[Federal Register Volume 59, Number 80 (Tuesday, April 26, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-9846]
[[Page Unknown]]
[Federal Register: April 26, 1994]
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SECURITIES AND EXCHANGE COMMISSION
17 CFR Parts 229, 230, 239 and 249
[Release Nos. 33-7053; 34-33918, International Series Release No 653,
File No. S7-30-93]
RIN 3235-AF83
Simplification of Registration and Reporting Requirements for
Foreign Companies; Safe Harbors for Public Announcements of
Unregistered Offerings and Broker-Dealer Research Reports
AGENCY: Securities and Exchange Commission.
ACTION: Final rule.
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SUMMARY: The Commission is announcing the adoption of a rule and
amendments to rules and forms to streamline registration and reporting
requirements for foreign companies by expanding the universe of foreign
issuers eligible to use short-form and shelf registration under the
Securities Act of 1933 (the ``Securities Act''); streamlining financial
statement reconciliation and financial schedule requirements; and
expanding safe harbor protection for analyst reports with respect to
sizeable foreign companies publicly traded offshore. In addition, the
Commission is providing a new safe harbor for certain company
announcements regarding exempt offerings or unregistered offshore
offerings.
EFFECTIVE DATE: April 26, 1994.
FOR FURTHER INFORMATION CONTACT: Sandra Folsom Kinsey or Annemarie
Tierney, (202) 272-3246, Office of International Corporate Finance,
Division of Corporation Finance, or, with respect to accounting
matters, Wayne E. Carnall, (202) 272-2553, Office of the Chief
Accountant, Division of Corporation Finance, U.S. Securities and
Exchange Commission, Washington, DC 20549.
SUPPLEMENTARY INFORMATION: The Commission is adopting amendments to the
following rules and forms under the Securities Act of 1933:1 Form
F-1,2 Form F-2,3 Form F-3,4 Form F-4,5 Rule
135,6 Rule 139,7 Rule 457,8 Rule 462,9 Rule
475a,10 Rule 477,11 Rule 902 of Regulation S,12 Rule
502(c) of Regulation D13 and Item 512 of Regulation S-K.14 In
addition, the Commission is adopting new Rule 135c15 under the
Securities Act and amendments to Form 20-F16 under the Securities
Exchange Act of 1934 (the ``Exchange Act'').17
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\1\15 U.S.C. 77a et seq.
\2\17 CFR 239.31.
\3\17 CFR 239.32.
\4\17 CFR 239.33.
\5\17 CFR 239.34.
\6\17 CFR 230.135.
\7\17 CFR 230.139.
\8\17 CFR 230.457.
\9\17 CFR 230.462.
\1\017 CFR 230.475a.
\1\117 CFR 230.477.
\1\217 CFR 230.902.
\1\317 CFR 230.502(c).
\1\417 CFR 229.512.
\1\5See 17 CFR 230.135c, being adopted today.
\1\617 CFR 249.220f.
\1\715 U.S.C. 78a et seq.
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I. Introduction
The Commission today is adopting a number of initiatives designed
to streamline the registration and reporting process for foreign
companies accessing the U.S. public securities markets. In companion
releases, the Commission is proposing additional initiatives to further
this goal.18 The rule and amendments adopted today were proposed
by the Commission on November 3, 1993.19 In most respects, the
rule and amendments are being adopted substantially as proposed.
\1\8See Securities Act Release Nos. 7054, 7055 and 7056 (April
19, 1994).
\1\9Securities Act Release No. 7029 (Nov. 3, 1993) [58 FR 60307]
(the ``Proposing Release'').
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Most of the comment letters received regarding the proposals were
generally supportive of the Commission's efforts to reduce the
registration and reporting burdens on foreign companies.20 A
number of commenters suggested modifications to the proposals, a number
of which have been incorporated into the provisions being adopted.
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\2\0Thirty-one comment letters on the proposal were received.
Those letters and a summary of the comments are available for public
inspection and copying in File No. S7-30-93 at the Commission's
Public Reference Room in Washington, DC.
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These provisions are part of the ongoing efforts of the Commission
to ease the transition of foreign companies into the U.S. disclosure
system, enhance the efficiencies of the registration and reporting
processes and lower costs of compliance, where consistent with investor
protection.
The new provisions further streamline the foreign issuer integrated
disclosure system. This system already provides a number of
accommodations to foreign practices and policies. These accommodations
include:
Interim reporting on the basis of home country regulatory
and stock exchange practices; quarterly reports are not required from
foreign issuers;
Exemption from the proxy rules and Section 16 insider
stock reports and short-swing profit recovery;
Executive compensation disclosure requirements that allow
disclosure of compensation for executives on an aggregate basis, if so
reported in the issuer's home country; and
Offering document financial statements that are required
to be updated principally on a semi-annual, rather than quarterly,
basis.
Additionally, to facilitate cross border offerings and stock market
listings, the Commission staff has implemented procedures to review
foreign issuers' disclosure documents in draft form on a non-public
basis, if requested by the issuer. Recognizing the particular
difficulties of co-ordinating time schedules for cross border
offerings, the review process has been tailored to accommodate the
special scheduling demands for such offerings. As reflected in the
companion releases, the Commission's efforts to address the special
needs of foreign companies entering the U.S. public markets are ongoing
and will continue, as consistent with investor protection.
II. Expanded Availability of Short-Form and Shelf Registration
The Commission is adopting revisions to its registration forms to
extend to foreign issuers the benefits of short-form and shelf
registration to the same extent available to domestic companies.
A. Short-Form Registration Statements
Under the amendments adopted today, the public float threshold for
use of Form F-3 and full shelf registration is reduced from $300
million to $75 million and the reporting history requirement is reduced
from 36 months to 12 months.21 These are the same as the
eligibility criteria applicable to domestic companies using Form S-3.
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\2\1The amendments adopted today also reduce the public float
test specified in form F-2 to $75 million, as proposed.
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As proposed, Form F-3 would not have required that an annual or
interim report have been filed or submitted to the Commission prior to
first use of the Form. Despite the proposal's requirement that a
foreign issuer have been subject to the Exchange Act reporting
requirements for 12 months to be eligible to use Form F-3, it would
have been possible for an eligible issuer to have filed no reports
during that period.22 As explained in the Proposing Release,
foreign issuers, unlike domestic companies, are required to submit to
the Commission under Form 6-K only those interim reports and other
materials that the issuer prepares in accordance with home country or
home market requirements or delivers to its securityholders. Moreover,
unlike domestic companies using Form S-3, foreign companies registering
on Form F-3 are not required to incorporate by reference all their
reports on Form 6-K, but may chose which reports are incorporated. In
light of these differences, as suggested by several commenters, the
revisions to Form F-3 as adopted require that the company have filed at
least one annual report prior to first use of the Form in order to
ensure that information regarding the issuer is available to the
market.23
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\2\2Domestic issuers are permitted to use Form S-3 after being
subject to reporting requirements for 12 months, regardless of
whether they have filed an annual report. Unlike foreign issuers,
however, domestic issuers are required to file quarterly reports and
such reports would be incorporated by reference into the Form S-3
registration statement.
\2\3This requirement has been added to the issuer eligibility
criteria because of its applicability to all offerings registered on
Form F-3.
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B. Shelf Registration
The expanded eligibility for short-form registration on Form F-3 in
turn will allow more foreign companies the full benefits of shelf
registration.24 Issuers eligible to register securities for
primary offerings using short-form registration are able to offer those
securities on a delayed or continuous basis under the Commission shelf
registration procedures.25 Through expanded Form F-3 eligibility,
foreign issuers will be allowed the same financing flexibility and
efficiency that domestic issuers have through Form S-3
eligibility.26 In addition, as proposed, the unallocated shelf
registration process is being extended to foreign companies on the same
basis as for domestic companies.27 The unallocated shelf process
will permit foreign private issuers registering on Form F-3 to use one
registration statement to register debt, equity and other securities,
without specifying the amount of each class of securities to be
offered.28
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\2\4See revisions to Item 512(a)(1) of Regulation S-K
(Sec. 229.512(a)(1)) that codify prior staff interpretations
allowing foreign issuers to incorporate Exchange Act reports in
order to update shelf registration statements to the same extent as
domestic issuers. See also revisions to Item 512(a)(4) that allow
Form F-3 issuers to incorporate Exchange Act reports in order to
update financial statements and other information for shelf
offerings in accordance with Rule 3-19 of Regulation S-X
(Sec. 210.3-19) and Section 10(a)(3) of the Securities Act (15
U.S.C. 77j(a)(3)).
\2\5Rule 415(a)(1)(x), 17 CFR 230.415(a)(1)(x).
\2\6Under a staff interpretation, foreign private issuers of
asset-backed securities are eligible to use shelf registration
regardless of whether such securities are registered on Form F-1,
Form F-2 or Form F-3 or the issuer files on registration forms for
domestic issuers. The registration statement would include
disclosure appropriate for asset-backed securities, regardless of
the form used.
\2\7A foreign issuer wishing to convert an existing effective
shelf registration statement to an unallocated shelf registration
statement should use the same procedures set forth in a staff
interpretive letter for domestic issuers. See, Transitional
Procedures for Converting to an Unallocated Shelf Registration (Nov.
19, 1992).
\2\8See General Instruction II.C. to Form F-3, General
Instruction H. to Form F-4 and revisions to Rule 457 under the
Securities Act. Of course, the issuer must be eligible to use Form
F-3 for each type of securities it registers.
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C. Investment Grade Non-Convertible Securities
Form F-3 is amended as proposed to permit foreign issuers to use
short-form registration for all investment grade non-convertible
securities,29 without regard to the size of issuers' public
float.30 These provisions parallel those applied to domestic
companies. The amendments to Forms F-2 and F-3 also clarify that the
investment grade rating must exist at the time of sale to the public,
rather than at the time of effectiveness.
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\2\9To qualify as investment grade, a security must be so rated
by a nationally recognized statistical rating organization, as that
term is used in Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act
(Sec. 240.15c3-1(c)(2)(vi)(F)).
\3\0Corresponding changes are being made to the provisions of
Form F-2 that previously allowed for registration of non-convertible
investment grade debt securities (but not preferred securities)
without regard to public float or reporting history. See General
Instruction I.B.2. to Form F-2.
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The amendments also expand the availability of short-form
registration to all investment grade securities of majority-owned
subsidiaries of foreign companies, which mirrors the treatment of
domestic companies, as proposed.
D. Secondary Offerings, Rights Offers, Dividend or Interest
Reinvestment Plans, Convertible Securities and Warrants
Previously, a public float test applied to all users of Form F-3.
In the amendments adopted today, the Commission, as proposed, is
eliminating the public float requirements for short-form registration
in connection with secondary offerings and certain rights offers,
dividend or interest reinvestment plans, conversion of convertible
securities and exercise of warrants,\31\ to parallel the requirements
for domestic issuers.
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\31\See General Instructions I.B.3. and I.B.4 to Form F-3. In
addition, the revisions being made today provide immediate
effectiveness of registration statements relating to dividend or
interest reinvestment plans. See revisions to General Instruction
III. to Form F-3 and Rule 462 under the Securities Act
(Sec. 230.462). Conforming revisions to Rules 475a and 477 under the
Securities Act (Secs. 230.475a and 230.477) also are being made. See
also Rule 405 under the Securities Act (Sec. 230.405) which defines
``dividend or interest reinvestment plan.''
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For domestic issuers that do not have $75 million in public float,
use of Form S-3 for rights offers, dividend or interest reinvestment
plans, conversion of convertible securities and exercise of warrants is
conditioned on delivery of information to subject security holders in
the 12 months prior to registration.\32\ The required information is
contained in the issuer's proxy statement and annual report to
securityholders prepared pursuant to the Commission's proxy rules.\33\
Foreign private issuers are exempt from the proxy rules and thus would
not have had reason to deliver such information to their
securityholders.
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\32\See General Instruction I.B.4. of Form S-3.
\33\See Rule 14a-3(b) under the Exchange Act (Sec. 240.14a-
3(b)).
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Comment was requested concerning whether an information delivery
condition should be applied to all or certain foreign issuers. Several
commenters suggested that a foreign issuer with a public float below
$75 million should be required to deliver information similar to that
required of domestic issuers. In view of the requirement being adopted
today that an issuer filing a registration statement on Form F-3 have
filed at least one annual report under the Exchange Act and given
foreign issuers' historic exemption from the proxy rules, including the
annual report delivery requirement, the revisions to Form F-3 do not
impose an information delivery requirement. Form F-3 requires an issuer
to provide copies of its Form 20-F annual report to offerees upon
request.\34\ Thus, annual information will be available to investors.
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\34\See General Instruction II.B. to Form F-3 and Item 502(c) of
Regulation S-K (Sec. 229.502(c)).
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III. Streamlining Reconciliation Requirements
A. Acceptance of Cash Flow Statements Prepared in Accordance With
International Accounting Standards
The Commission is adopting as proposed, with certain
clarifications, amendments to accept without reconciliation a cash flow
statement prepared in accordance with International Accounting
Standards No. 7, ``Cash Flow Statements,'' as amended (``IAS 7'').
The commenters specifically addressing this issue supported the
proposal. Most of the commenters did not believe that the Financial
Accounting Standards Board (``FASB'') should devote the resources to
amend Statement of Financial Accounting Standards No. 95 (``SFAS 95''),
and the Commission agrees. One commenter recommended that the final
rules provide guidance on the transition from a statement prepared in
or reconciled to U.S. GAAP to one prepared in accordance with IAS 7. In
response to this comment, the General Instructions to Form 20-F provide
that the presentation of cash flow information should be consistent for
all periods presented in the filing.
B. Transitional Reconciliation Requirements
The Commission is adopting, as proposed, amendments to Form 20-F
that would permit first-time registrants with the Commission to
reconcile the required financial statements\35\ and selected financial
data for only the two most recently completed fiscal years and any
required interim periods.\36\
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\35\Where financial statements of an acquired business or
significant investee must also be furnished, the amendments
eliminate the requirement to reconcile the earliest of the three
years if that information was not previously included in a filing
with the Commission.
\36\Reconciliation of interim information is not required for
periodic reporting purposes under the Exchange Act.
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In each subsequent year an additional year of reconciliation would
be required. Thus, for example, a foreign company with a calendar
fiscal year-end entering the U.S. market in November 1994 would be
required to provide reconciled information with respect to 1993 and
1992 and interim periods. In the annual report it files for 1994 and
any registration statement filed thereafter (until the filing of the
1995 annual report), the reconciled data would be provided for three
years, i.e., 1992, 1993 and 1994, and interim periods if applicable.
The amendments do not change the requirements with respect to the
primary financial statements to be included in the filings, i.e.,
audited balance sheets for the two most recently completed fiscal years
and audited income and cash flow statements for the three most recently
completed fiscal years,\37\ and separate financial statements of
significant acquirees or significant investees. Likewise, the
requirement to include selected financial data for the five most recent
fiscal years remains unchanged.
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\37\If the financial statements are prepared in accordance with
U.S. GAAP, the audited income statement and statement of cash flows
would only be required for two years. Selected financial data for
the full five fiscal years would still be required, using the
accounting principles used for reporting to its shareholders.
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A majority of commenters supported the proposed transitional rules
for reconciliation. There were some, on the other hand, that opposed
the change and several others that questioned whether the cost savings
from eliminating the reconciliation of the earliest year of the audited
income and cash flow statements would be significant enough to justify
the accommodation.
Based on its review of the comments, as well as its prior
discussions with foreign issuers that have entered or considered
entering the U.S. public securities markets, the Commission believes
the amendments will facilitate foreign companies' entry into the U.S.
public securities market consistent with investor protection.
Therefore, the amendments are adopted as proposed. In response to
comments, Form 20-F will be clarified to indicate that the transitional
reconciliation relief also applies to financial disclosures required by
U.S. GAAP and Regulation S-X.
The Commission also is adopting, as proposed, amendments to allow
the simpler reconciliation pursuant to Item 17 of Form 20-F for all
offerings of non-convertible investment grade securities (whether debt,
preferred stock or other securities) regardless of the registration
form used by the foreign private issuer.\38\
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\38\See General Instruction I.B.2. to Form F-3, General
Instruction I.D. to Form F-2, Item 11(c) of Form F-1 and Instruction
2 thereto, Instructions to Item 11(a) of Form F-4, Item 12(b)(2) and
12(b)(3)(vii) of Form F-4, Instructions to Item 13(a) of Form F-4
and Item 14(h) of Form F-4.
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C. Reconciliation of Financial Statements of Significant Acquirees and
Significant Equity Investees
The Commission is adopting, substantially as proposed, amendments
that forego requiring a quantified reconciliation of separate financial
statements of certain acquired businesses and of certain less-than-
majority-owned investees (``equity investees'') based on higher
thresholds of significance. A description of differences in accounting
methods would continue to be required. Financial statements of
acquirees would not have to be reconciled unless the acquiree exceeds
the 30% significance level based on the registrant's investment, assets
and pre-tax income.\39\ Similarly, financial statements of significant
equity investees would not have to be reconciled unless the investee
exceeds the 30% significance level, but using only the investment and
pre-tax income tests for significance.\40\
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\39\Reconciliation to U.S. GAAP would continue to be required
for pro forma financial information depicting the effects of a
registrant's acquisition of a business.
\40\See Rule 1-02(v) of Regulation S-X (17 CFR Sec. 210.1-
02(v)). The reconciliation of the registrant's primary financial
statements to U.S. GAAP will continue to encompass reconciliation of
the registrant's investment in the investee. In circumstances where
a registrant furnishes separate financial statements of an equity
investee pursuant to Rule 3-09 of Regulation S-X, the staff has not
required the registrant to also furnish summarized financial data of
the investee pursuant to Rule 4-08(g) of Regulation S-X (Staff
Accounting Bulletin Topic 6:K). However, a registrant that furnishes
separate financial statements of an investee that are not prepared
using the same accounting standards as the registrant should furnish
the summarized financial data pursuant to Rule 4-08(g) on the same
basis as the registrant.
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Frequently, the information required by Item 18 of Form 20-F
regarding U.S. GAAP and Regulation S-X is more difficult to obtain for
financial statements of acquirees and investees than for the issuer,
but it is typically less critical to an understanding of the issuer's
financial condition.\41\ As suggested by several commenters, compliance
with Item 17 of Form 20-F will be acceptable for financial statements
of all significant acquirees and investees.\42\
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\41\Instruction 11 of Item 9 (management's discussion and
analysis) to Form 20-F requires ``a discussion of any aspect of the
differences between foreign and United States generally accepted
accounting principles, not discussed in the reconciliation, that the
registrant believes is necessary for an understanding of the
financial statements as a whole.'' These matters may relate to items
that would be disclosed if the financial statements were prepared
under Item 18 of Form 20-F. (See Staff Accounting Bulletin Topic
1:D). The registrant should consider discussing the separate
financial statements of acquirees and investees in management's
discussion and analysis.
\42\In response to several commenters, the Commission today is
proposing in a separate release amendments to rules and forms that
would apply similar provisions to domestic issuers. See Securities
Act Release No. 7055 (April 19, 1994).
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D. Accommodation With Respect to Pro Rata Consolidation
Generally accepted accounting principles in some countries allow
pro rata consolidation for certain joint ventures that would be
accounted for under the equity method pursuant to U.S. GAAP. Net income
and shareholders' equity are not affected by an issuer's use of pro
rata consolidation rather than the equity method. There may, however,
be significant differences in line item amounts reported in the balance
sheet and statements of income and cash flows as a result of the method
chosen.
The Commission is adopting, with certain modifications from the
proposal, amendments to the forms to streamline the reconciliation of
these differences with respect to foreign private issuers that account
for an investment in a joint venture using pro rata consolidation. The
amendments would require an issuer to provide summarized financial
information of the current assets/liabilities, noncurrent assets/
liabilities, net sales, gross profit and net income relating to its pro
rata interest in the joint venture.\43\ Separate financial statements
of a joint venture accounted for using the pro rata method are not
required to be presented.
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\43\These are the same captions as required by Rule 1-02(aa) of
Regulation S-X (17 CFR Sec. 210.1-02(aa)).
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Most commenters supported the proposal to allow an issuer that uses
pro rata consolidation to provide summarized condensed financial
information on a joint venture in lieu of all of the reconciliation
information that would otherwise be required. Several commenters
indicated that condensed cash flow information should be provided to
differentiate cash flow associated with entities controlled by the
registrant from those associated with the joint venture. As suggested
by these commenters, the rule requires summarized cash flow
information--i.e., totals for major captions of operating, financing
and investing activities.
As pointed out by commenters, there can be differences between the
accounting standards used in the primary statements and U.S. GAAP
relating to the joint venture that effect recognition and measurement.
The rule as adopted makes clear that the omission from the
reconciliation requirement only relates to differences in
classification and display.
The Commission requested comment on whether the proposed amendment
should be limited to certain types of joint ventures. Several
commenters suggested that limitations should apply in order to avoid
extending relief to certain financing situations where the intended
purpose was to keep the selected debt and other financing off the
balance sheet. The accounting standards in many countries would limit
the application of pro rata consolidation to appropriate situations.
However, given the variability of standards and interpretations, the
rule as adopted limits the accommodation to a joint venture that is a
contractual arrangement whereby two or more parties undertake an
economic activity in which the power to govern the financial and
operating policies of the economic activity for purposes of deriving
economic benefits are contractually shared. Therefore, relief under the
rule will be available with respect to the accounting for any operating
entity in which the issuer holds an equity interest if the significant
financial and operating policies of the entity are, by contractual
arrangement, jointly controlled by all parties having an equity
interest in that entity. The Commission believes that few, if any,
substantive joint ventures will fall outside the scope of this relief.
However, in the event that an issuer accounts for other types of joint
ventures using pro rata consolidation, the Commission's staff will
consider upon request whether to grant similar relief.
E. Elimination of Certain Financial Statement Schedules
The amendments to eliminate six financial schedules are adopted as
proposed. As suggested by several commenters, the Commission is
proposing to eliminate several financial schedules and to provide
comparable relief to domestic issuers in a companion release.\44\
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\44\See Securities Act Release No. 7055 (April 19, 1994).
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IV. Safe Harbors for Public Announcements of Unregistered Offerings
and Broker-Dealer Research Reports
A. Company Announcements of Unregistered Offerings
As noted in the Proposing Release, the growing number of offshore
offerings and U.S. private placements has resulted in repeated requests
for guidance concerning appropriate disclosure of such offerings, in
light of the limitations on general solicitation and directed selling
efforts in private placements and offshore offerings under Regulation
S.\45\ To address these concerns, the Commission today is adopting a
new safe harbor for issuers' announcements of offerings not registered
or required to be registered under the Securities Act.\46\ The safe
harbor is available to both domestic and foreign issuers.
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\45\17 CFR 230.901-230.904 and Preliminary Notes.
\46\See new Rule 135c (Sec. 230.135c) and revisions to Rule
902(b) of Regulations S (Sec. 230.902(b)) and Rule 502(c) of
Regulation D (Sec. 230.502(c)). Rule 902(b) will provide that
announcements made pursuant to either Rule 135 or new Rule 135c will
not constitute ``directed selling efforts'' for purposes of
Regulation S. Rule 502(c) will exclude Rule 135c announcements from
the prohibition on general solicitation or general advertising.
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In response to the Commission's request for comment on the new safe
harbor, the National Association of State Securities Administrators
(NASAA) urged the Commission to provide the safe harbor only for
foreign and domestic reporting companies and foreign companies that
have obtained a Rule 12g3-2(b) exemption if such information is deemed
material to the marketplace. NASAA expressed concerns that, as
proposed, the safe harbor was overbroad in its applicability to
companies without a public market, and thus particularly vulnerable to
abuse. The Commission agrees that it would be appropriate in
introducing the safe harbor that it be limited to reporting companies
and foreign companies that have obtained a Rule 12g3-2(b)47
exemption. As adopted, the safe harbor is so limited. Given the safe
harbor's requirement that copies be filed or provided to the Commission
and its exclusion of announcements for the purpose of conditioning the
market, the rule should provide adequate means to address abuses
without a materiality requirement.
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\4\717 CFR 240.12g3-2(b).
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In all other respects, the terms and conditions of the new safe
harbor are being adopted substantially as proposed. The information
permitted in the announcement is limited to that which is allowed under
the safe harbor for pre-filing announcements with respect to registered
offerings.48 In addition, the announcement must contain a legend
stating that the securities are not registered under the Securities Act
and may not be sold in the United States absent registration or an
applicable exemption from the registration requirements. To rely on the
safe harbor, a company must file or submit the announcement with the
Commission under Form 8-K or 6-K, as applicable, or provide it to the
Commission in accordance with Rule 12g3-2(b) if the issuer is relying
on that exemptive rule. The safe harbor is not available if the
announcement is being used for the purpose of conditioning the market
in the United States for the securities being offered.
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\4\8Rule 135 under the Securities Act (Sec. 230.135). Rule 135
also is being amended to conform to the new safe harbor so as to
allow statements or legends required by foreign law to be included
in such notices.
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B. Broker-Dealer Research Reports
The amendments to Rule 139 under the Securities Act are adopted
today in the form proposed. The amendments provide that broker-dealers
may rely upon the simpler conditions of the Rule 139 safe harbor with
respect to certain foreign issuers that have had securities listed or
quoted on a designated offshore securities market for at least 12
months.
V. Cost-Benefit Analysis
No specific data were provided in response to the Commission's
request regarding the costs and benefits of the rule and amendments
being adopted today. The commenters did not address specifically the
costs and benefits of the proposed rule and amendments. Eight
commenters generally opposed the proposals in the belief that they
would be detrimental to U.S. investors. Seventeen commenters addressed
specific aspects of the proposals and generally supported the
proposals. The Commission is not aware of any costs that will result
from the rule and amendments. The Commission believes that the adoption
of these rules will be beneficial to U.S. investors, as it will
encourage more foreign companies to list their securities and raise
capital in the United States and be consistent with investor
protection.
VI. Availability of Final Regulatory Flexibility Analysis
A Final Regulatory Flexibility Analysis in accordance with the
Regulatory Flexibility Act has been prepared with respect to the final
rule and amendments. A summary of a corresponding Initial Regulatory
Flexibility Analysis was included in the Proposing Release. Members of
the public who wish to obtain a copy of the Final Regulatory
Flexibility Analysis should contact Annemarie Tierney, Office of
International Corporate Finance, Division of Corporation Finance,
Securities and Exchange Commission, 450 Fifth Street, NW., Mail Stop 3-
9, Washington, DC 20549, (202) 272-3246.
VII. Statutory Bases
The final rule and amendments to the Commission's rules and forms
are being adopted pursuant to sections 6, 7, 8, 10 and 19(a) of the
Securities Act of 1933, as amended, and sections 3(b), 4A, 12, 13, 14,
15, 16 and 23 of the Securities Exchange Act of 1934.
VIII. Effective Date
The final rule and amendments to the Commission's rules and forms
shall be effective immediately upon publication in the Federal
Register, in accordance with the Administrative Procedure Act, which
allows effectiveness in less than 30 days after publication for, inter
alia, ``a substantive rule which grants or recognizes an exemption or
relieves a restriction.'' 5 U.S.C. Sec. 553(d)(1).
List of Subjects in 17 CFR Parts 229, 230, 239 and 249
Confidential business information, Reporting and recordkeeping
requirements, Securities.
Text of Amendments
In accordance with the foregoing, Title 17, chapter II of the Code
of Federal Regulations is amended as follows:
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
1. 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,
77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77iii, 77jjj, 77nnn,
77sss, 78c, 78i, 78j, 78l, 78m, 78n, 78o, 78w, 78ll(d), 79e, 79n,
79t, 80a-8, 80a-29, 80a-30, 80a-37, 80b-11, unless otherwise noted.
* * * * *
2. By revising the proviso following paragraph (a)(1)(iii) and
revising paragraph (a)(4) of Sec. 229.512 to read as follows:
Sec. 229.512 (Item 512) Undertakings.
* * * * *
(a) * * *
(1) * * *
(iii) * * *
Provided, however, That paragraphs (a)(1)(i) and (a)(1)(ii) of this
section do not apply if the registration statement is on Form S-3
(Sec. 239.13 of this chapter), Form S-8 (Sec. 239.16b of this chapter)
or Form F-3 (Sec. 239.33 of this chapter), and the information required
to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission
by the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in
the registration statement.
* * * * *
(4) If the registrant is a foreign private issuer, to file a post-
effective amendment to the registration statement to include any
financial statements required by Sec. 210.3-19 of this chapter at the
start of any delayed offering or throughout a continuous offering.
Financial statements and information otherwise required by Section
10(a)(3) of the Act need not be furnished, provided that the registrant
includes in the prospectus, by means of a post-effective amendment,
financial statements required pursuant to this paragraph (a)(4) and
other information necessary to ensure that all other information in the
prospectus is at least as current as the date of those financial
statements. Notwithstanding the foregoing, with respect to registration
statements on Form F-3 (Sec. 239.33 of this chapter), a post-effective
amendment need not be filed to include financial statements and
information required by Section 10(a)(3) of the Act or Sec. 210.3-19 of
this chapter if such financial statements and information are contained
in periodic reports filed with or furnished to the Commission by the
registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the Form F-
3.
* * * * *
PART 230--GENERAL RULES AND REGULATIONS, SECURITIES ACT OF 1933
3. The authority citation for part 230 continues to read in part as
follows:
Authority: 15 U.S.C. 77b, 77f, 77g, 77h, 77j, 77s, 77sss, 78c,
78l, 78m, 78n, 78o, 78w, 78ll(d), 79t, 80a-8, 80a-29, 80a-30, and
80a-37, unless otherwise noted.
* * * * *
4. The authority citations following Secs. 230.139 and 230.477 are
removed.
5. By revising paragraph (a)(6) of Sec. 230.135 to read as follows:
Sec. 230.135 Notice of certain proposed offerings.
(a) * * *
(6) Any statement or legend required by State or foreign law or
administrative authority.
* * * * *
6. By adding Sec. 230.135c to read as follows:
Sec. 230.135c Notice of certain proposed unregistered offerings.
(a) For the purposes only of section 5 of the Act, a notice given
by an issuer required to file reports pursuant to section 13 or 15(d)
of the Securities Exchange Act of 1934 or a foreign issuer that is
exempt from registration under the Securities Exchange Act of 1934
pursuant to Sec. 240.12g3-2(b) of this chapter that it proposes to
make, is making or has made an offering of securities not registered or
required to be registered under the Act shall not be deemed to offer
any securities for sale if:
(1) Such notice is not used for the purpose of conditioning the
market in the United States for any of the securities offered;
(2) Such notice states that the securities offered will not be or
have not been registered under the Act and may not be offered or sold
in the United States absent registration or an applicable exemption
from registration requirements; and
(3) Such notice contains no more than the following additional
information:
(i) The name of the issuer;
(ii) The title, amount and basic terms of the securities offered,
the amount of the offering, if any, made by selling security holders,
the time of the offering and a brief statement of the manner and
purpose of the offering without naming the underwriters;
(iii) In the case of a rights offering to security holders of the
issuer, the class of securities the holders of which will be or were
entitled to subscribe to the securities offered, the subscription
ratio, the record date, the date upon which the rights are proposed to
be or were issued, the term or expiration date of the rights and the
subscription price, or any of the foregoing;
(iv) In the case of an offering of securities in exchange for other
securities of the issuer or of another issuer, the name of the issuer
and the title of the securities to be surrendered in exchange for the
securities offered, the basis upon which the exchange may be made, or
any of the foregoing;
(v) In the case of an offering to employees of the issuer or to
employees of any affiliate of the issuer, the name of the employer and
class or classes of employees to whom the securities are offered, the
offering price or basis of the offering and the period during which the
offering is to be or was made or any of the foregoing; and
(vi) Any statement or legend required by State or foreign law or
administrative authority.
(b) Any notice contemplated by this section may take the form of a
news release or a written communication directed to security holders or
employees, as the case may be, or other published statements.
(c) Notwithstanding the provisions of paragraphs (a) and (b) of
this section, in the case of a rights offering of a security listed or
subject to unlisted trading privileges on a national securities
exchange or quoted on the NASDAQ inter-dealer quotation system
information with respect to the interest rate, conversion ratio and
subscription price may be disseminated through the facilities of the
exchange, the consolidated transaction reporting system, the NASDAQ
system or the Dow Jones broad tape, provided such information is
already disclosed in a Form 8-K (Sec. 249.308 of this chapter) on file
with the Commission, in a Form 6-K (Sec. 249.306 of this chapter)
furnished to the Commission or, in the case of an issuer relying on
Sec. 240.12g3-2(b) of this chapter, in a submission made pursuant to
that Section to the Commission.
(d) The issuer shall file any notice contemplated by this section
with the Commission under cover of Form 8-K (Sec. 249.308 of this
chapter) or furnish such notice under Form 6-K (Sec. 249.306 of this
chapter), as applicable, and, if relying on Sec. 240.12g3-2(b) of this
chapter, shall furnish such notice to the Commission in accordance with
the provisions of that exemptive Section.
7. By redesignating paragraph (a) as paragraph (a)(1) and adding
paragraph (a)(2) to Sec. 230.139 to read as follows:
Sec. 230.139 Definition of ``offer for sale'' and ``offer to sell'' in
sections 2(10) and 5(c) in relation to certain publications.
* * * * *
(a)(1) * * *
(2) The registrant is a foreign private issuer that meets all the
registrant requirements of Form F-3 (Sec. 239.33 of this chapter),
other than the reporting history provision of paragraph A.2.(a) of
General Instruction I. of such form, and meets the minimum float or
investment grade securities provisions of either paragraph B.1. or B.2.
of General Instruction I. of such form, and the registrant's securities
have been traded for a period of at least 12 months on a designated
offshore securities market, as defined in Sec. 230.902(a), and such
information, opinion or recommendation is contained in a publication
which is distributed with reasonable regularity in the normal course of
business.
* * * * *
8. By revising paragraph (o) of Sec. 230.457 to read as follows:
Sec. 230.457 Computation of fee.
* * * * *
(o) Where an issuer eligible to use Form S-3 (Sec. 239.13 of this
chapter) or Form F-3 (Sec. 239.33 of this chapter) is registering
securities pursuant to General Instruction I.B.1. or I.B.2. to Form S-3
(Sec. 239.13 of this chapter) or Form F-3 (Sec. 239.33 of this
chapter), as applicable, to be offered on a delayed or continuous basis
pursuant to Sec. 230.415(a)(1)(x), or pursuant to General Instruction
H. to Form S-4 (Sec. 239.25 of this chapter) or General Instruction F.
to Form F-4 (Sec. 239.34 of this chapter), as applicable, in connection
with a business combination transaction pursuant to
Sec. 230.415(a)(1)(viii), the registration fee may be calculated on the
basis of the maximum offering price of all the securities listed in the
``Calculation of Registration Fee'' table.
9. By revising Sec. 230.462 to read as follows:
Sec. 230.462 Effective date of a registration statement filed on form
S-8, and on certain Forms S-3 and F-3.
A registration statement on Form S-8 (Sec. 239.16b of this chapter)
and a registration statement on Form S-3 (Sec. 239.13 of this chapter)
or on Form F-3 (Sec. 239.33 of this chapter) for a dividend or interest
reinvestment plan shall become effective upon filing with the
Commission.
10. By revising Sec. 230.475a to read as follows:
Sec. 230.475a Certain pre-effective amendments deemed filed with the
consent of the Commission.
Amendments to a registration statement on Form F-2 (Sec. 239.32 of
this chapter) relating to a dividend or interest reinvestment plan, or
on Form S-4 (Sec. 239.25 of this chapter) complying with General
Instruction G of that Form, filed prior to the effectiveness of such
registration statement shall be deemed to have been filed with a
consent of the Commission and shall accordingly be treated as part of
the registration statement.
11. By revising paragraph (b) of Sec. 230.477 to read as follows:
Sec. 230.477 Withdrawal of registration statement or amendment.
* * * * *
(b) Any application for withdrawal of a registration statement
filed on Form F-2 (Sec. 239.32 of this chapter) relating to a dividend
or interest reinvestment plan, or on Form S-4 (Sec. 239.25 of this
chapter) complying with General Instruction G of that Form, and/or any
pre-effective amendment thereto, will be deemed granted upon filing if
such filing is made prior to the effective date.
* * * * *
12. By revising paragraph (c) of Sec. 230.502 to read as follows:
Sec. 230.502 General conditions to be met.
* * * * *
(c) Limitation on manner of offering. Except as provided in
Sec. 230.504(b)(1), neither the issuer nor any person acting on its
behalf shall offer or sell the securities by any form of general
solicitation or general advertising, including, but not limited to, the
following:
(1) Any advertisement, article, notice or other communication
published in any newspaper, magazine, or similar media or broadcast
over television or radio; and
(2) Any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising;
Provided, however, that publication by an issuer of a notice in
accordance with Sec. 230.135c shall not be deemed to constitute general
solicitation or general advertising for purposes of this section.
* * * * *
13. By adding paragraph (b)(7) to Sec. 230.902 to read as follows:
Sec. 230.902 Definitions.
* * * * *
(b) Directed Selling Efforts. * * *
(7) Notwithstanding paragraph (b)(1) of this section, publication
by an issuer of a notice in accordance with Sec. 230.135 or
Sec. 230.135c shall not be deemed ``directed selling efforts.''
* * * * *
PART 239--FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933
14. The authority citation for part 239 continues to read in part
as follows:
Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77sss, 78c, 78l,
78m, 78n, 78o(d), 78w(a), 78ii(d), 79e, 79f, 79g, 79j, 79i, 79m,
79n, 79q, 79t, 80a-8, 80a-29, 80a-30 and 80a-37, unless otherwise
noted.
* * * * *
15. By revising paragraph (c) of Item 11 and Instructions to Item
11 of Form F-1 (Sec. 239.31) to read as follows:
Note: Form F-1 does not and these amendments will not appear in
the Code of Federal Regulations.
Form F-1
* * * * *
Item 11. Information with respect to the Registrant.
* * * * *
(c) Information required by Item 17 of Form 20-F may be
furnished in lieu of the information specified by Item 18 thereof if
the only securities being registered are non-convertible securities
that are ``investment grade securities,'' as defined below, or the
only securities to be registered are to be offered: (1) Upon the
exercise of outstanding rights granted by the issuer of the
securities to be offered, if such rights are granted on a pro rata
basis to all existing security holders of the class of securities to
which the rights attach and there is no standby underwriting in the
United States or similar arrangement; or (2) pursuant to a dividend
or interest reinvestment plan; or (3) upon the conversion of
outstanding convertible securities or upon the exercise of
outstanding transferable warrants issued by the issuer of the
securities to be offered, or by an affiliate of such issuer.
Instructions
1. Attention is directed to section 10(a)(3) of the Securities
Act.
2. A non-convertible security is an investment grade security
if, at the time of sale, at least one nationally recognized
statistical rating organization (as that term is used in Rule 15c3-
1(c)(2)(vi)(F) under the Exchange Act (Sec. 240.15c3-1(c)(2)(vi)(F)
of this chapter) has rated the security in one of its generic rating
categories that signifies investment grade; typically, the four
highest rating categories (within which there may be sub-categories
or gradations indicating relative standing) signify investment
grade.
* * * * *
16. By revising paragraph (b)(2), Instruction 2 to paragraph (b),
and paragraph (d) of Sec. 239.32; in Form F-2 (Sec. 235.32) by revising
General Instruction I.B.2. and Instruction 2 thereto, and revising
General Instruction I.D. to read as follows:
Sec. 239.32 Form F-2, for registration under the Securities Act of
1933 for securities of certain foreign private issuers.
* * * * *
(b)(1) * * *
(2) The provisions of paragraph (b)(1)(i) of this section do not
apply to any registrant if:
(i) The aggregate market value worldwide of the voting stock of the
registrant held by non-affiliates is the equivalent of $75 million or
more, or if non-convertible securities that are ``investment grade
securities,'' as defined in Instructions to paragraph (b) of this
section, are being registered; and
(ii) The registrant has filed at least one Form 20-F (Sec. 249.220f
of this chapter), Form 40-F (Sec. 249.240f of this chapter) or Form 10-
K (Sec. 249.310 of this chapter) that is the latest required to have
been filed.
Instructions to paragraph (b)
1. * * *
2. A non-convertible security is an investment grade security
if, at the time of sale, at least one nationally recognized
statistical rating organization (as that term is used in
Sec. 240.15c3-1(c)(2)(vi)(F) of this chapter) has rated the security
in one of its generic rating categories that signifies investment
grade; typically, the four highest rating categories (within which
there may be sub-categories or gradations indicating relative
standing) signify investment grade.
* * * * *
(d) The financial statements included in this registration
statement comply with Item 18 of Form 20-F (Sec. 249.220f of this
chapter); provided, however, that if the securities being registered
are non-convertible securities that are ``investment grade
securities,'' as defined in Instructions to paragraph (b) of this
section, such financial statements comply with either Item 17 or Item
18 of Form 20-F (Sec. 249.220f of this chapter).
* * * * *
Note: Form F-2 does not and these amendments will not appear in
the Code of Federal Regulations.
Form F-2
* * * * *
General Instructions
1. Eligibility Requirements for Use of Form F-2
* * * * *
B.1. * * *
2. The provisions of this paragraph B.1.a. do not apply to any
registrant if: (i) the aggregate market value worldwide of the
voting stock of the registrant held by non-affiliates is the
equivalent of $75 million or more, or if non-convertible securities
that are ``investment grade securities,'' as defined below, are
being registered and (ii) the registrant has filed at least one Form
20-F, Form 40-F or Form 10-K that is the latest required to have
been filed.
Instructions
1. * * *
2. A non-convertible security is an ``investment grade
security'' if, at the time of sale, at least one nationally
recognized statistical rating organization (as that term is used in
Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act (Sec. 240.15c3-
1(c)(2)(vi)(F) of this chapter) has rated the security in one of its
generic rating categories that signifies investment grade;
typically, the four highest rating categories (within which there
may be sub-categories or gradations indicating relative standing)
signify investment grade.
* * * * *
D. The financial statements included in this registration
statement comply with Item 18 of Form 20-F; provided, however, that
if the securities being registered are non-convertible securities
that are ``investment grade securities,'' as defined above, such
financial statements comply with either Item 17 or Item 18 of Form
20-F.
* * * * *
17. By revising the text of paragraph (g) preceding the Note of
Sec. 239.32 to read as follows:
Sec. 239.32 Form F-2, for registration under the Securities Act of
1933 for securities of certain foreign private issuers.
* * * * *
(g) If a registrant is a majority-owned subsidiary that does not
meet the conditions of these eligibility requirements, it nevertheless
shall be deemed to have met such conditions if its parent meets the
conditions and if the parent fully and unconditionally guarantees the
payment obligations on the securities being registered, and the
securities being registered are non-convertible securities.
* * * * *
18. By amending Form F-2 (Sec. 239.32) by revising the first
sentence of paragraph G. of General Instruction I., revising paragraph
(b)(2) of Item 11, revising paragraph (b) of Item 17, and revising
Instruction 3 to the Signatures to read as follows:
Note: Form F-2 does not and these amendments will not appear in
the Code of Federal Regulations.
Form F-2
* * * * *
General Instructions
1. Eligibility Requirements for Use of Form F-2
* * * * *
G. If a registrant is a majority-owned subsidiary that does not
meet the conditions of these eligibility requirements, it
nevertheless shall be deemed to have met such conditions if its
parent meets the conditions and if the parent fully and
unconditionally guarantees the payment obligations on the securities
being registered, and the securities being registered are non-
convertible securities. * * *
* * * * *
Item 11. Material Changes.
(a) * * *
(b)(1) * * *
(2) If the financial statements included in this registration
statement in 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 shall be presented (i) directly in the
prospectus, (ii) through incorporation by reference and delivery of
a Form 6-K identified in the prospectus as containing such financial
statements, or (iii) through incorporation by reference and delivery
of an amended Form 20-F, Form 40-F or Form 10-K, in which case the
prospectus shall disclose that the Form 20-F, Form 40-F or Form 10-K
has been so amended.
* * * * *
Item 17. Undertakings.
(a) * * *
(b) The registration statement shall contain an undertaking
substantially as follows:
The undersigned registrant hereby undertakes to deliver or cause
to be delivered with the prospectus, to each person to which the
prospectus is sent or given: the registrant's latest filing on Form
20-F, Form 40-F or Form 10-K; and any filing on Form 10-Q, Form 8-K
or Form 6-K incorporated by reference into the prospectus.
* * * * *
Signatures
* * * * *
Instruction
* * * * *
3. Where eligibility for use of the Form is based on the
assignment of a security rating under General Instruction I.B.2.,
the registrant may sign the registration statement notwithstanding
the fact that such security rating has not been assigned by the
filing date, provided that the registrant reasonably believes, and
so states, that the security rating requirement will be met by the
time of sale.
* * * * *
19. By amending Sec. 239.33 by revising the introductory text of
paragraph (a) and paragraphs (a)(1) and (a)(2), removing paragraph
(a)(4) and the Instruction thereto, redesignating paragraphs (a)(5),
(a)(6) and (a)(7) as paragraphs (a)(4), (a)(5) and (a)(6), revising
newly designated paragraph (a)(5) and the first sentence of the Note
following newly designated paragraph (a)(5)(iii); and amending Form F-3
by revising the introductory text of General Instruction I.A. and
General Instructions I.A.1. and I.A.2., removing General Instruction
I.A.4. and the Instruction immediately following, redesignating General
Instructions I.A.5., I.A.6. and I.A.7. as General Instructions I.A.4.,
I.A.5. and I.A.6., republishing the introductory text and revising
paragraphs (ii) and (iii) of newly designated General Instruction
I.A.5. and the first sentence of the Note following newly designated
General Instruction I.A.5.(iii) to read as follows:
Sec. 239.33 Form F-3, for registration under the Securities Act of
1933 of securities of certain foreign private issuers offered pursuant
to certain types of transactions.
* * * * *
(a) Registrant requirements. Except as set forth in this paragraph
(a), all registrants must meet the following conditions in order to use
this Form F-3 for registration under the Securities Act of securities
offered in the transactions specified in paragraph (b) of this section:
(1) The registrant has a class of securities registered pursuant to
section 12(b) of the Securities Exchange Act of 1934 (``Exchange Act'')
or has a class of equity securities registered pursuant to section
12(g) of the Exchange Act or is required to file reports pursuant to
section 15(d) of the Exchange Act and has filed at least one annual
report on Form 20-F (Sec. 249.220f of this chapter), on Form 10-K
(Sec. 249.310 of this chapter) or, in the case of registrants described
in General Instruction A(2) of Form 40-F, on Form 40-F (Sec. 249.240f
of this chapter) under the Exchange Act.
(2) The registrant:
(i) Has been subject to the requirements of section 12 or 15(d) of
the Exchange Act and has filed all the material required to be filed
pursuant to sections 13, 14 or 15(d) of the Exchange Act for a period
of at least twelve calendar months immediately preceding the filing of
the registration statement on this form; and
(ii) Has filed in a timely manner all reports required to be filed
during the twelve calendar months and any portion of a month
immediately preceding the filing of the registration statement and, if
the registrant has used (during those twelve calendar months and that
portion of a month) Sec. 240.12b-25(b) of this chapter with respect to
a report or a portion of a report, that report or portion thereof has
actually been filed within the time period prescribed by Sec. 240.12b-
25(b) of this Chapter.
* * * * *
(5) Majority-Owned Subsidiaries. If a registrant is a majority-
owned subsidiary, security offerings may be registered on this form if:
(i) The registrant-subsidiary itself meets the Registrant
Requirements and the applicable Transaction Requirement;
(ii) The parent of the registrant-subsidiary meets the Registrant
Requirements and the conditions of the Transaction Requirement set
forth in paragraph (b)(2) of this section (Offerings of Certain Debt or
Preferred Securities) are met; or
(iii) The parent of the registrant-subsidiary meets the Registrant
Requirements and the applicable Transaction Requirement and fully and
unconditionally guarantees the payment obligations on the securities
being registered, and the securities being registered are non-
convertible securities.
Note: In the situation described in paragraph (a)(6)(iii) of
this section, the parent-guarantor is the issuer of a separate
security consisting of the guarantee which must be concurrently
registered but may be registered on the same registration statement
as are the guaranteed securities. * * *
* * * * *
Note: Form F-3 does not and these amendments will not appear in
the Code of Federal Regulations.
Form F-3
* * * * *
General Instructions
I. Eligibility Requirements for Use of Form F-3
* * * * *
A. Registrant Requirements
Except as set forth below, all registrants must meet the
following conditions in order to use this Form F-3 for registration
under the Securities Act of securities offered in the transactions
specified in I.B. below:
1. The registrant has a class of securities registered pursuant to
Section 12(b) of the Securities Exchange Act of 1934 (``Exchange Act'')
or has a class of equity securities registered pursuant to Section
12(g) of the Exchange Act or is required to file reports pursuant to
Section 15(d) of the Exchange Act.
2. The registrant: (a) has been subject to the requirements of
Section 12 or 15(d) of the Exchange Act and has filed all the material
required to be filed pursuant to Section 13, 14 or 15(d) of the
Exchange Act for a period of at least twelve calendar months
immediately preceding the filing of the registration statement on this
Form; and (b) has filed in a timely manner all reports required to be
filed during the twelve calendar months and any portion of a month
immediately preceding the filing of the registration statement and, if
the registrant has used (during those twelve calendar months and that
portion of a month) Rule 12b-25(b) (Sec. 240.12b-25(b) of this chapter)
under the Exchange Act with respect to a report or a portion of a
report, that report or portion thereof has actually been filed within
the time period prescribed by the Rule.
* * * * *
5. Majority-Owned Subsidiaries.
If a registrant is a majority-owned subsidiary, security offerings
may be registered on this Form if:
(i) * * *
(ii) The parent of the registrant-subsidiary meets the Registrant
Requirements and the conditions of Transaction Requirement B.2.
(Offerings of Certain Debt or Preferred Securities) are met; or
(iii) The parent of the registrant-subsidiary meets the Registrant
Requirements and the applicable Transaction Requirements and fully and
unconditionally guarantees the payment obligations on the securities
being registered, and the securities being registered are non-
convertible securities.
Note: In the situation described in paragraph (iii) of General
Instruction I.A.5., the parent-guarantor is the issuer of a separate
security consisting of the guarantee which must be concurrently
registered but may be registered on the same registration statement
as are the guaranteed securities. * * *
* * * * *
20. By revising paragraphs (b)(1), (b)(2), (b)(3) and (b)(4) and
adding an Instruction to paragraph (b)(1) of Sec. 239.33; and revising
General Instructions I.B.1., I.B.2., I.B.3. and I.B.4. of Form F-3
(Sec. 239.33) to read as follows:
Sec. 239.33 Form F-3, for registration under the Securities Act of
1933 of securities of certain foreign private issuers offered pursuant
to certain types of transactions.
* * * * *
(b) * * *
(1) Primary offerings by certain registrants. Securities to be
offered for cash by or on behalf of a registrant, provided that the
aggregate market value worldwide of the voting stock held by non-
affiliates of the registrant is the equivalent of $75 million or more.
In the case of securities registered pursuant to this paragraph, the
financial statements included in this registration statement must
comply with Item 18 of Form 20-F (Sec. 249.220f of this chapter).
Instruction to Paragraph (b)(1)
The aggregate market value of the registrant's outstanding
voting stock shall be computed by use of the price at which the
stock was last sold, or the average of the bid and asked prices of
such stock, in the principal market for such stock as of a date
within 60 days prior to the date of filing. See the definition of
``affiliate'' in Securities Act Rule 405 (Sec. 230.405 of this
chapter).
(2) Primary offerings of non-convertible investment grade
securities. Non-convertible securities to be offered for cash if such
securities are investment grade securities. A non-convertible security
is an investment grade security if, at the time of sale, at least one
nationally recognized statistical rating organization (as that term is
used in Sec. 240.15c3-1(c)(2)(vi)(F) of this chapter) has rated the
security in one of its generic rating categories that signifies
investment grade; typically, the four highest rating categories (within
which there may be subcategories or gradations indicating relative
standing) signify investment grade. In the case of securities
registered pursuant to this paragraph, the financial statements
included in this registration statement may comply with Item 17 or 18
of Form 20-F (Sec. 249.220f of this chapter).
(3) Transactions involving secondary offerings. Outstanding
securities to be offered for the account of any person other than the
issuer, including securities acquired by standby underwriters in
connection with the call or redemption by the issuer of warrants or a
class of convertible securities. In the case of such securities, the
financial statements included in this registration statement may comply
with Item 17 or 18 of Form 20-F (Sec. 249.220f of this chapter). In
addition, Form F-3 (Sec. 239.33) may be used by affiliates to register
securities for resale pursuant to the conditions specified in General
Instruction C to Form S-8 (Sec. 239.16b). In the case of such
securities, the financial statements included in this registration
statement must comply with Item 18 of Form 20-F (Sec. 249.220f of this
chapter).
(4) Rights offerings, dividend or interest reinvestment plans, and
conversions or warrants. Securities to be offered:
(i) Upon the exercise of outstanding rights granted by the issuer
of the securities to be offered, if such rights are granted pro rata to
all existing security holders of the class of securities to which the
rights attach; or
(ii) Pursuant to a dividend or interest reinvestment plan; or
(iii) Upon the conversion of outstanding convertible securities or
upon the exercise of outstanding transferable warrants issued by the
issuer of the securities to be offered, or by an affiliate of such
issuer. In the case of securities registered pursuant to this
paragraph, the financial statements included in this registration
statement may comply with Item 17 or 18 of Form 20-F (Sec. 249.220f of
this chapter). The registration of securities to be offered or sold in
a standby underwriting in the United States or similar arrangement is
not permitted pursuant to this paragraph. See paragraphs (b) (1), (2)
and (3) of this section.
Note: Form F-3 does not and these amendments will not appear in
the Code of Federal Regulations.
Form F-3
* * * * *
General Instructions
I. Eligibility Requirements for Use of Form F-3
* * * * *
B. Transaction Requirements
* * * * *
1. Primary Offerings by Certain Registrants. Securities to be
offered for cash by or on behalf of a registrant, provided that the
aggregate market value worldwide of the voting stock held by non-
affiliates of the registrant is the equivalent of $75 million or
more. In the case of securities registered pursuant to this
paragraph, the financial statements included in this registration
statement must comply with Item 18 of Form 20-F.
Instruction
The aggregate market value of the registrant's outstanding
voting stock shall be computed by use of the price at which the
stock was last sold, or the average of the bid and asked prices of
such stock, in the principal market for such stock as of a date
within 60 days prior to the date of filing. See the definition of
``affiliate'' in Securities Act Rule 405 (Sec. 230.405 of this
chapter).
2. Primary Offerings of Non-Convertible Investment Grade
Securities. Non-convertible securities to be offered for cash if
such securities are ``investment grade securities.'' A non-
convertible security is an ``investment grade security'' if, at the
time of sale, at least one nationally recognized statistical rating
organization (as that term is used in Rule 15c3-1(c)(2)(vi)(F) under
the Exchange Act (Sec. 240.15c3-1(c)(2)(vi)(F) of this chapter)) has
rated the security in one of its generic rating categories that
signifies investment grade; typically, the four highest rating
categories (within which there may be subcategories or gradations
indicating relative standing) signify investment grade. In the case
of securities registered pursuant to this paragraph, the financial
statements included in this registration statement may comply with
Item 17 or 18 of Form 20-F.
3. Transactions Involving Secondary Offerings. Outstanding
securities to be offered for the account of any person other than
the issuer, including securities acquired by standby underwriters in
connection with the call or redemption by the issuer of warrants or
a class of convertible securities. In the case of such securities,
the financial statements included in this registration statement may
comply with Item 17 or 18 of Form 20-F. In addition, Form F-3 may be
used by affiliates to register securities for resale pursuant to the
conditions specified in General Instruction C to Form S-8
(Sec. 239.16b of this chapter). In the case of such securities, the
financial statements included in this registration statement must
comply with Item 18 of Form 20-F (Sec. 249.220f of this chapter).
4. Rights Offerings, Dividend or Interest Reinvestment Plans,
and Conversions or Warrants. Securities to be offered: (a) upon the
exercise of outstanding rights granted by the issuer of the
securities to be offered, if such rights are granted pro rata to all
existing securityholders of the class of securities to which the
rights attach; or (b) pursuant to a dividend or interest
reinvestment plan; or (c) upon the conversion of outstanding
convertible securities or upon the exercise of outstanding
transferable warrants issued by the issuer of the securities to be
offered, or by an affiliate of such issuer. In the case of
securities registered pursuant to this paragraph, the financial
statements included in this registration statement may comply with
Item 17 or 18 of Form 20-F. The registration of securities to be
offered or sold in a standby underwriting in the United States or
similar arrangement is not permitted pursuant to this paragraph. See
paragraphs (b)(1), (2) and (3) of this section.
* * * * *
21. By adding paragraph C. to General Instruction II. of Form F-3
(Sec. 239.33) to read as follows:
Note: Form F-3 does not and these amendments will not appear in
the Code of Federal Regulations.
Form F-3
* * * * *
General Instructions
* * * * *
II. Application of General Rules and Regulations
* * * * *
C. Where two or more classes of securities being registered on
this Form pursuant to General Instruction I.B.1. or I.B.2. are to be
offered on a delayed or continuous basis pursuant to Rule
415(a)(1)(x) (Sec. 230.415(a)(1)(x) of this chapter), Rule 457(o)
(Sec. 230.457(o) of this chapter) permits the registration fee to be
calculated on the basis of the maximum offering price of all the
securities listed in the ``Calculation of Registration Fee'' table
(``Fee Table''). In this event, while the Fee Table would list each
of the classes of securities being registered and the aggregate
proceeds to be raised, the Fee Table need not specify for each class
information as to the amount to be registered, proposed maximum
offering price per unit and proposed maximum aggregate offering
price.
* * * * *
22. By revising the first sentence of General Instruction III. of
Form F-3 (Sec. 239.33) and removing the second and third sentences of
General Instruction III. of Form F-3 (Sec. 239.33) to read as follows:
Note: Form F-3 does not and these amendments will not appear in
the Code of Federal Regulations.
Form F-3
* * * * *
General Instructions
* * * * *
III. Dividend or Interest Reinvestment Plans: Filing and Effectiveness
of Registration Statement; Requests for Confidential Treatment
Original registration statements on this Form F-3 solely with
respect to securities offered pursuant to dividend or interest
reinvestment plans shall become effective automatically upon filing
(Rule 456, Sec. 230.456 of this chapter) pursuant to the provisions
of Section 8(a) of the Act (Rule 462, Sec. 230.462 of this chapter).
* * *
* * * * *
23. By amending Item 11 of Form F-3 (Sec. 239.33) by revising
paragraph (a), paragraph (b)(1) up to (i) and paragraph (b)(2) to read
as follows:
Note: Form F-3 does not and these amendments will not appear in
the Code of Federal Regulations.
Form F-3
* * * * *
Item 11. Material Changes
(a) Describe any and all material changes in the registrant's
affairs that have occurred since the end of the latest fiscal year
for which certified financial statements are included in this
registration statement in accordance with Item 12 of this Form and
that have not been described in a report on Form 6-K (Sec. 249.306
of this chapter), Form 10-Q (Sec. 249.308a of this chapter) or Form
8-K (Sec. 249.308 of this chapter) filed under the Exchange Act and
incorporated by reference pursuant to Item 12 of this Form.
(b)(1) Include in the prospectus, if not included in documents
incorporated by reference into the prospectus pursuant to Item 12 or
a prospectus previously filed pursuant to Rule 424 (b) or (c) under
the Securities Act or, where no prospectus was required to be filed
pursuant to Rule 424(b), the prospectus included in the registration
statement at effectiveness, or a Form 8-K filed during either of the
two preceding years: (i) * * *
(2) If the financial statements included in this registration
statement in 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 shall be presented (i) directly in the
prospectus, (ii) through incorporation by reference of a Form 6-K
identified in the prospectus as containing such financial
statements, or (iii) through incorporation by reference of an
amended Form 20-F, Form 40-F or Form 10-K, in which case the
prospectus shall disclose that the Form 20-F, Form 40-F or Form 10-K
has been so amended.
* * * * *
24. By amending Item 12 of Form F-3 (Sec. 239.33) by revising
paragraphs (a), (b) and (c) to read as follows:
Note: Form F-3 does not and these amendments will not appear in
the Code of Federal Regulations.
Form F-3
* * * * *
Item 12. Incorporation of Certain Information by Reference
(a) The registrant's latest Form 20-F, Form 40-F, Form 10-K or
Form 10 filed pursuant to the Exchange Act shall be incorporated by
reference. Any report on Form 10-Q or Form 8-K filed since the date
of filing of the annual report incorporated by reference also shall
be incorporated by reference. If capital stock is to be registered
and securities of the same class are registered under Section 12 of
the Exchange Act, the description of such class of securities which
is contained in a registration statement filed under the Exchange
Act, including any amendment or reports filed for the purpose of
updating such description shall be incorporated by reference.
Instruction * * *
(b) The prospectus shall also state that all subsequent annual
reports filed on Form 20-F, Form 40-F or Form 10-K, and all
subsequent filings on Forms 10-Q and 8-K filed by the registrant
pursuant to the Exchange Act, prior to the termination of the
offering, shall be deemed to be incorporated by reference into the
prospectus.
(c) The registrant may incorporate by reference any Form 6-K
meeting the requirements of this Form. If the registrant intends to
incorporate any Form 6-K subsequently submitted to the Commission,
the prospectus shall state that the registrant may incorporate such
Forms 6-K by identifying in such Forms that they are being
incorporated by reference into this Form.
Instructions
* * * * *
25. By revising Instruction 3. to the Signatures of Form F-3
(Sec. 239.33) to read as follows:
Note: Form F-3 does not and these amendments will not appear in
the Code of Federal Regulations.
Form F-3
* * * * *
Signatures
* * * * *
3. Where eligibility for use of the Form is based on the
assignment of a security rating pursuant to General Instruction
I.B.2., the registrant may sign the registration statement
notwithstanding the fact that such security rating has not been
assigned by the filing date, provided that the registrant reasonably
believes, and so states, that the security rating requirement will
be met by the time of sale.
26. By amending Form F-4 (Sec. 239.34) by revising General
Instruction B.1.(a) and B.1.(a)(ii)C., adding paragraph 3. to General
Instruction D., revising paragraphs (a), (b) and (c) of Item 10,
revising the introductory text and paragraphs (a)(1), (a)(2) and
Instruction 1 following paragraph (a)(3) of Item 11 to read as follows:
Note: Form F-4 does not and these amendments will not appear in
the Code of Federal Regulations.
Form F-4
* * * * *
General Instructions
* * * * *
B. Information With Respect to the Registrant
1. * * *
(a) Items 10 and 11 of this Form, if the registrant elects this
alternative and meets the following requirements for use of Form F-3
(Sec. 239.33 of this chapter) (hereinafter, with respect to the
registrant, ``meets the requirements for use of Form F-3'') for this
offering of securities:
(i) * * *
(ii) One of the following is met:
* * * * *
C. The registrant is a majority-owned subsidiary and one of the
conditions of General Instruction I.A.5. of Form F-3 is met.
* * * * *
D. Application of General Rules and Regulations
* * * * *
3. Where two or more classes of securities being registered on
this Form are to be offered on a delayed or continuous basis
pursuant to Rule 415(a)(1)(viii) (Sec. 230.415(a)(1)(viii) of this
chapter), Rule 457(o) (Sec. 230.457(o) of this chapter) permits the
registration fee to be calculated on the basis of the maximum
offering price of all the securities listed in the ``Calculation of
Registration Fee'' table (``Fee Table'') if the securities are being
registered by an issuer eligible to use Form F-3. In this event,
while the Fee Table would list each of the classes of securities
being registered and the aggregate proceeds to be raised, the Fee
Table need not specify for each class information as to the amount
to be registered, proposed maximum offering price per unit and
proposed maximum aggregate offering price.
* * * * *
Item 10. Information With Respect to Certain Form F-3 Registrants
* * * * *
(a) Describe any and all material changes in the registrant's
affairs that have occurred since the end of the latest fiscal year
for which audited financial statements are incorporated by reference
in accordance with Item 11 of this Form and that have not been
described in a report on Form 6-K (Sec. 249.306 of this chapter),
Form 10-Q (Sec. 249.308a of this chapter) or Form 8-K (Sec. 249.308
of this chapter) filed under the Exchange Act;
(b) If the financial statements incorporated by reference in
accordance with Item 11 of this Form are not sufficiently current to
comply with Rule 3-19 of Regulation S-X (Sec. 210.3-19 of this
chapter), financial statements necessary to comply with that rule
shall be presented either in the prospectus, in an amended Form 20-
F, 40-F or 10-K (in which case the prospectus shall disclose that
such form has been so amended), or in a Form 6-K, Form 10-Q or Form
8-K; and
(c) Include in the prospectus, if not incorporated by reference
from the documents filed under the Exchange Act specified in Item 11
of this Form, from a prospectus previously filed pursuant to Rule
424(b) or (c) under the Securities Act (Sec. 230.424 of this
chapter) or, where no prospectus was required to be filed pursuant
to Rule 424(b), the prospectus included in the registration
statement at effectiveness, or from a Form 6-K filed during either
of the two preceding fiscal years:
* * * * *
Item 11. Incorporation of Certain Information by Reference
If the registrant furnishes information in accordance with the
provisions of Item 10 of this Form:
(a) * * *
(1) The registrant's latest annual report on Form 20-F, on Form
10-K or, in the case of registrants described in General Instruction
A.(2) of Form 40-F, on Form 40-F filed pursuant to section 13(a) or
15(d) of the Exchange Act which contains financial statements for
the registrant's latest fiscal year for which a Form 20-F, Form 10-K
or Form 40-F was required to be filed;
(2) All reports filed pursuant to sections 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the
financial statements in the report or registration statement
incorporated pursuant to Item 11(a)(1) of this Form; and
* * * * *
Instructions
1. All annual reports or registration statements incorporated by
reference pursuant to Item 11 of this Form shall contain financial
statements that comply with Item 18 of Form 20-F except that
financial statements of the registrants may comply with Item 17 of
Form 20-F if the only securities being registered are investment
grade securities as defined in the General Instructions to Form F-3.
* * * * *
27. By amending Form F-4 (Sec. 239.34) by revising the second
sentence of the introductory text of Item 12, revising the introductory
text of paragraph (a), paragraph (a)(1), the introductory text of
paragraph (a)(2), paragraphs (a)(3) and (a)(4), the introductory text
of paragraph (b), the first sentence of paragraph (b)(2), and paragraph
(b)(3)(vii) of Item 12 to read as follows:
Note: Form F-4 does not and these amendments will not appear in
the Code of Federal Regulations.
Form F-4
* * * * *
Item 12. Information With Respect to F-2 or F-3 Registrants
* * * However, the registrant shall not provide prospectus
information in the manner allowed by paragraph (a) of this Item if
the financial statements incorporated by reference pursuant to Item
13 of this Form reflect: (1) * * *
(a) If the registrant elects to deliver this prospectus together
with the annual report incorporated by reference pursuant to Item
13, or a complete and legible facsimile thereof:
(1) Indicate that the prospectus is accompanied by such annual
report or registration statement.
(2) If the financial statements incorporated by reference
pursuant to Item 13 of this Form are not sufficiently current to
comply with Rule 3-19 of Regulation S-X, provide the information
required by Rule 10-01 of Regulation S-X and Item 9 of Form 20-F by
one of the following means: * * *
(3) If not reflected in the registrant's annual report
incorporated by reference in accordance with Item 13 of this Form,
provide information required by Rule 3-05 and Article 11 of
Regulation S-X with respect to transactions other than that pursuant
to which the securities being registered are to be issued.
(4) Describe any and all material changes in the registrant's
affairs that have occurred since the end of the latest fiscal year
for which audited financial statements are incorporated by reference
in accordance with Item 13 of this Form and that have not been
described in a report on Form 6-K, Form 10-Q or Form 8-K delivered
with the prospectus in accordance with paragraph (2)(ii) of this
Item.
(5) * * *
(b) If the registrant elects not to deliver its annual report
incorporated by reference pursuant to Item 13 to the securityholders
of the company to be acquired:
(1) * * *
(2) Include financial statements and information as required by
Item 18 of Form 20-F, except that financial statements of the
registrants may comply with Item 17 of Form 20-F if the only
securities being registered are investment grade securities as
defined in the General Instructions to Form F-2. * * *
(3) * * *
(vii) Financial statements required by Item 18 of Form 20-F,
except that financial statements of the registrants may comply with
Item 17 of Form 20-F if the only securities being registered are
investment grade securities as defined in the General Instructions
to Form F-2, and financial information required by Rule 3-05 and
Article 11 of Regulation S-X with respect to transactions other than
that pursuant to which the securities being registered are to be
issued (Schedules required under Regulation S-X shall be filed as
``Financial Statement Schedules'' pursuant to Item 21 of this Form,
but need not be provided with respect to the company being acquired
if information is being furnished pursuant to Item 17(a) of this
Form); and
* * * * *
28. By amending Form F-4 (Sec. 239.34) by revising Item 13,
revising the introductory text of Item 14 and revising paragraph (h) of
Item 14 to read as follows and revising the phrase ``Section 13(a) or
15(d) of the Exchange Act, or'' to read ``Section 13(a) or 15(d) of the
Exchange Act, and'' in paragraph (a) of Item 17:
Note: Form F-4 does not and these amendments will not appear in
the Code of Federal Regulations.
Form F-4
* * * * *
Item 13. Incorporation of Certain Information by Reference
If the registrant furnishes information in accordance with the
provisions of Item 12 of this Form, incorporate by reference into
the prospectus, by means of a statement to that effect in the
prospectus listing all documents so incorporated, the documents
listed in paragraphs (a) and, if applicable, (b) below:
(a) The registrant's latest annual report on Form 20-F, on Form
10-K or, in the case of registrants described in General Instruction
A.(2) of Form 40-F, on Form 40-F filed pursuant to Section 13(a) or
15(d) of the Exchange Act which contains audited financial
statements for the registrant's latest fiscal year for which a Form
20-F, Form 10-K or Form 40-F was required to be filed; and
(b) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered by the
financial statements in the report incorporated pursuant to Item
13(a) of this Form.
Instructions
1. All annual reports incorporated by reference pursuant to Item
13 of this Form shall contain financial statements that comply with
Item 18 of Form 20-F, except that financial statements of the
registrants may comply with Item 17 of Form 20-F if the only
securities being registered are investment grade securities as
defined in the General Instructions to Form F-2.
2. Where common equity securities are being issued, the
information required by Item 5 of Form 20-F, nature of trading
markets, should be updated to cover any subsequent interim periods
for which interim financial statements are required to be included
to comply with Rule 3-19 of Regulation S-X. Such updating may be
made in the prospectus, in an amended Form 20-F, Form 10-K or Form
40-F or in a Form 6-K, Form 10-Q or Form 8-K.
3. The registrant may incorporate by reference and deliver with
the prospectus any Form 6-K, Form 10-Q or Form 8-K containing
information meeting the requirements of Form F-2. See Rules 4-
01(a)(2) and 10-01 of Regulation S-X and Item 18 of Form 20-F.
4. Attention is directed to Rule 439 regarding consent to the
use of material incorporated by reference.
Item 14. Information With Respect to Foreign Registrants Other Than F-2
or F-3 Registrants
If the foreign registrant does not meet the requirements for use
of Form F-2 or F-3, or otherwise elects to comply with this Item in
lieu of Items 10 and 11 or Items 12 and 13, furnish the following
information:
* * * * *
(h) Financial statements required by Item 18 of Form 20-F,
except that financial statements of the registrants may comply with
Item 17 of Form 20-F if the only securities being registered are
investment grade securities as defined in the General Instructions
to Form F-1, as well as financial information required by Rule 3-05
and Article 11 of Regulation S-X with respect to transactions other
than that pursuant to which the securities being registered are to
be issued (Schedules required by Regulation S-X shall be filed as
``Financial Statement Schedules'' pursuant to Item 21 of this Form);
and
* * * * *
PART 249--FORMS, SECURITIES EXCHANGE ACT OF 1934
29. The authority citation for Part 249 continues to read in part
as follows:
Authority: 15 U.S.C. 78a, et seq., unless otherwise noted;
* * * * *
30. By amending Form 20-F (Sec. 249.220f) by adding one sentence to
the end of Instruction 7 to Item 8; and in Item 17 revising paragraph
(a), removing paragraph (c)(2), redesignating paragraph (c)(3) as
paragraph (c)(2), in newly designated paragraph (c)(2), adding one
sentence to the end of paragraph (c)(2)(i) before the table,
redesignating paragraph (c)(2)(iii) as (c)(2)(iv), adding paragraphs
(c)(2)(iii), (c)(2)(v), (c)(2)(vi) and (c)(2)(vii), and adding
Instruction (4) to read as follows:
Note: Form 20-F does not and these amendments will not appear in
the Code of Federal Regulations.
Form 20-F
* * * * *
Item 8. Selected Financial Data
* * * * *
Instructions
* * * * *
7. * * * Selected financial data on a basis reconciled to U.S.
generally accepted accounting principles need be provided only for
(i) those periods for which the primary annual financial statements
have been required to be reconciled in a filing made under the
Securities Act or Exchange Act, and (ii) any interim periods.
* * * * *
Item 17. Financial Statements
(a) The registrant shall furnish financial statements for the
same fiscal years and accountants' reports that would be required to
be furnished if the registration statement were on Form 10 or the
annual report on Form 10-K. Schedules designated by Secs. 210.12-04,
210.12-09, 210.12-10, 210.12-11, 210.12-15, 210.12-16, 210.12-17,
210.12-18, 210.12-28 and 210.12-29 of this chapter shall be
furnished if applicable to the registrant.
* * * * *
(c) * * *
(2) * * *
(i) * * * However, reconciliation of net income of the earliest
of the three years may be omitted if that information has not
previously been included in a filing made under the Securities Act
or Exchange Act.
* * * * *
(iii) For each period for which an income statement is presented
and required to be reconciled to generally accepted accounting
principles in the United States, provide either a statement of cash
flows prepared in accordance with generally accepted accounting
principles in the United States or with International Accounting
Standard No. 7, as amended in October 1992; or furnish in a note to
the financial statements a quantified description of the material
differences between cash or funds flows reported in the primary
financial statements and cash flows that would be reported in a
statement of cash flows prepared in accordance with accounting
principles generally accepted in the United States.
* * * * *
(v) Issuers that prepare financial statements on a basis of
accounting other than U.S. generally accepted accounting principles
that are furnished for a business acquired or to be acquired
pursuant to Sec. 210.3-05 of this chapter may omit the disclosures
specified by paragraphs (c)(2)(i), (c)(2)(ii) and (c)(2)(iii) of
this Item if the conditions specified in the definition of a
significant subsidiary in Sec. 210.1-02(v) of this chapter do not
exceed 30 percent.
(vi) Issuers that prepare financial statements on a basis of
accounting other than U.S. generally accepted accounting principles
that are furnished for a less-than-majority-owned investee pursuant
to Sec. 210.3-09 of this chapter may omit the disclosures specified
by paragraphs (c)(2)(i), (c)(2)(ii) and (c)(2)(iii) of this Item if
the first and third conditions specified in the definition of a
significant subsidiary in Sec. 210.1-02(v) of this chapter do not
exceed 30 percent.
(vii) Issuers that prepare financial statements on a basis of
accounting other than U.S. generally accepted accounting principles
that allows proportionate consolidation for investments in joint
ventures that would be accounted for under the equity method
pursuant to U.S. GAAP may omit differences in classification or
display that result from using proportionate consolidation in the
reconciliation to U.S. GAAP specified by paragraphs (c)(2)(i),
(c)(2)(ii) and (c)(2)(iii) of this Item; Provided, the joint venture
is an operating entity, the significant financial operating policies
of which are, by contractual arrangement, jointly controlled by all
parties having an equity interest in the entity. Financial
statements that are presented using proportionate consolidation must
provide summarized balance sheet and income statement information
using the captions specified in Sec. 210.1-02(aa) of this chapter
and summarized cash flow information resulting from operating,
financing and investing activities relating to its pro rata interest
in the joint venture.
* * * * *
Instructions
* * * * *
(4) If the cash flows statement prepared under the basis of
accounting used in the primary financial statements complies with
International Accounting Standard No. 7 or U.S. GAAP, a statement to
this effect must be included in the financial statements or the
accountant's report. If the cash flows statement in the primary
financial statements is prepared in accordance with either U.S. GAAP
or International Accounting Standard No. 7 but such presentation
departs from the comprehensive body of accounting principles
otherwise followed in the financial statements, the reference to the
departure in the accountant's report must identify the body of
accounting standards used in preparing the cash flow statement. If a
supplemental cash flows statement that complies with either
International Accounting Standards or U.S. generally accepted
accounting principles is furnished in a note to the financial
statements, the body of accounting standards used in preparing the
statement must be indicated. The basis of presentation must be
consistent for all periods.
31. By amending Item 18 of Form 20-F (Sec. 249.220f) by revising
paragraph (a), removing paragraph (c)(2), redesignating paragraph
(c)(3) as paragraph (c)(2), and redesignating paragraph (c)(4) as
paragraph (c)(3), in newly redesignated paragraph (c)(2), adding one
sentence to the end of paragraph (c)(2)(i) before the table,
redesignating paragraph (c)(2)(iii) as paragraph (c)(2)(iv) and adding
paragraphs (c)(2)(iii), (c)(2)(v), (c)(2)(vi) and (c)(2)(vii), adding
one sentence to the end of newly designated paragraph (c)(3), and
adding Instruction 3 to the Instructions to Item 18 to read as follows:
Note: Form 20-F does not and these amendments will not appear in
the Code of Federal Regulations.
Form 20-F
* * * * *
Item 18. Financial Statements
* * * * *
(a) The registrant shall furnish financial statements for the
same fiscal years and accountants' reports that would be required to
be furnished if the registration statement were on Form 10 or the
annual report on Form 10-K. Schedules designated by Secs. 210.12-04,
210.12-09, 210.12-10, 210.12-11, 210.12-15, 210.12-16, 210.12-17,
210.12-18, 210.12-28 and 210.12-29 of this chapter shall be
furnished if applicable to the registrant.
* * * * *
(c) * * *
(2) * * *
(i) * * * However, reconciliation of net income of the earliest
of the three years may be omitted if that information has not
previously been included in a filing made under the Securities Act
or Exchange Act.
* * * * *
(iii) For each period for which an income statement is presented
and required to be reconciled to generally accepted accounting
principles in the United States, provide either a statement of cash
flows prepared in accordance with generally accepted accounting
principles in the U.S. or with International Accounting Standard No.
7, as amended in October 1992; or furnish in a note to the financial
statements a quantified description of the material differences
between cash or funds flows reported in the primary financial
statements and cash flows that would be reported in a statement of
cash flows prepared in accordance with accounting principles
generally accepted in the United States.
* * * * *
(v) Issuers that prepare financial statements on a basis of
accounting other than U.S. generally accepted accounting principles
that are furnished for a business acquired or to be acquired
pursuant to Sec. 210.3-05 of this chapter may omit the disclosures
specified by paragraphs (c)(2)(i), (c)(2)(ii) and (c)(2)(iii) of
this Item if the conditions specified in the definition of a
significant subsidiary in Sec. 210.1-02(v) of this chapter do not
exceed 30 percent.
(vi) Issuers that prepare financial statements on a basis of
accounting other than U.S. generally accepted accounting principles
that are furnished for a less-than-majority-owned investee pursuant
to Sec. 210.3-09 of this chapter may omit the disclosures specified
by paragraphs (c)(2)(i), (c)(2)(ii) and (c)(2)(iii) of this Item if
the first and third conditions specified in the definition of a
significant subsidiary in Sec. 210.1-02(v) of this chapter do not
exceed 30 percent.
(vii) Issuers that prepare financial statements on a basis of
accounting other than U.S. generally accepted accounting principles
that allows proportionate consolidation for investments in joint
ventures that would be accounted for under the equity method
pursuant to U.S. GAAP may omit differences in classification or
display that result from using proportionate consolidation in the
reconciliation to U.S. GAAP specified by paragraphs (c)(2)(i),
(c)(2)(ii) and (c)(2)(iii) of this Item; Provided, the joint venture
is an operating entity, the significant financial operating policies
of which are, by contractual arrangement, jointly controlled by all
parties having an equity interest in the entity. Financial
statements that are presented using proportionate consolidation must
provide summarized balance sheet and income statement information
using the captions specified in Sec. 210.1-02(aa) of this chapter
and summarized cash flow information resulting from operating,
financing and investing activities relating to its pro rata interest
in the joint venture.
* * * * *
(3) * * * 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
investee pursuant to Sec. 210.3-09 of this chapter.
* * * * *
Instructions
* * * * *
(3) If the cash flows statement prepared under the basis of
accounting used in the primary financial statements complies with
International Accounting Standard No. 7 or U.S. GAAP, a statement to
this effect must be included in the financial statements or the
accountant's report. If the cash flows statement in the primary
financial statements is prepared in accordance with either U.S. GAAP
or International Accounting Standard No. 7 but such presentation
departs from the comprehensive body of accounting principles
otherwise followed in the financial statements, the reference to the
departure in the accountant's report must identify the body of
accounting standards used in preparing the cash flow statement. If a
supplemental cash flows statement that complies with either
International Accounting Standards or U.S. generally accepted
accounting principles is furnished in a note to the financial
statements, the body of accounting standards used in preparing the
statement must be indicated. The basis of presentation must be
consistent for all periods.
* * * * *
By the Commission.
Dated: April 19, 1994.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 94-9846 Filed 4-25-94; 8:45 am]
BILLING CODE 8010-01-P