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Securities and Exchange Commission
17 CFR Parts 210, 228, 229, 230, 239, 240, 249 and 260
[Release Nos. 33-7745; 34-41936; International Series Release No. 1205]
File No. S7-3-99
RIN 3235-AH62
International Disclosure Standards
Agency: Securities and Exchange Commission
Action: Final rule
Summary: The Securities and Exchange Commission is adopting revised
disclosure requirements for foreign private issuers to conform to the
international disclosure standards endorsed by the International Organization of
Securities Commissions in September 1998. The international disclosure standards
will replace most of the non-financial statement disclosure requirements of Form
20-F, the basic disclosure document for foreign private issuers. We are revising
the registration statements used by foreign private issuers under the Securities
Act of 1933 to reflect the changes in Form 20-F. We also are revising the
definition of "foreign private issuer" to give clearer guidance on how
foreign companies should determine whether their shareholders are U.S.
residents.
Dates:
Effective Date: September 30, 2000.
Compliance Dates:
For Further Information Contact: Sandra Folsom Kinsey, Senior
International Counsel, or Rani Doyle, Special Counsel, in the Office of
International Corporate Finance, Division of Corporation Finance at (202)
942-2990.
Supplementary Information: We are adopting amendments to Form 20-F1
under the Securities Exchange Act of 1934.2
As part of those amendments, we are deleting Rule 3-19 under Regulation S-X.3
We are adopting amendments to Rule 3-20 under Regulation S-X,4
Items 402, 404, 512, and 601 of Regulation S-K,5
Rules 175, 434 and 463 of Regulation C,6
Forms F-1, F-2, F-3, F-4, F-6 and S-117under
the Securities Act of 1933,8
Exchange Act Rules 3b-6, 13a-10 and 15d-10,9
and Rule 0-11 under the Trust Indenture Act of 193910
to conform references to the items in Form 20-F that are being revised in
connection with the amendments to Form 20-F. We are adopting amendments to Rules
3-01, 3-02 and 3-12 under Regulation S-X11
and to Item 310 of Regulation S-B12
to eliminate references to Rule 3-19. We also are revising the definition of
foreign private issuer in Securities Act Rule 40513
and Exchange Act Rule 3b-4.14
I. Executive Summary
Many of our initiatives for foreign issuers have had the goal of reducing
barriers to cross-border offerings and listings in the United States, while
preserving or enhancing existing investor protections. In addition to our own
initiatives, we, as a member of the International Organization of Securities
Commissions, referred to as IOSCO, have participated in international
initiatives intended to facilitate the cross-border flow of securities and
capital by promoting the use of a single disclosure document that would be
accepted in multiple jurisdictions. In 1998, IOSCO endorsed a core set of
disclosure standards for the non-financial statement portions of a disclosure
document, and encouraged its members to take whatever steps would be necessary
in their own jurisdictions to accept disclosure documents prepared in accordance
with those standards.15
We believe IOSCO's disclosure standards represent a strong international
consensus on fundamental disclosure topics, and that they can be used to produce
offering and listing documents that will contain the same high level of
information we traditionally have required. Today we are revising our existing
foreign issuer integrated disclosure system to incorporate fully the
international disclosure standards. We are adopting the revisions to our foreign
integrated disclosure system essentially as proposed,16
with a few changes prompted by the suggestions of commenters. The international
disclosure standards replace most, but not all, of the previous requirements of
Form 20-F, the combined registration and annual report form for foreign private
issuers under the Exchange Act.
We also are revising the definition of "foreign private issuer"
found in the rules under the Securities Act and the Exchange Act, to base the
definition more closely on the percentage of securities beneficially owned by
U.S. residents.17 In
response to concerns raised by commenters, we have modified the proposed
definition to give issuers clearer guidance on how to calculate the amount of
their voting securities held by U.S. residents.
II. Background Of Proposals And Commenters' Concerns
A. Background
As noted in the Proposing Release, we historically have sought to balance the
information needs of investors with the public interest served by opportunities
to invest in a variety of securities, including foreign securities.18
Technological advances have made it easier than ever for investors to learn
about and invest in foreign companies. Because of the increasing flow of capital
across borders, we and other securities regulators around the world have an
interest in ensuring that a high level of information is available to investors
in all markets. For this reason, we have been actively involved in IOSCO's
efforts to develop a set of high quality international disclosure standards that
could be used in cross-border offerings and listings. We support international
initiatives that raise the level and quality of information available to
investors, facilitate the cross-border flow of capital and reduce the regulatory
burdens on foreign issuers, if those initiatives do so in a manner that is
consistent with our mandate to protect investors. We believe the international
disclosure standards endorsed by IOSCO achieve those goals and that the best way
to promote use of the standards is to incorporate them fully into our existing
foreign issuer integrated disclosure system.19
B. Comments Regarding International Disclosure Standards
We received fifteen comment letters on the Proposing Release.20
All of the comment letters expressed support for increasing international
harmonization of disclosure standards and many expressed support for the
proposed amendments. The letters from organizations representing users of issuer
information, such as analysts and institutional investors, were particularly
supportive. These commenters viewed the proposal as a means for promoting
harmonization and improving comparability, without compromising the level of
information provided by foreign registrants. Several commenters who expressed
support for international harmonization of disclosure standards placed even
greater importance on achieving harmonization in the area of international
accounting standards. As we noted in the Proposing Release, the development of
international accounting standards currently is the subject of a separate
project by IOSCO.21 Some
of the commenters had helpful suggestions for incorporating the international
disclosure standards into our foreign integrated disclosure system and for
clarifying the instructions to Form 20-F, and we have adopted many of these
suggestions in the final amendments.
A few commenters urged us to evaluate the extent to which other jurisdictions
accept the international disclosure standards before we take steps to revise our
rules. They suggested that the international disclosure standards be available
as an optional, alternative disclosure system, rather than being mandatory for
all foreign registrants.22
These and other commenters tended to view the proposed amendments to Form 20-F
as significantly increasing the disclosure burden for foreign registrants, and
they predicted that imposing these requirements would deter foreign issuers from
offering securities or listing in the United States. One commenter suggested
that the revisions would penalize foreign registrants who had entered the U.S.
market under the prior rules, and proposed that the over 1,100 reporting foreign
issuers be "grandfathered" and allowed to continue using the
disclosure standards in effect before these amendments.
As noted in the Proposing Release, we do not view the amendments to the
foreign integrated disclosure system as resulting in a significant increase in
the information foreign issuers must disclose.23
In the few cases where the international disclosure standards ask for
information not previously required by Form 20-F, we understand that the
information is required under the domestic disclosure requirements in many other
jurisdictions.24 Much of
the information that is new to Form 20-F's disclosure requirements, therefore,
is likely to be disclosed routinely by companies in countries outside the United
States. In some cases, companies already may provide information required under
the amendments to Form 20-F because of our general requirement to provide
additional material information.25
In some cases, changes in the wording of requirements may create the
impression that different or additional disclosure is required. We understand
that changes in wording may create uncertainty among practitioners who are
familiar with the prior phrasing and are unsure how to interpret different
expressions of what is intended to be essentially the same requirement. One
commenter urged us to identify disclosure requirements that use different
wording but that are not intended to impose different substantive disclosure
requirements. Although it is not possible to identify every example, we have
tried to bear that concern in mind in our more detailed explanation of the
amendments we are adopting today.
With respect to the suggestion that we delay adopting the international
disclosure standards until we see how widely they are accepted, or that we
implement them on a voluntary basis, we do not believe that those approaches
would achieve our goal of promoting regulatory harmonization at a high level of
disclosure.26 We
understand that some of the more developed capital markets represented in IOSCO
either have agreed to accept, or are planning to accept, disclosure documents
prepared using the international disclosure standards in cross-border offerings
and listings. For example, the London Stock Exchange has advised us that it
currently would accept disclosure documents based on the international
disclosure standards, and, as part of its annual revision of its listing rules,
it will be codifying that position in its rules. Some IOSCO jurisdictions have
adopted the standards for domestic purposes; we understand that is the case in
Argentina, Italy and Mexico. We think that by moving quickly to incorporate the
international disclosure standards into our foreign registration system, we
demonstrate our strong support for high quality international standards and
encourage other jurisdictions to follow suit. As one of the largest capital
markets, we believe our support is important for widespread acceptance and
implementation of the standards.
In the Proposing Release we explained that we had considered but rejected the
alternative of a two-tiered registration system for foreign issuers. We continue
to believe that any elective approach would add unnecessary complexity to our
registration system, when our preference is for measures that promote regulatory
simplification. For the same reason and because, as explained above, we do
not view the international disclosure standards as imposing a significant
additional disclosure burden we do not plan to "grandfather" the
existing foreign reporting companies.
We believe the lengthy effective dates for the revised rules and forms will
allow time to confirm that there is international support for the standards. The
delayed effective dates also provide a transition period that should be
particularly helpful for registrants adapting to a new disclosure form. For
example, as explained later in this release, issuers filing registration
statements on Form 20-F or Form F-1 will not use the revised forms until
September 30, 2000, and repeat issuers filing registration statements on Forms
F-2, F-3 or F-4 will have an even longer transition period. Annual reports on
revised Form 20-F will not be due until March 31, 2001 at the earliest, for
those companies with September 30 fiscal year ends. Companies with December 31
fiscal year ends will not be required to file an annual report on revised Form
20-F until June 30, 2001, almost two years from the date of this release.
C. Comments Regarding Elimination of Rule 3-19
As we explained in the Proposing Release, we are eliminating Rule 3-19 of
Regulation S-X, which specifies the content, age and other requirements for
foreign issuer financial statements, because the requirements of the rule are
addressed in new Item 8 of Form 20-F. The only substantive change relates to the
permitted age of financial statements. Item 8 of Form 20-F requires that audited
financial statements be no older than 15 months at "the time of the
offering or listing," which means the effective date of the registration
statement, rather than the 18 months permitted under Rule 3-19. In the case of
the issuer's initial public offering, the audited financial statements also must
be as of a date not older than 12 months at the time the offering document is
filed. This stricter rule for initial public offerings does not apply to foreign
issuers offering securities in the United States for the first time if they
already are public in their home country.27
Item 8 also provides that if the date of a registration statement is more than
nine months after the end of the issuer's last fiscal year, the registration
statement must contain interim financial statements, including U.S. GAAP
information, covering at least the first six months of the issuer's fiscal year.
This information may be unaudited.
Some commenters pointed out that business history, market factors and
industry practices often cause foreign issuers to prepare financial statements
that are more current than required. These commenters did not believe the
proposal to shorten the age of financial statements requirement would have
significant practical effect on many issuers. One commenter approved of
requiring more current financial information and urged us to consider
accelerating further the filing deadlines for annual reports of foreign
registrants. On the other hand, several commenters expressed the view that the
proposed change would unduly burden foreign issuers. These commenters pointed
out that foreign issuers often need additional time to prepare a reconciliation
to U.S. GAAP after they have finished preparing their primary financial
statements.
We believe that the 15-month audited financial statement requirement is in
line with the requirements in other countries and is not an undue burden on a
company seeking to offer securities in the United States. In most cases,
companies have the ability to control the timing of their offerings so as to
reduce the impact of this shorter age requirement. We believe the 15-month
period is sufficient time to prepare a reconciliation to U.S. GAAP along with
the financial statements. We also hesitate to factor in extra time for a company
to prepare a reconciliation to U.S. GAAP, because this requirement affects
companies in different ways. Whether or not there are any reconciling items to
be reported and the number and extent of those items depends, among other
things, on a company's business activities during the period covered by the
financial statements, on how similar the accounting standards used in preparing
the primary financial statements are to U.S. GAAP, and on the way in which the
company has chosen to apply those accounting standards in preparing its primary
financial statements. For some companies, the burden is not significant.
Some commenters argued that the "blackout" period resulting from
the new age of financial statements requirements and the current six-month due
date for annual reports on Form 20-F would pose a particular hardship for
issuers who are in the market more or less continuously, as in the case of
rights offerings, dividend or interest reinvestment plans, and offerings of
securities upon conversion or exercise of outstanding securities. We already
have distinguished these types of offerings in certain respects, such as by
permitting the financial statements in prospectuses for these types of offerings
to be reconciled to U.S. GAAP in accordance with Item 17, rather than Item 18,
of Form 20-F. Because the blackout period may be particularly disruptive for
these types of offerings, we have amended the instructions to Item 8.A.5 to
replace the 15-month requirement for these types of offerings with an 18-month
requirement and to replace the nine-month interim financial statements
requirement with a 12-month requirement, which mirror the previous requirements
for those types of offerings. We expect to reconsider this accommodation in the
future, however, and may propose reducing the permitted age of financial
statements for these types of offerings based on a review of its operation in
practice or a possible change in the due date for annual reports.28
D. Specific Changes to Registration and Report Forms
Form 20-F is used as an initial registration statement under the Exchange Act
and as an annual report form for foreign private issuers required to file annual
reports pursuant to Section 13 or 15(d) of the Exchange Act. The amendments to
Form 20-F adopted today replace prior Items 1 - 14 of Form 20-F, excluding Item
9A, with ten new items that track the wording of the IOSCO disclosure standards.
The item previously designated as Item 9A, Quantitative and Qualitative
Disclosures about Market Risk, of Form 20-F is retained and renumbered as Item
11. The items previously designated as Item 15, Defaults Upon Senior Securities,
and Item 16, Changes in Securities and Changes in Security for Registered
Securities, of Form 20-F also are retained and renumbered as Items 12 and 13,
and the wording has been revised to reflect "plain English" drafting
principles. These two items continue to apply only when Form 20-F is used as an
annual report form.
Items 17 and 18 of Form 20-F are retained in substance and are not
renumbered; these items explain the financial statement requirements for
registration statements and reports and the different types of reconciliation to
U.S. GAAP that must be provided by issuers who prepare financial statements
using accounting principles other than U.S. GAAP. As noted in the Proposing
Release, the text of old Item 18 was largely the same as the text of old Item
17; our revisions to Item 18 eliminate the redundant text and highlight the
differences, but are not intended to change any substantive requirements of that
Item.
The amendments adopted today also bring the exhibit requirements for foreign
issuers more in line with the exhibits required for domestic issuers filing a
registration statement on Form 10 or an annual report on Form 10-K. The
"Appendix A to Item 2(b) Oil and Gas" is amended only to correct
item references; no substantive changes were made. Corresponding changes were
made in the Securities Act registration statement forms that refer to Form 20-F.
Several commenters made helpful suggestions for clarifying the instructions
to the ten items of the international disclosure standards or for adapting them
to our existing integrated disclosure system. The ten core items are described
below, together with an explanation of some of the changes from the Proposing
Release. As noted, most of the ten items have been adopted as proposed.
Item 1. Identity of Directors, Senior Management and Advisors. Several
commenters noted that the terms "principal bankers and legal advisors"
and "legal advisors to the issue" may be confusing or raise liability
issues in the United States. While these terms and the term "sponsor"
are commonly used and well understood in some countries, they may not be used in
other jurisdictions. We have revised the instructions to this item to clarify
that these individuals or entities only need be identified if the issuer is
required to identify them in other jurisdictions.
Item 2. Offer Statistics and Expected Timetable. One commenter noted
that the timetable for a typical U.S. offering by a foreign private issuer would
be very dependent on market conditions and other unpredictable factors. We would
expect that in cases such as a typical, U.S.-style, firm-commitment underwritten
offering, the timetable disclosure would be very brief and would likely focus
more on the sequence of events than on precise dates. In other cases, such as
offerings involving a complex corporate restructuring, we expect that the
timetable would provide more detail and likely would include anticipated dates
or elapsed periods of time for major events.
Item 3. Key Information. This item includes requirements for selected
financial data, exchange rate information, the reasons for the offer and the
expected use of proceeds, and information about risk factors. With respect to
the Item 3.B requirement for a statement of capitalization and indebtedness, we
have amended the proposed instructions to clarify that this statement is not
required in annual reports, in line with current disclosure practice, and also
to provide guidance on complying with the requirement in the case of offerings
under shelf registration statements. With respect to the requirement for
information on the reason for the offer and use of proceeds, found in Item 3.C,
we view this item as calling for the same type of information that U.S.
companies provide in response to Item 504 of Regulation S-K. With respect to
Item 3.D, risk factors, one commenter suggested that attempting to limit risk
factor disclosure in annual reports to "the most significant risk
factors" was confusing and unnecessary. We agree that, in view of our
recent "plain English" initiative and its emphasis on avoiding
boilerplate risk factors, any listing of risk factors whether in a
registration statement or an annual report should focus on the most
significant risk factors as they apply to the issuer and its operations. An
explicit instruction would be redundant and may create confusion. Accordingly,
we have deleted this instruction.
Item 4. Information on the Company. This item includes requirements
for a description of the issuer's business and properties. To the extent segment
information is required, this item states that information may be presented on
the same basis as that used to determine the company's business segments under
the body of accounting principles used in preparing the financial statements.
This statement is intended to refer to the accounting principles used in
preparing the primary financial statements, not those used in preparing any
required U.S. GAAP reconciliation. One commenter suggested that we continue to
include the Form 20-F instructions regarding the necessity of complying with
applicable Industry Guides and, for issuers in extractive industries, the need
to name any independent consultants who have prepared or reviewed estimates of
reserves. Following this suggestion, we have revised the instructions to Item 4
to reflect our existing instructions in this area.
Item 5. Operating and Financial Review and Prospects. This item
corresponds to the current requirement for management's discussion and analysis
of financial condition and results of operations. We interpret the requirements
of this item as being essentially the same as those of old Item 9 of Form 20-F.
We have added an instruction to clarify that, as was the case under old Item 9,
this section of the registration statement or report should discuss any aspect
of the U.S. GAAP reconciliation and U.S. GAAP differences that the registrant
believes is necessary for an understanding of the financial statements as a
whole. In response to comments asking us to clarify when information must be
provided with respect to inflation rates and the effects of hyperinflation, we
have added an instruction to provide additional guidance.
Item 6. Directors, Senior Management and Employees. This item includes
requirements relating to compensation and shareholdings for directors and
management. The definition of the term "administrative, supervisory or
management bodies" in Form 20-F's Glossary states that this term
corresponds to "executive officers" in the United States. Two
commenters suggested that this attempt at clarification could create confusion,
because in some countries the members of these bodies may not perform the same
functions as executive officers in U.S. companies. In response to this concern,
we have deleted the clarification and added an instruction stating that the
meaning of these terms will depend on the functions performed.
Several commenters noted that Item 6 requires disclosure of the amount of
shares held by individual directors and management, without the alternative
previously available under old Item 5 of Form 20-F of providing this information
on an aggregate basis. We believe that the international disclosure standards
reflect a consensus that the individual share ownership of management provides
important information for investors. However, we have added an instruction
indicating that if an individual member of management beneficially owns less
than 1% of the outstanding securities, that fact may be stated instead of
providing the specific number of shares that individual beneficially owns, as
long as the specific number of shares is not otherwise disclosed or required to
be disclosed in a non-U.S. jurisdiction. This mirrors the approach taken in Item
403 of Regulation S-K for U.S. issuers.
Item 7. Major Shareholders and Related Party Transactions. This item
requires disclosure of information about major shareholders and others that
control or may control the company, as well as disclosure of related party
transactions. At the request of one commenter, we have added an instruction
similar to Instruction 3 to Item 404(c) of Regulation S-K, to clarify the extent
to which banks and other lending institutions must disclose loans made in the
ordinary course of business. Item 7 reduces the Form 20-F threshold for
disclosure of beneficial ownership from 10% to 5%, and the commenters that
mentioned this change generally expressed support.
Item 8. Financial Information. This item contains requirements
relating to the presentation of financial statements, requirements that
previously were set forth in Rule 3-19 of Regulation S-X, and requirements
relating to legal proceedings. The only change we are making to Regulation S-X
is the elimination of Rule 3-19; the remaining items of Regulation S-X continue
to apply to registration statements and reports filed by foreign private issuers
to the same extent they did before these amendments to Form 20-F were adopted.
With respect to the provisions of Item 8.A.5 that relate to financial
information published by the issuer that is more current than the financial
statements required in the filing, some commenters expressed concern that these
provisions expand on the requirements of Rule 3-19(f) or change the
reconciliation requirement for this type of information. This was not the
intention, and we have revised the instructions in an attempt to eliminate any
confusion on this point.29
We also have added an instruction clarifying that in order to comply with the
requirement for three years of audited financial statements, the issuer is not
required to provide a balance sheet for the earliest of these periods if it is
not required in a jurisdiction outside the United States.
Two commenters asked if the statement in the Item 8 instructions and in the
General Instructions, that financial statements must be audited in accordance
with U.S. generally accepted auditing standards, was intended to change the
staff's practice of accepting auditor's reports that state that the audit was
conducted in accordance with local auditing standards that are
"substantially similar" or "similar in all material
respects" to U.S. GAAS. As one commenter noted, that practice was adopted
to accommodate audit report styles in different jurisdictions that differ from
the audit report wording specified by U.S. GAAS. The practice was not intended
to relieve the auditor of the responsibility to perform all auditing procedures
necessary under U.S. GAAS. We do not intend to change our practice of accepting
wording variations in audit reports to comply with local reporting formats. In
all other respects, however, in order to avoid ambiguity, the report must say
that the audit was performed in accordance with U.S. GAAS.
Item 9. The Offer and Listing. This item includes requirements for a
description of the offering, including the plan of distribution, trading
markets, selling shareholders, dilution and expenses. Item 9.A requires
disclosure of how the offering price was determined if there is no established
market for the securities being offered. We view this requirement as being
equivalent to the requirement of Item 505 of Regulation S-K. One commenter
pointed out that the requirement in Item 9.B.1 for the underwriters' addresses
could create logistical problems in U.S.-style offerings where the syndicate
members are not decided until final pricing. In those circumstances, however, an
issuer may comply with this requirement by disclosing only the addresses of the
lead underwriters, which should be known before pricing. Generally speaking, for
a U.S.-style, firm commitment underwritten offering, we would expect that the
responses to Item 9.B, Plan of Distribution, would include much of the same
information provided in response to Item 508 of Regulation S-K, to the extent
that information is material to an investor's understanding of the offering.
Item 10. Additional Information. This item includes requirements for,
among other things, a description of the issuer's share capital, significant
provisions of its articles of incorporation and bylaws, its material contracts,
and applicable taxes. One commenter suggested that certain requirements of Item
10, specifically subsections 10.A (Share Capital), 10.E (Taxation) and 10.F
(Dividends and Paying Agents), be limited to registration statements and annual
reports relating only to equity securities, since that information is
inapplicable to other types of securities, or would otherwise be disclosed in
the issuer's financial statements or in response to Item 10.B, Memorandum and
Articles of Association. After considering this comment and the prior
requirements of Form 20-F, we agree that the information called for by Item 10.A
and 10.F is less pertinent to non-equity securities and to annual reports, and
we have amended the item to limit these requirements to registration statements
relating to equity securities.
E. "Foreign Private Issuer" Definition
We are adopting the proposed amendments to Rule 405 under the Securities Act
and Rule 3b-4 under the Exchange Act, which contain the definition of
"foreign private issuer,"essentially in the form proposed,
with some additional clarification. The amendments, in effect, change the test
of whether more than 50 percent of an issuer's outstanding voting securities are
held by residents of the United States from a record ownership test to one that
more closely reflects the beneficial ownership of the issuer's securities.30
As noted in the Proposing Release, we believe that the increased prevalence of
offshore nominees and custodial accounts has made record ownership less
meaningful for purposes of determining U.S. ownership. We believe a test based
more closely on beneficial ownership gives a better picture of whether or not a
company incorporated outside the United States is entitled to the accommodations
available to foreign private issuers under the federal securities laws. The
ownership test adopted today is based on the method of calculation used in
Exchange Act Rule 12g3-2(a), which follows the definition of "securities
held of record" in Rule 12g5-1, but requires the issuer to "look
through" the record ownership of brokers, dealers, banks or nominees
holding securities for the accounts of their customers to determine the
residency of those customers. Issuers also must take into account information
regarding U.S. ownership derived from beneficial ownership reports that are
provided to the issuer or filed publicly, as well as information that otherwise
is provided to the issuer. The reference to beneficial ownership reports is not
limited to reports filed with the Commission, since we understand that
beneficial ownership of an issuer's securities may be required to be provided to
the issuer or disclosed publicly in other countries, as well as in the United
States.
Several commenters suggested that these changes would create a substantial
burden for companies that trade in many different markets, and that widely held
companies would have to devote significant effort and expense in determining
beneficial ownership in many jurisdictions where the likelihood of finding U.S.
owners is small. In order to address these concerns, we have limited the
application of the "look through" provisions of Rule 12g3-2(a) to
voting securities held of record
These jurisdictions should cover most of the trading volume for the issuer's
securities, and searches in these jurisdictions are likely to yield the greatest
number of U.S. beneficial owners. This modification to the test should reduce
the burden on foreign companies while still producing a reasonably accurate
picture of whether or not the company is a foreign private issuer.
Most commenters questioned the basis for our proposed rebuttable presumption
that, if a foreign issuer's securities trade in the U.S. markets in the form of
American Depositary Receipts, or ADRs, the shares deposited in the ADR program
are held solely by U.S. residents. These commenters pointed out that, for a
number of reasons, non-U.S. investors may choose to hold securities in ADR form.
Because it appears that issuers will not take advantage of the presumption and
will feel the need to query ADR depositaries regarding the owners of ADRs, we
have determined not to adopt the presumption.
Some commenters pointed out that it is not always possible for issuers to
obtain information about separate customer accounts, as required by Rule
12g3-2(a). Brokers, dealers, banks or other nominees may be unwilling or unable
to provide information about their customer accounts. This problem is not unique
to the foreign private issuer definition, however; the duty to inquire about
separate customer accounts already exists for issuers deciding whether the
reporting exemption in Rule 12g3-2(a) is available. In the case of the foreign
private issuer definition, the issuer would not be asking nominees to provide
the number of U.S. shareholders or the names of those shareholders, but only the
percentage of the nominee's holdings of the issuer's securities that are
represented by U.S. accounts. If after reasonable inquiry, however, the issuer
is unable to obtain information about the nominee's customer accounts, including
cases where the nominee's charge for supplying this information would be
unreasonable, the issuer may rely on a presumption that the customer accounts
are held in the nominee's principal place of business. We have revised the
instructions to the foreign private issuer definition to clarify this point.
III. Effective Dates And Transition Provisions
The amendments to rules and forms adopted today become effective September
30, 2000, with certain exceptions. In some cases, as explained below, the date
at which a registrant will have to comply with a revised form will depend on
that registrant's fiscal year end.
The following information applies to situations that arise when registrants
make the transition from the old version of a form to the revised version:
Registrants are encouraged to use the revised forms for registration
statements and annual reports on a voluntary basis before the compliance dates
described above. A registrant that wishes to use revised Forms F-2, F-3 or F-4
before it has filed its first annual report on revised Form 20-F may do so. In
those cases, however, the registrant either will have to amend its previously
filed annual report to comply with the new disclosure requirements of Form 20-F
or provide within the body of the Securities Act registration statement the
information it would otherwise incorporate from Form 20-F.
IV. Cost-Benefit Analysis
The amendments update and simplify the disclosure requirements for foreign
private issuers. We believe the amendments will make it easier for foreign
private issuers to raise capital and list their securities in multiple
jurisdictions, including the United States. In addition, as other jurisdictions
adopt or accept the international standards, U.S. issuers desiring to raise
capital in multiple foreign markets will enjoy the benefits of harmonization.
Foreign issuers seeking to raise capital or list securities in more than one
jurisdiction often encounter differing, and in some cases conflicting,
regulatory requirements. These regulatory hurdles may influence issuers'
decisions about where to offer or list their securities. A primary goal of the
amendments to Form 20-F is to encourage and facilitate the use of one disclosure
document by issuers seeking to raise capital or list securities in multiple
jurisdictions. The amendments provide the benefits of lowering regulatory
barriers to cross-border offerings and listings with the result of reduced
regulatory costs and burdens. The amendments will bring us closer to the goal of
enabling issuers to prepare one basic disclosure document that will be accepted
in many jurisdictions. Although some tailoring of the disclosure document may be
required to satisfy specific national requirements, issuers and investors will
benefit from greater uniformity in the requirements for core disclosure topics.
The amendments impose some additional disclosure requirements on foreign
private issuers. However, we believe that the benefits of the amendments to
issuers and investors justify possible costs. As we stated in the proposing
release, we believe the IOSCO standards incorporated into amended Form 20-F are
generally comparable to the prior disclosure requirements of Form 20-F and that
foreign private issuers should not experience significantly increased compliance
costs. Some commenters, including attorneys in private practice informally
contacted by the staff of the Office of International Corporate Finance, have
concurred with our view. They acknowledge that the disclosure requirements in
amended Form 20-F are comparable to the Form's previous disclosure requirements
and would not, in practice, result in significant additional or quantifiable
compliance costs.
We recognize that shortening the age of financial statements requirement may
present burdens for some foreign private issuers. We believe that the
transparency benefits to investors of the availability of more current
information justifies the potential burdens of the new requirements. Indeed,
several commenters expressed their belief that the amendments will increase
transparency, ensure a high level of investor protection and enhance the
comparability of disclosures between foreign and domestic issuers. In addition,
in conversations with practitioners, many indicated that they did not expect the
new Form 20-F requirements to impact their clients adversely, because the market
already demands more current financial information from offerors than presently
required. For these issuers, no new burden will exist. Moreover, in response to
concerns raised by some commenters, the final amendments relax the age of
financial statement requirements for continuous offerings, diminishing the
burdens potentially associated with the new timing requirements. Furthermore, in
many offerings, issuers have flexibility to determine the timing of their
filings and may be able to plan their offerings to accommodate the requirements.
Accordingly, the Commission does not believe that foreign private issuers should
experience a significant quantifiable burden in complying with the amendments.
There are other reasons to conclude that the benefits of the amendments,
which will accrue both to investors and to issuers, will justify the costs.
First, the purpose of the amendments is to facilitate cross-border offerings and
listings. We believe the amendments will encourage other jurisdictions to
endorse or adopt the IOSCO standards, and widespread acceptance of the standards
will further reduce compliance burdens for foreign issuers, as well as for U.S.
issuers seeking capital abroad.
Second, we, as well as some commenters, expect additional compliance costs
will be mitigated because a significant number of foreign private issuers
already comply, for various reasons, with the additional disclosure requirements
in the amended Form. For instance:
Third, not all of the disclosure requirements of the amended Form will apply
to all foreign private issuers; some requirements are based, as with old Form
20-F, on foreign requirements. In these instances, disclosure will not be
required under the amended Form unless a foreign private issuer is required to
disclose information in another jurisdiction or makes the requested information
public on a voluntary basis.
Finally, the amendments are scheduled to take effect gradually, beginning
more than one year from adoption, at the earliest. This schedule will give
foreign private issuers a significant amount of time to familiarize themselves
with the amendments and to set up cost-effective procedures, as necessary, to
comply with the amendments. We believe this will allow foreign issuers to plan
and minimize any compliance costs.
Some commenters expressed concern that the amendments to change the
definition of "foreign private issuer" under the Exchange Act and the
Securities Act would impose significant compliance costs. We believe the new
requirements are beneficial to the integrity of our regulatory system, which
provides accommodations for foreign issuers because of the unique difficulties
they face in entering a foreign regulatory regime. The amendments provide a more
accurate portrayal of whether a company incorporated outside the United States
is the type of entity for whom the special rules and forms for foreign private
issuers were intended.
In response to concerns expressed by commenters about the costs associated
with the amendments, we have determined to adopt a more focused "look
through" requirement that will reduce issuer costs and capture most U.S.
ownership information. We believe that the benefits of accurate issuer
categorization justify the additional costs a company incorporated outside the
United States may bear in determining whether it is entitled to the
accommodations available to foreign private issuers.
In sum, we expect the amendments to revise Form 20-F, accelerate the age of
financial statements requirements, and revise the definition of foreign private
issuers, will impose transitional costs on foreign private issuers, but after a
transitional period, we believe those costs will become much less significant.
We believe those costs are justified in light of the benefits the amendments
will provide to issuers, investors and the markets.
V. Consideration Of Burdens On Competition, And Promotion Of Efficiency,
Competition And Capital Formation
Form 20-F is used by foreign private issuers as an initial registration
statement and as an annual report form under the Exchange Act. The amendments to
Form 20-F and related forms and rules should encourage and facilitate the use of
one disclosure document that would meet the regulatory requirements of multiple
jurisdictions. The Commission sought but did not receive any comments related to
whether the amendments would promote efficiency, competition or capital
formation, or have anti-competitive effects. Under Section 2(b) of the
Securities Act and 3(f) of the Exchange Act, the Commission considered whether
the amendments would promote competition, cross-border capital formation, and
efficiency in multi-jurisdictional offerings and listings. Moreover, the
amendments adopted today reflect the Commission's consideration, as required by
Section 23(a) of the Exchange Act, of the impact the amendments may have on
competition. The amendments are designed to harmonize disclosure requirements
for foreign issuers, without imposing any negative impact on U.S. businesses.
Therefore, the Commission believes that any burden on competition imposed by the
amendments is necessary or appropriate in furtherance of the purposes of the
Exchange Act.
VI. Regulatory Flexibility Act Certification
Pursuant to the Regulatory Flexibility Act (15 U.S.C. § 605(b)), the
Chairman of the Commission certified at the proposal stage that the revisions to
rules and forms will not have a significant impact on a substantial number of
small entities. We received no comments specifically addressing the
certification. A copy of the certification was attached as Appendix A to the
Proposing Release.
VII. Paperwork Reduction Act
The amendments affect Form 20-F, which contains "collection of
information requirements" within the meaning of the Paperwork Reduction Act
of 1995.33 The title for
the collection of information is "Form 20-F." Providing the
information required by Form 20-F is mandatory for foreign private issuers
required to register securities or offerings with the Commission, and the
information collected will not be kept confidential.
The amendments will affect changes to collections of information within the
Paperwork Reduction Act. The collections of information would be required by
amended Form 20-F. Most of the disclosure requirements of amended Form 20-F
closely correspond to the Form's previous disclosure requirements. The new
requirements of the amended Form are based on common national requirements in
other countries, as identified by IOSCO. For these reasons, we do not expect
filers of the amended Form 20-F to experience a long-term quantifiable change in
their information collection burdens. In the short term, we expect that foreign
private issuers will spend time reviewing Form 20-F to become familiar with its
amended format and requirements, and as necessary, implement measures to comply
with additional disclosure requirements. The adopted rule is substantially
similar to the proposed rules with respect to the collection of information
requirements. Changes from the proposed Form were undertaken in response to
comment letters and principally are clarifications.
The information collection burden is not readily quantifiable for several
reasons:
Once all Form 20-F filers familiarize themselves with the amended Form, we
believe the burden hours will revert to the current information collection
burden estimate. In the longer term, as more jurisdictions endorse and accept
the IOSCO standards, we believe that the burden estimate may decrease as the
differences between U.S. standards and foreign standards are reduced.
We determined the number of burden hours by estimating the number of hours it
would take for an average foreign private issuer to: (1) become familiar with
the amendments; (2) make an initial filing on amended Form 20-F and/or related
amended Securities Act forms; and (3), file subsequent registration statements
or reports using amended Form 20-F standards. It is our estimate that the
average foreign private issuer initially would need 20 hours to understand the
amendments and another 10 to implement them. We believe this 30 hour burden will
decrease significantly after the first time a foreign private issuer complies
with the amendments.
In addition to the transition burden, the average foreign private issuer
would need 451 hours annually to file an amended Form 20-F or amended Securities
Act form that incorporated Form 20-F standards. To reach this number, we relied
on the total annual burden hour estimate submitted in connection with Form 20-F
to the Office of Management and Budget, referred to as OMB, in 1996. The
resulting estimate is significantly less than the 1,995 burden hours set forth
in the Proposing Release for these amendments, which upon further review, we
determined was inaccurate. We solicited but did not receive any comments on this
estimate. In subsequent years, we expect the annual burden to revert to 451
hours per response. We estimate that there would be 1,007 respondents to Form
20-F. Each respondent would respond once per year.
The Commission submitted the proposed revisions to those rules and forms to
OMB for review in accordance with 44 U.S.C. § 3507(d) and 5 CFR § 1320.11. An
agency may not conduct or sponsor, and a person is not required to respond to, a
collection of information unless it displays a currently valid OMB control
number. The OMB control number is 3235-0288. The revised forms and regulations
set forth the disclosures that the Commission will require foreign private
issuers to make to the public about themselves and their securities offerings.
Requests for materials submitted to OMB by the Commission with regard to the
collection of information should be in writing, refer to File No. S7-3-99, and
be submitted to the Securities and Exchange Commission, Records Management,
Office of Filings and Information Services.
VIII. Statutory Basis And Text Of Amendments
The amendments to the Commission's rules and forms are adopted pursuant to
Sections 2(b), 5, 6, 7, 10 and 19(a) of the Securities Act of 1933 as amended,
Sections 3, 12, 13, 15 and 23 of the Securities Exchange Act of 1934, and
Section 319 of the Trust Indenture Act of 1939.
List of Subjects
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.
17 CFR Part 260
Reporting and recordkeeping requirements, Securities, Trusts and Trustees.
Text Of The Amendments
In accordance with the foregoing, the Securities and Exchange Commission
amends Title 17, chapter II of the Code of Federal Regulations as follows:
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
1. 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.
2. By removing and reserving § 210.3-19.
3. Amend § 210.3-20 in the last sentence of paragraph (d) by removing the
words "Items 17(c)(2) or 18(c)(2) of" and adding, in their place, the
words "Item 17(c)(2) of".
4. By removing in 17 CFR Part 210 the words "§ 210.3-19" and
adding, in their place, the words "Item 8.A of Form 20-F (§ 249.220 of
this chapter)" in the following places:
(a) Section 210.3-01(h); and
(b) Section 210.3-02(d).
5. Amend § 210.3-12 in paragraph (f) by removing the words "specified
in § 210.3-19. Financial statements of a foreign business which are furnished
pursuant to §§ 210.3-05 or 210.3-09 because it is an acquired business or a 50
percent or less owned person may be of the age specified in § 210.3-19."
and adding, in their place, the words "specified in Item 8.A of Form 20-F (§
249.220f of this chapter). Financial statements of a foreign business which are
furnished pursuant to §§ 210.3-05 or 210.3-09 because it is an acquired
business or a 50 percent or less owned person may be of the age specified in
Item 8.A of Form 20-F."
PART 228 - INTEGRATED DISCLOSURE SYSTEM FOR SMALL BUSINESS ISSUERS
6. 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.
7. Amend the first sentence in Note 2 of § 228.310 by removing the words
"Articles 3-19 and 3-20 (17 CFR 210.3-19 and 210.3-20)" and adding, in
their place, the words "Item 8.A of Form 20-F (17 CFR 249.220f) and Article
3-20 of Regulation S-X (17 CFR 210.3-20)".
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
8. 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.
* * * * *
9. Amend § 229.402(a)(1)(ii) by removing the words "Items 11 and 12 of
Form 20-F [17 CFR 249.220f]" and adding, in their place, the words
"Items 6.B. and 6.E.2. of Form 20-F (17 CFR 249.220f)".
10. Amend §229.404 by revising paragraph 3 of Instructions to Item 404 to
read as follows:
§ 229.404 (Item 404) Certain relationships and related transactions.
* * * * *
Instructions to Item 404.
* * * * *
3. A foreign private issuer will be deemed to comply with Item 404 if it
provides the information required by Item 7.B of Form 20-F (17 CFR 249.220f).
11. Amend § 229.512 in the first sentence of paragraph (a)(4) by removing
the words "§ 210.3-19 of this chapter" and adding, in their place,
the words "Item 8.A. of Form 20-F (17 CFR 249.220f)".
12. Amend § 229.601 in paragraph (b)(10)(iii)(B)(5) by removing the
words "Item 11 of Form 20-F" and adding, in their place, the words
"Item 6.B. of Form 20-F (§ 249.220f of this chapter)".
PART 230 - GENERAL RULES AND REGULATIONS, SECURITIES ACT OF 1933
13. The authority citation for Part 230 continue to read in part as follows:
Authority: 15 U.S.C. 77b, 77f, 77g, 77h, 77j, 77r, 77s, 77sss, 78c, 78d, 78l,
78m, 78n, 78o, 78w, 78ll(d), 79t, 80a-8, 80a-24, 80a-28, 80a-29, 80a-30,
and 80a-37, unless otherwise noted.
* * * * *
14. Amend § 230.175 by removing in paragraph (b)(2)(i) the words "or
Item 9 of Form 20-F (§ 249.220f of this chapter) "Management's discussion
and analysis of financial condition and results of operations,"" and
adding, in their place, the words "Management's Discussion and Analysis of
Financial Condition and Results of Operations, or Item 5 of Form
20-F, Operating and Financial Review and Prospects, (§ 249.220f of this
chapter)"; by removing in paragraph (c)(3) the words "Item 9 of Form
20-F" and adding, in their place, the words "Item 5 of Form
20-F".
15. By amending § 230.405 by revising the definition of "foreign
private issuer" to read as follows:
§ 230.405 Definitions of terms.
* * * * *
Foreign private issuer. The term foreign private issuer means
any foreign issuer other than a foreign government except an issuer meeting the
following conditions:
(1) More than 50 percent of the outstanding voting securities of such issuer
are directly or indirectly owned of record by residents of the United States;
and
(2) Any of the following:
(i) The majority of the executive officers or directors are United States
citizens or residents;
(ii) More than 50 percent of the assets of the issuer are located in the
United States; or
(iii) The business of the issuer is administered principally in the United
States.
Instructions to paragraph (1) of this definition: To determine the
percentage of outstanding voting securities held by U.S. residents:
A. Use the method of calculating record ownership in Rule 12g3-2(a) under the
Exchange Act (§ 240.12g3-2(a) of this chapter), except that your inquiry as to
the amount of shares represented by accounts of customers resident in the United
States may be limited to brokers, dealers, banks and other nominees located in
(1) the United States, (2) your jurisdiction of incorporation, and (3) the
jurisdiction that is the primary trading market for your voting securities, if
different than your jurisdiction of incorporation.
B. If, after reasonable inquiry, you are unable to obtain information about
the amount of shares represented by accounts of customers resident in the United
States, you may assume, for purposes of this definition, that the customers are
residents of the jurisdiction in which the nominee has its principal place of
business.
C. Count shares of voting securities beneficially owned by residents of the
United States as reported on reports of beneficial ownership that are provided
to you or publicly filed and based on information otherwise provided to you.
* * * * *
16. Amend § 230.434 by revising paragraph (c)(3)(i) to read as follows; and
by removing in paragraph (c)(3)(ii) the words "Item 11 of Form S-3 or Form
F-3 (§ 239.13 or § 239.33 of this chapter)" and adding, in their place,
the words "Item 11 of Form S-3 or Item 5 of Form F-3 (§ 239.13 or §
239.33 of this chapter)".
§ 230.434 Prospectus delivery requirements in firm commitment
underwritten offerings of securities for cash.
* * * * *
(c) * * *
(3) * * *
(i) The description of securities required by Item 202 of Regulations S-K (§
229.202 of this chapter) or by Items 9, 10 and 12 of Form 20-F (§ 249.220f of
this chapter) as applicable, or a fair and accurate summary thereof; and
* * * * *
17. Amend § 230.463 by removing in paragraph (a) the words "Item
16(e)" and adding, in their place, the words "Item 14(e)".
PART 239 - FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933
18. The general authority citation for Part 239 continues to read in part as
follows
Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77z-2, 77sss, 78c, 78l,
78m, 78n, 78o(d), 78u-5, 78w(a), 78ll(d), 79e, 79f, 79g, 79j, 79l,
79m, 79n, 79q, 79t, 80a-8, 80a-24, 80a-29, 80a-30 and 80a-37, unless otherwise
noted.
* * * * *
19. Amend General Instruction E. to Form S-11 (referenced in § 239.18) by
removing the words "Items 3, 4, 10, 11 and 18, respectively, of Form
20-F" and adding, in their place, the words "Items 6, 7.A, 8.A.7, and
18 of Form 20-F".
Note: The text of Form S-11 does not and this amendment will not appear in
the Code of Federal Regulations.
20. Amend Form F-1 (referenced in § 239.31) by removing in General
Instruction III the words "the information that would be required by Item
11" and adding in their place the words "the information which would
be required by Item 4"; by removing in General Instruction III the words
"called for by Item 9" and adding in their place the words
"called for by Items 10.A and 10.B of Form 20-F or Item 12 of Form 20-F, as
applicable"; by removing Items 4 through 10 and 13; by redesignating Items
11, 12, 14, 15, 16, and 17 as Items 4, 5, 6, 7, 8, and 9; by revising the
caption for newly designated Item 4 to read "Information with Respect to
the Registrant and the Offering"; by removing in newly designated Item 4(b)
the words "Pursuant to Item 16" and adding, in their place, the words
"Pursuant to Item 8"; and, by removing in newly designated Item 8(b)
the words "and Item 11(b) of this Form" and adding, in their place,
the words "and Item 4(b) of this Form".
21. Amend Form F-1 (referenced in § 239.31) the Instructions As To Summary
Prospectuses section by redesignating paragraphs 1.(c), 1.(d), 1.(e), 1.(f),
1.(g) and 1.(h) as paragraphs 1.(c)(i), 1.(c)(ii), 1.(c)(iii), 1.(c)(iv),
1.(c)(v) and 1.(d); by removing in newly designated paragraph 1.(c)(i) the words
"As to Item 4, a" and adding, in their place, "A"; by
removing in newly designated paragraph 1.(c)(ii) the words "As to Item 7,
a" and adding, in their place, "A"; by removing in newly
designated paragraph 1.(c)(iii) the words "As to Item 8, a" and
adding, in their place, "A"; by removing in newly designated paragraph
1.(c)(iv) the words "As to Item 9, a" and adding, in their place,
"A"; by removing in newly designated paragraph 1.(c)(v) the words
"As to Item 11, a brief statement of the general character of the business
done and intended to be done, the Selected Financial Data (Item 8 of Form 20-F (§
249.220f of this chapter))" and adding, in their place, the words "As
to Item 4, a brief statement of the general character of the business done and
intended to be done, the Selected Financial Data (Item 3.A of Form 20-F (§
249.220f of this chapter))"; by removing in paragraph 3 the words
"that information as to Items 9 and 11 specified in paragraphs (f) and (g)
above" and adding, in their place, the words "that information
specified in paragraphs 1.(c)(iv) and 1.(c)(v) above".
Note: The text of Form F-1 does not and this amendment will not appear in
the Code of Federal Regulations.
22. Amend Form F-2 (referenced in § 239.32) by removing Items 4 through 10
and 14; by adding new Item 4 to read as follows; by redesignating Items 11, 12,
13, 15, 16, and 17 as Items 5, 6, 7, 8, 9, and 10; by removing in newly
designated Item 5(b)(1) the words "pursuant to Item 12" and adding, in
their place, the words "pursuant to Item 6"; by removing in newly
designated Item 5(b)(2) the words "accordance with Item 12 are not
sufficiently current to comply with the requirements of Rule 3-19 of Regulation
S-X (§210.3-19 of this chapter), financial statements necessary to comply with
that rule" and adding, in their place, the words "accordance with Item
6 are not sufficiently current to comply with the requirements of Item 8.A of
Form 20-F, financial statements necessary to comply with that Item"; and,
by removing in the caption of the Note to newly designated Item 6 the words
"Item 12(a)" and adding, in their place, the words "Item
6(a)".
Note: The text of Form F-2 does not and this amendment will not appear in
the Code of Federal Regulations.
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
FORM F-2
Registration Statement Under the Securities Act of 1933
* * * * *
Item 4. Information About the Offering.
Furnish the information about the offering required by the following items of
Form 20-F: Item 2 (Offer Statistics and Expected Timetable), Item 3.B
(Capitalization and Indebtedness), Item 3.C (Reasons for the Offer and Use of
Proceeds), Item 7.C (Interests of Experts and Counsel), Item 10 (The Offer and
Listing) and Item 12 (Description of Securities Other than Equity Securities).
You do not have to repeat in the prospectus any information called for by these
items if the same information is contained in a report being incorporated by
reference into this registration statement.
* * * * *
23. Amend Form F-2 (referenced in § 239.32) the Instructions As To Summary
Prospectuses section by redesignating paragraphs 1.(c), 1.(d), 1.(e), 1.(f),
1.(g) and 1.(h) as paragraphs 1.(c)(i), 1.(c)(ii), 1.(c)(iii), 1.(c)(iv),
1.(c)(v) and 1.(d); by removing in newly designated paragraph 1.(c)(i) the words
"As to Item 4, a" and adding, in their place, "A"; by
removing in newly designated paragraph 1.(c)(ii) the words "As to Item 7,
a" and adding, in their place, "A"; by removing in newly
designated paragraph 1.(c)(iii) the words "As to Item 8, the" and
adding, in their place, "The"; by removing in newly designated
paragraph 1.(c)(iv) the words "As to Item 9, a" and adding, in their
place, "A"; and, by removing in newly designated paragraph 1.(c)(v)
the words "As to Item 12, a brief statement of the general character of the
business done and intended to be done, the Selected Financial Data (Item 8 of
Form 20-F (§ 249.220f of this chapter)" and adding, in their place, the
words "A brief statement of the general character of the business done and
intended to be done, the Selected Financial Data (Item 3.A of Form 20-F (§
249.220f of this chapter)".
24. Amend Form F-3 (referenced in § 239.33) by removing Items 4 through 10
and 14; by adding new Item 4 to read as follows; by redesignating Items 11, 12,
13, 15, 16, and 17 as Items 5, 6, 7, 8, 9, and 10; in newly designated Item 5
remove the words "Item 12" and add, in their place, the words
"Item 6" in the following places: twice in Item 5(a), once in Item
5(b)(1), and once in Item 5(b)(2); by removing in newly designated Item 5(b)(1)
the words "Form 8-K" and adding, in their place, the words "Form
6-K"; by removing in newly designated Item 5(b)(2) the words "Rule
3-19 of Regulation S-X (§ 210.3-19 of this chapter), financial statements
necessary to comply with that rule" and adding, in their place, the words
"Item 8.A. of Form 20-F, financial statements necessary to comply with that
Item"; and by removing in the caption of the Note to newly designated Item
6 the words "Item 12(d)" and adding, in their place, the words
"Item 6(d)".
Note: The text of Form F-3 does not and this amendment will not appear in
the Code of Federal Regulations.
SECURITIES AND EXCHANGE COMMISSION
FORM F-3
Registration Statement Under the Securities Act of 1933
* * * * *
Item 4. Information About the Offering.
Furnish the information about the offering required by the following items of
Form 20-F: Item 2 (Offer Statistics and Expected Timetable), Item 3.B
(Capitalization and Indebtedness), Item 3.C (Reasons for the Offer and Use of
Proceeds), Item 7.C (Interests of Experts and Counsel), Item 10 (The Offer and
Listing) and Item 12 (Description of Securities Other than Equity Securities).
You do not have to repeat in the prospectus any information called for by these
items if the same information is contained in a report being incorporated by
reference into this registration statement.
* * * * *
25. Amend Form F-4 (referenced in § 239.34) by removing the words "Item
4 of Form 20-F" and adding, in their place, the words "Item 7.A. of
Form 20-F" in the following places:
(a) the Instruction following Item 18(a)(5)(ii); and
(b) the Instruction following Item 19(a)(5).
26. Amend Form F-4 (referenced in § 239.34) by removing the words "Item
5 of Form 20-F" and adding, in their place, the words "Item 9.A.4. of
Form 20-F" in the following places:
(a) Instruction 2. to Item 11;
(b) Item 12(a)(5);
(c) Item 12(b)(3)(viii);
(d) Instruction 2. to Item 13;
(e) Item 14(i); and
(f) Item 17(b)(2).
27. Amend Item 12(b)(3)(iii) of Form F-4 (referenced in § 239.34) by
removing the words "Item 6 of Form 20-F, exchange controls and other
limitations on security holders" and adding, in their place, the words
"Item 10.D. of Form 20-F, exchange controls".
28. Amend Item 14(d) of Form F-4 (referenced in § 239.34) by removing the
words "Item 6 of Form 20-F, exchange controls and other limitations
affecting security holders" and adding, in their place, the words
"Item 10.D. of Form 20-F, exchange controls".
29. Amend Form F-4 (referenced in § 239.34) by removing the words "Item
8 of Form 20-F" and adding, in their place, the words "Item 3.A. of
Form 20-F" in the following places:
(a) Item 3(d), 3(e), 3(f)(1), 3(f)(2), 3(f)(3);
(b) Item 12(b)(3)(v);
(c) Item 14(f); and
(d ) Item 17(b)(3);
30. Amend Form F-4 (referenced in § 239.34) by removing the words "Item
9 of Form 20-F, management's discussion and analysis of financial condition and
results of operations" and adding, in their place, the words "Item 5
of Form 20-F, operating and financial review" in the following places:
(a) Item 12(b)(3)(vi)(A);
(b) Item 14(g)(1); and
(c) Item 17(b)(4)(i).
31. Amend Form F-4 (referenced in § 239.34) by removing the words "Item
9A of Form 20-F" and adding, in their place, the words "Item 11 of
Form 20-F" in the following places:
(a) Item 12(b)(3)(vi)(B);
(b) Item 14(g)(2); and
(c) Item 17(b)(4)(ii).
32. Amend Item 18(a)(7)(i) of Form F-4 (referenced in § 239.34) by removing
the words "Item 10 of Form 20-F, directors and officers of registrant"
and adding, in their place, the words "Item 6.A. of Form 20-F, directors
and senior management of the registrant".
33. Amend Item 19(a)(7)(i) of Form F-4 (referenced in § 239.34) by removing
the words "Item 10 of Form 20-F, directors and officers of the registrant:
and adding, in their place, the words "Item 6.A. of Form 20-F, directors
and senior management of the registrant".
34. Amend Form F-4 (referenced in § 239.34) by removing the words
"Items 11 and 12 of Form 20-F, remuneration and options" and adding,
in their place, the words "Items 6.B. and 6.E. of Form 20-F, compensation
and share ownership" in the following places:
(a) Item 18(a)(7)(ii); and
(b) Item 19(a)(7)(ii).
35. Amend Form F-4 (referenced in § 239.34) by removing the words "Item
13 of Form 20-F, interest of management in certain transactions" and
adding, in their place, the words "Item 7.B. of Form 20-F, related party
transactions" in the following places:
(a) Item 18(a)(7)(iii); and
(b) Item 19(a)(7)(iii).
36. Amend Form F-4 (referenced in § 239.34) by removing the words "Rule
3-19 of Regulation S-X (210.3-19 of this chapter)" or "Rule 3-19 to
Regulation S-X" or "Rule 3-19 of Regulation S-X" and adding, in
their place, the words "Item 8.A. of Form 20-F" in the following
places:
(a) Item 10(b);
(b) Instruction 2 to Item 11;
(c) Items 12(a)(2), (a)(5), (b)(2)(i), and (b)(3)(viii);
(d) Instruction 2 to Item 13;
(e) Item 14(i);
(f) the Instructions following Item 14(i); and
(g) Items 17(b)(2) and 17(b)(6).
37. Amend Item 3 of Form F-4 (referenced in § 239.34) by removing in
Instruction 2. to Instructions to paragraphs (e) and (f) the words
"Instruction 7 to Item 8 of Form 20-F" and adding, in their place, the
words "The Instructions to Item 3.A. of Form 20-F".
38. Amend Item 4(a)(3) of Form F-4 (referenced in § 239.34) by removing the
words "Item 202 of Regulation S-K (§ 229.202 of this chapter)" and
adding, in their place, the words "Items 10.A and 10.B of Form 20-F or Item
12 of Form 20-F, as applicable".
39. Amend Item 7(a) of Form F-4 (referenced in § 239.34) by removing the
words "Item 507 of Regulation S-K (§ 229.507 of this chapter)" and
adding, in their place, the words "Item 9.D. of Form 20-F (§ 249.220f of
this chapter)".
40. Amend Item 8 of Form F-4 (referenced in § 239.34) by removing the words
"Item 509 of Regulation S-K (§ 229.509 of this chapter)" and adding,
in their place, the words "Item 7.C. of Form 20-F (§ 249.220f of this
chapter)".
41. Amend Item 12 of Form F-4 (referenced in § 239.34) by removing in Item
12(a)(2) the words "Item 9 of Form 20-F" and adding, in their place,
the words "Item 5 of Form 20-F"; by removing in Item 12(b)(1) the
words "Items 1 and 2 of Form 20-F" and adding, in their place, the
words "Item 4 of Form 20-F"; by removing in Item 12(b)(3)(i) the words
"Items 1(a)(3) and (a)(4) of Form 20-F" and adding, in their place,
the words "Items 4.B., 4.B.2., and 4.B.5. of Form 20-F"; by removing
in Item 12(b)(3)(ii) the words "Item 2 of Form 20-F" and adding, in
their place, the words "Item 4.D. of Form 20-F"; by removing in Item
12(b)(3)(iv) the words "Item 7 of Form 20-F" and adding, in their
place, the words "Item 10.E of Form 20-F"; and by removing in Item
12(b)(3)(v) the words "Item 8 of Form 20-F" and adding, in their
place, the words "Item 3.A. of Form 20-F".
42. Amend Item 14 of Form F-4 (referenced in § 239.34) by removing in Item
14(a) the words "Item 1 of Form 20-F, description of business" and
adding, in their place, the words "Items 4.A., 4.B., and 4.C of Form 20-F,
information on the company"; by removing in Item 14(b) the words "Item
2 of Form 20-F, description of property" and adding, in their place, the
words "Item 4.D. of Form 20-F, property, plant and equipment"; by
removing in Item 14(c)
words "Item 3 of Form 20-F" and adding, in their place, the words
"Item 8.A.7. of Form 20-F";
by removing in Item 14(e) words "Item 7 of Form 20-F" and adding,
in their place, the words "Item 10.E. of Form 20-F".
Note: The text of Form F-4 does not and this amendment will not appear in
the Code of Federal Regulations.
43. Revise Item 1 of Form F-6 (referenced in § 239.36) to read as follows:
Note: The text of Form F-6 does not and this amendment will not appear in
the Code of Federal Regulations.
SECURITIES AND EXCHANGE COMMISSION
FORM F-6
Registration Statement Under the Securities Act of 1933 For
Depositary Shares
Evidenced by American Depositary Receipts
* * * * *
Item 1. Description of Securities to be Registered.
Furnish the information required by Item 12.E. of Form 20-F (§ 249.220f of
this chapter).
* * * * *
PART 240 - GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF 1934
44. The general authority citation for Part 240 continues to read in part 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.
* * * * *
45. By amending § 240.3b-4 by revising the section heading and paragraph (c)
to read as follows:
§ 240.3b-4 Definition of "foreign government," "foreign
issuer" and "foreign private issuer".
* * * * *
(c) The term foreign private issuer means any foreign issuer other
than a foreign government except an issuer meeting the following conditions:
(1) More than 50 percent of the issuer's outstanding voting securities are
directly or indirectly held of record by residents of the United States; and
(2) Any of the following:
(i) The majority of the executive officers or directors are United States
citizens or residents;
(ii) More than 50 percent of the assets of the issuer are located in the
United States; or
(iii) The business of the issuer is administered principally in the United
States.
Instruction to paragraph (c)(1): To determine the percentage of
outstanding voting securities held by U.S. residents:
A. Use the method of calculating record ownership in Rule 12g3-2(a) under the
Act (§ 240.12g3-2(a)), except that your inquiry as to the amount of shares
represented by accounts of customers resident in the United States may be
limited to brokers, dealers, banks and other nominees located in (1) the United
States, (2) your jurisdiction of incorporation, and (3) the jurisdiction that is
the primary trading market for your voting securities, if different than your
jurisdiction of incorporation.
B. If, after reasonable inquiry, you are unable to obtain information about
the amount of shares represented by accounts of customers resident in the United
States, you may assume, for purposes of this definition, that the customers are
residents of the jurisdiction in which the nominee has its principal place of
business.
C. Count shares of voting securities beneficially owned by residents of the
United States as reported on reports of beneficial ownership provided to you or
filed publicly and based on information otherwise provided to you.
46. Amend § 240.3b-6 by removing in paragraph (b)(2)(i) the words "or
Item 9 of Form 20-F (§ 249.220f of this chapter) "Management's discussion
and analysis of financial condition and results of operations," and adding,
in their place, the words ""Management's Discussion and Analysis of
Financial Condition and Results of Operations" or Item 5 of Form 20-F,
"Operating and Financial Review and Prospects,""; by removing in
paragraph (c)(3) the words "Item 9 of Form 20-F" and adding, in their
place, the words "Item 5 of Form 20-F".
47. Amend § 240.13a-10 by removing in paragraph (g)(4) the words
"responding to Items 3, 9, 15, 16, and 17 or 18" and adding, in their
place, the words "responding to Items 5, 8.A.7., 13, 14, and 17 or
18".
48. Amend § 240.15d-10 by removing in paragraph (g)(4) the words
"responding to Items, 3, 9, 15, 16, and 17 or 18" and adding, in their
place, the words "responding to Items 5, 8.A.7., 13, 14, and 17 or
18".
PART 249 - FORMS, SECURITIES EXCHANGE ACT OF 1934
49. The authority citation for Part 249 continues to read, in part, as
follows:
Authority: 15 U.S.C. 78a, et seq., unless otherwise noted;
* * * * *
50. Amend Form 20-F (referenced in § 249.220f) by revising the General
Instructions; by removing Item 11; by revising Items 1 through 9, 10, 12 through
16, 18, 19 and Instructions to Exhibits to read as follows; by redesignating
Item 9A as Item 11; by removing in newly designated Item 11 each time they
appear the words "Item 9A" and adding, in their place, the words
"Item 11"; by removing in Instruction 3 to Item 17 the words
"Item 1 of Form 20-F" and adding, in their place, the words
"Items 4.B.1 and 4.B.2 of Form 20-F"; and, by removing in the Appendix
section following the Instructions As To Exhibits section each time they appear
the words "Item 2(b)" and adding, in their place, the words "Item
4.D".
Note: The text of Form 20-F does not and this amendment will not appear in
the Code of Federal Regulations.
United States Securities and Exchange Commission
Washington, D.C. 20549
FORM 20-F
* * * * *
GENERAL INSTRUCTIONS
A. Who May Use Form 20-F and When It Must be Filed.
(a) Any foreign private issuer may use this form as a registration statement
under Section 12 of the Securities Exchange Act of 1934 (referred to as the
Exchange Act) or as an annual or transition report filed under Section 13(a) or
15(d) of the Exchange Act. A transition report is filed when an issuer changes
its fiscal year end. The term "foreign private issuer" is defined in
Rule 3b-4 under the Exchange Act.
(b) A foreign private issuer must file its annual report on this Form within
six months after the end of the fiscal year covered by the report.
(c) A foreign private issuer filing a transition report on this Form must
file its report in accordance with the requirements set forth in Rule 13a-10 or
Rule 15d-10 under the Exchange Act that apply when an issuer changes its fiscal
year end.
B. General Rules and Regulations That Apply to this Form.
(a) The General Rules and Regulations under the Securities Act of 1933
(referred to as the Securities Act) contain general requirements that apply to
registration on any form. Read these general requirements carefully and follow
them when preparing and filing registration statements and reports on this Form.
(b) Pay particular attention to Regulation 12B under the Exchange Act.
Regulation 12B contains general requirements about matters such as the kind and
size of paper to be used, the legibility of the registration statement or
report, the information to give in response to a requirement to state the title
of securities, the language to be used and the filing of the registration
statement or report.
(c) In addition to the definitions in the General Rules and Regulations under
the Securities Act and the definitions in Rule 12b-2 under the Exchange Act,
General Instruction F defines certain terms for purposes of this Form.
(d) Note Regulation S-X, which applies to the presentation of financial
information in a registration statement or report.
C. How to Prepare Registration Statements and Reports on this Form.
(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. General
Instruction E states which items must be responded to in a registration
statement and which items must be responded to in an annual report. The
registration statement or report must contain the numbers and captions of all
items. You may omit the text following each caption in this Form, which
describes what must be disclosed under each item. Omit the text of all
instructions in this Form. If an item is inapplicable or the answer to the item
is in the negative, respond to the item by making a statement to that effect.
(b) Unless an item directs you to provide information as of a specific date
or for a specific period, give the information in a registration statement as of
a date reasonably close to the date of filing the registration statement and
give the information in an annual report as of the latest practicable date.
(c) Note Exchange Act Rule 12b-20, which states: "In addition to the
information expressly required to be included in a statement or report, there
shall be added such further material information, if any, as may be necessary to
make the required statements, in light of the circumstances under which they are
made, not misleading."
(d) If the same information required by this Form also is required by the
body of accounting principles used in preparing the financial statements, you
may respond to an item of this Form by providing a cross-reference to the
location of the information in the financial statements, in lieu of repeating
the information.
(e) Note Item 10 of Regulation S-K which explains the Commission policy on
projections of future economic performance and the Commission policy on
securities ratings.
(f) If you are providing the information required by this Form in connection
with a registration statement under the Securities Act, note that Rule 421
requires you to follow plain English drafting principles. You can find helpful
information in "A Plain English Handbook - How to create clear SEC
disclosure documents" and in staff legal bulletins supplementing the
Handbook. These documents are available on our Internet website, at www.sec.gov
.
D. How to File Registration Statements and Reports on this Form.
File with the Commission (i) three complete copies of the registration
statement or report, including financial statements, exhibits and all other
papers and documents filed as part of the registration statement or report, and
(ii) five additional copies of the registration statement or report, which need
not contain exhibits. File at least one complete copy of the registration
statement or report, including financial statements, exhibits and all other
papers and documents filed as part of the registration statement or report, with
each exchange on which any class of securities is or will be registered.
Manually sign at least one complete copy of the registration statement or report
filed with the Commission and one copy filed with each exchange. Type or print
the signatures on copies that are not manually signed. See Exchange Act Rule
12b-11(d) for instructions about manual signatures and the Instructions as to
Exhibits of this Form for instructions about signatures pursuant to powers of
attorney.
Registration statements and reports are filed with the Commission by sending
or delivering them to our File Desk between the hours of 9:00 a.m. and 5:30
p.m., Washington, D.C. time. The File Desk is closed on weekends and federal
holidays. If you file a registration statement or report by mail or by any means
other than hand delivery, the address is U.S. Securities and Exchange
Commission, Attention: File Desk, 450 Fifth Street, N.W., Washington, D.C.
20549. We consider documents to be filed on the date our File Desk receives
them. We do not require foreign private issuers to file registration statements
and reports under our Electronic Data Gathering and Retrieval System (EDGAR). We
encourage you to use EDGAR, if possible, because documents filed through EDGAR
are easily accessible by the public through the Commission's Internet Web site
and through other electronic means. If you have technical questions about EDGAR
or want to request an access code, call the EDGAR Filer Support Office at (202)
942-8900. If you have questions about the EDGAR rules, call the Office of EDGAR
Policy at (202) 942-2940.
E. Which Items to Respond to in Registration Statements and Annual
Reports.
(a) Exchange Act Registration Statements. A registration statement
filed under the Exchange Act on this Form must include the information specified
in Part I and Part III. Read the instructions to each item carefully before
responding to the item. In some cases, the instructions may permit you to omit
some of the information specified in certain items in Part I.
(b) Annual Reports. An annual report on this Form must include the
information specified in Parts I, II and III. Read the instructions to each item
carefully before responding to the item. In some cases, the instructions may
permit you to omit some of the information specified in certain items in Part I.
The instructions also may permit you to omit certain information if it was
previously reported to us and has not changed. If that is the case, you do not
have to file copies of the previous report with the report being filed on this
Form.
(c) Financial Statements. An Exchange Act registration statement or
annual report filed on this Form must contain the financial statements and
related information specified in Item 17 of this Form. We encourage you to
provide the financial statements and related information specified in Item 18 of
this Form in lieu of Item 17, but the Item 18 statements and information are not
required. In certain circumstances, Forms F-2, F-3 or F-4 for the registration
of securities under the Securities Act require that you provide the financial
statements and related information specified in Item 18 in your annual report on
Form 20-F. Consult those Securities Act forms for the specific requirements and
consider the potential advantages of complying with Item 18 instead of Item 17
of this Form. Note that Items 17 and 18 may require you to file financial
statements of other entities in certain circumstances. These circumstances are
described in Regulation S-X.
The financial statements must be audited in accordance with U.S. generally
accepted auditing standards, and the auditor must comply with the U.S. standards
for auditor independence. If you have any questions about these requirements,
contact the Office of Chief Accountant in the Division of Corporation Finance at
(202) 942-2960.
(d) Securities Act Registration Statements. The registration statement
forms under the Securities Act direct you to provide information required by
specific items of Form 20-F. Some items of Form 20-F only apply to Securities
Act registration statements, and you do not have to respond to those items if
you are using Form 20-F to file an Exchange Act registration statement or an
annual report. The instructions to the items of Form 20-F identify which
information is required only in Securities Act registration statements.
F. Definitions
The following definitions apply to various terms used in this Form, unless
the context indicates otherwise.
Affiliate - An "affiliate" of a specified person or entity
refers to one who, directly or indirectly, either controls, is controlled by or
is under common control with, the specified person or entity.
Beneficial owner - The term "beneficial owner" of securities
refers to any person who, even if not the record owner of the securities, has or
shares the underlying benefits of ownership. These benefits include the power to
direct the voting or the disposition of the securities or to receive the
economic benefit of ownership of the securities. A person also is considered to
be the "beneficial owner" of securities that the person has the right
to acquire within 60 days by option or other agreement. Beneficial owners
include persons who hold their securities through one or more trustees, brokers,
agents, legal representatives or other intermediaries, or through companies in
which they have a "controlling interest," which means the direct or
indirect power to direct the management and policies of the entity.
Company - References to the "company" mean the company whose
securities are being offered or listed, and refer to the company on a
consolidated basis unless the context indicates otherwise.
Directors and senior management - This term includes (a) the company's
directors, (b) members of its administrative, supervisory or management bodies,
(c) partners with unlimited liability, in the case of a limited partnership with
share capital, (d) nominees to serve in any of the aforementioned positions, and
(e) founders, if the company has been established for fewer than five years. The
persons covered by the term "administrative, supervisory or management
bodies" vary in different countries and, for purposes of complying with the
disclosure standards, will be determined by the host country.
Document - This term covers prospectuses and offering documents used
in connection with a public offering of securities and registration statements
or prospectuses used in connection with the initial listing of securities.
Instruction: References to the "document" mean whatever
type of document is being prepared using Form 20-F disclosure requirements,
including, as applicable, a prospectus, an Exchange Act registration statement,
and an annual report.
Equity securities - The term "equity securities" includes
common or ordinary shares, preferred or preference shares, options or warrants
to subscribe for equity securities, and any securities, other than debt
securities, which are convertible into or exercisable or redeemable for equity
securities of the same company or another company. If the equity securities
available upon conversion, exercise or redemption are those of another company,
the disclosure standards also apply to the other company.
Group - A "group" is a parent and all its subsidiaries.
References to a company's group mean the group of which it is a member.
Home country - This term refers to the jurisdiction in which the
company is legally organized, incorporated or established and, if different, the
jurisdiction where it has its principal listing.
Host country - This term refers to jurisdictions, other than the home
country, in which the company is seeking to offer, register or list its
securities.
Instruction: Note that, as used in this Form, the term
"host country" means the United States and its territories.
Pre-emptive issue - The term "pre-emptive issue" and
references to "pre-emptive purchase rights" refer to offerings made to
the company's existing shareholders in order to permit them to maintain their
pro rata ownership in the company.
PART I
Item 1. Identity of Directors, Senior Management and Advisers
The purpose of this standard is to identify the company representatives
and other individuals involved in the company's listing or registration.
A. Directors and senior management. Provide the names, business
addresses and functions of the company's directors and senior management.
B. Advisers. Provide the names and addresses of the company's
principal bankers and legal advisers to the extent the company has a continuing
relationship with such entities, the sponsor for listing (where required by the
host country regulations), and the legal advisers to the issue.
C. Auditors. Provide the names and addresses of the company's
auditors for the preceding three years (together with their membership in a
professional body).
Instructions to Item 1: If you are filing Form 20-F as an annual
report under the Exchange Act, you do not have to provide the information called
for by Item 1. You must provide this information, to the extent applicable, if
you are filing a registration statement under either the Securities Act or the
Exchange Act.
Instructions to Item 1.B: You only have to provide the information
called for by Item 1.B if you are required to disclose the information in a
jurisdiction outside the United States. These persons will not be considered
"experts" or "sellers" under the Securities Act solely due
to the fact that they are named in response to Item 1.B. .
Item 2. Offer Statistics and Expected Timetable
The purpose of this standard is to provide key information regarding the
conduct of any offering and the identification of important dates relating to
that offering.
A. Offer statistics. For each method of offering, e.g., rights
offering, general offering, etc., state the total expected amount of the issue,
including the expected issue price or the method of determining the price and
the number of securities expected to be issued.
B. Method and expected timetable. For all offerings, and
separately for each group of targeted potential investors, the document shall
state the following information to the extent applicable to the offering
procedure:
1. The time period during which the offer will be open, and where and to whom
purchase or subscription applications shall be addressed. Describe whether the
purchase period may be extended or shortened, and the manner and duration of
possible extensions or possible early closure or shortening of this period.
Describe the manner in which the latter shall be made public. If the exact dates
are not known when the document is first filed or distributed to the public,
describe arrangements for announcing the final or definitive date or period.
2. Method and time limits for paying up securities; where payment is partial,
the manner and dates on which amounts due are to be paid.
3. Method and time limits for delivery of equity securities (including
provisional certificates, if applicable) to subscribers or purchasers.
4. In the case of pre-emptive purchase rights, the procedure for the exercise
of any right of pre-emption, the negotiability of subscription rights and the
treatment of subscription rights not exercised.
5. A full description of the manner in which results of the distribution of
securities are to be made public, and when appropriate, the manner for refunding
excess amounts paid by applicants (including whether interest will be paid).
Instructions to Item 2: If you are filing Form 20-F as a
registration statement or annual report under the Exchange Act, you do not have
to provide the information called for by Item 2. You must provide this
information if you are filing a registration statement under the Securities Act.
Item 3. Key Information
The purpose of this standard is to summarize key information about the
company's financial condition, capitalization and risk factors. If the financial
statements included in the document are restated to reflect material changes in
the company's group structure or accounting policies, the selected financial
data also must be restated. See Item 8.
A. Selected financial data.
1. The company shall provide selected historical financial data regarding the
company, which shall be presented for the five most recent financial years (or
such shorter period that the company has been in operation), in the same
currency as the financial statements. Selected financial data for either or both
of the earliest two years of the five-year period may be omitted, however, if
the company represents to the host country regulator that such information
cannot be provided, or cannot be provided on a restated basis, without
unreasonable effort or expense. If interim period financial statements are
included, the selected financial data should be updated for that interim period,
which may be unaudited, provided that fact is stated. If selected financial data
for interim periods is provided, comparative data from the same period in the
prior financial year shall also be provided, except that the requirement for
comparative balance sheet data is satisfied by presenting the year end balance
sheet information.
2. The selected financial data presented shall include items generally
corresponding to the following, except that the specific line items presented
should be expressed in the same manner as the corresponding line items in the
company's financial statements. Such data shall include, at a minimum, net sales
or operating revenues; income (loss) from operations; income (loss) from
continuing operations; net income (loss); net income (loss) from operations per
share; income (loss) from continuing operations per share; total assets; net
assets; capital stock (excluding long term debt and redeemable preferred stock);
number of shares as adjusted to reflect changes in capital; dividends declared
per share in both the currency of the financial statements and the host country
currency, including the formula used for any adjustments to dividends declared;
and diluted net income per share. Per share amounts must be determined in
accordance with the body of accounting principles used in preparing the
financial statements.
3. Where the financial statements provided in response to Item 8 are prepared
in a currency other than the currency of the host country, disclosure of the
exchange rate between the financial reporting currency and the currency of the
host country should be provided, using the exchange rate designated by the host
country for this purpose, if any:
(a) at the latest practicable date;
(b) the high and low exchange rates for each month during the previous six
months; and
(c) for the five most recent financial years and any subsequent interim
period for which financial statements are presented, the average rates for each
period, calculated by using the average of the exchange rates on the last day of
each month during the period.
B. Capitalization and indebtedness. A statement of
capitalization and indebtedness (distinguishing between guaranteed and
unguaranteed, and secured and unsecured, indebtedness) as of a date no earlier
than 60 days prior to the date of the document shall be provided showing the
company's capitalization on an actual basis and, if applicable, as adjusted to
reflect the sale of new securities being issued and the intended application of
the net proceeds therefrom. Indebtedness also includes indirect and contingent
indebtedness.
C. Reasons for the offer and use of proceeds.
1. The document shall disclose the estimated net amount of the proceeds
broken down into each principal intended use thereof. If the anticipated
proceeds will not be sufficient to fund all the proposed purposes, the order of
priority of such purposes should be given, as well as the amount and sources of
other funds needed. If the company has no specific plans for the proceeds, it
should discuss the principal reasons for the offering.
2. If the proceeds are being used directly or indirectly to acquire assets,
other than in the ordinary course of business, briefly describe the assets and
their cost. If the assets will be acquired from affiliates of the company or
their associates, disclose the persons from whom they will be acquired and how
the cost to the company will be determined.
3. If the proceeds may or will be used to finance acquisitions of other
businesses, give a brief description of such businesses and information on the
status of the acquisitions.
4. If any material part of the proceeds is to be used to discharge, reduce or
retire indebtedness, describe the interest rate and maturity of such
indebtedness and, for indebtedness incurred within the past year, the uses to
which the proceeds of such indebtedness were put.
D. Risk factors. The document shall prominently disclose risk
factors that are specific to the company or its industry and make an offering
speculative or one of high risk, in a section headed "Risk Factors."
Companies are encouraged, but not required, to list the risk factors in the
order of their priority to the company. Among other things, such factors may
include, for example: the nature of the business in which it is engaged or
proposes to engage; factors relating to the countries in which it operates; the
absence of profitable operations in recent periods; the financial position of
the company; the possible absence of a liquid trading market for the company's
securities; reliance on the expertise of management; potential dilution; unusual
competitive conditions; pending expiration of material patents, trademarks or
contracts; or dependence on a limited number of customers or suppliers. The Risk
Factors section is intended to be a summary of more detailed discussion
contained elsewhere in the document.
Instructions to Item 3:
1. If you are filing Form 20-F as an annual report under the Exchange Act,
you do not have to provide the information called for by Item 3.B or 3.C. If you
are filing Form 20-F as a registration statement under the Exchange Act, you do
not have to provide the information called for by Item 3.C. You must provide the
information called for by Item 3 if you are filing a registration statement
under the Securities Act.
2. Throughout Form 20-F, the terms "financial year" and
"fiscal year" have the same meaning. The term "fiscal year"
is defined in Rule 405 under the Securities Act and Rule 12b-2 under the
Exchange Act.
Instructions to Item 3.A: You may present the selected financial
data on the basis of the accounting principles used in your primary financial
statements. If you do this, however, you also must include in this summary any
reconciliations of the data to U.S. generally accepted accounting principles and
Regulation S-X, pursuant to Item 17 or 18 of this Form. In that case, you only
have to provide selected financial data on a basis reconciled to U.S. generally
accepted accounting principles for (i) those periods for which you were required
to reconcile the primary annual financial statements in a filing under the
Securities Act or the Exchange Act, and (ii) any interim periods.
If you are unable to provide selected financial data for the earliest two
years of the five-year period, submit the required representation to us before
or at the time you file the document. Disclose in the document that data for the
earliest two years have been omitted and explain the reasons for the omission.
Instructions to Item 3.B:
1. If you are including the capitalization table called for by Item 3.B in
a prospectus supplement for a shelf offering registered on Form F-3, the amounts
shown in the table may be as of the date of the most recent balance sheet filed
as part of the registration statement, if the information in the table is
updated to reflect securities issued up to 60 days prior to the date of the
supplement.
2. If you are not selling new securities in a firm commitment underwritten
offering or an "all or none" best efforts offering, reflect the
capitalization "as adjusted" for the net proceeds of the offering only
in the following ways:
a. In a best efforts "minimum/maximum" offering, reflect both
the minimum and maximum proceeds; and
b. In a rights offering or an offering of securities upon the exercise of
outstanding warrants, reflect the proceeds only to the extent exercise is likely
in view of the current market price.
Instructions to Item 3.D: Risk factors should be concise and
explain clearly how the risk affects the issuer or the securities.
Item 4. Information on the Company
The purpose of this standard is to provide information about the company's
business operations, the products it makes or the services it provides, and the
factors that affect the business. The standard also is intended to provide
information regarding the adequacy and suitability of the company's properties,
plants and equipment, as well as its plans for future increases or decreases in
such capacity.
A. History and development of the company. The following
information shall be provided:
1. The legal and commercial name of the company.
2. The date of incorporation and the length of life of the company, except
where indefinite.
3. The domicile and legal form of the company, the legislation under which
the company operates, its country of incorporation and the address and telephone
number of its registered office (or principal place of business if different
from its registered office). Provide the name and address of the company's agent
in the host country, if any.
4. The important events in the development of the company's business, e.g.
information concerning the nature and results of any material reclassification,
merger or consolidation of the company or any of its significant subsidiaries;
acquisitions or dispositions of material assets other than in the ordinary
course of business; any material changes in the mode of conducting the business;
material changes in the types of products produced or services rendered; name
changes; or the nature and results of any bankruptcy, receivership or similar
proceedings with respect to the company or significant subsidiaries.
5. A description, including the amount invested, of the company's principal
capital expenditures and divestitures (including interests in other companies),
since the beginning of the company's last three financial years to the date of
the offering or listing document.
6. Information concerning the principal capital expenditures and divestitures
currently in progress, including the distribution of these investments
geographically (home and abroad) and the method of financing (internal or
external).
7. An indication of any public takeover offers by third parties in respect of
the company's shares or by the company in respect of other companies' shares
which have occurred during the last and current financial year. The price or
exchange terms attaching to such offers and the outcome thereof are to be
stated.
Business overview. The information required by this item may
be presented on the same basis as that used to determine the company's business
segments under the body of accounting principles used in preparing the financial
statements. The following information shall be provided:
1. A description of the nature of the company's operations and its principal
activities, stating the main categories of products sold and/or services
performed for each of the last three financial years. Indicate any significant
new products and/or services that have been introduced and, to the extent the
development of new products or services has been publicly disclosed, give the
status of development.
2. A description of the principal markets in which the company competes,
including a breakdown of total revenues by category of activity and geographic
market for each of the last three financial years.
3. A description of the seasonality of the company's main business.
4. A description of the sources and availability of raw materials, including
a description of whether prices of principal raw materials are volatile.
5. A description of the marketing channels used by the company, including an
explanation of any special sales methods, such as installment sales.
6. Summary information regarding the extent to which the company is
dependent, if at all, on patents or licenses, industrial, commercial or
financial contracts (including contracts with customers or suppliers) or new
manufacturing processes, where such factors are material to the company's
business or profitability.
7. The basis for any statements made by the company regarding its competitive
position shall be disclosed.
8. A description of the material effects of government regulations on the
company's business, identifying the regulatory body.
C. Organizational structure. If the company is part of a group,
include a brief description of the group and the company's position within the
group. Provide a listing of the company's significant subsidiaries, including
name, country of incorporation or residence, proportion of ownership interest
and, if different, proportion of voting power held.
D. Property, plants and equipment. The company shall provide
information regarding any material tangible fixed assets, including leased
properties, and any major encumbrances thereon, including a description of the
size and uses of the property; productive capacity and extent of utilization of
the company's facilities; how the assets are held; the products produced; and
the location. Also describe any environmental issues that may affect the
company's utilization of the assets. With regard to any material plans to
construct, expand or improve facilities, describe the nature of and reason for
the plan, an estimate of the amount of expenditures including the amount of
expenditures already paid, a description of the method of financing the
activity, the estimated dates of start and completion of the activity, and the
increase of production capacity anticipated after completion.
Instruction to Item 4: Furnish the information specified in any
industry guide listed in Part 9 of Regulation S-K (§229.802 of this chapter)
that applies to you, except that if you furnish the information specified in
Appendix A to Item 4.D of this form you do not need to furnish any additional
information specified in Guide 2 relating to oil and gas operations.
Instructions to Item 4.A.4: If you are providing the information
called for by Item 4.A.4 in an annual report, you only have to provide the
required information for the period from the beginning of your last full
financial year up to the latest practicable date.
Instructions to Item 4.B:
1. The reference in Item 4.B to "the body of accounting principles
used in preparing the financial statements" means the accounting principles
used in preparing the primary financial statements, not to accounting principles
used only to prepare the U.S. GAAP reconciliation.
2. If you:
(a) are filing a registration statement on Form F-1 under the Securities
Act or on Form 20-F under the Exchange Act,
(b) were not required to file reports under Section 13(a) or 15(d) of the
Exchange Act immediately prior to filing that registration statement, and
(c) have not received (or your predecessor has not received) revenue from
operations during each of the three fiscal years immediately prior to filing the
registration statement,
you must provide information about your plan of operations. Provide
information comparable to the information required by Item 101(a)(2) of
Regulation S-K.
Instructions to Item 4.D:
1. In the case of an extractive enterprise:
(a) Provide material information about production, reserves, locations,
developments and the nature of your interest. If individual properties are of
major significance to you, provide more detailed information about those
properties and use maps to disclose information about their location.
(b) If you are giving reserve estimates in the registration statement or
report,
(i) consult the staff of the Office of International Corporate Finance of
the Division of Corporation Finance. That office may request that you provide
supplementally a copy of the full report of the engineer or other expert who
estimated the reserves. See Rule 418 of Regulation C (§ 230.418 of this
chapter) and Rule 12b-4 of Regulation 12B (§ 240.12b-4 of this chapter) for
information about submitting supplemental information to the Commission and
requesting its return.
(ii) in documents you file publicly with the Commission, do not disclose
estimates of oil or gas reserves unless the reserves are proved (or in the case
of other extractive industries, proved or probable) and do not give estimated
values of those reserves, unless foreign law requires you to disclose the
information. If these types of estimates have already been provided to any
person that is offering to acquire you, however, you may include the estimates
in documents relating to the acquisition.
(iii) if you represent that the estimates of reserves you provide, or any
estimated valuation of those reserves, are based on estimates prepared or
reviewed by independent consultants, you must name those consultants in the
document.
(c) If oil and gas operations are material to your or your subsidiaries'
business operations or financial position, provide the information specified in
Appendix A to Item 4.D, located at the end of this Form.
Item 5. Operating and Financial Review and Prospects
The purpose of this standard is to provide management's explanation of
factors that have affected the company's financial condition and results of
operations for the historical periods covered by the financial statements, and
management's assessment of factors and trends which are anticipated to have a
material effect on the company's financial condition and results of operations
in future periods.
Discuss the company's financial condition, changes in financial condition and
results of operations for each year and interim period for which financial
statements are required, including the causes of material changes from year to
year in financial statement line items, to the extent necessary for an
understanding of the company's business as a whole. Information provided also
shall relate to all separate segments of the company. Provide the information
specified below as well as such other information that is necessary for an
investor's understanding of the company's financial condition, changes in
financial condition and results of operations.
A. Operating results. Provide information regarding significant
factors, including unusual or infrequent events or new developments, materially
affecting the company's income from operations, indicating the extent to which
income was so affected. Describe any other significant component of revenue or
expenses necessary to understand the company's results of operations.
1. To the extent that the financial statements disclose material changes in
net sales or revenues, provide a narrative discussion of the extent to which
such changes are attributable to changes in prices or to changes in the volume
or amount of products or services being sold or to the introduction of new
products or services.
2. Describe the impact of inflation, if material. If the currency in which
financial statements are presented is of a country that has experienced
hyperinflation, the existence of such inflation, a five year history of the
annual rate of inflation and a discussion of the impact of hyperinflation on the
company's business shall be disclosed.
3. Provide information regarding the impact of foreign currency fluctuations
on the company, if material, and the extent to which foreign currency net
investments are hedged by currency borrowings and other hedging instruments.
4. Provide information regarding any governmental economic, fiscal, monetary
or political policies or factors that have materially affected, or could
materially affect, directly or indirectly, the company's operations or
investments by host country shareholders.
B. Liquidity and capital resources. The following information
shall be provided:
1. Information regarding the company's liquidity (both short and long term),
including:
(a) a description of the internal and external sources of liquidity and a
brief discussion of any material unused sources of liquidity. Include a
statement by the company that, in its opinion, the working capital is sufficient
for the company's present requirements, or, if not, how it proposes to provide
the additional working capital needed.
(b) an evaluation of the sources and amounts of the company's cash flows,
including the nature and extent of any legal or economic restrictions on the
ability of subsidiaries to transfer funds to the company in the form of cash
dividends, loans or advances and the impact such restrictions have had or are
expected to have on the ability of the company to meet its cash obligations.
(c) information on the level of borrowings at the end of the period under
review, the seasonality of borrowing requirements and the maturity profile of
borrowings and committed borrowing facilities, with a description of any
restrictions on their use.
2. Information regarding the type of financial instruments used, the maturity
profile of debt, currency and interest rate structure. The discussion also
should include funding and treasury policies and objectives in terms of the
manner in which treasury activities are controlled, the currencies in which cash
and cash equivalents are held, the extent to which borrowings are at fixed
rates, and the use of financial instruments for hedging purposes.
3. Information regarding the company's material commitments for capital
expenditures as of the end of the latest financial year and any subsequent
interim period and an indication of the general purpose of such commitments and
the anticipated sources of funds needed to fulfill such commitments.
C. Research and development, patents and licenses, etc.
Provide a description of the company's research and development policies for the
last three years, where it is significant, including the amount spent during
each of the last three financial years on company-sponsored research and
development activities.
D. Trend information. The company should identify the most
significant recent trends in production, sales and inventory, the state of the
order book and costs and selling prices since the latest financial year. The
company also should discuss, for at least the current financial year, any known
trends, uncertainties, demands, commitments or events that are reasonably likely
to have a material effect on the company's net sales or revenues, income from
continuing operations, profitability, liquidity or capital resources, or that
would cause reported financial information not necessarily to be indicative of
future operating results or financial condition.
Instructions to Item 5:
1. Refer to the Commission's interpretive release (No. 33-6835) dated May
18, 1989 for guidance in preparing this discussion and analysis by management of
the company's financial condition and results of operations.
2. The discussion should focus on the primary financial statements
presented in the document. You should refer to the reconciliation to U.S. GAAP,
if any, and discuss any aspects of the differences between foreign and U.S.
GAAP, not otherwise discussed in the reconciliation, that you believe are
necessary for an understanding of the financial statements as a whole.
3. We encourage you to supply forward-looking information, but that type
of information is not required. Forward-looking information is covered expressly
by the safe harbor provisions of Section 27A of the Securities Act and Section
27A of the Exchange Act. Forward-looking information is different than presently
known data which will have an impact on future operating results, such as known
future increases in costs of labor or materials. You are required to disclose
this latter type of data if it is material.
Instruction to Item 5.A:
1. You must provide the information required by Item 5.A.2 with respect to
hyperinflation if hyperinflation has occurred in any of the periods for which
you are required to provide audited financial statements or unaudited interim
financial statements in the document. See Rule 3-20(c) of Regulation S-X for a
discussion of cumulative inflation rates that trigger this requirement.
Item 6. Directors, Senior Management and Employees
The purpose of this standard is to provide information concerning the
company's directors and managers that will allow investors to assess such
individuals' experience, qualifications and levels of compensation, as well as
their relationship with the company. Information concerning the company's
employees is also required.
A. Directors and senior management. The following information
shall be disclosed with respect to the company's directors and senior
management, and any employees such as scientists or designers upon whose work
the company is dependent:
1. Name, business experience, functions and areas of experience in the
company.
2. Principal business activities performed outside the issuing company
(including, in the case of directors, other principal directorships).
3. Date of birth or age (if required to be reported in the home country or
otherwise publicly disclosed by the company).
4. The nature of any family relationship between any of the persons named
above.
5. Any arrangement or understanding with major shareholders, customers,
suppliers or others, pursuant to which any person referred to above was selected
as a director or member of senior management.
B. Compensation. Provide the following information for the last
full financial year for the company's directors and members of its
administrative, supervisory or management bodies:
1. The amount of compensation paid, and benefits in kind granted, to such
persons by the company and its subsidiaries for services in all capacities to
the company and its subsidiaries by any person. Disclosure of compensation is
required on an individual basis unless individual disclosure is not required in
the company's home country and is not otherwise publicly disclosed by the
company. The standard also covers contingent or deferred compensation accrued
for the year, even if the compensation is payable at a later date. If any
portion of the compensation was paid (a) pursuant to a bonus or profit-sharing
plan, provide a brief description of the plan and the basis upon which such
persons participate in the plan; or (b) in the form of stock options, provide
the title and amount of securities covered by the options, the exercise price,
the purchase price (if any), and the expiration date of the options.
2. The total amounts set aside or accrued by the company or its subsidiaries
to provide pension, retirement or similar benefits.
C. Board practices. The following information for the company's
last completed financial year shall be given with respect to, unless otherwise
specified, the company's directors, and members of its administrative,
supervisory or management bodies.
1. Date of expiration of the current term of office, if applicable, and the
period during which the person has served in that office.
2. Details of directors' service contracts with the company or any of its
subsidiaries providing for benefits upon termination of employment, or an
appropriate negative statement.
3. Details relating to the company's audit committee and remuneration
committee, including the names of committee members and a summary of the terms
of reference under which the committee operates.
D. Employees. Provide either the number of employees at the end
of the period or the average for the period for each of the past three financial
years (and changes in such numbers, if material) and, if possible, a breakdown
of persons employed by main category of activity and geographic location. Also
disclose any significant change in the number of employees, and information
regarding the relationship between management and labor unions. If the company
employs a significant number of temporary employees, include disclosure of the
number of temporary employees on an average during the most recent financial
year.
E. Share ownership
1. With respect to the persons listed in subsection 6.B, above, provide
information as to their share ownership in the company as of the most recent
practicable date (including disclosure on an individual basis of the number of
shares and percent of shares outstanding of that class, and whether they have
different voting rights) held by the persons listed and options granted to them
on the company's shares. Information regarding options shall include: the title
and amount of securities called for by the options; the exercise price; the
purchase price, if any; and the expiration date of the options.
2. Describe any arrangements for involving the employees in the capital of
the company, including any arrangement that involves the issue or grant of
options or shares or securities of the company.
Instruction to Item 6.C: The term "plan" is used very
broadly and includes any type of arrangement for compensation, even if the terms
of the plan are not contained in a formal document.
Instruction to Item 6.E: If (a) any of the persons listed in
subsection 6.B beneficially owns less than one percent of the class of shares
and (b) that person's individual share ownership previously has not been
disclosed to shareholders or otherwise made public, you may indicate, by an
asterisk and explanatory footnote or similar means, that the person beneficially
owns less than one percent of the class, instead of providing that person's
individual share ownership.
Item 7. Major Shareholders and Related Party Transactions
The purpose of this standard is to provide information regarding the major
shareholders and others that control or may control the company. The standard
also provides information regarding transactions the company has entered into
with persons affiliated with the company and whether the terms of such
transactions are fair to the company. These standards may require disclosure of
related party transactions not required to be disclosed under the body of
accounting principles used in preparing the financial statements. This standard
is not intended to address the thresholds at which shareholders are required, on
a continuing basis, to disclose their beneficial ownership of securities.
A. Major shareholders. To the extent that the following
information is known to the company or can be ascertained from public filings,
it should be provided as of the most recent practicable date, with references to
the number of shares held in the company including shares beneficially owned.
1. The following information shall be provided regarding the company's major
shareholders, which means shareholders that are the beneficial owners of 5% or
more of each class of the company's voting securities (unless the company is
required to disclose a lesser percentage in its home country, in which case that
lesser percentage applies):
(a) Provide the names of the major shareholders, and the number of shares and
the percentage of outstanding shares of each class owned by each of them as of
the most recent practicable date, or an appropriate negative statement if there
are no major shareholders.
(b) Disclose any significant change in the percentage ownership held by any
major shareholders during the past three years.
(c) Indicate whether the company's major shareholders have different voting
rights, or an appropriate negative statement.
2. Information shall be provided as to the portion of each class of
securities held in the host country and the number of record holders in the host
country.
3. To the extent known to the company, state whether the company is directly
or indirectly owned or controlled by another corporation(s), by any foreign
government or by any other natural or legal person(s) severally or jointly, and,
if so, give the name(s) of such controlling corporation(s), government or other
person(s), and briefly describe the nature of such control, including the amount
and proportion of capital held giving a right to vote.
4. Describe any arrangements, known to the company, the operation of which
may at a subsequent date result in a change in control of the company.
B. Related party transactions. Provide the information required
below for the period since the beginning of the company's preceding three
financial years up to the date of the document, with respect to transactions or
loans between the company and (a) enterprises that directly or indirectly
through one or more intermediaries, control or are controlled by, or are under
common control with, the company; (b) associates; (c) individuals owning,
directly or indirectly, an interest in the voting power of the company that
gives them significant influence over the company, and close members of any such
individual's family; (d) key management personnel, that is, those persons having
authority and responsibility for planning, directing and controlling the
activities of the company, including directors and senior management of
companies and close members of such individuals' families; and (e) enterprises
in which a substantial interest in the voting power is owned, directly or
indirectly, by any person described in (c) or (d) or over which such a person is
able to exercise significant influence. This includes enterprises owned by
directors or major shareholders of the company and enterprises that have a
member of key management in common with the company. Close members of an
individual's family are those that may be expected to influence, or be
influenced by, that person in their dealings with the company. An associate is
an unconsolidated enterprise in which the company has a significant influence or
which has significant influence over the company. Significant influence over an
enterprise is the power to participate in the financial and operating policy
decisions of the enterprise but is less than control over those policies.
Shareholders beneficially owning a 10% interest in the voting power of the
company are presumed to have a significant influence on the company.
1. The nature and extent of any transactions or presently proposed
transactions which are material to the company or the related party, or any
transactions that are unusual in their nature or conditions, involving goods,
services, or tangible or intangible assets, to which the company or any of its
parent or subsidiaries was a party.
2. The amount of outstanding loans (including guarantees of any kind) made by
the company or any of its parent or subsidiaries to or for the benefit of any of
the persons listed above. The information given should include the largest
amount outstanding during the period covered, the amount outstanding as of the
latest practicable date, the nature of the loan and the transaction in which it
was incurred, and the interest rate on the loan.
C. Interests of experts and counsel. If any of the named
experts or counselors was employed on a contingent basis, owns an amount of
shares in the company or its subsidiaries which is material to that person, or
has a material, direct or indirect economic interest in the company or that
depends on the success of the offering, provide a brief description of the
nature and terms of such contingency or interest.
Instructions to Item 7.B:
1. If you are providing the information called for by Item 7.B in an
annual report, you only have to provide the required information for the period
from the beginning of your last full fiscal year up to the latest practicable
date.
2. In response to Item 7.B.2, if the lender is a bank, savings and loan
association, or broker dealer extending credit under Federal Reserve Regulation
T, and the loans are not disclosed as nonaccrual, past due, restructured or
potential problems under Industry Guide 3, your response may consist of a
statement, if true, that the loans in question (A) were made in the ordinary
course of business, (B) were made on substantially the same terms, including
interest rates and collateral, as those prevailing at the time for comparable
transactions with other persons, and (C) did not involve more than the normal
risk of collectibility or present other unfavorable features.
Instruction to Item 7.C: If you are filing Form 20-F as a
registration statement or annual report under the Exchange Act, you do not have
to provide the information called for by Item 7.C. You must provide this
information if you are filing a registration statement under the Securities Act.
Accountants who provide a report on financial statements that are presented or
incorporated by reference in a registration statement should note Article 2 of
Regulation S-X. That Article contains the Commission's requirements for
qualifications and reports of accountants.
Item 8. Financial Information
The purpose of this standard is to specify which financial statements must
be included in the document, as well as the periods to be covered, the age of
the financial statements and other information of a financial nature.
A. Consolidated Statements and Other Financial Information
1. The document must contain consolidated financial statements, audited by an
independent auditor and accompanied by an audit report, comprised of:
(a) balance sheet;
(b) income statement;
(c) statement showing either (i) changes in equity other than those arising
from capital transactions with owners and distributions to owners; or (ii) all
changes in equity (including a subtotal of all non-owner items recognized
directly in equity);
(d) cash flow statement;
(e) related notes and schedules required by the comprehensive body of
accounting standards pursuant to which the financial statements are prepared;
and
(f) if not included in the primary financial statements, a note analyzing the
changes in each caption of shareholders' equity presented in the balance sheet.
2. The document should include comparative financial statements that cover
the latest three financial years, audited in accordance with a comprehensive
body of auditing standards.
3. The audit report(s) must cover each of the periods for which these
international disclosure standards require audited financial statements. If the
auditors have refused to provide a report on the annual accounts or if the
report(s) contain qualifications or disclaimers, such refusal or such
qualifications or disclaimers shall be reproduced in full and the reasons given,
so the host country securities regulator can determine whether or not to accept
the financial statements. Include an indication of any other information in the
document which has been audited by the auditors.
4. The last year of audited financial statements may not be older than 15
months at the time of the offering or listing; provided, however, that in the
case of the company's initial public offering, the audited financial statements
also shall be as of a date not older than 12 months at the time the document is
filed. In such cases, the audited financial statements may cover a period of
less than a full year.
5. If the document is dated more than nine months after the end of the last
audited financial year, it should contain consolidated interim financial
statements, which may be unaudited (in which case that fact should be stated),
covering at least the first six months of the financial year. The interim
financial statements should include a balance sheet, income statement, cash flow
statement, and a statement showing either (i) changes in equity other than those
arising from capital transactions with owners and distributions to owners, or
(ii) all changes in equity (including a subtotal of all non-owner items
recognized directly in equity). Each of these statements may be in condensed
form as long as it contains the major line items from the latest audited
financial statements and includes the major components of assets, liabilities
and equity (in the case of the balance sheet); income and expenses (in the case
of the income statement) and the major subtotals of cash flows (in the case of
the cash flow statement). The interim financial statements should include
comparative statements for the same period in the prior financial year, except
that the requirement for comparative balance sheet information may be satisfied
by presenting the year end balance sheet. If not included in the primary
financial statements, a note should be provided analyzing the changes in each
caption of shareholders' equity presented in the balance sheet. The interim
financial statements should include selected note disclosures that will provide
an explanation of events and changes that are significant to an understanding of
the changes in financial position and performance of the enterprise since the
last annual reporting date. If, at the date of the document, the company has
published interim financial information that covers a more current period than
those otherwise required by this standard, the more current interim financial
information must be included in the document. Companies are encouraged, but not
required, to have any interim financial statements in the document reviewed by
an independent auditor. If such a review has been performed and is referred to
in the document, a copy of the auditor's interim review report must be provided
in the document.
6. If the amount of export sales constitutes a significant portion of the
company's total sales volume, provide the total amount of export sales and the
percent and amount of export sales in the total amount of sales volume.
7. Provide information on any legal or arbitration proceedings, including
those relating to bankruptcy, receivership or similar proceedings and those
involving any third party, which may have, or have had in the recent past,
significant effects on the company's financial position or profitability. This
includes governmental proceedings pending or known to be contemplated.
8. Describe the company's policy on dividend distributions.
B. Significant Changes. Disclose whether or not any significant
change has occurred since the date of the annual financial statements, and/or
since the date of the most recent interim financial statements, if any, included
in the document.
Instructions to Item 8:
1. This item refers to the company, but note that under Rules 3-05, 3-09,
3-10 and 3-14 of Regulation S-X, you also may have to provide financial
statements or financial information for entities other than the issuer. In some
cases, you may have to provide financial statements for a predecessor. See the
definition of "predecessor" in Exchange Act Rule 12b-2 and Securities
Act Rule 405.
2. For offerings of securities (a) upon the exercise of outstanding rights
granted by the issuer of the securities to be offered, if the rights are granted
pro rata to all existing securityholders of the class of securities to which the
rights attach; or (b) pursuant to a dividend or interest reinvestment plan; or
(c) upon the conversion of outstanding convertible securities or upon the
exercise of outstanding transferable warrants issued by the issuer of the
securities to be offered, or by an affiliate of that issuer, the 15-month
period referred to in Item 8.A.4 is extended to 18 months and the interim
financial statements referred to in Item 8.A.5 shall be as of a date within 12
months of the date of the document. The provisions of this paragraph are not
applicable if securities are to be offered or sold in a standby underwriting in
the United States or similar arrangement.
Instructions to Item 8.A.2:
1. You do not have to provide a balance sheet for the earliest of the
three-year periods specified in Item 8.A.2 if that balance sheet is not required
by a jurisdiction outside the United States.
2. The financial statements must be audited in accordance with U.S.
generally accepted auditing standards, and the auditor must comply with the U.S.
and Commission standards for auditor independence. Note Article 2 of Regulation
S-X, which contains requirements for qualifications and reports of accountants.
Instruction to Item 8.A.3: The circumstances in which we would
accept an audit report containing a disclaimer or qualification are extremely
limited. If you plan to submit this type of report, we recommend that you
contact the staff of the Office of Chief Accountant in the Division of
Corporation Finance well in advance of filing the document, to discuss the
report.
Instructions to Item 8.A.4:
1. In calculating the 15-month requirement for the age of financial
statements, determine the age based on the period of time that has elapsed
between the date of the balance sheet and "the time of the offering or
listing," which means the time the registration statement is declared
effective. You may satisfy this requirement by providing audited financial
statements covering a period of less than a full year.
2. The additional requirement that financial statements be no older than
12 months at the date of filing applies only in those limited cases where a
nonpublic company is registering its initial public offering of securities. We
will waive this requirement in cases where the company is able to represent
adequately to us that it is not required to comply with this requirement in any
other jurisdiction outside the United States and that complying with the
requirement is impracticable or involves undue hardship. File this
representation as an exhibit to the registration statement. If we waive the
12-month requirement, you must comply with the 15-month requirement in this
item.
Instructions to Item 8.A.5:
1. Item 8.A.5 does not apply to annual reports on Form 20-F.
2. The third sentence of Item 8.A.5 explains that the required interim
financial statements may be in condensed form using major line items from the
latest audited financial statements. To determine which major line items must be
included in condensed interim information, see Rules 10-01(a)(1) through (7).
3. The third sentence from the end of Item 8.A.5 requires you to include
in the document interim financial information that has been published by the
company if that information covers a more current period than the statements
otherwise required by Item 8. This requirement does not apply to annual reports
filed on Form 20-F. The requirement covers any publication of financial
information that includes, at a minimum, revenue and income information, even if
that information is not published as part of a complete set of financial
statements. Whenever you provide more current interim financial information in
response to this requirement:
(a) Describe any ways in which the accounting principles, practices and
methods used in preparing that interim financial information vary materially
from the principles, practices and methods accepted in the United States, and
(b) Quantify any material variations, unless they already are quantified
because they occur in other financial statements included in the document.
Instructions to Item 8.A.7:
1. This Item also requires disclosure of any material proceeding in which
any director, any member of senior management, or any of your affiliates is
either a party adverse to you or your subsidiaries or has a material interest
adverse to your or your subsidiaries.
2. If you are providing the information called for by Item 8.A.7 in an
annual report, also describe the disposition of any previously reported
litigation that occurred during the last fiscal year.
Item 9. The Offer and Listing
The purpose of this standard is to provide information regarding the offer
or listing of securities, the plan for distribution of the securities and
related matters.
A. Offer and listing details
1. Indicate the expected price at which the securities will be offered or the
method of determining the price, and the amount of any expenses specifically
charged to the subscriber or purchaser.
2. If there is not an established market for the securities, the document
shall contain information regarding the manner of determination of the offering
price as well as of the exercise price of warrants and the conversion price of
convertible securities, including who established the price or who is formally
responsible for the determination of the price, the various factors considered
in such determination and the parameters or elements used as a basis for
establishing the price.
3. If the company's shareholders have pre-emptive purchase rights and where
the exercise of the right of pre-emption of shareholders is restricted or
withdrawn, the company shall indicate the basis for the issue price if the issue
is for cash, together with the reasons for such restriction or withdrawal and
the beneficiaries of such restriction or withdrawal if intended to benefit
specific persons.
4. Information regarding the price history of the stock to be offered or
listed shall be disclosed as follows:
(a) for the five most recent full financial years: the annual high and low
market prices;
(b) for the two most recent full financial years and any subsequent period:
the high and low market prices for each full financial quarter;
(c) for the most recent six months: the high and low market prices for each
month;
(d) for pre-emptive issues, the market prices for the first trading day in
the most recent six months, for the last trading day before the announcement of
the offering and (if different) for the latest practicable date prior to
publication of the document.
Information shall be given with respect to the market price in the host
market and the principal trading market outside the host market. If significant
trading suspensions occurred in the prior three years, they shall be disclosed.
If the securities are not regularly traded in an organized market, information
shall be given about any lack of liquidity.
5. State the type and class of the securities being offered or listed and
furnish the following information:
(a) Indicate whether the shares are registered shares or bearer shares and
provide the number of shares to be issued and to be made available to the market
for each kind of share. The nominal par or equivalent value should be given on a
per share basis and, where applicable, a statement of the minimum offer price.
Describe the coupons attached, if applicable.
(b) Describe arrangements for transfer and any restrictions on the free
transferability of the shares.
6. If the rights evidenced by the securities being offered or listed are or
may be materially limited or qualified by the rights evidenced by any other
class of securities or by the provisions of any contract or other documents,
include information regarding such limitation or qualification and its effect on
the rights evidenced by the securities to be listed or offered.
7. With respect to securities other than common or ordinary shares to be
listed or offered, outline briefly the rights evidenced thereby.
(a) If subscription warrants or rights are to be listed or offered, state:
the title and amount of securities called for; the amount of warrants or rights
outstanding; provisions for changes to or adjustments in the exercise price; the
period during which and the price at which the warrants or rights are
exercisable; and any other material terms of such warrants or rights.
(b) Where convertible securities or stock purchase warrants to be listed or
offered are subject to redemption or call, the description of the conversion
terms of the securities or material terms of the warrants shall include whether
the right to convert or purchase the securities will be forfeited unless it is
exercised before the date specified in the notice of redemption or call; the
expiration or termination date of the warrants; the kind, frequency and timing
of notice of the redemption or call, including where the notice will be
published; and, in the case of bearer securities, that investors are responsible
for making arrangements to prevent loss of the right to convert or purchase in
the event of redemption or call.
B. Plan of distribution
1. The names and addresses of the entities underwriting or guaranteeing the
offering shall be listed.
2. To the extent known to the company, indicate whether major shareholders,
directors or members of the company's management, supervisory or administrative
bodies intend to subscribe in the offering, or whether any person intends to
subscribe for more than 5% of the offering.
3. Identify any group of targeted potential investors to whom the securities
are offered. If the offering is being made simultaneously in the markets of two
or more countries and if a tranche has been or is being reserved for certain of
these, indicate any such tranche.
4. If securities are reserved for allocation to any group of targeted
investors, including, for example, offerings to existing shareholders,
directors, or employees and past employees of the company or its subsidiaries,
provide details of these and any other preferential allocation arrangements.
5. Indicate whether the amount of the offering could be increased, such as by
the exercise of an underwriter's over-allotment option or "greenshoe,"
and by how much.
6. Indicate the amount, and outline briefly the plan of distribution, of any
securities that are to be offered otherwise than through underwriters. If the
securities are to be offered through the selling efforts of brokers or dealers,
describe the plan of distribution and the terms of any agreement or
understanding with such entities. If known, identify the broker(s) or dealer(s)
that will participate in the offering and state the amount to be offered through
each.
7. If the securities are to be offered in connection with the writing of
exchange-traded call options, describe briefly such transactions.
8. If simultaneously or almost simultaneously with the creation of shares for
which admission to official listing is being sought, shares of the same class
are subscribed for or placed privately or if shares of other classes are created
for public or private placing, details are to be given of the nature of such
operations and of the number and characteristics of the shares to which they
relate.
9. Unless otherwise described under the response to Item 10.C (Material
Contracts), describe the features of the underwriting relationship together with
the amount of securities being underwritten by each underwriter in privity of
contract with the company or selling shareholders. The foregoing information
should include a statement as to whether the underwriters are or will be
committed to take and to pay for all of the securities if any are taken, or
whether it is an agency or the type of "best efforts" arrangement
under which the underwriters are required to take and to pay for only such
securities as they may sell to the public.
10. If any underwriter or other financial adviser has a material relationship
with the company, describe the nature and terms of such relationship.
C. Markets. The company shall disclose all stock exchanges and
other regulated markets on which the securities to be offered or listed are
traded. When an application for admission to any exchange and/or regulated
market is being or will be sought, this must be mentioned, without creating the
impression that the listing necessarily will be approved. If known, the dates on
which the shares will be listed and dealt in should be given.
D. Selling shareholders. The following information shall be
provided:
1. The name and address of the person or entity offering to sell the shares,
the nature of any position, office or other material relationship that the
selling shareholder has had within the past three years with the company or any
of its predecessors or affiliates.
2. The number and class of securities being offered by each of the selling
shareholders, and the percentage of the existing equity capital. The amount and
percentage of the securities for each particular type of securities beneficially
held by the selling shareholder before and immediately after the offering shall
be specified.
E. Dilution. The following information shall be provided:
1. Where there is a substantial disparity between the public offering price
and the effective cash cost to directors or senior management, or affiliated
persons, of equity securities acquired by them in transactions during the past
five years, or which they have the right to acquire, include a comparison of the
public contribution in the proposed public offering and the effective cash
contributions of such persons.
2. Disclose the amount and percentage of immediate dilution resulting from
the offering, computed as the difference between the offering price per share
and the net book value per share for the equivalent class of security, as of the
latest balance sheet date.
3. In the case of a subscription offering to existing shareholders, disclose
the amount and percentage of immediate dilution if they do not subscribe to the
new offering.
F. Expenses of the issue. The following information shall be
provided:
1. The total amount of the discounts or commissions agreed upon by the
underwriters or other placement or selling agents and the company or offeror
shall be disclosed, as well as the percentage such commissions represent of the
total amount of the offering and the amount of discounts or commissions per
share.
2. A reasonably itemized statement of the major categories of expenses
incurred in connection with the issuance and distribution of the securities to
be listed or offered and by whom the expenses are payable, if other than the
company. If any of the securities are to be offered for the account of a selling
shareholder, indicate the portion of such expenses to be borne by such
shareholder. The information may be given subject to future contingencies. If
the amounts of any items are not known, estimates (identified as such) shall be
given.
Instruction to Item 9: If you are using this Form as a registration
statement under the Exchange Act, provide only the information called for by
Items 9.A.4-7 and 9.C. If you are using this Form as an annual report, provide
only the information called for by Items 9.A.4 and 9.C. If you are providing
this information in a Securities Act registration statement, provide the
information called for by the entire Item.
Instruction to Item 9.A: When you are required to state the title
of the securities, the title must indicate the type and general character of the
securities, such as whether they are callable, convertible or redeemable and
whether there is any preference or fixed rate of dividends.
Instructions to Item 9.B:
1. You may satisfy the requirement in Item 9.B.1 to provide the
underwriters' addresses by giving the addresses of the lead underwriters for the
offering.
2. If previously you have not been required to file reports under section
13(a) or 15(d) of the Exchange Act and any of the managing underwriters (or a
majority of the principal underwriters) has been organized, reactivated or first
registered as a broker-dealer within the past three years, disclose that fact.
Also disclose, if true, that the principal business function of this underwriter
will be to sell the securities being registered or that your promoters or
founders have a material relationship with this underwriter. Give enough details
to provide a clear picture of the underwriter's experience and its relationship
with you, your promoters or founders, and their controlling persons.
Instruction to Item 9.F: Major categories of expenses include at
least the following: registration fees, federal taxes, state taxes and fees,
trustees' and transfer agents' fees, printing and engraving costs, legal fees,
accounting fees, engineering fees, and any premiums paid to insure directors or
officers for liabilities in connection with the registration, offer or sale of
the securities you are registering.
Item 10. Additional Information
The purpose of this standard is to provide information, most of which is
of a statutory nature, that is not covered elsewhere in the document.
A. Share capital. The following information shall be given as
of the date of the most recent balance sheet included in the financial
statements and as of the latest practicable date:
1. The amount of issued capital and, for each class of share capital: (a) the
number of shares authorized; (b) the number of shares issued and fully paid and
issued but not fully paid; (c) the par value per share, or that the shares have
no par value; and (d) a reconciliation of the number of shares outstanding at
the beginning and end of the year. If more than 10% of capital has been paid for
with assets other than cash within the past five years, that fact should be
stated.
2. If there are shares not representing capital, the number and main
characteristics of such shares shall be stated.
3. Indicate the number, book value and face value of shares in the company
held by or on behalf of the company itself or by subsidiaries of the company.
4. Where there is authorized but unissued capital or an undertaking to
increase the capital, for example, in connection with warrants, convertible
obligations or other outstanding equity-linked securities, or subscription
rights granted, indicate: (i) the amount of outstanding equity-linked securities
and of such authorized capital or capital increase and, where appropriate, the
duration of the authorization; (ii) the categories of persons having
preferential subscription rights for such additional portions of capital; and
(iii) the terms, arrangements and procedures for the share issue corresponding
to such portions.
5. The persons to whom any capital of any member of the group is under option
or agreed conditionally or unconditionally to be put under option, including the
title and amount of securities covered by the options; the exercise price; the
purchase price, if any; and the expiration date of the options, or an
appropriate negative statement. Where options have been granted or agreed to be
granted to all the holders of shares or debt securities, or of any class
thereof, or to employees under an employees' share scheme, it will be sufficient
so far as the names are concerned, to record that fact without giving names.
6. A history of share capital for the last three years identifying the events
during such period which have changed the amount of the issued capital and/or
the number and classes of shares of which it composed, together with a
description of changes in voting rights attached to the various classes of
shares during that time. Details should be given of the price and terms of any
issue including particulars of consideration where this was other than cash
(including information regarding discounts, special terms or installment
payments). If there are no such issues, an appropriate negative statement must
be made. The reason for any reduction of the amount of capital and the ratio of
capital reductions also shall be given.
7. An indication of the resolutions, authorizations and approvals by virtue
of which the shares have been or will be created and/or issued, the nature of
the issue and amount thereof and the number of shares which have been or will be
created and/or issued, if predetermined.
B. Memorandum and articles of association. The following
information shall be provided:
1. Indicate the registor and the entry number therein, if applicable, and
describe the company's objects and purposes and where they can be found in the
memorandum and articles.
2. With respect to directors, provide a summary of any provisions of the
company's articles of association or charter and bylaws with respect to: (a) a
director's power to vote on a proposal, arrangement or contract in which the
director is materially interested; (b) the directors' power, in the absence of
an independent quorum, to vote compensation to themselves or any members of
their body; (c) borrowing powers exercisable by the directors and how such
borrowing powers can be varied; (d) retirement or non-retirement of directors
under an age limit requirement; and (e) number of shares, if any, required for
director's qualification.
3. Describe the rights, preferences and restrictions attaching to each class
of the shares, including: (a) dividend rights, including the time limit after
which dividend entitlement lapses and an indication of the party in whose favor
this entitlement operates; (b) voting rights, including whether directors stand
for reelection at staggered intervals and the impact of that arrangement where
cumulative voting is permitted or required; (c) rights to share in the company's
profits; (d) rights to share in any surplus in the event of liquidation; (e)
redemption provisions; (f) sinking fund provisions; (g) liability to further
capital calls by the company; and (h) any provision discriminating against any
existing or prospective holder of such securities as a result of such
shareholder owning a substantial number of shares.
4. Describe what action is necessary to change the rights of holders of the
stock, indicating where the conditions are more significant than is required by
law.
5. Describe the conditions governing the manner in which annual general
meetings and extraordinary general meetings of shareholders are convoked,
including the conditions of admission.
6. Describe any limitations on the rights to own securities, including the
rights of non-resident or foreign shareholders to hold or exercise voting rights
on the securities imposed by foreign law or by the charter or other constituent
document of the company or state that there are no such limitations if that is
the case.
7. Describe briefly any provision of the company's articles of association,
charter or bylaws that would have an effect of delaying, deferring or preventing
a change in control of the company and that would operate only with respect to a
merger, acquisition or corporate restructuring involving the company (or any of
its subsidiaries).
8. Indicate the bylaw provisions, if any, governing the ownership threshold
above which shareholder ownership must be disclosed.
9. With respect to items 2 through 8 above, if the law applicable to the
company in these areas is significantly different from that in the host country,
the effect of the law in these areas should be explained.
10. Describe the conditions imposed by the memorandum and articles of
association governing changes in the capital, where such conditions are more
stringent than is required by law.
C. Material contracts. Provide a summary of each material
contract, other than contracts entered into in the ordinary course of business,
to which the company or any member of the group is a party, for the two years
immediately preceding publication of the document, including dates, parties,
general nature of the contracts, terms and conditions, and amount of any
consideration passing to or from the company or any other member of the group.
D. Exchange controls. Describe any governmental laws, decrees,
regulations or other legislation of the home country of the company which may
affect:
1. the import or export of capital, including the availability of cash and
cash equivalents for use by the company's group.
2. the remittance of dividends, interest or other payments to nonresident
holders of the company's securities.
E. Taxation. The company shall provide information regarding
taxes (including withholding provisions) to which shareholders in the host
country may be subject. Information should be included as to whether the company
assumes responsibility for the withholding of tax at the source and regarding
applicable provisions of any reciprocal tax treaties between the home and host
countries, or a statement, if applicable, that there are no such treaties.
F. Dividends and paying agents. Disclose any dividend
restrictions, the date on which the entitlement to dividends arises, if known,
and any procedures for nonresident holders to claim dividends. Identify the
financial organizations which, at the time of admission of shares to official
listing, are the paying agents of the company in the countries where admission
has taken place or is expected to take place.
G. Statement by experts. Where a statement or report attributed
to a person as an expert is included in the document, provide such person's
name, address and qualifications and a statement to the effect that such
statement or report is included, in the form and context in which it is
included, with the consent of that person, who has authorized the contents of
that part of the document.
H. Documents on display. The company shall provide an
indication of where the documents concerning the company which are referred to
in the document may be inspected. Exhibits and documents on display generally
should be translated into the language of the host country, or a summary in the
host country language should be provided.
I. Subsidiary Information. Certain information relating to the
company's subsidiaries must be provided in some countries, if the information is
not otherwise called for by the body of generally accepted accounting principles
used in preparing the financial statements.
Instructions to Item 10:
1. In annual reports filed on Form 20-F:
(a) You do not have to provide the information called for by Items 10.A,
10.F and 10.G; and
(b) If the information called for by Item 10.B has been reported
previously in a registration statement on Form 20-F or a registration statement
filed under the Securities Act and has not changed, you may incorporate that
information by a specific reference in the annual report to the previous
registration statement.
2. In registration statements filed under the Securities Act or the
Exchange Act that relate to securities other than common equity, you do not have
to provide the information called for by Items 10.A or 10.F.
3. The information referred to in Item 10.I is not required for
registration statements and reports filed in the United States.
* * * * *
Item 12. Description of Securities Other than Equity Securities.
A. Debt Securities. If you are registering debt securities,
provide the following information if it is relevant to the securities you are
registering.
1. Information about interest, conversions, maturity, redemption,
amortization, sinking funds or retirement.
2. The kind and priority of any lien securing the issue, as well as a brief
identification of the principal properties subject to each lien.
3. Subordination of the rights of holders of the securities to other security
holders or creditors. If the securities are designated in their title as
subordinated, give the aggregate amount of outstanding indebtedness as of the
most recent practicable date that is senior to the subordinated debt and briefly
describe any limitations on the issuance of additional senior indebtedness, or
state that there is no limitation.
4. Information about provisions restricting the declaration of dividends or
requiring the creation or maintenance of any reserves or of any ratio of assets
or requiring the maintenance of properties.
5. Information about provisions permitting or restricting the issuance of
additional securities, the withdrawal of cash deposited against the issuance of
additional securities, the incurring of additional debt, the release or
substitution of assets securing the issue, the modification of the terms of the
security and similar provisions. You do not need to describe provisions
permitting the release of assets upon the deposit of equivalent funds or the
pledge of equivalent property, the release of property no longer required in the
business, obsolete property or property taken by eminent domain, the application
of insurance monies, and similar provisions.
6. The general type of event that constitutes a default and whether or not
you are required to provide periodic evidence of the absence of a default or of
compliance with the terms of the indenture.
7. Modification of the terms of the security or the rights of security
holders.
8. If the rights evidenced by the securities you are registering are or may
be materially limited or qualified by the rights of any other authorized class
of securities, provide enough information about the other class of securities so
investors will understand the rights evidenced by the securities you are
registering. You do not need to provide information about the other class of
securities if all of it will be retired, as long as you have taken appropriate
steps to ensure that retirement will be completed on or before the time you
deliver the securities you are registering.
9. The tax effects of any "original issue discount" as that term is
defined in Section 1232 of the Internal Revenue Code (26 U.S.C. 1232), including
cases where the debt security is being sold in a package with another security
and the allocation of the offering price between the two securities may have the
effect of offering the debt security at an original issue discount.
10 The name and address of the trustee and the nature of any material
relationship between the trustee and you or any of your affiliates, the
percentage of the class of securities that is needed to require the trustee to
take action, and what indemnification the trustee may require before proceeding
to enforce the lien.
11. The names and addresses of the paying agents.
12. The currency or currencies in which the debt is payable. If the debt may
be paid in two or more currencies, state who has the option to determine the
currency conversion and what the basis will be for that determination.
13. Any law or decree determining the extent to which the securities may be
serviced.
14. The consequences of any failure to pay principal, interest, or any
sinking or amortization installment.
15. If the securities are guaranteed, the name of the guarantor and a brief
outline of the contract of guarantee.
B. Warrants and Rights. If the securities you are registering
are being offered pursuant to warrants or rights, provide the following
information, in addition to the description of the securities the warrants or
rights represent.
1. The amount of securities called for by the warrants or rights.
2. The period during and the price at which the warrants or rights are
exercisable.
3. The amount of warrants or rights outstanding.
4. Provisions for changes or adjustments in the exercise price.
5. Any other material terms of the warrants or rights.
C. Other Securities. If you are registering securities other
than equity, debt, warrants or rights, briefly describe the rights evidenced by
the securities you are registering. The description should be comparable in
detail to the description you would be required to provide for equity, debt,
warrants or rights.
D. American Depositary Shares. If you are registering American
depositary shares represented by American depositary receipts, provide the
following information.
1. Give the name of the depositary and the address of its principal executive
office.
2. Give the title of the American depositary receipts and identify the
deposited security. Briefly describe the American depositary shares, including
provisions, if any, regarding:
(a) the amount of deposited securities represented by one unit of American
depositary receipts;
(b) any procedure for voting the deposited securities;
(c) the procedure for collecting and distributing dividends;
(d) the procedures for transmitting notices, reports and proxy soliciting
material;
(e) the sale or exercise of rights;
(f) the deposit or sale of securities resulting from dividends, splits or
plans of reorganization;
(g) amendment, extension or termination of the deposit arrangements;
(h) the rights that holders of American depositary receipts have to inspect
the books of the depositary and the list of receipt holders;
(i) any restrictions on the right to transfer or withdraw the underlying
securities; and
(j) any limitation on the depositary's liability.
3. Describe all fees and charges that a holder of American depositary
receipts may have to pay, either directly or indirectly. Indicate the type of
service, the amount of the fees or charges and to whom the fees or charges are
paid. In particular, provide information about any fees or charges in connection
with (a) depositing or substituting the underlying shares; (b) receiving or
distributing dividends; (c) selling or exercising rights; (d) withdrawing an
underlying security; and (e) transferring, splitting or grouping receipts.
Provide information about the depositary's right, if any, to collect fees and
charges by offsetting them against dividends received and deposited securities.
Instructions to Item 12:
1. You do not need to provide the information called for by this item if
you are using this form as an annual report.
2. You do not need to include any information in a registration statement
or prospectus in response to Item 305(a)(2) of the Trust Indenture Act of 1939,
15 U.S.C. 77aaa et seq., as amended, if the information is not otherwise
required by this Item.
3. If you are registering convertible securities or stock purchase
warrants that are subject to redemption or call, include the following
information in your description of the securities.
a. Whether holders will forfeit the right to convert or purchase the
securities unless they exercise that right before the date specified in the
notice of redemption or call;
b. The expiration or termination date of the warrants;
c. The kinds, frequency and timing of the redemption or call notice,
including the cities or newspapers in which you will publish the notice; and
d. In the case of bearer securities, that investors are responsible for
making arrangements to avoid losing the right to convert or purchase if there is
a redemption or call, such as by reading the newspapers in which you will
publish the redemption or call notice.
4. When you are required to state the title of the securities, the title
must indicate the type and general character of the securities.
PART II
Item 13. Defaults, Dividend Arrearages and Delinquencies.
A. If there has been:
1. a material default in the payment of principal, interest, a sinking or
purchase fund installment, or
2. any other material default not cured within 30 days, relating to
indebtedness of you or any of your significant subsidiaries, and if the amount
of the indebtedness exceeds 5% of your total assets on a consolidated basis,
identify the indebtedness and state the nature of the default. If the default
falls under paragraph A.1 above, state the amount of the default and the total
arrearage on the date you file this report.
B. If the payment of dividends is in arrears or there has been any other
material delinquency not cured within 30 days, relating to:
1. any class of your preferred stock which is registered or ranks prior to
any class of registered securities, or
2. any class of preferred stock of your significant subsidiaries, state the
title of the class and the nature of the arrearage or delinquency. If the
payment of dividends is in arrears, state the amount of this arrearage and the
total arrearage on the date you file this report.
Instructions to Item 13:
1. If you previously have reported information called for by this item in
a report on Form 6-K, you may incorporate the information by specifically
referring in this report to the previous report.
2. You do not have to provide the information called for by this Item if
the default or arrearage relates to a class of securities held entirely by or
for the account of you or any of your wholly owned subsidiaries
Instructions to Item 13.A: This requirement only applies to events
that have become defaults under the governing instruments, i.e., after any grace
period has expired and any notice requirements have been satisfied.
Item 14. Material Modifications to the Rights of Security Holders and Use
of Proceeds.
A. If you or anyone else has modified materially the instruments defining the
rights of holders of any class of registered securities, identify that class of
securities and briefly describe the general effect of the modification on the
rights of those security holders.
B. If you or anyone else has modified materially or qualified the rights
evidenced by any class of registered securities by issuing or modifying any
other class of securities, briefly describe the general effect of the issuance
or modification on the rights of holders of the registered securities.
C. If you or anyone else has withdrawn or substituted a material amount of
the assets securing any class of your registered securities, provide the
following information.
1. Give the title of the securities.
2. Identify and describe briefly the assets withdrawn or substituted.
3. Indicate the provisions in the underlying indenture, if any, that
authorize the withdrawal or substitution.
D. If the trustees or paying agents for any registered securities have
changed during the last financial year, give the names and addresses of the new
trustees or paying agents.
E. Use of proceeds. If required pursuant to Rule 463 under the
Securities Act, report the use of proceeds after the effective date of the first
Securities Act registration statement filed by you or your predecessor. You must
report the use of proceeds:
(i) on the first Form 20-F annual report you file pursuant to sections 13(a)
and 15(d) of the Exchange Act after the Securities Act registration statement is
effective, and
(ii) on each of your subsequent Form 20-F annual reports filed pursuant to
sections 13(a) and 15(d) of the Exchange Act.
You may cease reporting the use of proceeds on the later of the date you
disclose application of all the offering proceeds, or the date you disclose
termination of the offering. If a required report on the use of proceeds relates
to the first effective registration statement of your predecessor, you must
provide the report.
Provide the information required by paragraphs E.1 through E.4 below in the
first Form 20-F annual report you file pursuant to sections 13(a) and 15 (d) of
the Exchange Act. In subsequent Form 20-F annual reports, you only need to
provide the information required by paragraphs E.2 through E.4 if that
information has changed since the last Form 20-F annual report you filed.
1. The effective date of the Securities Act registration statement for which
the use of proceeds information is being disclosed and the Commission file
number assigned to that registration statement;
2. The offering date, if the offering has commenced, or an explanation of why
it has not commenced;
3. If the offering terminated before any securities were sold, an explanation
for the termination; and
4. If the offering did not terminate before any securities were sold,
disclose:
(a) Whether the offering has terminated and, if so, whether it terminated
before all of the registered securities were sold;
(b) The name(s) of the managing underwriter(s), if any;
(c) The title of each class of securities registered and, if a class of
convertible securities is being registered, the title of any class of securities
into which the convertible securities may be converted;
(d) For each class of securities (other than a class into which a class of
registered convertible securities may be converted without additional payment to
the issuer) the following information, provided for both the account of the
issuer and the account(s) of any selling shareholder(s): the amount registered,
the aggregate price of the offering amount registered, the amount sold and the
aggregate offering price of the amount sold to date;
(e) From the effective date of the Securities Act registration statement to
the ending date of the reporting period, the amount of expenses incurred for the
issuer's account in connection with the issuance and distribution of the
registered securities for underwriting discounts and commissions, finders' fees,
expenses paid to or for underwriters, other expenses and total expenses.
Indicate if a reasonable estimate for the amount of expenses is provided instead
of the actual amount of the expense. Indicate whether the payments were:
(i) Direct or indirect payments to directors, officers, general partners of
the issuer or their associates; to persons owning 10% or more of any class of
the issuer's equity securities; and to affiliates of the issuer; or
(ii) Direct or indirect payments to others;
(f) The net offering proceeds to the issuer after deducting the total
expenses described in paragraph E.4(e) of this Item;
(g) From the effective date of the Securities Act registration statement to
the ending date of the reporting period, the amount of net offering proceeds to
the issuer used for construction of plant, building and facilities; purchase and
installation of machinery and equipment; purchases of real estate; acquisition
of other business(es); repayment of indebtedness; working capital; temporary
investments (which should be specified); and any other purposes for which at
least 5% of the issuer's total offering proceeds or $100,000 (whichever is less)
has been used (which should be specified). Indicate if a reasonable estimate for
the amount of net offering proceeds applied instead of the actual amount of net
offering proceeds used. Indicate whether such payments were:
(i) Direct or indirect payments to directors, officers, general partners of
the issuer or their associates; to persons owning 10% or more of any class of
the issuer's equity securities; and to affiliates of the issuer; or
(ii) Direct or indirect payments to others; and
(h) If the use of proceeds in paragraph E.4(g) of this Item represents a
material change in the use of proceeds described in the prospectus, the issuer
should describe briefly the material change.
Instruction to Item 14: If you previously have reported information
called for by this item in a report on Form 6-K, you may incorporate the
information by specifically referring in this report to the previous report.
Instruction to Item 14.B: You should report any working capital
restrictions or other limitations on the payment of dividends.
Instruction to Item 14.C: You do not have to provide the
information called for by Item 14.C. if the withdrawal or substitution is made
pursuant to the terms of an indenture qualified under the Trust Indenture Act of
1939.
Item 15. [Reserved]
Item 16. [Reserved]
PART III
[See General Instruction E(c)]
* * * * *
Item 18. Financial Statements.
Provide the following information:
(a) All of the information required by Item 17 of this Form, and
(b) All other information required by U.S. generally accepted accounting
principles and Regulation S-X unless such requirements specifically do not apply
to the registrant as a foreign issuer. However, information may be omitted (i)
for any period in which net income has not been presented on a basis reconciled
to United States generally accepted accounting principles, or (ii) if the
financial statements are furnished for a business acquired or to be acquired
pursuant to § 210.3-05 or less-than-majority-owned investee pursuant to §
210.3-09 of this chapter.
Instruction to Item 18: All of the instructions to Item 17 also
apply to this Item, except Instruction 3 to Item 17, which does not apply.
Item 19. Exhibits.
List all exhibits filed as part of the registration statement or annual
report, including exhibits incorporated by reference.
Instruction to Item 19: If you incorporate any financial statement
or exhibit by reference, include the incorporation by reference in the list
required by this Item. Note Rule 12b-23 regarding incorporation by reference.
Note also the Instructions to Exhibits at the end of this Form.
SIGNATURES
The registrant hereby certifies that it meets all of the requirements for
filing on Form 20-F and that it has duly caused and authorized the undersigned
to sign this registration statement [annual report] on its behalf.
________________________________
(Registrant)
________________________________
(Signature)*
Date:____________________ ________________________________
*Print the name and title of the signing officer under this signature.
INSTRUCTIONS AS TO EXHIBITS
File the exhibits listed below as part of an Exchange Act registration
statement or report. Rule 12b-32 explains the circumstances in which you may
incorporate exhibits by reference. Rule 24b-2 explains the procedure to be
followed in requesting confidential treatment of information required to be
filed.
Previously filed exhibits may be incorporated by reference. If any previously
filed exhibits have been amended or modified, file copies of the amendment or
modification or copies of the entire exhibit as amended or modified.
Include an exhibit index in each registration statement or report you file,
immediately preceding the exhibits you are filing. The exhibit index must list
each exhibit according to the number assigned to it below. If an exhibit is
incorporated by reference, note that fact in the exhibit index. The pages of the
manually signed original registration statement should be numbered in sequence,
and the exhibit index should give the page number in the sequential numbering
system where each exhibit can be found.
1. The articles of incorporation or association and bylaws, or comparable
instruments, as currently in effect and any amendments to those documents. If
you are filing an amendment, file a complete copy of the document as amended.
2. (a) All instruments defining the rights of holders of the securities being
registered. You do not have to file instruments that define the rights of
participants, rather than security holders, in an employee benefit plan.
(b) All instruments defining the rights of holders of long-term debt issued
by you or any subsidiary for which you are required to file consolidated or
unconsolidated financial statements, except that you do not have to file:
(i) Any instrument relating to long-term debt that is not being registered on
this registration statement, if the total amount of securities authorized under
that instrument does not exceed 10% of the total assets of you and your
subsidiaries on a consolidated basis and you have filed an agreement to furnish
us a copy of the instrument if we request it;
(ii) Any instrument relating to a class of securities if, on or before the
date you deliver the securities being registered, you take appropriate steps to
assure that class of securities will be redeemed or retired; or
(iii) Copies of instruments evidencing script certificates for fractions of
shares.
(c) A copy of the indenture, if the securities being registered are or will
be issued under an indenture qualified under the Trust Indenture Act of 1939.
Include a reasonably itemized and informative table of contents and a
cross-reference sheet showing the location in the indenture of the provisions
inserted pursuant to sections 310 through 318(a) inclusive of the Trust
Indenture Act.
3. Any voting trust agreements and any amendments to those agreements.
4. (a) Every contract that is material to you and (i) is to be performed in
whole or in part on or after the date you file the registration statement or
(ii) was entered into not more than two years before the filing date. Only file
a contract if you or your subsidiary is a party or has
succeeded to a party by assumption or assignment or if you or your subsidiary
has a beneficial interest.
(b) If a contract is the type that ordinarily accompanies the kind of
business you and your subsidiaries conduct, we will consider it have been made
in the ordinary course of business and will not require you to file it, unless
it falls within one or more of the following categories. Even if it falls into
one of these categories, you do not have to file the contract if it is
immaterial in amount or significance.
(i) Any contract to which (A) directors, (B) officers, (C) promoters, (D)
voting trustees or (E) security holders named in the registration statement are
parties, unless the contract involves only the purchase or sale of current
assets that have a determinable market price and the assets are purchased or
sold at that price;
(ii) Any contract upon which your business is substantially dependent.
Examples of these types of contracts might be (a) continuing contracts to sell
the major part of your products or services or to purchase the major part of
your requirement of goods, services or raw materials, or (b) any franchise or
license or other agreement to use a patent, formula, trade secret, process or
trade name if your business depends to a material extent on that patent,
formula, trade secret processor trade name;
(iii) Any contract for the acquisition or sale of any property, plant or
equipment if the consideration exceeds 15% of your fixed assets on a
consolidated basis; or
(iv) Any material lease under which you hold part of the property described
in the registration statement.
(c) We will consider any management contract or compensatory plan, contract
or arrangement in which your directors or members of your administrative,
supervisory or management bodies participate to be material. File these
management contracts or compensatory plans, contracts or arrangements unless
they fall into one of the following categories:
(i) Ordinary purchase and sale agency agreements;
(ii) Agreements with managers of stores in a chain or similar organization;
(iii) Contracts providing for labor or salesmen's bonuses or for payments to
a class of security holders in their capacity as security holders;
(iv) Any compensatory plan, contract or arrangement that is available by its
terms to employees, officers or directors generally, if the operation of the
plan, contract or arrangement uses the same method to allocate benefits to
management and nonmanagment participants; and
(v) Any compensatory plan, contract or arrangement if you are furnishing
compensation information on an aggregate basis as permitted by Item 6.B.
If you are filing compensatory plans, contracts or arrangements, only file
copies of the plans and not copies of each individual's personal agreement under
the plans, unless there are particular provisions in a personal agreement that
should be filed as an exhibit so investors will understand that individual's
compensation under the plan.
5. A list showing the number and a brief identification of each material
foreign patent for an invention not covered by a United States patent, but only
if we request you to file the list.
6. A statement explaining in reasonable detail how earnings per share
information was calculated, unless the computation is clear from material
contained in the registration statement or report.
7. A statement explaining in reasonable detail how any ratio of earning to
fixed charges, any ratio of earnings to combined fixed charges and preferred
stock dividends or any other ratios in the registration statement or report were
calculated.
8. A list of all your subsidiaries, their jurisdiction of incorporation and
the names under which they do business. You may omit the names of subsidiaries
that, in the aggregate, would not be a "significant subsidiary" as
defined in rule 1-02(w) of Regulation S-X as of the end of the year covered by
the report. You may omit the names of multiple wholly owned subsidiaries
carrying on the same line of business, such as chain stores or service stations,
if you give the name of the immediate parent company, the line of business and
the number of omitted subsidiaries broken down by U.S. and foreign operations.
9. Statement pursuant to the instructions to Item 8.A.4, regarding the
financial statements filed in registration statements for initial public
offerings of securities.
10. (a) Any additional exhibits you wish to file as part of the registration
statement or report, clearly marked to indicate their subject matter, and (b)
any document or part of a document incorporated by reference in this filing if
it is not otherwise required to be filed or is not a Commission filed document
incorporated in a Securities Act registration statement.
* * * * *
PART 260 - GENERAL RULES AND REGULATIONS, TRUST INDENTURE ACT OF 1939
51. The authority citation for Part 260 continues to read as follows:
Authority: 15 U.S.C. 77eee, 77ggg, 77nnn, 78sss, 78ll(d), 80b-3,
80b-4, and 80b-11.
51. Amend § 260.0-11 by removing in paragraph (b)(2) the words " Item 9
of Form 20-F (§ 249.220f of this chapter), management's discussion and analysis
of financial condition and results of operations," and adding, in their
place, the words " Item 5 of Form 20-F (§ 249.220f of this chapter),
"Operating and Financial Review and Prospects,""; and by removing
in paragraph (c)(3) the words "Item 9 of Form 20-F" and adding, in
their place, the words " Item 5 of Form 20-F".
By the Commission.
Jonathan G. Katz
Secretary
Dated: September 28, 1999
Footnotes
-[1]- 17 CFR 249.220f ("Form 20-F").
-[2]-15 U.S.C. §§ 78a et seq. (the
"Exchange Act").
-[3]- 17 CFR 210.3-19.
-[4]-17 CFR 210.3-20.
-[5]-17 CFR 229.402, 17 CFR 229.404, 17 CFR 229.512
and 17 CFR 229.601.
-[6]- 17 CFR 230.175, 17 CFR 230.434 and 17 CFR
230.463.
-[7]- See 17 CFR 239.31, 17 CFR 239.32, 17
CFR 239.33, 17 CFR 239.34, 17 CFR 239.36 and 17 CFR 239.18.
-[8]- 15 U.S.C. §§ 77a et seq. (the
"Securities Act").
-[9]- 17 CFR 240.3b-6, 17 CFR 240.13a-10 and 17 CFR
240.15d-10.
-[10]-17 CFR 260.0-11.
-[11]-17 CFR 210.3-01, 17 CFR 210.3-02, and 17 CFR
210.3-12.
-[12]- 17 CFR 228.310.
-[13]- 17 CFR 230.405.
-[14]- 17 CFR 240.3b-4.
-[15]- You can find the full text of the standards
endorsed by IOSCO on the IOSCO Internet Web site <http://www.iosco.org>.
-[16]-Securities Act Release No. 7637 (Feb. 2,
1999) [64 FR 6261] (the "Proposing Release").
-[17]- See Securities Act Rule 405, 17 CFR
230.405, and Exchange Act Rule 3b-4, 17 CFR 240.3b-4.
-[18]- Securities Act Release No. 6360 (Nov. 20,
1981) [46 FR 58511].
-[19]-As noted in the Proposing Release, we have
preserved the original wording of the international disclosure standards to the
maximum extent possible. We think this approach will promote consistent use of
the standards and will help foreign issuers recognize them as a national version
of the IOSCO standards accepted in other jurisdictions. Upon adoption, the
international disclosure standards become part of the U.S. federal securities
laws, as we noted in the Proposing Release. The standards have not been adopted
on a mutual recognition basis with any other jurisdiction, and there will be no
change in our current procedures and practices for reviewing and commenting on
filed documents.
-[20]- You may read and copy the comment letters
and the staff's summary of these letters in our Public Reference Room at 450
Fifth Street, N.W., Washington, D.C. 20549. Ask for File No. S7-3-99. You may
view the comment letters that were submitted by electronic mail at the
Commission's web site: www.sec.gov.
-[21]- See Proposing Release at n. 24.
-[22]- One commenter held the opposite view. See
the comment letter, dated June 5, 1999, submitted by the Federation of European
Stock Exchanges, which stated that "[t]he Federation strongly supports the
rejection of the alternative of creating a two-tiered system of disclosure
requirements. The confusion created by an alternative approach would endanger
the very essence of the proposals by IOSCO."
-[23]-Several commenters supported this view,
noting in one case that "while the format of the IOSCO disclosure standards
differs somewhat from the current format of Form 20-F, the overall level of
disclosure required is not significantly different." See Rogers & Wells
client memorandum, dated February 1999, submitted as a comment letter. Another
commenter expressed the view that "New Form 20-F is generally comparable in
quality to the disclosure requirements currently applicable to foreign private
issuers." See Cleary, Gottlieb, Steen & Hamilton comment letter, dated
May 18, 1999.
-[24]-In its comment letter dated June 15, 1999,
the Federation of European Stock Exchanges expressed its members' support for
the proposal and for efforts to create an "international passport"
that would reduce the burden of different regulatory requirements while
preserving investor protection and promoting transparency. In explaining its
support, the Federation noted that some of the requirements in amended Form 20-F
are equivalent to current and planned disclosure requirements for most European
countries.
-[25]- 17 CFR 230.408 and 17 CFR 240.12b-20.
-[26]- The Federation of European Stock Exchanges
specifically noted that maintaining alternative disclosure standards would be
inconsistent with the concept of regulatory simplification and the goals of the
amendments. See Federation of European Stock Exchanges letter dated June 15,
1999.
-[27]- Since many foreign issuers already are
public companies when they file their first registration statement in the United
States, we believe the 12-month rule will apply only in very limited
circumstances. Even in those circumstances, we will consider waiving the
requirement if the issuer represents adequately to the staff that no
jurisdiction outside the United States imposes the 12-month requirement on the
registrant's offering and that complying with the requirement is impracticable
or presents undue hardship. If we waive the 12-month requirement, issuers would
be instructed to comply with the 15-month age of financial statement requirement
of Item 8.A.
-[28]- See Section XI.A.2 of Securities Act Release
No. 7606A (Nov. 13, 1998) [63 FR 67174]. In the Securities Act reform release we
proposed accelerating the due date for Form 20-F annual reports to five months
after the close of the issuer's fiscal year and solicited comment on whether the
due date should be accelerated to four months.
-[29]- There also is no change in the
reconciliation requirement for interim information presented in selected
financial data.
-[30]-There are two parts to the foreign private
issuer definition. The first part is based on ownership of the issuer's
securities. The second part of the definition is based on whether (a) a majority
of the issuer's executive officers or directors are U.S. citizens or residents,
(b) over 50% of its assets are within the United States, or (c) its business is
administered principally in the United States. Any one of these three factors,
together with majority U.S. ownership, will mean the issuer fails to satisfy the
foreign private issuer definition.
-[31]-Forms F-6 and S-11 under the Securities Act
were revised to conform cross-references to Form 20-F. The changes to these
forms also are effective for forms first filed on or after September 30, 2000.
-[32]- 15 U.S.C. 77j(a)(3).
-[33]- 44 U.S.C. §§3501 et seq.
64 FR 6261
Last Reviewed or Updated: April 7, 2023
Other
64 FR 61962
