[Federal Register Volume 64, Number 26 (Tuesday, February 9, 1999)]
[Proposed Rules]
[Pages 6261-6288]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-2931]
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SECURITIES AND EXCHANGE COMMISSION
17 CFR Parts 210, 228, 229, 230, 239, 240, 249 and 260
[Release Nos. 33-7637; 34-41014; International Series Release No. 1182;
File No. S7-3-99]
RIN 3235-AH62
International Disclosure Standards
AGENCY: Securities and Exchange Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Securities and Exchange Commission (the ``Commission'') is
proposing to improve the comparability of information provided to
investors and securities markets by issuers offering or listing
securities in multiple markets. To achieve this goal, we are proposing
to revise our disclosure requirements for foreign private issuers to
conform to the international disclosure standards endorsed by the
International Organization of Securities Commissions in September 1998.
Under this proposal, the international disclosure standards would
replace most of the non-financial statement disclosure requirements of
Form 20-F, the basic disclosure document for foreign private issuers.
We would make conforming changes to 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 taking this opportunity to
propose changes in the definition of ``foreign private issuer'' to give
clearer guidance on how foreign companies should determine whether
their shareholders are U.S. residents.
DATES: You should send us your comments so that they arrive at the
Commission on or before April 12, 1999.
ADDRESSES: You should send three copies of your comments to Jonathan G.
Katz, Secretary, U.S. Securities and Exchange Commission, 450 Fifth
Street, N.W., Stop 6-9, Washington, D.C. 20549. You also may submit
your comments electronically to the following electronic mail address:
rule-comments@sec.gov. All comment letters should refer to File No. S7-
3-99; you should include this file number in the subject line if you
use electronic mail. Comment letters will be available for public
inspection and copying at our Public Reference Room, 450 Fifth Street,
N.W., Washington, D.C. 20549. We will post electronically submitted
comment letters on our Internet Web site (http://www.sec.gov).
FOR FURTHER INFORMATION CONTACT: Sandra Folsom Kinsey, Senior
International Counsel, or Rani Doyle, Staff Attorney, in the Office of
International Corporate Finance, Division of Corporation Finance at
(202) 942-2990.
SUPPLEMENTARY INFORMATION: We propose amendments to Form 20-F \1\ under
the Securities Exchange Act of 1934.\2\ As part of those amendments, we
propose to delete Rule 3-19 under Regulation S-X.\3\ We propose
amendments to Rule 3-20 under Regulation S-X,\4\ Items 402, 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-11 \7\ under 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 1939 \10\ to correct references to the
items in Form 20-F which would be revised in connection with the
amendments to Form 20-F. We propose amendments to Rules 3-01, 3-02 and
3-12 under Regulation S-X \11\ and to Item 310 of Regulation S-B \12\
to correct references to Rule 3-19. We also propose to revise the
definition of foreign private issuer in Securities Act Rule 405 \13\
and Exchange Act Rule 3b-4.\14\
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\1\ 17 CFR 239.220f (``Form 20-F'').
\2\ 15 U.S.C. Secs. 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 229.512 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, 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. Secs. 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 CER 230.405.
\14\ 17 CER 240.3b-4.
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I. Executive Summary
It is becoming more common for companies to increase their global
presence and lower their cost of capital by listing on foreign
securities markets and raising capital outside their home
[[Page 6262]]
country. When companies offer or list their securities outside their
home market, however, they often face a variety of different, and
sometimes conflicting, regulatory systems. The Commission has
recognized this problem, and many of our initiatives for foreign
issuers have had the goal of reducing barriers to cross-border
offerings and listings in the United States. We have long believed that
investors in the United States benefit when they have a wide range of
investment choices, and we have sought to increase their investment
opportunities in foreign companies while preserving the protections
they have come to expect under the federal securities laws.
The Commission, as a member of the International Organization of
Securities Commissions (referred to as IOSCO), also participates in a
number of international initiatives intended to make the world's
securities markets safer and more efficient for investors. In
particular, IOSCO has been working for years 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.
IOSCO recently 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 are necessary in their own
jurisdictions to accept disclosure documents prepared in accordance
with those standards.\15\ As a member of IOSCO, the Commission played
an active role in the development of these standards.
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\15\ You can find the full text of the standards endorsed by
IOSCO, as well as other IOSCO documents cited in this release, on
the IOSCO Internet Web site http://www.iosco.org>.
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In 1979, when the Commission adopted Form 20-F, the basic
disclosure document for foreign private issuers, we said that our
action ``represent[ed] an important step, but only a step, in the
harmonization of international disclosure standards.'' \16\ In our 1988
policy statement on the regulation of international securities markets,
we noted that ``[t]he ultimate goal should be the development of an
integrated international disclosure system.'' \17\ Today we are
proposing to take another significant step in that direction by
revising our existing foreign issuer integrated disclosure system to
incorporate fully IOSCO's international disclosure standards.
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\16\ Exchange Act Release No. 16371 (Nov. 29, 1979) [44 FR 70132
at 70133].
\17\ Securities Act Release No. 6807 (Nov. 14, 1988) [53 FR
46963 at 46965].
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We believe the international 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 as is called for by our
current requirements. The proposed revisions to Form 20-F in no way
decrease the amount or quality of information investors will receive.
Using the international disclosure standards, issuers would find it
easier to offer or list securities outside their home country by
preparing a core disclosure document that, with a minimum of national
tailoring, may be accepted in multiple jurisdictions. This disclosure
document would serve as an ``international passport'' to the world's
capital markets by reducing the barriers to cross-border offerings and
listings. Adopting this approach would provide a means for expanding
the investment opportunities available to U.S. investors, while still
ensuring that they receive a high level of information comparable to
that provided by U.S. companies.
The international disclosure standards would replace most, but not
all, of the current requirements of Form 20-F, the combined
registration and annual report form for foreign private issuers under
the Exchange Act. Foreign private issuers also would use the
international disclosure standards in preparing the registration forms
designated for their use under the Securities Act. Although the
international disclosure standards were drafted specifically for use
only for offerings and listings of equity securities for cash, we
propose to expand their scope, consistent with our existing foreign
issuer requirements and the current usage of Form 20-F, to cover all
types of registration statements regardless of the type of securities
or form of consideration, and to cover annual reports. Our proposal
would eliminate Rule 3-19 of Regulation S-X, which governs the
financial statements of foreign private issuers, since the requirements
of that rule are addressed in the international disclosure standards.
We also are proposing to revise the definition of ``foreign private
issuer'' found in the rules under the Securities Act and the Exchange
Act.\18\ Whether or not an issuer satisfies the foreign private issuer
definition determines its eligibility to use particular forms under the
Securities Act and the Exchange Act. Foreign private issuers also are
not subject to the proxy rules under Section 14 of the Exchange Act,
and their company insiders are not required to file reports of
beneficial ownership or comply with the short-swing trading rules under
Section 16 of the Exchange Act.\19\ The foreign private issuer
definition, which is the same under both Acts, is based in part on
whether a majority of the issuer's outstanding voting securities are
held of record by U.S. residents. Issuers may not be applying the
definition as intended, however, because of the increased prevalence of
offshore nominees and custodial accounts. For guidance in calculating
U.S. ownership, we are proposing to direct issuers to Exchange Act Rule
12g3-2(a), which requires issuers to look through the bank, broker-
dealer or other nominee holder to determine the residence of the
account holder. We also propose to require the issuer to take into
consideration the residence information reported by investors on
beneficial ownership reports that are provided to the issuer or filed
publicly, as well as information otherwise provided to the issuer. We
believe that these methods of calculation will give a better picture of
whether or not a company incorporated outside the United States is
entitled to the accommodations available to foreign private issuers.
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\18\ See Securities Act Rule 405, 17 CFR 230.405, and Exchange
Act Rule 3b-4, 17 CFR 240.3b-4.
\19\ See Exchange Act Rule 3a12-3, 17 CFR 240.3a12-3.
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II. Discussion
A. Background
The Commission historically has sought to balance the information
needs of investors with our awareness that the interest of the public
is served by opportunities to invest in a variety of securities,
including foreign securities.\20\ In our 1988 policy statement, we
noted that ``[t]he goal in addressing international disclosure and
registration problems should be to minimize regulatory impediments
without compromising investor protection.'' \21\ The globalization of
the securities markets and new technological developments have
challenged securities regulators around the world to adapt to the needs
of market participants while maintaining their current levels of
investor protection and preserving market integrity. Investors
increasingly are interested in investing in foreign companies, and
technological advances have made it easier for them to do so.
[[Page 6263]]
As these market forces have accelerated, the Commission periodically
has reexamined its approach to regulating the U.S. securities markets,
keeping in mind the fundamental need for investor protection.
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\20\ Securities Act Release No. 6360 (Nov. 20, 1981) [46 FR
58511].
\21\ Securities Act Release No. 6807 (Nov. 14, 1988) [53 FR
16965].
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Because of the 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. Our 1988 policy statement noted that ``all securities
regulators should work together diligently to create sound
international regulatory frameworks that will enhance the vitality of
capital markets.'' That approach has proven useful in a number of
instances in the past, and it is equally useful in the context of
disclosure requirements for cross-border offerings and listings.
Worldwide regulatory consensus on high level disclosure requirements
means that companies complying with those requirements will find open
doors to capital markets around the world. For this reason, we have
been actively involved in IOSCO's efforts to develop a set of high
quality international disclosure standards.
B. IOSCO Development of the International Disclosure Standards
IOSCO is an international, non-profit association of securities
regulatory organizations. It has approximately 160 ordinary, associate
and affiliate members and works on a variety of projects of interest to
securities regulators around the world. The Commission has been a
member of IOSCO for several years.\22\ IOSCO's two key committees are
the Technical Committee and the Emerging Markets Committee. The
Technical Committee is composed of 16 regulatory agencies that regulate
some of the world's largest, more developed and internationalized
securities markets; its objective is to review major regulatory issues
related to international securities and futures transactions and to
coordinate practical responses to these concerns. The Commission is a
member of this Committee.
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\22\ Other U.S. members of IOSCO include the Commodity Futures
Trading Commission and the North American Securities Administrators
Association as associate members and the National Association of
Securities Dealers--Regulation and the New York Stock Exchange as
affiliate members.
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In 1987, IOSCO's Technical Committee began a study of the then
emerging methods of offering securities on a multinational basis and
the problems associated with multiple listings. As a result of this
study, IOSCO issued a report in 1989 making a number of recommendations
to facilitate multinational capital raising. Among other things, the
report recommended that ``regulators be encouraged, where consistent
with their legal mandate and the goal of investor protection, to
facilitate the use of single disclosure documents, whether by
harmonization of standards, reciprocity or otherwise.'' \23\ Since
that time, IOSCO has sought to increase the efficiency of the capital
raising process for issuers that offer or list securities in more than
one jurisdiction. Although IOSCO has devoted much of its energies to an
ongoing project on accounting standards,\24\ it also has focused on the
non-financial statement disclosures in offering and listing documents,
such as the description of the issuer's business, its management and
the securities it plans to offer or list. Members of the IOSCO
Technical Committee first compared their existing national disclosure
requirements to identify areas of commonality.\25\ The next step was to
develop a consensus on high quality disclosure on a number of topics
and prepare standards that reflected that consensus. After consultation
with the Emerging Markets Committee, IOSCO's Technical Committee
published a formal consultation document relating to this project in
May 1998 for review by the IOSCO membership.
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\23\ International Equity Offers--Summary, International
Organization of Securities Commission, 8 (Sept. 1989).
\24\ In a separate project, IOSCO has agreed with the
International Accounting Standards Committee (``IASC'') that, upon
successful completion of a work program on a core set of
international accounting standards, IOSCO will consider endorsement
of those standards for use in cross-border offerings and listings.
In April 1996, the Commission issued a statement in support of the
efforts of IOSCO and the IASC and indicated that, If the IASC
successfully completes the agreed-upon work program and if the core
standards satisfy the criteria set forth in our statement, we will
consider accepting the core standards for use by foreign issuers in
cross-border securities offerings and listings in the United States.
IOSCO's assessment of the IASC core standards currently is underway.
\25\ Comparative Analysis of Disclosure Regimes, International
Organization of Securities Commissions (Sept. 1991).
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In September 1998, IOSCO endorsed the Technical Committee's
``Disclosure Standards to Facilitate Cross-Border Offerings and
Listings by Multinational Issuers'' and recommended that IOSCO members
take all appropriate steps in their home jurisdictions to accept
documents prepared in accordance with the standards.\26\ In adopting
the standards, IOSCO stated:
\26\ IOSCO actions are not binding on its members, and many
IOSCO members must take further action at the national level to
implement any IOSCO initiatives.
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Issuers will benefit directly from being able to prepare a
single non-financial statement disclosure document for capital
raising and listing in more than one jurisdiction at a time. At the
same time, investors will benefit from the comprehensive nature of
the required disclosures and the enhanced comparability of
information. These Standards represent an important step forward in
reducing the costs of cross-border capital raising without
sacrificing investor protection.\27\
\27\ Final Communique of the 23rd Annual Conference of the
International Organization of Securities Commissions (Sept. 18,
1998).
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IOSCO also noted that, although the standards were approved only in the
context of cross-border offerings by foreign issuers, they might
provide a point of reference for jurisdictions considering changes in
their standards for domestic issuers.\28\ The standards were not
intended to be part of a mutual recognition system, and IOSCO
specifically noted that disclosure documents prepared in compliance
with the standards would remain subject to host country review or
approval processes.
\28\ Securities regulatory authorities in several emerging
market jurisdictions have indicated that they expect to look to the
IOSCO standards for guidance in revising their requirements for
domestic issuers. For example, press reports indicate that a
governmental commission in Singapore recently recommended that
Singapore move to a disclosure-based regulatory system and suggested
that disclosure requirements for listed companies could be based on
the IOSCO standards. In addition, we understand that some European
Union countries are considering incorporating the IOSCO standards
into shelf registration or continuous disclosure systems.
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The international disclosure standards consist of ten core
disclosure items and a glossary of defined terms. The ten core items
are:
Item 1. Identity of Directors, Senior Management and Advisors.
Item 2. Offer Statistics and Expected Timetable.
Item 3. Key Information. This item includes requirements for
selected financial data, the reasons for the offer and the expected use
of proceeds, and information about risk factors.
Item 4. Information on the Company. This item includes requirements
for a description of the issuer's business and properties.
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.
Item 6. Directors, Senior Management and Employees. This item
includes requirements relating to compensation and shareholdings.
Item 7. Major Shareholders and Related Party Transactions.
Item 8. Financial Information. In addition to requirements relating
to the
[[Page 6264]]
presentation of financial statements, this item contains requirements
that correspond to current Rule 3-19 of Regulation S-X, as well as
requirements relating to legal proceedings.
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 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.
These core disclosure requirements, which are the subject of this
proposal, are contained in Part I of the international disclosure
standards. Part II of the standards contains a sample compilation of
national requirements that issuers will be expected to comply with in
certain jurisdictions. Several additional requirements under the U.S.
federal securities laws are referenced in Part II, and there would be
no change in those requirements.
C. Reasons for the Proposals
We are proposing to revise our disclosure standards for foreign
private issuers to incorporate the international disclosure standards
in their entirety. We are doing this for several reasons. We believe
that the increasing globalization of the securities markets makes it
important for securities regulators to work together to promote and
maintain high quality disclosure standards. The recent volatility in
securities markets around the world has highlighted the need for
increased transparency in the information that public companies make
available to the capital markets. IOSCO, with its broad membership and
common goal of investor protection, is well-situated to move forward in
this area, and its efforts are likely to receive international
support.\29\ Broad acceptance of the international disclosure standards
may raise the level of disclosure in some capital markets, particularly
if developing markets begin to modify their domestic disclosure
requirements to conform more closely to the standards.
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\29\ See note 28, id.
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We support international initiatives that raise the level of
information available to investors, facilitate the flow of capital and
reduce the regulatory burdens on foreign issuers, if they do so in a
manner that is consistent with our mandate to protect investors. We
believe the best way to promote the use of the international disclosure
standards is to incorporate them fully into our existing foreign issuer
integrated disclosure system.\30\ We do not believe that investor
protection would be jeopardized by using the international disclosure
standards because we expect no change in the quality of disclosure that
investors receive.
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\30\ We are proposing to preserve 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.
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We believe U.S. investors would benefit from this proposal in a
number of ways. The disclosure documents they receive from foreign
private issuers would be based on updated disclosure standards that
more closely reflect current international practice. Investors in the
United States would benefit from increased investment opportunities if
the proposal reduces regulatory burdens on foreign issuers and results
in an increase in the number of foreign companies that offer or list
securities in the U.S. capital markets. If the IOSCO standards are
broadly accepted (particularly if they prompt changes in domestic
disclosure requirements in developing markets), they would raise the
level of disclosure available to U.S. investors regardless of whether
they invest in foreign companies in the U.S. securities markets or in
foreign markets.
We believe that foreign issuers will benefit from being able to
prepare one core disclosure document that may be accepted in multiple
jurisdictions. This should reduce the cost of capital raising for
issuers and allow them to make decisions about where to raise capital
or list their securities with less concern about the costs and burdens
of complying with multiple regulatory systems.
We request comment on whether our assumptions about the benefits of
this proposal are valid. Are the anticipated benefits to U.S. investors
likely to be realized? Are the proposals likely to reduce the costs
that foreign issuers incur in satisfying the regulatory requirements of
different jurisdictions? Will foreign issuers realize significant
efficiencies by preparing a single core disclosure document even though
some additional disclosures may be required to satisfy specific
national requirements? Will U.S. issuers and their access to capital be
affected by these changes? How will U.S. small businesses be affected?
We believe the international disclosure standards are of comparable
quality and will produce disclosure of at least the same high level of
information as our existing requirements. In some cases, the
international disclosure standards require more disclosure than our
current Form 20-F. For example, they require disclosure of beneficial
ownership at a five percent level, rather than the 10 percent level
currently required by Form 20-F. To the extent the international
disclosure standards differ from our current disclosure requirements,
we believe they do not compromise investor protection, and therefore
would fulfill the requirement in Section 7(a) of the Securities Act
that the information required be ``fully adequate for the protection of
investors.'' We also believe that incorporating the international
disclosure standards into Form 20-F will bring our foreign issuer
disclosure requirements closer in line with the best practices from
major securities markets around the world. For example, the five
percent level for disclosing beneficial ownership reflects an
international consensus arrived at through discussions with foreign
securities regulators. By revising Form 20-F to incorporate the
international disclosure standards, we at the same time conformed our
beneficial ownership disclosure requirement for foreign issuers with
the current requirement for U.S. companies.
We request comment on whether the proposed amendments to Form 20-F,
taken as a whole, are comparable in quality to the current disclosure
requirements for foreign private issuers. Specifically, if Form 20-F
and the Securities Act registration forms for foreign private issuers
are amended as proposed, are foreign issuers likely to prepare
registration statements and reports that provide at least as high a
level of disclosure as those produced under the current versions of
those forms? Will the information be sufficiently comparable to that
required of U.S. companies to enable investors and other market
participants to assess foreign and U.S. companies on an equal basis?
Are there specific differences between the current disclosure
requirements and the proposed requirements that either would impose
undue burdens on foreign registrants or would deprive investors of
important information? If so, which differences would have that effect?
The international disclosure standards were intended to be used by
issuers seeking to register or list their securities in multiple
jurisdictions. By incorporating the text of the international
disclosure standards fully into Form 20-F, foreign issuers would
[[Page 6265]]
be required to comply with the standards even if the United States is
the only jurisdiction outside their home country where they register or
list their securities. We do not believe, however, that this approach
will burden those registrants unduly, because the proposed standards
generally are similar to our current disclosure requirements for
foreign private issuers.
We considered the alternative of creating a two-tiered system of
disclosure requirements that would preserve the current foreign issuer
integrated disclosure system, but offer foreign issuers the option of
complying with the international disclosure standards if they are
seeking to access more than one securities market. Introducing a two-
tiered system would mean foreign issuers would have to ``elect'' which
category of the system they fall into based on whether they plan to
access more than one foreign jurisdiction; these issuers might
encounter delays if their plans changed in the future. We also believe
that our proposal promotes regulatory simplification and that use of
the standards will be more widespread if they become an integral part
of our disclosure system for foreign issuers.
We request comment, however, on whether a more limited adoption of
the standards is preferable. Will compliance with the requirements of
revised Form 20-F be unduly burdensome to foreign issuers that do not
offer or list their securities in multiple jurisdictions? If so, would
this burden be offset in whole or in part by the benefits of a single,
uniform disclosure system for foreign issuers in the United States and
by the goal of promoting international acceptance of high quality
disclosure standards?
The proposed changes to our disclosure requirements apply to
foreign private issuers and would not affect our requirements for U.S.
issuers. They also would not affect the requirements that apply when an
issuer prepares financial statements on the basis of accounting
principles other than U.S. generally accepted accounting principles.
Thus, this proposal would not affect the financial statement
reconciliation requirements in Items 17 and 18 of Form 20-F.
Although we propose to change our rules and forms to reflect the
wording of the standards endorsed by IOSCO in September 1998, if these
proposals are adopted the standards would become part of the U.S.
federal securities laws and would be interpreted and enforced in the
same manner as other Commission rules and forms. We do not intend for
this proposal to alter any individual's or entity's liabilities under
the federal securities laws or change the procedures for offering or
listing securities in the United States. This proposal also would not
change our current procedures and practices for reviewing and
commenting on filed documents. We request comment on whether the
proposals require clarification on these points.
D. Revisions to Form 20-F
Form 20-F is the primary source of the disclosure requirements for
foreign private issuers under the federal securities laws. It 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. Unlike
many Commission forms, the disclosure requirements for Form 20-F are
set forth in the form itself, rather than referencing the central body
of disclosure requirements in Regulation S-K. The Securities Act
registration forms designated for use by foreign private issuers
primarily refer to the items of Form 20-F, although in some cases they
refer to items of Regulation S-K.
We are proposing to replace current Items 1-14 of Form 20-F
(excluding Item 9A) with ten new items that track the wording of the
IOSCO disclosure standards.\31\ Existing Item 9A (Quantitative and
Qualitative Disclosures about Market Risk) of Form 20-F would be
renumbered and retained. Disclosure about market risk is an important
part of our disclosure requirements, but it is not an area where there
currently is international consensus, and so was not addressed in the
international disclosure standards. Existing Item 15 (Defaults Upon
Senior Securities) and Item 16 (Changes in Securities and Changes in
Security for Registered Securities) of Form 20-F also would be
renumbered and retained, and the wording would be revised to reflect
``plain English'' drafting principles. These two items apply only when
Form 20-F is used as an annual report form, and would continue to apply
only to annual reports under this proposal.
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\31\ Although the terminology of the international disclosure
standards reflects the international backgrounds of their drafters,
we believe the meaning of unfamiliar terms will be clear to readers.
For example, the standards use the term ``financials year'' to mean
the same thing as the term ``fiscal year'' under our rules and
regulations. The glossary of defined terms will assist readers, and
in some cases we have added instructions to clarify our
interpretation of the standards.
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Existing Items 17 and 18 of Form 20-F would be retained but would
not be 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. Currently, the text of Item 18 is largely the same as the
text of Item 17 with few, but important, differences. We propose to
revise Item 18 to eliminate the redundant text and highlight the
differences. These revisions are intended only to simplify the way the
Item 18 requirements are presented and are not intended to change the
substantive requirements of that Item.
Although the international disclosure standards were intended to
cover only equity securities, we propose to adapt them for use with
securities other than equity. The primary modification we propose for
this purpose is to add a supplemental item to Form 20-F containing the
``description of securities'' requirements for securities other than
equity, which currently are not included in the standards.\32\ We
propose to simplify existing Item 19 (Financial Statements and
Exhibits) by deleting the requirement for a separate list of the
financial statements included with the filing. We are proposing to
revise the General Instructions to Form 20-F to reflect plain English
drafting principles and to expand the instructions to include the
defined terms used in the IOSCO standards.\33\ We also are proposing to
revise the ``Instructions As To Exhibits'' to conform the exhibit
requirements for Form 20-F with the exhibit requirements for
registration statements filed by U.S. issuers under the Exchange Act
and to reflect plain English drafting principles. For example, we are
proposing to add exhibit requirements
[[Page 6266]]
for indentures, voting trust agreements, and statements describing how
earnings per share and ratios of earnings to fixed charges were
calculated. We also propose to add expanded requirements for management
compensation plans and an exhibit reference for any additional exhibits
the issuer wishes to file and any documents not otherwise filed with
the Commission that are incorporated by reference. All of these exhibit
requirements currently are required for domestic issuers filing a
registration statement on Form 10 or an annual report on Form 10-K. We
request comment on whether these additional exhibit requirements would
be unduly burdensome to foreign issuers.
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\32\ See proposed Item 12 of Form 20-F. The requirements of this
new item are equivalent to the comparable requirements currently
found in Item 14 of Form 20-F and Item 202 of Regulation S-K.
Securities other than equity also would be subject to the other
disclosure requirements of Form 20-F, as applicable.
\33\ To the very limited extent that a defined term in Form 20-F
also is defined under the Exchange Act or the Securities Act,
foreign private issuers would look to the definition in revised Form
20-F. The term ``affiliate'' is defined in Securities Act Rule 405
and in Exchange Act Rule 12b-2, as well as in the international
disclosure standards, but there is no substantive difference in the
definitions. The term ``equity security'' is defined in Securities
Act Rule 405 and Exchange Act Rule 3a11-1, while the term ``equity
securities'' is defined in the international disclosure standards.
These definitions do not conflict, since the definition in the
international disclosure standards primarily serves to narrow the
scope of those standards. Under our proposed amendments to Form 20-
F, the standards will apply to all types of securities, so the
limitations in the international disclosure standards definition
generally will not be relevant.
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We are not proposing any changes to ``Appendix A to Item 2(b)--Oil
and Gas,'' other than to correct item references, because we are
considering whether to revise our extractive industry disclosure
requirements for foreign registrants. We also are not proposing any
changes to the existing Industry Guides. Companies in various
industries such as banking (Guide 3) and insurance (Guide 6) must
continue to comply with the applicable Industry Guide.
E. Revisions to Securities Act Registration Forms
Forms F-1, F-2, F-3 and F-4, the Securities Act registration forms
designated for use by foreign private issuers, currently cross-
reference the disclosure requirements of Form 20-F and, to a lesser
extent, Regulation S-K. We are proposing to revise the cross-references
in these Securities Act registration forms so that they will refer to
revised Form 20-F wherever possible. Some items in these Securities Act
registration forms will continue to refer to Regulation S-K; these
items would be renumbered, but otherwise would be unchanged.
There are certain offering-related disclosure requirements in the
international disclosure standards that normally would not be found in
an Exchange Act registration statement or Form 20-F annual report.
Examples include proposed Items 2 (Offer Statistics and Expected
Timetable) and 9.B. (Plan of Distribution). Under our current
disclosure requirements, these topics are covered in Regulation S-K. We
considered inserting the text of these requirements in Forms F-1, F-2,
F-3 and F-4, but concluded that this would be inconsistent with the way
Securities Act registration forms have developed under our integrated
disclosure system, as well as with the approach we recently proposed in
the Securities Act Reform Release.\34\ We also considered inserting
these requirements in Regulation S-K, but believed that it was
preferable to keep the core disclosure items together as a unit in Form
20-F, thereby preserving that form as the central reference point for
foreign issuers' disclosure requirements. This structure is convenient
for foreign private issuers and is familiar to those issuers who
currently use Form 20-F and the Securities Act registration forms. The
structure also will help prospective registrants recognize the Form 20-
F requirements as the U.S. version of the international disclosure
standards that are accepted in other jurisdictions. We are proposing,
therefore, to include these offering-related items in Form 20-F with
instructions that they apply only if referenced by a Securities Act
registration statement and not if the form is being used solely as an
Exchange Act registration statement or an annual report. We request
comment on this proposed organization.
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\34\ Securities Act Release No. 7606A (Nov. 13, 1998) [63 FR
67174]. The Securities Act Reform Release proposes sweeping changes
to the offering registration process. If adopted, those proposals
would change the registration forms used by foreign private issuers,
but would not affect the substantive disclosure requirements
proposed in this release.
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We are proposing to amend Form F-6, the form used for registering
American depositary shares, so the requirement for a description of the
American depositary shares will cross-reference Form 20-F rather than
Regulation S-K. We also are proposing to amend Form S-11, the form used
by certain real estate companies, to correct cross-references to Form
20-F.
F. Revisions to Regulation S-X
Rule 3-19 of Regulation S-X currently specifies the content, age
and other requirements for financial statements applicable to filings
by foreign private issuers. We are proposing to eliminate Rule 3-19
because the requirements of the rule would be addressed in new Item 8
of Form 20-F. We believe the requirements in new Item 8 are clearer and
more understandable than Rule 3-19.
The substantive requirements currently contained in Rule 3-19
essentially would be unchanged in Item 8, except for the provisions of
the rule that relate to the age of financial statements. Under Rule 3-
19, the financial statements and U.S. GAAP information must be as of a
date within ten months of the effective date of the registration
statement, and the audited financial statements for the most recent
completed fiscal year (including U.S. GAAP information) must be
included in registration statements declared effective more than six
months after fiscal year-end. Under this rule it is possible, depending
on the timing, for a foreign private issuer's registration statement to
be declared effective with audited financial statements as old as 18
months, with the most recent interim financial statements as old as 10
months.
Proposed Item 8 of Form 20-F would require that audited financial
statements be no older than 15 months at ``the time of the offering or
listing,'' which generally means the effective date of the registration
statement. 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 would not apply to foreign issuers
offering securities in the United States for the first time, however,
if they already are public in their home country.\35\ Proposed 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), which may be unaudited, covering at
least the first six months of the issuer's fiscal year.
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\35\ 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 would apply only in very
limited circumstances. Even in those circumstances, we would
consider waiving the requirement if the issuer can represent
adequately to us that no jurisdiction outside the United States
imposes the 12-month requirement and that complying with the
requirement is impracticable or presents undue hardship.
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With respect to the 15-month audit requirement, it became apparent
in the course of developing the international disclosure standards that
many securities regulators require audited financial statements used in
connection with offerings or listings to be more current than Rule 3-19
requires. Because an issuer would have to comply with stricter home
country requirements, there are likely to be limited circumstances in
which a foreign issuer from these countries would need to take
advantage of the extended time permitted under Rule 3-19.\36\ Issuers
would be able to avoid a
[[Page 6267]]
``blackout period'' and satisfy new Item 8, however, by preparing
audited financial statements as of a more current date than the close
of their prior fiscal year or by filing their annual financial
statements prior to the six-month deadline permitted under the Exchange
Act. Although we do not believe that, as a practical matter, reducing
the permitted age of financial statements will unduly burden foreign
issuers, we request comment on whether that is the case. In particular,
we would be interested in knowing how often issuers actually take
advantage of the extended time periods permitted under Rule 3-19, and
how likely it is that offerings or listings would be delayed or
precluded by the requirements of new Item 8? To the extent the
requirements of new Item 8 impose a burden on some issuers, is this
burden likely to be offset by the benefits to most issuers of a clearer
rule, a more internationally accepted standard and the availability to
investors of more current financial information? Will U.S. investors in
foreign securities be affected by these changes?
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\36\ The effect would be to leave a ``blackout period'' starting
three months after the close of an issuer's fiscal year during which
its audited financial statements for the past fiscal year will no
longer satisfy the Item 8 requirements and its audited financial
statements for the most recent completed fiscal year would not yet
be required to be filed on Form 20-F. The maximum extent of this
blackout period would be three months, although under the Securities
Act Reform Release, we have proposed shortening the due date for
annual reports on Form 20-F from six months to five months after the
close of the issuer's fiscal year. If this proposal in the
Securities Act Reform Release is adopted, this would have the effect
of limiting the blackout period to two months.
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By incorporating the international disclosure standards into Form
20-F, we are expanding their scope to cover all types of securities
rather than just equity securities, because this is consistent with the
current requirements of Form 20-F. We request comment on whether the
age of financial statements provisions of new Item 8 should be
different for securities other than common equity. For example, should
the permitted age of financial statements be extended for registration
statements relating to preferred stock, investment grade debt and/or
non-investment grade debt or preferred securities, to reflect the time
period currently permitted under Rule 3-19? We also request comment on
whether the permitted age of financial statements should be different
for certain types of offerings such as rights offerings, dividend or
interest reinvestment plans, and convertible securities and warrants,
as is currently the case under Rule 3-19(e)? If so, which securities or
which types of offerings should be covered by the extended time
periods? Would the advantages of having different age of financial
statements requirements for securities other than common equity (or for
specified types of offerings) outweigh the added complexity?
G. ``Foreign Private Issuer'' Definition
We are proposing to amend Rule 405 under the Securities Act and
Rule 3b-4 under the Exchange Act, which contain the definition of
``foreign private issuer.\37\ The foreign private issuer definition
currently includes a test of whether more than 50 percent of an
issuer's outstanding voting securities are held of record, either
directly or through voting trust certificates or depositary receipts,
by residents of the United States.\38\ We often are asked by issuers
whether they may or must take into consideration the residency of a
beneficial owner if they know that such owner's residency differs from
that of the record owner.\39\ We propose to clarify this issue by
basing the ownership test on the method of calculation used in Rule
12g3-2(a) under the Exchange Act. That rule 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. If a foreign issuer's
securities trade in the U.S. markets in the form of American Depositary
Receipts, or ADRs, we will presume that shares deposited in the ADR
program are held solely by U.S. residents.\40\ We also propose to
require issuers to take into account information regarding U.S.
ownership derived from beneficial ownership reports that are provided
to the issuer or filed publicly and information that otherwise is
provided to the issuer. We believe this approach takes into account the
fact that securities, particularly securities of foreign issuers,
increasingly are likely to be held by U.S. residents through offshore
nominee accounts. These changes to the ``foreign private issuer''
definition would give a better picture of whether a company
incorporated outside the United States is, in fact, the type of entity
for whom the special rules and forms for foreign private issuers were
intended.
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\37\ Foreign private issuers have been granted various
accommodations under the federal securities laws, and the Commission
historically has chosen not to extend those accommodations to
foreign issuers whose contacts with the U.S. make them ``essentially
U.S. issuer[s].'' The Commission has recognized that there is an
important public interest in this latter group of issuers, and has
required them to comply with the same rules and regulations as U.S.-
incorporated issuers. See Securities Act Release No. 6433 (Oct. 28,
1982) [47 FR 50292]. The Commission was aware, however, that a
foreign-incorporated issuer's securities could migrate to the U.S.,
bringing its U.S. shareholder base over the 50% level. The second
part of the foreign private issuer definition is intended to
distinguish these issuers from other foreign issuers that also have
over 50% U.S. ownership but are ``essentially U.S. issuer[s].'' See
note 38, infra.
\38\ There are two parts to the 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.
\39\ At least one court has held that the reference to record
ownership in Rule 3b-4 must be read literally, on the theory that
when the Commission means beneficial ownership it knows how to say
it. See Thouret v. Hudner, 1996 U.S. District LEXIS 981; Fed. Sec.
L. Rep. (CCH) para. 99,037 (S.D.N.Y. 1996).
\40\ This presumption is consistent with our proposed rules for
cross-border rights and exchange offers. Securities Act Release No.
7611 (Nov. 13, 1998) [63 FR 69136]. As was the case in that
proposal, if the issuer receives information to the contrary from
the depositary, it may rely on that information in calculating the
number of shares held by U.S. residents for purposes of the
``foreign private issuer'' definition.
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We request comment on whether referencing Rule 12g3-2(a) in the
foreign private issuer definition is a workable approach. Should the
required inquiry be limited to U.S. brokers, dealers, banks and
nominees or their affiliates? Should we apply the automatic presumption
that ADR holders are U.S. residents only to unsponsored ADR programs,
because in the case of a sponsored ADR program the issuer presumably
could obtain current U.S. ownership information from the ADR depositary
bank? Is too great a burden imposed on issuers by requiring them to
take into account information on U.S. beneficial ownership that is
available to them from reports of beneficial ownership and that
otherwise is available to them?
III. General Request for Comments
If you would like to submit written comments on the proposals,
suggest additional changes or submit comments on other matters that
might have an impact on the proposals, we encourage you to do so.
Besides the specific questions we asked in this release, we also
solicit comments on the usefulness of the proposals to securityholders,
foreign private issuers and the marketplace at large. You may comment
on portions of the release or respond to selected questions without
replying to all the questions raised in the release.
Please send three copies of your comments to Jonathan G. Katz,
Secretary, Securities and Exchange Commission, 450 Fifth Street, N.W.,
Washington, D.C. 20549. You also may
[[Page 6268]]
submit your comments electronically at the following electronic mail
address: rule-comments@sec.gov. All comment letters should refer to
File No. S7-3-99; this file number should be included in the subject
line if electronic mail is used. Comment letters can be inspected and
copied in the public reference room at 450 Fifth Street, N.W.,
Washington, D.C. We will post electronically submitted comments on our
Internet Web site http://www.sec.gov>.
IV. Cost-Benefit Analysis
The proposed new rules and amendments update and simplify the
disclosure requirements for foreign private issuers. We believe the
proposal will make it easier for foreign private issuers to raise
capital or list their securities in multiple jurisdictions and that
U.S. investors will benefit if foreign issuers find it easier to access
the U.S. securities markets. In this section, we examine the benefits
and costs of the proposed revisions, focusing on the groups that might
be affected. We request that commenters provide their analysis and
supporting information on the benefits and costs of the proposals.
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 proposed amendments to Form 20-F is
to facilitate the use of one disclosure document by issuers seeking to
raise capital or list securities in multiple jurisdictions. The
proposed amendments are intended to remove regulatory barriers and
reduce the registration requirements of cross-border offerings and
listings. We expect the amendments to reduce the costs and burdens of
complying with regulatory requirements in more than one jurisdiction,
because 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 will be required to satisfy specific national requirements,
issuers will benefit from greater uniformity in the requirements for
core disclosure topics.
We believe U.S. investors will benefit because the amendments to
Form 20-F will update the disclosure requirements and bring them more
in line with current international disclosure requirements. Investors
in the United States also will benefit from increased access to foreign
investments if foreign issuers find it easier to offer or list
securities in the United States. Any increase in foreign listings may
increase the competition for capital in the United States, which could
affect both U.S. and foreign issuers.
Foreign issuers should benefit from the ability to access more than
one securities market using essentially the same basic disclosure
document. In a few cases the amendments to Form 20-F may be more
burdensome for foreign issuers than the current Form 20-F requirements
because they impose a higher standard of disclosure or require
additional information. In those cases, we do not believe that a
foreign issuer will incur substantial additional costs in complying
with these requirements, since they represent requirements that the
issuer would expect to encounter in accessing other major securities
markets or in its home jurisdiction.
The proposed amendments to the definition of ``foreign private
issuer'', which require the issuer to look beyond record ownership in
determining the U.S. ownership of its securities, should not impose
significant additional burdens on foreign issuers. The concept of
looking beyond record ownership is familiar to foreign issuers, and the
proposed amendments provide clear guidance on how issuers should
determine U.S. ownership.
For purposes of the Small Business Regulatory Enforcement Fairness
Act of 1996 (``SBREFA''),\41\ a rule is ``major'' if it has resulted,
or is likely to result in:
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\41\ Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996).
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An annual effect on the economy of $100 million or more;
A major increase in costs or prices for consumers or
individual industries; or
Significant adverse effects on competition, investment or
innovation.
We request information on the potential impact of the proposed
rules and amendments on the economy on an annual basis. Commenters
should provide empirical data on: (i) The annual effect on the economy;
(ii) any increase in costs or prices for consumers or individual
industries; and (iii) any effect on competition, investment or
innovation.
Section 23(a) of the Exchange Act \42\ requires us, in adopting
rules under the Exchange Act, to consider the impact that rules would
have on competition. We cannot adopt any rule that would impose a
burden on competition not necessary or appropriate in the public
interest. Section 3(f) of the Exchange Act \43\ requires the
Commission, when engaged in rulemaking, to consider or determine
whether the action is necessary or appropriate in the public interest,
and also to consider, in addition to the protection of investors,
whether the action would promote efficiency, competition and capital
formation. We seek information on the impact of increased competition
for capital on domestic companies as a result of an increase in
securities offered into the United States by foreign companies. Would
capital costs increase for domestic companies? If so, to what extent
would the benefit to U.S investors offset the increase in these capital
costs? We request comment on whether the proposals, if adopted, would
have an adverse effect on competition or would impose a burden on
competition that is neither necessary nor appropriate in furthering the
purposes of the Exchange Act.
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\42\ 15 U.S.C. Sec. 78w(a)(2).
\43\ 15 U.S.C. Sec. 78c(f).
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V. Regulatory Flexibility Act Certification
Pursuant to the Regulatory Flexibility Act (15 U.S.C. 605(b)), the
Chairman of the Commission has certified that the proposed revisions to
rules and forms will not have a significant impact on a substantial
number of small entities. We encourage written comments on the
Certification. Commenters are asked to describe the nature of any
impact on small entities and provide empirical data to support the
extent of the impact. For your information, a copy of the certification
is attached at Appendix A.
VI. Paperwork Reduction Act
The proposed amendments affect Form 20-F, which contains
``collection of information requirements'' within the meaning of the
Paperwork Reduction Act of 1995.\44\ The title for the collection of
information is ``Form 20-F.'' The OMB control number is 3235-0288. The
Commission has submitted proposed revisions to those rules and forms to
the Office of Management and Budget (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 proposed forms and regulations set forth the disclosures that the
Commission would require foreign private issuers to make to the public
about themselves and their securities offerings. The proposed
amendments would update and simplify the Commission's disclosure
requirements for foreign private issuers. The substantive requirements
of the forms
[[Page 6269]]
would remain largely the same, but the requirements would be presented
in a form that reflects an international regulatory consensus, and thus
should be more familiar to foreign issuers. The information is needed
so that prospective investors may make informed investment decisions
both in registered offerings and in secondary market transactions of
registered securities. We estimate that 600 revised Forms 20-F will be
filed each year based on our current experience with Form 20-F and our
expectation that more foreign private issuers will file the revised
form. Our experience also indicates that in subsequent years the number
will increase. We estimate the current annual burden of preparing a
Form 20-F to be 1,991 hours per filing. From this we estimate that the
expected annual burden to a registrant of preparing a Form 20-F as
proposed would not exceed 1,995 hours per filing. In estimating the
burden associated with the proposed Form 20-F, we considered that,
generally, most foreign private issuers currently either disclose or
collect the data underlying the information that would be required by
the proposed Form. We solicit comment on the accuracy of our estimate.
The information collection requirements imposed by the forms and
regulations would be mandatory to the extent that companies are
publicly owned and either offer securities to the public, register
under the Exchange Act or file annual reports. There would be no
mandatory retention period for the information disclosed, and the
information gathered would be made publicly available unless granted
confidential treatment.
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\44\ 44 U.S.C. 3501 et. seq.
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Pursuant to 44 U.S.C. 3506(2)(B), we solicit comments to:
(i) Evaluate whether the proposed collection of information is
necessary for the proper performance functions of the agency, including
whether the information will have practical utility;
(ii) Evaluate the accuracy of the agency's estimate of the burden
of the proposed collection of information;
(iii) Enhance the quality, utility, and clarity of the information
to be collected; and
(iv) Minimize the burden of collection of information on foreign
private issuers, including through the use of automated collection
techniques or other forms of information technology.
Persons wishing to submit comments on the collection of information
requirements should direct them to the following persons: Desk Officer
for the Securities and Exchange Commission, Office of Information and
Regulatory Affairs, Office of Management and Budget, Room 3208, New
Executive Office Building, Washington, DC 20503; and Jonathan G. Katz,
Secretary, Securities and Exchange Commission, 450 Fifth Street, NW.,
Washington, DC 20549, with reference to File Number S7-3-99. OMB is
required to make a decision concerning the collections of information
between 30 and 60 days after publication, so a comment to OMB is best
assured of having its full effect if OMB receives it within 30 days of
publication.
VII. Statutory Basis and Text of Proposed Amendments
The proposed amendments to the Commission's existing rules and
forms are being proposed 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 Proposed Amendments
In accordance with the foregoing, the Securities and Exchange
Commission proposes to amend Title 17, chapter II of the Code of
Federal Regulations as follows:
PART 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 Sec. 210.3-19.
3. Amend Sec. 210.3-20 in the last sentence of paragraph (d) by
removing the words ``Items 17(c)(2) or 18(c)(2) of'' and add, in their
place, the words ``Item 17(c)(2) of''.
4. By removing in 17 CFR Part 210 the words ``Sec. 210.3-19'' and
adding, in their place, the words ``Item 8.A of Form 20-F (Sec. 249.220
of this chapter)'' in the following places:
a. Section 210.3-01(h); and
b. Section 210.3-02(d).
5. Amend Sec. 210.3-12 in paragraph (f) by removing the words
``specified in Sec. 210.3-19. Financial statements of a foreign
business which are furnished pursuant to Secs. 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 Sec. 210.3-19.'' and add, in their
place, the words ``specified in Item 8.A of Form 20-F (Sec. 249.220f of
this chapter). Financial statements of a foreign business which are
furnished pursuant to Secs. 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 Sec. 228.310 by removing
the words ``Articles 3-19 and 3-20 (17 CFR 210.3-19 and 210.3-20)'' and
add, 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)''.
[[Page 6270]]
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 Sec. 229.402(a)(1)(ii) by removing the words ``Items 11
and 12 of Form 20-F [17 CFR 249.220f]'' and add, in their place, the
words ``Items 6.B. and 6.E.2. of Form 20-F (17 CFR 249.220f)''.
10. Amend Sec. 229.512 in the first sentence of paragraph (a)(4) by
removing the words ``Sec. 210.3-19 of this chapter'' and add, in their
place, the words ``Item 8.A. of Form 20-F (17 CFR 249.220f)''.
11. Amend Sec. 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 (Sec. 249.220f of this chapter)''.
PART 230--GENERAL RULES AND REGULATIONS, SECURITIES ACT OF 1933
12. The authority citation for part 230 continues 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.
* * * * *
13. Amend Sec. 230.175 by removing in paragraph (b)(2)(i) the words
``or Item 9 of Form 20-F (Sec. 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 (Sec. 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''.
14. By amending Sec. 230.405 by revising the definition of
``foreign private issuer'' to read as follows:
Sec. 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 (Sec. 240.12g3-2(a) of this chapter);
B. Unless information provided by the depositary demonstrates
otherwise, count holders of American Depositary Receipts as U.S.
holders of the underlying securities; and
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.
* * * * *
15. Amend Sec. 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 (Sec. 239.13 or Sec. 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 (Sec. 239.13 or Sec. 239.33 of this chapter)''.
Sec. 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 (Sec. 229.202 of this chapter) or by Items 9, 10 and 12
of Form 20-F (Sec. 249.220f of this chapter) as applicable, or a fair
and accurate summary thereof; and
* * * * *
16. Amend Sec. 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
17. 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.
* * * * *
18. Amend General Instruction E. to Form S-11 (referenced in
Sec. 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.
19. Amend Form F-1 (referenced in Sec. 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''.
20. Amend Form F-1 (referenced in Sec. 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
[[Page 6271]]
general character of the business done and intended to be done, the
Selected Financial Data (Item 8 of Form 20-F (Sec. 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
(Sec. 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.
21. Amend Form F-2 (referenced in Sec. 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
(Sec. 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.
* * * * *
22. Amend Form F-2 (referenced in Sec. 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, 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''; 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 (Sec. 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 (Sec. 249.220f of this
chapter)''.
23. Amend Form F-3 (referenced in Sec. 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
(Sec. 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.
* * * * *
24. Amend Form F-4 (referenced in Sec. 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).
25. Amend Form F-4 (referenced in Sec. 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).
26. Amend Item 12(b)(3)(iii) of Form F-4 (referenced in
Sec. 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''.
27. Amend Item 14(d) of Form F-4 (referenced in Sec. 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''.
28. Amend Form F-4 (referenced in Sec. 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);
[[Page 6272]]
c. Item 14(f); and
d. Item 17(b)(3).
29. Amend Form F-4 (referenced in Sec. 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).
30. Amend Form F-4 (referenced in Sec. 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).
31. Amend Item 18(a)(7)(i) of Form F-4 (referenced in Sec. 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''.
32. Amend Item 19(a)(7)(i) of Form F-4 (referenced in Sec. 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''.
33. Amend Form F-4 (referenced in Sec. 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).
34. Amend Form F-4 (referenced in Sec. 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).
35. Amend Form F-4 (referenced in Sec. 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).
36. Amend Item 3 of Form F-4 (referenced in Sec. 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''.
37. Amend Item 4(a)(3) of Form F-4 (referenced in Sec. 239.34) by
removing the words ``Item 202 of Regulation S-K (Sec. 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''.
38. Amend Item 7(a) of Form F-4 (referenced in Sec. 239.34) by
removing the words ``Item 507 of Regulation S-K (Sec. 229.507 of this
chapter)'' and adding, in their place, the words ``Item 9.D. of Form
20-F (Sec. 249.220f of this chapter)''.
39. Amend Item 8 of Form F-4 (referenced in Sec. 239.34) by
removing the words ``Item 509 of Regulation S-K (Sec. 229.509 of this
chapter)'' and adding, in their place, the words ``Item 7.C. of Form
20-F (Sec. 249.220f of this chapter)''.
40. Amend Item 12 of Form F-4 (referenced in Sec. 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''.
41. Amend Item 14 of Form F-4 (referenced in Sec. 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.
42. Revise Item 1 of Form F-6 (referenced in Sec. 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
(Sec. 249.220f of this chapter).
* * * * *
PART 240--GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF
1934
43. 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.
* * * * *
44. By amending Sec. 240.3b-4 by revising the section heading and
paragraph (c) to read as follows:
Sec. 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.
[[Page 6273]]
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 Exchange Act (Sec. 240.12g3-2(a));
B. Unless information provided by the depositary demonstrates
otherwise, count holders of American Depositary Receipts as U.S.
holders of the underlying securities; and
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.
45. Amend Sec. 240.3b-6 by removing in paragraph (b)(2)(i) the
words ``or Item 9 of Form 20-F (Sec. 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''.
46. Amend Sec. 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''.
47. Amend Sec. 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
48. The authority citation for part 249 continues to read, in part,
as follows:
Authority: 15 U.S.C. 78a, et seq., unless otherwise noted;
* * * * *
49. Amend Form 20-F (referenced in Sec. 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''; 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. In addition to the definitions in
the General Rules and Regulations, General Instruction F defines
certain terms for purposes of the items of this Form.
(b) Pay particular attention to Regulation 12B under the Exchange
Act, which 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. In addition to
the definitions in Rule 12b-2, General Instruction F defines certain
terms for purposes of the items of this Form.
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 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 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 Rules 421(b) and 421(c) require you to follow plain English
drafting principles. You should read Securities Act Release No. 7497
(January 28, 1998) for information on plain English principles. Also,
we refer you to ``A Plain English Handbook--How to create clear SEC
disclosure documents,'' issued by the Office of Investor Education and
Assistance.
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)
[[Page 6274]]
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 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 to 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. You may omit certain information if it was
previously reported 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. A 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 or F-
3 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. In the United
States, the persons referred to by this term correspond to a U.S.
company's ``executive officers'' as defined in Rule 405 under the
Securities Act of 1933, as amended and Rule 3b-7 under the Securities
Exchange Act of 1934, as amended.
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 these disclosure requirements,
including, as applicable, a prospectus, an Exchange Act registration
statement, and an annual report.
[[Page 6275]]
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, for purposes of 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: Regulated markets in the United States do
not require sponsors for listing. If a sponsor is required for listing
in another jurisdiction, disclose the identity of the sponsor.
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
[[Page 6276]]
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: 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 3.B or 3.C. You
must provide this information if you are filing a registration
statement under the Securities Act.
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: If you are not selling the new securities
being issued 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:
1. In a best efforts ``minimum/maximum'' offering, reflect both the
minimum and maximum proceeds; and
2. 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: If you are providing this information in
an annual report, the information may be limited to the most
significant risk factors regarding your business, operations, industry
or financial position that may have a negative effect on your future
financial performance.
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,
[[Page 6277]]
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.
B. 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.
Instructions to Item 4.A.5: If you are providing the information
called for by Item 4.A.5 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: 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 (Sec. 230.418 of this chapter) and Rule 12b-4 of
Regulation 12B (Sec. 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.
(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
[[Page 6278]]
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. 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.
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.
[[Page 6279]]
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.
Instructions 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.
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
[[Page 6280]]
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: 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.
Instructions 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,
unless the host country regulator permits otherwise, 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 statements that cover a more current period
than those otherwise required by this standard, the more current
interim financial statements must be included in the document.
Companies are encouraged, but not required, to have any interim
financial statements in the
[[Page 6281]]
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.A.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.
Instructions 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 additional requirement in
those cases if you are able to represent adequately to us that you are
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 statement as an
exhibit to the registration statement.
Instructions to Item 8.A.5: Item 8.A.5 does not apply to annual
reports on Form 20-F. This item requires you to include in the document
interim financial statements that have been published by the company if
those statements cover a more current period than the statements
otherwise required by Item 8. This 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:
1. 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
2. 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 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 you or your subsidiaries.
2. If you are providing the information called for by Item 8.A.7 in
an annual report, 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
[[Page 6282]]
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
[[Page 6283]]
any items are not known, estimates (identified as such) shall be given.
Instructions 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.
Instructions 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: 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.
Instructions 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
[[Page 6284]]
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: If you are using this Form as an annual
report and the information called for by Items 10.B and 10.C has been
reported previously in a registration statement on Form 20-F or a
registration statement filed under the Securities Act, you may
incorporate that information by a specific reference in the annual
report to the previous registration statement. 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
[[Page 6285]]
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: You do not need to provide the information
called for by this item if you are using this form as an annual report.
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.
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.
1. 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;
2. The expiration or termination date of the warrants;
3. The kinds, frequency and timing of the redemption or call
notice, including the cities or newspapers in which you will publish
the notice; and
4. 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.
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: 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.
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
[[Page 6286]]
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 materially withdrawn or substituted
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 ten (10)
percent 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
five (5) percent 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 ten (10)
percent 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.
Instructions 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.
Instructions to Item 14.B: You should report any working capital
restrictions or other limitations on the payment of dividends.
Instructions 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 Sec. 210.3-05 or less-than-majority-owned
[[Page 6287]]
investee pursuant to Sec. 210.3-09 of this chapter.
Instructions 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.
Instructions 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 office under this
signature.
Instructions as to Exhibits
File the exhibits listed below as part of this 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.
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. In the sequentially numbered, manually signed
original registration statement required by Securities Act Rule 403(d),
include in the index the page number in the sequential numbering system
where each exhibit can be found.
In an annual report, 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.
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
[[Page 6288]]
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
50. 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 Sec. 260.0-11 by removing in paragraph (b)(2) the words
``Item 9 of Form 20-F (Sec. 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 (Sec. 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''.
Dated: February 2, 1999.
By the Commission.
Margaret H. McFarland,
Deputy Secretary.
Appendix A
Note: This Appendix A to the preamble will not appear in the
Code of Federal Regulations.
Securities and Exchange Commission
Regulatory Flexibility Act Certification
I, Arthur Levitt, Chairman of the Securities and Exchange
Commission, hereby certify pursuant to 5 U.S.C. 605(b) that the
following amendments to the Commission's rules and forms would not, if
adopted, have a significant economic impact on a substantial number of
small entities in the United States: changes to Forms F-1, F-2, F-3, F-
4, F-6 and S-11 and Rules 175, 405, 434 and 463 under the Securities
Act; changes to Form 20-F and Rules 3b-4, 3b-6, 13a-10 and 15d-10 under
the Exchange Act; changes to Items 402, 512 and 601 of Regulation S-K;
changes to Rules 3-01, 3-02, 3-12, 3-19 and 3-20 of Regulation S-X;
changes to Item 310 of Regulation S-B; and changes to Rule 0-11 under
the Trust Indenture Act. The reasons for this certification are as
follows:
The amendments are unlikely to have a significant economic
impact because they are based on current law and practice. Moreover,
the amendments are intended primarily to facilitate offerings and
listings of securities by foreign private issuers, by conforming the
disclosure requirements of Form 20-F more closely to international
disclosure norms. The resulting incremental reduction in the
expense, time and effort of making offerings in multiple
jurisdictions will directly affect only foreign entities that issue
securities, rather than U.S. entities.
One possible indirect result of adopting the amendments is that
foreign companies may offer securities to U.S. small entity
investors who previously would have been excluded due to the time
and expense of compliance with the regulatory requirements of more
than one jurisdiction. The potential increase in foreign offerings
in the United States may have some indirect impact on U.S. small
entity offerings. However, the indirect impact is likely to be
small, and its effect is not expected to be significant for a
substantial number of small entities in the United States.
The proposed amendments would not have a significant economic
impact on a substantial number of small entities. The primary effect
of the proposals would be on foreign entities, which we believe are
not considered as small entities under the Regulatory Flexibility
Act.
Dated: February 2, 1999.
Arthur Levitt,
Chairman.
[FR Doc. 99-2931 Filed 2-8-99; 8:45 am]
BILLING CODE 8010-01-P
