B)(6) the words "or registering debt instruments or
preferred stock which are not voting securities on Form S-2"; and
by removing from Note 1 to Paragraph (c)(1) the words "Form S-2
(ง 239.12 of this chapter), Form S-3 (239.13 of this chapter)"
and adding, in their place, the words "Form B (239.13 of this
chapter), General Instruction VIII of Form A (ง 239.4 of this
chapter)"; by revising the Exhibit Table, paragraph (b)(4)(ii)
and paragraph (b)(8); and by adding paragraph (b)(28) to read as
follows:
ง 229.601 (Item 601)Exhibits.
* * * * *
(b) * * *
(4) Instruments defining the rights of security holders,
including indentures
(i) * * *
(ii) Except as set forth in paragraph (b)(4)(iii) of this
Item, for filings on Forms A and C under the Securities Act (งง
239.4 and 239.6 of this chapter) and Forms 10 and 10-K (งง
249.210 and 249.310 of this chapter) under the Exchange Act all
instruments defining the rights of holders of long-term debt of
the registrant and its consolidated subsidiaries and for any of
its unconsolidated subsidiaries for which financial statements
are required to be filed.
* * * * *
(8) Opinion re tax matters.
(i) Real estate entity registrants and roll-up
transactions. The registrant must file an opinion of counsel, an
opinion of an independent public or certified public accountant
or a revenue ruling from the Internal Revenue Service supporting
the tax matters and consequences to the investors it describes in
its filing in the following circumstances:
(A) The registrant is required to provide the information
required by Item 1108 of Regulation S-K (Tax treatment) in its
registration statement on Form A (ง 239.4 of this chapter);
(B) Securities Act Industry Guide 5 applies to the
offering; or
(C) The transaction being registered is a roll-up as
defined in Item 901 of Regulation S-K.
(ii) All other registrants. All other registrants must
include this exhibit only when the tax consequences are material
to an investor and the registrant includes a discussion of tax
consequences in the filing. If a tax opinion is set forth in
full in the filing, the exhibit may so state instead of repeating
the full opinion. Any conditions or qualifications on the
opinion must be adequately described in the filing.
* * * * *
(28) Underwriter concurrence with effective date.
A registrant filing a registration statement listed in ง
230.462(f)(1) of this chapter must file the written concurrence
with the effective date, signed and dated by the managing
underwriter(s), or if there are no managing underwriter(s), of
the principal underwriter(s) of its offering. If the filed
concurrence is not manually signed, a registrant must retain the
manually signed underwriters' concurrence for a period of five
years. Upon request, the registrant must provide a copy of that
concurrence to the Commission or its staff.
* * * * *
- 311 -
Securities
Act
forms
A B C[3] S-8
(1) Underwriting X X ..
agreement
(2) Plan of
acquisition,
reorganization,
arrangement,
liquidation X X ..
or succession
(3) (i) Articles of
X X ..
Incorporation
(ii) By-Laws X X ..
(4) Instruments
defining
the rights
of security
holders,
including
indentures X X X X
(5) Opinion re X X X X
legality
(6) [Removed and reserved]
(7) [Removed and reserved]
(8) Opinion re X X X ..
tax matters
(9) Voting trust X X ..
agreement
(10) Materials X X ..
contracts
(11) Statement re
computation
of per
share X X ..
earnings
(12) Statements re
computation X X ..
of ratios
(13) Annual report
to security
holders, Form
10-Q or
quarterly report
to security X X ..
holders [1]
(14) [Removed and reserved]
(15) Letter re
unaudited
interim
financial
information X X X
(16) Letter re
change in
certifying X[4] X[4] ..
accountant
(17) Letter re
director
resignation .. .. .. ..
(18) Letter re
change in
accounting .. .. .. ..
principles
(19) Report
furnished to
security .. .. .. ..
holders
(20) Other
documents or
statements
to security
holders .. .. .. ..
(21) Subsidiaries
of the
registrant X X ..
(22) Published
report
regarding
matters
submitted
to vote of
security .. ..
holders
(23) Consents of
experts and
counsel[2] X X X X
(24) Power of X X X
attorney
(25) Statement of
eligibility
of trustee X X X ..
(26) Invitation
for competitive
bids X X ..
(27) Financial
Data
Schedule[5] X X ..
(28) [Removed and reserved]
(29) Underwriter
Concurrence
with X X
Effective Date
[Reserved (30) through (98)]
(99) Additional X X
Exhibits
1 Where incorporated by reference into the text of the prospectus and delivered
to security holders along with the prospectus as permitted by the registration
statement; or, in the case of the Form 10-K, where the annual report to security
holders is incorporated by reference into the text of the Form 10-K.
2 Where the opinion of the expert or counsel has been incorporated by reference into
a previously filed Securities Act registration statement
3 An exhibit need not be provided about a company if (a) the company meets the
requirements of General Instruction I.A., I.B., I.C.1 of Form B; and (b) The
Exhibit would not have been required to be filed if the Company was registering
a primary offering on Form B.
4 If required pursuant ot Item 304 of Regulation S-K.
5 Financial Data Schedules shall be filed by electronic filers only. Such schedule
shall be filed only when a filing includes annual and/or interim financial statements
that have not been previously included in a filing with the Commission. See Item
601 of Regulation S-K.
- 313 -
23. By amending Securities Act Industry Guide 5 (referenced
in ง 229.801(e)) by removing from paragraph 16 the words "Form
S-1 or S-11" and adding, in their place, the words "Form A (ง
239.4 of this chapter)" and by revising paragraph 19.D. to read
as follows:
Note: The text of Securities Act Industry Guide 5 does
not and this amendment will not appear in the Code
of Federal Regulations.
* * * * *
Guide 5
* * * * *
19. Summary of promotional and sales material
* * * * *
D.(1) The registrant or any offering participant must,
before its use, provide the Commission staff supplementally any
written sales material that it intends to furnish investors.
This includes all materials described in paragraph B. The
registrant or the offering participant need not, however,
supplementally provide the staff with sales material if:
(i) the offering is registered on Form A and the registrant
meets the requirements of General Instruction VIII. of that Form;
(ii) the offering is registered on Form B;
(iii) the staff has notified the registrant that its
registration statement will not be reviewed; or
(iv) the sales material is used only internally.
(2) For purposes of this paragraph, sales material includes
all marketing memoranda that are sent by the General Partner or
its affiliates to broker/dealers or other sales personnel and may
include material labeled "for broker/dealers use only." Staff
comments, if any, will be promptly communicated to the
registrant. The registrant should contact the staff before using
any sales material that has been submitted to the staff.
Note to paragraph 19.D.: You should read Securities Act
Rule 425. Sales materials may be required to be filed under
that Rule.
24. By amending Part 229 to add Subpart 229.1100 to read as
follows:
Subpart 229.1100 - Real Estate Interests
229.1101 (Item 1101) Definitions.
229.1102 (Item 1102) Limitations on transfer.
229.1103 (Item 1103) Summary risk factor information.
229.1104 (Item 1104) Organization.
229.1105 (Item 1105) Operating and financing activities.
229.1106 (Item 1106) Real estate and other investment
activities.
229.1107 (Item 1107) Description of real estate and operating
data.
229.1108 (Item 1108) Tax treatment of you and your investors.
229.1109 (Item 1109) Certain relationships and related
transactions.
229.1110 (Item 1110) Selection, management and custody of
investments.
229.1111 (Item 1111) Conflict of interest policies.
229.1112 (Item 1112) Limitations of liability.
229.1113 (Item 1113) Sales to special parties.
* * * * *
Subpart 229.1100 - Real Estate Interests
ง 229.1101 (Item 1101)Definitions
For purposes of this subpart 229.1100 of Regulation S-K:
(a) You are a real estate entity if you:
(1) Are a real estate investment trust under Section 856 of
the Internal Revenue Code (26 U.S.C. 856(a)); or
(2) Invest in real estate, interests in real estate, or
securities of other real estate investors as your primary
business.
Instruction to Item 1101(a)
"Real estate entity" does not include any issuer that
is an investment company registered or required to register
under the Investment Company Act of 1940.
(b) Affiliated person means:
(1) Your directors and officers;
(2) Any person directly or indirectly controlling or under
direct or indirect common control with you;
(3) Any record owner who owns, or anyone you know who
beneficially owns, 10 percent or more of any class of your equity
securities;
(4) Any promoter directly or indirectly connected with you
in any capacity;
(5) Principal underwriters of securities being registered;
(6) People performing management or advisory services; and
(7) Any associate of any of these people.
ง 229.1102 (Item 1102) Limitations on transfer.
Disclose on the cover page of the prospectus any limitations
on the transfer of the securities you are offering. If no market
exists for the securities, so state on the cover page. If a
market does exist, disclose in the prospectus the nature of the
market and the market price as of the latest practicable date
before the filing of the registration statement or an amendment
to the registration statement.
ง 229.1103 (Item 1103) Summary risk factor information.
In a series of concise bullets or paragraphs, present a
summary of the risk factors of the offering. Address the
following, if appropriate:
(a) A comparison of the percentage of securities being
offered to the public and those issued or to be issued to
affiliated person;
(b) The extent to which security holders can be liable for
your acts or obligations;
(c) The allocation of cash distributions between investors
who are affiliated persons and those investors who are not
affiliated persons; and
(d) The compensation and benefits affiliated persons will
receive, directly or indirectly. With respect to underwriters,
include a comparison of the aggregate compensation and benefits
to be received by them with the aggregate net proceeds from the
sale of the securities being registered.
ง 229.1104 (Item 1104) Organization.
(a) Provide the following information:
(1) Your name and form of organization;
(2) The State or other jurisdiction whose laws govern your
organization;
(3) The date your governing instruments became operative;
and
(4) The date on which your governing instruments will
expire, if any and, if you may be finite life as defined in Item
901 of Regulation S-K, your planned time period for holding your
assets.
(b) Outline any provisions of your governing instruments
that provide that your duration or planned investment holding
period may be shortened or extended.
(c) Summarize the provisions of your governing instruments,
or any policy or proposed policy, relating to the holding of
annual or other meetings of investors.
(d) If you were organized within the last five years, name
all promoters. Indicate whether each promoter holds any position
or intends to hold any position with you.
ง 229.1105 (Item 1105) Operating and financing activities.
For each of the following activities, describe your and your
subsidiaries' policy or proposed policy, indicate if you may
change each policy without a vote of investors, and indicate the
extent to which you have engaged in each activity.
(a) Issue securities senior to the securities you are
offering;
(b) Borrow money;
(c) Make loans. Purchasing a portion of publicly
distributed bonds, debentures or other securities, in the
original distribution, or otherwise, is not making a loan;
(d) Invest in another issuer's securities in order to
exercise control;
(e) Underwrite other issuer's securities;
(f) Purchase, sell or trade investments;
(g) Offer securities in exchange for property;
(h) Repurchase or otherwise reacquire your securities; and
(i) Provide annual or other reports to investors. Indicate
what the reports will cover and whether they will include audited
financial statements.
Instruction to Item 1105.
Include a separate description of your policy for each
activity. If you will not engage in a particular activity,
specifically state that you will not.
ง 229.1106 (Item 1106) Real estate and other investment
activities.
(a) Describe the types of real estate investments you
intend to make and indicate whether you can change this plan
without a vote of investors.
(b) Describe the principles and procedures you and your
subsidiaries will use in investing in the assets.
(c) Disclose the percentage of your and your subsidiaries'
assets you may invest in any one type of investment.
(d) You should include the information below if you or your
subsidiaries might invest in the following types of assets:
(1) Investments in real estate or real estate interests.
(i) Identify the geographic areas where you intend to
invest;
(ii) Describe the types of real estate in which you may
invest, such as office buildings, apartment buildings, shopping
centers, industrial and commercial properties, special purpose
buildings or undeveloped land;
(iii) Describe how you intend to operate and finance your
real estate. Disclose any limit on the number or amount of
mortgages you may place on any one piece of property;
(iv) Specifically state whether your policy is to acquire
assets primarily for income or capital gain; and
(v) Disclose your policy as to the amount or percentages of
your assets you may invest in any one property;
(2) Investments in real estate mortgages and
mortgage-backed securities.
(i) Describe the types of mortgages you may invest in, such
as first or second mortgages. Disclose whether the mortgages are
guaranteed, and if so, by whom;
(ii) Describe your policy as to the amount or percentage of
assets you may invest in any single mortgage;
(iii) Describe each type of mortgage activity in which you
intend to engage, such as originating or servicing mortgages;
(iv) Describe how long you anticipate holding these
investments;
(v) Indicate the types of properties subject to mortgages
in which you intend to invest, such as, single family homes,
apartment buildings, office buildings, bowling alleys, commercial
properties or undeveloped land; and
(vi) Identify the geographic areas where the property
underlying the mortgages is located.
(3) Securities of or interests in other real estate
investors.
(i) Describe the types of securities or other interests in
persons engaged in real estate activities in which you may
invest, such as common stock, limited partnership interests,
interests in real estate investment trusts, mortgage-backed
securities and joint venture interests;
(ii) Disclose your policy as to the amount or percentage of
your assets you may invest in each type of security or interest
and the amount or percentage of your assets you may invest in any
one issuer;
(iii) Describe the investment policies and primary
activities of persons in which you will invest, such as mortgage
sales, investment in office buildings or investment in
undeveloped land; and
(iv) State your criteria for the purchase of these
securities or interests, such as securities listed on a national
securities exchange, minimum net income requirements, period of
operation of issuer or rating of security.
(e) Indicate the type of other securities (e.g., bonds,
preferred stocks, common stocks) and the industry groups in which
you may invest and the percentage of your assets which you may
invest in each type or industry group. Describe how you will
acquire these assets.
ง 229.1107 (Item 1107) Description of real estate and operating
data.
Provide the following information separately for each
material real estate interest. For all other real estate
interests, provide the following information by classes or groups
of properties that reasonably convey the required disclosure:
(a) For real estate interests in which you or your
subsidiaries now invest or intend to invest:
(1) State the location and describe the general character;
(2) Identify the present and proposed use and discuss
whether the real estate interests are suitable and adequate for
the present or proposed use;
(3) Describe your title to or interest in the real estate;
(4) For each material mortgage, lien or other encumbrance:
(i) Disclose the principal amount;
(ii) Describe the interest and amortization provisions;
(iii) Describe the prepayment provisions;
(iv) Discuss any cross collateralization or cross default
provisions;
(v) Identify the maturity date; and
(vi) Quantify the balance due at maturity assuming no
prepayment of principal;
(5) Disclose principal lease terms;
(6) Outline the terms of any option or contract to purchase
or sell the real estate interests;
(7) Briefly discuss proposed renovation, development or
improvement programs. Quantify the cost of these programs. If
you do not have any plans, state that you have no plan and
indicate why you are investing or will invest in the real estate;
(8) Describe the general competitive conditions in the
markets in which the real estate interests or the underlying
properties are operated; and
(9) State whether management believes that the real estate
interest or the underlying properties are adequately covered by
insurance.
(b) For each improved material real estate interest in
which you or your subsidiaries now invest or intend to invest:
(1) Occupancy rate, as a percentage of rentable square
footage or units, for each of the past five years;
(2) Average annual effective rent paid per square foot or
per unit for each of the past five years;
- 314 -
(3) The following schedule of lease expirations in each of
the next ten years:
(A) (B) (C) (D)
Total Area Annual Percentage
Number of Covered Rental of gross
Tenants By of annual
Year with Expiring Expiring rental
Leases Leases Leases for
expiring
Expiring (sq. feet) ($) leases
_________ ________ __________ ________ ___________
Year in
which filing
is made
Second Year
*
*
*
Tenth Year
(4) The number of tenants that occupy ten percent or more
of the rentable square footage, the main business of those
tenants and the principal provisions of their lease including,
but not limited to, annual rent, the expiration date and any
renewal option;
(5) The principal businesses, occupations or professions
conducted at the property underlying the real estate interest;
(6) The Federal tax basis, rate, depreciation method and
life claimed for each real estate interest or component for which
you charge depreciation; and
(7) The realty tax rate, annual realty taxes and estimated
taxes on any proposed improvement.
Instructions to Item 1107.
1. You need not provide detailed legal and physical
descriptions of your real estate interest. Rather, you
should disclose all information necessary for an investor to
evaluate and understand your real estate interests. We
encourage tabular presentation.
2. A material real estate interest is one that:
(a) Has a book value representing ten percent or
more of your total assets, including assets of your
consolidated subsidiaries; or
(b) Produced gross revenue in the last fiscal year
that was ten percent or more of your total revenues for the
last fiscal year, including revenues of your consolidated
subsidiaries.
ง 229.1108 (Item 1108) Tax treatment of you and your investors.
Describe material Federal income tax consequences for you,
your subsidiaries and your investors including a discussion of:
(a) Your and your subsidiaries' treatment under Federal
income tax laws;
(b) The treatment of distributions to investors under
Federal income tax laws, including gains from the sale of
securities or real estate interests in excess of annual net
income; and
(c) The tax treatment of any exchange of securities for
real estate interests or other securities.
ง 229.1109 (Item 1109) Certain relationships and related
transactions.
Disclose the aggregate depreciation claimed by the seller
for Federal income tax purposes if:
(a) You provide any information required by Instruction 5
to Item 404(a) of Regulation S-K; and
(b) The assets had been acquired by the seller within five
years prior to the Item 404 of Regulation S-K transaction.
ง 229.1110 (Item 1110) Selection, management and custody of
investments.
(a) Describe any arrangements you or your subsidiaries have
made or propose to make with respect to the following. If any of
the persons performing these services is a corporation or other
organization, include the name and principal occupations during
the last five years of each principal executive officer of such
corporation or other organization:
(1) Management of your real estate interests, including
arranging for purchases, sales, leases, maintenance and
insurance;
(2) The purchase, sale and servicing of your mortgages; and
(3) Investment advisory services.
(b) If any of these services in paragraph (a) of this Item
will be performed by any affiliated person, other than an officer
or director performing the services in that capacity with no
additional compensation, furnish the following information about
each person:
(1) Name and address;
(2) Nature of principal business;
(3) Principal occupations during the last five years;
(4) Nature of all existing direct or indirect material
interests in or business connections with you or any of your
affiliated person;
(5) Nature of all services rendered to you; and
(6) Compensation received from you and your subsidiaries,
directly or indirectly, during your last fiscal year and the
capacities in which this remuneration was received.
ง 229.1111 (Item 1111) Conflict of interest policies.
Outline your policies and provisions of your governing
instruments which limit any person from any of the following:
(a) Having any financial interest in any investment you or
any of your subsidiaries will acquire or dispose of or in any
transaction to which you or any of your subsidiaries are a party
or have an interest; and
(b) Engaging for their own account in business activities
of the types you and your subsidiaries conduct or will conduct.
ง 229.1112 (Item 1112) Limitations of liability.
Outline the principal provisions of your governing
instruments or of any contract or arrangement to which you or a
subsidiary are a party that limit the liability of affiliated
person or any of their directors, officers or employees.
Indicate the effect of Section 14 of the Act (15 U.S.C. 77n) upon
any provision broad enough to cover liability arising under the
Act.
ง 229.1113 (Item 1113) Sales to special parties.
Name each person or specify each class of persons (other
than underwriters or dealers, acting in that capacity) to whom
you or your subsidiaries have sold securities within the past six
months or are going to sell securities at a different price than
you are offering the same class of securities pursuant to this
registration statement. Also provide this information with
respect to any selling security holder registering securities
pursuant to this registration statement. State the consideration
given or to be given by each of these persons or class.
PART 230 - GENERAL RULES AND REGULATIONS, SECURITIES ACT OF
1933
25. By revising the general authority citation for Part 230
to read in part as follows:
AUTHORITY: 15 U.S.C. 77b, 77c, 77d, 77f, 77g, 77h, 77j,,
77r, 77s, 77sss, 77z-3, 78c, 78d, 78l, 78m, 78n, 78o, 78t, 78w,
78ll(d), 78mm, 79t, 80a-8, 80a-24, 80a-28, 80a-29, 80a-30, and
80a-37, unless otherwise noted.
* * * * *
26. By revising paragraph (d) of ง 230.110 to read as
follows:
ง 230.110 Business hours of the Commission.
* * * * *
(d) Filings by facsimile. Registration statements, post-
effective amendments and prospectuses, filed pursuant to งง
230.425(c), 230.462(a), (b), (e) or (f) may be filed by facsimile
transmission with the Commission any day (except Saturdays,
Sundays and federal holidays) from 5:30 p.m. to 10 p.m. Eastern
Standard Time or Eastern Daylight Savings Time, whichever is
currently in effect.
27. By revising the introductory text of paragraph (b) of ง
230.111 to read as follows:
ง 230.111 Payment of fees.
* * * * *
(b) Notwithstanding paragraph (a) of this section, payment
of filing fees for registration statements filed pursuant to งง
230.462(b), (e), or (f) between the hours of 5:30 p.m. and 10
p.m. Eastern Standard Time or Eastern Daylight Savings Time,
whichever is currently in effect may be made by:
* * * * *
28. By amending ง 230.134 by revising the section heading
and the introductory text, the introductory text of paragraph (a)
and paragraphs (a)(3), (a)(13), (a)(14)(i), (b)(1), and (e) to
read as follows:
ง 230.134 Registered investment company communications not deemed
a prospectus.
The term prospectus as defined in Section 2(10) of the Act
(15 U.S.C. 77b(10)) does not include a notice, circular,
advertisement, letter, or other communication published or
transmitted to any person after a registration statement has been
filed by an investment company registered under the Investment
Company Act of 1940 (15 U.S.C. 80a-1 - 80(a)-64) ("fund") if the
communication contains only the statements required or permitted
by this section.
(a) The communication may include any one or more of the
following items of information, in any order:
* * * * *
(3)(i) The fund's classification and subclassification
under the Investment Company Act of 1940, the type or category of
fund and whether in the selection of investments emphasis is
placed upon income or growth characteristics, and a general
description of an investment company including its general
attributes, methods of operation and services offered provided
that such description is not inconsistent with the operation of
the particular fund for which more specific information is being
given, identification of the fund's investment adviser, any logo,
corporate symbol or trademark of the fund or its investment
adviser and any graphic design or device or an attention-getting
headline, not involving performance figures, designed to direct
the reader's attention to textual material included in the
communication pursuant to other provisions of this section; and,
with respect to a fund issuing redeemable securities:
(A) A description of the fund's investment objectives and
policies, services, and method of operation;
(B) Identification of the fund's principal officers;
(C) The year of incorporation or organization or period of
existence of the fund, its investment adviser, or both;
(D) The fund's aggregate net asset value as of the most
recent practicable date; (E) The aggregate net asset value as of
the most recent practicable date of all funds under the
management of the fund's investment adviser;
(F) Any pictorial illustration that is appropriate for
inclusion in the fund's prospectus and not involving performance
figures;
(G) Descriptive material relating to economic conditions,
or to retirement plans or other goals to which an investment in
the fund could be directed, but not directly or indirectly
relating to past performance or implying achievement of
investment objectives; and
(H) Written notice of the terms of an offer made solely to
all registered holders of the securities, or of a particular
class or series of securities, issued by the fund proportionate
to their holdings, offering to sell additional shares to such
holders of securities at prices reflecting a reduction in, or
elimination of, the regular sales load charged: Provided that,
if any printed material permitted by paragraphs (a)(3)(i)(A)
through (H) of this section is included, or if any material
permitted by paragraphs (a)(3)(i)(A) through (G) of this section
is used in a radio or television advertisement, the communication
shall also contain the following legend given emphasis no less
than that used in the major portion of the advertisement:
For more complete information about [Name of Fund] including
charges and expenses [get] [obtain] [send for] a prospectus
[from (Name and Address)] [by sending this coupon]. Read it
carefully before you invest or [pay] [forward funds] [send
money].
(ii) For purposes of paragraph (a)(3)(i)(B) of this section,
principal officers means the president, secretary, treasurer, any
vice-president in charge of a principal business function and any
other person who performs similar policy making functions for the
fund on a regular basis.
(iii) In the case of two or more funds having the same
investment adviser or principal underwriter, the same information
described in paragraph (a)(3)(i) may be included as to each such
fund in a joint communication on the same basis as it is
permitted in communications dealing with individual funds under
paragraph (a)(3)(i).
* * * * *
(13) Offers, descriptions and explanations of any products
and services not constituting securities subject to registration
under the Act, and descriptions of corporations. The offers,
descriptions and explanations may not relate directly to the
desirability of owning or purchasing a security issued by a fund
and all direct references to a security issued by a fund may
contain only the statements required or permitted to be included
by the other provisions of this section and must be placed in a
separate and enclosed area in the communication.
(14)(i) With respect to any class of debt securities,
any class of convertible debt securities or any class of
preferred stock, the security rating or ratings assigned to the
class of securities by any nationally recognized statistical
rating organization and the name or names of the nationally
recognized statistical rating organization(s) that assigned such
rating(s).
* * * * *
(b) * * *
(1) If the registration statement has not yet become
effective, the following statement:
A registration statement relating to these securities has
been filed with the Securities and Exchange Commission but has
not yet become effective. These securities may not be sold
nor may offers to buy be accepted prior to the time the
registration statement becomes effective. This [communication]
shall not constitute an offer to sell or the
solicitation of an offer to buy.
* * * * *
(e) In the case of a fund that holds itself out as a “money
market fund, a communication used under this section shall
contain the disclosure required by
ง 230.482(a)(7).
29. By revising ง 230.135 to read as follows:
ง 230.135 Notice of proposed offerings.
(a) All Offerings. For purposes of Section 5 of the Act
(15 U.S.C. 77e) only, an issuer or a selling security holder (and
any person acting on behalf of either of them) that publishes
through any medium a notice of a proposed offering will not be
deemed to offer its securities for sale through that notice if:
(1) Legend. The notice includes a statement to the effect
that it does not constitute an offer of any securities for sale;
and
(2) Limited notice content. The notice otherwise includes
no more than the following information:
(i) The name of the issuer;
(ii) The title, amount and basic terms of the securities
offered;
(iii) The amount of the offering, if any, to be made by
selling security holders;
(iv) The anticipated timing of the offering;
(v) A brief statement of the manner and the purpose of the
offering;
(vi) Whether the issuer is directing its offering to only a
particular class of purchasers;
(vii) Any statements or legends required by the laws of any
state or foreign country or administrative authority; and
(viii) In the following offerings, the notice may contain
additional information, as follows:
(A) In a rights offering to existing security holders:
(1) The class of security holders eligible to subscribe;
(2) The subscription ratio and expected subscription price;
(3) The proposed record date;
(4) The anticipated issuance date of the rights; and
(5) The subscription period or expiration date of the
rights offering.
(B) In an offering to employees of the issuer or an
affiliated company:
(1) The name of the employer;
(2) The class of employees being offered the securities;
(3) The offering price; and
(4) The duration of the offering period.
(C) In an exchange offer:
(1) The basic terms of the exchange offer;
(2) The name of the subject company; and
(3) The subject class of securities.
(b) Corrections of misstatements about the offering. A
person that publishes a notice in reliance on this section may
issue a notice that contains no more information than is
necessary to correct inaccuracies published about the proposed
offering.
(c) Rule 145(a) offerings. For purposes of Section 5 of
the Act (15 U.S.C. 77e) only, an issuer or a selling security
holder (and any person acting on behalf of either of them) that
publishes through any medium a notice of a transaction described
in paragraph (a) of ง 230.145 will not be deemed to offer its
securities for sale through that notice if:
(1) Legend. The notice includes a statement to the effect
that it does not constitute an offer of any securities for sale;
(2) Limited notice content. The notice otherwise includes
no more than the following information:
(i) The name of the issuer;
(ii) The name of the person whose assets are to be sold in
exchange for the securities to be offered;
(iii) The names of any other parties to the transaction;
(iv) A brief description of the business of the parties to
the transaction;
(v) The date, time and place of the meeting of security
holders to vote on or consent to the transaction;
(vi) A brief description of the transaction and the basis
upon which the transaction will be made; and
(vii) Any statements or legends required by the laws of any
state or foreign country or administrative authority.
30. By removing and reserving ง 230.135c.
31. By amending ง 230.135e by revising paragraph (b)(1) to
read as follows:
(b) * * *
(1) State that:
(i) The written press-related materials are not an offer of
securities for sale in the United States;
(ii) The securities may not be offered or sold in the United
States absent registration or an exemption from registration; and
(iii) Any registered public offering to be made in the
United States will involve a registration statement that will
contain information about the company and management, as well as
financial statements.
* * * * *
32. By revising ง 230.137 to read as follows:
ง 230.137 Publications by brokers or dealers that are not
participating in a registrant's distribution of
securities.
Under the following conditions, a broker or dealer shall not
be considered an underwriter as defined in Section 2(a)(11) of
the Act (15 U.S.C. 77b(a)(11)) solely because it publishes or
distributes information, an opinion or a recommendation with
respect to the securities of a registrant that proposes to file,
has filed, or has an effective registration statement under the
Act:
(a) The broker or dealer is not participating, and does not
propose to participate, in the distribution of the registered
securities;
(b) The issuer is not:
(1) A development stage company that either has no specific
business plan or purpose or has indicated that its business plan
is to engage in a merger or acquisition with an unidentified
entity or entities;
(2) A shell entity having few or no assets, earnings or
operations; or
(3) Registering an offering of penny stock as defined in ง
240.3a51-1 of this chapter; and
(c) In connection with its publication or distribution, the
broker or dealer is not receiving consideration directly or
indirectly from, or acting under any direct or indirect
arrangement or understanding with:
(1) The registrant;
(2) A selling security holder;
(3) Any participant in the distribution; or
(4) Any other person with an interest in the securities
that are the subject of the registration statement.
Instruction to paragraph (c):
This provision does not preclude payment of the regular
subscription or purchase price of the document or other
communication in which the broker or dealer's information,
opinion or recommendation appears.
33. By revising ง 230.138 to read as follows:
ง 230.138 Publications by a broker or dealer about securities
other than those it is distributing or selling.
(a) Registered offerings. Under the following conditions,
a broker's or dealer's publication or distribution of
information, an opinion or a recommendation shall be exempt from
Section 5(b)(1) and Section 5(c) of the Act (15 U.S.C. 77e(b)(1)
and (c)) even if the broker or dealer is participating or will
participate in the distribution of the issuer's securities to
which the registration statement relates:
(1) The issuer is:
(i) Subject to the requirements of Section 12 or 15(d) of
the Securities Exchange Act of 1934 (15 U.S.C. 78l or 78o(d)); or
(ii) A foreign private issuer that satisfies the public
float threshold in General Instruction I.C.1. of Form B (ง 239.5
of this chapter) or the public float/average daily trading volume
threshold in General Instruction I.C.1. of Form B (except
measured on world-wide markets rather than only U.S. markets),
and has equity securities trading on a designated offshore
securities market as defined in ง 230.902(b);
(2) The issuer is not:
(i) A development stage company that either has no specific
business plan or purpose or has indicated that its business plan
is to engage in a merger or acquisition with an unidentified
entity or entities;
(ii) A shell entity having few or no assets, earnings or
operations; or
(iii) Registering an offering of penny stock as defined in ง
240.3a51-1 of this chapter;
(3) The broker or dealer publishes or distributes the
information, opinion or recommendation in the ordinary course of
its business;
(4) The publication prominently describes the capacity in
which the broker or dealer is participating in the distribution;
and
(5) The information, opinion or recommendation relates to:
(i)(A) An issuer's common stock, or debt or preferred
stock convertible into common stock; and
(B) The issuer proposes to file a registration statement,
has filed a registration statement, or has an effective
registration statement relating to non-convertible debt
securities or non-convertible, nonparticipating preferred stock;
or
(ii)(A) An issuer's non-convertible debt securities or
non-convertible, nonparticipating preferred stock; and
(B) The issuer proposes to file a registration statement,
has filed a registration statement, or has an effective
registration statement relating solely to common stock or debt or
preferred stock convertible into common stock.
(b) Certain unregistered offerings.
(1) If the conditions set forth in paragraph (a)(1),
(a)(2), (a)(3), (a)(4), (b)(2) and (b)(3) of this section are
satisfied, a broker's or dealer's publication or distribution of
information, an opinion or a recommendation:
(i) Shall not constitute directed selling efforts as
defined in ง 230.902(c);
(ii) Shall not be inconsistent with an offshore transaction
as defined in ง 230.902(h); and
(iii) Shall be an exception to the prohibition against
offers to persons other than qualified institutional buyers in
ง 230.144A(d)(1)(i).
(2) The broker or dealer publishes or distributes the
information, opinion or recommendation in a publication that is
distributed with reasonable regularity in the ordinary course of
business.
(3) The information, opinion or recommendation relates to:
(i)(A) An issuer's common stock, or debt or preferred
stock convertible into common stock; and
(B) The issuer proposes to offer or is offering solely
non-convertible debt securities or non-convertible,
nonparticipating preferred stock; or
(ii)(A) An issuer's non-convertible debt securities or
non-convertible, nonparticipating preferred stock; and
(B) The issuer proposes to offer or is offering solely
common stock or debt or preferred stock convertible into common
stock.
34. By revising ง 230.139 to read as follows:
ง 230.139 Publications by brokers or dealers distributing
securities.
(a) Registered offerings. Under the following conditions,
a broker's or dealer's publication or distribution of
information, an opinion or a recommendation shall be exempt from
Section 5(b)(1) and Section 5(c) of the Act (15 U.S.C. 77e(b)(1)
and (c)) even if the broker or dealer is participating or will
participate in the distribution of the issuer's securities to
which a registration statement relates:
(1) Seasoned issuers; larger foreign issuers; foreign
government issuers.
(i) The issuer:
(A) Has been subject to the requirements of Section 13 or
15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 781 or
78o(d)) for at least one year and has filed all reports it was
required to file pursuant to Section 13, 14 or 15(d) of such Act
(15 U.S.C. 78m, 78n or 78o(d)) during the last year;
(B) Is a foreign private issuer that:
(1) Is not subject to the requirements of Section 13 or
15(d) of the Exchange Act;
(2) Satisfies the public float threshold in General
Instruction I.C.1. of Form B
(ง 239.5 of this chapter) or the public float/average daily
trading volume threshold in General Instruction I.C.1. of Form B
(except measured on markets worldwide rather than only U.S.
markets); and
(3) Has had equity securities trading on a designated
offshore securities market (as defined in ง 230.902(b)) for at
least one year;
(C) Is a foreign government issuer eligible to register on
Schedule B (15 U.S.C. 77aa), if the offering is a firm commitment
underwritten offering in excess of $250 million in securities;
(ii) The issuer is not:
(A) A development stage company that either has no specific
business plan or purpose or has indicated that its business plan
is to engage in a merger or acquisition with an unidentified
entity or entities;
(B) A shell entity having few or no assets, earnings or
operations; or
(C) Registering an offering of "penny stock" as defined in
ง 240.3a51-1;
(iii) The publication prominently describes the capacity in
which the broker or dealer is participating in the distribution;
and
(iv) The information, opinion or recommendation is contained
in a publication that is distributed in the ordinary course of
business.
(2) All other reporting and non-reporting issuers.
(i) The conditions set forth in paragraphs (a)(1)(ii),
(a)(1)(iii) and (a)(1)(iv) of this section are satisfied;
(ii) The information, opinion or recommendation is contained
in a publication that is distributed with reasonable regularity
in the ordinary course of business;
(iii) The information, opinion or recommendation is
contained in a publication that includes similar information,
opinions or recommendations with respect to a substantial number
of issuers in the issuer's industry or sub-industry, or contains
a comprehensive list of securities currently recommended by such
broker or dealer;
(iv) The information, opinion or recommendation is given no
materially greater space or prominence in the publication than
that given to other securities or registrants; and
(v) If the publication contains an opinion or
recommendation more favorable as to the issuer or any class of
its securities than that last published by the broker or dealer
prior to the commencement of participation in the distribution,
the publication sets forth the last two opinions or
recommendations published by the broker or dealer with respect to
the issuer or its securities while not participating in a
distribution by the issuer.
(b) Certain unregistered offerings. If the conditions set
forth in paragraph (a)(1) of this section are satisfied, a
broker's or dealer's publication or distribution of information,
an opinion or a recommendation, if contained in a publication
that is distributed with reasonable regularity in the ordinary
course of business:
(1) Shall not constitute directed selling efforts as
defined in ง 230.902(c);
(2) Shall not be inconsistent with an offshore transaction
as defined in ง 230.902(h); and
(3) Shall be an exception to the prohibition against offers
to persons other than qualified institutional buyers in
ง 230.144A(d)(1)(i).
Instructions to ง 230.139.
1. For purposes of paragraph (a)(2) of this section, a
research report has not been distributed with "reasonable
regularity" if it contains information, an opinion or a
recommendation concerning a company with respect to which a
broker or dealer currently is not publishing research.
2. Projections constitute opinions within the meaning
of this section.
3. For purposes of paragraph (a)(2)(ii) of this
section, where projections of an issuer's sales or earnings
are included in a publication, the broker or dealer must
have published the projections previously on a regular basis
in order for the publication to have been distributed with
reasonable regularity in the ordinary course of business.
4. For purposes of paragraph (a)(2)(iii), the broker or
dealer must have included projections with respect to either
a substantial number of companies in the issuer's industry
or sub-industry, or all companies represented in the
comprehensive list of securities contained in the
publication. Also, those projections may not cover
significantly different periods with respect to the issuer
as compared to the other companies.
35. By amending ง 230.144A by redesignating paragraphs
(d)(1)(i), (d)(1)(ii), (d)(1)(iii) and (d)(1)(iv) as paragraphs
(d)(1)(ii)(A), (d)(1)(ii)(B), (d)(1)(ii)(C) and (d)(1)(ii)(D);
and by adding new paragraphs (d)(1)(i) and (d)(1)(ii) to read as
follows:
ง 230.144APrivate resales of securities to institutions.
* * * * *
(d) * * *
(1)(i) The securities are offered or sold only to a
qualified institutional buyer or to an offeree or purchaser that
the seller and any person acting on behalf of the seller
reasonably believe is a qualified institutional buyer, except
that if the seller is a broker or dealer, it may distribute
information, an opinion or a recommendation in accordance with
ง 230.138(b) or ง 230.139(b) while relying on this section.
(ii) In determining whether a prospective purchaser is a
qualified institutional buyer, the seller and any person acting
on its behalf shall be entitled to rely upon the following non-
exclusive methods of establishing the prospective purchaser's
ownership and discretionary investments of securities:
* * * * *
36. By amending ง 230.145 by revising the last sentence of
the first paragraph of the Preliminary Note and paragraph (b) to
read as follows:
ง 230.145 Reclassification of securities, mergers, consolidations
and acquisitions of assets.
Preliminary Note: * * * Issuers must register
transactions described in paragraph (a) of Rule 145 on Form
C (ง 239.6 of this chapter), Form SB-3 (ง 239.11 of this
chapter) or Form N-14 (ง 239.23 of this chapter).
* * * * *
(b) Communications. Communications in connection with a
registered transaction described in paragraph (a) of this section
may be made in accordance with งง 230.135, 230.165, 230.166,
230.167, 230.168 or 230.169.
37. By revising ง 230.152 to read as follows:
ง 230.152 Integration of private and public offerings.
(a) Completed private offerings; resales.
(1) A completed bona fide private offering will not be
considered part of an offering registered under the Act as long
as the registration statement is filed after the completion of
the private offering. At any time following the completion of a
bona fide private offering, a registrant may register the
securities sold in the private offering for purpose of resale by
persons other than an affiliate or a dealer who has purchased
directly from the issuer or an affiliate of the issuer.
(2) For purposes of paragraph (a)(1) of this section, a
private offering will be considered completed:
(i) As of the date all purchasers in the private offering
have paid the purchase price; or
(ii) As of the date the following are true, provided that
the transaction is not subsequently renegotiated:
(A) All purchasers are unconditionally obligated to pay the
purchase price, except that the purchase obligation may be
contingent on a condition that is not within the direct or
indirect control of any purchaser; and
(B) The purchase price is fixed and is not contingent on
the market price of the securities at or around the time of the
registered offering.
(3) For purposes of paragraph (a)(1) of this section, an
offering of securities underlying convertible securities or
warrants will be considered completed if the offering of the
convertible securities or warrants to which it relates is
completed. This is true regardless of when the convertible
securities or warrants become convertible or exercisable.
(4) For purposes of paragraph (a)(1) of this section, an
offering of securities prior to the issuer's initial offering
registered under Section 5 of the Act (15 U.S.C. 77e) will be
considered completed if:
(i) It does not raise capital for the issuer;
(ii) It is undertaken for the sole purpose of modifying the
capital structure of the issuer; and
(iii) It does not involve a roll-up transaction as defined
in ง 228.901(c) of this chapter.
(b) Abandoned private offerings followed by offerings
registered other than on Form B. A bona fide private offering of
securities will not be considered part of an offering
subsequently registered under Section 5 of the Act on a form
other than Form B (ง 239.5 of this chapter) if:
(1) The registrant notifies all offerees in the private
offering of its abandonment of that offering;
(2) The registrant does not file the registration statement
for the registered offering until at least 30 days after it
notified the offerees of abandonment, where the registrant (or
any person acting on its behalf) offered securities in the
private offering to any person ineligible to purchase in an
offering in accordance with Section 4(2) or 4(6) of the Act (15
U.S.C. 77d(2) or 77d(6)) or ง 230.506;
(3) Neither the issuer nor any person acting on its behalf
offered the securities in the private offering by any form of
general solicitation or general advertising (as those terms are
used in ง 230.502(c));
(4) No securities were sold in the private offering; and
(5) One of the following conditions is met:
(i) The registrant files any selling materials used in the
private offering as part of the effective registration statement;
or
(ii) The registrant informs offerees in the private offering
that:
(A) The prospectus delivered in the registered offering
supersedes any selling materials used in the private offering;
and
(B) Any indications of willingness to purchase offerees
gave during the private offering are considered rescinded.
(c) Abandoned public offerings followed by private
offerings. An offering of securities for which a registration
statement under the Act was filed or that would have been
eligible to be registered on Form B (collectively, a "public
offering") will not be considered part of a subsequent bona fide
private offering if:
(1) The issuer notifies all offerees in the public offering
of its abandonment of that offering or, if the issuer filed a
registration statement for that offering, the issuer withdraws it
under ง 230.477;
(2) No securities were sold in the public offering; and
(3) One of the following conditions is satisfied:
(i) If the issuer (or any person acting on its behalf)
first offers the securities in the private offering more than 30
days after notification of abandonment or withdrawal of the
public offering, it notifies each purchaser in the private
offering that:
(A) The offering is not registered under the Act;
(B) The securities are restricted and cannot be resold
unless they are registered under the Securities Act or unless an
exemption from registration is available; and
(C) Investors do not have the protection of Section 11 of
the Act (15 U.S.C. 77k).
(ii) If the issuer (or any person acting on its behalf)
first offers the securities in the private offering 30 or fewer
days after notification of abandonment or withdrawal of the
public offering, the issuer and any underwriter:
(A) Agree in writing, in a manner enforceable by each
investor committing to purchase in the 30-day period following
abandonment or withdrawal of the public offering, that they will
be liable for any material misstatements or omissions in the
offering documents used in the private offering under the
standards set by Section 11 of the Act; and
(B) Agree in writing, in a manner enforceable by each
investor committing to purchase after the 30-day period following
abandonment or withdrawal of the public offering, that they will
be liable for any material misstatements or omissions in the
offering documents used in the private offering under the
standards set by Section 12(a)(2) of the Act (15 U.S.C.
77l(a)(2)).
(d) Definition of terms. For the purposes of this section
only, a private offering means an unregistered offering of
securities that is exempt from registration pursuant to Section
4(2) or 4(6) of the Act or ง 230.506 of Regulation D.
38. By removing and reserving ง 230.153.
- 315 -
39. By adding ง 230.159 to read as follows:
ง 230.159 Lock-up agreements.
All offers and sales in a negotiated transaction described
in ง 230.145(a) may be registered under Section 5 of the Act (15
U.S.C. 77e) notwithstanding the fact that certain shareholders of
the company to be acquired sign agreements with the acquiror to
vote in favor of the transaction prior to the filing or the
effective date of the registration statement, if:
(a) The agreements are limited to executive officers,
affiliates and directors of the company to be acquired, the
founder(s) of that company and their family members, and holders
of 5% or more of the voting equity securities of that company;
(b) The persons signing the agreements own less than 100%
of the voting equity securities of the company being acquired;
and
(c) Votes will be solicited from shareholders of the
company to be acquired who:
(1) Have not signed the agreements; and
(2) Would be ineligible to purchase under an exemption from
registration pursuant to Section 4(2) or 4(6) of the Act (15
U.S.C. 77d(2) or 77d(6)) or ง230.506 of
Regulation D.
40. By adding ง 230.165 to read as follows:
ง 230.165 Post-filing free writing.
Notwithstanding Section 5(b)(1) of the Act (15 U.S.C.
77e(b)(1)), any prospectus used in connection with an offering
after the filing of a registration statement need not satisfy the
requirements of Section 10 (15 U.S.C. 77j) of the Act if:
(a) Prospectus information is delivered in accordance with
ง 230.172, as applicable;
(b) The registrant files with the Commission any prospectus
used in reliance on this section when so required by ง 230.425;
and
(c) The registrant files with the Commission the
information necessary to satisfy the requirements of Section
10(a) of the Act prior to the first sale in the offering.
41. By adding ง 230.166 to read as follows:
ง 230.166 Offers made before filing a registration statement.
(a) Form B and seasoned Schedule B offerings.
Notwithstanding Section 5(c) of the Act (15 U.S.C. 77e(c)), an
issuer, underwriter or participating dealer may make an offer to
sell or solicit an offer to buy securities prior to the filing of
a registration statement with respect to those securities if:
(1) At the time of the offer, the registrant and the
offering satisfy the Eligibility Requirements of Schedule B or
General Instruction I. of Form B (ง 239.5 of this chapter);
(2) Either:
(i) The offering is later registered on Form B; or
(ii) The offering:
(A) Is later registered on Schedule B (15 U.S.C. 77aa);
(B) Is a firm commitment underwritten offering in excess of
$250 million in securities; and
(C) Is registered 1 year or more after the effective date
of the registrant's initial registered offering; and
(3) The registrant files any prospectus used in reliance on
this section in the period beginning 15 days before the first
offer and ending with the filing of the registration statement
when so required by ง 230.425.
(b) Form C/SB-3 transactions. Notwithstanding Section 5(c)
of the Act, the offeror of securities in a transaction to be
registered on Form C, SB-3, F-8, F-80 or F-10 (ง
239.6, 239.11, 239.38, 239.41 or 239.40 of this chapter) (when
that form is used in a business combination transaction) may make
an offer to sell or solicit an offer to buy securities before the
filing of a registration statement with respect to those
securities if:
(1) Any prospectus relating to the transaction used in the
period beginning with the first public announcement, and ending
with the filing of the registration statement is filed in
accordance with ง 230.425; and
(2) In an exchange offer, the offers are made in accordance
with the tender offer rules; and, in a transaction involving the
vote of security holders, the offers are made in accordance with
the proxy rules.
42. By adding ง 230.167 to read as follows:
ง 230.167 Exemption from Section 5(c) for certain communications.
(a) In offerings registered on Form B (ง 239.5 of this
chapter), any communication made before the offering period shall
not constitute an offer to sell or an offer to buy the securities
being offered under the registration statement for purposes of
Section 5(c) of the Act (15 U.S.C. 77e(c)). "Offering period" is
defined in Form B.
(b) In offerings registered on Forms C (ง 239.6 of this
chapter), SB-3 (ง 239.11 of this chapter), F-8 (ง 239.38 of this
chapter), F-80 (ง 239.41 of this chapter) or F-10 (ง 239.40 of
this chapter) (when Form F-10 is used in connection with a
business combination transaction), any communication before the
first communication related to the offering (except for
communications among the participants in the offering) shall not
constitute an offer to sell or an offer to buy the securities
being offered under the registration statement for purposes of
Section 5(c) of the Act, provided that the parties to the
transaction take all reasonable steps within their control to
prevent further distribution or publication of such communication
during the period between that first communication and the date
of filing the registration statement.
(c) In all offerings other than those described in
paragraph (a) or (b) of this section or those registered on Form
S-8 (ง 239.16b of this chapter), any communication made by an
issuer, underwriter or participating dealer more than 30 days
before the date of filing of the registration statement shall not
constitute an offer to sell or offer to buy the securities being
offered under the registration statement for purposes of Section
5(c) of the Act, provided that the issuer, underwriter(s) or
participating dealer(s) take all reasonable steps within their
control to prevent further distribution or publication of such
communication during the 30 days immediately preceding the date
of filing the registration statement.
43. By adding ง 230.168 to read as follows:
ง 230.168 Regularly released forward-looking information.
(a) Except in connection with offerings registered on Form
S-8, C, SB-3, F-8, F-80 or F-10 (when that form is used in a
business combination transaction), (ง 239.16b, 239.6, 239.11,
239.38, 239.41 or 239.40 of this chapter) in a registered
offering by an issuer that is subject to the requirements of
Section 12 or 15(d) of the Exchange Act (15 U.S.C. 78l or
78o(d)), the dissemination of regularly released forward-looking
information by an issuer, underwriter or participating dealer in
the 30-day period immediately preceding the filing of a
registration statement shall be exempt from the prohibitions on
offers to sell or offers to buy set forth in Section 5(c) of the
Act (15 U.S.C. 77e(c)), if the registrant files any prospectus
used in reliance on this section when so required by ง 230.425.
(b) In an offering registered on Form S-8, C, SB-3, F-8, F-
80 or F-10 (when that form is used in a business combination
transaction) by an issuer that is subject to the requirements of
Section 12 or 15(d) of the Exchange Act, the dissemination of
regularly released forward-looking information by an issuer,
underwriter or participating dealer in the period after the
public announcement of the offering and prior to the filing of
the registration statement shall be exempt from the prohibitions
on offers to sell or offers to buy in Section 5(c) of the Act, if
the registrant files any prospectus used in reliance on this
section when so required by ง 230.425.
(c) For purposes of this section, "regularly released
forward-looking information" includes the information listed in
paragraphs (c)(1) through (c)(4) of this section, if the issuer
customarily releases information of this type in the ordinary
course of business on a regular basis, it has done so in the two
fiscal years (and any portion of a fiscal year) immediately prior
to the communication, and the time, manner and form in which it
is released is consistent with past practice:
(1) Projections of the issuer's revenues, income (loss),
earnings (loss) per share, capital expenditures, dividends,
capital structure or other financial items;
(2) Statements about the issuer management's plans and
objectives for future operations, including plans or objectives
relating to the products or services of the issuer;
(3) Statements about the issuer's future economic
performance of the type contemplated by the management's
discussion and analysis of financial condition and results of
operation described in ง 229.303 of this chapter or Item 9 of
Form 20-F (ง 249.220f of this chapter); and
(4) Assumptions underlying or relating to any of the
information described in paragraphs (c)(1), (c)(2) and (c)(3) of
this section.
44. By adding ง 230.169 to read as follows:
ง230.169 Factual business communications.
(a) Except in connection with offerings registered on Form
S-8, C, SB-3, F-8, F-80 or F-10 (when that form is used in a
business combination transaction), (ง 239.16b, 239.6, 239.11,
239.38, 239.41 or 239.40 of this chapter), factual business
communications made by an issuer, underwriter or participating
dealer in the 30-day period immediately preceding the filing of a
registration statement with respect to a registered offering
shall be exempt from the prohibitions on offers to sell and
offers to buy in Section 5(c) of the Act (15 U.S.C. 77e(c)).
(b) In an offering registered on Form S-8, C, SB-3, F-8, F-
80 or F-10 (when that form is used in a business combination
transaction), factual business communications made by an issuer,
underwriter or participating dealer after the public announcement
of the offering and prior to the filing of the registration
statement shall be exempt from the prohibition on offers to sell
and offers to buy in Section 5(c) of the Act.
(c) For purposes of this section, factual business
communications include:
(1) Factual information about the issuer or some aspect of
its business;
(2) Advertisement of the issuer's products or services;
(3) Factual business or financial developments with respect
to the issuer;
(4) Dividend notices;
(5) Factual information set forth in any Exchange Act
report the issuer is required to file; and
(6) Factual information communicated in response to
unsolicited inquiries by persons that are not affiliates of the
issuer, underwriter or participating dealer.
(d) For purposes of this section, factual business
communications do not include:
(1) Information about the registered offering; or
(2) Forward-looking information.
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45. By adding ง 230.172 to read as follows:
ง 230.172 Delivery of prospectus information.
The issuer, selling security holders, any underwriter, any
participating broker or dealer, and any person acting on behalf
of any of them, must deliver prospectus information to each
person offered securities in connection with an offering
registered under the Act as follows:
(a) Form B and Schedule B seasoned registrants. If the
registrant is offering securities as described in paragraph
(a)(1) of this section, then delivery under paragraph (a)(2) of
this section must be made.
(1) Securities in an offering registered on:
(i) Form B (ง 239.5 of this chapter), other than pursuant
to General Instruction I.C.6. of Form B; or
(ii) Schedule B (15 U.S.C. 77aa), where it is a firm
commitment underwritten offering in excess of $250 million in
securities that is registered more than one year after the
effective date of the registrant's initial registered offering;
(2) A term sheet prospectus that contains the following
information must be sent in a manner reasonably designed to
arrive before the date an investor makes a binding investment
decision:
(i) An itemization of the material terms of the securities
in summary format;
(ii) The name of any person, other than the issuer, for
whose account securities are offered and a brief identification
of any material relationship such person has (or had within the
past three years) with the issuer or any affiliate of the issuer;
(iii) The identity and location of a contact person to whom
questions may be directed; and
(iv) The identity and location of a person who, upon
request, will send promptly the documents that define the terms
of the securities.
(b) Other registrants -- firm commitment underwritten
offerings. If an offering is registered on Form A, Form SB-1,
Form SB-2, Form F-7, Form F-9, Form F-10 (other than in a
business combination transaction), (งง 239.4, 239.9, 239.10,
239.37, 239.39, 230.40 of this chapter) or on Schedule B (other
than as described in paragraph (a) of this section), is
underwritten on a firm commitment basis and the offering:
(1) Is the registrant's initial offering registered in
accordance with Section 5 of the Act (15 U.S.C. ง 77e) or is an
offering registered within one year of the effective date of the
registrant's initial registered offering, then a prospectus
satisfying Section 10 of the Act (15 U.S.C. ง 77j) must be sent
to each investor in a manner reasonably designed to arrive at
least 7 calendar days before the pricing of the securities.
(2) Takes place more than one year after the effective date
of the registrant's initial offering registered in accordance
with Section 5 of the Act, then a prospectus satisfying Section
10 of the Act must be sent to each investor in a manner
reasonably designed to arrive at least 3 calendar days before the
pricing of the securities.
(c) Other registrants -- non-firm commitment underwritten
offerings. If an offering is registered on Form A, Form SB-1,
Form SB-2, Form F-7, Form F-9, Form F-10 (other than in a
business combination), or on Schedule B (other than as described
in paragraph (a) of this section), is not underwritten on a firm
commitment basis and the offering:
(1) Is the registrant's initial offering in accordance with
Section 5 of the Act or is an offering taking place within one
year of the effective date of the registrant's initial registered
offering, then a prospectus satisfying Section 10 of the Act must
be sent to each investor in a manner reasonably designed to
arrive at least 7 calendar days before the investor signs a
subscription agreement or otherwise commits to purchase
securities.
(2) Takes place more than one year after the effective date
of the registrant's initial registered offering in accordance
with Section 5 of the Act, then a prospectus satisfying Section
10 of the Act must be sent to each investor in a manner
reasonably designed to arrive at least 3 days before the investor
signs a subscription agreement or otherwise commits to purchase
the securities.
Note to paragraphs (b) and (c).
The issuer, underwriter or participating broker or
dealer may choose to deliver a prospectus meeting the
requirements of Section 10(a), instead of a prospectus
meeting the requirements of Section 10, if it does so in
accordance with the terms of paragraphs (b) and (c) of this
section.
(d) Roll-ups. Notwithstanding paragraphs (a) through (c)
of this section, if a registrant is registering a roll-up
transaction as defined in ง 229.901(c) of this chapter, a
prospectus that satisfies the requirements of Section 10 of the
Act must be sent to each investor no later than the earlier of:
(1) 60 calendar days before the meeting at which the
roll-up transaction will be submitted to a vote or 60 calendar
days before the earliest date on which partnership action could
be taken by consent; and
(2) The date calculated by applying the maximum number of
days permitted for giving notice under applicable state law.
(e) Material changes. If not previously disclosed by any
other means to investors, material changes to the information
reflected in the prospectus delivered must be set forth in a
document sent to each investor in a manner reasonably designed to
arrive at least 24 hours before:
(1) The securities are priced, if the offering is subject
to paragraph (b) of this section;
(2) The investor signs a subscription agreement or
otherwise commits to purchase securities, if the offering is
subject to paragraph (c) of this section; or
(3) The date of the meeting at which the transaction will
be submitted to a vote or on which partnership action could be
taken by consent, if the offering is subject to paragraph (d) of
this section.
(f) Rule 462 registration statements. Notwithstanding
paragraphs (a) through (d) of this section, if an offering is
registered in part through a registration statement filed under
ง 230.462(b) or ง 230.462(e), a prospectus delivered with respect
to the earlier registration statement to an investor in
compliance with this ง 230.172 will be deemed to satisfy the
delivery requirements with respect to that investor under this
ง 230.172 with respect to the ง 230.462(b) or ง 230.462(e)
registration statement for the offering, provided that the
issuer, underwriter or participating dealer otherwise informs
investors purchasing in the offering of the change in the size of
the offering.
46. By adding ง 230.173 to read as follows:
ง 230.173 Delivery of final prospectuses.
Notwithstanding Section 5(b)(2) of the Act (15 U.S.C.
77e(b)(2)), a prospectus that meets the requirements of Section
10(a) of the Act (15 U.S.C. 77j(a)) need not precede or accompany
the carrying or delivery of any security by any person in an
offering registered other than on Form S-8, Form C, Form SB-3,
Form F-8, Form F-80 or F-10 (when that form is used in a business
combination transaction) (ง 239.16b, 239.6, 239.11, 239.38,
239.41 or 239.40 of this chapter) provided that:
(a) Prospectus information that satisfies the requirements
of Section 10(a) of the Act other than the price-related
information that may be omitted pursuant to ง 230.430A is filed
with the Commission prior to the transmission of any confirmation
in connection with the offering;
(b) Delivery of prospectus information in accordance with
ง 230.172 or ง 230.174, as applicable, has been made;
(c) At or before the time they receive any confirmation of
sale, investors are informed where they can acquire promptly the
prospectus information that meets the requirements of Section
10(a) of the Act, free of charge; and
(d) The security being carried or delivered is not issued
by an investment company.
47. By revising ง 230.174 to read as follows:
ง 230.174 Aftermarket delivery of prospectuses by dealers.
(a) For transactions that take place prior to the
expiration of the 40-day or 90-day period specified in Section
4(3) of the Act (15 U.S.C. 77d(3)) in which a dealer is obliged
to deliver a Section 10(a) (15 U.S.C. 77j(a)) prospectus, the
dealer need only satisfy that obligation in transactions
occurring during a period of twenty-five calendar days after the
later of:
(1) The effective date of the registration statement; or
(2) The first date on which the security was bona fide
offered to the public.
(b) For purposes of paragraph (a) of this section, the
required prospectus is delivered if:
(1) A prospectus satisfying the requirements of Section
10(a) (other than omitting price-related information pursuant to
ง 230.430A) is on file with the Commission; and
(2) Prior to or at the same time each investor receives a
confirmation the dealer notifies it as to where it may obtain
promptly that prospectus, free of charge.
(c) Paragraph (a) of this section shall not apply to any
transaction relating to a blank check company (as defined in
ง 230.419). In such transactions, all dealers must deliver a
prospectus satisfying the requirements of Section 10(a) for
ninety calendar days after the date the funds and securities are
released from the escrow or trust account under ง 230.419.
(d) If a registration statement relates to offerings made
on a continuous basis, a dealer's prospectus delivery obligation
expires after the initial prospectus delivery period specified in
this section.
(e) This section shall not apply to any transaction in
which:
(1) The registration statement is the subject of a stop
order issued under Section 8 of the Act (15 U.S.C. 77h); or
(2) The Commission provides, upon application or on its own
motion, another aftermarket delivery obligation.
(f) Nothing in this section shall affect any obligation to
deliver a prospectus pursuant to the provisions of Section 5 of
the Act (15 U.S.C. 77e) by a dealer who:
(1) Is acting as an underwriter with respect to the
securities involved; or
(2) Is engaged in a transaction as to securities
constituting the whole or a part of an unsold allotment to, or
subscription by, that dealer as a participant in the distribution
of the securities by the issuer or by or through an underwriter.
(g) No prospectus need be delivered in the 40-day or 90-day
period specified in Section 4(3) of the Act (15 U.S.C. 77d(3)) if
the registration statement is on Form F-6 (ง 239.36 of this
chapter).
48. By amending ง 230.176 by revising the section heading
and the introductory text; by removing the word "and" at the end
of paragraph (g); revising "incorporated." at the end of
paragraph (h) to read "incorporated; and"; and by adding
paragraph (i) to read as follows:
ง 230.176 Reasonable investigation and reasonable grounds for
belief under Section 11 of the Act and reasonable care
under Section 12(a)(2) of the Act.
In determining whether or not the conduct of a person, other
than the issuer, constitutes a reasonable investigation or a
reasonable ground for belief meeting the standard set forth in
Section 11(c) of the Act (15 U.S.C. 77k(c)) or the exercise of
reasonable care meeting the standard set forth in Section
12(a)(2) of the Act (15 U.S.C. 77l(a)(2)), relevant circumstances
to include:
* * * * *
(i)(1) The circumstances listed in paragraph (i)(3) of
this section if:
(i) The person is an underwriter;
(ii) Investment grade debt securities are not being offered;
(iii) The offering is marketed and priced in fewer than five
days;
(iv) The issuer meets the requirements of General
Instruction I.B.2. of Form B (ง 239.5 of this chapter); and
(v) The offering is registered on Form B (ง 239.5 of this
chapter) pursuant to either General Instruction I.C.1. or I.C.2.
(2) The absence of any one or more of the circumstances
listed in paragraph (i)(3) of this section, except for paragraph
(i)(3)(i) of this section, should not be considered definitive in
reaching a conclusion regarding whether the conduct of the
underwriter met the standards set forth in Section 11(c) or
12(a)(2) of the Act.
(3)(i) Whether the underwriter:
(A) Reviewed the registration statement (which, for
purposes of this section, includes all amendments and supplements
to it and all documents incorporated by reference into it); and
(B) Conducted a reasonable inquiry into any fact or
circumstance that would have caused a reasonable person to
question whether the registration statement contains an untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading;
(ii) Whether the underwriter discussed the information
contained in the registration statement with the relevant
executive officer(s) of the issuer (including, at a minimum, its
chief financial officer or chief accounting officer or that
person's designee (or person performing those functions)) and the
issuer's chief financial officer or chief accounting officer or
that person's designee (or person performing those functions)
certified to the underwriter that:
(A) He or she has read the registration statement; and
(B) To the best of his or her knowledge after reasonable
investigation, the registration statement does not contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading;
(iii) Whether the underwriter received from the independent
accountants responsible for the audited financial statements
included in the registration statement a letter contemplated by
Statement on Auditing Standards No. 72 of the American Institute
of Certified Public Accountants;
(iv) Whether the underwriter received an opinion from the
issuer's legal counsel substantially to the effect that:
(A) Counsel is of the opinion that the registration
statement and prospectus (except for financial statements,
financial data and schedules included therein as to which counsel
need not express any opinion) comply as to form in all material
respects with the Act and the rules and regulations of the
Commission thereunder; and
(B) Counsel has participated in the drafting and
preparation of the registration statement and prospectus and
nothing that has come to the attention of counsel that has caused
it to believe that the registration statement (except for
financial statements, financial data and schedules as to which
counsel need not express any belief), contains an untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading;
(v)(A) Whether the underwriter employed legal counsel
that reviewed:
(1) The issuer's registration statement and all periodic
reports filed by the issuer with the Commission for the last full
fiscal year ended prior to the offering and any portion of a
fiscal year thereafter; and
(2) The issuer's charter, by-laws, corporate minutes for
the last full fiscal year ended prior to the offering and any
portion of a fiscal year thereafter, and all material contracts
entered into by the issuer in the last five years prior to
effectiveness of the registration statement;
(B) Whether underwriter's counsel opined substantially to
the effect that nothing has come to its attention that would lead
it to believe that the registration statement contains an untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading;
(vi) Whether the underwriter employs a research analyst
that:
(A) For at least the 6 months immediately prior to the
commencement of the offering, has followed the issuer or the
issuer's industry on an ongoing basis;
(B) Has issued a report on the issuer or the issuer's
industry within the 12 months immediately prior to the
commencement of the offering; and
(C) Has been consulted by the underwriter in connection
with the disclosure used in the offering.
49. By amending ง 230.401 by revising paragraph (g) to read
as follows:
ง 230.401 Requirements as to proper form.
* * * * *
(g) Except for registration statements and post-effective
amendments that become effective automatically pursuant to ง
230.462, ง 230.464 and 230.485(b) (including registration
statements that become effective automatically at the time
designated by the issuer in accordance with ง 230.462(f)(2)), a
registration statement or any amendment thereto is deemed filed
on the proper form unless the Commission objects to the form
before the effective date.
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50. By revising paragraph (d) of ง 230.402 to read as
follows:
ง 230.402 Number of copies; binding; signatures.
* * * * *
(d) Notwithstanding any other provision of this section, if
a registrant files a registration statement pursuant to ง
230.462(b), ง 230.462(e) or ง 230.462(f) by facsimile pursuant to
ง 230.110(d), the registrant need only file one complete copy of
the registration statement with the Commission. That copy must
include all exhibits and other documents that are a part of it.
That copy need not be bound. It may include facsimile versions
of signatures in accordance with paragraph (e) of this section.
* * * * *
51. By amending ง 230.405 by revising the definition of
"small business issuer" to read as follows:
ง 230.405 Definitions of terms.
* * * * *
Small Business Issuer. The term "small business issuer"
means an entity that meets the following criteria:
(1) Has revenues (including revenues of any consolidated
subsidiaries) of less than $50,000,000;
(2) Is a U.S. or Canadian issuer;
(3) Is not an investment company;
(4) If a majority-owned subsidiary, the parent corporation
is also a small business issuer; and
(5) Each majority owned subsidiary of the entity, if any,
meets the criteria in paragraphs (2) and (3) of this definition.
* * * * *
52. By amending ง 230.406 by removing in paragraph (a) the
words "Form S-3, F-2, F-3 (ง 239.13, 239.32 or 239.33 of this
chapter) relating to a dividend or interest reinvestment plan, or
on Form S-4 (ง 239.25 of this chapter) complying with General
Instruction G of that Form" and adding, in their place, the words
"Form B (ง 239.5 of this chapter), or on Form A (ง 239.4 of this
chapter) complying with General Instruction VIII. of that Form
where the issuer plans to have the registration statement become
effective upon filing or fewer than 20 days thereafter".
53. By amending paragraph (a)(1)(x) of ง 230.415 by
removing the words "Form S-3 or Form F-3 (ง 239.13 or ง 239.33 of
this chapter)" and adding, in their place, the words "Form B
(ง 239.5 of this chapter)".
54. By amending ง 230.418 by revising the first sentence of
the introductory text of paragraph (a) and in the introductory
text of paragraph (a)(3) by removing the words "Form S-2 or Form
S-3 (งง 239.12 or 239.13 of this chapter)," and adding in its
place, "Form B (ง 239.5 of this chapter)," to read as follows:
ง 230.418 Supplemental information.
(a) The Commission or its staff may, where it deems
appropriate, request supplemental information not otherwise filed
with the Commission concerning the registrant, the registration
statement, the distribution of the securities, market activities
and underwriters' activities. * * *
* * * * *
55. By removing in ง 230.418(a)(3) the words "eligible to
use Form S-2 or Form S-3 (งง 239.12 or 239.13 of this chapter)"
and adding, in their place, the words "that meets the
requirements of General Instructions II.A. and II.B of Form A (ง
239.4 of this chapter) or is eligible to use Form B (239.5 of
this chapter)".
56. By amending ง 230.421 by adding paragraph (e) to read
as follows:
ง 230.421 Presentation of Information in Prospectuses.
* * * * *
(e) If a prospectus is not subject to the informational
requirements of Section 10 of the Act, it must contain a
prominent legend that urges investors to read filed documents
because they contain important information. The legend must
identify the other types of filings available about the offering,
for example: free writing, term sheet, Exchange Act reports, and
prospectus (registration statement). The legend must also
explain that investors can get the document(s) for free at the
SEC's web site and explain which documents are free from the
issuer. You may adapt the following legend or write your own in
plain English:
Example: Before you invest, you should read the other
document(s) that we have filed with the SEC.
These documents [describe or name the
documents] contain important information that
you need to consider before making an
investment decision. You may get these
documents for free by visiting EDGAR on the
SEC web site at www.sec.gov. We will send
you [describe or name the documents] for free
if you call us at 1 800 xxx-xxxx.
57. By amending ง 230.424 by revising the section heading
and paragraph (b)(2); revising Instruction 1 and redesignating it
as "Instruction to ง 230.424"; and by removing paragraph (b)(7)
and Instruction 2 to read as follows:
ง 230.424 Filing of Section 10 prospectuses; number of copies.
* * * * *
(b) * * *
(2) A prospectus used in connection with a primary offering
of securities made on a delayed basis pursuant to งง
230.415(a)(1)(vii) or 230.415(a)(1)(viii) that discloses the
public offering price, description of securities, specific method
of distribution or similar matters shall be filed with the
Commission no later than the second business day following the
earlier of:
(i) The date the offering price is determined; and
(ii) The date the prospectus is first used after
effectiveness in connection with a public offering or sale.
* * * * *
Instruction to ง 230.424. Notwithstanding งง 230.424(b)(2)
and 230.424(b)(5), a form of prospectus or prospectus
supplement relating to an offering of mortgage-related
securities on a delayed basis under ง 230.415(a)(1)(vii)
that is
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required to be filed pursuant to paragraph (b) of this
section shall be filed with the Commission no later than the
second business day it is first used after effectiveness in
connection with a public offering or sale.
* * * * *
58. By adding ง 230.425 to read as follows:
ง 230.425 Filing of "free writing" and other prospectuses.
(a) A registrant must file under this section the
information described in paragraph (b) of this section except
that it need not file:
(1) Any factual business communication, as defined in ง
230.169, regardless of when it is made;
(2) Any research report used in reliance on ง 230.137, ง
230.138, ง 230.139, ง 230.165 or ง 230.166;
(3) Any information used in connection with an offering
under Form S-8 (ง 239.16b of this chapter);
(4) Any information used in connection with an offering on
Form B (ง 239.5 of this chapter) under a dividend or interest
reinvestment plan;
(5) Any information used in connection with a direct stock
purchase plan;
(6) Any information filed or to be filed as part of an
effective registration statement (except in a business
combination transaction registered on Form C, SB-3, F-8,
F-10 or F-80 (งง 239.6, 239.11, 239.38, 239.40 or 239.41)); or
(7) Any confirmation described in ง 240.10b-10 of this
chapter;
(b)(1) Five copies of any prospectus used in reliance on
ง 230.165 shall be filed with the Commission on or before the
date of first use.
(2) Five copies of any prospectus used prior to the filing
of a registration statement in reliance on ง 230.166(a) shall be
filed with the Commission at the time the related registration
statement is filed.
(3) Five copies of any prospectus used before the filing of
a registration statement in reliance on ง 230.166(b) shall be
filed with the Commission on or before the date of first use.
Each copy of a prospectus filed under this section must identify
the filer and the company that is the subject of the offering in
the upper right corner of the cover page in addition to the
information required by paragraph (c) of this section.
(4) Five copies of any prospectus used in reliance on ง
230.168 shall be filed with the Commission at the time the
related registration statement is filed.
(c) Each copy of a prospectus filed under this section
shall contain, in the upper right corner of the cover page, the
Commission file number for the related registration statement or,
if that file number is unknown, a description sufficient to
identify the related registration statement.
59. By removing in ง 230.428(b)(2)(iii) the words "or F-1
(ง 239.31 of this chapter)" and adding, in their place, the words
"or Form A (ง 239.4 of this chapter)".
60. By revising ง 230.429 to read as follows:
ง 230.429 Prospectus relating to several registration statements.
(a) Where a registrant has filed two or more registration
statements, it may file a single prospectus in the latest one in
order to satisfy the requirements of the Act and the rules and
regulations thereunder for that offering and any other
offering(s) registered on the earlier registration statement(s).
The combined prospectus in the latest registration statement must
include all of the information that would currently be required
in a prospectus relating to all offering(s) it covers. The
combined prospectus may be filed as part of the initial filing of
the latest registration statement, in a pre-effective amendment
to it or in a post-effective amendment to it.
(b) Where a registrant relies on paragraph (a) of this
section, the registration statement containing the combined
prospectus shall act, upon effectiveness, as a post-effective
amendment to those registration statements whose offerings have
been combined into the new or amended registration statement.
The registrant must identify the earlier registration
statement(s) to which the combined prospectus relates by setting
forth the Commission file number(s) at the bottom of the facing
page of the latest registration statement.
61. By amending ง 230.430A by removing the word "fifteen"
and adding, in each place it appears, the word "five" in
paragraph (a)(3) and by revising the last sentence of Instruction
to Paragraph (a) to read as follows:
ง 230.430A Prospectus in a registration statement at the time of
effectiveness.
* * * * *
Instruction to Paragraph (a). * * * Notwithstanding the
foregoing, any increase or decrease in volume (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the price range may be reflected in the form of
prospectus filed with Commission pursuant to
ง 230.424(b)(1)) or ง 230.497(h) if, in the aggregate, the
changes in volume and price result in no more than a 20%
change in the amount of net proceeds disclosed in a
prospectus that was delivered to investors in accordance
with ง 230.172(b) or, if no prospectus was required to be
delivered, in the prospectus that was part of the effective
registration statement.
* * * * *
62. By removing and reserving ง 230.431.
63. By revising ง 230.434 to read as follows:
ง 230.434 Prospectus delivery requirements in firm commitment
underwritten
offerings by registered investment companies.
(a) Where an investment company registered under the
Investment Company Act of 1940 (15 U.S.C. ง 80a-1 et seq.)
registers an offering of securities on Form N-2 (ง 274.11a-1 of
this chapter) or Form S-6 (ง 239.16 of this chapter) and the
conditions described in paragraph (b) are satisfied, then:
(1) The prospectus subject to completion and the term sheet
described in paragraph (b)(iv), taken together, shall constitute
a prospectus that meets the requirements of Section 10(a) of the
Act (15 U.S.C. ง 77j(a)) for purposes of Section 2(a)(10) of the
Act (15 U.S.C. ง 77b(a)(10)) and Section 5(b)(2) of the Act (15
U.S.C. ง 77e(b)(2)); and
(2) The Section 10(a) prospectus described in paragraph
(a)(1) shall have:
(i) Been sent or given prior to or at the same time that a
confirmation is sent or given for purposes of Section 2(a)(10) of
the Act; and
(ii) Accompanied or preceded the transmission of the
securities for purpose of sale or for delivery after sale for
purposes of Section 5(b)(2) of the Act.
(b) Conditions:
(i) The securities are offered for cash in a firm
commitment underwritten offering;
(ii) A prospectus subject to completion and any term sheet
described in paragraph (b)(iv), together or separately, are sent
or given prior to or at the same time with the confirmation;
(iii) The prospectus subject to completion and term sheet,
together, are not materially different from the prospectus in the
registration statement at the time of its effectiveness or an
effective post-effective amendment thereto (including, in both
instances, information deemed to be a part of the registration
statement at the time of effectiveness pursuant to Rule 430A(b)
(ง 230.430A(b)); and
(iv) The term sheet under this paragraph (b) sets forth all
information material to investors with respect to the offering
that is not disclosed in the prospectus subject to completion or
the confirmation.
(c) The information contained in any term sheet described
in this section shall be deemed to be a part of the registration
statement as of the time such registration statement was declared
effective.
Instruction: Any form of prospectus or term sheet used in
reliance on this section shall be filed in accordance with ง
230.497(h).
(d) Any term sheet described under this section shall
state, at the top center of its cover page, that the term sheet
is a supplement to a prospectus and identify that prospectus by
issuer name and date; clearly identify the document as a term
sheet used in reliance on Rule 434; set forth the approximate
date of the term sheet’s first use; and clearly identify the
documents that, when taken together, constitute the Section 10(a)
prospectus.
(e) For purposes of this section, prospectus subject to
completion shall mean any prospectus that is either a preliminary
prospectus used in reliance on Rule 430 (ง 230.430) or a
prospectus omitting information in reliance on Rule 430A (ง
230.430A).
64. By revising ง 230.455 to read as follows:
ง 230.455 Place of filing.
All registration statements and other papers filed with the
Commission under the Act in paper format shall be filed at its
principal office, except for registration statements and
post-effective amendments thereto filed via facsimile pursuant to
ง 230.110(d). Materials not filed electronically or via
facsimile may be filed by delivery to the Commission through the
mails or otherwise.
65. By amending ง 230.456 by revising the section heading;
designating the current text as paragraph (a); and adding
paragraph (b) to read as follows:
ง 230.456 Date of filing, timing for fee payment by small
business issuers.
* * * * *
(b)(1) Notwithstanding Section 6 of the Act (15 U.S.C.
77f) and paragraph (a) of this section, a small business issuer
filing a registration statement on Form SB-1, SB-2 or SB-3 (งง
239.9, 239.10 or 239.11 of this chapter) that contains the
delaying amendment described in ง 230.473(a) may defer payment of
the registration fee required by Section 6, provided that it pays
the fee no later than the first date to occur of the following:
(i) The date on which the small business issuer requests
that the Commission grant effectiveness of the registration
statement under Section 8(a) of the Act (15 U.S.C. 77h(a)); or
(ii) The date on which the small business issuer files an
amendment to the registration statement that states that the
registration statement shall thereafter become effective in
accordance with the provisions of Section 8(a) of the Act, as
described in ง 230.473(b).
(2) Notwithstanding Section 6(c) of the Act, where the
small business issuer defers payment of the registration fee in
accordance with paragraph (b)(1) of this section, the
registration statement (and any amendment thereto) will be
considered filed when it is received by the Commission (assuming
all requirements of the Act and the rules that apply to such
filing have been complied with, other than payment of the
registration fee).
66. By amending ง 230.457 by adding paragraphs (f)(5), (p)
and (q) and revising the first sentence of paragraph (o) to read
as follows:
ง 230.457 Computation of Fee.
* * * * *
(f) * * *
(5) If a filing fee is paid pursuant to this paragraph for
the registration of an offering and the registration statement
also covers the resale of such securities, no additional filing
fee is required to be paid with respect to the resale.
* * * * *
(o) Where an issuer is registering an offering of
securities, the registration fee may be calculated on the basis
of the maximum aggregate offering price of all the securities
listed in the "Calculation of Registration Fee" table. * * *
(p) Where all or a portion of the securities offered under
a registration statement remain unsold after the offering's
completion or termination, the dollar amount of the filing fee
paid that is associated with the unsold securities may be used as
an offset against the total filing fee due to be paid for a
subsequent registration statement or registration statements.
The subsequent registration statement(s) must be filed by the
same registrant or a wholly-owned subsidiary of that registrant
within five years of the completion or termination of the initial
registration statement.
(q) Notwithstanding any other provisions of this section,
no filing fee is required for the registration of an
indeterminate amount of securities to be offered solely for
market making purposes by an affiliate of the issuer.
67. By revising paragraph (b)(2) of ง 230.461 to read as
follows:
ง 230.461 Acceleration of effective date.
* * * * *
(b) * * *
(2)(i) Where delivery of prospectus information to
investors required by ง 230.172 is not accomplished, until the
registrant, any underwriter and any participating dealer give the
Commission adequate assurance that they have complied with ง
230.172; and
(ii) Where the prospectus information delivered to investors
is found to be inaccurate or inadequate in any material respect,
until the registrant, any underwriter and any participating
dealer give the Commission adequate assurance that they have
informed investors that will purchase in the offering of the
appropriate correcting information.
* * * * *
68. By amending ง 230.462 by revising the section heading,
paragraphs (a), (b)(2) and (c); and by adding paragraphs (e), (f)
and (g) to read as follows:
ง 230.462 Effectiveness of certain registration statements and
post-effective amendments.
(a) A registration statement filed in accordance with Form
S-8 (ง 239.16b of this chapter) shall become effective upon
filing with the Commission.
(b) * * *
(2) The registration statement is filed before the date
confirmations are sent or given or, in an offering described in ง
230.145(a), before the meeting date at which security holders
approved the transaction or, if no meeting was held, the date the
transaction was approved by security holders' authorization or
consent; and
* * * * *
(c) A post-effective amendment shall become effective upon
filing with the Commission if:
(1) Other than price-related information previously omitted
in reliance upon ง 230.430A, it contains no substantive changes
from or additions to the prospectus previously filed:
(i) As part of the effective registration statement; or
(ii) As part of a post-effective amendment to that
registration statement; and
(2) The post-effective amendment is filed:
(i) Prior to the time confirmations are sent or given; and
(ii) No more than 30 days after the effectiveness of the
registration statement or another post-effective amendment
thereto that contains a prospectus.
* * * * *
(e) A registration statement and any post-effective
amendment thereto shall become effective upon filing with the
Commission if:
(1) The registration statement is filed on Form SB-1 (ง
239.9 of this chapter), Form SB-2 (ง 239.10 of this chapter) or
Form SB-3 (ง 239.11 of this chapter) and is registering
additional securities of the same class(es) as were included in
an earlier effective registration statement filed on Form SB-1,
Form SB-2 or Form SB-3 for the same offering;
(2) The registration statement is filed before the date
confirmations are sent or given or, in an offering described in ง
230.145(a), before the meeting date at which security holders
approved the transaction or, if no meeting was held, the date the
transaction was approved by security holders' authorization or
consent; and
(3) The new registration statement registers additional
securities in an amount and at a price that together represent no
more than 50% of the maximum aggregate offering price set forth
for each class of securities in the "Calculation of Registration
Fee" table contained in the earlier registration statement.
(f)(1) The following registration statements shall become
effective in accordance with paragraph (e)(2) of this section:
(i) A registration statement filed in accordance with Form
B (ง 239.5 of this chapter);
(ii) A registration statement filed in accordance with
Schedule B (15 U.S.C. 77aa) by a foreign government issuer that:
(A) Registered an offering under the Act within the 3 years
before the filing date of the current offering; and
(B) Is registering an offering of at least $250 million in
securities that is underwritten on a firm commitment basis; and
(iii) A registration statement filed in accordance with Form
A (ง 239.4 of this chapter) by an issuer that:
(A) Satisfies the requirements of General Instruction II.A.
or II.C. of Form A and is not disqualified as specified in
General Instruction II.B. of Form A.; and
(B) Has a public float of $75 million or more as of the
filing date; or
(C) Incorporates into the Form A its annual report filed
under Section 13(a) or 15(d) of the Securities Exchange Act (15
U.S.C. 78m or 78o(d)) for the end of its most recently completed
fiscal year and that annual report was reviewed fully by the
staff of the Commission and was amended in accordance with the
staff's comments (if so requested).
(2) The registrant shall designate the effective date of
the registration statement listed in paragraph (f)(1) of this
section. It must indicate on the front page of the Form or
Schedule that the registration statement will become effective
either:
(i) Upon filing with the Commission;
(ii) At the date and time set forth on the front page of the
Form or Schedule; or
(iii) As specified in a later amendment to the Form or
Schedule.
(g) An issuer may file only one registration statement
pursuant to either paragraph (b) or (e) of this section for any
offering.
69. By revising ง 230.464 to read as follows:
ง 230.464 Effective date of a post-effective amendment filed on
Form A, Form B or Form S-8.
(a) If at the time a registrant files a post-effective
amendment on Form A, it meets the requirements set forth in
General Instruction VIII. to Form A (ง 239.4 of this chapter):
(1) Its post-effective amendment filed on Form A shall
become effective in accordance with the registrant's designation
on the front page of Form A either:
(i) Upon filing with the Commission;
(ii) On the date set forth on the front page of Form A; or
(iii) As specified in a later post-effective amendment to
the Form; and
(2) The effective date of the registration statement shall
be deemed to be the effective date of the post-effective
amendment.
(b) If at the time a registrant files a post-effective
amendment on Form B (ง 239.5 of this chapter), it meets the
eligibility requirements to file that post-effective amendment on
Form B:
(1) Its post-effective amendment filed on Form B shall
become effective in accordance with the registrant's designation
on the front page of Form B either:
(i) Upon filing with the Commission;
(ii) On the date set forth on the front page of Form B; or
(iii) As specified in a later post-effective amendment to
the Form; and
(2) The effective date of the registration statement shall
be deemed to be the effective date of the post-effective
amendment.
(c) If a registrant meets the eligibility requirement of
Form S-8 (ง 239.16b of this chapter), its post-effective
amendment filed on Form S-8:
(1) Shall become effective upon filing with the Commission;
and
(2) The effective date of the registration statement shall
be deemed to be the filing date of the post-effective amendment.
70. By revising the first sentence of paragraph (a) of ง
230.471 and adding paragraph (c) to read as follows:
ง 230.471 Signatures to amendments.
(a) Except as provided in paragraph (c) of this section or
ง 230.478, every amendment to a registration statement shall be
signed by the persons specified in Section 6(a) of the Act (15
U.S.C. 77f(a)). * * *
* * * * *
(c)(1) All persons who sign a registration statement on
Form B (ง 239.5 of this chapter) will be deemed to have signed a
post-effective amendment to that registration statement where an
authorized representative of the registrant signs that amendment
if all the following are true:
(i) The registration statement relates to an offering under
ง 230.415(a)(1)(x);
(ii) The person did not grant a power of attorney for
another person to sign a post-effective amendment; and
(iii) The post-effective amendment does not expressly state
to the contrary.
(2) Despite paragraph (c)(2) of this section, if any person
who signed the registration statement no longer acts in the
capacity in which such person signed the registration statement,
the registrant must provide the signature of the person who
currently acts in that capacity in the post-effective amendment.
71. By revising paragraph (e) of ง 230.472 to read as
follows:
ง 230.472 Filing of amendments; number of copies.
* * * * *
(e) Notwithstanding any other provision of this section, if
a registrant files a post-effective amendment pursuant to ง
230.462(b), ง 230.462(e) or ง 230.462(f) by facsimile pursuant to
ง 230.110(d), the registrant need file only one complete copy of
the registration statement with the Commission. That copy must
include all exhibits and other documents that are a part of it.
That copy need not be bound. It may include facsimile versions
of signatures in accordance with ง 230.402(e).
72. By amending ง 230.473 by removing in paragraph (d) the
words "Form S-3, F-2 or F-3 (ง 239.13, ง 239.32 or ง 239.33 of
this chapter) relating to a dividend or interest reinvestment
plan; or on Form S-4 (ง 239.25 of this chapter) complying with
General Instruction G of that Form" and adding, in their place,
the words "Form B (ง 239.5 of this chapter) or on Form A (ง 239.4
of this chapter) complying with General Instruction VIII. of that
Form".
73. By removing ง 230.475a.
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74. By amending ง 230.477 by revising paragraphs (b) and
(c); and by adding paragraph (d) to read as follows:
ง 230.477 Withdrawal of registration statement or amendment.
* * * * *
(b) Any application for withdrawal of an entire
registration statement will be deemed granted upon filing of the
application with the Commission if made prior to the effective
date.
(c) The registrant must sign any application for withdrawal
and must state fully in it the grounds on which it is making the
application. If the application for withdrawal is being made in
anticipation of reliance on ง 230.152(c), the registrant must
state in the application that no securities were sold in
connection with the offering and that it may undertake a
subsequent private offering in reliance on ง 230.152.
(d) Any withdrawn document will remain in the Commission's
files, but an indication of the date of withdrawal will be
included in the file for the withdrawn document along with a
notation that it was withdrawn upon the request of the registrant
with the consent of the Commission.
75. To add ง 230.493A to read as follows:
ง 230.493AFiling of Securities Term Sheet in Certain Offerings
Registered on Schedule B.
Foreign government issuers must file with the Commission any
securities term sheet they deliver pursuant to ง 230.172(a) as
part of the prospectus in the related effective registration
statement on Schedule B (15 U.S.C. 77aa). They must file the
securities term sheet no later than the date of the first sale in
the offering.
76. By adding ง 230.499 to read as follows:
ง 230.499 Concurrent registration under the Exchange Act on
Schedule B.
(a) Any issuer filing a registration statement pursuant to
Schedule B (15 U.S.C. 77aa) also may use that Schedule to
register concurrently under Section 12(b) or 12(g) of the
Exchange Act (15 U.S.C. 78l(b) or (g)). The issuer may register
any class of securities that is the subject of the offering it is
registering under the Securities Act. To register, the issuer
must check the appropriate box(es) and identify the class(es) of
securities it is registering under Section 12(b) or 12(g) and the
exchange or market for those securities. The issuer also must
include the following paragraph and table on the facing page of
the Schedule B registration statement:
The issuer is using Schedule B to register concurrently
under Section 12(b) or 12(g) of the Exchange Act one or more
classes of securities that are the subject of the offering
being registered under the Securities Act. The issuer has
checked the appropriate box(es) and identified the class(es)
of securities it is registering under Section 12(b) or 12(g)
on the table below:
[ ] Securities being registered pursuant to Exchange Act
Section 12(b):
Title of each class: Name of exchange on which listed:
________________________ __________________________
________________________ __________________________
[ ] Securities being registered pursuant to Exchange Act
Section 12(g):
Title of each class: Name of market on which quoted:
________________________ __________________________
________________________ __________________________
(b) Registration on Schedule B of a class of securities
under Exchange Act Section 12(b) shall become effective upon the
later of:
(1) Receipt by the Commission of certification from the
national securities exchange listed on the cover of the Schedule
B that the securities have been approved for listing; or
(2) Effectiveness of the Schedule B under the Securities
Act.
(c) Registration on this Schedule B of a class of
securities under Exchange Act Section 12(g) shall become
effective automatically upon the earlier of:
(1) 60 days after the initial filing of this Schedule B; or
(2) The effectiveness of this Schedule B.
(d) The issuer must file at least one complete, signed copy
of the registration statement on Schedule B with each exchange or
market identified on the cover of the Schedule B.
77. By amending ง 230.502 by removing in paragraph
(b)(2)(ii)(B) the words "Form S-1 (ง239.11 of this chapter)" and
adding, in their place, the words "Form A (ง239.4 of this
chapter)", by removing "SB-2 (ง239.10 of this chapter) or S-11
(ง239.18 of this chapter)" and adding, in their place, the words
"or SB-2 (ง239.10 of this chapter)", by removing in paragraph
(b)(2)(ii)(D) the words "Form F-1 (ง239.31 of this chapter)" and
adding, in their place, the words "Form A (ง239.4 of this
chapter)" by removing in paragraph (c)(2) the words "with
ง230.135c" and adding, in their place, the words "with ง230.135";
revising the Note heading following paragraph (a) and adding a
sentence at the end of that Note to read as follows:
ง 230.502 General conditions to be met.
* * * * *
(a) Integration. * * *
Note to Paragraph (a). * * * See also ง 230.152
which provides safe harbors from integration of public
offerings and private offerings made around the same time,
including offerings under ง 230.506.
* * * * *
78. By revising paragraph (a) of ง 230.504 to read as
follows:
ง 230.504 Exemption for limited offerings and sales of securities
not exceeding $1,000,000.
(a) Exemption. Offers and sales of securities that
satisfy the conditions in paragraph (b) of this section shall be
exempt from the provisions of Section 5 of the Act (15 U.S.C.
77e) under Section 3(b) of the Act (15 U.S.C. 77c(b)) if the
issuer is not:
(1) An investment company;
(2) A development stage company that either:
(i) Has no specific business plan or purpose; or
(ii) Has indicated that its business plan is to engage in a
merger or acquisition with an unidentified entity or entities; or
(3) Subject to the reporting requirements of Section 13 or
15(d) of the Exchange Act (15 U.S.C. 78m or 78o(d)), except that
an issuer may be subject to those requirements in connection with
the offer and sale of securities underlying convertible
securities or warrants if:
(i) The issuer offered and sold the convertible securities
or warrants in compliance with this section while it was not
subject to those requirements; and
(ii) The issuer offered the securities underlying the
convertible securities or warrants in compliance with this
section prior to becoming subject to those requirements.
* * * * *
79. By amending ง 230.902 by removing the word "and" at the
end of paragraph (c)(3)(v)(B); by revising paragraph (c)(3)(vi);
by removing the period at the end of paragraph (c)(3)(vii) and
adding in its place "; and"; and by adding paragraphs
(c)(3)(viii) and (h)(4) to read as follows:
ง 230.902 Definitions.
* * * * *
(c) Directed selling efforts.
* * * * *
(3) * * *
(vi) Publication by an issuer of a notice in accordance with
ง 230.135;
* * * * *
(viii) Publication or distribution of information, an
opinion or a recommendation by a broker or dealer in accordance
with ง 230.138 or ง 230.139.
* * * * *
(h) Offshore transaction. * * *
(4) Notwithstanding paragraph (h)(1) of this section,
publication or distribution of information, an opinion or a
recommendation in accordance with ง 230.138 or ง 230.139 by a
broker or dealer at or around the time of an offering in reliance
on Regulation S (งง 230.901 through 230.904) will not cause the
transaction to fail to be an offshore transaction as defined in
this section.
* * * * *
PART 232 -REGULATION S-T - GENERAL RULES AND REGULATIONS FOR
ELECTRONIC FILERS
80. By revising the authority citation for Part 232 to read
as follows:
AUTHORITY: 15 U.S.C. 77f, 77g, 77h, 77j, 77s(a), 77sss(a),
77z-3, 78c(b), 78d, 78l, 78m, 78n, 78o(d), 78w(a), 78ll(d), 78mm,
79t(a), 80a-8, 80a-29, 80a-30 and 80a-37.
81. By amending ง 232.13 by revising paragraphs (a)(1)(ii),
(a)(1)(iii) and (a)(3) before the Note; and by adding paragraph
(a)(1)(iv) to read as follows:
ง 232.13 Date of filing; adjustment of filing date.
(a) * * *
(1) * * *
(ii) The filing conforms to the applicable technical
standards regarding electronic format in the EDGAR Filer Manual;
(iii) With respect to Securities Act filings, including
filings under Section 24(f) of the Investment Company Act (15
U.S.C. 80a-24(f)), the required fee payment:
(A) For registration statements filed in accordance with
Forms SB-1, SB-2 or SB-3 (งง 239.9, 239.10 or 239.11 of this
chapter) is made no later than the earlier of:
(1) The date on which the small business issuer requests,
under ง 230.461 of this chapter, that the Commission accelerate
the effective date of its registration statement; or
(2) The date on which the small business issuer files an
amendment to the registration statement that contains the
statement set forth in ง 230.473(b) of this chapter.
(B) For registration statements other than those filed in
accordance with Forms SB-1, SB-2 or SB-3 is confirmed upon
filing; and
(iv) Notwithstanding paragraph (a)(1)(iii) of this section,
the failure to pay an insignificant amount of the fee at the
required time, as a result of a bona fide error, shall not affect
the filing.
(2) * * *
(3) Notwithstanding paragraph (a)(2) of this section, any
registration statement or any post-effective amendment thereto
filed pursuant to งง 230.462(b), 230.462(e) or 230.462(f) of this
chapter by direct transmission commencing on or before 10:00 p.m.
Eastern Standard Time or Eastern Daylight Savings Time, whichever
is currently in effect, shall be deemed filed on the same
business day.
* * * * *
82. By amending ง 232.101 by revising the Note following
paragraph (a)(3); by removing paragraph (c)(7); and by
redesignating paragraphs (c)(8), (c)(9), (c)(10), (c)(11),
(c)(12), (c)(13), (c)(14), (c)(15), (c)(16) and (c)(17) as
paragraphs (c)(7), (c)(8), (c)(9), (c)(10), (c)(11), (c)(12),
(c)(13), (c)(14), (c)(15) and (c)(16) to read as follows:
ง 232.101 Mandated electronic submissions and exceptions.
(a) * * *
(3) * * *
Note to Paragraph (a): Failure to submit a required
electronic filing pursuant to paragraph (a) of this section,
as well as any required confirming electronic copy of a
paper filing made in reliance on a hardship exemption as
provided in งง 232.201 and 232.202, will result in the
ineligibility to use Form B and S-8 (งง 239.5 and 239.16b of
this chapter), restrict incorporation by reference of the
document submitted in paper (see ง 232.303), and toll
certain time periods associated with tender offers (see งง
240.13e-4(f)(12) and 240.14e-1(e) of this chapter).
* * * * *
- 320 -
83. By amending ง 232.201 following paragraph (b) and by
revising Note 1 to read as follows:
ง 232.201 Temporary hardship exemption.
* * * * *
(b) * * *
Note 1 to Paragraph (b): Failure to submit the
confirming electronic copy of a paper filing made in
reliance on a temporary hardship exemption, as required in
paragraph (b) of this section, will result in the
ineligibility to use Form B and S-8 (งง 239.5 and 239.16b of
this chapter), restrict incorporation by reference of the
document submitted in paper (see ง 232.303), and toll
certain time periods associated with tender offers (see งง
240.13e-4(f)(12) and 240.14e-1(e) of this chapter).
* * * * *
84. By amending ง 232.202 by revising Note 3 following
paragraph (d) to read as follows:
ง 232.202 Continuing hardship exemption.
* * * * *
(d) * * *
Note 3 Failure to submit the confirming electronic
copy of a paper filing made in reliance on a continuing
hardship exemption granted pursuant to paragraph (d) of this
section will result in the ineligibility to use Forms B and
S-8 (งง 239.5 and 239.16b of this chapter), restrict
incorporation by reference of the document submitted in
paper (see ง 232.303), and toll certain time periods
associated with tender offers (see งง 240.13e-4(f)(12) and
240.14e-1(e) of this chapter).
85. By adding a sentence at the end of paragraph (a) of ง
232.304 to read as follows:
ง 232.304 Graphic and image material.
(a) * * * Additionally, five copies of any prospectus
filed in accordance with ง 230.425 that contains graphic, imagine
or audio material that cannot be reproduced in the electronic
filing must be filed with the Commission in its original form.
* * * * *
86. By amending ง 232.311 by removing paragraph (i).
87. By amending ง 232.401 by revising the last sentence of
the Note to read as follows:
ง 232.401 Financial Data Schedule.
Note: * * * Further, electronic filers that have
not filed a required Financial Data Schedule will be
ineligible to use Form B and Form S-8 (งง 239.5 and 239.16b
of this chapter).
PART 239 - FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933
88. By revising the general authority citation for Part 239
to read as follows:
Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77z-2, 77z-3,
77sss, 78c, 78d, 78l, 78m, 78n, 78o(d), 78w(a), 78ll(d), 78mm,
78u-5, 79e, 79f, 79g, 79j, 79l, 79m, 79n, 79q, 79t, 80a-8, 80a-
24, 80a-29, 80a-30 and 80a-37, unless otherwise noted.
* * * * *
89. By removing and reserving ง 239.11, ง 239.12, ง 239.13,
ง 239.25, ง 239.18, ง 239.31, ง 239.32, ง 239.33, ง 239.34, and
by removing Forms S-1, S-2, S-3, S-4, S-11, F-1, F-2, F-3, and
F-4.
90. By adding ง 239.4 and Form A to read as follows:
ง 239.4 Form A, for registration under the Securities Act of
1933 and optional concurrent registration under the
Securities Exchange Act of 1934.
(a) This form shall be used for registration under the
Securities Act of 1933 (15 U.S.C. 77a et. seq.) ("Securities
Act") of any offering for which no other form is authorized or
prescribed. Therefore, for example, this form shall not be used
for:
(1) Any offering for which Form C or Form SB-3 (ง 239.6 or
239.11) is authorized; or
(2) Any offering by a foreign government or a political
subdivision thereof for which Schedule B (15 U.S.C. 77aa) is
authorized.
(b) A registrant also may use this form to register
concurrently under Section 12(b) or 12(g) of the Securities
Exchange Act of 1934 ("Exchange Act"). It may register under the
Exchange Act any class of securities that are the subject of the
offering it is registering under the Securities Act. To
register, the registrant must check the appropriate box(es) on
the cover page of this form and identify which class(es) of
securities it is registering under Section 12(b) or 12(g) of the
Exchange Act.
Note: The text of Form A will not appear in the Code of
Federal Regulations.
U.S. Securities and Exchange Commission
Washington, D.C. 20549
FORM A
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
[AND OPTIONAL REGISTRATION PURSUANT TO
SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934]
_________________________________________________________
(Exact name of Registrant as specified in its charter)
________________________________________________________________
(Translation of Registrant's name into English, if applicable)
_______________________________________________________________
(State or other jurisdiction of incorporation or organization)
______________________________________________
(I.R.S. Employer Identification Number)
________________________________________________________________________
(Address and telephone number of Registrant's principal executive
offices)
________________________________________________________________________
(Name, address and telephone number of Registrant's agent for
service)
________________________________________________________________________
(Web Site Address, if any)
________________________________________________________________________
(E-mail Address, if any)
* * * * *
Approximate date of commencement of sales
__________________________
If you are a foreign private issuer as defined in Securities
Act Rule 405, check the following box. [ ]
If you are not a foreign private issuer as defined in
Securities Act Rule 405, check the following box. [ ]
If any of the securities being registered on this Form are
to be offered pursuant to Securities Act Rule 415, check the
following box. [ ] ______
If you are filing this Form to register additional
securities for an offering in accordance with Securities Act Rule
462(b), check the following box and list the Securities Act
registration number of the earlier effective registration
statement for the same offering. [ ] _____________
If this Form is a post-effective amendment filed in
accordance with Securities Act Rule 462(c) to re-start the
15-business-day period during which pricing must occur under
Securities Act Rule 430A(a)(3) or to reflect a non-substantive
change from, or addition to, the prospectus, check the following
box and list the Securities Act registration number of the
earlier effective registration statement for the same offering.
[ ] _____________
If this Form is a post-effective amendment filed in
accordance with Rule 462(d) under the Securities Act solely to
add exhibits, check the following box and list the Securities Act
registration number of the earlier effective registration
statement for the same offering. [ ] _____________
If you are using this Form to register concurrently under
Section 12(b) or 12(g) of the Exchange Act any class of
securities that are the subject of the offering you are
registering under the Securities Act, check the appropriate box
and provide the information indicated below:
[ ] Securities being registered pursuant to Exchange Act Section
12(b):
Title of each class: Name of exchange on which
listed:
_______________________________
_______________________________
_______________________________
_______________________________
This Section 12(b) registration will become effective upon the
later of (1) effectiveness of this Form A; or (2) receipt by the
Commission of certification from the national securities exchange
listed above.
[ ] Securities being registered pursuant to Exchange Act Section
12(g):
Title of each class: Name of market on which
quoted:
_______________________________
_______________________________
_______________________________
_______________________________
Section 12(g) registration statements become effective
automatically 60 days after filing. You may check box 1 or 2,
below, to shorten this time period. Also, you may check box 3,
below, to preserve your option to shorten this time period. If
you check box 3 and do not file a later amendment, the
registration of the class of securities listed above will become
effective 60 days after filing of this Form A.
We propose that this filing become effective (check appropriate
box):
1. [ ] upon filing with the Commission. By checking this box,
the undersigned are certifying compliance with the delivery
requirements of Securities Act Rule 172(b) in connection with the
offering. In addition, in checking this box, any underwriter in
connection with the offering also is requesting that the
registration statement become effective upon filing.
2. [ ] on (date) at (time) . By checking this
box, the undersigned are certifying compliance with the delivery
requirements of Securities Act Rule 172(b) in connection with the
offering. In addition, in checking this box, any underwriter in
connection with the offering also is requesting that the
registration statement become effective upon the date and time
designated.
3. [ ] as specified in a later amendment to this Form.
CALCULATION OF REGISTRATION FEE
-----------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
each offering aggregate Amount of
class of Amount to price per offering
registration
securities be unit price fee
to be registered
registered
Notes to the Fee Table:
1. Set forth any explanatory details relating to the fee table
in footnotes to the table.
2. If the basis for calculating the fee is not evident from the
information presented in this table, refer to the applicable
provisions of Securities Act Rule 457 in a footnote.
3. If the fee is calculated under Rule 457(o), the "Amount to
be registered" and the "Proposed maximum offering price per
unit" need not appear in this table.
4. If any of the securities registered are not sold in
connection with this offering, the registrant (or a
qualifying wholly-owned subsidiary) may use the dollar
amount of the fee paid with respect to the unsold securities
to offset the total fee due on its subsequent registration
statement. See Rule 457(p). When offsetting any part of
the fee under Rule 457(p), the registrant must state the
dollar amount being offset in a footnote to the fee table
and must identify the file number of the registration
statement and the amount and class of securities in
connection with which the offsetting fee was previously
paid. Use of Rule 457(p) to offset any fee automatically
deregisters the securities in connection with which the fee
was previously paid.
GENERAL INSTRUCTIONS
I. Rules as to Use of Form A.
A. This Form shall be used for registration under the
Securities Act of 1933 ("Securities Act") of any offering for
which no other form is authorized or prescribed. Therefore, for
example, this Form shall not be used for:
1. any offering for which Form C or Form SB-3 is
authorized; or
2. any offering by a foreign government or a political
subdivision thereof for which Schedule B is authorized.
B. A registrant also may use this Form to register
concurrently under Section 12(b) or 12(g) of the Securities
Exchange Act of 1934 ("Exchange Act"). It may register under the
Exchange Act any class of securities that are the subject of the
offering it is registering under the Securities Act. To
register, the registrant must check the appropriate box(es) on
the cover page of this Form and identify which class(es) of
securities it is registering under Section 12(b) or 12(g).
- 321 -
II. Registrant Information -- Incorporation by Reference.
A. Registrants Eligible to Incorporate by Reference.
Unless otherwise provided in General Instruction II.B., a
registrant may comply with Items 12 and 13, instead of Item 14,
if it meets the following requirements:
1. the registrant:
(a) has a class of securities registered pursuant to
Section 12(b) or 12(g) of the Exchange Act; or
(b) is required to file reports pursuant to Section 15(d)
of the Exchange Act;
2. for a period of at least twenty-four full calendar
months and any portion of a month immediately preceding the date
of filing this Form, the registrant:
(a) has been subject to the requirements of Section 12 or
Section 15(d) of the Exchange Act;
(b) has filed all material it was required to file pursuant
to Sections 13, 14 and 15(d) of the Exchange Act; and
(c) has filed two annual reports if its public float is
less than $75 million.
(3) for a period of at least twelve full calendar months
and any portion of a month immediately preceding the date of
filing this Form, the registrant has filed in a timely manner all
materials it was required to file pursuant to Sections 13, 14 and
15(d) of the Exchange Act.
Note to General Instruction II.A.2.(c):
If a registrant filed a Form 12b-25 to delay filing any
report (or portion of a report) during that time period, it
must have filed the related report (or portion) within the
time prescribed by Rule 12b-25.
B. Registrants Ineligible to Incorporate by Reference and
Rely on Automatic Effectiveness. A registrant must comply with
Item 14 and is ineligible to rely on Securities Act Rule
462(f)(1)(iv) if it fails to meet any of the conditions of
General Instruction II.A. or any of the following is true:
1. within 2 years before the date of filing this Form, the
registrant was a development stage company that either:
(a) had no specific business plan or purpose; or
(b) indicated that its business plan was to engage in a
merger or acquisition with an unidentified entity or entities;
2. within two years before the date of filing this Form,
the registrant was a shell entity having few or no assets,
earnings or operations;
3. the registrant is registering an offering of "penny
stock" as defined in Exchange Act Rule 3a51-1 or has issued it in
the two years prior to the date of filing this Form;
4. the registrant or any of its subsidiaries has, since
the end of the last fiscal year for which the registrant included
certified financial statements in an Exchange Act report:
(a) failed to pay any dividend or sinking fund installment
on preferred stock;
(b) caused any material delinquency with respect to
preferred stock that was not cured within 30 days; or
(c) defaulted on any payment of principal, interest, a
sinking fund installment, a purchase fund installment or any
other installment on indebtedness, or defaulted on any rental on
a long-term lease, if such debt and lease defaults in the
aggregate are material;
5. the independent accountant that examined the
registrant's financial statements for the most recent fiscal year
expressed in its report substantial doubt about the registrant's
ability to continue as a going concern;
6. within three years before the date of filing, a
petition under the federal bankruptcy laws or any state
insolvency law was filed by or against the registrant, or a court
appointed a receiver, fiscal agent or similar officer with
respect to the business or property of the registrant. If true,
however, this would not disqualify the registrant if it has filed
an annual report with audited financial statements subsequent to
its emergence from that bankruptcy, insolvency or receivership
process;
7. within five years before the date of filing, the
registrant, any executive officer, director or general partner of
the registrant or person nominated to any of those positions, or
underwriter was convicted of any felony or misdemeanor described
in clauses (i) through (iv) of Section 15(b)(4)(B) of the
Exchange Act;
8. within five years before the date of filing, the
registrant, any executive officer, director or general partner of
the registrant or person nominated to any of those positions, or
underwriter was made the subject of a judicial or administrative
decree or order arising out of a governmental action that:
(a) prohibits future violations of any antifraud provision
of the securities laws or Section 5 of the Securities Act;
(b) requires that the registrant, any executive officer,
director or general partner of the registrant or person nominated
to any of those positions, or underwriter cease and desist from
violating any antifraud provision of the securities laws or from
violating Section 5 of the Securities Act; or
(c) determines that the registrant, any executive officer,
director or general partner of the registrant or person nominated
to any of those positions, or underwriter violated any antifraud
provision of the securities laws or Section 5 of the Securities
Act;
9. the registrant is a "small business issuer," as defined
in Securities Act Rule 405, that provided the "Information
Required in Annual Report of Transitional Small Business Issuers"
in its most recent annual report on Form 10-KSB; and
10. the registrant would incorporate by reference into its
Form A registration statement a report under the Exchange Act
that:
(a) the Commission, after review, requested that the
registrant amend in accordance with its comments; and
(b) either the registrant did not amend the report or, in
the Commission's judgment, did not amend the report in accordance
with the Commission's comments.
C. Successor Registrants. We will deem a successor
registrant to have satisfied the eligibility requirements of
General Instruction II.A. of this Form if it satisfies either of
the following requirements:
1.(a) taken together, the registrant and its predecessor(s)
meet the eligibility requirements in General Instruction II.A. of
this Form;
(b) the primary purpose of the succession was to change the
state or other jurisdiction of incorporation of the
predecessor(s) or to form a holding company for the
predecessor(s); and
(c) the assets and liabilities of the successor at the time
of succession were substantially the same as those of the
predecessor; or
2. the predecessor(s) met the eligibility requirements of
General Instruction II.A. of this Form at the time of succession
and the registrant has continued to meet them since the
succession.
III. Domestic and Foreign Registrants.
A. Definitions.
1. As used in this Form, "U.S. registrant" includes all
registrants other than foreign governments and foreign private
issuers.
2. As used in this Form, "foreign registrant" includes
only registrants that are foreign private issuers.
3. "Foreign government" and "foreign private issuer" are
defined in Rule 405 of Regulation C.
B. Information Required.
1. U.S. registrants must provide all information required
by the Items of this Form except where the Item expressly
identifies the requirement as applying only to foreign
registrants.
2. Foreign registrants must provide all information
required by the Items of this Form except where the Item
expressly identifies the requirement as applying only to U.S.
registrants.
IV. Free Writing Prospectus Information.
You should read Securities Act Rule 165. That rule permits
a Form A registrant and those acting on its behalf to use "free
writing" offering materials that do not meet the requirements of
Section 10 of the Act. Those offering materials may be used
after the registrant has filed with the Commission a registration
statement containing the Section 10 prospectus. If you use a
prospectus in reliance on that Rule, you must file it when
required to do so by Securities Act Rule 425.
- 322 -
V. Securities Act Rules and Regulations.
A. Prospectus delivery. You should read Securities Act
Rule 172. That rule describes prospectus delivery obligations
applicable to offerings registered on this Form.
B. Preparation and filing of Form. You should read the
other rules and regulations under the Securities Act (Part 230 of
Title 17 of the Code of Federal Regulations), particularly
Regulation C, Regulation S-K and Form 20-F. Regulation C
contains general requirements regarding the preparation and
filing of registration statements. Regulation S-K contains non-
financial statement disclosure requirements applicable to
registration statements. Form 20-F also contains non-financial
statement disclosure requirements, but they apply only to
foreign private issuers.
C. Blank check companies. If the offering registered on
this Form relates to a blank check company, you should read
Securities Act Rule 419. Among other things, that Rule contains
additional disclosure requirements.
VI. Foreign Registrant Financial Statements.
A. A foreign registrant must reconcile its financial
statements included in or incorporated into this registration
statement. It must reconcile them to Item 18 of Form 20-F,
except as otherwise permitted in paragraph B of this General
Instruction.
B. A foreign registrant need only reconcile its financial
statements to Item 17 of Form 20-F if:
1. it is registering an offering of its non-convertible
investment grade securities. A security is "investment grade"
if, at the time of sale:
(a) it is rated by at least one nationally recognized
statistical rating organization ("NRSRO") (as that term is used
in Exchange Act Rule 15c3-1(c)(2)(vi)(F)) in one of the generic
rating categories that signify investment grade; and
(b) no other NRSRO rating the security has placed it in a
category that does not signify investment grade;
2. it is registering an offering of its securities to be
issued upon the exercise of outstanding rights granted pro rata
to all existing security holders of the class of securities to
which the rights attach;
3. it is registering an offering of its securities
pursuant to a dividend or interest reinvestment plan;
4. it is registering an offering of its securities upon
the conversion of outstanding convertible securities that it (or
its affiliate) issued; or
5. it is registering an offering of its securities upon
the exercise of outstanding transferrable warrants that it (or
its affiliate) issued.
C. Notwithstanding paragraphs B.2., B.3., B.4. and B.5. of
this General Instruction, if securities are to be offered or sold
in a standby underwriting in the United States or by similar
arrangement, the registrant must reconcile its financial
statements to Item 18 of Form 20-F.
VII. Roll-up Transactions.
A. The registrant must comply with the disclosure
provisions of Subpart 900 of Regulation S-K if it registers a
roll-up transaction (as defined in Item 901(c) of Regulation S-K)
on this Form, even if the registrant is a "small business issuer"
as defined in Securities Act Rule 405. To the extent that the
disclosure requirements of Subpart 900 are inconsistent with the
disclosure requirements of this Form, the requirements of Subpart
900 control.
B. If the registrant registers a roll-up transaction on
this Form, special prospectus delivery requirements apply. See
Securities Act Rule 172(e).
C. You should read the proxy rules and Rule 14e-7 of the
tender offer rules. They contain provisions specifically
applicable to roll-up transactions. Those provisions apply
whether or not the entities involved have registered securities
under Section 12 of the Exchange Act.
VIII.Effectiveness of Registration Statement and Post-Effective
Amendments.
A.1. Registration statements on this Form will become
effective automatically pursuant to Securities Act Rule
462(f)(1)(iv) on the date designated by the registrant on the
front page of the Form if:
(i) the registrant meets the requirements of General
Instruction II.A. or II.C. and is not disqualified as specified
in General Instruction II.B.; and
(A) the registrant has a public float of $75 million or
more; or
(B) the annual report filed by the registrant for its most
recently completed fiscal year end was reviewed by the staff of
the Commission, was amended in accordance with the staff's
comments (if so requested) and is incorporated by reference into
the Form A.
2. "Public float" means the aggregate market value of the
registrant's outstanding voting and non-voting common equity
securities held by persons other than affiliates of the
registrant, as of the end of the registrant's last fiscal
quarter.
3. Under Rule 462(f)(1)(iv), registrants may designate
that the Form will become effective either:
(i) upon filing with the Commission;
(ii) at the date and time as set forth on the front page of
the Form;
(iii) as specified in a later amendment to the Form.
4. Before filing this Form in reliance on Rule
462(f)(1)(iv), registrants must obtain the concurrence of the
underwriter with the designated effective date.
5. Registration statements on this Form filed in reliance
on Securities Act Rule 462(f)(1)(iv) become public upon filing
and are not reviewed by the Commission staff prior to the
effective date designated by the issuer. Confidential treatment
requests with respect to information that the registrant is
required to file in this Form may, however, be reviewed by the
staff. As a result, when the issuer plans to have the Form
become effective upon filing or fewer than 20 days thereafter, it
must furnish to the staff in advance of filing, any request it
wishes to make for confidential treatment of information relating
to the Form. See Securities Act Rule 406. The Commission must
act on the confidential treatment request before this Form
becomes effective.
B. Any post-effective amendment filed on this Form by a
registrant eligible to designate its effective date as described
in General Instruction VIII.A. also shall become effective as
designated by the registrant. See General Instruction VIII.A.2.
and Securities Act Rule 464.
- 323 -
IX. Registration of Additional Securities.
A. Under certain circumstances, the registrant may
increase the size of an offering after the effective date through
filing a short-form registration statement under Securities Act
Rule 462(b). A Rule 462(b) registration statement may include
only the following:
1. the facing page;
2. a statement that the earlier registration statement,
identified by file number, is incorporated by reference;
3. any required opinions and consents;
4. the signature page; and
5. any price-related information omitted from the earlier
registration statement in reliance on Securities Act Rule 430A,
if the registrant so chooses.
B. The information contained in a Rule 462(b) registration
statement is deemed to be a part of the earlier effective
registration statement as of the date of effectiveness of the
Rule 462(b) registration statement.
C. The registrant may incorporate by reference from the
earlier registration statement any opinion or consent required in
the Rule 462(b) registration statement if:
1. the opinion or consent expressly allows that
incorporation; and
2. the opinion or consent also relates to the Rule 462(b)
registration statement.
Note to General Instruction IX.C.
You should read Securities Act Rule 411(c) regarding
incorporation by reference of exhibits and Securities Act
Rule 439(b) regarding incorporation by reference of
consents.
X. Concurrent Registration of Securities under the Exchange
Act.
A. Registration on this Form of a class of securities
under Exchange Act Section 12(b) shall become effective upon the
later of:
1. receipt by the Commission of certification from the
national securities exchange listed on the cover of this Form
that the securities have been approved for listing; or
2. effectiveness of this registration statement.
B. Registration on this Form of a class of securities
under Exchange Act Section 12(g) shall become effective upon the
effectiveness of this registration statement.
C. If the registrant is required to file an annual report
under Exchange Act Section 15(d) for its last fiscal year, it
must file that annual report within the time period specified in
the appropriate annual report form even if the Exchange Act
registration becomes effective before the annual report is due.
D. The registrant must file at least one complete, signed
copy of the registration statement with each exchange or market
identified on the cover of this Form.
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
Item 1. Front Cover Page of the Registration Statement and
Outside Front Cover Page of the Prospectus.
(a) Provide the information required by Item 501 of
Regulation S-K.
(b) If the registrant is a real estate entity as defined in
Item 1101 of Regulation S-K, provide the information required by
Item 1102 of Regulation S-K.
Item 2. Inside Front and Outside Back Cover Pages of
Prospectus.
Provide the information required by Item 502 of Regulation
S-K.
Item 3. Prospectus Summary, Risk Factors, and Ratio of Earnings
to Fixed Charges.
(a) Provide the information required by Item 503 of
Regulation S-K.
(b) If the registrant is a real estate entity as defined by
Item 1101 of Regulation S-K, provide the information required by
Item 1103 of Regulation S-K.
Note to Item 3.
Information is required by this Item only to the extent
that it is not already incorporated by reference from an
Exchange Act report.
Item 4. Use of Proceeds.
Provide the information required by Item 504 of Regulation
S-K.
Item 5. Determination of Offering Price.
Provide the information required by Item 505 of Regulation
S-K.
Item 6. Dilution.
Provide the information required by Item 506 of Regulation
S-K.
Item 7. Selling Security Holders.
Provide the information required by Item 507 of Regulation
S-K.
Item 8. Plan of Distribution.
Provide the information required by Item 508 of Regulation
S-K.
Item 9. Description of Securities.
Provide the information required by Item 202 of Regulation
S-K.
Item 10. Interests of Named Experts and Counsel.
Provide the information required by Item 509 of Regulation
S-K.
Item 11. Real Estate Entities.
If the registrant is a real estate entity as defined in Item
1101 of Regulation S-K, provide the information required by Item
1104 and Items 1108 through Item 1112 of Regulation S-K.
Item 12. Information Required for Seasoned Form A Companies.
If the registrant meets the requirements of General
Instruction II. of this Form and elects to comply with this Item
and Item 13 (instead of Item 14), it must do the following:
(a) Annual report. Deliver together with the prospectus a
copy of its latest annual report filed pursuant to Section 13(a)
or 15(d) of the Exchange Act.
(b) Quarterly information. U.S. registrants: Provide the
information required by Part I of Form 10-Q (or Form 10-QSB, if
applicable) for the most recent fiscal quarter following the
fiscal year covered by the annual report delivered pursuant to
this Item. The registrant must:
(1) include that information in the prospectus; or
(2) deliver together with the prospectus a copy of its
latest Form 10-Q (or 10-QSB);
Notes to Items 12(a) and 12(b).
1. Indicate in the prospectus that it is accompanied by
the reports that the registrant sends pursuant to paragraphs
(a) and (b) of this Item.
2. If the registrant incorporates by reference portions
of any other document into a report it delivers under this
Item, it also must deliver the incorporated portions with
it.
3. If the registrant's Form 10-Q (or 10-QSB) for the
most recent quarter is not due to be filed prior to the
effective date of the registration statement, it may provide
the information for the previous fiscal quarter to satisfy
Item 12(b). For this purpose, the due date is calculated
without the extension provided by Exchange Act Rule 12b-25.
(c) Current financial statements. Foreign registrants: If
the financial statements you incorporate by reference in
accordance with Item 13 of this Form are not sufficiently current
to comply with Rule 3-19 of Regulation S-X, you must provide
financial statements necessary to comply with that Rule. You
must do so through one of the following means:
(1) include that information in the prospectus; or
(2) include that information in an amended or a newly filed
Exchange Act report, disclose in the prospectus that you have
done so, incorporate that report by reference into the effective
registration statement, and deliver it together with the
prospectus.
(d) Other financial information. If not reflected in the
registrant's annual report delivered to investors in accordance
with paragraph (a) of this Item, provide:
(1) financial information required by Rule 3-05 and Article
11 of Regulation S-X with respect to transactions other than the
one being registered;
(2) restated financial statements prepared in accordance
with or reconciled to U.S. GAAP and Regulation S-X where:
(i) after the end of its most recent fiscal year, the
registrant consummated one or more business combinations
accounted for by the pooling of interest method of accounting;
and
(ii) the acquired businesses, considered in the aggregate,
are significant pursuant to Rule 11-01(b) or Regulation S-X;
(3) restated financial statements prepared in accordance
with or reconciled to U.S. GAAP and Regulation S-X, if a change
in accounting principles or correction of an error required a
material retroactive restatement of financial statements; or
(4) any financial information required because of a
material disposition of assets outside the normal course of
business. See Item 2 of Form 8-K and Instruction 3 to
Rule 11-02(b) of Regulation S-X.
Instructions to Item 12(d).
1. You may incorporate by reference into the effective
registration statement the information required by paragraph
(d) of Item 12. If you incorporate it, you must deliver it
together with the prospectus.
2. Foreign registrants: You should read Rules
4-01(a)(2) and 10-01 of Regulation S-X.
(e) Material changes. Describe any material change in the
registrant's affairs that:
(1) has occurred since the end of the fiscal year covered
by the annual report delivered pursuant to this Item; and
(2) the registrant has not described in an Exchange Act
report delivered together with the prospectus in accordance with
this Item.
Instructions to Item 12.
1. The registrant must deliver information required by
this Item with the first prospectus it delivers. It need
not deliver that information with any subsequent prospectus
sent to the same person.
2. Any reports the registrant delivers together with
the prospectus pursuant to this Item must be delivered
without charge to the investor.
3. Small business issuers. Small business issuers may
provide the information required by Item 11 of Form SB-2,
instead of the information required by this Item.
Item 13. Incorporation of Certain Information by Reference for
Seasoned Form A Companies.
If the registrant provides information in accordance with
Item 12 of this Form:
(a) it must incorporate by reference into the prospectus
that is part of the effective registration statement:
(1) its latest annual report filed in accordance with
Section 13(a) or 15(d) of the Exchange Act that contains audited
financial statements;
(2) any reports it filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of that fiscal year covered by
its annual report incorporated in this Form.
Instructions to Item 13(a).
1. List in the prospectus that is part of the effective
registration statement all documents filed prior to
effectiveness that are incorporated by reference.
2. You should read Rule 439 regarding consent to the
use of material incorporated by reference.
(b) You must set forth the following undertakings in the
prospectus:
(1) that you will provide to each person, including any
beneficial owner, to whom a prospectus is delivered, a copy of
any information that has been incorporated by reference in the
prospectus but not delivered with the prospectus;
(2) that you will provide this information upon written or
oral request;
(3) that you will provide this information at no cost to
the requester;
(4) that you will send a copy of that information within
one business day of any request for that information;
(5) that you will send those incorporated documents in a
manner that should result in delivery within three business days;
and
(6) that the name, address and telephone number to which
the request for this information must be made is: [fill in
information].
Instructions to Item 13(b).
1. The undertakings cover all documents incorporated by
reference through the date of responding to the request.
2. If you send any of the information that is
incorporated by reference in the prospectus to security
holders, you also must send any exhibits that are
specifically incorporated by reference in that information.
(c) In the prospectus, you must:
(1) identify the reports and other information that you
file with the Commission;
(2) state that the public:
(i) may read and copy materials you file with the
Commission at the Commission's Public Reference Room at 450 Fifth
Street, N.W., Washington, D.C. 20549; and
(ii) may obtain information on the operation of the Public
Reference Room by calling the Commission at 1-800-SEC-0330; and
(3) if you are an electronic filer, state that the
Commission maintains an Internet web site that contains reports,
proxy and information statements, and other information regarding
issuers that file electronically with the Commission and state
the address of that site (http://www.sec.gov). You are
encouraged to give your Internet web site address, if available.
Item 14. Information Required for All Other Companies.
Any registrant that does not provide information in
accordance with Items 12 and 13 must provide the following
information:
(a) Description of Business.
(1) U.S. registrants: Item 101 of Regulation S-K.
(2) Foreign registrants: Item 1 of Form 20-F.
(b) Description of Property.
(1) U.S. registrants: Item 102 of Regulation S-K.
(2) Foreign registrants: Item 2 of Form 20-F.
(3) If the registrant is a real estate entity as defined in
Item 1101 of Regulation S-K, provide the information required by
Items 1105, 1106 and 1107 of Regulation S-K in lieu of the
information required by paragraph (b)(i) or (b)(ii) of this Item.
(c) Legal Proceedings.
(1) U.S. registrants: Item 103 of Regulation S-K.
(2) Foreign registrants: Item 3 of Form 20-F.
(d) Market Information.
(1) U.S. registrants: If the registrant is offering common
equity securities, Item 201 of Regulation S-K.
(2) Foreign registrants: Item 5 of Form 20-F.
(e) Financial Statements.
(1) U.S. registrants:
(i) financial statements meeting the requirements of
Regulation S-X and any information required by Rule 3-05 and
Article 11 of Regulation S-X;
(ii) restated financial statements prepared in accordance
with or reconciled to U.S. GAAP and Regulation S-X where:
(A) after the end of its most recent fiscal year, the
registrant consummated one or more business combinations
accounted for by the pooling of interest method of accounting;
and
(B) the acquired businesses, considered in the aggregate,
are significant pursuant to Rule 11-01(b) or Regulation S-X;
(iii) restated financial statements prepared in accordance
with or reconciled to U.S. GAAP and Regulation S-X, if a change
in accounting principles or correction of an error required a
material retroactive restatement of financial statements; and
(iv) any financial information required because of a
material disposition of assets outside the normal course of
business. See Item 2 of Form 8-K and Instruction 3 to Rule
11-02(b) of Regulation S-X.
(2) Foreign registrants: Item 18 of Form 20-F except if
you may comply with Item 17 of Form 20-F pursuant to General
Instruction VI.
Instructions to Item 14(e).
1. File schedules required by Regulation S-X as
"Financial Statement Schedules" pursuant to Item 20 of this
Form.
2. Foreign registrants: Your financial statements must
comply with Rule 3-19 of Regulation S-X. See also Rules
4-01(a)(2) and 10-01 of Regulation S-X.
(f) Exchange Controls.
(i) U.S. registrants: Not applicable.
(ii) Foreign registrants: Item 6 of Form 20-F.
(g) Taxation.
(i) U.S. registrants: Not applicable.
(ii) Foreign registrants: Item 7 of Form 20-F.
(h) Selected Financial Data.
(i) U.S. registrants: Item 301 of Regulation S-K.
(ii) Foreign registrants: Item 8 of Form 20-F.
(i) Supplementary Financial Information.
(i) U.S. registrants: Item 302 of Regulation S-K.
(ii) Foreign registrants: Not applicable.
(j) Management's Discussion and Analysis.
(i) U.S. registrants: Item 303 of Regulation S-K.
(ii) Foreign registrants: Item 9 of Form 20-F.
(k) Changes In and Disagreements With Accountants.
(i) U.S. registrants: Item 304 of Regulation S-K.
(ii) Foreign registrants: Not applicable.
(l) Quantitative and Qualitative Disclosures of Market
Risk.
(i) U.S. registrants: Item 305 of Regulation S-K.
(ii) Foreign registrants: Item 9A of Form 20-F.
(m) Directors and Executive Officers.
(i) U.S. registrants: Item 401 of Regulation S-K.
(ii) Foreign registrants: Item 10 of Form 20-F.
(n) Executive and Officer Compensation.
(i) U.S. registrants: Item 402 of Regulation S-K.
(ii) Foreign registrants: Item 11 of Form 20-F.
(o) Control of Registrant.
(i) U.S. registrant: Item 403 of Regulation S-K.
(ii) Foreign registrant: Item 4 of Form 20-F.
(p) Options Issued by Registrant.
(i) U.S. registrants: Not applicable.
(ii) Foreign registrants: Item 12 of Form 20-F.
(q) Interest of Management in Certain Transactions.
(i) U.S. registrant: Item 404 of Regulation S-K.
(ii) Foreign registrant: Item 13 of Form 20-F.
Item 15. Disclosure of Commission Position on Indemnification
for Securities Act Liabilities.
Provide the information required by Item 510 of Regulation
S-K.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 16. Other Expenses of Issuance and Distribution.
Provide the information required by Item 511 of Regulation
S-K.
Item 17. Indemnification of Directors and Officers.
Provide the information required by Item 702 of Regulation
S-K.
Item 18. Recent Sales of Unregistered Securities.
Provide the information required by Item 701 of Regulation
S-K, unless incorporated by reference.
- 324 -
Item 19. Sales to Special Parties.
If the registrant is a real estate entity as defined in Item
1101 of Regulation S-K, provide the information required by Item
1113 of Regulation S-K.
Item 20. Exhibits.
(a) Provide the information required by Item 601 of
Regulation S-K.
(b) Provide the financial statement schedules required by
Regulation S-X and Items 11 or 13 of this Form. List each
schedule according to the number assigned to it in Regulation
S-X.
Item 21. Undertakings.
Provide the information required by Item 512 of Regulation
S-K.
SIGNATURES
The registrant certifies that it has duly caused and
authorized the undersigned to sign this registration statement on
its behalf. The undersigned certifies that he/she has read this
registration statement and to his/her knowledge the registration
statement does not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(Registrant)..........................................
By (Signature and Title)..........................................
Date.....................
The following persons certify that they have read this
registration statement and to their knowledge the registration
statement does not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The
following persons also certify that they are signing below on
behalf of the registrant and in the capacities and on the dates
indicated.
By (Signature and Title)..........................................
Date.....................
By (Signature and Title)..........................................
Date.....................
Signature Instructions.
1. The following persons, or persons performing similar
functions, must sign the registration statement:
(a) the registrant;
(b) its principal executive officer or officers;
(c) its principal financial officer;
(d) its controller or principal accounting officer; and
(e) at least the majority of its board of directors.
2. Where the registrant is a foreign issuer, its
authorized representative in the United States also must sign the
registration statement.
3. Where the registrant is a limited partnership, its
general partner must sign. Where the general partner is a
corporation, the majority of the board of directors of the
corporate general partner must sign the registration statement.
4. Type or print the name and title of each person who
signs the registration statement beneath the person's signature.
Any person who occupies more than one of the specified positions
must indicate each capacity in which that person signs the
registration statement. See Securities Act Rule 402 concerning
manual signatures and Item 601 of Regulation S-K concerning
signatures pursuant to powers of attorney.
91. By adding ง 239.5 and Form B to read as follows:
ง 239.5 Form B, for registration under the Securities Act of
1933 of certain offerings, and optional concurrent
registration under the Securities Exchange Act of 1934.
(a) A registrant may use this Form for registration of
securities offerings under the Securities Act of 1933 (15 U.S.C.
77a et. seq.) ("Securities Act") if:
(1) It is not a foreign government as defined in ง 230.405
of this chapter;
(2) It meets all of the requirements of General Instruction
I.B. of this Form, unless otherwise specified in General
Instruction I.C.;
(3) The offering is one of those described in General
Instruction I.C. of this Form and is not a roll-up transaction as
defined in Item 901(c) of Regulation S-K (ง 229.901(c) of this
chapter); and
(4) Form C (ง 230.6 of this chapter) is not authorized for
registration of the offering.
(b) A registrant also may use this Form to register
concurrently under Section 12(b) or 12(g) of the Securities
Exchange Act of 1934 ("Exchange Act"). It may register under the
Exchange Act any class of securities that are the subject of the
offering it is registering under the Securities Act. To
register, the registrant must check the appropriate box(es) on
the cover page of this Form and identify which class(es) of
securities it is registering under Section 12(b) or 12(g) of the
Exchange Act.
Note: The text of Form B will not appear in the Code of
Federal Regulations.
U.S. Securities and Exchange Commission
Washington, D.C. 20549
FORM B
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
[AND OPTIONAL REGISTRATION PURSUANT TO
SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934]
_________________________________________________________
(Exact name of Registrant as specified in its charter)
________________________________________________________________
(Translation of Registrant's name into English, if applicable)
_______________________________________________________________
(State or other jurisdiction of incorporation or organization)
______________________________________________
(I.R.S. Employer Identification Number)
- 325 -
________________________________________________________________________
(Address and telephone number of Registrant's principal executive
offices)
________________________________________________________________________
(Name, address and telephone number of Registrant's agent for
service)
_________________________________________________________________________
(Web Site Address, if any)
_________________________________________________________________________(E-
mail Address, if any)
* * * * *
Approximate date of commencement of sales
__________________________
If you are a foreign private issuer as defined in Securities
Act Rule 405, check the following box. [ ]
If you are not a foreign private issuer as defined in
Securities Act Rule 405, check the following box. [ ]
If any of the securities being registered on this Form are
to be offered pursuant to Securities Act Rule 415, check the
following box. [ ] ______
If you are using this Form to register concurrently under
Section 12(b) or 12(g) Exchange Act any class of securities that
are the subject of the offering you are registering under the
Securities Act, check the appropriate box and provide the
information indicated below:
[ ] Securities being registered pursuant to Exchange Act Section
12(b):
Title of each class: Name of exchange on which
listed:
_______________________________
_______________________________
_______________________________
_______________________________
This Section 12(b) registration will become effective upon the
later of (1) effectiveness of this Form B; or (2) receipt by the
Commission of certification from the national securities exchange
listed above.
- 326 -
[ ] Securities being registered pursuant to Exchange Act Section
12(g):
Title of each class: Name of market on which
quoted:
_______________________________
_______________________________
_______________________________
_______________________________
Section 12(g) registration statements become effective
automatically 60 days after filing. You may check box 1 or 2,
below, to shorten this time period. Also, you may check box 3,
below, to preserve your option to shorten this time period. If
you check box 3 and do not file a later amendment, the
registration of the class of securities listed above will become
effective 60 days after filing of this Form B.
We propose that this filing become effective (check appropriate
box):
1. [ ] upon filing with the Commission. By checking this box,
the undersigned are certifying compliance with the delivery
requirements of Securities Act Rule 172(a) in connection with the
offering. In addition, in checking this box, any underwriter in
connection with the offering also is requesting that the
registration statement become effective upon filing.
2. [ ] on (date) at (time) . By checking this
box, the undersigned are certifying compliance with the delivery
requirements of Securities Act Rule 172(a) in connection with the
offering. In addition, in checking this box, any underwriter in
connection with the offering also is requesting that the
registration statement become effective upon the date and time
designated.
3. [ ] as specified in a later amendment to this Form.
CALCULATION OF REGISTRATION FEE
-----------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
each offering aggregate Amount of
class of Amount to price per offering
registration
securities be unit price fee
to be registered
registered
Notes to the Fee Table:
1. Set forth any explanatory details relating to the fee table
in footnotes to the table.
2. If the basis for calculating the fee is not evident from the
information presented in this table, refer to the applicable
provisions of Securities Act Rule 457 in a footnote.
3. If the fee is calculated under Rule 457(o), the "Amount to
be registered" and the "Proposed maximum offering price per
unit" need not appear in this table.
4. If any of the securities registered are not sold in
connection with this offering, the registrant (or a
qualifying wholly-owned subsidiary) may use the dollar
amount of the fee paid with respect to the unsold securities
to offset the total fee due on its subsequent registration
statement. See Rule 457(p). When offsetting any part of
the fee under Rule 457(p), the registrant must state the
dollar amount being offset in a footnote to the fee table
and must identify the file number of the registration
statement and the amount and class of securities in
connection with which the offsetting fee was previously
paid. Use of Rule 457(p) to offset any fee automatically
deregisters the securities in connection with which the fee
was previously paid.
5. Where two or more classes of securities are being registered
pursuant to General Instruction I.C.1., I.C.2. or I.C.4. on
a delayed or continuous basis pursuant to Securities Act
Rule 415(a)(1)(x) and Rule 457(o), the registrant need only
specify the "Proposed maximum aggregate offering price" and
the "Amount of registration fee" for all classes listed in
the fee table as a group, not for each individual class.
The registrant must, however, list each of the classes of
securities under the "Title of each class of securities to
be registered" section of the fee table.
GENERAL INSTRUCTIONS
I. Eligibility Requirements for Form B.
A. General Requirement.
1. A registrant may use this Form for registration of
securities offerings under the Securities Act of 1933 if:
(a) it is not a foreign government as defined in Securities
Act Rule 405;
(b) it meets all of the requirements of General Instruction
I.B., unless otherwise specified in General Instruction I.C.;
(c) the offering is one of those described in General
Instruction I.C. and is not a roll-up transaction as defined in
Item 901(c) of Regulation S-K; and
(d) Form C is not authorized for registration of the
offering.
2. A registrant also may use this Form to register
concurrently under Section 12(b) or 12(g) of the Exchange Act.
It may register under the Exchange Act any class of securities
that are the subject of the offering it is registering under the
Securities Act. To register, the registrant must check the
appropriate box(es) on the cover page of this Form and identify
which class(es) of securities it is registering under Section
12(b) or 12(g).
B. Eligible Registrants.
1. The registrant:
(a) has a class of securities registered pursuant to
Section 12(b) or 12(g) of the Exchange Act; or
(b) is required to file reports pursuant to Section 15(d)
of the Exchange Act.
2. For a period of at least 12 full calendar months and
any portion of a month immediately preceding the date of filing
this Form, the registrant:
(a) has been subject to the requirements of Section 12 or
15(d) of the Exchange Act;
(b) has filed all the material it was required to file
pursuant to Sections 13, 14 and 15(d) of the Exchange Act;
(c) has filed in a timely manner all materials it was
required to file pursuant to Sections 13, 14 and 15(d) of the
Exchange Act.
Note to General Instruction I.B.2.(c): If a registrant
filed a Form 12b-25 to delay filing any report (or a portion
of a report) during that time period, it must have filed the
related report (or portion) within the time prescribed by
Exchange Act Rule 12b-25;
3. The registrant filed at least one annual report on Form
10-K or Form 20-F prior to the date of filing this Form;
4. Prior to the date of filing this Form, the registrant
registered an offering of securities under the Securities Act
other than on a Form B, Form F-7, Form F-8, Form F-9, Form F-10,
Form F-80 or on any form that became effective upon filing. A
registrant need not satisfy this requirement, however, if it
became a publicly held entity through an unregistered spin-off
transaction whereby its parent company distributed equity shares
of the registrant on a pro rata basis to the parent's
shareholders;
5. Successor Registrants. We will deem a successor
registrant to have satisfied the eligibility requirements of
General Instruction I.B.2, I.B.3. and I.B.4. of this Form if it
satisfies either of the following requirements:
(a)(1) taken together, the registrant and its
predecessor(s) meet the eligibility requirements in General
Instructions I.B.2, I.B.3. and I.B.4.;
(2) the primary purpose of the succession was to change the
state or other jurisdiction of incorporation of the
predecessor(s) or to form a holding company for the
predecessor(s); and
(3) the assets and liabilities of the successor at the time
of succession were substantially the same as those of the
predecessor(s); or
(b) the predecessor met the eligibility requirements of
General Instructions I.B.2, I.B.3. and I.B.4. at the time of
succession and the registrant has continued to meet them since
the succession.
6. Disqualifications. None of the following is true:
(a) within two years before the date of filing this Form,
the registrant was a development stage company that either:
(1) had no specific business plan or purpose; or
(2) indicated that its business plan was to engage in a
merger or acquisition with an unidentified entity or entities;
(b) within two years before the date of filing this Form,
the registrant was a shell entity having few or no assets,
earnings or operations;
(c) the registrant is registering an offering of "penny
stock" as defined in Exchange Act Rule 3a51-1 or has issued penny
stock in the two years prior to the date of filing this Form;
(d) the registrant or any of its subsidiaries has, since
the end of the last fiscal year for which the registrant included
certified financial statements in an Exchange Act report:
(1) failed to pay any dividend or sinking fund installment
on preferred stock;
(2) caused any material delinquency with respect to
preferred stock that was not cured within 30 days; or
(3) defaulted on any payment of principal, interest, a
sinking fund installment, a purchase fund installment or any
other installment on indebtedness, or defaulted on any rental on
a long-term lease, if such debt and lease defaults in the
aggregate are material;
(e) the independent accountant that examined the
registrant's financial statements for the most recent fiscal year
expressed in its report substantial doubt about the registrant's
ability to continue as a going concern;
(f) within three years before the date of filing, a
petition under the federal bankruptcy laws or any state
insolvency law was filed by or against the registrant, or a court
appointed a receiver, fiscal agent or similar officer with
respect to the business or property of the registrant. If true,
however, this would not disqualify the registrant if it has filed
an annual report with audited financial statements subsequent to
its emergence from that bankruptcy, insolvency or receivership
process;
(g) within five years before the date of filing, the
registrant, any executive officer, director or general partner of
the registrant or person nominated to any of those positions, or
underwriter was convicted of any felony or misdemeanor described
in clauses (i) through (iv) of Section 15(b)(4)(B) of the
Exchange Act;
(h) within five years before the date of filing, the
registrant, any executive officer, director or general partner of
the registrant or person nominated to any of those positions, or
underwriter was made the subject of a judicial or administrative
decree or order arising out of a governmental action that:
(1) prohibits future violations of any antifraud provision
of the securities laws or Section 5 of the Securities Act;
(2) requires that the registrant, any executive officer,
director or general partner of the registrant or person nominated
any of those positions, or underwriter cease and desist from
violating any antifraud provision of the securities laws or from
violating Section 5 of the Securities Act; or
(3) determines that the registrant, any executive officer,
director or general partner of the registrant or person nominated
to any of those positions, or underwriter violated any antifraud
provision of the securities laws or Section 5 of the Securities
Act; and
(i) the registrant would incorporate by reference into its
Form B registration statement a report under the Exchange Act
that:
(1) the Commission, after review, requested that the
registrant amend in accordance with its comments; and
(2) either the registrant did not amend the report or, in
the Commission's judgment, did not amend the report in accordance
with the Commission's comments; and
(j) the registrant is a "small business issuer," as defined
in ง 230.405, that provided the "Information Required in Annual
Report of Transitional Small Business Issuers" in its most recent
annual report on Form 10-KSB.
7. MJDS Filers. A registrant shall be ineligible to use
Form B if the most recent annual report it filed pursuant to
Section 13 or 15(d) of the Exchange Act was on Form 40-F.
C. Eligible Offerings.
1. Offerings by Well-Followed Issuers.
An offering of securities of a registrant that satisfies all
of the registrant requirements in General Instruction I.B. is
eligible where either the registrant's public float is $75
million or more and the average daily trading volume value of its
equity securities is $1 million or more, or the registrant's
public float is $250 million or more.
For purposes of this Instruction:
(a) "affiliate" has the meaning set forth in Securities Act
Rule 144(a)(1);
(b) "average daily trading volume" means the average daily
trading volume on U.S. markets during the three full calendar
months, or any 90 consecutive calendar days ending within 10
calendar days, immediately preceding the filing of the
registration statement;
(c) "common equity" has the meaning set forth in Securities
Act Rule 405; and
(d) "public float" means the aggregate market value of the
registrant's outstanding voting and non-voting common equity
securities held by persons other than affiliates of the
registrant, as of the end of the registrant's last fiscal
quarter. The aggregate market value of the registrant's
outstanding voting and non-voting common equity shall be computed
by use of the price at which the common equity was last sold
before the end of the last fiscal quarter, or the average of the
bid and asked prices in the principal market for such common
equity, as of the last reported date before the end of the last
fiscal quarter.
2. Offerings Made Solely to QIBs.
An offering of securities of a registrant that satisfies the
registrant requirements in General Instruction I.B. is eligible
where the securities are offered and sold only to persons that
the seller, and any person acting on behalf of the seller,
reasonably believe are qualified institutional buyers.
Note to General Instruction I.C.2.: For purposes of this
Instruction, "qualified
institutional buyer" shall have the meaning set forth in
Securities Act Rule 144A(a)(1) except that it shall not
include dealers as defined in Section 2(a)(12) of the Act or
investment advisers as defined in Section 202(a)(11) of the
Investment Advisers Act of 1940. Rules 144A(a)(2) - (a)(5)
shall apply to this Instruction. In determining whether an
investor is a qualified institutional buyer, the registrant
and any person acting on behalf of the registrant may rely
on the non-exclusive methods set forth in Rule 144A(d)(1)(i)
- (iv).
3. Offerings to Certain Existing Shareholders.
An offering by a registrant that satisfies all of the
registrant requirements in General Instruction I.B. is eligible
where the securities are offered and sold solely to existing
security holders as follows:
(a) Rights Offerings. Securities of the registrant to be
offered upon the exercise of outstanding rights granted by the
registrant pro rata to all its existing security holders of the
class to which the rights attach;
(b) DRIPS. Securities offered pursuant to a dividend or
interest reinvestment plan, as defined in Securities Act Rule
405, provided that:
(1) with respect to a dividend reinvestment plan,
securities will be offered only while the registrant has not
discontinued dividend payments on the securities held, and with
respect to an interest reinvestment plan, securities will be
offered only while the registrant has not discontinued payment of
interest on the securities held;
(2) the plan offering being registered on this Form
represents no more than 15% of its public float (as defined in
General Instruction I.C.1.(d)) when aggregated with the dollar
amount of securities registered on this Form B by the registrant
for offerings to its existing shareholders within the 12 months
before the start of and during the offering on this Form. For
purposes of determining the amount of 15% of the registrant's
public float, the registrant should use the amount of public
float reported on its most recently filed Form 10-K;
(3) the plan offering being registered on this Form is
extended only to existing shareholders of the registrant that
have held securities of the registrant continuously for at least
a two-month period prior to becoming a participant; and
(4) the proposed aggregate purchase of securities by an
existing shareholder and its affiliates in the offering
registered on this Form and any other Form B offerings to
existing shareholders made by the issuer during the preceding 12-
month period, does not exceed the greater of:
(i) $10,000; or
(ii) whichever of the following amounts is smaller:
(A) 100% of the aggregate value of the same class(es) of
the issuer's securities owned by the existing shareholder and its
affiliates at the start of the 12-month period; or
(B) 5% of the total dollar amount of securities in the
offering.
(c) Common Stock Holders. Offerings of the registrant's
common stock solely to the registrant's existing common stock
holders, without regard to whether pursuant to an ongoing plan,
provided that:
(1) the offering being registered on this Form represents
no more than 15% of the registrant's public float (as defined in
General Instruction I.C.1.(d)) when aggregated with the dollar
amount of securities registered by the registrant on Form B for
offerings to its existing shareholders within the last 12 months
before the start of and during the offering on this Form. For
purposes of determining the amount of 15% of the registrant's
public float, the registrant should use the amount of public
float reported on its most recently filed Form 10-K;
(2) the offering is extended only to existing shareholders
of the registrant that have held its common stock continuously
for at least a two-month period prior to being offered the
securities; and
(3) the proposed aggregate purchase of securities by an
existing shareholder and its affiliates in the offering
registered on this Form and any other Form B offerings to
existing shareholders made by the issuer during the preceding 12-
month period, does not exceed the greater of:
(i) $10,000; or
(ii) whichever of the following amounts is smaller:
(A) 100% of the aggregate value of the same class(es) of
the issuer's securities owned by the existing shareholder and its
affiliates at the start of the 12-month period; or
(B) 5% of the total dollar amount of securities in the
offering.
(d) Options Holders. Securities of the registrant issued
upon the exercise of its outstanding transferable options;
(e) Holders of Convertible Securities. Securities of the
registrant issued upon conversion of its outstanding convertible
securities; and
(f) Warrants Holders. Securities of the registrant issued
upon the exercise of its outstanding transferable warrants.
(g) Standby Underwriting Agreements. No portion of any
offering registered pursuant to this paragraph 3. may be offered
pursuant to a standby underwriting agreement, or similar
arrangement, in the United States.
4. Offerings of Non-Convertible Investment Grade
Securities.
(a) An offering of non-convertible investment grade
securities of a registrant that satisfies the registrant
requirements in General Instruction I.B. is eligible where
the securities offered are, at the time of sale, investment grade
securities.
(b) For purposes of this Form, a security is "investment
grade" if, at the time of sale:
(1) it is rated by at least one nationally recognized
statistical rating organization ("NRSRO") (as that term is used
in Exchange Act Rule 15c3-1(c)(2)(vi)(F)) in one of the generic
rating categories that signify investment grade; and
- 327 -
(2) no other NRSRO rating the security has placed it in a
category that does not signify investment grade.
5. Offerings by Majority-Owned Subsidiaries.
If a registrant is a majority-owned subsidiary, it may
register offerings of its non-convertible securities on this Form
notwithstanding the fact that it does not satisfy a registrant
eligibility requirement in General Instruction I.B.1., I.B.2.,
I.B.3. or I.B.4., or the public float/ADTV test in General
Instruction I.C.1. if:
(a) its parent satisfies all registrant eligibility
requirements in General Instruction I.B. and the public
float/ADTV test in General Instruction I.C.1.;
(b) the offering satisfies the applicable transaction
requirement; and
(c) its parent fully and unconditionally guarantees the
payment obligations on the securities being offered in the
registered transaction.
Note to General Instruction I.C.5.
The parent must concurrently register its offering of
the guarantee and may register that on the same registration
statement used for the offering of the guaranteed
securities. Rule 3-10 of Regulation S-X specifies the
financial statements of the guarantor and its affiliates
that are required.
6. Market-Making Transactions.
An offering by a registrant that satisfies the registrant
requirements in General Instruction I.B.1. and I.B.6. is eligible
if:
(a) it registers transactions of a broker-dealer that is an
affiliate of the issuer;
(b) the broker-dealer engages in the transactions solely in
its ordinary capacity as a market maker as defined in Exchange
Act Section 3a-38; and
(c) the transactions involve outstanding securities of the
issuer that the broker-dealer has not acquired directly from the
issuer or an affiliate of the issuer or indirectly by arrangement
with the issuer or an affiliate of the issuer.
II. Securities Act Rules and Regulations.
A. You should read Securities Act Rule 172. That rule
describes prospectus delivery obligations that may be applicable
to offerings registered on this Form.
B. You should read the other rules and regulations under
the Securities Act (Part 230 of Title 17 of the Code of Federal
Regulations), particularly Regulation C. That Regulation
contains general requirements regarding the preparation and
filing of registration statements.
C. You should read Rules 101, 201 and 202 of Regulation
S-T. Those rules require registrants subject to the electronic
filing requirements to make all applicable filings through the
Commission's EDGAR system. Those rules also provide that failure
to submit a required electronic filing will result in
ineligibility to use this Form and restrictions on use of
incorporation by reference until the required electronic filing
has been made.
III. Offering Materials.
A. You should read Securities Act Rule 166. That rule
permits an eligible registrant to make offers prior to filing a
Form B registration statement. If you use a prospectus to make
offers in reliance on that rule in the offering period, you must
file that prospectus when required to do so by Securities Act
Rule 425.
B. You should read Securities Act Rule 165. That rule
permits a Form B registrant and those acting on its behalf to use
"free writing" offering materials that do not meet the
requirements of Section 10 of the Securities Act. If you use a
prospectus in reliance on that Rule, you must file it when
required to do so by Securities Act Rule 425.
IV. Foreign Issuer Financial Statements.
A. A foreign issuer must reconcile its financial
statements included in or incorporated into this registration
statement. It must reconcile them to Item 18 of Form 20-F,
except as otherwise permitted in paragraph B of this General
Instruction.
B. A foreign issuer need only reconcile its financial
statements to Item 17 of Form 20-F if:
1. an offering of the registrant's non-convertible
investment grade securities is being registered. See General
Instruction I.C.4. for the definition of "investment grade"
securities;
2. an offering of the registrant's securities upon the
exercise of outstanding rights that it granted pro rata to all
existing security holders of the class of securities to which the
rights attach is being registered;
3. an offering of the registrant's securities pursuant to
a dividend or interest reinvestment plan is being registered;
4. an offering of the registrant's securities upon the
conversion of outstanding convertible securities that it (or its
affiliate) issued is being registered; or
5. an offering of the registrant's securities upon the
exercise of outstanding transferrable warrants that it (or its
affiliate) issued is being registered.
C. Notwithstanding paragraphs B.2., B.3., B.4. and B.5. of
this General Instruction, if securities are to be offered or sold
in a standby underwriting in the United States or by similar
arrangement, the registrant must reconcile to Item 18 of Form
20-F.
V. Requests for Confidential Treatment.
All registration statements on this Form become public upon
filing. Registration statements filed on this Form are not
reviewed by the Commission staff prior to the effective date.
Confidential treatment requests with respect to information that
the registrant is required to file in this Form may, however, be
reviewed by the staff. As a result, when the issuer plans to
have the Form become effective upon filing or fewer than 20 days
thereafter, it must furnish to the staff in advance of filing,
any request it wishes to make for confidential treatment of
information relating to the Form. See Securities Act Rule 406.
The Commission must act on that request before this Form becomes
effective.
VI. Concurrent Registration of Securities under the Exchange
Act.
A. Registration on this Form of a class of securities
under Exchange Act Section 12(b) shall become effective upon the
later of:
1. receipt by the Commission of certification from the
national securities exchange listed on the cover of this Form
that the securities have been approved for listing; or
2. effectiveness of this registration statement.
B. Registration on this Form of a class of securities
under Exchange Act Section 12(g) shall become effective
automatically upon the earlier of (1) 60 days after the initial
filing of this registration statement; or (2) the effectiveness
of this registration statement.
C. If the registrant is required to file an annual report
under Exchange Act Section 15(d) for its last fiscal year, it
must file that annual report within the time period specified in
the appropriate annual report form even if the Exchange Act
registration becomes effective before the annual report is due.
D. The registrant must file at least one complete, signed
copy of the registration statement with each exchange or market
identified on the cover of this Form.
INFORMATION REQUIRED IN THE PROSPECTUS THAT IS
PART OF THE EFFECTIVE REGISTRATION STATEMENT
1. Offering Information.
(a) Disclose the following information, all of which
constitutes the "offering information" for purposes of this Form:
(1) the amount of securities being offered;
(2) material changes in the issuer's affairs since the end
of the latest fiscal year that are not reflected in incorporated
Exchange Act reports;
(3) the information required by Item 504 of Regulation S-K
regarding use of proceeds;
(4) the information required by Item 507 of Regulation S-K
regarding who is selling the securities;
(5) material information about the terms of the securities
offered as required by Item 202 of Regulation S-K, unless capital
stock is to be registered and securities of the same class are
registered pursuant to Section 12 of the Exchange Act;
(6) information about the risks of the offering of the type
described in Item 503 of Regulation S-K;
(7) information about the underwriter's discounts and
commissions required by Item 501(b)(3) of Regulation S-K; and
(8) all information regarding the transaction that is
material, which may include where applicable, but is not limited
to:
(i) information about dilution of the type described in
Item 506 of Regulation S-K;
(ii) information about the determination of the offering
price of the type described in Item 505 of Regulation S-K;
(iii) information about the plan of distribution of the type
described in Item 508 of Regulation S-K;
(iv) ratio of earnings to fixed charges as described in Item
503 of Regulation S-K.
(b) You must include any offering information disclosed by
or on behalf of the issuer during the offering period, other than
information communicated orally.
(c) You may include offering information communicated
orally. You may not include offering information that has not
been disclosed by or on behalf of the issuer during the offering
period.
(d) For purposes of this Form, "offering period" means the
period beginning 15 days in advance of the first offer made in
connection with the offering and ending when the offering is
completed.
2. Incorporation of Previously Filed Information.
State that you are incorporating by reference into the
prospectus that is part of the effective registration statement
the following documents, and list them:
(a) your latest annual report filed in accordance with
Section 13(a) or 15(d) of the Exchange Act that contains audited
financial statements; and
(b) any reports you filed pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year
covered by the annual report you incorporate in this Form;
3. Incorporation of Subsequently Filed Information.
(a) Subject to paragraph (b) of this instruction, state
that all documents you subsequently file pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act during the offering
period are deemed to be incorporated by reference into the
prospectus that is part of the effective registration statement
as of the date you file those documents.
(b) You may incorporate Exchange Act documents filed after
the time of delivery in accordance with Securities Act Rule 172
only if you otherwise disclosed to investors the information
contained in those documents prior to or at the same time as you
delivered.
(c) You may not incorporate Exchange Act documents filed
after the end of the offering period. For offerings done as part
of a delayed shelf under Securities Act Rule 415(a)(1)(x), each
takedown will be treated as having its own offering period. In
each takedown post-effective amendment on this Form you must
state that you are incorporating the documents required by
paragraph 2.(a) of this instruction and list them.
(d) Securities Act Rule 424 is not available in connection
with offerings registered on this Form. Material changes in
disclosure must be reflected in pre-effective amendments, in
post-effective amendments that the registrant may choose to
designate as effective upon filing, or in Exchange Act documents
where permitted to be incorporated by reference.
4. Financial statements.
(a) Foreign registrants: If the financial statements you
incorporate by reference in accordance with paragraph 2 of this
instruction of the Form are not sufficiently current to comply
with Rule 3-19 of Regulation S-X, you must provide financial
statements necessary to comply with that Rule. You must through
one of the following means:
(1) include that information in the prospectus; or
(2) include that information in an amended or a new
Exchange Act report, disclose in the prospectus that you have
done so, incorporate that report by reference into the effective
registration statement, and deliver it together with the
prospectus.
(b) Other financial information. Include the following
information in the prospectus unless incorporated by reference:
(1) financial information required by Rule 3-05 and Article
11 of Regulation S-X with respect to transactions other than the
one being registered;
(2) restated financial statements prepared in accordance
with or reconciled to U.S. GAAP and Regulation S-X where:
(i) after the end of its most recent fiscal year, the
registrant consummated one or more business combinations
accounted for by the pooling of interest method of accounting;
and
(ii) the acquired businesses, considered in the aggregate,
are significant pursuant to Rule 11-01(b) of Regulation S-X;
(3) restated financial statements prepared in accordance
with or reconciled to U.S. GAAP and Regulation S-X, if a change
in accounting principles or correction of an error required a
material retroactive restatement of financial statements; or
(4) any financial information required because of a
material disposition of assets outside the normal course of
business.
Instruction to paragraph 4.
1. Foreign registrants: You should read Rules
4-01(a)(2) and 10-01 of Regulation S-X.
2. Small business issuers: You must provide the
financial information specified in paragraph 4(b) if
required by Item 310 of Regulation S-B.
5. Securities Term Sheet. File as part of the prospectus
in the effective registration statement the term sheet prospectus
that must be delivered to investors under Securities Act Rule
172(a)(2). That term sheet need contain only:
(a) an itemization of the material terms of the securities
in summary format;
(b) the name of any person, other than the issuer, for
whose account securities are offered and a brief identification
of any material relationship such person has (or had within the
past three years) with the issuer or any affiliate of the issuer;
(c) the identity and location of a contact person to whom
questions may be directed; and
(d) the identity and location of a person to whom requests
for documents defining the terms of the securities, which shall
be sent promptly upon request, may be made.
6. Material Changes Term Sheet. File as part of the
prospectus in the effective registration statement any document
describing material changes that must be delivered to investors
under Securities Act Rule 172(e).
7. Undertakings. Set forth the following undertakings in
the prospectus:
(a) that you will provide to each investor, including any
beneficial owner, a copy of any information that has been
incorporated by reference in the prospectus but not delivered, as
follows:
(i) upon written or oral request;
(ii) at no cost to the requester;
(b) that you will send that incorporated information within
one business day of any request for it;
(c) that you will send that incorporated information in a
manner that should result in delivery within three business days;
and
(d) that the name, address, and telephone number to which
the request for that information must be made is: [ fill in
information ].
Notes to Paragraph 6.
(1) This undertaking covers all documents incorporated
by reference through the date of responding to the request.
(2) If you send any of the information that is
incorporated by reference in the prospectus to investors,
you must also send any exhibits that are specifically
incorporated by reference in that information.
8. Aftermarket Delivery. Include the legend required by
Item 502(b) of Regulation S-K.
INFORMATION NOT REQUIRED IN THE PROSPECTUS THAT IS
PART OF THE EFFECTIVE REGISTRATION STATEMENT
1. Exhibits. Provide the exhibits required by Item 601 of
Regulation S-K.
2. Undertakings.
(a) Include the undertakings required by Item 512 of
Regulation S-K.
(b) Aftermarket delivery period. If not contained in the
prospectus that is part of the effective registration statement,
undertake that you will file a post-effective amendment to insert
the date the aftermarket delivery period ends in the legend
required by Item 502(b) of Regulation S-K.
OTHER OFFERING MATERIALS
In addition to the offering information filed in the
prospectus that is part of the effective registration statement,
the registrant, any underwriter, any participating dealer or
anyone acting on behalf of any of them may use free writing
materials. "Free writing" materials for purposes of this Form
consist of all information disclosed by or on behalf of the
issuer during the offering period, other than offering
information, factual business communications as defined in
Securities Act Rule 169 or information disclosed orally. You
must file free writing materials by the time of first sale.
Securities Act Rule 425 describes the procedures for filing those
offering materials with the Commission.
SIGNATURES
The registrant hereby certifies that it meets all of the
requirements for filing on Form B. The registrant also certifies
that it has duly caused and authorized the undersigned to sign
this registration statement on its behalf. The undersigned
certifies that he/she has read this registration statement and to
his/her knowledge the registration statement does not contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading.
(Registrant)..........................................
By (Signature and Title)..........................................
Date.....................
The following persons certify that they have read this
registration statement and to their knowledge the registration
statement does not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The
following persons also certify that they are signing below on
behalf of the registrant and in the capacities and on the dates
indicated.
By (Signature and Title)..........................................
Date.....................
By (Signature and Title)..........................................
Date.....................
Signature Instructions.
1. The following persons, or persons performing similar
functions, must sign the registration statement:
(a) the registrant;
(b) its principal executive officer or officers;
(c) its principal financial officer;
(d) its controller or principal accounting officer; and
(e) at least the majority of its board of directors.
2. Where the registrant is a foreign issuer, its
authorized representative in the United States also must sign the
registration statement.
3. Where the registrant is a limited partnership, its
general partner must sign. Where the general partner is a
corporation, the majority of the board of directors of the
corporate general partner must sign the registration statement.
4. Type or print the name and title of each person who
signs the registration statement beneath the person's signature.
Any person who occupies more than one of the specified positions
must indicate each capacity in which that person signs the
registration statement. See Securities Act Rule 402 concerning
manual signatures and Item 601 of Regulation S-K concerning
signatures pursuant to powers of attorney.
5. Where eligibility for use of the Form is based on the
assignment of a security rating, the registrant may sign the
registration statement notwithstanding the fact that the security
rating has not been assigned by the filing date, provided that
the registrant reasonably believes, and so states in the
registration statement, that the security rating requirement will
be met by the time of sale.
6. Rule 415(a)(1)(x) offerings.
(a) All persons who sign this registration statement will
be deemed by doing so to grant an authorized representative of
the registrant the power to sign any post-effective amendment to
the registration statement on their behalf if:
(i) the registration statement relates to an offering
pursuant to Rule 415(a)(1)(x);
(ii) a power of attorney has not been granted by the person
in connection with signatures of post-effective amendments; and
(iii) the post-effective amendment does not provide
otherwise.
(b) If, at the time of filing a post-effective amendment,
any person who signed the effective registration statement no
longer acts in the capacity in which he or she signed it, the
person who currently acts in that capacity must sign the
post-effective amendment.
- 328 -
92. By adding ง 239.6 and Form C to read as follows:
ง 239.6 Form C, for registration under the Securities Act of
1933 of securities issued in business combination
transactions, and for optional concurrent registration
under the Securities Exchange Act of 1934.
(a) A registrant other than a small business issuer must
use this Form to register an offering under the Securities Act of
1933 ("Securities Act") that is:
(1) A transaction of the type specified in paragraph (a) of
ง 230.145 of this chapter;
(2) A merger in which the applicable law would not require
the solicitation of the votes or consents of all of the security
holders of the company being acquired;
(3) An exchange offer for securities of the issuer or
another entity;
(4) A public reoffering or resale of any such securities
acquired pursuant to this registration statement; or
(5) More than one of the kinds of transactions listed in
paragraphs (a)(1) through (a)(4) of this section registered on
one registration statement.
(b) A registrant also may use this Form to register
concurrently under Section 12(b) or 12(g) of the Securities
Exchange Act of 1934 ("Exchange Act"). It may register under the
Exchange Act any class of securities that are the subject of the
offering it is registering under the Securities Act. To
register, the registrant must check the appropriate box(es) on
the cover page of this Form and identify which class(es) of
securities it is registering under Section 12(b) or 12(g) of the
Exchange Act.
Note: The text of Form C will not appear in the Code of
Federal Regulations.
U.S. Securities and Exchange Commission
Washington, D.C. 20549
FORM C
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
[AND OPTIONAL REGISTRATION PURSUANT TO
SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934]
_________________________________________________________
(Exact name of Registrant as specified in its charter)
________________________________________________________________
(Translation of Registrant's name into English, if applicable)
_______________________________________________________________
(State or other jurisdiction of incorporation or organization)
______________________________________________
(I.R.S. Employer Identification Number)
________________________________________________________________________
(Address and telephone number of Registrant's principal executive
offices)
________________________________________________________________________
(Name, address and telephone number of Registrant's agent for
service)
________________________________________________________________________
(Web Site Address, if any)
________________________________________________________________________
(E-mail Address, if any)
* * * * *
Approximate date of commencement of sales
__________________________
If you are a foreign private issuer as defined in Securities
Act Rule 405, check the following box. [ ]
If you are not a foreign private issuer as defined in
Securities Act Rule 405, check the following box. [ ]
If you are filing this Form to register additional
securities for an offering in accordance with Securities Act Rule
462(b), check the following box and list the Securities Act
registration number of the earlier effective registration
statement for the same offering. [ ] _____________
If this Form is a post-effective amendment filed in
accordance with Securities Act Rule 462(c) to re-start the
15-business-day period during which pricing must occur under
Securities Act Rule 430A(a)(3) or to reflect a non-substantive
change from, or addition to, the prospectus, check the following
box and list the Securities Act registration number of the
earlier effective registration statement for the same offering.
[ ] _____________
- 329 -
If this Form is a post-effective amendment filed in
accordance with Securities Act Rule 462(d) solely to add
exhibits, check the following box and list the Securities Act
registration number of the earlier effective registration
statement for the same offering. [ ] _____________
If you are using this Form to register concurrently under
Section 12(b) or 12(g) of the Exchange Act any class of
securities that are the subject of the offering you are
registering under the Securities Act, check the appropriate box
and provide the information indicated below:
[ ] Securities being registered pursuant to Exchange Act Section
12(b):
Title of each class: Name of exchange on which
listed:
_______________________________
_______________________________
_______________________________
_______________________________
[ ] Securities being registered pursuant to Exchange Act Section
12(g):
Title of each class: Name of market on which
quoted:
_______________________________
_______________________________
_______________________________
_______________________________
CALCULATION OF REGISTRATION FEE
-----------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
each offering aggregate Amount of
class of Amount to price per offering
registration
securities be unit price fee
to be registered
registered
Notes to the Fee Table:
1. Set forth any explanatory details relating to the fee table
in footnotes to the table.
2. If the basis for calculating the fee is not evident from the
information presented in this table, refer to the applicable
provisions of Securities Act Rule 457 in a footnote.
3. If the fee is calculated under Rule 457(o), the "Amount to
be registered" and the "Proposed maximum offering price per
unit" need not appear in this table.
4. If any of the securities registered are not sold in
connection with this offering, the registrant (or a
qualifying wholly-owned subsidiary) may use the dollar
amount of the fee paid with respect to the unsold securities
to offset the total fee due on its subsequent registration
statement. See Rule 457(p). When offsetting any part of
the fee under Rule 457(p), the registrant must state the
dollar amount being offset in a footnote to the fee table
and must identify the file number of the registration
statement and the amount and class of securities in
connection with which the offsetting fee was previously
paid. Use of Rule 457(p) to offset any fee automatically
deregisters the securities in connection with which the fee
was previously paid.
GENERAL INSTRUCTIONS
I. Rules as to Use of Form C.
A. A registrant other than a small business issuer must
use this Form to register an offering under the Securities Act
that is:
1. a transaction of the type specified in Securities Act
Rule 145(a);
2. a merger in which the applicable law would not require
the solicitation of the votes or consents of all of the security
holders of the company being acquired;
3. an exchange offer for securities of the issuer or
another entity;
4. a public reoffering or resale of any securities
acquired pursuant to this registration statement; or
5. more than one of the kinds of transactions listed in
paragraphs A.1. through A.4. of this instruction registered on
one registration statement.
B. A registrant also may use this Form to register
concurrently under Section 12(b) or 12(g) of the Exchange Act.
It may register any class of securities that are the subject of
the offering it is registering under the Securities Act. To
register, the registrant must check the appropriate box(es) on
the cover page of this Form and identify which class(es) of
securities it is registering under Section 12(b) or 12(g).
C. You may not use this Form if you are a registered
investment company or a business development company as defined
in Section 2(a)(48) of the Investment Company Act of 1940.
D. You may not use this Form if you are a "small business
issuer" as defined in Securities Act Rule 405 (ง 230.405). Small
business issuers use Form SB-3 to register the transactions
listed in General Instruction I.A.
II. Registrant Information.
Provide information about the registrant as follows:
A. Form B Registrants. If the registrant meets the
requirements of General Instructions I.B. and I.C.1. of Form B,
it must comply with:
1. Items 11 and 12 of this Form;
2. Items 13 and 14 of this Form; or
3. Item 15 of this Form.
B. Seasoned Form A Registrants. If the registrant meets
the requirements of General Instruction II. of Form A for
incorporation by reference, it must comply with:
1. Items 13 and 14 of this Form; or
2. Item 15 of this Form.
C. All Other Registrants. All other registrants must
comply with Item 15 of this Form.
III. Information With Respect to the Company Being Acquired.
Provide information about the company being acquired (which
includes any entity whose securities are to be exchanged for
securities of the registrant) as follows:
A. Form B Companies. If the company being acquired meets
the requirements of General Instructions I.B. and I.C.1. of Form
B, provide information in accordance with:
1. Item 16 of this Form;
2. Item 17 of this Form; or
3. Item 18 of this Form.
B. Seasoned Form A Companies. If the company being
acquired meets the requirements of General Instruction II. of
Form A for incorporation by reference, provide information in
accordance with:
1. Item 17 of this Form; or
2. Item 18 of this Form.
C. All Other (Non-Small Business) Companies. For all
other companies being acquired, provide information in accordance
with Item 18 of this Form.
D. Transitional Small Business Issuer Companies. If the
company being acquired is a transitional small business issuer
that meets the requirements of II.A.1. of Form SB-3, provide
information in accordance with Item 19 of this Form.
E. Seasoned Form SB-2 Companies. If the company being
acquired meets the requirements of General Instruction E.1. of
Form SB-2, provide information in accordance with:
1. Item 20 of this Form; or
2. Item 21 of this Form.
F. All Other Small Business Issuers. All other companies
being acquired that are small business issuers, including
transitional small business issuers that choose to comply with
this requirement, provide information in accordance with Item 21
of this Form.
IV. Securities Act Rules and Regulations.
You should read the rules and regulations under the
Securities Act (Part 230 of Title 17 of the Code of Federal
Regulations), particularly Regulation C. That Regulation
contains general requirements regarding the preparation and
filing of registration statements.
V. Free Writing Prospectus Information.
A. You should read Securities Act Rule 166. That Rule
permits a registrant to make offers prior to filing a Form C
registration statement. If you use a prospectus in reliance on
that Rule, you must file that prospectus when required to do so
by Securities Act Rule 425.
B. You should read Securities Act Rule 165. That Rule
permits a Form C registrant and those acting on its behalf to use
"free writing" offering materials that do not meet the
requirements of Section 10 of the Securities Act. If you use a
prospectus in reliance on Rule 165, you must file it when
required to do so by Securities Act Rule 425.
- 330 -
VI. U.S. and Foreign Registrants.
A. Definitions.
1. As used in this Form, "U.S. registrant" includes all
registrants other than foreign governments and foreign private
issuers. "U.S. company being acquired" includes all entities
being acquired other than foreign governments and foreign private
issuers.
2. As used in this Form, "foreign registrant" includes
only registrants that are foreign private issuers. "Foreign
company being acquired" includes only entities being acquired
that are foreign private issuers.
3. "Foreign private issuer" is defined in Rule 405 of
Regulation C.
B. Information Required.
1. U.S. registrants must provide all information required
by the Items of this Form except where the Item expressly
identifies the requirement as applying only to foreign
registrants or foreign companies being acquired.
2. Foreign registrants must provide all information
required by the Items of this Form except where the Item
expressly identifies the requirement as applying only to U.S.
registrants or U.S. companies being acquired.
VII. Interaction With the Exchange Act.
A. If Regulation 14A or 14C under the Exchange Act applies
to the transaction registered on this Form:
1. the prospectus may be in the form of a proxy statement
or information statement;
2. the prospectus must contain the information required by
this Form in lieu of that required by Schedule 14A or 14C; and
3. material filed as a part of the registration statement
shall be deemed filed also for purposes of Regulation 14A or 14C,
as applicable.
B. If neither Regulation 14A nor 14C applies to the
transaction registered on this Form, any proxy or information
statement material sent to security holders must be filed prior
to use as a part of the effective registration statement.
C. If you are registering an offering that is subject to
Section 13(e), 14(d) or 14(e) of the Exchange Act, the provisions
of those Sections and the rules and regulations thereunder shall
apply to the transaction in addition to the provisions of this
Form.
VIII. Business Combinations Effected on a Delayed Basis.
A. A registrant may use this Form to register a
transaction that will be effected on a delayed basis under
Securities Act Rule 415(a)(1)(viii). In that event, it need only
furnish information about the contemplated transaction and the
company being acquired to the extent practicable as of the
effective date of the registration statement. It must file a
post-effective amendment to include the remaining required
information about the transaction and the company being acquired
in the registration statement.
B. A registrant may use this Form to register a
transaction that would qualify for an exemption from Section 5 of
the Securities Act but for the proximity in time of other similar
transactions. In that event, the registrant need only file a
prospectus supplement to provide the required information about
the transaction and the company being acquired.
C. Unallocated Shelf. The registrant may register two or
more classes of securities on this Form that it will offer on a
delayed or continuous basis pursuant to Rule 415(a)(1)(viii). If
the registrant meets the requirements of General Instruction I.B.
of Form B and General Instruction I.C.1., I.C.2. or I.C.4. of
Form B, it need only identify on an aggregate basis (and not by
class) in the "Calculation of Registration Fee" table:
1. the amount to be registered;
2. the proposed maximum offering price per unit; and
3. the proposed maximum aggregate offering price.
IX. Roll-Up Transactions.
A. Roll-up transactions (as defined in Item 901(c) of
Regulation S-K) may be registered on this Form. In that event,
the registrant must comply with the disclosure requirements of
Subpart 900 of Regulation S-K. To the extent that the disclosure
requirements of Subpart 900 are inconsistent with those in this
Form, the requirements of Subpart 900 control.
B. If the registrant registers a roll-up transaction on
this Form, special prospectus delivery requirements apply. See
Securities Act Rule 172(e).
C. The proxy rules and Exchange Act Rule 14e-7 of the
tender offer rules contain provisions specifically applicable to
roll-up transactions. Those provisions apply whether or not the
entities involved have registered securities pursuant to Section
12 of the Exchange Act.
X. Registration of Additional Securities.
A. Under certain circumstances, the registrant may
increase the size of an offering after the effective date through
filing a short-form registration statement under Securities Act
Rule 462(b). A Rule 462(b) registration statement may include
only the following:
1. the facing page;
2. a statement that the earlier registration statement,
identified by file number, is incorporated by reference;
3. any required opinions and consents;
4. the signature page; and
5. any price-related information omitted from the earlier
registration statement in reliance on Securities Act Rule 430A,
if the registrant so chooses.
B. The information contained in a Rule 462(b) registration
statement is deemed to be a part of the earlier effective
registration statement as of the date of effectiveness of the
Rule 462(b) registration statement.
C. The registrant may incorporate by reference from the
earlier registration statement any opinion or consent required in
the Rule 462(b) registration statement if:
1. the opinion or consent expressly allows that
incorporation; and
2. the opinion or consent also relates to the Rule 462(b)
registration statement.
Note to General Instruction X.
You should read Securities Act Rule 411(c) regarding
incorporation by reference of exhibits and Securities Act
Rule 439(b) regarding incorporation by reference of
consents.
XI. Concurrent Registration of Securities under the Exchange
Act.
A. Registration on this Form of a class of securities
under Exchange Act Section 12(b) shall become effective upon the
later of:
1. receipt by the Commission of certification from the
national securities exchange listed on the cover of this Form
that the securities have been approved for listing; or
2. effectiveness of this registration statement.
B. Registration on this Form of a class of securities
under Exchange Act Section 12(g) shall become effective upon the
effectiveness of this registration statement.
C. If the registrant is required to file an annual report
under Exchange Act Section 15(d) for its last fiscal year, it
must file that annual report within the time period specified in
the appropriate annual report form even if the Exchange Act
registration becomes effective before the annual report is due.
D. The registrant must file at least one complete, signed
copy of the registration statement with each exchange or market
identified on the cover to this Form.
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
A. INFORMATION ABOUT THE TRANSACTION
Item 1. Front Cover Page of the Registration Statement and
Outside Front Cover Page of the Prospectus.
Provide the information required by Item 501 of Regulation
S-K.
Item 2. Inside Front and Outside Back Cover Pages of
Prospectus.
(a) Provide the information required by Item 502 of
Regulation S-K.
(b) If you incorporate information by reference into the
prospectus, state on the inside front cover page:
(1) that the prospectus incorporates by reference important
business and financial information about the company that is not
delivered with it;
(2) that this information is available without charge to
any person, including any beneficial owner, upon written or oral
request;
(3) that you will send those incorporated documents in a
manner that should result in delivery within three business days
of the request;
(4) the name, address and telephone number to which persons
must make this request; and
(5) that to obtain timely delivery, persons must request
this information no later than ____ [specify date five business
days before the date on which the final investment decision must
be made]. You must highlight this statement by print type or
otherwise.
Instruction to Item 2.
1. The undertaking covers all documents incorporated by
reference through the date of responding to the request.
2. If you send any of the information that is
incorporated by reference in the prospectus, you also must
send any exhibits that are specifically incorporated by
reference in that information.
3. If information is incorporated by reference in any
document you are sending upon request, you also must send
the information incorporated by reference.
Item 3. Prospectus Summary and Other Information.
In the forepart of the prospectus, provide a summary of the
information contained in the prospectus as described in Item
503(a) of Regulation S-K and the following information:
(a) Contact information. The name, complete mailing
address and telephone number of the principal executive offices
of the registrant and the company being acquired;
(b) Risk factors.
(1) The information required by Item 503(c) of Regulation
S-K;
(2) If the registrant or the company to be acquired is a
real estate entity as defined in Item 1101 of Regulation S-K,
provide the information required by Item 1103 of Regulation S-K
in addition to the information required by paragraph (b)(1) of
this Item.
(c) Ratio of earnings to fixed charges. The information
required by Item 503(d) of Regulation S-K;
(d) Business conducted. A brief description of the general
nature of the business conducted by the registrant and by the
company being acquired;
(e) Transaction being registered. A brief description of
the transaction in which the securities being registered will be
offered;
(f) Selected financial data. The selected financial data
required by Item 301 of Regulation S-K for U.S. registrants and
U.S. companies being acquired and Item 8 of Form 20-F for foreign
registrants and foreign companies being acquired. To the extent
this information is required to be presented in the prospectus
pursuant to other Items of this Form, it need not be presented
pursuant to this Item;
(g) Pro forma selected financial data. If material, the
information required by Item 301 of Regulation S-K for U.S.
registrants and Item 8 of Form 20-F for foreign registrants,
showing the pro forma effect of the transaction. To the extent
the information is required to be presented in the prospectus
pursuant to other Items of this Form, it need not be presented
pursuant to this Item;
(h) Pro forma information. In a table designed to
facilitate comparison, historical and pro forma per share data of
the registrant and historical and equivalent pro forma per share
data of the company being acquired for the following items:
(1) book value per share as of the date financial data is
presented pursuant to Item 301 of Regulation S-K for U.S.
registrants and U.S. companies being acquired and Item 8 of Form
20-F for foreign registrants and foreign companies being
acquired;
(2) cash dividends declared per share for the periods for
which financial data is presented pursuant to Item 301 of
Regulation S-K for U.S. registrants and U.S. companies being
acquired and Item 8 of Form 20-F for foreign registrants and
foreign companies being acquired; and
(3) income (loss) per share from continuing operations for
the periods for which financial data is presented pursuant to
Item 301 of Regulation S-K for U.S. registrants and U.S.
companies being acquired and Item 8 of Form 20-F for foreign
registrants and foreign companies being acquired;
Instructions to Item 3(g) and 3(h).
1. For a business combination accounted for as a
purchase, present the financial information required by
paragraphs (g) and (h) only for the most recent fiscal year
and interim period. For a business combination accounted
for as a pooling, present the financial information required
by paragraphs (g) and (h) (except for information with
regard to book value) for the most recent three fiscal years
and interim period. For a business combination accounted
for as a pooling, present the book value information as of
the end of the most recent fiscal year and interim period.
2. Calculate the equivalent pro forma per share amounts
for one share of the company being acquired by multiplying
the exchange ratio times each of:
(a) the pro forma income (loss) per share before
non-recurring charges or credits directly attributable to the
transaction;
(b) the pro forma book value per share; and
(c) the pro forma dividends per share of the registrant.
3. Foreign Private Issuers: Instruction 7 to Item 8 of
Form 20-F is applicable to the financial information presented
hereunder to the extent that this Form requires reconciliation of
financial statements of foreign private issuers to U.S. GAAP and
Regulation S-X.
(i) Market value of securities. In a table designed to
facilitate comparison, the market value of securities of the
company being acquired (on a historical and equivalent per share
basis) and the market value of the securities of the registrant
(on a historical basis) as of the day before the date the public
announcement of the proposed transaction. If no such public
announcement was made, as of the day before the date the
agreement with respect to the transaction was entered into;
(j) Affiliates' voting shares. With respect to the
registrant and the company being acquired, a brief statement
comparing the percentage of outstanding shares entitled to vote
held by directors, executive officers and their affiliates.
State the vote required for approval of the proposed transaction;
(k) Regulatory approval. A statement as to whether any
regulatory requirements must be complied with or approval must be
obtained in connection with the transaction, and if so, the
status of such compliance or approval;
(l) Dissenters' rights. A statement about whether or not
dissenters' rights of appraisal exist, including a
cross-reference to the information provided pursuant to Item 21
or 22 of this Form; and
(m) Tax consequences. A brief statement about the tax
consequences of the transaction or, if appropriate, a
cross-reference to the information provided pursuant to Item 4 of
this Form.
Item 4. Terms of the Transaction.
(a) Provide a summary of the material features of the
proposed transaction. The summary shall include, where
applicable:
(1) the information required by Item 1004(a) of Regulation
M-A (ง229.1004(a) of this chapter); and
(2) where not organized in the same country, a discussion
of any material differences in the corporate laws applicable to
the company being acquired and to the surviving entity. The
discussion should include, but not necessarily be limited to:
corporate governance, board structure, quorums, class action
suits, shareholder derivative suits, rights to inspect corporate
books and records, rights to inspect the shareholder list and
rights of directors and officers to obtain indemnification from
the company.
(b) If a report, opinion or appraisal materially relating
to the transaction has been received from an outside party and
such report, opinion or appraisal is referred to in the
prospectus, provide the information called for by Item 1015(b) of
Regulation S-K (ง 229.1015(b) of this chapter).
(c) Incorporate the acquisition agreement by reference into
the prospectus.
Item 5. Pro Forma Financial Information.
Provide the financial information required by Article 11 of
Regulation S-X with respect to this transaction.
Instructions.
1. Present any Article 11 information required by the
other Items of this Form (where not incorporated by
reference) together with the information provided under this
Item. In presenting this information, you must clearly
distinguish between this transaction and any other one.
2. You need only show the pro forma effect that the
registered transaction has on any pro forma financial
information that:
(i) is incorporated by reference; and
(ii) reflects all prior transactions.
Item 6. Material Contacts with the Company Being Acquired.
Provide the information required by Items 1005(b) and
1011(a) of Regulation M-A for the registrant or its affiliates
and the company being acquired or its affiliates. The
information provided only need cover the periods for which
financial statements are presented or incorporated by reference
into this Form.
Item 7. Real Estate Entities.
If the registrant or the company to be acquired is a real
estate entity as defined in Item 1101 of Regulation S-K, provide
the information required by Item 1104 and Items 1108 through 1112
of Regulation S-K.
Item 8. Additional Information Required for Reoffering by
Persons Deemed to be Underwriters.
If any person who is deemed to be an underwriter of the
securities is reoffering any of the securities to the public,
provide the following information in the prospectus prior to its
use for the reoffer:
(a) The information required by Item 507 of Regulation S-K;
(b) Information with respect to the consummation of the
transaction in which the securities were acquired; and
(c) A description of any material change in the
registrant's affairs that occurred after the transaction in which
the securities were acquired.
Note to Item 8.
You should read Item 512(g) of Regulation S-K regarding
undertakings required in reoffering registration statements.
Item 9. Interests of Named Experts and Counsel.
Provide the information required by Item 509 of Regulation
S-K.
Item 10. Disclosure of Commission Position on Indemnification
for Securities Act Liabilities.
Provide the information required by Item 510 of Regulation
S-K.
B. INFORMATION ABOUT THE REGISTRANT
Item 11. Information Required for Form B Companies.
If the registrant meets the requirements of General
Instructions I.B. and I.C.1. of Form B and elects to comply with
this Item and Item 12 (instead of Items 13 and 14 or Item 15), it
must provide the following information:
(a) Material changes. Describe any material change in the
registrant's affairs that:
(1) has occurred since the end of the latest fiscal year
for which it incorporates by reference audited financial
statements in accordance with Item 12 of this Form; and
(2) the registrant has not described in an Exchange Act
report.
(b) Current financial statements. Foreign registrants: If
the financial statements you incorporate by reference in
accordance with Item 12 of this Form are not sufficiently current
to comply with Rule 3-19 of Regulation S-X, you must provide
financial statements necessary to comply with that Rule. You
must through one of the following means:
(1) include that information in the prospectus; or
(2) include that information in an amended or a newly filed
Exchange Act report, disclose in the prospectus that you have
done so, incorporate that report by reference into the effective
registration statement, and deliver it together with the
prospectus.
(c) Other financial information. Include the following
information in the prospectus unless incorporated by reference:
(1) financial information required by Rule 3-05 and Article
11 of Regulation S-X with respect to transactions other than the
one being registered;
(2) restated financial statements prepared in accordance
with or reconciled to U.S. GAAP and Regulation S-X where:
(i) after the end of its most recent fiscal year, the
registrant consummated one or more business combinations
accounted for by the pooling of interests method of accounting;
and
(ii) the acquired businesses, considered in the aggregate,
are significant pursuant to Rule 11-01(b) of Regulation S-X;
(3) restated financial statements prepared in accordance
with or reconciled to U.S. GAAP and Regulation S-X, if a change
in accounting principles or correction of an error requires a
material retroactive restatement of financial statements; or
(4) any financial information required because of a
material disposition of assets outside the normal course of
business.
Instruction.
Foreign registrants: You should read Rules 4-01(a)(2)
and 10-01 of Regulation S-X.
Item 12. Incorporation of Certain Information by Reference for
Form B Companies.
If the registrant provides information in accordance with
Item 11 of this Form:
(a) It must incorporate by reference into the prospectus
that is part of the effective registration statement the
documents listed below:
(1) its latest annual report filed in accordance with
Section 13(a) or 15(d) of the Exchange Act that contains audited
financial statements;
(2) any reports it filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by
its annual report incorporated in this Form; and
(3) the description of capital stock contained in an
Exchange Act registration statement, including any amendments or
reports updating such description, if:
(i) capital stock is being registered and securities of the
same class are registered under Section 12 of the Exchange Act;
and
(ii) such stock is listed for trading or admitted to
unlisted trading privileges on a national securities exchange; or
(iii) bid and offer quotations for such stock are reported
in an automated quotations system operated by a national
securities association.
Instructions to Item 12(a).
1. List in the prospectus that is part of the effective
registration statement all documents that are filed prior to
effectiveness and incorporated by reference.
2. Notwithstanding Instruction 2 to Item 404 of
Regulation S-K, you need only provide Item 404 information
covering one year if you incorporate that information by
reference pursuant to this Item.
3. Foreign registrants: All annual reports or
registration statements you incorporate by reference
pursuant to this Item must contain financial statements that
comply with Item 18 of Form 20-F except that your financial
statements may comply with Item 17 of Form 20-F if the only
securities you are registering are investment grade
securities.
A security is "investment grade" if, at the time of sale:
(a) it is rated by at least one nationally recognized
statistical rating organization ("NRSRO") (as that term is used
in Exchange Act Rule 15c3-1(c)(2)(vi)(F)) in one of the generic
rating categories that signify investment grade; and
(b) no other NRSRO rating the security has placed it in a
category that does not signify investment grade.
4. Foreign registrants: You may incorporate by reference
any Form 6-K satisfying the requirements of Form C. See Rules
4-01(a)(2) and 10-01 of Regulation S-X and Item 18 of Form 20-F.
(b) It must state in the prospectus that all documents it
files pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act are deemed to be incorporated by reference into the
prospectus that is part of the effective registration statement
if filed after effectiveness and before the latest of the
following that is applicable:
(1) the date of any meeting of security holders of either
the registrant or the company being acquired relating to the
transaction described in the prospectus;
(2) the date on which the transaction described in the
prospectus is consummated, if no meeting of security holders of
either the registrant or the company being acquired is held;
(3) the date of the termination of any exchange offer
registered on this registration statement; or
(4) the date of termination of any reoffering or resale of
securities registered on this registration statement.
Note to Item 12(b).
You should read Securities Act Rule 439 regarding
consent to the use of material incorporated by reference.
(c) In the prospectus, you must:
(1) identify the reports and other information that you
file with the Commission;
(2) state that the public:
(i) may read and copy any materials you file with the
Commission at the Commission's Public Reference Room at 450 Fifth
Street, N.W., Washington, D.C. 20549; and
(ii) may obtain information on the operation of the Public
Reference Room by calling the Commission at 1-800-SEC-0330; and
(3) if you are an electronic filer, state that the
Commission maintains an Internet web site that contains reports,
proxy and information statements, and other information regarding
issuers that file electronically with the Commission and state
the address of that site (http://www.sec.gov). You are
encouraged to give your Internet web site address, if available.
Item 13. Information Required for Seasoned Form A Companies.
If the registrant meets the requirements of General
Instruction II. of Form A and elects to comply with this Item and
Item 14 (instead of Item 15), it must do the following:
(a) Annual report. Deliver together with the prospectus a
copy of its latest annual report filed pursuant to Section 13(a)
or 15(d) of the Exchange Act;
(b) Quarterly information. U.S. registrants: provide the
information required by Part I of Form 10-Q or Form 10-QSB for
the most recent fiscal quarter following the fiscal year covered
by the annual report delivered pursuant to this Item. The
registrant must either:
(1) include that information in the prospectus; or
(2) deliver together with the prospectus a copy of its
latest Form 10-Q or Form 10-QSB;
Notes to Item 13(a) and 13(b).
1. Indicate in the prospectus that it is accompanied by
the reports that the registrant sends pursuant to paragraphs
(a) or (b) of this Item.
2. If the registrant incorporates by reference portions
of any document into a report it delivers under this Item,
it also must deliver the incorporated portions with it.
3. If the registrant's Form 10-Q or Form 10-QSB for the
most recent quarter is not due to be filed prior to the
effective date of the registration statement, it may provide
the information for the previous fiscal quarter to satisfy
Item 13(b). For this purpose, the due date is calculated
without the extension provided by Exchange Act Rule 12b-25.
(c) Current financial statements. Foreign registrants: If
the financial statements you incorporate by reference in
accordance with Item 14 are not sufficiently current to comply
with Rule 3-19 of Regulation S-X, provide financial statements
necessary to comply with that Rule. You must do so by one of the
following means:
(1) include that information in the prospectus; or
(2) inclose that information in an amended or newly filed
Exchange Act report, disclose in the prospectus that you have
done so, incorporate that report by reference into the effective
registration statement, and deliver it together with the
prospectus.
(d) Other financial information. If not reflected in the
registrant's annual report delivered to investors in accordance
with paragraph (a) of this Item, provide:
(1) financial information required by Rule 3-05 and Article
11 of Regulation S-X with respect to transactions other than the
one being registered;
(2) restated financial statements prepared in accordance
with or reconciled to U.S. GAAP and Regulation S-X where:
(i) after the end of its most recent fiscal year, the
registrant consummated one or more business combinations
accounted for by the pooling of interests method of accounting;
and
(ii) the acquired businesses, considered in the aggregate,
are significant pursuant to Rule 11-01(b) of Regulation S-X;
(3) restated financial statements prepared in accordance
with or reconciled to U.S. GAAP and Regulation S-X, if a change
in accounting principles or correction of an error requires a
material retroactive restatement of financial statements; and
(4) any financial information required because of a
material disposition of assets outside the normal course of
business.
Instructions to Item 13(d).
1. You may incorporate by reference into the effective
registration statement the information required by paragraph
(d) of Item 13. If you incorporate it, you must deliver it
together with the prospectus.
2. Foreign registrants: You should read Rules
4-01(a)(2) and 10-01 of Regulation S-X.
(e) Material changes. Describe any material change in the
registrant's affairs that:
(1) has occurred since the end of the latest fiscal year
for which it incorporates by reference audited financial
statements in accordance with Item 14; and
(2) the registrant has not described in an Exchange Act
report delivered with the prospectus in accordance with this
Item;
Instructions to Item 13.
1. The registrant must deliver information required by
this Item with the first prospectus it delivers. It need
not deliver that information with any subsequent prospectus
sent to the same person.
2. Any reports the registrant delivers together with
the prospectus pursuant to this Item must be delivered
without charge to the investor.
Item 14. Incorporation by Reference by Seasoned Form A
Companies.
If the registrant provides information in accordance with
Item 13 of this Form:
(a) It must incorporate by reference into the prospectus
that is part of the effective registration statement:
(1) its latest annual report filed in accordance with
Section 13(a) or 15(d) of the Exchange Act that contains audited
financial statements;
Note to Item 14(a)(1).
The registrant may satisfy this obligation to
incorporate its annual report by incorporating a Form 40-F
if it meets the requirements of General Instruction A.(2) of
Form 40-F.
(2) any reports it filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by
its annual report incorporated in this Form.
Instructions to Item 14(a).
1. List in the prospectus that is part of the effective
registration statement all documents that are filed prior to
effectiveness and incorporated by reference.
2. Notwithstanding Instruction 2 to Item 404 of
Regulation S-K, you need only provide Item 404 information
covering one year if you incorporate that information by
reference pursuant to this Item.
3. Foreign registrants: All annual reports you
incorporate by reference pursuant to this Item must contain
financial statements that comply with Item 18 of Form 20-F,
except that your financial statements may comply with Item
17 of Form 20-F if the only securities you are registering
are investment grade securities as defined in Instruction 3
of Instructions to Item 12(a).
4. Foreign registrants may incorporate by reference and
deliver with the prospectus any Exchange Act report
containing information meeting the requirements of Form A.
See Rules 4-01(a)(2) and 10-01 of Regulation S-X and Item 18
of Form 20-F.
5. You should read Rule 439 regarding consent to the
use of material incorporated by reference.
(b) In the prospectus, you must:
(1) identify the reports and other information that you
file with the Commission;
(2) state that the public;
(i) may read and copy any materials you file with the
Commission at the Commission's Public Reference Room at 450 Fifth
Street, N.W., Washington, D.C. 20549; and
(ii) may obtain information on the operation of the Public
Reference Room by calling the Commission at 1-800-SEC-0330; and
(3) if you are an electronic filer, state that the
Commission maintains an Internet web site that contains reports,
proxy and information statements, and other information regarding
issuers that file electronically with the Commission and state
the address of that site (http://www.sec.gov). You are
encouraged to give your Internet web site address, if available.
Item 15. Information Required for All Other Companies.
Any registrant that does not provide information in
accordance with Items 11 and 12 or Items 13 and 14 must provide
the following information:
(a) Description of Business.
(i) U.S. registrants: Item 101 of Regulation S-K.
(ii) Foreign registrants: Item 1 of Form 20-F.
(b) Description of Property.
(i) U.S. registrants: Item 102 of Regulation S-K.
(ii) Foreign registrants: Item 2 of Form 20-F.
(iii) If the registrant is a real estate entity as defined
in Item 1101 of Regulation S-K, provide the information required
by Items 1105, 1106 and 1107 of Regulation S-K in lieu of the
information required by paragraph (b)(i) or (b)(ii) of this Item.
(c) Legal Proceedings.
(i) U.S. registrants: Item 103 of Regulation S-K.
(ii) Foreign registrants: Item 3 of Form 20-F.
(d) Common Equity Securities. If the registrant is issuing
common equity securities:
(i) U.S. registrants: Item 201 of Regulation S-K.
(ii) Foreign registrants: Item 5 of Form 20-F. You must
update such information to cover any subsequent interim periods
for which financial statements are required pursuant to Rule 3-19
of Regulation S-X.
(e) Financial Statements.
(i) U.S. registrants: Regulation S-X.
(ii) Foreign registrants: Item 18 of Form 20-F except if
you are registering only investment grade securities as defined
in the second instruction of Instructions to Item 11(a) of this
Form. In that event, you may comply with Item 17 of Form 20-F
instead of Item 18.
Instructions to Item 15(e).
1. File schedules required by Regulation S-X as
"Financial Statement Schedules," as authorized by Item 25 of
this Form.
2. Provide any financial information required by Rule
3-05 and Article 11 of Regulation S-X with respect to
transactions other than the one being registered.
3. Foreign registrants: Your financial statements must
comply with Rule 3-19 of Regulation S-X. See also Rules
4-01(a)(2) and 10-01 of Regulation S-X.
(f) Exchange Controls.
(i) U.S. registrants: not applicable.
(ii) Foreign registrants: Item 6 of Form 20-F.
(g) Taxation.
(i) U.S. registrants: not applicable.
(ii) Foreign registrants: Item 7 of Form 20-F.
(h) Selected Financial Data.
(i) U.S. registrants: Item 301 of Regulation S-K.
(ii) Foreign registrants: Item 8 of Form 20-F.
(i) Supplementary Financial Information.
(i) U.S. registrants: Item 302 of Regulation S-K.
(ii) Foreign registrants: not applicable.
(j) Management's Discussion and Analysis.
(i) U.S. registrants: Item 303 of Regulation S-K.
(ii) Foreign registrants: Item 9 of Form 20-F.
(k) Changes in and Disagreements with Accountants.
(i) U.S. registrants: Item 304 of Regulation S-K.
(ii) Foreign registrants: not applicable.
(l) Quantitative and Qualitative Disclosures of Market
Risk.
(i) U.S. registrants: Item 305 of Regulation S-K.
(ii) Foreign registrants: Item 9A of Form 20-F.
C. INFORMATION ABOUT THE COMPANY BEING ACQUIRED
Item 16. Information Required for Form B Companies. y
If the company being acquired meets the requirements of
General Instructions I.B. and I.C.1. of Form B and compliance
with this Item is elected, provide the information required by
Items 11 and 12 of this Form as if the company being acquired
were the registrant.
Instruction.
Foreign companies being acquired: Notwithstanding the
requirements of Items 11 and 12, the financial statements of
the company being acquired need only comply with the
reconciliation requirements of Item 17 of Form 20-F.
- 331 -
Item 17. Information Required for Seasoned Form A Companies.
If the company being acquired meets the requirements of
General Instruction II. of Form A and compliance with this Item
is elected, provide the information required by Items 13 and 14
of this Form as if the company being acquired were the
registrant.
Instruction.
Foreign companies being acquired: Notwithstanding the
requirements of Items 13 and 14, the financial statements of
the company being acquired need only comply with the
reconciliation requirements of Item 17 of Form 20-F.
Item 18. Information Required for All Other (Non-Small Business)
Companies.
If the company being acquired does not meet the requirements
of General Instructions I.B. and I.C.1. of Form B or General
Instruction II. of Form A, or compliance with this Item is
elected, provide the information that would be required by Item
15 of this Form as if the company being acquired were the
registrant, subject to the following:
(a) Only those schedules required by Rules 12-15, 28 and 29
of Regulation S-X need be provided with respect to the company
being acquired;
(b) Notwithstanding the requirements of Item 14, the
financial statements of any foreign company being acquired need
only comply with the reconciliation requirements of Item 17 of
Form 20-F;
(c) If the company being acquired is not subject to the
reporting requirements of Exchange Act Section 13(a) or 15(d), or
has not furnished an annual report to its security holders under
Rule 14a-3 or Rule 14c-3 for the latest fiscal year because of
Exchange Act Section 12(i), furnish the financial statements that
would be required in an annual report sent to security holders
under Rules 14a-3(b)(1) and (b)(2) if one was required.
Instructions to paragraph (c).
1. If the registrant's security holders will not be
voting on the transaction, financial statements for the two
fiscal years before the latest fiscal year need be provided
only to the extent that security holders of the company
being acquired were previously furnished with financial
statements (prepared in conformity with GAAP) for those
periods.
2. The financial statements required by this paragraph
for the latest fiscal year need be audited only to the
extent practicable. The financial statements for the fiscal
years before the latest fiscal year need not be audited if
they were not previously audited.
3. If the financial statements required by this
paragraph are prepared on the basis of a comprehensive body
of accounting principles other than U.S. GAAP, provide a
reconciliation to U.S. GAAP in accordance with Item 17 of
Form 20-F (ง249.220f of this chapter) unless a
reconciliation is unavailable or not obtainable without
unreasonable cost or expense. At a minimum, however, when
financial statements are prepared on a basis other than U.S.
GAAP, a narrative description of all material variations in
accounting principles, practices and methods used in
preparing the non-U.S. GAAP financial statements from those
accepted in the U.S. must be presented.
(d) Notwithstanding paragraph (c) of this Item, the
financial statements of the company being acquired must be
audited for the fiscal years required by paragraph (b)(2) of Rule
3-05 of Regulation S-X if this registration statement is used for
resales by any person deemed to be an underwriter within the
meaning of Securities Act Rule 145(c).
(e) If the company being acquired is not subject to the
reporting requirements of Exchange Act Section 13(a) or 15(d),
provide the information required by Part I of Form 10-Q or Form
10-QSB for the most recent quarter for which a quarterly report
would be due if the company being acquired were subject to those
reporting requirements.
Item 19. Information Required for Companies that are
Transitional Small Business Issuers.
If the company being acquired meets the requirements of
General Instruction II.A.1. of Form SB-3, provide information in
accordance with either Item 14 or 16 of Form SB-3.
Item 20. Information Required for Companies that are Seasoned
SB-2 Issuers.
If the company being acquired meets the requirements of
General Instruction E.1. of Form SB-2 and compliance with this
Item is elected, provide the information required by Items 11 and
12 of Form SB-3 as if the company being acquired were the
registrant on Form SB-3.
Instruction to Item 20.
Canadian small business issuers being acquired:
Notwithstanding the requirements of Items 11 and 12 of Form
SB-3, the financial statements of the company being acquired
need only comply with the reconciliation requirements of
Item 17 of Form 20-F.
Item 21. Information Required for All Other Small Business
Issuers.
If the company being acquired does not meet the requirements
of General Instruction E.1. of Form SB-2, or compliance with this
Item is elected, provide the information required by Item 13 of
Form SB-3 as if the company being acquired were the registrant on
Form SB-3, subject to the following:
(a) Canadian small business issuers being acquired:
Notwithstanding the requirements of Item 13 of Form SB-3, the
financial statements of the company being acquired need only
comply with the reconciliation requirements of Item 17 of Form
20-F.
(b) If the company being acquired is not subject to the
reporting requirements of Exchange Act Section 13(a) or 15(d), or
has not furnished an annual report to its security holders under
Rule 14a-3 or Rule 14c-3 for the latest fiscal year because of
Exchange Act Section 12(i), furnish the financial statements that
would be required in an annual report sent to security holders
under Rules 14a-3(b)(1) and (b)(2) if one was required.
Instructions to paragraph (b).
1. If the registrant's security holders will not be
voting on the transaction, financial statements for the two
fiscal years before the latest fiscal year need be provided
only to the extent that security holders of the company
being acquired were previously furnished with financial
statements (prepared in conformity with GAAP) for those
periods.
2. The financial statements required by this paragraph
for the latest fiscal year need be audited only to the
extent practicable. The financial statements for the fiscal
years before the latest fiscal year need not be audited if
they were not previously audited.
3. If the financial statements required by this
paragraph are prepared on the basis of a comprehensive body
of accounting principles other than U.S. GAAP, provide a
reconciliation to U.S. GAAP in accordance with Item 17 of
Form 20-F (ง249.220f of this chapter) unless a
reconciliation is unavailable or not obtainable without
unreasonable cost or expense. At a minimum, however, when
financial statements are prepared on a basis other than U.S.
GAAP, a narrative description of all material variations in
accounting principles, practices and methods used in
preparing the non-U.S. GAAP financial statements from those
accepted in the U.S. must be presented.
(c) Notwithstanding paragraph (b) of this Item, the
financial statements of the company being acquired must be
audited for the fiscal years required by Item 310 of Regulation
S-B if this registration statement is used for resales by any
person deemed to be an underwriter within the meaning of
Securities Act Rule 145(c).
(d) If the company being acquired is not subject to the
reporting requirements of Exchange Act Section 13(a) or 15(d),
provide the information required by Part I of Form 10-QSB for the
most recent quarter for which a quarterly report would be due if
the company being acquired were subject to those reporting
requirements.
D. VOTING AND MANAGEMENT INFORMATION
Item 22. Information if Proxies, Consents or Authorizations Will
be Solicited.
(a) If either the registrant or the company being acquired
is soliciting proxies, consents or authorizations, provide the
following information:
(1) Date, Time and Place Information. Item 1 of Schedule
14A;
(2) Revocability of Proxy. Item 2 of Schedule 14A;
(3) Dissenters' Rights of Appraisal. Item 3 of Schedule
14A;
(4) Persons Making the Solicitation. Item 4 of Schedule
14A;
(5) Persons with a Substantial Interest in the Matter.
Item 5 of Schedule 14A, with respect to both the registrant and
the company being acquired;
(6) Voting Securities and Principal Holders. Item 6 of
Schedule 14A, with respect to both the registrant and the company
being acquired;
Instructions to Item 22(a)(6).
1. Foreign registrants and foreign companies being
acquired: You may provide the information specified in Item
4 of Form 20-F in lieu of the information specified in Item
6(d) of Schedule 14A.
2. Small business issuers being acquired: You may
provide the information specified in the Instruction to Item
20(a)(6) of Form SB-3 instead of the information specified
in Item 6(d) of Schedule 14A.
(7) Vote Required for Approval. Item 21 of Schedule 14A;
and
(8) Directors and Executive Officers. With respect to each
person who will serve as a director or an executive officer of
the surviving or acquiring company, the information required by:
(i) U.S. registrants: Items 401, 402 and 404 of Regulation
S-K; and
(ii) Foreign registrants: Items 10, 11, 12 and 13 of Form
20-F.
Instruction to Item 21(a)(8).
Small business issuers being acquired: You may provide
the information specified in Item 20(a)(8)(i) or (ii) of
Form SB-3 instead of the information specified in Item
21(a)(8) of this Form.
(b) If the registrant or the company being acquired meets
the requirements of General Instructions I.B. and I.C.1. of Form
B, General Instruction II. of Form A or General Instruction E.1.
of Form SB-2, any information required by paragraphs (a)(6) or
(a)(8) of this Item with respect to it may be incorporated by
reference from its latest annual report.
Item 23. Information if Proxies, Consents or Authorizations Will
Not be Solicited Or In an Exchange Offer.
(a) If proxies, consents or authorizations will not be
solicited in connection with the transaction or in an exchange
offer, provide the following information:
(1) Statement that Proxies are not to be Solicited. Item 2
of Schedule 14C;
(2) Date, Time and Place Information. The date, time and
place of the meeting of security holders, unless such information
is otherwise disclosed in material furnished to security holders
with or preceding the prospectus;
(3) Dissenters' Rights of Appraisal. Item 3 of Schedule
14A;
(4) Affiliates' Interests in the Transaction. A brief
description of any direct or indirect material interest of
affiliates of the registrant and of the company being acquired in
the proposed transaction;
Instruction to Item 23(a)(4).
You need not describe any interest arising from the
ownership of securities where the affiliate receives no
benefit not shared on a pro rata basis by all other holders
of the same class.
(5) Voting Securities and Principal Holders. Item 6 of
Schedule 14A, with respect to both the registrant and the company
being acquired;
Instructions to Item 23(a)(5).
1. Foreign registrants and foreign companies being
acquired: You may provide the information specified in Item
4 of Form 20-F in lieu of the information specified in Item
6(d) of Schedule 14A.
2. Small business issuers being acquired: You may
provide the information specified in the Instruction to Item
21(a)(5) of Form SB-3 instead of the information specified
in Item 6(d) of Schedule 14A.
(6) Vote Required for Approval. Item 21 of Schedule 14A;
and
(7) Directors and Executive Officers. With respect to each
person who will serve as a director or an executive officer of
the surviving or acquiring company, the information required by:
(i) U.S. registrants: Items 401, 402 and 404 of Regulation
S-K; and
(ii) Foreign registrants: Items 10, 11, 12 and 13 of Form
20-F.
- 332 -
Instruction to Item 23(a)(7).
Small business issuers being acquired: You may provide
the information specified in Item 21(a)(7)(i) or (ii) of
Form SB-3 instead of the information specified in Item
22(a)(7) of this Form.
Instruction to Item 23(a).
If proxies, consents or authorizations will not be
solicited in connection with the transaction because the
transaction is an exchange offer, you need not provide the
information required by paragraphs (a)(1), (a)(2) and
(a)(3).
(b) If the registrant or the company being acquired meets
the requirements of General Instruction I.B. and I.C.1. of Form B
or General Instruction II. of Form A, any information required by
paragraphs (a)(5) and (a)(7) of this Item with respect to it may
be incorporated by reference from its latest annual report.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 24. Indemnification of Directors and Officers.
Provide the information required by Item 702 of Regulation
S-K.
Item 25. Exhibits and Financial Statement Schedules.
(a) Provide the exhibits required by Item 601 of Regulation
S-K.
Instruction to Item 25(a).
Provide exhibits required by Item 601(b)(10) with
respect to both the registrant and the company being
acquired.
(b) Provide the financial statement schedules required by
Regulation S-X and Item 14(e) or Item 17(a) of this Form. List
each schedule according to the number assigned to it in
Regulation S-X.
(c) If information is provided pursuant to Item 4(b) of
this Form, provide the report, opinion or appraisal as an exhibit
to this Form, unless it is included in the prospectus.
Item 26. Undertakings.
(a) Set forth in the effective registration statement the
undertakings required by Item 512 of Regulation S-K.
(b) Set forth the following undertaking if the registrant
is using this Form for a transaction to be effected on a delayed
basis:
[Name of registrant] will file a post-effective amendment
containing all required information concerning a transaction and
the company being acquired that was not included in the
registration statement when it became effective because it was
not practicable to do so.
SIGNATURES
The registrant hereby certifies that it meets all of the
requirements for filing on Form C. The registrant also certifies
that it has duly caused and authorized the undersigned to sign
this registration statement on its behalf. The undersigned
certifies that he/she has read this registration statement and to
his/her knowledge the registration statement does not contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading.
(Registrant)..........................................
By (Signature and Title)..........................................
Date.....................
The following persons certify that they have read this
registration statement and to their knowledge the registration
statement does not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The
following persons also certify that they are signing below on
behalf of the registrant and in the capacities and on the dates
indicated.
By (Signature and Title)..........................................
Date.....................
By (Signature and Title)..........................................
Date.....................
Signature Instructions.
1. The following persons, or persons performing similar
functions, must sign the registration statement:
(a) the registrant;
(b) its principal executive officer or officers;
(c) its principal financial officer;
(d) its controller or principal accounting officer; and
(e) at least the majority of its board of directors.
2. Where the registrant is a foreign issuer, its
authorized representative in the United States also must sign the
registration statement.
3. Where the registrant is a limited partnership, its
general partner must sign. Where the general partner is a
corporation, the majority of the board of directors of the
corporate general partner must sign the registration statement.
4. Type or print the name and title of each person who
signs the registration statement beneath the person's signature.
Any person who occupies more than one of the specified positions
must indicate each capacity in which that person signs the
registration statement. See Securities Act Rule 402 concerning
manual signatures and Item 601 of Regulation S-K concerning
signatures pursuant to powers of attorney.
5. If the securities to be offered are those of an entity
that is not yet in existence at the time the registration
statement is filed, but which will be a party to a consolidation
involving two or more existing entities, then each existing
entity will be deemed a registrant and must be so designated on
the cover page of the Form. In that case, each existing entity
(and the applicable persons noted in Signature Instructions 1. -
3.) must sign the registration statement as if it were the
registrant.
93. By revising ง 239.9 and amending Form SB-1 (referenced
in ง 239.9) by revising the title of the Form and the facing
page, General Instruction A.3., General Instruction B.3., General
Instruction H. and the Signatures section; by removing in General
Instruction A.1.(b) the words "S-4" and adding, in their place,
the words "SB-3" and by removing the words "S-3 (if the issuer
incorporates by reference transitional Exchange Act reports),";
and by adding General Instruction I. and General Instruction J.
to read as follows:
ง 239.9 Form SB-1, optional Form for the registration under the
Securities Act of 1933 of securities to be sold to the
public by certain small business issuers, and for
optional concurrent registration under the Securities
Exchange Act of 1934.
(a) A "small business issuer," as defined in Rule 405 of
the Securities Act of 1933 (the "Securities Act"), may use this
Form to register an offering of securities under the Securities
Act. It may register up to $10,000,000 of securities to be sold
for cash, if it has not registered more than $10,000,000 in
securities offerings in any continuous 12-month period, including
the transaction being registered. In calculating the $10,000,000
ceiling, the issuer must include all offerings that were
registered under the Securities Act, other than any amounts
registered on Form S-8 (ง 239.16b).
(b) A small business issuer also may use this Form to
register concurrently under Section 12(b) or 12(g) of the
Securities Exchange Act of 1934 ("Exchange Act"). It may
register under the Exchange Act any class of securities that are
the subject of the offering it is registering under the
Securities Act. To register, the small business issuer must
check the appropriate box(es) on the cover page of this Form and
identify which class(es) of securities it is registering under
Section 12(b) or 12(g) of the Exchange Act.
Note: The text of Form SB-1 does not and this amendment
will not appear in the Code of Federal
Regulations.
U.S. Securities and Exchange Commission
Washington, D.C. 20549
FORM SB-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
[AND OPTIONAL REGISTRATION PURSUANT TO
SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934]
(Amendment No. ___)
_________________________________________________________
(Name of Small Business Issuer in its charter)
________________________________________________________________________
(Translation of Small Business Issuer's name into English, if
applicable)
_______________________________________________________________
(State or other jurisdiction of incorporation or organization)
________________________________________________________
(Primary Standard Industrial Classification Code Number)
______________________________________________
(I.R.S. Employer Identification Number)
________________________________________________________________________
(Address and telephone number of Registrant's principal executive
offices)
________________________________________________________________________
(Address of principal place of business or intended principal
place of business)
__________________________________________________________
(Name, address and telephone number of agent for service)
_______________________________________________________
(Web Site Address, if any)
_____________________________________________
(E-mail Address, if any)
* * * * *
Approximate date of commencement of sales
__________________________
If you include the Securities Act Rule 473(a) delaying
legend on this registration statement when you first file it, and
you are relying on Securities Act Rule 456(b) to delay payment of
the registration fee, check the following box. [ ]
If you do not include the Securities Act Rule 473(a)
delaying legend on this registration statement when you first
file it, or if you specifically state in a pre-effective
amendment that this registration statement shall hereafter become
effective in accordance with Section 8(a) of the Securities Act,
check the following box. [ ]
Note: If you check this box, you must pay the registration fee
required by Section 6 of the Securities Act (unless previously
paid) before the registration statement or pre-effective
amendment will be considered filed.
If you are filing this Form to register additional
securities for an offering in accordance with Securities Act Rule
462(e), check the following box and list the Securities Act
registration number of the earlier effective registration
statement for the same offering. [ ] _____________
If this Form is a post-effective amendment filed in
accordance with Securities Act Rule 462(c) to re-start the
15-business-day period during which pricing must occur under
Securities Act Rule 430A(a)(3) or to reflect a non-substantive
change from, or addition to, the prospectus, check the following
box and list the Securities Act registration number of the
earlier effective registration statement for the same offering.
[ ] _____________
If this Form is a post-effective amendment filed in
accordance with Securities Act Rule 462(d) solely to add
exhibits, check the following box and list the Securities Act
registration number of the earlier effective registration
statement for the same offering. [ ] _____________
If you are using this Form to register concurrently under
Section 12(b) or 12(g) of the Exchange Act any class of
securities that are the subject of the offering you are
registering under the Securities Act, check the appropriate box
and provide the information indicated below:
[ ] Securities being registered pursuant to Exchange Act Section
12(b):
Title of each class: Name of exchange on which
listed:
_______________________________
_______________________________
_______________________________
_______________________________
[ ] Securities being registered pursuant to Exchange Act Section
12(g):
Title of each class: Name of market on which
quoted:
_______________________________
_______________________________
_______________________________
_______________________________
CALCULATION OF REGISTRATION FEE
-----------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
each offering aggregate Amount of
class of Amount to price per offering
registration
securities be unit price fee
to be registered
registered
Notes to the Fee Table:
1. Set forth any explanatory details relating to the fee table
in footnotes to the table.
2. If the basis for calculating the fee is not evident from the
information presented in this table, refer to the applicable
provisions of Securities Act Rule 457 in a footnote.
3. If the fee is calculated under Rule 457(o), the "Amount to
be registered" and the "Proposed maximum offering price per
unit" need not appear in this table.
4. If any of the securities registered are not sold in
connection with this offering, the registrant (or a
qualifying wholly-owned subsidiary) may use the dollar
amount of the fee paid with respect to the unsold securities
to offset the total fee due on its subsequent registration
statement. See Rule 457(p). When offsetting any part of
the fee under Rule 457(p), the registrant must state the
dollar amount being offset in a footnote to the fee table
and must identify the file number of the registration
statement and the amount and class of securities in
connection with which the offsetting fee was previously
paid. Use of Rule 457(p) to offset any fee automatically
deregisters the securities in connection with which the fee
was previously paid.
The following delaying amendment is optional, but see
Securities Act Rule 473 before omitting it:
The registrant hereby amends this registration statement on
such date or dates as may be necessary to delay its
effective date until the registrant shall file a further
amendment which specifically states that this registration
statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 or until the
registration statement shall become effective on such date
as the Commission acting pursuant to said Section 8(a) may
determine.
Disclosure alternative used (check one): Alternative 1 ___
Alternative 2 ___
GENERAL INSTRUCTIONS
A. Use of Form and Place of Filing
* * * * *
3. A small business issuer also may use this Form to
register concurrently under Section 12(b) or 12(g) of the
Exchange Act. It may register under the Exchange Act any class
of securities that are the subject of the offering it is
registering under the Securities Act. To register, the small
business issuer must check the appropriate box(es) on the cover
page of this Form and identify which class(es) of securities it
is registering under Section 12(b) or 12(g).
B. General Requirements
* * * * *
3. If you are engaged in real estate, oil and gas, or
mining activities, you should read the Industry Guides in Item
801 or Regulation S-K. Real estate entities should also read
Items 1105 (Real Estate and Other Investment Activities) and 1106
(Description of Real Estate and Operating Data) of Regulation S-
K.
* * * * *
H. Registration of Additional Securities
1. Under certain circumstances, a small business issuer
may increase the size of an offering after the effective date
through filing a short-form registration statement under
Securities Act Rule 462(b) or 462(e). That type of registration
statement may include only the following:
(a) the facing page;
(b) a statement that the earlier registration statement,
identified by file number, is incorporated by reference;
(c) any required opinions and consents;
(d) the signature page; and
(e) any price-related information omitted from the earlier
registration statement in reliance on Securities Act Rule 430A,
if the registrant so chooses.
2. The information contained in a Rule 462(b) or Rule
462(e) registration statement is deemed to be a part of the
earlier effective registration statement as of the date of
effectiveness of the Rule 462(b) or Rule 462(e) registration
statement.
3. The small business issuer may incorporate by reference
from the earlier registration statement any opinion or consent
required in the Rule 462(b) or Rule 462(e) registration statement
if:
(a) the opinion or consent expressly allows that
incorporation; and
(b) the opinion or consent also relates to the Rule 462(b)
or Rule 462(e) registration statement.
Note to General Instruction H.
You should read Securities Act Rule 411(c) regarding
incorporation by reference of exhibits and Securities Act
Rule 439(b) regarding incorporation by reference of
consents.
I. Free Writing Prospectus Information
You should read Securities Act Rule 165. That rule permits
the small business issuer and those acting on its behalf to use
"free writing" offering materials that do not meet the
requirements of Section 10 of the Securities Act. Those offering
materials may be used after the small business issuer has filed
that Section 10 prospectus with the Commission in the
registration statement. If you use a prospectus in reliance on
that Rule, you must file it when required to do so by Securities
Act Rule 425.
J. Concurrent Registration of Securities under Exchange Act
1. Registration on this Form of a class of securities
under Exchange Act Section 12(b) shall become effective upon the
later of:
(a) receipt by the Commission of certification from the
national securities exchange listed on the cover of this Form
that the securities have been approved for listing; or
(b) effectiveness of this registration statement.
2. Registration on this Form of a class of securities
under Exchange Act Section 12(g) shall become effective
automatically upon the earlier of (1) 60 days after the initial
filing of this registration statement; or (2) the effectiveness
of this registration statement.
3. If the registrant is required to file an annual report
under Exchange Act Section 15(d) for its last fiscal year, it
must file that annual report within the time period specified in
the appropriate annual report form even if the Exchange Act
registration becomes effective before the annual report is due.
4. The registrant must file at least one complete, signed
copy of the registration statement with each exchange or market
identified on the cover of this Form.
* * * * *
SIGNATURES
The registrant hereby certifies that it meets all of the
requirements for filing on Form SB-1. The registrant also
certifies that it has duly caused and authorized the undersigned
to sign this registration statement on its behalf. The
undersigned certifies that he/she has read this registration
statement and to his/her knowledge the registration statement
does not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(Registrant)..........................................
By (Signature and Title)..........................................
Date.....................
The following persons certify that they have read this
registration statement and to their knowledge the registration
statement does not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The
following persons also certify that they are signing below on
behalf of the registrant and in the capacities and on the dates
indicated.
By (Signature and Title)..........................................
Date.....................
By (Signature and Title)..........................................
Date.....................
Signature Instructions.
1. The following persons, or persons performing similar
functions, must sign the registration statement:
(a) the small business issuer;
(b) its principal executive officer or officers;
(c) its principal financial officer;
(d) its controller or principal accounting officer; and
(e) at least the majority of its board of directors.
2. Where the small business issuer is a foreign issuer,
its authorized representative in the United States also must sign
the registration statement.
3. Where the small business issuer is a limited
partnership, its general partner must sign. Where the general
partner is a corporation, the majority of the board of directors
of the corporate general partner must sign the registration
statement.
4. Type or print the name and title of each person who
signs the registration statement beneath the person's signature.
Any person who occupies more than one of the specified positions
must indicate each capacity in which that person signs the
registration statement. See Securities Act Rule 402 concerning
manual signatures and Item 601 of Regulation S-B concerning
signatures pursuant to powers of attorney.
94. By revising ง 239.10 and amending Form SB-2 by revising
the title of the Form and the facing page, General Instruction
A., General Instruction B.1. and B.2., and General Instruction C;
by adding General Instructions B.4. and B.5., General Instruction
D., General Instruction E., and General Instruction F.; by
removing Items 9 - 11 and 15 - 23; by redesignating Items 12 and
13 as Items 9 and 10; by adding Items 11, 12 and 13; by
redesignating Items 24 - 28 as Items 14 - 18; and by revising the
Signatures section to read as follows:
ง 239.10 Form SB-2, optional Form for the registration under the
Securities Act of 1933 of securities to be sold to the
public by small business issuers, and for optional
concurrent registration under the Securities Exchange
Act of 1934.
(a) A "small business issuer," as defined in ง 230.405 of
this chapter, may use this Form to register under the Securities
Act of 1933 (15 U.S.C. 77a et. seq.) ("Securities Act") an
offering of securities for cash. See also Item 10(a) of
Regulation S-B (ง 228.10(a) of this chapter).
(b) A small business issuer must file this registration
statement in the Commission's Washington, D.C. office.
(c) A small business issuer also may use this Form to
register concurrently under Section 12(b) or 12(g) of the
Securities Exchange Act of 1934 ("Exchange Act"). It may
register under the Exchange Act any class of securities that are
the subject of the offering it is registering under the
Securities Act. To register, the small business issuer must
check the appropriate box(es) on the cover page of this Form and
identify which class(es) of securities it is registering under
Section 12(b) or 12(g) of the Exchange Act.
Note: The text of Form SB-2 does not and this amendment
will not appear in the Code of Federal
Regulations.
U.S. Securities and Exchange Commission
Washington, D.C. 20549
FORM SB-2
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
[AND OPTIONAL REGISTRATION PURSUANT TO
SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934]
(Amendment No. ___)
_________________________________________________________
(Name of Small Business Issuer in its charter)
________________________________________________________________________
(Translation of Small Business Issuer's name into English, if
applicable)
_______________________________________________________________
(State or other jurisdiction of incorporation or organization)
________________________________________________________
(Primary Standard Industrial Classification Code Number)
______________________________________________
(I.R.S. Employer Identification Number)
________________________________________________________________________
(Address and telephone number of Registrant's principal executive
offices)
________________________________________________________________________
(Address of principal place of business or intended principal
place of business)
__________________________________________________________
(Name, address and telephone number of agent for service)
_______________________________________________
(Web Site Address, if any)
_____________________________________
(E-mail Address, if any)
* * * * *
Approximate date of commencement of sales
__________________________
If you include the Securities Act Rule 473(a) delaying
legend on this registration statement when you first file it, and
you are relying on Securities Act Rule 456(b) to delay payment of
the registration fee, check the following box. [ ]
If you do not include the Rule 473(a) delaying legend on
this registration statement when you first file it, or if you
specifically state in a pre-effective amendment that this
registration statement shall hereafter become effective in
accordance with Section 8(a) of the Securities Act, check the
following box. [ ]
Note: If you check this box, you must pay the registration fee
required by Section 6 of the Securities Act (unless previously
paid) before the registration statement or pre-effective
amendment will be considered filed.
If you are filing this Form to register additional
securities for an offering in accordance with Securities Act Rule
462(e), check the following box and list the Securities Act
registration number of the earlier effective registration
statement for the same
offering. [ ] _____________
If this Form is a post-effective amendment filed in
accordance with Securities Act Rule 462(c) to re-start the
15-business-day period during which pricing must occur under
Securities Act Rule 430A(a)(3) or to reflect a non-substantive
change from, or addition to, the prospectus, check the following
box and list the Securities Act registration number of the
earlier effective registration statement for the same offering.
[ ] _____________
If this Form is a post-effective amendment filed in
accordance with Securities Act Rule 462(d) solely to add
exhibits, check the following box and list the Securities Act
registration number of the earlier effective registration
statement for the same
offering. [ ] _____________
If you are using this Form to register concurrently under
Section 12(b) or 12(g) of the Exchange Act any class of
securities that are the subject of the offering you are
registering under the Securities Act, check the appropriate box
and provide the information indicated below:
[ ] Securities being registered pursuant to Exchange Act Section
12(b):
Title of each class: Name of exchange on which
listed:
_______________________________
________________________________
_______________________________
________________________________
[ ] Securities being registered pursuant to Exchange Act Section
12(g):
Title of each class: Name of market on which quoted:
_______________________________
________________________________
_______________________________
________________________________
CALCULATION OF REGISTRATION FEE
-----------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
each offering aggregate Amount of
class of Amount to price per offering
registration
securities be unit price fee
to be registered
registered
Notes to the Fee Table:
1. Set forth any explanatory details relating to the fee table
in footnotes to the table.
2. If the basis for calculating the fee is not evident from the
information presented in this table, refer to the applicable
provisions of Securities Act Rule 457 in a footnote.
3. If the fee is calculated under Rule 457(o), the "Amount to
be registered" and the "Proposed maximum offering price per
unit" need not appear in this table.
4. If any of the securities registered are not sold in
connection with this offering, the registrant (or a
qualifying wholly-owned subsidiary) may use the dollar
amount of the fee paid with respect to the unsold securities
to offset the total fee due on its subsequent registration
statement. See Rule 457(p). When offsetting any part of
the fee under Rule 457(p), the registrant must state the
dollar amount being offset in a footnote to the fee table
and must identify the file number of the registration
statement and the amount and class of securities in
connection with which the offsetting fee was previously
paid. Use of Rule 457(p) to offset any fee automatically
deregisters the securities in connection with which the fee
was previously paid.
The following delaying amendment is optional, but see
Securities Act Rule 473 before omitting it:
The registrant hereby amends this registration statement on
such date or dates as may be necessary to delay its
effective date until the registrant shall file a further
amendment which specifically states that this registration
statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933 or until the
registration statement shall become effective on such date
as the Commission acting pursuant to said Section 8(a) may
determine.
GENERAL INSTRUCTIONS
A. Use of Form and Place of Filing
1. A "small business issuer," as defined in ง 230.405 of
this chapter, may use this Form to register under the Securities
Act of 1933 ("Securities Act") an offering of securities for
cash. See also Item 10(a) of Regulation S-B.
2. A small business issuer must file this registration
statement in the Commission's Washington, D.C. office.
3. A small business issuer also may use this Form to
register concurrently under Section 12(b) or 12(g) of the
Exchange Act. It may register under the Exchange Act any class
of securities that are the subject of the offering it is
registering under the Securities Act. To register, the small
business issuer must check the appropriate box(es) on the cover
page of this Form and identify which class(es) of securities it
is registering under Section 12(b) or 12(g).
B. General Requirements
1. If you are registering securities for the first time,
you should be aware of Rule 463 under the Securities Act
concerning sales of registered securities and the use of
proceeds.
2. If you are engaged in real estate, oil and gas, or
mining activities, you should read the Industry Guides in Item
801 of Regulation S-K.
* * * * *
4. You should read Securities Act Rule 172. That Rule
describes prospectus delivery obligations applicable to offerings
registered on this Form.
5. If the offering registered on this Form relates to a
blank check company, you should read Securities Act Rule 419.
Among other things, that Rule contains additional disclosure
requirements.
C. Registration of Additional Securities
1. Under certain circumstances, a small business issuer
may increase the size of an offering after the effective date
through filing a short-form registration statement under Rule
462(b) or Rule 462(e). That type of registration statement may
include only the following:
(a) the facing page;
(b) a statement that the earlier registration statement,
identified by file number, is incorporated by reference;
(c) any required opinions and consents;
(d) the signature page; and
(e) any price-related information omitted from the earlier
registration statement in reliance on Rule 430A, if the
registrant so chooses.
2. The information contained in a Rule 462(b) or Rule
462(e) registration statement is deemed to be a part of the
earlier effective registration statement as of the date of
effectiveness of the Rule 462(b) or Rule 462(e) registration
statement.
3. The registrant may incorporate by reference from the
earlier registration statement any opinion or consent required in
the Rule 462(b) or Rule 462(e) registration statement if:
(a) the opinion or consent expressly allows that
incorporation; and
(b) the opinion or consent also relates to the Rule 462(b)
or Rule 462(e) registration statement.
Note to General Instruction C.
You should read Securities Act Rule 411(c) regarding
incorporation by reference of exhibits and Securities Act
Rule 439(b) regarding incorporation by reference of
consents.
D. Free Writing Prospectus Information
You should read Securities Act Rule 165. That Rule permits
the small business issuer and those acting on its behalf to use
"free writing" offering materials that do not meet the
requirements of Section 10 of the Act. Those offering materials
may be used after the small business issuer has filed that
Section 10 prospectus with the Commission in the registration
statement. If you use a prospectus in reliance on that Rule, you
must file it when required to do so by Securities Act Rule 425.
E. Registrant Information -- Incorporation by Reference
1. Registrants Eligible to Incorporate by Reference.
Unless otherwise provided in General Instruction E.2., a
registrant will be eligible to use Items 11 and 12, instead of
Item 13, of this Form if it meets the following requirements:
(a) the registrant has a class of securities registered
under Section 12(b) or 12(g) of the Exchange Act, or the
registrant is required to file reports under Section 15(d) of the
Exchange Act;
(b) the registrant has been subject to the requirements of
Section 12 or 15(d) of the Exchange Act for at least 24 full
calendar months and any portion of a month immediately preceding
the date of filing this Form;
(c) the registrant has filed at least two annual reports
under Section 13(a) or 15(d) of the Exchange Act; and
(d) the registrant has filed in a timely manner all reports
and materials required by Section 13(a), 14 or 15(d) of the
Exchange Act for at least 12 full calendar months and any portion
of a month immediately before the date of filing this Form.
Note to General Instruction E.1.(d).
If the registrant filed an Exchange Act Rule 12b-25 notice
to delay filing any report (or portion of a report) during
that time period, it must have filed the related report (or
portion) within the time prescribed by Rule 12b-25.
2. Registrants Ineligible to Incorporate by Reference. A
registrant must comply with Item 13 if it fails to meet any of
the conditions of General Instruction E.1. or any of the
following is true:
(a) the registrant is a small business issuer that provided
the "Information Required in Annual Report of Transitional Small
Business Issuers" in its latest Form 10-KSB;
(b) within 2 years before the date of filing this Form, the
registrant was a development stage company that either:
(1) had no specific business plan or purpose; or
(2) indicated that its business plan was to engage in a
merger or acquisition with an unidentified entity or entities;
(c) within two years before the date of filing this Form,
the registrant was a shell entity having few or no assets,
earnings or operations;
(d) the registrant is registering an offering of "penny
stock" as defined in Exchange Act Rule 3a51-1 or has issued it in
the two years prior to the date of filing this Form;
(e) the registrant or any of its subsidiaries has, since
the end of the last fiscal year for which the registrant included
certified financial statements in an Exchange Act report:
(1) failed to pay any dividend or sinking fund installment
on preferred stock;
(2) caused any other material delinquency with respect to
preferred stock that was not cured within 30 days; or
(3) defaulted on any payment of principal, interest, a
sinking fund installment, a purchase fund installment or any
other installment on indebtedness, or defaulted on any rental on
a long-term lease, if such debt and lease defaults in the
aggregate are material;
(f) the independent accountant that examined the
registrant's financial statements for the most recent fiscal year
expressed in its report substantial doubt about the registrant's
ability to continue as a going concern;
(g) within three years before the date of filing, a
petition under the federal bankruptcy laws or any state
insolvency law was filed by or against the registrant, or a court
appointed a receiver, fiscal agent or similar officer with
respect to the business or property of the registrant. If true,
however, this would not disqualify the registrant if it has filed
an annual report with audited financial statements subsequent to
its emergence from that bankruptcy, insolvency or receivership
process;
(h) within five years before the date of filing, the
registrant, any executive officer, director or general partner of
the registrant or person nominated to any of those positions, or
its underwriter was convicted of any felony or misdemeanor
described in clauses (i) through (iv) of Section 15(b)(4)(B) of
the Exchange Act;
(i) within five years before the date of filing, the
registrant, any executive officer, director or general partner of
the registrant or person nominated to any of those positions, or
its underwriter was made the subject of a judicial or
administrative decree or order arising out of a governmental
action that:
(1) prohibits future violations of any antifraud provision
of the securities laws or Section 5 of the Securities Act;
(2) requires that the registrant, any executive officer,
director or general partner of the registrant or person nominated
to any of those positions, or its underwriter cease and desist
from violating any antifraud provision of the securities laws or
from violating Section 5 of the Securities Act; or
(3) determines that the registrant, any executive officer,
director or general partner of the registrant or person nominated
to any of those positions, or underwriter violated any antifraud
provision of the securities laws or Section 5 of the Securities
Act; and
(j) the registrant would incorporate by reference into its
Form SB-2 registration statement a report under the Exchange Act
that:
(1) the Commission, after review, requested that the
registrant amend in accordance with its comments; and
(2) either the registrant did not amend the report or, in
the Commission's judgment, did not amend the report in accordance
with the Commission's comments.
3. Successor Registrants. We will deem a successor
registrant to have satisfied the eligibility requirements of
General Instruction E.1. of this Item if it satisfies either of
the following requirements:
(a)(1) taken together, the registrant and its predecessor
meet the eligibility requirements in General Instruction B.1. of
this Item;
(2) the primary purpose of the succession was to change the
state of incorporation of the predecessor or to form a holding
company for the predecessor; and
(3) the assets and liabilities of the successor at the time
of succession are substantially similar to those of the
predecessor; or
(b) the predecessor met the eligibility requirements of
General Instruction E.1. at the time of succession and the
registrant continues to meet those requirements since the
succession.
4. Reporting Companies Recently Entering the Small
Business Disclosure System. (a) If the small business issuer
meets the requirements of General Instruction E.1. and its latest
annual report was filed on Form 10-K or Form 20-F (rather than
Form 10-KSB), it may use Items 11 and 12 and incorporate that
annual report. The annual report on Form 10-K or 20-F must be
updated by the Form 10-QSB for its most recent quarter. See Item
10(a)(2) of Regulation S-B which explains when and how a
reporting company may enter the small business disclosure system.
(b) If a Canadian small business issuer incorporates an
annual report on Form 20-F that includes financial statements
prepared and presented under Item 17 of Form 20-F, it must
include in the prospectus financial statements prepared and
presented under Item 18 of Form 20-F unless otherwise permitted
under Note 2 of Item 310 of Regulation S-B.
(c) If the small business issuer chooses not to incorporate
information from its latest annual report on Form 10-K or 20-F,
it must provide the information required by Item 13. Item 13
requires disclosure based upon Regulation S-B, including Item 310
financial statements.
F. Concurrent Registration of Securities under the Exchange Act
1. Registration on this Form of a class of securities
under Exchange Act Section 12(b) shall become effective upon the
later of:
(a) receipt by the Commission of certification from the
national securities exchange listed on the cover of this Form
that the securities have been approved for listing; or
(b) effectiveness of this registration statement.
2. Registration on this Form of a class of securities
under Exchange Act Section 12(g) shall become effective
automatically upon the earlier of (1) 60 days after the initial
filing of this registration statement; or (2) the effectiveness
of this registration statement.
3. If the registrant is required to file an annual report
under Exchange Act Section 15(d) for its last fiscal year, it
must file that annual report within the time period specified in
the appropriate annual report form even if the Exchange Act
registration becomes effective before the annual report is due.
4. The registrant must file at least one complete, signed
copy of the registration statement with each exchange or market
identified on the cover of this Form.
* * * * *
Item 11. Information Required for Seasoned Form SB-2 Companies.
If you meet the requirements of General Instruction E.1. of
this Form and elect to comply with this Item and Item 12 (instead
of Item 13), you must:
(a) Annual Report. Deliver together with the prospectus a
copy of your latest annual report filed pursuant to Section 13(a)
or 15(d) of the Exchange Act.
(b) Canadian Annual Report. If you are a Canadian small
business issuer and you incorporate an annual report on Form 20-F
that includes financial statements prepared and presented
pursuant to Item 17 of Form 20-F, include in the prospectus
financial statements prepared and presented pursuant to Item 18
of Form 20-F.
Notes to Item 11(b).
1. You must state in the prospectus that it is accompanied
by that annual report.
2. Canadian small business issuers: You may not satisfy
this obligation by delivering an annual report on Form 40-F.
3. Canadian small business issuers: You do not need to
include financial statements that comply with Item 18 of
Form 20-F if the only securities offered are those listed in
paragraphs (a) through (c) of Note 2 of Item 310 of
Regulation S-B.
(c) Quarterly Information. Provide the information
required by Part I of Form 10-QSB for the most recent fiscal
quarter following the fiscal year covered by the annual report
delivered pursuant to this Item. You must either:
(1) include that information in the prospectus; or
(2) deliver together with the prospectus a copy of your
latest Form 10-QSB.
Notes to Item 11(c).
1. If your Form 10-QSB for the most recent quarter is not
due to be filed before effectiveness of the registration
statement, it may provide the information for the previous
fiscal quarter to satisfy Item 11(c). For this purpose, the
due date is calculated without reference to the extension
provided by Exchange Act Rule 12b-25.
2. If you deliver your latest Form 10-QSB, you must state in
the prospectus that it is accompanied by that report.
(d) Financial statements and information. If not included
in your latest annual report delivered to investors pursuant to
this Item, provide:
(1) financial statements and information required by Items
310(c) - (e) of Regulation S-B;
(2) restated financial statements prepared in accordance
with or reconciled to U.S. GAAP where:
(i) after the end of its most recent fiscal year, the
registrant consummated one or more business combinations
accounted for by the pooling of interests method of accounting;
and
(ii) the acquired businesses, considered in the aggregate,
are significant pursuant to Item 310(c) of Regulation S-B;
(3) restated financial statements prepared in accordance
with or reconciled to U.S. GAAP, if a change in accounting
principles or correction of an error required a material
retroactive restatement of financial statements;
(4) disclosure required by Item 310(b)(2)(v) of Regulation
S-B regarding any material accounting change; or
(5) financial information required by Item 310(b)(2)(iv) of
Regulation S-B regarding a significant disposition or purchase
business combination;
Instruction to Item 11(d).
You may incorporate by reference into the effective
registration statement the information required by paragraph
(d) of Item 11. If you incorporate it, you must deliver it
together with the prospectus.
(e) Material changes. Describe any material changes in
your affairs which occurred since the end of the latest fiscal
year covered by the annual report and which were not described in
an Exchange Act Report that was delivered with the prospectus.
Instructions to Item 11.
1. You must deliver the information required by this Item
with the first preliminary prospectus you deliver. You do
not need to redeliver those documents with any later
prospectus sent to the same person.
2. Any reports the registrant delivers together with the
prospectus pursuant to this Item must be delivered without
charge to the investor.
Item 12. Incorporation of Certain Information by Reference for
Seasoned Form SB-2 Companies.
If you provide information pursuant to Item 11 of this Form:
(a) You must incorporate by reference into the prospectus
that is part of the effective registration statement:
(1) Your latest annual report filed in accordance with
Section 13(a) or 15(d) of the Exchange Act that contains audited
financial statements; and
Note to Item 12(a)(1).
Canadian small business issuers: You may not satisfy this
obligation by incorporating an annual report on Form 40-F.
(2) All other reports you filed pursuant to Section 13(a)
or 15(d) of the Exchange Act since the end of the fiscal year
covered by the annual report incorporated in this Form;
Instructions to Item 12(a).
1. List in the prospectus that is part of the effective
registration statement all documents filed prior to
effectiveness that are incorporated by reference.
2. You should read Rule 439 regarding consent to the use of
material incorporated by reference.
(b) You must provide the following undertakings in the
prospectus:
(1) that you will provide to each person, including any
beneficial owner, to whom a prospectus is delivered, a copy of
any information that has been incorporated by reference in the
prospectus but not delivered with the prospectus;
(2) that you will provide this information upon written or
oral request;
(3) that you will provide this information at no cost to
the requester;
(4) that you will send a copy of information incorporated
by reference into the prospectus but not delivered with it within
one business day of any request for that information;
(5) that you will send these incorporated documents in a
manner that should result in delivery within three business days;
and
(6) the name, address and telephone number to which the
request for this information must be made is: [fill in
information].
Notes to Item 12(b).
1. The undertaking covers all documents incorporated by
reference through the date of responding to the request.
2. If you send any of the information that is incorporated
by reference in the prospectus to security holders, you must
also send any exhibits that are specifically incorporated by
reference in that information.
(c) In the prospectus you must:
(1) identify the reports and other information that you
file with the Commission;
(2) state that the public:
(i) may read and copy materials you file with the
Commission at the Commission's Public Reference Room at 450 Fifth
Street, N.W., Washington, D.C. 20549; and
(ii) may obtain information on the operation of the Public
Reference Room by calling the Commission at 1-800-SEC-0330; and
(3) if you are an electronic filer, state that the
Commission maintains an Internet web site that contains reports,
proxy and information statements, and other information regarding
issuers that file electronically with the Commission and state
the address of that site (http://www.sec.gov). You are
encouraged to give your Internet web site address, if available.
Item 13. Information Required for all Other Small Business
Issuer Registrants.
If you do not provide information in accordance with Item 10
or Items 11 and 12, you must provide the following information:
(a) Description of Business. Item 101 of Regulation S-B;
(b) Description of Property. Item 102 of Regulation S-B;
(c) Legal Proceedings. Item 103 of Regulation S-B;
(d) Market for Common Stock and Related Stockholder
Matters. Item 201 of Regulation S-B;
(e) Financial Statements. Item 310 of Regulation S-B;
(f) Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure. Item 304 of Regulation S-B;
(g) Management's Discussion and Analysis or Plan of
Operation. Item 303 of Regulation S-B;
(h) Directors, Executive Officers, Promoters and Control
Persons. Item 401 of Regulation S-B;
(i) Executive Compensation. Item 402 of Regulation S-B;
(j) Security Ownership of Certain Beneficial Owners and
Management. Item 403 of Regulation S-B; and
(k) Certain Relationships and Related Transactions. Item
404 of Regulation S-B.
* * * * *
SIGNATURES
The registrant hereby certifies that it meets all of the
requirements for filing on Form SB-2. The registrant also
certifies that it has duly caused and authorized the undersigned
to sign this registration statement on its behalf. The
undersigned certifies that he/she has read this registration
statement and to his/her knowledge the registration statement
does not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(Registrant)..........................................
By (Signature and Title)..........................................
Date.....................
The following persons certify that they have read this
registration statement and to their knowledge the registration
statement does not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The
following persons also certify that they are signing below on
behalf of the registrant and in the capacities and on the dates
indicated.
By (Signature and Title)..........................................
Date.....................
By (Signature and Title)..........................................
Date.....................
Signature Instructions.
1. The following persons, or persons performing similar
functions, must sign the registration statement:
(a) the small business issuer;
(b) its principal executive officer or officers;
(c) its principal financial officer;
(d) its controller or principal accounting officer; and
(e) at least the majority of its board of directors.
2. Where the small business issuer is a foreign issuer,
its authorized representative in the United States also must sign
the registration statement.
3. Where the small business issuer is a limited
partnership, its general partner must sign. Where the general
partner is a corporation, the majority of the board of directors
of the corporate general partner must sign the registration
statement.
4. Type or print the name and title of each person who
signs the registration statement beneath the person's signature.
Any person who occupies more than one of the specified positions
must indicate each capacity in which that person signs the
registration statement. See Securities Act Rule 402 concerning
manual signatures and Item 601 of Regulation S-B concerning
signatures pursuant to powers of attorney.
95. By revising ง 239.11 and adding Form SB-3 to read as
follows:
ง 239.11 Form SB-3, for registration under the Securities Act of
1933 of securities issued by small business issuers in
business combination transactions.
Small business issuers must use this Form for registration
under the Securities Act of 1933 (15 U.S.C. 77a et. seq.) of
offerings of securities:
(a) In a transaction of the type specified in paragraph (a)
ง 230.145 of this chapter;
(b) In a merger in which the applicable law would not
require the solicitation of the votes or consents of all of the
security holders of the company being acquired;
(c) In an exchange offer for securities of the issuer or
another entity;
(d) In a public reoffering or resale of any securities
acquired pursuant to this registration statement; or
(e) In more than one of the kinds of transactions listed in
paragraphs (a) through (d) of this section registered on one
registration statement.
Note: The text of Form SB-3 will not appear in the Code
of Federal Regulations.
U.S. Securities and Exchange Commission
Washington, D.C. 20549
FORM SB-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_________________________________________________________
(Exact name of Registrant as specified in its charter)
________________________________________________________________
(Translation of Registrant's name into English, if applicable)
_______________________________________________________________
(State or other jurisdiction of incorporation or organization)
______________________________________________
(I.R.S. Employer Identification Number)
____________________________________________________________________________
(Address and telephone number of Registrant's principal executive
offices)
_______________________________________________________________________
(Name, address and telephone number of Registrant's agent for
service)
_______________________________________________________
(Web Site Address, if any)
_____________________________________________
(E-mail Address, if any)
If you include the Securities Act Rule 473(a) delaying
legend on this registration statement when you first file it, and
you are relying on Securities Act Rule 456(b) to delay payment of
the registration fee, check the following box. [ ]
If you do not include the Rule 473(a) delaying legend on
this registration statement when you first file it, or if you
specifically state in a pre-effective amendment that this
registration statement shall hereafter become effective in
accordance with Section 8(a) of the Securities Act, check the
following box. [ ]
Note: If you check this box, you must pay the registration fee
required by Section 6 of the Securities Act (unless previously
paid) before the registration statement or pre-effective
amendment will be considered filed.
If you are filing this Form to register additional
securities for an offering in accordance with Rule 462(e) under
the Securities Act, check the following box and list the
Securities Act registration number of the earlier effective
registration statement for the same offering. [ ] _____________
If you are using this Form to register concurrently under
Section 12(b) or 12(g) of the Exchange Act any class of
securities that are the subject of the offering you are
registering under the Securities Act, check the appropriate box
and provide the information indicated below:
[ ] Securities being registered pursuant to Exchange Act Section
12(b):
Title of each class: Name of exchange on which
listed:
_______________________________
_______________________________
_______________________________
_______________________________
[ ] Securities being registered pursuant to Exchange Act Section
12(g):
Title of each class: Name of market on which
quoted:
_______________________________
_______________________________
_______________________________
_______________________________
CALCULATION OF REGISTRATION FEE
-----------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
each offering aggregate Amount of
class of Amount to price per offering
registration
securities be unit price fee
to be registered
registered
Notes to the Fee Table:
1. Set forth any explanatory details relating to the fee table
in footnotes to the table.
2. If the basis for calculating the fee is not evident from the
information presented in this table, refer to the applicable
provisions of Securities Act Rule 457 in a footnote.
3. If the fee is calculated under Rule 457(o), the "Amount to
be registered" and the "Proposed maximum offering price per
unit" need not appear in this table.
4. If any of the securities registered are not sold in
connection with this offering, the registrant (or a
qualifying wholly-owned subsidiary) may use the dollar
amount of the fee paid with respect to the unsold securities
to offset the total fee due on its subsequent registration
statement. See Rule 457(p). When offsetting any part of
the fee under Rule 457(p), the registrant must state the
dollar amount being offset in a footnote to the fee table
and must identify the file number of the registration
statement and the amount and class of securities in
connection with which the offsetting fee was previously
paid. Use of Rule 457(p) to offset any fee automatically
deregisters the securities in connection with which the fee
was previously paid.
GENERAL INSTRUCTIONS
I. Rules as to Use of Form SB-3.
A. A "small business issuer" as defined in Securities Act
Rule 405 may use this Form to register an offering under the
Securities Act of 1933 ("Securities Act") that is:
1. a transaction of the type specified in Securities Act
Rule 145(a);
2. a merger in which the applicable law would not require
the solicitation of the votes or consents of all of the security
holders of the company being acquired;
3. an exchange offer for securities of the issuer or
another entity;
4. a public reoffering or resale of any securities
acquired pursuant to this registration statement; or
5. more than one of the kinds of transactions listed in
paragraphs 1. through 4. registered on one registration
statement.
B. You also may use this Form to register concurrently
under Section 12(b) or 12(g) of the Securities Exchange Act of
1934 ("Exchange Act"). You may register any class of securities
that are the subject of the offering you are registering under
the Securities Act. To register, you must check the appropriate
box(es) on the cover page of this Form and identify which
class(es) of securities it is registering under Section 12(b) or
12(g) of the Exchange Act.
C. You may not use this Form if you are a registered
investment company or a business development company as defined
in Section 2(a)(48) of the Investment Company Act of 1940.
II. Registrant Information.
Provide information about the registrant as follows:
A. Transitional Small Business Issuer Registrants. A
registrant may comply with either Item 10(b) or (c) of this Form,
as applicable, if it meets the following requirements:
1. it is a reporting company under the Exchange Act;
2. it provided the disclosure required by Alternative 1 or
2 of "Information Required in Annual Report of Transitional Small
Business Issuers" in its most recent Form 10-KSB; and
3. it is eligible to use Form SB-1.
B. Seasoned Form SB-2 Registrants. If the registrant
meets the requirements of General Instruction E.1. of Form SB-2,
it must comply with:
1. Items 11 and 12 of this Form; or
2. Item 13 of this Form.
C. All Other Small Business Issuer Registrants. All other
small business issuer registrants, including transitional small
business issuers that choose not to rely on Item 10, must comply
with Item 13 of this Form.
III. Information With Respect to the Company Being Acquired.
Provide information about the company being acquired (which
includes any entity whose securities are to be exchanged for
securities of the registrant) as follows:
A. Transitional Small Business Issuers. If the company
being acquired is a transitional small business issuer that meets
the requirements of General Instruction II.A.1., it may provide
the information required by either Item 14 or 16 of this Form.
B. Seasoned Form SB-2 Companies. If the company being
acquired meets the requirements of General Instruction E.1. of
Form SB-2, provide the information required by:
1. Item 15 of this Form; or
2. Item 16 of this Form.
C. All Other Small Business Issuers. For all other small
business issuers being acquired, provide the information required
by Item 16 of this Form.
D. Form B Companies. If the company being acquired meets
the requirements of General Instructions I.B. and I.C.1. of Form
B, provide information in accordance with:
1. Item 17 of this Form;
2. Item 18 of this Form; or
3. Item 19 of this Form.
E. Seasoned Form A Companies. If the company being
acquired meets the requirements of General Instruction II. of
Form A, provide information in accordance with:
1. Item 18 of this Form; or
2. Item 19 of this Form.
F. All Other Companies. For all other companies being
acquired, provide information in accordance with Item 19 of this
Form.
IV. Securities Act Rules and Regulations.
You should read the rules and regulations under the
Securities Act (Part 230 of Title 17 of the Code of Federal
Regulations), particularly Regulation C. That Regulation
contains general requirements regarding the preparation and
filing of registration statements.
V. Free Writing Prospectus Information.
A. You should read Securities Act Rule 166. That Rule
permits a registrant to make offers prior to filing a Form SB-3
registration statement. If you use a prospectus in reliance on
that Rule, you must file that prospectus when required to do so
by Securities Act Rule 425.
B. You should read Securities Act Rule 165. That Rule
permits the use of "free writing" offering materials that do not
meet the requirements of Section 10 of the Act. If you use a
prospectus in reliance on Rule 165, you must file it when
required to do so by Securities Act Rule 425.
VI. U.S. and Foreign Companies Being Acquired.
A. As used in this Form, "larger U.S. company being
acquired" includes all entities being acquired other than U.S.
small business issuers, foreign governments and foreign private
issuers.
B. As used in this Form, "larger foreign company being
acquired" includes only entities being acquired that are foreign
private issuers. It does not include Canadian small business
issuers.
C. "Foreign private issuer" is defined in Rule 405 of
Regulation C.
D. "Small business issuer being acquired" includes only
those entities being acquired that are small business issuers, as
defined in Rule 405.
VII. Interaction With the Exchange Act.
A. If Regulation 14A or 14C under the Exchange Act applies
to the transaction registered on this Form:
1. the prospectus may be in the form of a proxy statement
or information statement;
2. the prospectus must contain the information required by
this Form in lieu of that required by Schedule 14A or 14C; and
3. material filed as a part of the registration statement
shall be deemed filed also for purposes of Regulation 14A or 14C,
as applicable.
B. If neither Regulation 14A nor 14C applies to the
transaction registered on this Form, any proxy or information
statement material sent to security holders must be filed prior
to use as a part of the effective registration statement.
C. If you are registering an offering that is subject to
Section 13(e), 14(d) or 14(e) of the Exchange Act, the provisions
of those sections and the rules and regulations thereunder shall
apply to the transaction in addition to the provisions of this
Form.
VIII. Business Combinations Effected on a Delayed Basis.
A. A registrant may use this Form to register a
transaction that will be effected on a delayed basis under
Securities Act Rule 415(a)(1)(viii). In that event, it need only
furnish information about the contemplated transaction and the
company being acquired to the extent practicable as of the
effective date of the registration statement. It must file a
post-effective amendment to include the remaining required
information about the transaction and the company being acquired
in the registration statement.
B. A registrant may use this Form to register a
transaction that would qualify for an exemption from Section 5 of
the Securities Act but for the proximity in time of other similar
transactions. In that event, the registrant need only file a
prospectus supplement to provide the required information about
the transaction and the company being acquired.
C. A registrant may register two or more classes of
securities on this Form that it will offer on a delayed or
continuous basis pursuant to Rule 415(a)(1)(viii).
IX. Roll-Up Transactions.
A. Roll-up transactions (as defined in Item 901(c) of
Regulation S-K) may be registered on this Form. In that event,
the small business issuer registrant must comply with the
disclosure requirements of Subpart 900 of Regulation S-K. To the
extent that the disclosure requirements of Subpart 900 are
inconsistent with those in this Form, the requirements of Subpart
900 control.
B. If the registrant registers a roll-up transaction on
this Form, special prospectus delivery requirements apply. See
Securities Act Rule 172(e).
C. The proxy rules and Exchange Act Rule 14e-7 of the
tender offer rules contain provisions specifically applicable to
roll-up transactions. Those provisions apply whether or not the
entities involved have registered securities pursuant to Section
12 of the Exchange Act.
X. Registration of Additional Securities.
A. Under certain circumstances, a small business issuer
may increase the size of an offering after the effective date
through filing a short-form registration statement under
Securities Act Rule 462(b) or Rule 462(e). That type of
registration statement may include only the following:
1. the facing page;
2. a statement that the earlier registration statement,
identified by file number, is incorporated by reference;
3. any required opinions and consents;
4. the signature page; and
5. any price-related information omitted from the earlier
registration statement in reliance on Securities Act Rule 430A,
if the registrant so chooses.
B. The information contained in a Rule 462(b) or Rule
462(e) registration statement is deemed to be a part of the
earlier effective registration statement as of the date of
effectiveness of the Rule 462(b) or Rule 462(e) registration
statement.
C. The registrant may incorporate by reference from the
earlier registration statement any opinion or consent required in
the Rule 462(b) or Rule 462(e) registration statement if:
1. the opinion or consent expressly allows that
incorporation; and
2. the opinion or consent also relates to the Rule 462(b)
or Rule 462(e) registration statement.
Note to General Instruction X.
You should read Securities Act Rule 411(c) regarding
incorporation by reference of exhibits and Securities Act
Rule 439(b) regarding incorporation by reference of
consents.
XI. Concurrent Registration of Securities under the Exchange
Act.
A. Registration on this Form of a class of securities
under Exchange Act Section 12(b) shall become effective upon the
later of:
1. receipt by the Commission of certification from the
national securities exchange listed on the cover of this Form
that the securities have been approved for listing; or
2. effectiveness of this registration statement.
B. Registration on this Form of a class of securities
under Exchange Act Section 12(g) shall become effective
automatically upon the earlier of (1) 60 days after the initial
filing of this registration statement; or (2) the effectiveness
of this registration statement.
C. If the registrant is required to file an annual report
under Exchange Act Section 15(d) for its last fiscal year, it
must file that annual report within the time period specified in
the appropriate annual report form even if the Exchange Act
registration becomes effective before the annual report is due.
D. The registrant must file at least one complete, signed
copy of the registration statement with each exchange or market
identified on the cover to this Form.
PART I
INFORMATION REQUIRED IN THE PROSPECTUS
A. INFORMATION ABOUT THE TRANSACTION
Item 1. Front of Registration Statement and Front Cover of
Prospectus.
Provide the information required by Item 501 of Regulation
S-B.
Item 2. Inside Front and Outside Back Cover Pages of
Prospectus.
(a) Provide the information required by Item 502 of
Regulation S-B.
(b) If you incorporate information by reference into the
prospectus, state on the inside front cover page:
(1) that the prospectus incorporates by reference important
business and financial information about the company that is not
delivered with it;
(2) that this information is available without charge to
any person, including any beneficial owner, upon written or oral
request;
(3) that you will send those incorporated documents in a
manner that should result in delivery within three business days
of the request;
(4) the name, address and telephone number to which persons
must make this request; and
(5) that to obtain timely delivery, persons must request
this information no later than ____ [specify date five business
days before the date on which the final investment decision must
be made. You must highlight this statement by print type or
otherwise.
Instruction to Item 2.
1. The undertaking covers all documents incorporated by
reference through the date of responding to the request.
2. If you send any of the information that is
incorporated by reference in the prospectus, you also must
send any exhibits that are specifically incorporated by
reference in that information.
3. If information is incorporated by reference in any
document you are sending to a security holder upon request,
you also must send the information incorporated by
reference.
Item 3. Prospectus Summary and Other Information.
In the forepart of the prospectus, provide a summary of the
information contained in the prospectus as described in Item
503(a) of Regulation S-B and the following information:
(a) Contact information. The name, complete mailing
address and telephone number of the principal executive offices
of the registrant and the company being acquired;
(b) Risk factors. The information required by Item 503(c)
of Regulation S-B;
(c) Ratio of earnings to fix charges. The information
required by Item 503(d) of Regulation S-K;
(d) Business conducted. A brief description of the general
nature of the business conducted by the registrant and by the
company being acquired;
(e) Transaction being registered. A brief description of
the transaction in which the securities being registered will be
offered;
(f) Selected financial data. The selected financial data
required by Item 301 of Regulation S-K for larger U.S. companies
being acquired and Item 8 of Form 20-F for larger foreign
companies being acquired. To the extent this information is
required to be presented in the prospectus pursuant to other
Items of this Form, it need not be presented pursuant to this
Item;
(g) Pro forma selected financial data. If material, the
information required by Item 310 of Regulation S-B for the
registrant showing the pro forma effect of the transaction. To
the extent the information is required to be presented in the
prospectus pursuant to other Items of this Form, it need not be
presented pursuant to this Item;
(h) Pro forma information. In a table designed to
facilitate comparison, historical and pro forma per share data of
the registrant and historical and equivalent pro forma per share
data of the company being acquired for the following items:
(1) book value per share as of the dates financial data is
presented;
(2) cash dividends declared per share for the periods for
which financial data is presented; and
(3) income (loss) per share from continuing operations for
the periods for which financial data is presented.
Instructions to Item 3(g) and 3(h).
1. For a business combination accounted for as a
purchase, present the financial information required by
paragraphs (g) and (h) only for the most recent fiscal year
and interim period. For a business combination accounted
for as a pooling, present the financial information required
by paragraphs (g) and (h) (except for information with
regard to book value) for the most recent two fiscal years
and interim period. For purposes of these paragraphs, book
value information need only be provided for the most recent
balance sheet date.
2. Provide the per share data of the registrant and the
company being acquired as of the dates that, or for the
periods for which, financial data is presented pursuant to
the applicable requirements of:
(a) Item 310 of Regulation S-B for small business issuer
registrants and companies being acquired that are small business
issuers;
(b) Item 301 of Regulation S-K for larger U.S. companies
being acquired; and
(c) Item 8 of Form 20-F for larger foreign companies being
acquired;
3. Calculate the equivalent pro forma per share amounts
for one share of the company being acquired by multiplying the
exchange ratio times each of:
(a) the pro forma income (loss) per share before
non-recurring charges or credits directly attributable to the
transaction;
(b) the pro forma book value per share; and
(c) the pro forma dividends per share of the registrant.
4. Larger foreign companies: Instruction 7 to Item 8 of
Form 20-F is applicable to the financial information presented
hereunder to the extent that this Form requires reconciliation of
financial statements of foreign private issuers to U.S. GAAP and
Regulation S-X.
(i) Market value of securities. In a table designed to
facilitate comparison, the market value of securities of the
company being acquired (on a historical and equivalent per share
basis) and the market value of the securities of the registrant
(on an historical basis) as of the day before the date the public
announcement of the proposed transaction. If no such public
announcement was made, as of the day before the date the
agreement with respect to the transaction was entered into;
(j) Affiliates' voting shares. With respect to the
registrant and the company being acquired, a brief statement
comparing the percentage of outstanding shares entitled to vote
held by directors, executive officers and their affiliates.
State the vote required for approval of the proposed transaction;
(k) Regulatory approval. A statement as to whether any
regulatory requirements must be complied with or approval must be
obtained in connection with the transaction, and if so, the
status of such compliance or approval;
(l) Dissenters' rights. A statement about whether or not
dissenters' rights of appraisal exist, including a
cross-reference to the information provided pursuant to Item 20
or 21 of this Form; and
(m) Tax consequences. A brief statement about the tax
consequences of the transaction or, if appropriate, a
cross-reference to the information provided pursuant to Item 4 of
this Form.
Item 4. Terms of the Transaction.
(a) Provide a summary of the material features of the
proposed transaction. The summary shall include, where
applicable:
(1) the information required by paragraphs (a)(1) and
(a)(2) of Regulation M-A (ง 229.1004(a)(1) and (a)(2) of this
chapter) and
(2) where not organized in the same country, a discussion
of any material differences in the corporate laws applicable to
the company being acquired and to the surviving entity. The
discussion should include, but not necessarily be limited to:
corporate governance, board structure, quorums, class action
suits, shareholder derivative suits, rights to inspect corporate
books and records, rights to inspect the shareholder list and
rights of directors and officers to obtain indemnification from
the company.
(b) If a report, opinion or appraisal materially relating
to the transaction has been received from an outside party and
such report, opinion or appraisal is referred to in the
prospectus, provide the information called for by Item 1015(b) of
Regulation M-A (ง 229.1015(b) of this chapter).
(c) Incorporate the acquisition agreement by reference into
the prospectus.
Item 5. Pro Forma Financial Information.
Provide the financial information required by Item 310(d) of
Regulation S-B with respect to this transaction.
Instructions.
1. Present any Item 310(d) information required by the
other Items of this Form (where not incorporated by
reference) together with the information provided under this
Item. In presenting this information, you must clearly
distinguish between this transaction and any other one.
2. You need only show the pro forma effect that the
registered transaction has on any pro forma financial
information that:
(i) is incorporated by reference; and
(ii) reflects all prior transactions.
Item 6. Material Contacts with the Company Being Acquired.
Provide the information required by Items 1005(b) and
1011(a) of Regulation M-A (ง 229.1005(b) and ง 229.1011(a) of
this chapter) for the registrant or its affiliates and the
company being acquired or its affiliates. The information
provided only need cover the periods for which financial
statements are presented or incorporated by reference into this
Form.
Item 7. Additional Information Required for Reoffering by
Persons Deemed to be Underwriters.
If any person who is deemed to be an underwriter of the
securities is reoffering any of the securities to the public,
provide the following information in the prospectus prior to its
use for the reoffer:
(a) The information required by Item 507 of Regulation S-B;
(b) Information with respect to the consummation of the
transaction in which the securities were acquired; and
(c) A description of any material change in the
registrant's affairs that occurred after the transaction in which
the securities were acquired.
Note to Item 7.
You should read Item 512(g) of Regulation S-K regarding
undertakings required in reoffering registration statements.
Item 8. Interests of Named Experts and Counsel.
Provide the information required by Item 509 of Regulation
S-B.
Item 9. Disclosure of Commission Position on Indemnification
for Securities Act Liabilities.
Provide the information required by Item 510 of Regulation
S-B.
B. INFORMATION ABOUT THE REGISTRANT
Item 10. Information Required for Transitional Small Business
Issuers.
(a) The registrant may rely upon either paragraph (b) or
(c), as applicable, of this Item (instead of Item 13), if it
meets all of the following requirements:
(1) it is a reporting company under the Exchange Act;
(2) it relied upon Alternative 1 or 2 of "Information
Required in Annual Report of Transitional Small Business Issuers"
in its most recent Form 10-KSB; and
(3) it is eligible to use Form SB-1.
(b) A registrant that meets the requirements of paragraph
(a) of this Item and relied upon Alternative 1 in its most recent
Form 10-KSB may provide the information required by:
(1) Offering Circular Model A of Form 1-A. Questions 3, 4,
11, 43 and 47-50;
(2) Market for Common Equity and Related Stockholder
Matters. If common equity securities are being issued, Item 201
of Regulation S-B;
(3) Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure. Item 304 of Regulation S-B;
and
(4) Financial Statements. Item 310 of Regulation S-B.
(c) A registrant that meets the requirements of paragraph
(a) of this Item and relied upon Alternative 2 in its most recent
Form 10-KSB may provide the information required by:
(1) Offering Circular Model B of Form 1-A. Items 6 and 7;
(2) Legal Proceedings. Item 103 of Regulation S-B;
(3) Market for Common Equity and Related Stockholder
Matters. If the registrant is issuing common equity securities,
Item 201 of Regulation S-B;
(4) Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure. Item 304 of Regulation S-B;
and
(5) Financial Statements. Item 310 of Regulation S-B.
Item 11. Information Required for Seasoned Form SB-2 Companies.
If you meet the requirements of General Instruction E.1. of
Form SB-2 and elect to comply with this Item and Item 12 (instead
of Item 13), you must:
(a) Annual Report. Deliver together with the prospectus a
copy of your latest annual report filed pursuant to Section 13(a)
or 15(d) of the Exchange Act;
(b) Canadian Annual Report. If you are a Canadian small
business issuer and you incorporate an annual report on Form 20-F
that includes financial statements prepared and presented
pursuant to Item 17 of Form 20-F, include in the prospectus
financial statements prepared and presented pursuant to Item 18
of Form 20-F.
Notes to Item 11(a) and (b).
1. You must state in the prospectus that it is
accompanied by that annual report.
2. Canadian small business issuers: You may not
satisfy the requirement to deliver an annual report with an
annual report on Form 40-F.
3. Canadian small business issuers: You do not need to
include financial statements that comply with Item 18 of
Form 20-F if the only securities offered are those listed in
paragraphs (a) through (c) of Note 2 of Item 310 of
Regulation S-B.
(c) Quarterly Information. Provide the information
required by Part I of Form 10-QSB for the most recent fiscal
quarter following the fiscal year covered by the annual report
delivered pursuant to this Item. You must either:
(1) include that information in the prospectus; or
(2) deliver together with the prospectus a copy of your
latest Form 10-QSB;
Notes to Item 11(c):
1. If your Form 10-QSB for the most recent quarter is
not due to be filed before effectiveness of the registration
statement, you may provide the information for the previous
fiscal quarter to satisfy Item 11(c). For this purpose, the
due date is calculated without reference to the extension
provided by Exchange Act Rule 12b-25.
2. If you deliver your latest Form 10-QSB, you must
state in the prospectus that it is accompanied by that
report.
(d) Financial statements and information. If not included
in your latest annual report delivered to investors pursuant to
this Item, provide:
(1) financial statements and information required by Items
310(c) - (e) of Regulation S-B;
(2) restated financial statements prepared in accordance
with or reconciled to U.S. GAAP where:
(i) after the end of its most recent fiscal year, the
registrant consummated one or more business combinations
accounted for by the pooling of interests method of accounting;
and
(ii) the acquired businesses, considered in the aggregate,
are significant pursuant to Item 310(c) of Regulation S-B;
(3) restated financial statements prepared in accordance
with or reconciled to U.S. GAAP, if a change in accounting
principles or correction of an error required a material
retroactive restatement of financial statements;
(4) disclosure required by Item 310(b)(2)(v) of Regulation
S-B regarding any material accounting change; or
(5) financial information required by Item 310(b)(2)(iv) of
Regulation S-B regarding a significant disposition or purchase
business combination.
Instruction to Item 11(d).
You may incorporate by reference into the effective
registration statement the information required by paragraph
(d) of Item 11. If you incorporate it, you must deliver it
together with the prospectus.
(e) Material Changes. Describe any material changes in
your affairs that occurred since the end of the latest fiscal
year covered by the annual report and were not described in an
Exchange Act report that was delivered with the prospectus.
Instructions to Item 11:
1. You must deliver the information required by this
Item with the first preliminary prospectus you deliver. You
do not need to redeliver those documents with any later
prospectus sent to the same person.
2. Any reports the registrant delivers together with
the prospectus pursuant to this Item must be delivered
without charge to the investor.
Item 12. Incorporation of Certain Information by Reference for
Seasoned Form
SB-2 Companies.
If you provide information pursuant to Item 11 of this Form:
(a) You must incorporate by reference into the prospectus
that is part of the effective registration statement:
(1) Your latest annual report filed in accordance with
Section 13(a) or 15(d) of the Exchange Act that contains audited
financial statements; and
Note to Item 12(a)(1).
Canadian small business issuers: you may not satisfy
this obligation by incorporating an annual report on Form
40-F.
(2) All other reports you filed pursuant to Section 13(a)
or 15(d) of the Exchange Act since the end of the fiscal year
covered by the annual report incorporated in this Form.
Instructions to Item 12(a).
1. List in the prospectus that is part of the effective
registration statement all documents filed prior to
effectiveness that are incorporated by reference.
2. You should read Securities Act Rule 439 regarding
consent to the use of material incorporated by reference.
(b) In the prospectus you must:
(1) identify the reports and other information that you
file with the Commission;
(2) state that the public:
(i) may read and copy materials you file with the
Commission at the Commission's Public Reference Room at 450 Fifth
Street, N.W., Washington, D.C. 20549; and
(ii) may obtain information on the operation of the Public
Reference Room by calling the Commission at 1-800-SEC-0330; and
(3) if you are an electronic filer, state that the
Commission maintains an Internet web site that contains reports,
proxy and information statements, and other information regarding
issuers that file electronically with the Commission and state
the address of that site (http://www.sec.gov). You are
encouraged to give your Internet web site address, if available.
Item 13. Information Required for all other Small Business
Issuer Registrants.
If you do not provide information in accordance with Item 10
or Items 11 and 12, you must provide the following information:
(a) Description of Business. Item 101 of Regulation S-B;
(b) Description of Property. Item 102 of Regulation S-B;
(c) Legal Proceedings. Item 103 of Regulation S-B;
(d) Market for Common Stock and Related Stockholder
Matters. Item 201 of Regulation S-B;
(e) Financial Statements. Item 310 of Regulation S-B;
(f) Changes In and Disagreements with Accountants on
Accounting and Financial Disclosure. Item 304 of Regulation S-B;
(g) Management's Discussion and Analysis or Plan of
Operations. Item 303 of Regulation S-B;
(h) Directors, Executive Officers, Promoters and Control
Persons. Item 401 of Regulation S-B;
(i) Executive Compensation. Item 402 of Regulation S-B;
(j) Security Ownership of Certain Beneficial Owners and
Management. Item 403 of Regulation S-B; and
(k) Certain Relationships and Related Transactions. Item
404 of Regulation S-B.
C. INFORMATION ABOUT THE COMPANY BEING ACQUIRED
Item 14. Information Required for Companies that are
Transitional Small Business Issuers.
(a) If the company being acquired meets the requirements to
use Item 10(b) of this Form and compliance with this Item is
elected, provide the information required by Item 10(b) as if the
company being acquired were the registrant.
(b) If the company being acquired meets the requirements to
use Item 10(c) of this Form and compliance with this Item is
elected, provide the information required by Item 10(c) as if the
company being acquired were the registrant.
Item 15. Information Required for Seasoned SB-2 Issuers.
If the company being acquired meets the requirements of
General Instruction E.1. of Form SB-2 and compliance with this
Item is elected, provide the information required by Items 11 and
12 of this Form as if the company being acquired were the
registrant.
Instruction.
Canadian small business issuers being acquired:
Notwithstanding the requirements of Items 11 and 12, the
financial statements of the company being acquired need only
comply with the reconciliation requirements of Item 17 of
Form 20-F.
Item 16. Information Required for all other Small Business
Issuers.
If the company being acquired does not meet the requirements
of General Instruction E.1. of Form SB-2, or compliance with this
Item is elected, provide the information required by Item 13 of
this Form as if the company being acquired were the registrant,
subject to the following:
(a) Canadian small business issuers being acquired:
Notwithstanding the requirements of Item 13 of this Form, the
financial statements of the company being acquired need only
comply with the reconciliation requirements of Item 17 of Form
20-F.
(b) If the company being acquired is not subject to the
reporting requirements of Exchange Act Section 13(a) or 15(d), or
has not furnished an annual report to its security holders under
Rule 14a-3 or Rule 14c-3 for the latest fiscal year because of
Exchange Act Section 12(i), furnish the financial statements that
would be required in an annual report sent to security holders
under Rules 14a-3(b)(1) and (b)(2) if one was required.
Instructions to paragraph (b).
1. If the registrant's security holders will not be
voting on the transaction, financial statements for the two
fiscal years before the latest fiscal year need be provided
only to the extent that security holders of the company
being acquired were previously furnished with financial
statements (prepared in conformity with GAAP) for those
periods.
2. The financial statements required by this paragraph
for the latest fiscal year need be audited only to the
extent practicable. The financial statements for the fiscal
years before the latest fiscal year need not be audited if
they were not previously audited.
3. If the financial statements required by this
paragraph are prepared on the basis of a comprehensive body
of accounting principles other than U.S. GAAP, provide a
reconciliation to U.S. GAAP in accordance with Item 17 of
Form 20-F (ง249.220f of this chapter) unless a
reconciliation is unavailable or not obtainable without
unreasonable cost or expense. At a minimum, however, when
financial statements are prepared on a basis other than U.S.
GAAP, a narrative description of all material variations in
accounting principles, practices and methods used in
preparing the non-U.S. GAAP financial statements from those
accepted in the U.S. must be presented.
(c) Notwithstanding paragraph (b) of this Item, the
financial statements of the company being acquired must be
audited for the fiscal years required by Item 310 of Regulation
S-B if this registration statement is used for resales by any
person deemed to be an underwriter within the meaning of Rule
145(c).
(d) If the company being acquired is not subject to the
reporting requirements of Exchange Act Section 13(a) or 15(d),
provide the information required by Part I of Form
10-QSB for the most recent quarter for which a quarterly report
would be due as if the company being acquired were subject to
those reporting requirements.
Item 17. Information Required for Form B Companies.
If the company being acquired meets the requirements of
General Instructions I.B. and I.C.1. of Form B and compliance
with this Item is elected, provide the information required by
Items 10 and 11 of Form C as if the company being acquired were
the registrant on Form C.
Instruction.
Larger foreign companies being acquired:
Notwithstanding the requirements of Items 10 and 11 of Form
C, the financial statements of the company being acquired
need only comply with the reconciliation requirements of
Item 17 of Form 20-F.
Item 18. Information Required for Seasoned Form A Companies.
If the company being acquired meets the requirements of
General Instruction II. of Form A and compliance with this Item
is elected, provide the information required by Items 12 and 13
of Form C as if the company being acquired were the registrant on
Form C.
Instruction.
Foreign companies being acquired: Notwithstanding the
requirements of Items 12 and 13 of Form C, the financial
statements of the company being acquired need only comply
with the reconciliation requirements of Item 17 of Form
20-F.
Item 19. Information Required for All Other Companies.
If the company being acquired does not meet the requirements
of General Instructions I.B. and I.C.1. of Form B or General
Instruction II. of Form A, or compliance with this Item is
elected, provide the information required by Item 14 of Form C as
if the company being acquired were the registrant on Form C,
subject to the following:
(a) Only those schedules required by Rules 12 - 15, 28 and
29 of Regulation S-X need be provided with respect to the company
being acquired.
(b) Notwithstanding the requirements of Item 14 of Form C,
the financial statements of any foreign company being acquired
need only comply with the reconciliation requirements of Item 17
of Form 20-F.
(c) If the company being acquired is not subject to the
reporting requirements of Exchange Act Section 13(a) or 15(d), or
has not furnished an annual report to its security holders under
Rule 14a-3 or Rule 14c-3 for the latest fiscal year because of
Exchange Act Section 12(i), furnish the financial statements that
would be required in an annual report sent to security holders
under Rules 14a-3(b)(1) and (b)(2) if one was required.
Instructions to paragraph (c).
1. If the registrant's security holders will not be
voting on the transaction, financial statements for the two
fiscal years before the latest fiscal year need be provided
only to the extent that security holders of the company
being acquired were previously furnished with financial
statements (prepared in conformity with GAAP) for those
periods.
2. The financial statements required by this paragraph
for the latest fiscal year need be audited only to the
extent practicable. The financial statements for the fiscal
years before the latest fiscal year need not be audited if
they were not previously audited.
3. If the financial statements required by this
paragraph are prepared on the basis of a comprehensive body
of accounting principles other than U.S. GAAP, provide a
reconciliation to U.S. GAAP in accordance with Item 17 of
Form 20-F (ง249.220f of this chapter) unless a
reconciliation is unavailable or not obtainable without
unreasonable cost or expense. At a minimum, however, when
financial statements are prepared on a basis other than U.S.
GAAP, a narrative description of all material variations in
accounting principles, practices and methods used in
preparing the non-U.S. GAAP financial statements from those
accepted in the U.S. must be presented.
(d) Notwithstanding paragraph (c) of this Item, the
financial statements of the company being acquired must be
audited for the fiscal years required by paragraph (b)(2) of Rule
3-05 of Regulation S-X if this registration statement is used for
resales by any person deemed to be an underwriter within the
meaning of Rule 145(c).
(e) If the company being acquired is not subject to the
reporting requirements of Exchange Act Section 13(a) or 15(d),
provide the information required by Part I of Form
10-Q or 10-QSB for the most recent quarter for which a quarterly
report would be due as if the company being acquired were subject
to those reporting requirements.
D. VOTING AND MANAGEMENT INFORMATION
Item 20. Information if Proxies, Consents or Authorizations Will
be Solicited.
(a) If either the registrant or the company being acquired
is soliciting proxies, consents or authorizations, provide the
following information:
(1) Date, Time and Place Information. Item 1 of Schedule
14A;
(2) Revocability of Proxy. Item 2 of Schedule 14A;
(3) Dissenters' Rights of Appraisal. Item 3 of Schedule
14A;
(4) Persons Making the Solicitation. Item 4 of Schedule
14A;
(5) Persons with a Substantial Interest in the Matter.
Item 5 of Schedule 14A, with respect to both the registrant and
the company being acquired;
(6) Voting Securities and Principal Holders. Item 6 of
Schedule 14A, with respect to both the registrant and the company
being acquired;
Instruction to Item 20(a)(6).
The following registrants and companies being acquired
may provide the information required below instead of the
information required by Item 6(d) of Schedule 14A:
1. Transitional small business issuers that rely upon
Item 10(b) (if a registrant) or 14(a) (if an acquiree) of
this Form: the information required by Questions 37 and 38
of Offering Circular Model A of Form 1-A;
2. Transitional small business issuers that rely upon
Item 10(c) (if a registrant) or 14(b) (if an acquiree) of
this Form: the information required by Item 10 of Offering
Circular Model B of Form 1-A;
3. All other small business issuers, whether
registrants or acquirees: the information required by Item
403 of Regulation S-B; and
4. Larger foreign companies being acquired: the
information specified in Item 4 of Form 20-F.
(7) Vote Required for Approval. Item 21 of Schedule 14A;
and
(8) Directors and Executive Officers. For the following
companies, with respect to each person who will serve as a
director or an executive officer of the registrant:
(i) Transitional Small Business Issuers:
(A) Questions 29 - 36 and 39 - 42 of Offering Circular
Model A of Form 1-A, if the registrant or acquiree relied upon
Item 10(b) or 14(a), respectively; or
(B) Items 8, 9 and 11 of Offering Circular Model B of Form
1-A, if the registrant or acquiree relied upon Item 10(c) or
14(b), respectively;
(ii) All other Small Business Issuers: Items 401, 402 and
404 of Regulation S-B;
(iii) Larger U.S. companies being acquired: Items 401, 402
and 404 of Regulation S-K; and
(iv) Larger foreign companies being acquired: Items 10, 11,
12 and 13 of Form 20-F.
(b) If the registrant or the company being acquired meets
the requirements of General Instruction E.1. of Form SB-2,
General Instructions I.B. and I.C.1. of Form B or General
Instruction II. of Form A, any information required by paragraphs
(a)(6) or (a)(8) of this Item with respect to it may be
incorporated by reference from its latest annual report.
Item 21. Information if Proxies, Consents or Authorizations Will
Not be Solicited or in an Exchange Offer.
(a) If proxies, consents or authorizations will not be
solicited in connection with the transaction or in an exchange
offer, provide the following information:
(1) Statement that Proxies are not to be Solicited. Item 2
of Schedule 14C;
(2) Date, Time and Place Information. The date, time and
place of the meeting of security holders, unless such information
is otherwise disclosed in material furnished to security holders
with or preceding the prospectus;
(3) Dissenters' Rights of Appraisal. Item 3 of Schedule
14A;
(4) Affiliates' Interests in the Transaction. A brief
description of any direct or indirect material interest of
affiliates of the registrant and of the company being acquired in
the proposed transaction;
Instruction to Item 21(a)(4).
You need not describe any interest arising from the
ownership of securities where the affiliate receives no
benefit not shared on a pro rata basis by all other holders
of the same class.
(5) Voting Securities and Principal Holders. Item 6 of
Schedule 14A, with respect to both the registrant and the company
being acquired;
Instruction to Item 21(a)(5).
The following registrants and companies being acquired
may provide the information required below instead of the
information required by Item 6(d) of Schedule 14A:
1. Transitional small business issuers that rely upon
Item 10(b) (if a registrant) or 14(a) (if an acquiree) of
this Form: the information required by Questions 37 and 38
of Offering Circular Model A of Form 1-A;
2. Transitional small business issuers that rely upon
Item 10(c) (if a registrant) or 14(b) (if an acquiree) of
this Form: the information required by Item 10 of Offering
Circular Model B of Form 1-A;
3. All other small business issuers, whether
registrants or acquirees: the information required by Item
403 of Regulation S-B; and
4. Larger foreign companies being acquired: the
information specified in Item 4 of Form 20-F.
(6) Vote Required for Approval. Item 21 of Schedule 14A;
and
(7) Directors and Executive Officers. With respect to each
person who will serve as a director or an executive officer of
the registrant, the information required by:
(i) Transitional Small Business Issuers:
(A) Questions 29 - 36 and 39 - 42 of Offering Circular
Model A of Form 1-A, if the registrant or acquiree relied upon
Item 10(b) or 14(a) of this Form, respectively; or
(B) Items 8, 9 and 11 of Offering Circular Model B of Form
1-A, if the registrant or acquiree relied upon Item 10(c) or
14(b) of this Form, respectively;
(ii) All other Small Business Issuers: Items 401, 402 and
404 of Regulation S-B;
(iii) Larger U.S. companies being acquired: Items 401, 402
and 404 of Regulation S-K; and
(iv) Larger foreign companies being acquired: Items 10, 11,
12 and 13 of Form 20-F.
Instruction to Item 21(a).
If proxies, consents or authorizations will not be
solicited in connection with the transaction because the
transaction is an exchange offer, you need not provide the
information required by paragraphs (a)(1), (a)(2) and
(a)(3).
(b) If the registrant or the company being acquired meets
the requirements of General Instruction E.1. of Form SB-2,
General Instruction I.B. and I.C.1. of Form B or General
Instruction II. of Form A, any information required by paragraphs
(a)(5) and (a)(7) of this Item with respect to it may be
incorporated by reference from its latest annual report.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 22. Indemnification of Directors and Officers.
Provide the information required by Item 702 of Regulation
S-B.
Item 23. Exhibits and Financial Statement Schedules.
(a) Transitional small business issuer registrants must
provide the exhibits required by Part II of Form SB-1. All other
small business issuer registrants must provide the exhibits
required by Item 601 of Regulation S-B.
Instruction to Item 23(a).
For the following companies being acquired, provide the
exhibits required below:
(1) Transitional small business issuer being acquired:
Item 2(6) of Part III - Exhibits of Form 1-A;
(2) Any other small business issuer being acquired:
Item 601(b)(10) of Regulation S-B;
(3) Larger U.S. company being acquired: Item
601(b)(10) of Regulation S-K; or
(4) Larger foreign company being acquired: Item
601(b)(10) of Regulation S-K.
(b) Provide the financial statement schedules required by
Regulation S-X and Item 19 of this Form. List each schedule
according to the number assigned to it in Regulation S-X.
(c) If information is provided pursuant to Item 4(b) of
this Form, provide the report, opinion or appraisal as an exhibit
to this Form, unless it is included in the prospectus.
Item 24. Undertakings.
(a) Set forth in the effective registration statement the
undertakings required by Item 512 of Regulation S-B.
(b) Set forth the following undertaking if the registrant
is using this Form for a transaction to be effected on a delayed
basis:
[Name of registrant] will file a post-effective amendment
containing all required information concerning a transaction and
the company being acquired that was not included in the
registration statement when it became effective because it was
not practicable to do so.
SIGNATURES
The registrant hereby certifies that it meets all of the
requirements for filing on Form SB-3. The registrant also
certifies that it has duly caused and authorized the undersigned
to sign this registration statement on its behalf. The
undersigned certifies that he/she has read this registration
statement and to his/her knowledge the registration statement
does not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(Registrant)..........................................
By (Signature and Title)..........................................
Date.....................
The following persons certify that they have read this
registration statement and to their knowledge the registration
statement does not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The
following persons also certify that they are signing below on
behalf of the registrant and in the capacities and on the dates
indicated.
By (Signature and Title)..........................................
Date.....................
By (Signature and Title)..........................................
Date.....................
Signature Instructions.
1. The following persons, or persons performing similar
functions, must sign the registration statement:
(a) the registrant;
(b) its principal executive officer or officers;
(c) its principal financial officer;
(d) its controller or principal accounting officer; and
(e) at least the majority of its board of directors.
2. Where the registrant is a foreign issuer, its
authorized representative in the United States also must sign the
registration statement.
3. Where the registrant is a limited partnership, its
general partner must sign. Where the general partner is a
corporation, the majority of the board of directors of the
corporate general partner must sign the registration statement.
4. Type or print the name and title of each person who
signs the registration statement beneath the person's signature.
Any person who occupies more than one of the specified positions
must indicate each capacity in which that person signs the
registration statement. See Securities Act Rule 402 concerning
manual signatures and Item 601 of Regulation S-K concerning
signatures pursuant to powers of attorney.
5. If the securities to be offered are those of an entity
that is not yet in existence at the time the registration
statement is filed, but which will be a party to a consolidation
involving two or more existing entities, then each existing
entity will be deemed a registrant and must be so designated on
the cover page of the Form. In that case, each existing entity
(and the applicable persons noted in Signature Instructions 1. -
3.) must sign the registration statement as if it were the
registrant.
96. By amending Form S-8 (referenced in ง 239.16b) by
adding four lines immediately preceding the heading "Calculation
of Registration Fee"; Note 3 immediately preceding the General
Instructions; by removing General Instruction C.; by
redesignating General Instructions D. through G. as General
Instructions C. through F.; and by revising newly designated
General Instruction D. to read as follows:
Note: The text of Form S-8 does not and this amendment
will not appear in the Code of Federal
Regulations.
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
* * * * *
Telephone number, including area code, of agent for service
___________________
_______________________________________________________
(Web Site Address, if any)
_____________________________________________
(E-mail Address, if any)
Calculation of Registration Fee
* * * * *
Note 3: If any of the securities registered are not sold in
connection with this offering, the registrant (or a
qualifying wholly-owned subsidiary) may use the dollar amount of
the fee paid with respect to the unsold securities to offset the
total fee due on its subsequent registration statement. See
Securities Act Rule 457(p). When offsetting any part of the fee
under Rule 457(p), the registrant must state the dollar amount
being offset in a footnote to the fee table and must identify the
file number of the registration statement and the amount and
class of securities in connection with which the offsetting fee
was previously paid. Use of Rule 457(p) to offset any fee
automatically deregisters the securities in connection with which
the fee was previously paid.
GENERAL INSTRUCTIONS
* * * * *
D. Registration of Additional Securities.
An issuer may register additional securities of the same
class of securities that have been previously registered on this
form. The registration statement for the additional securities
shall consist only of the following:
(1) a facing page;
(2) a statement that the contents of the earlier registration
statement, identified by its file number, is incorporated by
reference;
(3) all required opinions;
(4) all required consents;
(5) any information required in the new registration statement
that is not in the earlier registration statement; and
(6) a signature page;
A filing fee required by the Act and Rule 457 of this chapter
shall be paid with respect to the additional securities only.
* * * * *
97. By amending Form F-7 (referenced in ง 239.37) to add
four lines to the cover page of the registration statement, to
add one check box to the cover page of the registration statement
immediately before the Calculation of Registration Fee table, a
paragraph to appear as the last paragraph on the cover page of
the registration statement, paragraph K to General Instruction
II, and General Instruction IV. and in Part II following the
center heading to add the heading "Exhibits;" to designate the
introductory text as paragraph (a); to add a heading
"Undertakings;" and to add paragraph (b) to read as follows:
Note:The text of Form F-7 does not and this amendment will
not appear in the Code of Federal Regulations.
U.S. Securities and Exchange Commission
Washington, D.C. 20549
FORM F-7
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
* * * * *
______________________________________________________________________________
(Name, address (including zip code) and telephone number (including area code)
of agent for service in the United States
_______________________________________________________
(Web Site Address, if any)
_____________________________________________
(E-mail Address, if any)
* * * * *
If you are filing this Form to register additional
securities for an offering in accordance with Securities Act Rule
462(b), check the following box and list the Securities Act
registration number of the earlier effective registration
statement for the same offering. [ ]
_____________
CALCULATION OF REGISTRATION FEE*
* * * * *
If any of the securities registered are not sold in
connection with this offering, the registrant (or a qualifying
wholly-owned subsidiary) may use the dollar amount of the fee
paid with respect to the unsold securities to offset the total
fee due on its subsequent registration statement. See Securities
Act Rule 457(p). When offsetting any part of the fee under Rule
457(p), the registrant must state the dollar amount being offset
in a footnote to the fee table and must identify the file number
of the registration statement and the amount and class of
securities in connection with which the offsetting fee was
previously paid. Use of Rule 457(p) to offset any fee
automatically deregisters the securities in connection with which
the fee was previously paid.
GENERAL INSTRUCTIONS
* * * * *
II. Application of General Rules and Regulations
* * * * *
K. You should read Securities Act Rule 172. That rule
describes prospectus delivery obligations applicable to offerings
registered on this Form.
* * * * *
IV. Registration of Additional Securities
A. Under certain circumstances, the registrant may
increase the size of an offering after the effective date through
filing a short-form registration statement under Securities Act
Rule 462(b). A Rule 462(b) registration statement may include
only the following:
1. the facing page;
2. a statement that the earlier registration statement,
identified by file number, is incorporated by reference;
3. any required opinions and consents;
4. the signature page; and
5. any price-related information omitted from the earlier
registration statement in reliance on Securities Act Rule 430A,
if the registrant so chooses.
B. The information contained in a Rule 462(b) registration
statement is deemed to be a part of the earlier effective
registration statement as of the date of effectiveness of the
Rule 462(b) registration statement.
C. The registrant may incorporate by reference from the
earlier registration statement any opinion or consent required in
the Rule 462(b) registration statement if:
1. the opinion or consent expressly allows that
incorporation; and
2. the opinion or consent also relates to the Rule 462(b)
registration statement.
Note to General Instruction IV.
You should read Securities Act Rule 411(c) regarding
incorporation by reference of exhibits and Securities Act
Rule 439(b) regarding incorporation by reference of
consents.
PART II
INFORMATION NOT REQUIRED TO BE SENT TO SHAREHOLDERS
Exhibits
(a) * * *
* * * * *
Undertakings
(b) Include the following undertaking.
The registrant will file with the Commission, on or before
the date of first use, all free writing materials used in
connection with the securities registered on this registration
statement after effectiveness and before the offering is
completed.
* * * * *
98. By amending ง 239.38 to revise paragraph (d)(4) and the
heading "Instructions"; to add Instruction 5 to the Instructions
to paragraph (d); and to revise
paragraph (h)(3) to read as follows:
ง 239.38 Form F-8, for registration under the Securities Act of
1933 of securities of certain Canadian issuers to be issued in
exchange offers or a business combination.
* * * * *
(d) * * *
(4) Public Float/ADTV.
(i) Satisfies either of the following thresholds:
(A) The market value of the public float of the
registrant's outstanding equity shares is $75 million or more and
the average trading volume value is $1 million or more; or (B)
The market value of the public float of the registrant's
outstanding equity shares is $250 million or more; and
(ii) A registrant conducting its own exchange offer need
not meet either of the thresholds in paragraph (d)(4)(i) of this
section.
Instructions to Paragraph (d)
* * * * *
5. For the purposes of this Form, "average daily trading
volume" shall mean the average daily trading volume the
registrant's equity securities on Canadian markets during the
three full calendar months or any 90 consecutive calendar days
ending within 10 calendar days immediately preceding the filing
of the registration statement.
* * * * *
(h) * * *
(3) Public Float/ADTV.
(i) Except for the successor registrant, each company
participating in the business combination satisfies either of the
following thresholds:
(A) The market value of the public float of the company's
outstanding equity shares is $75 million or more and the average
trading volume value is $1 million or more; or (B) The market
value of the public float of the company's outstanding equity
shares is $250 million or more; and
(ii) Any company participating in the business combination
need not meet either of the thresholds in paragraph (h)(3)(i) of
this section if the assets and gross revenues from continuing
operations of the other companies participating in the business
combination comprise at least 80 percent of successor
registrant's total assets and gross revenues from continuing
operations, and each of the other participating companies meets
either of the thresholds in paragraph (h)(3)(i) of this section.
Measurement of the successor registrant's total assets and gross
revenues from continuing operations must be based on the pro
forma combined financial statements of all the participating
companies' most recently completed fiscal years.
(iii) Any company participating in a business combination
will be deemed to have met either of the thresholds in paragraph
(h)(3)(i) of this section if, within the last twelve months:
(A) In connection with an exchange offer, the company's
equity securities either were registered or could have been
registered on Form F-8, F-9, F-10 or F-80 (ง 239.28, 239.39,
239.40 or 239.41) or, in connection with a terminated tender
offer, the company filed or could have filed Schedule 13E-4F (ง
240.13e-102 of this chapter) or Schedule
14D-1F (ง 240.14d-102 of this chapter); and
(B) The company would have satisfied either of the
thresholds in paragraph (h)(3)(i) of this section immediately
before commencing the exchange offer or tender offer. *
* * * *
99. By amending Form F-8 (referenced in ง 239.38) by adding
four lines to the cover page of the registration statement, by
adding one check box to the cover page of the registration
statement immediately before the Calculation of Registration Fee
table, by adding a paragraph to appear as the last paragraph on
the cover page of the registration statement, by revising
paragraph (4) of General Instruction II.A., by adding Instruction
5 to the Instructions to General Instruction II.A., by revising
paragraph (3) of General Instruction III.A, by adding General
Instruction VI., by adding paragraph (c) to Part III. Item 1., to
read as follows:
Note: The text of Form F-8 does not and this amendment
will not appear in the Code of Federal
Regulations.
U.S. Securities and Exchange Commission
Washington, D.C. 20549
FORM F-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
* * * * *
______________________________________________________________________________
(Name, address (including zip code) and telephone number (including area code)
of agent for service in the United States
_______________________________________________________
(Web Site Address, if any)
_____________________________________________
(E-mail Address, if any)
* * * * *
If you are filing this Form to register additional
securities for an offering in accordance with Securities Act Rule
462(b), check the following box and list the Securities Act
registration number of the earlier effective registration
statement for the same offering. [ ]
_____________
CALCULATION OF REGISTRATION FEE*
* * * * *
If any of the securities registered are not sold in
connection with this offering, the registrant (or a qualifying
wholly-owned subsidiary) may use the dollar amount of the fee
paid with respect to the unsold securities to offset the total
fee due on its subsequent registration statement. See Securities
Act Rule 457(p). When offsetting any part of the fee under Rule
457(p), the registrant must state the dollar amount being offset
in a footnote to the fee table and must identify the file number
of the registration statement and the amount and class of
securities in connection with which the offsetting fee was
previously paid. Use of Rule 457(p) to offset any fee
automatically deregisters the securities in connection with which
the fee was previously paid.
GENERAL INSTRUCTIONS
* * * * *
II. Eligibility Requirements for Exchange Offers
A. * * *
(4) Public Float/ADTV.
(i) Satisfies either of these thresholds:
(A) The market value of the public float of the
registrant's outstanding equity shares is $75 million or more and
the average trading volume value is $1 million or more; or (B)
The market value of the public float of the registrant's
outstanding equity shares is $250 million or more.
(ii) A registrant conducting its own exchange offer need not
meet either of the thresholds in paragraph A.(4)(i).
Instructions
* * * * *
5. For the purposes of this Form, "average daily trading
volume" shall mean the average daily trading volume of the
registrant's equity securities on Canadian markets during the
three full calendar months or any 90 consecutive calendar days
ending within 10 calendar days immediately preceding the filing
of the registration statement.
* * * * *
III. Eligibility Requirements for Business Combinations
A. * * *
(3) Public Float/ADTV.
(i) Except for the successor registrant, each company
participating in the business combination satisfies either of the
following thresholds:
(A) The market value of the public float of the company's
outstanding equity shares is $75 million or more and the average
trading volume value is $1 million or more; or (B) The market
value of the public float of the company's outstanding equity
shares is $250 million or more.
(ii) Any company participating in the business combination
need not meet either of the thresholds in paragraph A.(3)(i) of
this instruction if the assets and gross revenues from continuing
operations of the other companies participating in the business
combination comprise at least 80 percent of successor
registrant's total assets and gross revenues from continuing
operations, and each of the other participating companies meets
either of the thresholds in paragraph (A)(3)(i) of this section.
Measurement of the successor registrant's total assets and gross
revenues from continuing operations must be based on the pro
forma combined financial statements of all the participating
companies' most recently completed fiscal years.
(iii) Any company participating in a business combination
will be deemed to have met either of the thresholds in paragraph
A.(3)(i) of this Instruction if, within the last twelve months:
(A) In connection with an exchange offer, the company's
equity securities either were registered or could have been
registered on Form F-8, F-9, F-10 or F-80 or, in connection with
a terminated tender offer, the company filed or could have filed
Schedule 13E-4F or 14D-1F; and
(B) The company would have satisfied either of the
thresholds in paragraph A.(3)(i) immediately before commencing
the exchange offer or tender offer.
* * * * *
VI. Registration of Additional Securities
A. Under certain circumstances, the registrant may
increase the size of an offering after the effective date through
filing a short-form registration statement under Securities Act
Rule 462(b). A Rule 462(b) registration statement may include
only the following:
1. the facing page;
2. a statement that the earlier registration statement,
identified by file number, is incorporated by reference;
3. any required opinions and consents;
4. the signature page; and
5. any price-related information omitted from the earlier
registration statement in reliance on Rule 430A, if the
registrant so chooses.
B. The information contained in a Rule 462(b) registration
statement is deemed to be a part of the earlier effective
registration statement as of the date of effectiveness of the
Rule 462(b) registration statement.
C. The registrant may incorporate by reference from the
earlier registration statement any opinion or consent required in
the Rule 462(b) registration statement if:
1. the opinion or consent expressly allows that
incorporation; and
2. the opinion or consent also relates to the Rule 462(b)
registration statement.
Note to General Instruction VI.
You should read Securities Act Rule 411(c) regarding
incorporation by reference of exhibits and Securities Act
Rule 439(b) regarding incorporation by reference of
consents.
* * * * *
PART III
UNDERTAKINGS AND CONSENT TO SERVICE OF PROCESS
Item 1. Undertakings
(a) * * *
(b) * * *
(c) The registrant will file with the Commission, on or
before the date of first use, all free writing materials used in
connection with the securities registered on this registration
statement after effectiveness and before the offering is
completed.
* * * * *
100. By amending ง 239.39 to revise paragraph (b)(4); and to
add Instruction 7 to the Instructions to paragraph (b) to read as
follows:
ง 239.39 Form F-9, for registration under the Securities Act of
1933 of certain investment grade debt or investment
grade preferred securities of certain Canadian issuers.
* * * * *
(b) * * *
(4) Public Float/ADTV.
(i) Satisfies either of the following thresholds:
(A) The market value of the public float of the
registrant's outstanding equity shares is $75 million or more and
the average trading volume value is $1 million or more; or (B)
The market value of the public float of the registrant's
outstanding equity shares is $250 million or more.
(ii) A registrant need not meet either of the thresholds in
paragraph (b)(4)(i) of this section if it is using this Form to
register securities that are not convertible into another
security.
Instructions
* * * * *
7. For the purposes of this Form, "average daily trading
volume" shall mean the average daily trading volume of the
registrant's equity securities on Canadian markets during the
three full calendar months or any 90 consecutive calendar days
ending within 10 calendar days immediately preceding the filing
of the registration statement.
* * * * *
101. By amending Form F-9 (referenced in ง 239.39) to add
four lines to the cover page of the registration statement, to
add a check box to the cover page of the registration statement
immediately before the "Calculation of Registration Fee" table,
and one paragraph to appear as the last paragraph on the cover
page of the registration statement; to revise paragraph (4) of
General Instruction I.B.; to add Instruction 7 to the
Instructions to General Instruction I.B., paragraph M. to General
Instruction II., General Instruction IV.; and in Part III Item
1., to designate the existing text as paragraph (a) and to add
paragraph (b) to read as follows:
Note: The text of Form F-9 will not appear in the Code
of Federal Regulations.
U.S. Securities and Exchange Commission
Washington D.C., 20549
FORM F-9
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
* * * * *
________________________________________________________________________
(Name, address (including zip code) and telephone number
(including area code)
of agent for service in the United States
_______________________________________________________
(Web Site Address, if any)
_____________________________________________
(E-mail Address, if any)
* * * * *
If you are filing this Form to register additional
securities for an offering in accordance with Securities Act Rule
462(b) under the Securities Act, check the following box and list
the Securities Act registration number of the earlier effective
registration statement for the same offering.
[ ] _____________
CALCULATION OF REGISTRATION FEE*
* * * * *
If any of the securities registered are not sold in
connection with this offering, the registrant (or a qualifying
wholly-owned subsidiary) may use the dollar amount of the fee
paid with respect to the unsold securities to offset the total
fee due on its subsequent registration statement. See Securities
Act Rule 457(p). When offsetting any part of the fee under Rule
457(p), the registrant must state the dollar amount being offset
in a footnote to the fee table and must identify the file number
of the registration statement and the amount and class of
securities in connection with which the offsetting fee was
previously paid. Use of Rule 457(p) to offset any fee
automatically deregisters the securities in connection with which
the fee was previously paid.
GENERAL INSTRUCTIONS
I. Eligibility Requirements for Use of Form F-9
* * * * *
B. * * *
(4) Public Float/ADTV.
(i) Satisfies either of the following thresholds:
(A) The market value of the public float of the
registrant's outstanding equity shares is $75 million or more and
the average trading volume value is $1 million or more; or (B)
The market value of the public float of the registrant's
outstanding equity shares is $250 million or more.
(ii) A registrant need not meet either of the thresholds in
paragraph B.(4)(i) of this Instruction if it is using this Form
to register securities that are not convertible into another
security.
Instructions
* * * * *
7. For the purposes of this Form, "average daily trading
volume" shall mean the average daily trading volume on Canadian
markets during the three full calendar months or any 90
consecutive calendar days ending within 10 calendar days
immediately preceding the filing of the registration statement.
* * * * *
II. Application of General Rules and Regulations
* * * * *
M. You should read Securities Act Rule 172. That rule
describes prospectus delivery obligations applicable to offerings
registered on this Form.
* * * * *
IV. Registration of Additional Securities
A. Under certain circumstances, the registrant may
increase the size of an offering after the effective date through
filing a short-form registration statement under Securities Act
Rule 462(b). A Rule 462(b) registration statement may include
only the following:
1. the facing page;
2. a statement that the earlier registration statement,
identified by file number, is incorporated by reference;
3. any required opinions and consents;
4. the signature page; and
5. any price-related information omitted from the earlier
registration statement in reliance on Rule 430A, if the
registrant so chooses.
B. The information contained in a Rule 462(b) registration
statement is deemed to be a part of the earlier effective
registration statement as of the date of effectiveness of the
Rule 462(b) registration statement.
C. The registrant may incorporate by reference from the
earlier registration statement any opinion or consent required in
the Rule 462(b) registration statement if:
1. the opinion or consent expressly allows that
incorporation; and
2. the opinion or consent also relates to the Rule 462(b)
registration statement.
Note to General Instruction IV.
You should read Securities Act Rule 411(c) regarding
incorporation by reference of exhibits and Securities Act
Rule 439(b) regarding incorporation by reference of
consents.
* * * * *
PART III
UNDERTAKINGS AND CONSENTS TO SERVICE OF PROCESS
Item 1. Undertakings
Include the following undertakings:
(a) * * *
(b) The registrant will file with the Commission, on or
before the date of first use, all free writing materials used in
connection with the securities registered on this registration
statement after effectiveness and before the offering is
completed.
* * * * *
102. By amending ง 239.40 to revise paragraph (c)(4); and to
add Instruction 5 to the Instructions to paragraph (c) to read as
follows:
ง 239.40 Form F-10, for registration under the Securities Act of
1933 of securities of certain Canadian issuers.
* * * * *
(c) * * *
(4) Public Float/ADTV.
(i) Satisfies either of the following thresholds:
(A) The market value of the public float of the
registrant's outstanding equity shares is $75 million or more and
the average trading volume value is $1 million or more; or
(B) The market value of the public float of the
registrant's outstanding equity shares is $250 million or more.
(ii) Except for the successor issuer, any company
participating in the business combination need not meet either of
the thresholds in paragraph (c)(4)(i) of this section if the
assets and gross revenues from continuing operations of the other
companies participating in the business combination comprise at
least 80 percent of successor registrant's total assets and gross
revenues from continuing operations, and each of the other
participating companies meets either of the thresholds in
paragraph (c)(4)(i) of this section. Measurement of the
successor registrant's total assets and gross revenues from
continuing operations must be based on the pro forma combined
financial statements of all the participating companies' most
recently completed fiscal years.
(iii) Any company participating in a business combination
will be deemed to have satisfied either of the thresholds in
paragraph (c)(4)(i) of this section if, within the last twelve
months:
(A) In connection with an exchange offer, the company's
equity securities either were registered or could have been
registered on Form F-8, F-9, F-10 or F-80 (ง 239.38, 239.39,
239.40 or 239.41) or, in connection with a terminated tender
offer, the company filed or could have filed Schedule 13E-4F (ง
240.13e-102 of this chapter) or Schedule
14D-1F (ง 240.14d-102 of this chapter); and
(B) The company would have satisfied either threshold in
paragraph (c)(4)(i) of this section immediately before commencing
the exchange offer or tender offer.
Instructions
* * * * *
5. For the purposes of this Form, "average daily trading
volume" shall mean the average daily trading volume of the
registrant's equity securities on Canadian markets during the
three full calendar months or any 90 consecutive calendar days
ending within 10 calendar days immediately preceding the filing
of the registration statement.
* * * * *
103. By revising Form F-10 (referenced in ง 239.40) to add
four lines to the cover page of the registration statement, to
add one check box to the cover page of the registration statement
immediately before the "Calculation of Registration Fee" table,
one paragraph to appear as the last paragraph on the cover page
of the registration statement; to revise paragraph (4) of General
Instruction I.C.; to add Instruction 5 to the Instructions to
General Instruction I.C. and paragraph N. to General Instruction
II, General Instruction IV.; and in Part III Item 1., to
designate the second paragraph as paragraph (a) and to add
paragraph (b) to read as follows:
* * * * *
Note: The text of Form F-10 does not and this amendment
will not appear in the Code of Federal
Regulations.
U.S. Securities and Exchange Commission
Washington, D.C. 20549
FORM F-10
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
* * * * *
_____________________________________________________________________________
(Name, address (including zip code) and telephone number
(including area code)
of agent for service in the United States
_______________________________________________________
(Web Site Address, if any)
_____________________________________________
(E-mail Address, if any)
* * * * *
If you are filing this Form to register additional
securities for an offering in accordance with Securities Act Rule
462(b), check the following box and list the Securities Act
registration number of the earlier effective registration
statement for the same offering.
[ ] _____________
CALCULATION OF REGISTRATION FEE*
* * * * *
If any of the securities registered are not sold in
connection with this offering, the registrant (or a qualifying
wholly-owned subsidiary) may use the dollar amount of the fee
paid with respect to the unsold securities to offset the total
fee due on its subsequent registration statement. See Securities
Act Rule 457(p). When offsetting any part of the fee under Rule
457(p), the registrant must state the dollar amount being offset
in a footnote to the fee table and must identify the file number
of the registration statement and the amount and class of
securities in connection with which the offsetting fee was
previously paid. Use of Rule 457(p) to offset any fee
automatically deregisters the securities in connection with which
the fee was previously paid.
GENERAL INSTRUCTIONS
I. General Eligibility Requirements for Use of Form F-10
* * * * *
C. * * *
(4) Public Float/ADTV.
(i) Satisfies either of the following thresholds:
(A) The market value of the public float of the
registrant's outstanding equity shares is $75 million or more and
the average trading volume value is $1 million or more; or
(B) The market value of the public float of the
registrant's outstanding equity shares is $250 million or more.
(ii) Any individual company participating in the business
combination need not meet either of the thresholds in paragraph
C.(4)(i) of this Instruction if the assets and gross revenues
from continuing operations of the other companies participating
in the business combination comprise at least 80 percent of
successor registrant's total assets and gross revenues from
continuing operations, and each of the other participating
companies meets the either of the thresholds in paragraph
C.(4)(i). Measurement of the successor registrant's total assets
and gross revenues from continuing operations must be based on
the pro forma combined financial statements of all the
participating companies' most recently completed fiscal years.
(iii) Any company participating in a business combination
will be deemed to have satisfied either of the thresholds in
paragraph C.(4)(i) of this Instruction if, within the last twelve
months:
(A) In connection with an exchange offer, the company's
equity securities either were registered or could have been
registered on Form F-8, F-9, F-10 or F-80 or, in connection with
a terminated tender offer, the company filed or could have filed
Schedule 13E-4F or 14D-1F; and
(B) The company would have satisfied either threshold in
paragraph C.(4)(i) of this Instruction immediately before
commencing the exchange offer or tender offer.
Instructions
* * * * *
5. For the purposes of this Form, "average daily trading
volume" shall mean the average daily trading volume of the
registrant's equity securities on Canadian markets during the
three full calendar months or any 90 consecutive calendar days
ending within 10 calendar days immediately preceding the filing
of the registration statement.
* * * * *
II. Application of General Rules and Regulations
* * * * *
N. You should read Securities Act Rule 172. That rule
describes prospectus delivery obligations applicable to offerings
registered on this Form.
* * * * *
IV. Registration of Additional Securities
A. Under certain circumstances, the registrant may
increase the size of an offering after the effective date through
filing a short-form registration statement under Securities Act
Rule 462(b). A Rule 462(b) registration statement may include
only the following:
1. the facing page;
2. a statement that the earlier registration statement,
identified by file number, is incorporated by reference;
3. any required opinions and consents;
4. the signature page; and
5. any price-related information omitted from the earlier
registration statement in reliance on Securities Act Rule 430A,
if the registrant so chooses.
B. The information contained in a Rule 462(b) registration
statement is deemed to be a part of the earlier effective
registration statement as of the date of effectiveness of the
Rule 462(b) registration statement.
C. The registrant may incorporate by reference from the
earlier registration statement any opinion or consent required in
the Rule 462(b) registration statement if:
1. the opinion or consent expressly allows that
incorporation; and
2. the opinion or consent also relates to the Rule 462(b)
registration statement.
Note to General Instruction IV.
You should read Securities Act Rule 411(c) regarding
incorporation by reference of exhibits and Securities Act
Rule 439(b) regarding incorporation by reference of
consents.
* * * * *
PART III
UNDERTAKINGS AND CONSENT TO SERVICE OF PROCESS
Item 1. Undertakings
Include the following undertakings:
(a) * * *
(b) The registrant will file with the Commission, on or
before the date of first use, all free writing materials used in
connection with the securities registered on this registration
statement after effectiveness and before the offering is
completed.
* * * * *
104. By amending ง 239.41 to revise paragraph (d)(4); to add
Instruction 5 to the Instructions to paragraph (d); and to revise
paragraph (h)(3) to read as follows:
ง 239.41 Form F-80, for registration under the Securities Act of
1933 of securities of certain Canadian issuers to be
issued in exchange offers or a business combination.
* * * * *
(d) * * *
(4) Public Float/ADTV.
(i) Satisfies either of the following thresholds:
(A) The market value of the public float of the
registrant's outstanding equity shares is $75 million or more and
the average trading volume value is $1 million or more; or (B)
The market value of the public float of the registrant's
outstanding equity shares is $250 million or more.
(ii) A registrant conducting its own exchange offer need not
meet either of the thresholds in paragraph (d)(4)(i) of this
section.
Instructions
* * * * *
5. For the purposes of this Form, "average daily trading
volume" shall mean the average daily trading volume of the
registrant's equity securities on Canadian markets during the
three full calendar months or any 90 consecutive calendar days
ending within 10 calendar days immediately preceding the filing
of the registration statement.
* * * * *
(h) * * *
(3) Public Float/ADTV.
(i) Except for the successor registrant, each company
participating in the business combination satisfies either of the
following thresholds:
(A) The market value of the public float of the company's
outstanding equity shares is $75 million or more and the average
trading volume value is $1 million or more; or (B) The market
value of the public float of the company's outstanding equity
shares is $250 million or more.
(ii) Any company participating in the business combination
need not meet either of the thresholds in paragraph (h)(3)(i) of
this section if the assets and gross revenues from continuing
operations of the other companies participating in the business
combination comprise at least 80 percent of successor
registrant's total assets and gross revenues from continuing
operations, and each of the other participating companies meets
either of the thresholds in paragraph (h)(3)(i) of this section.
Measurement of the successor registrant's total assets and gross
revenues from continuing operations must be based on the pro
forma combined financial statements of all the participating
companies' most recently completed fiscal years.
(iii) Any company participating in a business combination
will be deemed to have met either of the thresholds in paragraph
(h)(3)(i) of this section if, within the last twelve months:
(A) In connection with an exchange offer, the company's
equity securities either were registered or could have been
registered on Form F-8, F-9, F-10 or F-80 (ง 239.38, 239.39,
239.40 or 239.41) or, in connection with a terminated tender
offer, the company filed or could have filed Schedule 13E-4F (ง
240.13e-102 of this chapter) or 14D-1F (ง 240.14d-102 of this
chapter); and
(B) The company would have satisfied either threshold in
paragraph (h)(3)(i) of this section immediately before commencing
the exchange offer or tender offer.
105. By amending Form F-80 (referenced in ง 239.41) to add
four lines to the cover page of the registration statement, to
add one check box to the cover page of the registration statement
immediately before the "Calculation of Registration Fee" table,
one paragraph to appear as the last paragraph on the cover page
of the registration statement; to revise paragraph (4) of General
Instruction II.A.; to add Instruction 5 to the Instructions to
General Instruction II.A.; to revise paragraph (3) of General
Instruction III.A.; to add General Instruction VI.; and in Part
III Item 1. to add paragraph (c) to read as follows:
* * * * *
Note: The text of Form F-80 does not and this amendment
will not appear in the Code of Federal
Regulations.
U.S. Securities and Exchange Commission
Washington, D.C., 20549
FORM F-80
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
* * * * *
_____________________________________________________________________________
(Name, address (including zip code) and telephone number
(including area code)
of agent for service in the United States
_______________________________________________________
(Web Site Address, if any)
_____________________________________________
(E-mail Address, if any)
* * * * *
If you are filing this Form to register additional
securities for an offering in accordance with Securities Act Rule
462(b), check the following box and list the Securities Act
registration number of the earlier effective registration
statement for the same offering. [ ]
_____________
CALCULATION OF REGISTRATION FEE*
If any of the securities registered are not sold in
connection with this offering, the registrant (or a qualifying
wholly-owned subsidiary) may use the dollar amount of the fee
paid with respect to the unsold securities to offset the total
fee due on its subsequent registration statement. See Securities
Act Rule 457(p). When offsetting any part of the fee under Rule
457(p), the registrant must state the dollar amount being offset
in a footnote to the fee table and must identify the file number
of the registration statement and the amount and class of
securities in connection with which the offsetting fee was
previously paid. Use of Rule 457(p) to offset any fee
automatically deregisters the securities in connection with which
the fee was previously paid.
GENERAL INSTRUCTIONS
* * * * *
II. Eligibility Requirements for Exchange Offers
A. * * *
(4) Public Float/ADTV.
(i) Satisfies either of these thresholds:
(A) The market value of the public float of the
registrant's outstanding equity shares is $75 million or more and
the average trading volume value is $1 million or more; or (B)
The market value of the public float of the registrant's
outstanding equity shares is $250 million or more.
(ii) A registrant conducting its own exchange offer need not
meet either of the thresholds in paragraph A.(4)(i) of this
Instruction.
Instructions
* * * * *
5. For the purposes of this Form, "average daily trading
volume" shall mean the average daily trading volume of the
registrant's equity securities on Canadian markets during the
three full calendar months or any 90 consecutive calendar days
ending within 10 calendar days immediately preceding the filing
of the registration statement.
* * * * *
III. Eligibility Requirements for Business Combinations
A. * * *
(3) Public Float/ADTV.
(i) Except for the successor registrant, each company
participating in the business combination satisfies either of the
following thresholds:
(A) The market value of the public float of the company's
outstanding equity shares is $75 million or more and the average
trading volume value is $1 million or more; or (B) The market
value of the public float of the company's outstanding equity
shares is $250 million or more.
(ii) Any company participating in the business combination
need not meet either of the thresholds in paragraph A.(3)(i) of
this Instruction if the assets and gross revenues from continuing
operations of the other companies participating in the business
combination comprise at least 80 percent of successor
registrant's total assets and gross revenues from continuing
operations, and each of the other participating companies meets
either of the thresholds in paragraph A.(3)(i) of this
Instruction. Measurement of the successor registrant's total
assets and gross revenues from continuing operations must be
based on the pro forma combined financial statements of all the
participating companies' most recently completed fiscal years.
(iii) Any company participating in a business combination
will be deemed to have met either of the thresholds in paragraph
A.(3)(i) of this Instruction if, within the last twelve months:
(A) In connection with an exchange offer, the company's
equity securities either were registered or could have been
registered on Form F-8, F-9, F-10 or F-80 or, in connection with
a terminated tender offer, the company filed or could have filed
Schedule 13E-4F or 14D-1F; and
(B) The company would have satisfied either threshold in
paragraph A.(3)(i) of this Instruction immediately before
commencing the exchange offer or tender offer.
* * * * *
VI. Registration of Additional Securities
A. Under certain circumstances, the registrant may
increase the size of an offering after the effective date through
filing a short-form registration statement under Securities Act
Rule 462(b). A Rule 462(b) registration statement may include
only the following:
1. the facing page;
2. a statement that the earlier registration statement,
identified by file number, is incorporated by reference;
3. any required opinions and consents;
4. the signature page; and
5. any price-related information omitted from the earlier
registration statement in reliance on Securities Act Rule 430A,
if the registrant so chooses.
B. The information contained in a Rule 462(b) registration
statement is deemed to be a part of the earlier effective
registration statement as of the date of effectiveness of the
Rule 462(b) registration statement.
C. The registrant may incorporate by reference from the
earlier registration statement any opinion or consent required in
the Rule 462(b) registration statement if:
1. the opinion or consent expressly allows that
incorporation; and
2. the opinion or consent also relates to the Rule 462(b)
registration statement.
Note to General Instruction VI.
You should read Securities Act Rule 411(c) regarding
incorporation by reference of exhibits and Securities Act
Rule 439(b) regarding incorporation by reference of
consents.
* * * * *
PART III
UNDERTAKINGS AND CONSENT TO SERVICE OF PROCESS
Item 1. Undertakings
(a) * * *
(b) * * *
(c) The registrant will file with the Commission, on or
before the date of first use, all free writing materials used in
connection with the securities registered on this registration
statement after effectiveness and before the offering is
completed.
* * * * *
PART 240 - GENERAL RULES AND REGULATIONS, SECURITIES
EXCHANGE ACT OF 1934
106. By revising the general authority citation for Part 240
to read as follows:
Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77eee,
77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78f, 78i, 78j, 78j-1, 78k,
78k-1, 78l, 78m, 78n, 78o, 78p, 78q, 78s, 78u-5, 78w, 78x,
78ll(d), 78mm, 79q, 79t, 80a-20, 80a-23, 80a-29, 80a-37, 80b-3,
80b-4 and 80b-11, unless otherwise noted.
* * * * *
107. By amending ง 240.12b-2 by revising the definition of
"small business issuer" to read as follows:
ง 240.12b-2 Definitions.
* * * * *
Small Business Issuer. The term "small business issuer"
means an entity that meets the following criteria:
(1) Has revenues (including revenues of any consolidated
subsidiaries) of less than $50,000,000;
(2) Is a U.S. or Canadian issuer;
(3) Is not an investment company;
(4) If a majority-owned subsidiary, the parent corporation
is also a small business issuer; and
(5) Each majority-owned subsidiary of the entity, if any,
meets the criteria of paragraphs (2) and (3) of this definition.
* * * * *
108. By adding ง 240.12b-24 to read as follows:
ง 240.12b-24 Plain English risk factor disclosure.
(a) To enhance the readability of risk factor disclosure,
you must use plain English principles in the organization,
language and design of the risk factor section of any Exchange
Act registration statement or report.
(b) Any disclosure you provide in those registration
statements or reports that relates to risk factors must, at a
minimum, substantially comply with each of the following plain
English writing principles:
(1) Short sentences;
(2) Definite, concrete, everyday words;
(3) Active voice;
(4) Tabular presentation or bullet lists for complex
material, whenever possible;
(5) No legal jargon or highly technical business terms; and
(6) No multiple negatives.
Note to this section.
You should read Securities Act Release No. 7497
(January 28, 1998) for more information on plain English
principles.
109. By adding two notes at the end of ง 240.12d1-2 to read
as follows:
ง 240.12d1-2 Effectiveness of registration.
* * * * *
Notes to Rule 12d1-2
(1) As established by Section 12(g) of the Exchange Act
(15 U.S.C. 78l(g)), a Form 8-A (ง 249.208a of this chapter)
filed under paragraph (c) of this section becomes effective
no more than 60 days after the date that registration
statement is filed with the Commission. The automatic
effectiveness described in paragraph (c) permits earlier
effectiveness of the Form 8-A only.
(2) Registrants may use Forms A, B, C, SB-1, SB-2, or
SB-3 or Schedule B (ง 239.4, 239.5, 239.6, 239.9, 239.10, or
239.11 or 15 U.S.C. 77aa) to register a class of securities
under Section 12 of the Exchange Act concurrently with the
registration of a public offering of securities of that
class under the Securities Act. The Exchange Act
registration on Forms A, B, C, SB-1, SB-2 or SB-3 will
become effective as described in those forms. The Exchange
Act registration on Schedule B will become effective as
described in Securities Act Rule 499. Securities Act Rule
499 also sets forth disclosure and procedural requirements
for registrants using Schedule B for concurrent registration
under the Exchange Act and the Securities Act.
110. By amending ง 240.13a-10 by removing the word "six" and
adding, in its place, the word "five" in paragraph (g)(3).
* * * * *
111. By amending ง 240.13a-13 by revising paragraph (d) to
read as follows:
ง 240.13a-13 Quarterly reports on Form 10-Q and Form 10-QSB (ง
249.308a and ง 249.308b of this chapter).
* * * * *
(d) Notwithstanding the foregoing provisions of this
section, market risk disclosure required by Item 3 of Part I of
Form 10-Q shall not be deemed to be "filed" for the purpose of
Section 18 of the Act (15 U.S.C. 78r). That disclosure,
therefore, shall not be subject to the liabilities of that
Section. That disclosure shall, however, be subject to all other
provisions of the Act.
112. By amending ง 240.14a-2 by removing at the end of
paragraph (a)(5) the words "Act of 1935; and" and adding, in
their place, the words "Act of 1935;", at the end of paragraph
(a)(6) the words "by security holders." and adding, in their
place, the words "by security holders; and"; and by adding
paragraph (a)(7) to read as follows.
ง 240.14a-2Definitions.
* * * * *
(a) * * *
(7) Any solicitation by a broker or dealer made in
accordance with ง 230.138 or ง 230.139 of this chapter in
connection with an offering registered under the Securities Act
of 1933.
113. By amending ง 240.14a-101 by revising Note E., by
revising paragraph (b)(1), and by revising the heading to
paragraph (b)(2) of Item 13 to read as follows:
ง 240.14a-101 Schedule 14A. Information required in proxy
statement.
* * * * *
E. In Item 13 of this Schedule, the reference to "meets
the requirements of Form B" shall mean a registrant who meets:
(1) the requirements of General Instruction I.B. of Form B;
and
(2) one of the following:
(a) General Instruction I.C.1. of Form B;
(b) General Instruction I.C.4. of Form B, if action is to
be taken as described in Item 11, 12 and 14 of this schedule that
concerns non-convertible debt or preferred securities which are
"investment grade securities." The time by which the rating must
be assigned shall be the date on which definitive copies of the
proxy statement are first sent or given to security holders; or
(c) General Instruction I.C.5. of Form B.
* * * * *
Item 13. Financial and Other Information
(See Notes D and E at the Beginning of this Schedule.)
(a) * * *
(b) * * *
(1) Form B registrants. If the registrant meets the
requirements of Form B (as defined in Note E), it may incorporate
by reference to previously filed documents any of the information
required by paragraph (a) of this Item, provided that the
requirements of paragraph (c) are met. Where the registrant
meets these requirements of Form B and has elected to furnish the
required information by incorporation by reference, the
registrant may elect to update the information incorporated by
reference to information in subsequently filed documents.
(2) All other registrants.
* * * * *
114. By revising paragraph (b) and by removing the words "of
paragraphs (b) and (d)" in the last sentence of paragraph (d) of
ง 240.15c2-8 to read as follows:
ง 240.15c2-8 Delivery of prospectus information.
* * * * *
(b) A broker or dealer, and any person acting on behalf of
them, must deliver prospectus information to each person offered
securities in connection with an offering registered under the
Securities Act as follows:
(1) Form B and Schedule B Seasoned Issuers. If the issuer
is offering securities as described in paragraph (b)(1)(i), then
delivery under paragraph (b)(1)(ii) must be made.
(i) Securities in an offering registered on:
(A) Form B (ง 239.5 of this chapter), other than pursuant
to General Instruction I.C.6. of that Form; or
(B) Schedule B (15 U.S.C. 77aa) where a firm commitment
underwritten offering in excess of $250 million in securities
takes place more than one year after the effective date of the
issuer's initial registered offering;
(ii) A term sheet prospectus that contains the following
information must be sent in a manner reasonably designed to
arrive before the date an investor makes a binding investment
decision:
(A) An itemization of the material terms of the securities
in summary format;
(B) The name of any person, other than the issuer, for
whose account securities are offered and a brief identification
of any material relationship such person has (or had within the
past three years) with the issuer or any affiliate of the issuer;
(C) The identity and location of a contact person to whom
questions may be directed; and
(D) The identity and location of a person who, upon
request, will send promptly the documents that define the terms
of the securities.
(2) Other issuers -- firm commitment underwritten
offerings. If an offering is registered on Form A, Form SB-1,
Form SB-2, Form F-7, Form F-9, Form F-10 (other than in a
business combination), (ง 239.4, 239.9, 239.10, 239.37, 239.39 or
239.40 of this chapter) or on Schedule B (other than as described
in paragraph (1) above), is underwritten on a firm commitment
basis and the offering:
(i) Is the issuer's initial offering registered in
accordance with Section 5 of the Securities Act (15 U.S.C. 77e)
or is an offering taking place within one year of the effective
date of the issuer's initial registered offering, then a
prospectus satisfying Section 10 (15 U.S.C. 77j) of the
Securities Act must be sent to each investor in a manner
reasonably designed to arrive at least 7 calendar days before the
pricing of the securities.
(ii) Takes place more than one year after the effective date
of the issuer's initial offering registered in accordance with
Section 5 of the Securities Act, then a prospectus satisfying
Section 10 of the Securities Act must be sent to each investor in
a manner reasonably designed to arrive at least 3 calendar days
before the pricing of the securities.
(3) Other issuers -- non-firm commitment underwritten
offerings. If an offering is registered on Form A, Form SB-1,
Form SB-2, Form F-7, Form F-9, Form F-10 (other than in a
business combination), or on Schedule B (other than as described
in paragraph (1) of this section), is not underwritten on a firm
commitment basis and the offering:
(i) Is the issuer's initial offering in accordance with
Section 5 of the Securities Act or is an offering taking place
within one year of the effective date of the issuer's initial
registered offering, then a prospectus satisfying Section 10 of
the Securities Act must be sent to each investor in a manner
reasonably designed to arrive at least 7 calendar days before the
investor signs a subscription agreement or otherwise commits to
purchase securities.
(ii) Takes place more than one year after the effective date
of the issuer's initial registered offering in accordance with
Section 5 of the Securities Act, then a prospectus satisfying
Section 10 of the Securities Act must be sent to each investor in
a manner reasonably designed to arrive at least 3 calendar days
before the investor signs a subscription agreement or otherwise
commits to purchase securities.
Note to paragraphs (2) and (3).
A broker or dealer may choose to deliver a prospectus
meeting the requirements of Section 10(a) of the Securities
Act, instead of a prospectus meeting the requirements of
Section 10 of the Securities Act, if it does so in
accordance with the terms of paragraphs (2) and (3).
(4) Roll-ups. Notwithstanding paragraphs (1) through (3)
of this section, if an issuer is registering a roll-up
transaction as defined in ง 229.901(c) of this chapter, a
prospectus that satisfies the requirements of Section 10 of the
Securities Act must be sent to each investor no later than the
earlier of:
(i) 60 calendar days before the meeting at which the
roll-up transaction will be submitted to a vote or 60 calendar
days before the earliest date on which partnership action could
be taken by consent; and
(ii) The date calculated by applying the maximum number of
days permitted for giving notice under applicable state law.
(5) Material changes. If not previously disclosed by any
other means to investors, a broker or dealer must send to each
investor a document setting forth material changes to the
information in the prospectus delivered in a manner reasonably
designed to arrive at least 24 hours before:
(i) The securities are priced, if the offering is subject
to paragraph (2) of this section;
(ii) The investor signs a subscription agreement or
otherwise commits to purchase securities, if the offering is
subject to paragraph (3) of this section; or
(iii) The date of the meeting at which the transaction will
be submitted to a vote or on which partnership action could be
taken by consent, if the offering is subject to paragraph (4) of
this section.
(6) Rule 462 registration statements. Notwithstanding
paragraphs (1) through (4), if an offering is registered in part
through a registration statement filed under ง 230.462(b) or
ง 230.462(e), a prospectus delivered with respect to the earlier
registration statement to an investor in compliance with this
ง 240.15c2-8 will be deemed to satisfy the delivery requirements
with respect to that investor under this ง 240.15c2-8 with
respect to the ง 230.462(b) or ง 230.462(e) registration
statement for the offering, provided that the broker or dealer
otherwise informs investors purchasing in the offering of the
change in the size of the offering.
* * * * *
115. By amending ง 240.15d-10 by removing the word "six" and
adding, in its place, the word "five" in paragraph (g)(3)
116. By amending the last sentence of paragraph (a) of ง
240.15d-13 by revising paragraph (d) and removing paragraph (e)
to read as follows:
ง 240.15d-13 Quarterly reports on Form 10-Q and Form 10-QSB (ง
249.308a and ง 249.308b of this chapter).
* * * * *
(d) Notwithstanding the foregoing provisions of this
section, market risk disclosure required by of Item 3 of Part I
of Form 10-Q shall not be deemed to be "filed" for the purpose of
Section 18 of the Act (15 U.S.C. 78r). That disclosure,
therefore, shall not be subject to the liabilities of that
Section. That disclosure shall, however, be subject to all other
provisions of the Act.
* * * * *
PART 249 - FORMS, SECURITIES EXCHANGE ACT OF 1934
117. The authority citation for Part 249 continues to read,
in part, as follows:
Authority: 15 U.S.C. 78a, et seq., unless otherwise noted;
* * * * *
118. The authority citations following ง 249.210 are
removed.
119. By amending Form 8-A (referenced in ง 249.208a) by
revising the title of General Instruction A. and paragraph (a) of
General Instruction A.; by designating Instruction D. of General
Instructions as paragraph (a) of Instruction D. of General
Instructions; by adding a sentence at the end of paragraph (a) of
Instruction D. of General Instructions, paragraphs (b), (c), (d)
and (e) to Instruction D. of General Instructions; and by
revising the Signatures section to read as follows:
Note: The text of Form 8-A does not and this amendment
will not appear in the Code of Federal
Regulations.
U.S. Securities and Exchange Commission
Washington, D.C. 20549
FORM 8-A
* * * * *
GENERAL INSTRUCTIONS
* * * * *
A. Use of Form 8-A.
(a) Subject to paragraph (b), you may use this Form for
registration pursuant to Section 12(b) or 12(g) of the Securities
Exchange Act of 1934 of any class of securities of any issuer
that:
(1) is required to file reports pursuant to Section 13(a)
or 15(d) of the Act, and has filed all material required to be
filed under Section 13, 14 or 15(d) for a period of at least 12
full calendar months and any portion of a month immediately
preceding the date of filing this Form (or such shorter period
that the issuer was subject to those requirements); or
(2) has securities listed on an exchange that is not
registered as a national securities exchange, pursuant to an
order exempting that exchange from such registration.
* * * * *
D. Signature and Filing of Registration Statement.
(a) * * * See Exchange Act Rule 12b-11(d) concerning
manual signatures and Item 601 of Regulation S-K concerning
signatures pursuant to powers of attorney.
(b) The following persons, or persons performing similar
functions, must sign the registration statement:
(1) The registrant;
(2) Its principal executive officer or officers;
(3) Its principal financial officer;
(4) Its controller or principal accounting officer; and
(5) At least the majority of its board of directors.
(c) Where the registrant is a foreign issuer, its
authorized representative in the United States also must sign the
registration statement.
(d) Where the registrant is a limited partnership, its
general partner must sign. Where the general partner is a
corporation, the majority of the board of directors of the
corporate general partner must sign the registration statement.
(e) Type or print the name and title of each person who
signs the registration statement beneath the person's signature.
Any person who occupies more than one of the specified positions
must indicate each capacity in which that person signs the
registration statement.
* * * * *
SIGNATURES*
The registrant hereby certifies that it meets all of the
requirements for filing on Form 8-A. The registrant also
certifies that it has duly caused and authorized the undersigned
to sign this registration statement on its behalf. The
undersigned certifies that he/she has read this registration
statement and to his/her knowledge the registration statement
does not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the
statements made, in light of the circumstances under which they
were made, not misleading.
(Registrant)..........................................
By (Signature and Title)..........................................
Date.....................
The following persons certify that they have read this
registration statement and to their knowledge the registration
statement does not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements made, in light of the circumstances under which
they were made, not misleading. The following persons also
certify that they are signing on behalf of the registrant and in
the capacities and on the dates indicated.
By (Signature and Title)..........................................
Date.....................
By (Signature and Title)..........................................
Date.....................
* See General Instruction D.
* * * * *
120. By amending Form 10 (referenced in ง 249.210) by
designating Instruction D. of General Instructions as paragraph
(a) of Instruction D. of General Instructions; by adding a
sentence at the end of paragraph (a) of Instruction D. of General
Instructions, paragraphs (b), (c), (d) and (e) to Instruction D.
of General Instructions, by adding four lines to the cover page
of the registration statement, Item 1A. to the "Information
Required in the Registration Statement" section; and by revising
the Signatures section to read as follows:
Note: The text of Form 10 does not and this amendment
will not appear in the Code of Federal
Regulations.
U.S. Securities and Exchange Commission
Washington, D.C. 20549
FORM 10
* * * * *
GENERAL INSTRUCTIONS
* * * * *
D. Signature and Filing of Registration Statement.
(a) * * * See Exchange Act Rule 12b-11(d) concerning
manual signatures and Item 601 of Regulation S-K concerning
signatures pursuant to powers of attorney.
(b) The following persons, or persons performing similar
functions, must sign the registration statement:
(1) the registrant;
(2) its principal executive officer or officers;
(3) its principal financial officer;
(4) its controller or principal accounting officer; and
(5) at least the majority of its board of directors.
(c) Where the registrant is a foreign issuer, its
authorized representative in the United States also must sign the
registration statement.
(d) Where the registrant is a limited partnership, its
general partner must sign. Where the general partner is a
corporation, the majority of the board of directors of the
corporate general partner must sign the registration statement.
(e) Type or print the name and title of each person who
signs the registration statement beneath the person's signature.
Any person who occupies more than one of the specified positions
must indicate each capacity in which that person signs the
registration statement.
* * * * *
FORM 10
GENERAL FORM FOR REGISTRATION OF SECURITIES
Pursuant to Section 12(b) or (g) of the Securities Exchange Act
of 1934
* * * * *
--------------------------------------------------------
(Exact name of registrant as specified in its charter)
Registrant's telephone number, including area code
_____________________________
* * * * *
INFORMATION REQUIRED IN REGISTRATION STATEMENT
* * * * *
Item 1A. Company Risk Factors.
If the registrant is not required, as of the date of filing,
to file reports pursuant to Section 13(a), set forth, under the
caption "Company Risk Factors," the most significant factors with
respect to the registrant's business, operations, industry, or
financial position that may have a negative impact on the
registrant's future financial performance. Explain briefly how
the risk affects the registrant. Do not present risk factors
that could apply to any registrant. Set forth each risk factor
under a caption that adequately describes the risk. Provide the
discussion of risk factors in plain English in accordance with
Exchange Act Rule 12b-24.
* * * * *
SIGNATURES*
The registrant certifies that it has duly caused and
authorized the undersigned to sign this registration statement on
its behalf. The undersigned certifies that he/she has read this
registration statement and to his/her knowledge the registration
statement does not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements made, in light of the circumstances under which
they were made, not misleading.
(Registrant)..........................................
By (Signature and Title)..........................................
Date.....................
The following persons certify that they have read this
registration statement and to their knowledge the registration
statement does not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements made, in light of the circumstances under which
they were made, not misleading. The following persons also
certify that they are signing on behalf of the registrant and in
the capacities and on the dates indicated.
By (Signature and Title)..........................................
Date.....................
By (Signature and Title)..........................................
Date.....................
* See General Instruction D.
121. By amending Form 10-SB (referenced in ง 249.210b) by
adding four lines to the cover page of the registration
statement, by adding a sentence at the end of General Instruction
B.2., General Instruction B.3., B.4., B.5. and B.6., and Item 1A.
to Part II; and by revising the Signatures section to read as
follows:
Note: The text of Form 10-SB does not and these
amendments will not appear in the Code of Federal
Regulations.
U.S. Securities and Exchange Commission
Washington, D.C. 20549
FORM 10-SB
* * * * *
GENERAL INSTRUCTIONS
* * * * *
Issuer's telephone number______________________________________
__________________________________
(Web Site Address, if any)
_____________________________
(E-mail Address, if any)
* * * * *
B. Signature and Filing of Registration Statement.
* * * * *
2. * * * See Exchange Act Rule 12b-11(d) concerning
manual signatures and Item 601 of Regulation S-B concerning
signatures pursuant to powers of attorney.
3. The following persons, or persons performing similar
functions, must sign the registration statement:
(a) the small business issuer;
(b) its principal executive officer or officers;
(c) its principal financial officer;
(d) its controller or principal accounting officer; and
(e) at least the majority of its board of directors.
4. Where the small business issuer is a foreign issuer,
its authorized representative in the United States also must sign
the registration statement.
5. Where the small business issuer is a limited
partnership, its general partner must sign. Where the general
partner is a corporation, the majority of the board of directors
of the corporate general partner must sign the registration
statement.
6. Type or print the name and title of each person who
signs the registration statement beneath the person's signature.
Any person who occupies more than one of the specified positions
must indicate each capacity in which that person signs the
registration statement.
* * * * *
PART II
* * * * *
Item 1A. Company Risk Factors.
If the registrant is not required, as of the date of filing,
to file reports pursuant to Section 13(a), set forth, under the
caption "Company Risk Factors," the most significant factors with
respect to the registrant's business, operations, industry, or
financial position that may have a negative impact on the
registrant's future financial performance. Explain briefly how
the risk affects the registrant. Do not present risk factors
that could apply to any registrant. Set forth each risk factor
under a caption that adequately describes the risk. Provide the
discussion of risk factors in plain English in accordance with
Exchange Act Rule 12b-24.
* * * * *
SIGNATURES*
The registrant hereby certifies that it meets all of the
requirements for filing on Form 10-SB. The registrant also
certifies that it has duly caused and authorized the undersigned
to sign this registration statement on its behalf. The
undersigned certifies that he/she has read this registration
statement and to his/her knowledge the registration statement
does not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the
statements made, in light of the circumstances under which they
were made, not misleading.
(Registrant)..........................................
By (Signature and Title)..........................................
Date.....................
The following persons certify that they have read this
registration statement and to their knowledge the registration
statement does not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make
the statements made, in light of the circumstances under which
they were made, not misleading. The following persons also
certify that they are signing on behalf of the registrant and in
the capacities and on the dates indicated.
By (Signature and Title)..........................................
Date.....................
By (Signature and Title)..........................................
Date.....................
* See General Instruction B.
122. By amending Form 18 (referenced in ง 249.218) by
revising the title of the Form, by adding four lines to the cover
page of the registration statement, by revising the "Rule as to
the Use of Form 18" section and by adding paragraph 3A. after
paragraph 3.(g) to the "Definitions" section to read as follows:
Note:The text of Form 18 does not and this amendment will
not appear in the Code of Federal Regulations.
FORM 18
* * * * *
______________________________________________________________________________
(Name, address (including zip code) and telephone number
(including area code)
of agent for service in the United States
__________________________________
(Web Site Address, if any)
____________________________
(E-mail Address, if any)
* * * * *
APPLICATION FOR REGISTRATION PURSUANT TO SECTION 12(b) OF
THE SECURITIES EXCHANGE ACT OF 1934
* * * * *
RULE AS TO THE USE OF FORM 18
Foreign governments and political subdivisions shall use
Form 18 for registration pursuant to Section 12(b) of the
Securities Exchange Act of 1934.
* * * * *
DEFINITIONS
* * * * *
3A. If the registrant is not required, as of the date of
filing, to file reports pursuant to Section 13, set forth, under
the caption "Risk Factors": (i) the most significant factors
with respect to the registrant's financial position; and (ii)
country risks that are unlikely to be known or anticipated by
investors. Explain briefly how the risk affects the registrant.
Do not present risk factors that could apply to any registrant.
Set forth each risk factor under a caption that adequately
describes the risk. Provide the discussion of risk factors in
plain English in accordance with Exchange Act Rule 12b-24.
* * * * *
123. By amending Form 20-F (referenced in ง 249.220f) by
adding four lines to the cover page of registration statement, by
removing in General Instruction G.(c) the words "Forms F-3 (ง
239.33 of this chapter) or F-2 (ง 239.32 of this chapter)" and
adding, in their place, the words "Form B (ง 239.5 of this
chapter) or Form A (ง 239.4 of this chapter)", in Item 1(a)(2)(i)
the words "Form F-1 (ง 239.31 of this chapter)" and adding, in
their place, the words "Form A (ง 239.4 of this chapter)", in
Item 1(a)(2)(iii)(B)(1) the words "Form F-1" and adding, in their
place, the words "Form A"; by revising paragraph (b) of General
Instruction A. and General Instruction C.(a); by designating
Instruction D. of General Instructions as paragraph (a) of
Instruction D. of General Instructions; by adding a sentence at
the end of paragraph (a) of Instruction D. of General
Instructions, paragraphs (b), (c) and (d) to Instruction D. of
General Instructions, by revising Item 1.(b); by redesignating
the Instruction following Item 1.(b) as Instruction number 1; by
adding Instruction number 2; by revising paragraph D. to General
Instructions to Items 9A(a), 9A(b), 9A(c), 9A(d) and 9A(e); and
by revising the Signatures section to read as follows:
Note: The text of Form 20-F does not and this amendment
will not appear in the Code of Federal
Regulations.
U.S. Securities and Exchange Commission
Washington, D.C. 20549
FORM 20-F
* * * * *
______________________________________________________________________
(Address of principal executive offices)
_________________________________
(Web Site Address, if any)
__________________________
(E-mail Address, if any)
* * * * *
GENERAL INSTRUCTIONS
A. Rule as to Use of Form 20-F.
* * * * *
(b) A foreign private issuer must file its annual report on
this Form within five months after the end of the fiscal year
covered by the report.
* * * * *
C. Preparation of Registration Statements and Reports.
(a) Do not use this Form as a blank form to be filled in;
use it only as a guide in the preparation of the registration
statement or annual report. See General Instruction G. as to the
items to be responded to in the registration statement or annual
report. Where any item requires information in tabular form,
provide the information in substantially the tabular form
specified in the item. The registration statement or report must
contain the numbers and captions of all items. The text
following each caption in this Form, which describes what must be
disclosed under each item, may be omitted if the disclosure
provided in response to each item indicates the coverage of the
item without the necessity of referring to the text. Omit the
text of all instructions in this Form. Unless expressly provided
otherwise, if any item is inapplicable or the answer thereto is
in the negative, make an appropriate statement to that effect.
* * * * *
D. Signature and Filing of Registration Statements and Reports.
(a) * * * See Exchange Act Rule 12b-11(d)
concerning manual signatures and Item 601 of Regulation S-K
concerning signatures pursuant to powers of attorney.
(b) The following persons, or persons performing similar
functions, must sign the registration statement or report:
(1) the registrant;
(2) its principal executive officer or officers;
(3) its principal financial officer;
(4) its controller or principal accounting officer;
(5) at least the majority of its board of directors; and
(6) its authorized representative in the United States.
(c) Where the registrant is a limited partnership, its
general partner must sign. Where the general partner is a
corporation, the majority of the board of directors of the
corporate general partner must sign the registration statement or
report.
(d) Type or print the name and title of each person who
signs the registration statement or report beneath the person's
signature. Any person who occupies more than one of the
specified positions must indicate each capacity in which that
person signs it.
* * * * *
PART I
Item 1. Description of Business.
* * * * *
(b) Set forth, under the caption "Company and Country Risk
Factors": (i) the most significant factors with respect to the
registrant's business, operations, industry, or financial
position that may have a negative impact on the registrant's
future financial performance; and (ii) any material country
risks that are unlikely to be known or anticipated by investors
and could materially affect the registrant's operations. Explain
briefly how the risk affects the registrant. Do not present risk
factors that could apply to any registrant. Set forth each risk
factor under a caption that adequately describes the risk.
Provide the discussion of risk factors in plain English in
accordance with Exchange Act Rule 12b-24.
Instructions.
1. * * *
2. If this Form is being used to register securities,
registrants that are required, as of the date of filing, to file
reports pursuant to Section 13(a) need not comply with the
requirements of paragraph (b) of this Item.
* * * * *
Item 9A. Quantitative and Qualitative Disclosures About Market
Risk.
* * * * *
General Instructions to Items 9A(a), 9A(b), 9A(c), 9A(d), and
9A(e).
* * * * *
2. * * *
D. For purposes of paragraph 1. of this Instruction, market
capitalization is the aggregate market value of common equity as
set forth in General Instruction I.C.1. of Form B; provided,
however that common equity held by affiliates is included in the
calculation of market capitalization; and provided further that
the market capitalization measurement date is January 28, 1997.
* * * * *
SIGNATURES*
The registrant hereby certifies that it meets all of the
requirements for filing on Form 20-F. The registrant also
certifies that it has duly caused and authorized the undersigned
to sign this registration statement [report] on its behalf. The
undersigned certifies that he/she has read this registration
statement [report] and to his/her knowledge the registration
statement [report] does not contain any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements made, in light of the circumstances under
which they were made, not misleading.
(Registrant)..........................................
By (Signature and
Title)..........................................
Date.....................
The following persons certify that they have read this
registration statement [report] and to their knowledge the
registration statement [report] does not contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements made, in light of the
circumstances under which they were made, not misleading. The
following persons also certify that they are signing below on
behalf of the registrant and in the capacities and on the dates
indicated.
By (Signature and Title)..........................................
Date.....................
By (Signature and Title)..........................................
Date.....................
* See General Instruction D.
* * * * *
124. By amending ง 249.240f by revising paragraph (b)(4);
and adding Instruction 7 to the Instructions following paragraph
(b)(4) to read as follows:
ง 249.240fForm 40-F, for registration of securities of certain
Canadian issuers pursuant to Section 12(b) or (g) and
for reports pursuant to Section 15(d) and Rule 15d-4 (ง
240.15d-4 of this chapter).
* * * * *
(b) * * *
(4) Public Float/ADTV.
(i) The registrant meets either of the following
thresholds:
(A) The market value of the public float of the
registrant's outstanding equity shares is $75 million or more and
the average trading volume value is $1 million or more, or
(B) The market value of the public float of the
registrant's outstanding equity shares is $250 million or more.
(ii) A registrant need not meet either of the thresholds in
paragraph (b)(4)(i) of this section if it registered or is
eligible to register non-convertible securities on Form F-9 (ง
239.39 of this chapter).
Instructions
* * * * *
7. For the purposes of this Form, "average daily
trading volume" shall mean the average daily trading volume
of the registrant's equity securities on Canadian markets
during the three full calendar months or any 90 consecutive
calendar days ending within 10 calendar days immediately
preceding the filing of the registration statement.
* * * * *
125. By amending Form 40-F (referenced in ง 249.240f) by
adding four lines to the cover page of the registration
statement, by revising paragraph (2)(iv) of General Instruction
A.; adding Instruction 7 to the Instructions following paragraph
(2)(iv) of General Instruction A.; revising paragraph (8) and
adding paragraph (10) (before the Notes) to General Instruction
D.; by revising the Signatures section; by redesignating
Instructions A and B following the Signatures section as
Instructions D and E; and by adding Instructions A, B and C
following the Signatures section to read as follows:
Note: The text of Form 40-F does not and this amendment
will not appear in the Code of Federal
Regulations.
U.S. Securities and Exchange Commission
Washington, D.C. 20549
FORM 40-F
[ ] REGISTRATION STATEMENT PURSUANT TO SECTION 12 OF THE
SECURITIES EXCHANGE ACT OF 1934
OR
[ ] ANNUAL REPORT PURSUANT TO SECTION 13(a) OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
* * * * *
______________________________________________________________________________
(Name, address (including zip code) and telephone number
(including area code)
of agent for service in the United States)
_________________________________
(Web Site Address, if any)
__________________________
(E-mail Address, if any)
* * * * *
GENERAL INSTRUCTIONS
* * * * *
A. Rules as to Use of Form 40-F
(2) * * *
(iv) Public Float/ADTV.
(A) The registrant meets either of the following
thresholds:
(1) the market value of the public float of the
registrant's outstanding equity shares is $75 million or more and
the average trading volume value is $1 million or more, or
(2) the market value of the public float of the
registrant's outstanding equity shares is $250 million or more.
(B) A registrant need not meet either of the thresholds in
paragraph A.(2)(iv) of this Instruction if it registered or is
eligible to register non-convertible securities on Form F-9 (ง
239.39 of this chapter).
Instructions
* * * * *
7. For the purposes of this Form, "average daily trading
volume" shall mean the average daily trading volume of the
registrant's equity securities on Canadian markets during the
three full calendar months or any 90 consecutive calendar days
ending within 10 calendar days immediately preceding the filing
of the registration statement.
* * * * *
D. Application of General Rules and Regulations
* * * * *
(8) At least one copy of every registration statement or
report filed on this Form shall be signed manually. Unsigned
copies shall be conformed.
* * * * *
(10) Where this Form requires a manual signature on a
document, the document may be manually signed, signed using typed
signatures, or signed using duplicated or facsimile versions of
manual signatures. Where typed, duplicated or facsimile
signatures are used, each signatory must manually sign, no later
than the time of filing, a signature page or other document
authenticating, acknowledging or otherwise adopting the signature
that appears in the filing. That manually signed page or
document must be retained for five years by the registrant and
must be furnished to the Commission or its staff upon request.
* * * * *
SIGNATURES
The registrant hereby certifies that it meets all of the
requirements for filing on Form 40-F. The registrant also
certifies that it has duly caused and authorized the undersigned
to sign this registration statement [report] on its behalf. The
undersigned certifies that he/she has read this registration
statement [report] and to his/her knowledge the registration
statement [report] does not contain any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements made, in light of the circumstances under
which they were made, not misleading.
(Registrant)..........................................
By (Signature and Title)..........................................
Date.....................
The following persons certify that they have read this
registration statement [report] and to their knowledge the
registration statement [report] does not contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements made, in light of the
circumstances under which they were made, not misleading. The
following persons also certify that they are signing below on
behalf of the registrant and in the capacities and on the dates
indicated.
By (Signature and Title)..........................................
Date.....................
By (Signature and Title)..........................................
Date.....................
Instructions
A. The following persons, or persons performing similar
functions, must sign the registration statement or report:
(1) the registrant;
(2) its principal executive officer or officers;
(3) its principal financial officer;
(4) its controller or principal accounting officer;
(5) at least the majority of its board of directors; and
(6) its authorized representative in the United States.
B. Where the registrant is a limited partnership, its
general partner must sign. Where the general partner is a
corporation, the majority of the board of directors of the
corporate general partner must sign the registration statement or
report.
C. Type or print the name and title of each person who
signs the registration statement or report beneath the person's
signature. Any person who occupies more than one of the
specified positions must indicate each capacity in which that
person signs it. See Exchange Act Rule 12b-11(d) concerning
manual signatures and Item 601 of Regulation S-K concerning
signatures pursuant to powers of attorney.
* * * * *
126. By amending Form 6-K (referenced in ง 249.306) by
revising the second paragraph of General Instruction B., by
revising General Instruction C., by adding General Instruction
E., by adding four lines to the cover page, a sentence and a
check box to the cover page immediately before "Signatures"; and
by revising the Signatures section to read as follows:
Note: The text of Form 6-K does not and this amendment
will not appear in the Code of Federal
Regulations.
U.S. Securities and Exchange Commission
Washington, D.C. 20549
FORM 6-K
* * * * *
GENERAL INSTRUCTIONS
* * * * *
B. Information and Document Required to be Furnished.
* * * * *
The information required to be furnished pursuant to (i),
(ii) or (iii) above is that which is material with respect to the
issuer and its subsidiaries. The information may concern, for
example:
1. Changes in business;
2. Changes in the issuer's name;
3. Changes in control;
4. Acquisitions or dispositions of assets;
5. Bankruptcy or receivership;
6. Changes in the issuer's certifying accountants;
7. The financial condition and results of operations;
8. Material legal proceedings;
9. Changes in securities or in the security for registered
securities;
10. Material modifications to the rights of security
holders;
11. Material increases or decreases in the amount
outstanding of securities or indebtedness;
12. Material defaults on indebtedness, material arrearages
in dividends and other material delinquencies;
13. The results of the submission of matters to a vote of
security holders;
14. Transactions with directors, officers, or principal
security holders;
15. Departure of the issuer's chief executive officer,
chief financial officer, chief operating officer or president (or
anyone serving those functions);
16. The granting of options or payment of other
compensation to directors or officers; and
17. Any other information that the issuer deems of
importance to security holders.
* * * * *
C. Preparation and Filing of Report.
1. This report shall consist of: a cover page, the
document or report furnished by the issuer and a signature page.
Furnish to the Commission eight complete copies of each report on
this Form. File with any national securities exchange or the
Nasdaq stock market on which any class of the registrant's
securities is listed at least one complete copy of the report.
2. The following persons, or persons performing similar
functions, must sign the report:
(a) the principal executive officer or officers;
(b) the principal financial officer;
(c) the controller or principal accounting officer.
3. Type or print the name and title of each person who
signs the report beneath the person's signature. Any person who
occupies more than one position must indicate each capacity in
which that person signs it. See Exchange Act Rule 12b-11(d)
concerning manual signatures and Item 601 of Regulation S-K
concerning signatures pursuant to powers of attorney.
* * * * *
E. Voluntary Reporting of Other Events of Information.
A foreign private issuer also may use this Form to disclose
voluntarily events and information that it believes may be of
interest or importance to its security holders. We encourage
foreign private issuers to submit voluntary reports on this Form
promptly after they learn about the information they are
disclosing.
* * * * *
FORM 6-K
_______________________________________________________________
(Address of principal executive offices)
___________________________________________________________
(Web Site Address, if any)
_________________________________________________________
(E-mail Address, if any)
* * * * *
If you are submitting information voluntarily pursuant to General
Instruction E., check the following box. [ ]
SIGNATURES*
The registrant hereby certifies that it meets all of the
requirements for filing on Form 6-K. The registrant also
certifies that it has duly caused and authorized the undersigned
to sign this report on its behalf. The undersigned certifies
that he/she has read this report and to his/her knowledge the
report does not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements made, in light of the circumstances under which they
were made, not misleading. The undersigned also certifies that
he/she has provided a copy of this report to each member of the
registrant's board of directors.
(Registrant)..........................................
By (Signature and Title)..........................................
Date.....................
* See General Instruction C.
127. By amending Form 8-K (referenced in ง 249.308) by
adding four lines to the cover page, by revising General
Instruction B.1.; by redesignating General Instructions B.3. and
B.4. as General Instructions B.2. and B.3.; by revising General
Instruction E., paragraph (a) and the Instruction following
paragraph (b) of Item 4; by adding Items 10, 11, 12, 13 and 14;
and by revising the Signatures section to read as follows:
Note:The text of Form 8-K does not and these amendments will
not appear in the Code of Federal Regulations.
U.S. Securities and Exchange Commission
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
* * * * *
Registrant's telephone number, including area code
_____________________________
___________________________________________________________________
(Web Site Address, if any)
_________________________________________________________________
(E-mail Address, if any)
* * * * *
GENERAL INSTRUCTIONS
* * * * *B. Events to be Reported and Time for
Filing of Reports.
1. The date on which a report required by this Form is due
is as follows:
(a) with respect to Items 1 - 3, 6, 9, 10, and 13 of this
Form, within 5 calendar days after the occurrence of the event;
(b) with respect to Item 7 of this Form, in accordance with
paragraph (a)(4) of that Instruction;
(c) with respect to Item 8 of this Form, within 5 calendar
days after the date on which the registrant makes the
determination to use a fiscal year end different than that used
in its most recent filing with the Commission; and
(d) with respect to Items 4, 11 and 12 of this Form, within
one business day after the reportable event occurred. In the
case of Item 11, if the default occurred on a Saturday, Sunday or
federal holiday, the due date would be within two business days
after the day the default occurred.
(e) with respect to Item 14 of this Form:
(1) the date on which financial information for the
registrant's most recent fiscal year is publicly released, but no
later than 60 calendar days after the end of that fiscal year;
and
(2) the date on which financial information for the
registrant's most recent quarter (except for the last quarter of
any fiscal year) is publicly released, but no later than 30
calendar days after the end of that quarter.
Instruction to General Instruction B.1.(e):
No report under Item 14 is due, however, if the registrant
has filed its Form 10-Q (or Form 10-QSB) or Form 10-K (or
Form 10-KSB) for the period that is required to be presented
in the Item 14 report.
* * * * *
E. Signature and Filing of Report.
1. File with the Commission three complete copies of the
report, including any financial statements, exhibits or other
papers or documents filed as a part thereof, and five additional
copies which need not include exhibits. File with any national
securities exchange or the Nasdaq stock market on which any class
of the registrant's securities is listed at least one complete
copy of the report, including any financial statements, exhibits
or other documents filed as a part of it.
2. The following persons, or persons performing similar
functions, must sign the report:
(a) the principal executive officer or officers;
(b) the principal financial officer; and
(c) the controller or principal financial officer.
3. Type or print the name and title of each person who
signs the report beneath the person's signature. Any person who
occupies more than one position must indicate each capacity in
which that person signs it. See Exchange Act Rule 12b-11(d)
concerning manual signatures and Item 601 of Regulation S-K
concerning signatures pursuant to powers of attorney.
* * * * *
Item 4. Changes in Registrant's Certifying Accountant.
(a) Provide the information required by Item 304(a)(1) of
Regulation S-K, including compliance with the related
instructions to Item 304 and with Item 304(a)(3), if the
registrant's principal independent accountant or a significant
subsidiary's independent accountant upon whom the registrant's
principal accountant expressed reliance in its report:
(1) resigns;
(2) declines to stand for re-election after the current
audit;
(3) is dismissed;
(4) notifies the registrant that reliance on its prior
audit report with respect to the registrant or a significant
subsidiary is no longer permissible; or
(5) notifies the registrant that it will not consent to the
use of its prior audit report with respect to the registrant or a
significant subsidiary in a filing with the Commission.
(b) * * *
Instruction. The events described in paragraphs (a)(1) -
(a)(5) are reportable events separate from the engagement of a
new independent accountant. On some occasions involving a change
in accountants, two reports on Form 8-K will be required. (For
example, the registrant may file the first Form 8-K upon the
accountant's resignation and the second Form 8-K upon the later
engagement of a new accountant.) Under such circumstances, the
registrant need not disclose information ordinarily required in
the second Form 8-K if it was previously disclosed in the first
Form 8-K.
* * * * *
Item 10. Material Modifications to the Rights of Security
Holders.
(a) If the instruments defining the rights of holders of
any class of registered securities have been materially modified,
identify the class of securities involved and state briefly the
general effect of the modification upon those holders' rights.
(b) If the rights evidenced by any class of registered
securities have been materially limited or qualified by the
issuance or modification of any other class of securities, state
briefly the general effect of the issuance or modification upon
the rights of holders of the registered securities.
Instruction. Working capital restrictions and other
limitations upon the payment of dividends are to be reported
pursuant to Item 9.
Item 11. Defaults, Dividend Arrearages and Delinquencies.
(a) Disclose the information required by paragraph (b) of
this Item if, with respect to indebtedness of the registrant or
any of its significant subsidiaries exceeding 5% of the total
assets of the registrant and its consolidated subsidiaries, there
has been:
(1) any material default in the payment of principal,
interest, a sinking or purchase fund installment; or
(2) any other material default.
(b) Identify the indebtedness and state the nature of the
default. In the case of such a default under paragraph (a)(1),
state the amount of the default and the total arrearage on the
date of filing this report.
Instruction. Paragraph (a) refers only to events that have
become defaults under the governing instruments, i.e., after
the expiration of any grace period and compliance with any
notice requirements.
(c) Disclose the information required by paragraph (d) of
this Item if there is any material arrearage in the payment of
dividends or any other material delinquency with respect to:
(1) any class of the registrant's preferred stock that is
registered;
(2) any class of the registrant's preferred stock that
ranks prior to any class of the registrant's securities that is
registered; or
(3) any class of preferred stock of any significant
subsidiary of the registrant.
(d) State the title of the class and state the nature of
the arrearage or delinquency. In the case of an arrearage in the
payment of dividends, state the amount and the total arrearage as
of the date of filing this report.
Instruction to Item 11. You need not report under this Item
defaults or dividend arrearages relating to any class of
securities all of which is owned by, or for the account of,
the registrant or its wholly-owned subsidiaries.
Item 12. Departure of Registrant's Key Officers.
If the registrant's chief executive officer, chief financial
officer, chief operating officer, president or any person serving
an equivalent function, has ceased serving the registrant in that
capacity:
(a) state the date when that occurred;
(b) indicate the reason for his or her departure; and
(c) state the name of any person chosen, to date, as a
replacement.
Item 13. Name Change.
If the registrant has changed its name, state both the
former name and the current name of the registrant.
Item 14. Annual and Quarterly Financial Information.
(a) Provide the financial information required by Item 301
of Regulation S-K, in a table designed to facilitate comparison,
for the following periods:
(1) if the most recently completed fiscal period was the
registrant's fiscal year:
(i) the most recently fiscal year ended; and
(ii) the preceding fiscal year (or for the life of the
registrant and its predecessor,
if less).
(2) if the most recently completed fiscal period was one of
the first three quarters of the registrant's fiscal year:
(i) the most recent fiscal quarter ended;
(ii) the quarterly periods between the end of the last
fiscal year and the end of the most recent fiscal quarter; and
(iii) the periods of the preceding fiscal year
corresponding to the periods referred to in paragraphs (a)(2)(i)
and (a)(2)(ii).
Instructions to Item 14.
The financial information required by this Item means the
financial information for the registrant and its
subsidiaries on a consolidated basis. The financial
information may be unaudited.
SIGNATURES*
The registrant certifies that it has duly caused and
authorized the undersigned to sign this report on its behalf.
The undersigned certifies that he/she has read this report and to
his/her knowledge the report does not contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements made, in light of the
circumstances under which they were made, not misleading. The
undersigned also certifies that he/she has provided a copy of
this report to each member of the registrant's board of
directors.
(Registrant)..........................................
By (Signature and Title)..........................................
Date.....................
* See General Instruction E.
128. By amending Form 10-Q (referenced in ง249.308a) by
revising General Instructions A., F., G., and H.2.b.; by adding
four lines to the cover page, by adding
Item 1A. to Part II; and in Part II, Item 2 by revising the
heading, by removing paragraphs (a) and (b) and the Instruction
following paragraph (d), and by redesignating paragraphs (c) and
(d) as paragraphs (a) and (b); by removing Item 3 of Part II; by
redesignating Items 4, 5 and 6 of Part II as Items 3, 4 and 5 of
Part II; and by revising the Signatures section to read as
follows:
Note: The text of Form 10-Q does not and this amendment
will not appear in the Code of Federal
Regulations.
U.S. Securities and Exchange Commission
Washington, D.C. 20549
FORM 10-Q
* * * * *
GENERAL INSTRUCTIONS
A. Rule as to Use of Form 10-Q.
1. Unless eligible to use Form 10-QSB, a registrant must
use Form 10-Q for quarterly reports under Section 13 or 15(d) of
the Securities Exchange Act of 1934 as required by Exchange Act
Rule 13a-13 or Rule 15d-13. A registrant must file a quarterly
report on this Form within 45 days after the end of each of the
first three fiscal quarters of each fiscal year. It need not
file a quarterly report for the fourth quarter of any fiscal
year.
2. Unless eligible to use Form 10-QSB, a registrant also
must use Form 10-Q for transition and quarterly reports under
Exchange Act Rule 13a-10 or Rule 15d-10. It must file those
reports in accordance with the requirements set forth in those
Rules which are applicable when a registrant changes its fiscal
year end.
* * * * *
F. Filed Status of Market Risk Disclosure in the Form 10-Q
Pursuant to Exchange Act Rule 13a-13(d) and Rule 15d-13(d),
market risk disclosures required by Item 3 of Part I of this Form
are not deemed to be "filed" for purposes of Section 18 of the
Act. That disclosure is therefore not subject to the liabilities
of Section 18. Disclosure required by other Items of the Form is
"filed" for purposes of Section 18, however, even if it is also
required by Item 3 of Part I of the Form. Market risk disclosure
required by Item 3 of Part I of this Form is subject to all other
provisions of the Act.
G. Signature and Filing of Report
1. File with the Commission three complete copies of the
report, including any financial statements, exhibits or other
papers or documents filed as a part thereof, and five additional
copies which need not include exhibits. File with each exchange
or the Nasdaq stock market on which any class of securities of
the registrant is registered at least one complete copy of the
report, including any financial statements, exhibits or other
papers or documents filed as a part thereof. Manually sign at
least one complete copy of the report filed with the Commission
and with each exchange or market. Type or print signatures on
copies not manually signed. See Exchange Act Rule 12b-11(d)
concerning manual signatures and Item 601 of Regulation S-K
concerning signatures pursuant to powers of attorney.
2. The following persons, or persons performing similar
functions, must sign the report:
a. the registrant;
b. its principal executive officer or officers;
c. its principal financial officer;
d. its controller or principal accounting officer; and
e. at least the majority of its board of directors.
3. Where the registrant is a foreign issuer, its
authorized representative in the United States also must sign the
report.
4. Where the registrant is a limited partnership, its
general partner must sign. Where the general partner is a
corporation, the majority of the board of directors of the
corporate general partner must sign the report.
5. Type or print the name and title of each person who
signs the report beneath the person's signature. Any person who
occupies more than one of the specified positions must indicate
each capacity in which that person signs it.
H. Omission of Information by Certain Wholly-Owned
Subsidiaries.
* * * * *
2. * * *
b. Such registrants may omit the information called for by
Item 2 of Part II, Sales of Securities and Use of Proceeds, and
Item 3. of Part II, Submission of Matters to a Vote of Security
Holders.
* * * * *
FORM 10-Q
* * * * *
___________________________________________________________
(Registrant's telephone number, including area code)
___________________________________________________________
(Web Site Address, if any)
___________________________________________________________
(E-mail Address, if any)
* * * * *
PART II -- OTHER INFORMATION
* * * * *
Item 1A. Updated Company Risk Factors.
Set forth any material disclosure regarding company risk
factors (as described in Item 1A. of Part I of Form 10-K) that
either was not included in the later of the registrant's most
recent Securities Act registration statement or Exchange Act
annual report, or has changed since the date of that registration
statement or annual report. Set forth each risk factor under a
caption that adequately describes the risk. Provide the
discussion of risk factors in plain English in accordance with
Exchange Act Rule 12b-24.
Item 2. Sales of Securities and Use of Proceeds.
* * * * *
SIGNATURES*
The registrant certifies that it has duly caused and
authorized the undersigned to sign this report on its behalf.
The undersigned certifies that he/she has read this report and to
his/her knowledge the report does not contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements made, in light of the
circumstances under which they were made, not misleading.
(Registrant)..........................................
By (Signature and Title)..........................................
Date.....................
The following persons certify that they have read this
report and to their knowledge the report does not contain any
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements made, in light of
the circumstances under which they were made, not misleading.
The following persons also certify that they are signing below on
behalf of the registrant and in the capacities and on the dates
indicated.
By (Signature and Title)..........................................
Date.....................
By (Signature and Title)..........................................
Date.....................
* See General Instruction G.
129. By amending Form 10-QSB (referenced in ง249.308b) by
adding four lines to the cover page; by removing General
Instruction E.; by redesignating General Instructions F., G. and
H. as General Instructions E., F. and G.; in newly designated
General Instructions E, F and G, by revising the first sentence
of E.1. and E.2.; by adding E.3., E.4., E.5. and E.6.; by
revising General Instruction F.2.(b); by adding a title and
removing the words "Item 6(a)" and adding, in their place, the
words "Item 5(a)" in General Instruction G.; in Part II, by
adding Item 1A; by revising the title in Item 2; by removing
paragraphs (a) and (b) and the Instruction to Item 2 following
paragraph (d) and redesignating paragraphs (c) and (d) as
paragraphs (a) and (b); by removing Item 3; and redesignating
Items 4, 5 and 6 as Items 3, 4 and 5; and by revising the
Signatures section to read as follows:
Note: The text of Form 10-QSB does not and this
amendment will not appear in the Code of Federal
Regulations.
U.S. Securities and Exchange Commission
Washington, D.C. 20549
FORM 10-QSB
* * * * *
___________________________________________________________
(Registrant's telephone number, including area code)
___________________________________________________________
(Web Site Address, if any)
___________________________________________________________
(E-mail Address, if any)
* * * * *
GENERAL INSTRUCTIONS
* * * * *
E. Signature and Filing of Report
1. File three "complete" copies and five "additional"
copies of the report with the Commission and file at least one
complete copy with each exchange or the Nasdaq stock market on
which any class of securities of the registrant is registered. *
* *
2. Manually sign at least one complete copy of the report
filed with the Commission and with each exchange or market. Type
or print signatures on copies not manually signed. See Exchange
Act Rule 12b-11 concerning manual signatures and Item 601 of
Regulation S-B concerning signatures pursuant to powers of
attorney.
3. The following persons, or persons performing similar
functions, must sign the report:
(a) the small business issuer;
(b) its principal executive officer or officers;
(c) its principal financial officer;
(d) its controller or principal accounting officer; and
(e) at least the majority of its board of directors.
4. Where the small business issuer is a foreign issuer,
its authorized representative in the United States also must sign
the report.
5. Where the small business issuer is a limited
partnership, its general partner must sign. Where the general
partner is a corporation, the majority of the board of directors
of the corporate general partner must sign the report.
6. Type or print the name and title of each person who
signs the report beneath the person's signature. Any person who
occupies more than one of the specified positions must indicate
each capacity in which that person signs.
F. Omission of Information by Certain Wholly-Owned Subsidiaries
* * * * *
2. * * *
b. Such registrants may omit the information called for by
Items 2 and 3 of Part II. G. Exhibits
* * * * *
PART II -- OTHER INFORMATION
* * * * *
Item 1A. Updated Company Risk Factors
Set forth any material disclosure regarding company risk
factors (as described in Item 1A. of Form 10-KSB) that either was
not included in the later of the registrant's most recent
Securities Act registration statement or Exchange Act annual
report, or has changed since the date of that registration
statement or annual report. Set forth each risk factor under a
caption that adequately describes the risk. Provide the
discussion of risk factors in plain English in accordance with
Exchange Act Rule 12b-24.
Item 2. Sales of Securities and Use of Proceeds
* * * * *
SIGNATURES*
The registrant hereby certifies that it meets all of the
requirements for filing on Form 10-QSB. The registrant also
certifies that it has duly caused and authorized the undersigned
to sign this report on its behalf. The undersigned certifies
that he/she has read this report and to his/her knowledge the
report does not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements made, in light of the circumstances under which they
were made, not misleading.
(Registrant)..........................................
By (Signature and Title)..........................................
Date.....................
The following persons certify that they have read this
report and to their knowledge the report does not contain any
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements made, in light of
the circumstances under which they were made, not misleading.
The following persons also certify that they are signing below on
behalf of the registrant and in the capacities and on the dates
indicated.
By (Signature and Title)..........................................
Date.....................
By (Signature and Title)..........................................
Date.....................
* See General Instruction F.
130. By amending Form 10-K (referenced in ง 249.310) by
revising General Instruction D.(1) and D.(2); by redesignating
General Instruction D.(3) as General Instruction D.(7); by adding
General Instructions D.(3), D.(4), D.(5) and D.(6); by revising
the first two sentences of General Instruction G.(4); by adding
four lines to the cover page; in Part I, by adding Item 1A. and
by revising Item 2 and the Signatures section to read as follows:
Note: The text of Form 10-K does not and this amendment
will not appear in the Code of Federal
Regulations.
U.S. Securities and Exchange Commission
Washington, D.C. 20549
FORM 10-K
* * * * *
GENERAL INSTRUCTIONS
* * * * *
D. Signature and Filing of Report.
(1) File with the Commission three complete copies of the
report, including any financial statements, exhibits or other
papers or documents filed as a part thereof, and five additional
copies which need not include exhibits. File with each exchange
or the Nasdaq stock market on which any class of securities of
the registrant is registered at least one complete copy of the
report, including any financial statements, exhibits or other
papers or documents filed as a part thereof.
(2) Manually sign at least one complete copy of the report
filed with the Commission and with each exchange or market. Type
or print signatures on copies not manually signed. See Exchange
Act Rule 12b-11(d) concerning manual signatures and Item 601 of
Regulation S-K concerning signatures pursuant to powers of
attorney.
(3) The following persons, or persons performing similar
functions, must sign the report:
(a) the registrant;
(b) its principal executive officer or officers;
(c) its principal financial officer;
(d) its controller or principal accounting officer; and
(e) at least the majority of its board of directors.
(4) Where the registrant is a foreign issuer, its
authorized representative in the United States also must sign the
report.
(5) Where the registrant is a limited partnership, its
general partner must sign. Where the general partner is a
corporation, the majority of the board of directors of the
corporate general partner must sign the report.
(6) Type or print the name and title of each person who
signs the report beneath the person's signature. Any person who
occupies more than one of the specified positions must indicate
each capacity in which that person signs it.
* * * * *
G. Information to be Incorporated by Reference.
* * * * *
(4) Although Exchange Act Rule 12b-13 requires that this
report contain the numbers and captions of all items, the
material incorporated by reference into the report generally need
not contain the numbers and captions. You must, however, caption
the information provided in response to Item 1A. as "Company Risk
Factors" even when incorporated by reference.
* * *
* * * * *
FORM 10-K
* * * * *
_______________________________________________________________
(Issuer's telephone number, including area code)
_______________________________________________________________
(Web Site Address, if any)
_______________________________________________________________
(E-mail Address, if any)
* * * * *
PART I
* * * * *
Item 1A. Company Risk Factors.
Set forth, under the caption "Company Risk Factors," the
most significant factors with respect to the registrant's
business, operations, industry, or financial position that may
have a negative impact on the registrant's future financial
performance. Explain briefly how the risk affects the
registrant. Do not present risk factors that could apply to any
registrant. Set forth each risk factor under a caption that
adequately describes the risk. Provide the discussion of risk
factors in plain English in accordance with Exchange Act Rule
12b-24.
Item 2. Properties.
(a) Furnish the information required by Item 102 of
Regulation S-K; and
(b) If the registrant is a real estate entity as defined in
Item 1101 of Regulation S-K, furnish the information required by
Items 1105, 1106 and 1107 of Regulation S-K in lieu of the
information required by paragraph (a) of this Item.
* * * * *
SIGNATURES*
The registrant certifies that it has duly caused and
authorized the undersigned to sign this report on its behalf.
The undersigned certifies that he/she has read this report and to
his/her knowledge the report does not contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements made, in light of the
circumstances under which they were made, not misleading.
(Registrant)..........................................
By (Signature and Title)..........................................
Date.....................
The following persons certify that they have read this
report and to their knowledge the report does not contain any
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements made, in light of
the circumstances under which they were made, not misleading.
The following persons also certify that they are signing below on
behalf of the registrant and in the capacities and on the dates
indicated.
By (Signature and Title)..........................................
Date.....................
By (Signature and Title)..........................................
Date.....................
* See General Instruction D.
* * * * *
131. By amending Form 10-KSB (referenced in ง 249.310b) by
adding four lines to the cover page; in General Instruction C, by
revising the first sentence and removing the last sentence of
C.1.; by revising C.2.; by redesignating C.3. as C.7.; by adding
General Instructions C.3., C.4., C.5. and C.6.; by revising the
first two sentences of General Instruction E.4.; by removing the
words "S-4" and adding, in their place, the words "SB-3"; by
removing the words "S-3 (if the issuer incorporates by reference
transitional Exchange Act reports)" in General Instruction H.(b);
by adding Item 1A. to Part I, by adding Item 1A. to Part II of
the "Information Required in Annual Report of Transitional Small
Business Issuers" section; and by revising the Signatures section
to read as follows:
Note: The text of Form 10-KSB does not and this
amendment will not appear in the Code of Federal
Regulations.
U.S. Securities and Exchange Commission
Washington, D.C. 20549
FORM 10-KSB
* * * * *
_______________________________________________________________
(Registrant's telephone number, including area code)
_______________________________________________________________
(Web Site Address, if any)
_______________________________________________________________
(E-mail Address, if any)
* * * * *
GENERAL INSTRUCTIONS
* * * * *
C. Signature and Filing of Report.
* * * * *
1. File three "complete" copies and five "additional"
copies of the report with the Commission and file at least one
complete copy with each exchange or the Nasdaq stock market on
which any class of securities of the registrant is registered. *
* *
2. Manually sign at least one complete copy of the report
filed with the Commission and with each exchange or market. Type
or print signatures on copies not manually signed. See Exchange
Act Rule 12b-11 concerning manual signatures and Item 601 of
Regulation S-B concerning signatures pursuant to powers of
attorney.
3. The following persons, or persons performing similar
functions, must sign the report:
(a) the small business issuer;
(b) its principal executive officer or officers;
(c) its principal financial officer;
(d) its controller or principal accounting officer; and
(e) at least the majority of its board of directors.
4. Where the small business issuer is a foreign issuer,
its authorized representative in the United States also must sign
the report.
5. Where the small business issuer is a limited
partnership, its general partner must sign. Where the general
partner is a corporation, the majority of the board of directors
of the corporate general partner must sign the report.
6. Type or print the name and title of each person who
signs the report beneath the person's signature. Any person who
occupies more than one of the specified positions must indicate
each capacity in which that person signs.
* * * * *
E. Information to be Incorporated by Reference.
* * * * *
4. Although Exchange Rule 12b-13 requires that this report
contain the numbers and captions of all items, the material
incorporated by reference into the report generally need not
contain the numbers and captions. You must, however, caption the
information provided in response to Item 1A. as "Company Risk
Factors" even when incorporated by reference.
* * * * *
PART I
* * * * *
Item 1A. Company Risk Factors.
Set forth, under the caption "Company Risk Factors," the
most significant factors with respect to the registrant's
business, operations, industry, or financial position that may
have a negative impact on the registrant's future financial
performance. Explain briefly how the risk affects the
registrant. Do not present risk factors that could apply to any
registrant. Set forth each risk factor under a caption that
adequately describes the risk. Provide the discussion of risk
factors in plain English in accordance with Exchange Act Rule
12b-24.
* * * * *
INFORMATION REQUIRED IN ANNUAL REPORT OF TRANSITIONAL
SMALL BUSINESS ISSUERS
* * * * *
PART II
* * * * *
Item 1A. Company Risk Factors.
Set forth, under the caption "Company Risk Factors," the
most significant factors with respect to the registrant's
business, operations, industry, or financial position that may
have a negative impact on the registrant's future financial
performance. Explain briefly how the risk affects the
registrant. Do not present risk factors that could apply to any
registrant. Set forth each risk factor under a caption that
adequately describes the risk. Provide the discussion of risk
factors in plain English in accordance with Exchange Act Rule
12b-24.
* * * * *
SIGNATURES*
The registrant hereby certifies that it meets all of the
requirements for filing on Form 10-KSB. The registrant also
certifies that it has duly caused and authorized the undersigned
to sign this report on its behalf. The undersigned certifies
that he/she has read this report and to his/her knowledge the
report does not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements made, in light of the circumstances under which they
were made, not misleading.
(Registrant)..........................................
By (Signature and Title)..........................................
Date.....................
The following persons certify that they have read this
report and to their knowledge the report does not contain any
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements made, in light of
the circumstances under which they were made, not misleading.
The following persons also certify that they are signing on
behalf of the registrant and in the capacities and on the dates
indicated.
By (Signature and Title)..........................................
Date.....................
By (Signature and Title)..........................................
Date.....................
* See General Instruction C.
* * * * *
132. By amending Form 18-K (referenced in ง 249.318) by
adding paragraph 1A., by revising the "Rule as to Use of Form
18-K" section of the Instruction Book for Form 18-K, and
by revising Instructions 1. and 3.(a) of the "Instructions as to
the Preparation and Filing of the Report" section to read as
follows:
Note:The text of Form 18-K does not and this amendment will
not appear in the Code of Federal Regulations.
FORM 18-K
* * * * *
1A. Set forth, under the caption "Risk Factors": (i) the
most significant factors with respect to the registrant's
financial position; and (ii) country risks that are unlikely to
be known or anticipated by investors. Explain briefly how the
risk affects the registrant. Do not present risk factors that
could apply to any registrant. Set forth each risk factor under
a caption that adequately describes the risk. Provide the
discussion of risk factors in plain English in accordance with
Exchange Act Rule 12b-24.
* * * * *
INSTRUCTION BOOK FOR FORM 18-K
* * * * *
Rule as to Use of Form 18-K
This Form is to be used for the annual reports of foreign
governments and political subdivisions thereof.
Instructions as to the Preparation and Filing of the Report
1. Registrants shall file annual reports on this Form
within nine months of the close of each fiscal year of the
registrant.
2. * * *
3.(a) The registrant shall file the report on good quality,
unglazed, white paper no larger than 8ฝ X 11 inches in size. If
reduction of larger documents would render them illegible, the
registrant may file such documents on paper larger than 8ฝ X 11
inches in size. The registrant may bind the report on the left.
* * * * *
By the Commission.
Jonathan G. Katz
Secretary
Dated: November 13, 1998