[Federal Register Volume 62, Number 142 (Thursday, July 24, 1997)]
[Rules and Regulations]
[Pages 39755-39770]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-19444]
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SECURITIES AND EXCHANGE COMMISSION
17 CFR Parts 228, 229, 230, 232, 239, 240, and 249
[Release Nos. 33-7431 and 34-38850; S7-15-96]
RIN 3235-AG80
Phase Two Recommendations of Task Force on Disclosure
Simplification
AGENCY: Securities and Exchange Commission.
ACTION: Final rules.
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SUMMARY: In response to the Report of the Task Force on Disclosure
Simplification, the Commission proposed for comment the elimination and
amendment of certain forms and rules to simplify the disclosure
process. After reviewing the comment letters received on the
Commission's proposals, the Commission is rescinding two forms and one
rule that are no longer necessary or appropriate for the protection of
investors. The Commission also is adopting one rule and amending a
number of rules and forms in order to eliminate unnecessary
requirements and to streamline the disclosure process.
EFFECTIVE DATE: The new rule and amendments will become effective
September 2, 1997. If the EDGAR programming on the amendments affecting
Form 8-A (17 CFR 249.208a) and Rule 462(d) (17 CFR 230.462(d)) is not
completed by this date, the Commission will select a later effective
date for these two amendments and issue an appropriate notice of that
date.
FOR FURTHER INFORMATION CONTACT: Felicia H. Kung, Division of
Corporation Finance, at (202) 942-2990.
SUPPLEMENTARY INFORMATION: After considering certain recommendations of
the Task Force on Disclosure Simplification, as well as the comment
letters received by the Commission on its proposals to implement these
recommendations, the Commission today is adopting amendments to Item
701 1 of Regulation S-B,2 Item 701 3
of Regulation S-K,4 Rule 401,5 Rule
404,6 Rule 424,7 Rule 462,8 Rule
463,9 and Rule 497 10 under the Securities Act of
1933 (``Securities Act'').11 In addition, the Commission is
rescinding Rule 101(c)(5) under Regulation S-T.12 Amendments
are being adopted to Form D,13 Form SB-1,14 Form
SB-2,15 Form S-1,16 Form S-2,17 Form
S-3,18 Form S-11,19 Form S-4,20 Form
F-1,21 Form F-2,22 and Form F-4 23
under the Securities Act. In addition, the Commission is rescinding
Form SR 24 under the Securities Act, and Rule 13a-2
25 and Form 8-B 26 under the Securities Exchange
Act of 1934 (``Exchange Act'').27 The Commission is adopting
Rule 12a-8 28 under the Exchange Act. In addition,
amendments are being adopted with respect to the following Exchange Act
rules and forms: Rule 12d1-2,29 Rule 12g-3,30
Rule 13a1,31 Rule 15d-3,32 Rule 15d-
5,33 Form 8-A,34 Form 10,35 Form 20-
F,36 Form 10-Q,37 Form 10-QSB,38 Form
10-K,39 and Form 10-KSB.40
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\1\ 17 CFR 228.701.
\2\ 17 CFR part 228.
\3\ 17 CFR 229.701.
\4\ 17 CFR part 229.
\5\ 17 CFR 230.401.
\6\ 17 CFR 230.404.
\7\ 17 CFR 230.424.
\8\ 17 CFR 230.462.
\9\ 17 CFR 230.463.
\10\ 17 CFR 230.497.
\11\ 15 U.S.C. 77a et seq.
\12\ 17 CFR 232.101(c)(5).
\13\ 17 CFR 239.500.
\14\ 17 CFR 239.9.
\15\ 17 CFR 239.10.
\16\ 17 CFR 239.11.
\17\ 17 CFR 239.12.
\18\ 17 CFR 239.13.
\19\ 17 CFR 239.18.
\20\ 17 CFR 239.25.
\21\ 17 CFR 239.31.
\22\ 17 CFR 239.32.
\23\ 17 CFR 239.34.
\24\ 17 CFR 239.61.
\25\ 17 CFR 240.13a-2.
\26\ 17 CFR 249.208b.
\27\ 15 U.S.C. 78a et seq.
\28\ 17 CFR 240.12a-8.
\29\ 17 CFR 240.12d1-2.
\30\ 17 CFR 240.12g-3.
\31\ 17 CFR 240.13a-1.
\32\ 17 CFR 240.15d-3.
\33\ 17 CFR 240.15d-5.
\34\ 17 CFR 249.208a.
\35\ 17 CFR 249.210.
\36\ 17 CFR 249.220f.
\37\ 17 CFR 249.308a.
\38\ 17 CFR 249.308b.
\39\ 17 CFR 249.310.
\40\ 17 CFR 249.310b.
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I. Background
In March 1996, the Commission's Task Force on Disclosure
Simplification (``Task Force'') presented its Report 41
recommending the elimination or modification of many rules and forms,
and proposing suggestions for simplifying significant aspects of
securities offerings to the Commission. As a result of the Task Force
Report, the Commission eliminated 44 rules and four forms last
May.42
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\41\ The Task Force Report is available for inspection and
copying in the Commission's public reference room. The Report also
is posted on the Commission's Internet web site (http://
www.sec.gov).
\42\ Release No. 33-7300 (May 31, 1996) [61 FR 30397].
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At the same time that the Commission adopted those changes, it
issued a release proposing for comment the elimination or streamlining
of additional requirements.43 The proposals contained in
that release were based on the Commission's further consideration of
the Task Force recommendations.
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\43\ Release No. 33-7301 (May 31, 1996) [61 FR 30405]
(``Proposing Release'').
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After reviewing the comment letters received 44 and
further considering the proposals, the Commission has determined to
adopt most of the proposals, with certain modifications discussed
below. Two of the proposals are not being adopted. First, the
Commission had proposed that the Form D federal filing requirement be
eliminated for the Regulation D and Section 4(6) exemptions. Filers
would have had to continue to prepare Form D and retain it, but not
file it with the
[[Page 39756]]
Commission. After further consideration, the Commission has determined
that the information contained in Form D is still useful to the
Commission in conducting economic and other analyses of the private
placement market. Since the burden of having to file the Form with the
Commission is minimal once the filer has prepared the Form, the
Commission has determined to retain this requirement.45
Second, the Commission has decided to defer consideration of the
proposal to permit concurrent registration of a public offering under
the Securities Act and a class of securities under the Exchange Act by
filing a single form pending consideration of programming issues
affecting the Commission's Electronic Data Gathering, Analysis and
Retrieval (``EDGAR'') computer system and modifications to the
Commission's record-keeping system that would be required.
Nevertheless, the amendments to the short form Exchange Act
registration statement, Form 8-A, that are being adopted today (as
outlined below) should substantially reduce burdens on issuers. Action
may be taken at a later date on the concurrent registration proposal.
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\44\ The eight comment letters received are available for
inspection and copying in the Commission's public reference room.
Refer to file number S7-15-96. Comment letters that were submitted
via electronic mail may be viewed at the Commission's web site:
http://www.sec.gov.
\45\ The Commission is making a conforming change to the text of
Form D that became necessary as a result of the revisions to
Regulation A in 1992 (Release No. 33-6949 (July 30, 1992) [57 FR
36442]). Those revisions moved, without textual change, the
disqualification provisions of the exemption from Rule 252(c), (d),
(e) and (f), to Rule 262. The text of the first question in Part E
of Form D is being revised to reflect this change.
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The following summarizes the Commission's principal actions
contained in this release: 46
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\46\ The Commission also is adopting two technical amendments
that result from the elimination of the cross-reference sheet
required by former Item 501(b) of Regulation S-K. Release No. 33-
7300. Rule 404 [17 CFR 230.404] under the Securities Act and General
Instruction II.B. of Form S-3 [17 CFR 239.13] under the Securities
Act are being amended to eliminate references to the cross-reference
sheet.
Regulation S-K. Release No. 33-7300. Rule 404 (17 CFR 230.404)
under the Securities Act and General Instruction II.B. of Form S-3
(17 CFR 239.13) under the Securities Act are being amended to
eliminate references to the cross-reference sheet.
Additionally, the Commission is making technical corrections to
Forms 10-K, 10-KSB and 20-F to remove the ``Fee Required'' caption
on the cover page of these Forms. The Commission eliminated the fees
associated with these Forms in September 1996. Release No. 33-7331
(September 17, 1996) (61 FR 49957). A technical amendment to General
Instruction I of Form 10-K also is being adopted to correct an
inaccurate reference to former General Instruction J of that Form.
The Commission also is adopting technical amendments to Forms S-
4 and F-4 to clarify that an issuer may use these Forms to increase
the size of a previously registered offering. As with other forms,
the issuer files an abbreviated registration statement to register
additional securities in an amount and at a price that together
represent no more than a 20% increase in the maximum aggregate
offering price set forth in the earlier effective registration
statement. These amendments were adopted to other Securities Act
registration forms in May 1995 (Release No. 33-7168 (May 11, 1995)
[60 FR 26604]) and should have been adopted with respect to Forms S-
4 and F-4.
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Form SR, the use of proceeds report for initial public
offerings, is eliminated, and the information currently required by
Form SR is required in Exchange Act periodic reports;
Form 8-A, the short-form registration statement used by
reporting companies to register a class of securities under the
Exchange Act, is amended to permit automatic effectiveness for all such
forms filed and to eliminate certain exhibit requirements;
Form 8-B, which pertains to the registration of the
securities of successor issuers, is eliminated;
American Depositary Receipts (``ADRs'') listed on a national
securities exchange and registered on Form F-6 47 under the
Securities Act are exempted from the registration requirements of
Section 12(b) 48 of the Exchange Act, although the
underlying class of securities is not;
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\47\ 17 CFR 239.36.
\48\ 15 U.S.C. 78l(b).
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Rule 401(c) under the Securities Act is amended to permit an
issuer to switch to a shorter Securities Act form at the time any
amendment is filed if the issuer has become eligible to use the shorter
form;
The special filing requirements for radio and television
broadcast prospectuses are being eliminated, so that such prospectuses
will be filed according to the same requirements applicable to all
other prospectuses; and
Post-effective amendments to Securities Act registration
statements filed solely to add exhibits will become effective
automatically upon filing.
II. Forms
A. Form SR
The Commission is eliminating Form SR, the form used by issuers to
report their use of proceeds following an initial public offering.
Instead, this information will be included in the issuer's Exchange Act
periodic reports. The Commission believes that this will make the use
of proceeds information more accessible to investors, as these reports
are more commonly monitored by the public than Form SR. This
information will continue to be required only of first-time
registrants.
Currently, Securities Act Rule 463 requires issuers to report on
Form SR their use of proceeds following an initial public offering
within ten days of the first three months following the effective date
of the registration statement, and every six months thereafter, until
the later of the termination of the offering or the application of all
the offering proceeds.49 This Rule is amended to require a
first-time registrant to report the use of proceeds in its first
periodic Exchange Act report (quarterly report or annual report,
whichever is filed first) after effectiveness, and thereafter in each
of its periodic Exchange Act reports until the registrant has disclosed
the use of all of the proceeds or disclosed the termination of the
offering, whichever is later.50 Although reporting issuers
will now be required to report use of proceeds information on a more
frequent basis, the elimination of Form SR and the consolidation of
disclosure requirements into the periodic reporting forms should ease
reporting burdens on issuers by reducing the number of forms they will
be required to file.51
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\49\ Issuers filed 1,753 Forms SR in fiscal year 1995 and 1,654
Forms SR in fiscal year 1996.
\50\ The Commission also is adopting amendments to Item 701 of
Regulation S-K and Item 701 of Regulation S-B that require all of
the information currently required by Form SR, and amendments to
certain periodic reporting forms under the Exchange Act (Forms 10-Q,
10-QSB, 10-K, and 10-KSB) to cross-reference these disclosure items.
\51\ The Commission had proposed incorporating all of the
requirements of Form SR into each form of Exchange Act periodic
report. In the Proposing Release, however, the Commission solicited
comment on whether to streamline the periodic report forms by
amending Regulations S-B and S-K to include Item 701(f), which
incorporates the Form SR requirements, and amending each Exchange
Act periodic report to cross-reference this Item. The latter
approach has been implemented for all of the relevant Exchange Act
periodic reporting forms except Form 20-F, which does not contain
cross-references to Regulation S-K.
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In addition, the Commission is adopting amendments to Form 20-F,
the Exchange Act annual report form applicable to foreign private
issuers,52 to require disclosure of the use of proceeds
information previously contained in Form SR. Foreign private issuers,
unlike domestic issuers, are not required to file quarterly reports
under the Exchange Act, but are required to submit to the Commission
periodic reports prepared in accordance with home jurisdiction
requirements. As a result, foreign private issuers will be reporting
the use of proceeds information on an annual, rather than quarterly,
basis.
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\52\ ``Foreign private issuer'' is defined in Exchange Act Rule
3b-4(c) (17 CFR 240.3b-4(c)).
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Although the disclosure requirements of Form SR are otherwise
incorporated into the periodic reports without change, the Commission
is adjusting the
[[Page 39757]]
reporting threshold that triggers disclosure of use of proceeds
information to account for inflation. The previous reporting thresholds
used in Form SR, the lesser of five percent of the issuer's total
offering proceeds or $50,000, were established in 1971. The Commission
is raising the reporting threshold under Item 701 to the lesser of five
percent of the issuer's total offering proceeds or
$100,000.53
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\53\ This amendment raises the threshold from that suggested in
the Proposing Release, which simply retained the threshold found in
Form SR. The Commission solicited comment on raising the threshold.
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B. Form 8-A
The Commission is adopting amendments to permit automatic
effectiveness of all registration statements made on Form 8-A, the
short form registration statement used by a currently reporting company
to register a class of securities under Section 12 of the Exchange
Act.54 The amendments should reduce burdens on filers, and
eliminate the current disparate treatment of debt and equity securities
registered on that Form. The Commission also is adopting certain
technical amendments to streamline the Form and further minimize
burdens on filers. Form 8-A requires only a description of the
registrant's securities pursuant to Item 202 of Regulation S-K
55 and the filing of certain exhibits.56
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\54\ 15 U.S.C. 78l. In 1994, the Commission amended its rules to
permit a Form 8-A filed with respect to a class of debt securities
to be listed on a national securities exchange to become effective
simultaneously with the effectiveness of the Securities Act
registration statement pertaining to such debt securities. See
Release No. 34-34922 (Nov. 1, 1994) [59 FR 55342]. The amendments to
Rule 12d1-2 adopted today clarify the automatic effectiveness
procedure applicable to debt securities.
\55\ 17 CFR 229.202. The Commission has amended Form 8-A to
require a description of the registrant's securities pursuant to
Item 202 of Regulation S-B (17 CFR 228.202) for small business
issuers that use Form 8-A.
\56\ Form 8-A registration statements may incorporate by
reference information that is contained in other filings made with
the Commission.
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Consistent with current staff practice, an issuer registering an
initial public offering will be permitted to use Form 8-A even though
it will not be subject to reporting until after the effectiveness of
that Securities Act registration statement.
Currently, a Form 8-A that is filed to register debt securities is
effective automatically. The Commission has determined that there is no
reason to differentiate in this respect between debt and equity
securities. Staff review of these filings is redundant, given that the
Form largely incorporates by reference information contained in other
Commission filings that are subject to staff review. Because the
quality of the disclosure available to the public will not be
compromised, the Commission is adopting amendments today to make all
registration statements filed on Form 8-A effective
automatically.57
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\57\ See amendments to Rule 12d1-2. Acceleration requests will
no longer be required for Forms 8-A, and no effectiveness orders
will be issued with respect to such Forms. A Form 8-A filed to
register a class of securities under Section 12(b) will become
effective upon the later of the filing of the Form 8-A, the
Commission's receipt of certification from the national securities
exchange, or (if the class of securities is concurrently being
registered under the Securities Act) the effectiveness of the
related Securities Act registration statement. With respect to a
class of securities registered under Section 12(g) of the Exchange
Act, the Form 8-A will become effective upon filing, or if the class
of securities is concurrently being registered under the Securities
Act, the effectiveness of the related Securities Act registration
statement, whichever is later. Filers will check the cover page of
the Form indicating whether registration is sought under Section
12(b) or 12(g), and also will use the appropriate EDGAR form type.
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In addition, after soliciting comments from the national securities
exchanges and considering the responses received, the Commission has
determined that the copy of Form 8-A filed with each relevant national
securities exchange need no longer contain certain exhibits because
issuers must provide the same information as part of the listing
application to the national securities exchanges. As a result, the
Commission is eliminating the requirement to file these exhibits with
the exchanges.58
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\58\ These exhibits include, for example, copies of the last
annual report filed pursuant to Sections 13 or 15(d) of the Exchange
Act, copies of the latest definitive proxy statement filed with the
Commission, and copies of the issuer's charter and by-laws.
Accordingly, the exhibits are already publicly available.
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The amendments adopted today will render the Form 8-A merely a
notice of Section 12 registration that becomes effective automatically.
The Commission has determined that the Form better serves its purpose
as a notice if the Commission is notified separately of each national
securities exchange on which a class of securities is registered. As a
result, if an issuer is registering a class of securities on two or
more national securities exchanges, it should file a separate Form 8-A
for each exchange listing.
As noted above, the Commission has deferred action on its proposal
to permit concurrent Securities Act and Exchange Act registration
without the filing of Form 8-A. The Commission will continue to review
Exchange Act registration and the circumstances in which Form 8-A is
filed in the context of its ongoing efforts to streamline the
registration process.
C. Form 8-B
The Commission has determined that Exchange Act Form 8-B, the
registration statement for certain successor issuers, is of limited
usefulness. Most successor issuers do not need to file a new
registration statement, since they come within the purview of Rule 12g-
3. Under this Rule, successor issuers automatically inherit the
Exchange Act reporting obligations of their predecessors, and file a
Form 8-K to note the succession. As amended today, Rule 12g-3 will
address all situations in which an issuer succeeds to an Exchange Act
registered issuer, so that successor issuers will no longer need to
file Form 8-B.
Adopted in 1936, Form 8-B is used by an issuer to register its
securities when the issuer has no securities registered under Section
12 of the Exchange Act, but has succeeded to an issuer that has
securities registered under Section 12 at the time of the
succession.59 In order to simplify the registration
requirements for successor issuers and eliminate interpretive questions
about this little-used Form, the Commission is rescinding Form 8-B
today.60
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\59\ 15 U.S.C. 78I. ``Succession'' is defined in Exchange Act
Rule 12b-2 (17 CFR 240.12b-2). In the fiscal years 1995 and 1996,
the Commission received only 57 and 58 Form 8-B filings,
respectively.
\60\ The Commission also is adopting certain technical
amendments to account for the elimination of Form 8-B. Conforming
language changes are adopted with respect to Rule 13a-1 of the
Exchange Act, and Rule 13a-2 of the Exchange Act is eliminated. The
Commission is adopting amendments to Rule 12g-3 to incorporate the
substance of these Rules.
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The Commission is adopting amendments to Rule 12g-3 to include any
transactions or securities that were previously covered by Form 8-B,
but not by Rule 12g-3. Pursuant to Rule 12g-3, the equity securities of
a non-reporting issuer that succeeds an issuer with equity securities
registered under Section 12 are automatically deemed to be registered
under Section 12 if the succession occurred by means of merger,
consolidation, exchange of securities or acquisition of assets. Rule
12g-3 is now being amended to include other transactions, such as the
succession of a non-reporting issuer to more than one reporting issuer,
either through consolidation into a new entity or a holding company
formation. Currently, in this type of succession, both existing issuers
must deregister their securities under the Exchange Act, and the
successor must file a Form 8-B. As a result of the amendments adopted
today, the securities of the successor issuer will be deemed
[[Page 39758]]
automatically registered under Section 12 of the Exchange Act.
If the classes of securities issued by each of the predecessor
issuers are registered under the same paragraph of Section
12,61 the class of securities issued by the successor issuer
will be deemed registered under the same paragraph of Section 12. If
the classes of securities issued by the predecessor issuers each are
registered under different paragraphs of Section 12, then the class of
securities issued by the successor issuer will be deemed registered
under Section 12(g). Consistent with prior practice, the successor
issuer will file a Form 8-K with respect to the succession transaction
and subsequently comply with all of the applicable provisions of the
Exchange Act.62
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\61\ A class of securities listed on a national securities
exchange must be registered under Section 12(b) (15 U.S.C. 78l(b)).
An issuer with total assets of $10 million or more and a class of
equity securities held by at least 500 shareholders of record must
register such class of securities pursuant to Section 12(g) [15
U.S.C. 78l(g)]. See also Rule 12g-1 (17 CFR 240.12g-1).
\62\ Items 1 and 2 of Form 8-K [17 CFR 249.308].
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In the situation where the classes of securities issued by the
predecessor issuers each are registered under different paragraphs of
Section 12, the Commission initially had proposed that the successor
issuer would be able to elect the Section 12 paragraph under which it
would be deemed registered. However, upon further consideration, the
Commission has determined that deeming successor issuers to be
registered under Section 12(g) would be preferable in case an issuer is
late in filing its Form 8-K and designating the paragraph of Section 12
under which its securities should be deemed registered. If the
successor decides to list its securities on a national securities
exchange, it will register its securities under Section 12(b) by filing
a Form 8-A, which has been streamlined into a simplified notice that
will be automatically effective as a result of the amendments adopted
today.
In addition to these changes, the Commission is amending Rule 12g-3
to clarify that it applies to issuers with securities registered under
Section 12(b) of the Exchange Act,63 as well as to those
with securities registered under Section 12(g).64 Rule 12g-3
also is being amended to apply to any class of securities, whether
exchange-listed, required to be registered under Section 12(g) of the
Exchange Act, or voluntarily registered under Section 12(g) of the
Exchange Act.65
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\63\ Under Rule 12g-3 as amended, the securities of a successor
to an issuer whose securities are registered under Section 12(b)
also will be deemed registered under Section 12(b) and listed on the
same national securities exchange. However, the exchange may
deregister the securities by filing a Form 25 (17 CFR 249.25) if
that is not the case. By operation of Rule 12g-2 (17 CFR 240.12g-2),
the securities of the successor issuer will automatically be deemed
registered under Section 12(g) of the Exchange Act.
\64\ 15 U.S.C. 78l(g). The securities of a successor to an
issuer whose securities are registered under Section 12(g) also will
be deemed registered under Section 12(g). A successor issuer who
wishes to list its securities on a national securities exchange will
file a Form 8-A to register the securities under Section 12(b).
The Commission also is adopting technical amendments to Rule
12g-3 to accommodate the elimination of Form 8-B. Rule 12g-3 is
being amended to incorporate the annual report requirements of Rule
13a-2 and the relevant portions of Rule 13a-1, both of which contain
references to Form 8-B.
\65\ Section 12(g) of the Exchange Act only requires the
registration of equity securities. It is conceivable that Rule 12g-3
as amended could impose reporting obligations on a limited class of
issuers not currently subjected by Rule 12g-3 to reporting following
a succession because the predecessor issuer had a class of
securities registered under Section 12 voluntarily. However, the
amendment should not impose any undue burdens as a result of this
situation because such an issuer will be able to terminate the
registration under Section 12 immediately following the succession.
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Consistent with some of the amendments being adopted with respect
to Rule 12g-3, the Commission is adopting amendments to Exchange Act
Rule 15d-5, which pertains to the automatic assumption of reporting
obligations by a non-reporting issuer that succeeds to an issuer that
has reporting obligations under Section 15(d) of the Exchange
Act.66 In connection with a succession by merger,
consolidation, exchange of securities or acquisition of assets, Rule
15d-5 automatically transfers the Section 15(d) reporting obligations
of a predecessor issuer to equity securities issued by a non-reporting
successor issuer in connection with the succession. As amended, Rule
15d-5 covers all securities issued by a non-reporting issuer, not just
equity securities.
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\66\ 15 U.S.C. 78o(d).
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III. Registration Requirements
A. Registration Requirements for American Depositary Receipts
The Commission is eliminating the registration requirement under
Section 12(b) of the Exchange Act for ADRs 67 registered on
Form F-6 68 under the Securities Act. This will eliminate
the current disparate treatment of ADRs that are listed on a national
securities exchange, which must be registered under Section 12(b) of
the Exchange Act, compared to ADRs that are traded on the Nasdaq stock
market, which need not be registered under Section 12(g) of the
Exchange Act.69 The Commission is adopting Rule 12a-8
70 under the Exchange Act to exempt ADRs registered on Form
F-6 from the registration requirements of Section 12(b). The Section
12(b) registration requirements, however, will continue to apply to the
class of securities underlying the ADRs.
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\67\ An American depositary share (``ADS'') is the security that
represents an ownership interest in deposited securities, and an ADR
is the physical certificate that evidences ADSs. Because market
participants do not appear to distinguish between ADRs and ADSs, the
term ``ADR'' is used in this Release to refer to either the physical
certificate or the security evidenced by such certificate.
\68\ When an ADR facility is created by a Depositary, the
Depositary files a Form F-6 to register the ADRs that will be issued
from the facility. The transaction of offer and sale covered by the
registration statement on Form F-6 is the deposit of securities into
the facility. The securities so deposited must be separately
registered or must be exempt from registration under the Securities
Act.
\69\ A foreign issuer whose ADRs trade on Nasdaq must register
the common stock underlying the ADRs under Section 12(g) of the
Exchange Act.
\70\ Rule 12a-8 refers to the registration requirements of
Section 12(a) of the Exchange Act, which is technically correct,
rather than Section 12(b), which contains the listing application
requirements for securities registered on a national securities
exchange. However, registration under Section 12(a) is commonly
referred to as Section 12(b) registration.
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Exempting ADRs from Section 12(b) registration is consistent with
the Commission's view of ADRs as separate securities that provide a
mechanism for investing in the underlying securities,71 and
will result in the equal treatment of listed and unlisted ADRs.
Moreover, eliminating the Section 12(b) registration requirement for
ADRs will eliminate unintentional technical violations of the Exchange
Act by issuers that register the underlying shares, but neglect to
register the ADRs under Section 12(b) by listing the ADRs on the cover
page of the Exchange Act registration statement.
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\71\ This view of ADRs as a means of investing in the underlying
securities is consistent with the way that ADRs are treated for
reporting purposes by institutional investment managers under
Section 13(f) of the Exchange Act (15 U.S.C. 78m(f)). The shares of
a foreign issuer that are held through ADRs, as well as the shares
of such issuer held directly, are reported pursuant to Section 13(f)
and Rule 13f-1 (17 CFR 240.13f-1).
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As a matter of common practice in Section 12(g) registration
statements, issuers provide disclosure with respect to the ADRs even
though the ADRs themselves are not being registered. Although it is
likely that issuers would follow the same practice regardless of the
elimination of Section 12(b) registration for ADRs, the Commission has,
upon further consideration, decided to adopt technical amendments to
Form 20-F and Form 10 to ensure that issuers continue to provide
disclosure
[[Page 39759]]
about ADRs in their Exchange Act registration statements.72
Because the actual disclosure provided to investors will not be
affected by the elimination of Section 12(b) registration, the
elimination of such registration requirements should not compromise
investor protection.73
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\72\ Item 14(c) of Form 20-F and Item 11 of Form 10.
\73\ The Commission also is adopting a technical amendment to
Rule 15d-3 of the Exchange Act. Although ADRs are no longer subject
to registration under the Exchange Act, a reporting obligation may
arise with respect to such securities under Section 15(d). Rule 15d-
3 previously suspended such reporting obligation if the depositary
complied with former Item 4(a) of Form F-6. Because former Item 4(a)
no longer exists, see Release No. 33-7300, the Commission is
adopting amendments to Rule 15d-3 to clarify that reporting
obligations are suspended for all ADRs registered on Form F-6.
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B. Securities Act Form Eligibility
The Commission is adopting amendments to Rule 401(c) under the
Securities Act to permit an issuer to switch to a shorter Securities
Act form at the time of filing any amendment if it has become eligible
to use the shorter form since filing its initial registration
statement. These amendments should ease filing burdens on issuers
without affecting the quality of the disclosure available to investors.
Currently, the form and content of a registration statement and
prospectus are determined on the initial filing date. An issuer is not
permitted to reevaluate its status until it files a post-effective
amendment pursuant to Section 10(a)(3)74 of the Securities
Act. As amended, Rule 401(c) will permit issuers to determine the
appropriate form upon filing any amendment, including pre-effective and
post-effective amendments. To ensure that the amendment does not impose
new burdens on issuers, the Rule provides that if an issuer files an
amendment other than for the purposes of Section 10(a)(3), an issuer is
not required to use a form that is different from the one used for its
last Section 10(a)(3) amendment, or if none has been filed, its initial
registration statement.
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\74\ 15 U.S.C. 77j(a)(3).
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C. Rule 424(d)--Radio and Television Broadcast Prospectuses
Today, the Commission is adopting amendments to Rule 424(d) to
eliminate the special filing requirements for radio and television
broadcast prospectuses.75 The Commission has determined that
the previous requirement that such prospectuses be filed at least five
days before they were broadcast or otherwise issued to the public was
not necessary for investor protection. This is especially true in light
of the increasing use of electronic media in securities
offerings.76 As amended, Rule 424(d) still requires that
radio and television broadcast prospectuses be reduced to writing, but
such prospectuses will be filed with the Commission according to the
requirements applicable to other types of prospectuses. As a result of
the amendments adopted today, radio and television broadcast
prospectuses must be filed according to the timing specified in rule
424 (between two to five days after use depending on the subject matter
of the prospectus).77
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\75\ Under Section 10(f) of the Securities Act [15 U.S.C.
77j(f)], the Commission is granted the authority to require radio
and television broadcast prospectuses to be filed along with other
forms of prospectuses used in connection with the sale of the
registered securities.
\76\ The amendments adopted today are consistent with the
positions set forth in Securities Act Release No. 33-7233 (October
6, 1995)(60 FR 53458) concerning the use of electronic media for
delivery purposes.
\77\ Comparable amendments also are being adopted to Rule
497(f), which pertains to the radio and television broadcast
prospectuses of investment companies.
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D. Exhibits
The Commission is adopting Rule 462(d) to permit automatic
effectiveness of a post-effective amendment filed solely to add an
exhibit, where the exhibit will not affect the disclosure in the
prospectus. Adoption of this Rule will eliminate an unnecessary
difference in the treatment of issuers that file on Forms S-3/F-3 and
all other issuers. Currently, issuers that file on Forms S-3/F-3 can
file updated exhibits post-effectively on Form 8-K, which are then
automatically incorporated by reference into their prospectuses.
However, registrants not filing on Form S-3/F-3 can only file updated
exhibits by filing post-effective amendments, which are subject to
possible staff review. Even if such amendments are not selected for
review, registrants face possible delay between the time the amendments
are filed and when they are declared effective. The Commission has
determined that automatic effectiveness of certain exhibits is
appropriate because staff review before effectiveness is unnecessary,
given the generally routine nature of these filings. Rule 462(d) also
would be available to foreign governmental issuers that register debt
securities on Schedule B using shelf registration
procedures.78
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\78\ Release Nos. 33-6240 (September 10, 1980) [45 FR 61609] and
33-6424 (September 2, 1982) (47 FR 39809).
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An issuer will check a box on the cover page of its post-effective
amendment to indicate that automatic effectiveness is
requested.79 Exhibits that may be filed through this
procedure include consents of experts and counsel, and other exhibits
that generally would not require revisions to the disclosure in the
prospectus.
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\79\ Forms SB-1, SB-2, S-1/F-1, S-2/F-2, S-4/F-4, and S-11 have
been amended to include a new check box on the cover page that will
permit automatic effectiveness for certain exhibits that have been
filed post-effectively. In addition to checking the box, filers
should use a new EDGAR form type: POS EX instead of POS AM. Schedule
B filers should simply place a checked box on the facing page of the
amendment to indicate that automatic effectiveness is requested.
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The Rule adopted today is not intended to affect an issuer's
disclosure obligations. Rule 462(d) cannot be used to file exhibits
that would trigger the filing of a post-effective amendment to update
the prospectus. The Rule also does not permit automatic effectiveness
for post-effective amendments that include an exhibit that otherwise
should have been filed pre-effectively. In either case, the issuer may
not check the box for automatic effectiveness.
IV. Certain Findings
Section 23(a) of the Exchange Act 80 requires the
Commission to consider the anti-competitive effects of any rules it
adopts thereunder, if any, and the reasons for its determination that
any burden on competition imposed by such rules is necessary or
appropriate to further the purposes of the Exchange Act. Furthermore,
Section 2 of the Securities Act 81 and Section 3 of the
Exchange Act,82 as amended by the recently enacted National
Securities Markets Improvement Act of 1996,83 provide that
whenever the Commission is engaged in rulemaking and is required to
consider or determine whether an action is necessary or appropriate in
the public interest, the Commission also shall consider, in addition to
the protection of investors, whether the action will promote
efficiency, competition, and capital formation. The Commission has
considered the amendments discussed in this release in light of the
comments received in response to the Proposing Release and the
standards in Section 23(a) of the Exchange Act. Because the amendments
do not effect any substantive change in the information that would be
disclosed by issuers, they do not have any anti-competitive effects.
Furthermore, the amendments eliminate unnecessary disclosure
requirements and streamline the disclosure process,
[[Page 39760]]
thereby promoting efficiency, competition and capital formation.
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\80\ 15 U.S.C. 78w(a).
\81\ 15 U.S.C. 77b.
\82\ 15 U.S.C. 78c.
\83\ Pub. L. No. 104-290, Sec. 106, 110 Stat. 3416 (1996).
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V. Cost-Benefit Analysis
The amendments adopted in this release represent the second phase
of the Commission's consideration of the recommendations of the Task
Force on Disclosure Simplification. The Task Force undertook to review
Commission rules and forms with the goal of simplifying and modernizing
disclosure and filing requirements to reduce the costs of capital
raising, without compromising investor protection. The Commission
sought and considered input from interested parties on how to simplify
the registration and reporting process, and the rule and form changes
in this release were developed from those comments.
Most of the commenters indicated that the proposed form and rule
changes would streamline and simplify the disclosure process. Because
the purpose of the form and rule changes adopted is to eliminate
unnecessary requirements, such changes will reduce the overall costs
and burdens associated with filing requirements generally.
Form SR. The elimination of Form SR and the amendments to require
use of proceeds disclosure instead in Exchange Act periodic reports
will reduce the number of filings made by issuers, and therefore should
ease reporting burdens. The changes may, however, increase reporting
frequency for issuers. Currently, issuers file use of proceeds
disclosure on Form SR semi-annually, and in 1996 1,654 Form SRs were
filed. As noted in the Proposing Release, it is estimated that
approximately 1,470 quarterly reports on Form 10-Q and 490 annual
reports on Form 10-K that include the use of proceeds information would
be filed each year. It is estimated that 795 quarterly reports on Form
10-QSB and 265 annual reports on Form 10-KSB that include the use of
proceeds disclosure would be filed by small business issuers each year.
Because issuers are otherwise required to prepare Exchange Act reports
and would no longer have to prepare a separate form, any burden
resulting from the transfer of the use of proceeds disclosure into the
Exchange Act reports is expected to be minimal.
Further, to offset the potential increase in reporting frequency,
the amendments increase the threshold that triggers the use of proceeds
disclosure (from the lesser of 5% of the total offering proceeds or
$50,000 to the lesser of 5% or $100,000). This change should reduce
somewhat the burden on reporting issuers by limiting the circumstances
in which disclosure is required.
In addition, it is expected that the information on use of proceeds
will be received in a more timely fashion (every three months instead
of every six months after the first report), and will be more
accessible to investors. This information regarding the progress of the
offering is useful to investors and Exchange Act reports are more
commonly monitored by investors. These benefits should outweigh any
increase in reporting burdens from the increased frequency of
disclosures.
Form 8-B. Form 8-B is being eliminated because of its limited
usefulness. Most issuer successions are now covered by Rule 12g-3 and
that Rule is being expanded to cover all situations that formerly
triggered the filing of Form 8-B. In 1996, 58 Form 8-B filings were
made. The rule changes will eliminate a registration burden on
successor issuers, without reducing investor protection, and eliminate
interpretive questions about this infrequently used Form.
ADRs. The Exchange Act registration requirement for ADRs listed on
a national securities exchange is being rescinded to eliminate a
disparity in the registration requirements applicable to listed and
non-listed ADRs. As a result, issuers will no longer be required to
list the ADRs that are to be traded on a national securities exchange
on the cover page of the Exchange Act registration statement. This will
eliminate unintentional technical violations by issuers who register
the underlying class of securities, but do not include the ADRs on the
cover page.
Short Form Registration Statements. Rule 401(c) under the
Securities Act is being amended to permit issuers to file an amendment
on a shorter Securities Act form than was used in its initial
registration statement whenever the issuer is eligible to use a shorter
form. This should reduce filing burdens and printing costs by enabling
issuers to use a shorter form when filing amendments.
Form 8-A. The amendments to make Form 8-A filings covering equity
securities automatically effective should reduce the uncertainty to
issuers of possible pre-effective staff review and resultant delays.
Since the Form largely incorporates by reference information in other
filings already subject to staff review, issuers will benefit from the
reduction in uncertainty and redundant disclosure requirements, without
harm to investors. The amendments also eliminate the requirement to
file with the national exchanges certain exhibits on Form 8-A that
already are publicly available. This change will reduce costs
associated with duplicative filing requirements.
VI. Summary of Final Regulatory Flexibility Analysis
A Final Regulatory Flexibility Analysis (``FRFA'') has been
prepared in accordance with 5 U.S.C. Sec. 604 that relates to the
rescinding of Form SR under the Securities Act, Form 8-B and Rule 13a-2
under the Exchange Act; the addition of Rule 12a-8 under the Exchange
Act; and the other amendments to disclosure requirements under the
Securities Act and Exchange Act.
As discussed more fully in the FRFA, the Commission's rescinding of
form and rule requirements and its adoption of other amendments to
simplify and streamline disclosure requirements will affect small
entities, as defined by the Commission's rules, but only in the same
manner as other entities. The Commission is aware of approximately 1100
Exchange Act reporting companies that currently have assets of $5
million or less. There is no reliable way of determining how many small
businesses may become subject to Commission reporting obligations in
the future, or may otherwise by affected by the rule proposals.
The FRFA notes that alternatives for providing different means of
compliance for small entities or for exempting small entities from the
amendments would be inconsistent with the Commission's statutory
mandate of investor protection. The amendments are intended to simplify
disclosure obligations for all issuers, irrespective of size, such that
further distinctions between companies based on size would not be
appropriate.
The Commission received no comments on the Initial Regulatory
Flexibility Analysis (``IRFA'') prepared in connection with the
Proposing Release, and no comment letters specifically addressed to the
IRFA.
A complete copy of the FRFA is available in Public File No. S7-15-
96.
VII. Paperwork Reduction Act
As set forth in the Proposing Release, Forms 20-F, 10-Q, 10-QSB,
10-K, 10-KSB and 8-A contain collections of information within the
meaning of the Paperwork Reduction Act of 1995 (``PRA'').84
The collection of information requirements contained in these forms
were submitted to OMB for review and were approved by OMB. These
information collections display an OMB control number and expiration
date. An agency may not conduct or sponsor, and
[[Page 39761]]
a person is not required to respond to, a collection of information
unless the agency displays a valid OMB control number.
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\84\ 44 U.S.C. 3501 et seq.
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The Commission is deferring consideration of its proposal to permit
concurrent registration of a public offering under the Securities Act
and a class of securities under the Exchange Act by filing a single
form. As a result, the changes to the Form 8-A information collection
will be adopted that differ from the proposed changes to that
information collection. The total annual burdens associated with Form
8-A will not decrease as much as anticipated under the Proposing
Release.
The descriptions and estimated burdens for the other collection of
information requirements have not changed, and are set forth in the
Proposing Release.
VIII. Statutory Basis for the Amendments
The foregoing amendments are adopted pursuant to Sections 6, 7, 8,
10 and 19(a) of the Securities Act, Sections 3, 12, 13, 15, 23, 35A and
36 of the Exchange Act, and Sections 8, 24, 38 and 54 of the Investment
Company Act of 1940.
List of Subjects
17 CFR Parts 228, 229, 230, 232, 239, 240 and 249
Reporting and recordkeeping requirements, Securities.
Text of the Amendments
In accordance with the foregoing, Title 17, Chapter II of the Code
of Federal Regulations is amended as follows:
PART 228--INTEGRATED DISCLOSURE SYSTEM FOR SMALL BUSINESS ISSUERS
The authority citation for part 228 is revised to read as follows:
Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s, 77z-2,
77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77jjj, 77nnn, 77sss,
78l, 78m, 78n, 78o, 78u-5, 78w, 78ll, 80a-8, 80a-29, 80a-30, 80a-37,
80b-11, unless otherwise noted.
2. By amending Sec. 228.701 by revising the heading and adding
paragraph (f) to read as follows:
Sec. 228.701 (Item 701) Recent Sales of Unregistered Securities; Use
of Proceeds from Registered Securities.
* * * * *
(f) As required by Sec. 230.463 of this chapter, following the
effective date of the first registration statement filed under the
Securities Act by an issuer, the issuer or successor issuer shall
report the use of proceeds on its first periodic report filed pursuant
to sections 13(a) and 15(d) of the Exchange Act (15 U.S.C. 78m(a) and
78o(d)) after effectiveness of its Securities Act registration
statement, and thereafter on each of its subsequent periodic reports
filed pursuant to sections 13(a) and 15(d) of the Exchange Act through
the later of disclosure of the application of all the offering
proceeds, or disclosure of the termination of the offering. If a report
of the use of proceeds is required with respect to the first effective
registration statement of the predecessor issuer, the successor issuer
shall provide such a report. The information provided pursuant to
paragraphs (f)(2) through (f)(4) of this Item need only be provided
with respect to the first periodic report filed pursuant to sections
13(a) and 15(d) of the Exchange Act after effectiveness of the
registration statement filed under the Securities Act. Subsequent
periodic reports filed pursuant to sections 13(a) and 15(d) of the
Exchange Act need only provide the information required in paragraphs
(f)(2) through (f)(4) of this Item if any of such required information
has changed since the last periodic report filed. In disclosing the use
of proceeds in the first periodic report filed pursuant to the Exchange
Act, the issuer or successor issuer should include the following
information:
(1) The effective date of the Securities Act registration statement
for which the use of proceeds information is being disclosed and the
Commission file number assigned to the registration statement;
(2) If the offering has commenced, the offering date, and if the
offering has not commenced, an explanation why it has not;
(3) If the offering terminated before any securities were sold, an
explanation for such termination; and
(4) If the offering did not terminate before any securities were
sold, disclose:
(i) Whether the offering has terminated and, if so, whether it
terminated before the sale of all securities registered;
(ii) The name(s) of the managing underwriter(s), if any;
(iii) The title of each class of securities registered and, where a
class of convertible securities is being registered, the title of any
class of securities into which such securities may be converted;
(iv) For each class of securities (other than a class of securities
into which a class of convertible securities registered may be
converted without additional payment to the issuer) the following
information, provided for both the account of the issuer and the
account(s) of any selling security holder(s): the amount registered,
the aggregate price of the offering amount registered, the amount sold
and the aggregate offering price of the amount sold to date;
(v) From the effective date of the Securities Act registration
statement to the ending date of the reporting period, the amount of
expenses incurred for the issuer's account in connection with the
issuance and distribution of the securities registered for underwriting
discounts and commissions, finders' fees, expenses paid to or for
underwriters, other expenses and total expenses. Indicate if a
reasonable estimate for the amount of expenses incurred is provided
instead of the actual amount of expenses. Indicate whether such
payments were:
(A) Direct or indirect payments to directors, officers, general
partners of the issuer or their associates; to persons owning ten (10)
percent or more of any class of equity securities of the issuer; and to
affiliates of the issuer; or
(B) Direct or indirect payments to others;
(vi) The net offering proceeds to the issuer after deducting the
total expenses described in paragraph (f)(4)(v) of this Item;
(vii) From the effective date of the Securities Act registration
statement to the ending date of the reporting period, the amount of net
offering proceeds to the issuer used for construction of plant,
building and facilities; purchase and installation of machinery and
equipment; purchases of real estate; acquisition of other business(es);
repayment of indebtedness; working capital; temporary investments
(which should be specified); and any other purposes for which at least
five (5) percent of the issuer's total offering proceeds or $100,000
(whichever is less) has been used (which should be specified). Indicate
if a reasonable estimate for the amount of net offering proceeds
applied is provided instead of the actual amount of net offering
proceeds used. Indicate whether such payments were:
(A) Direct or indirect payments to directors, officers, general
partners of the issuer or their associates; to persons owning ten (10)
percent or more of any class of equity securities of the issuer; and to
affiliates of the issuer; or
(B) Direct or indirect payments to others; and
(viii) If the use of proceeds in paragraph (f)(4)(vii) of this Item
represents a material change in the use
[[Page 39762]]
of proceeds described in the prospectus, the issuer should describe
briefly the material change.
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
3. The authority citation for part 229 continues to read in part as
follows:
Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s, 77z-2,
77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77iii, 77jjj, 77nnn,
77sss, 78c, 78i, 78j, 78l, 78m, 78n, 78o, 78u-5, 78w, 78ll(d), 79e,
79n, 79t, 80a-8, 80a-29, 80a-30, 80a-37, 80b-11, unless otherwise
noted.
* * * * *
4. By amending Sec. 229.701 by revising the heading and adding
paragraph (f) before the Instructions to read as follows:
Sec. 229.701 (Item 701) Recent sales of unregistered securities; use
of proceeds from registered securities.
* * * * *
(f) Use of Proceeds. As required by Sec. 230.463 of this chapter,
following the effective date of the first registration statement filed
under the Securities Act by an issuer, the issuer or successor issuer
shall report the use of proceeds on its first periodic report filed
pursuant to sections 13(a) and 15(d) of the Exchange Act (15 U.S.C.
78m(a) and 78o(d)) after effectiveness of its Securities Act
registration statement, and thereafter on each of its subsequent
periodic reports filed pursuant to sections 13(a) and 15(d) of the
Exchange Act through the later of disclosure of the application of all
the offering proceeds, or disclosure of the termination of the
offering. If a report of the use of proceeds is required with respect
to the first effective registration statement of the predecessor
issuer, the successor issuer shall provide such a report. The
information provided pursuant to paragraphs (f)(2) through (f)(4) of
this Item need only be provided with respect to the first periodic
report filed pursuant to sections 13(a) and 15(d) of the Exchange Act
after effectiveness of the registration statement filed under the
Securities Act. Subsequent periodic reports filed pursuant to sections
13(a) and 15(d) of the Exchange Act need only provide the information
required in paragraphs (f)(2) through (f)(4) of this Item if any of
such required information has changed since the last periodic report
filed. In disclosing the use of proceeds in the first periodic report
filed pursuant to the Exchange Act, the issuer or successor issuer
should include the following information:
(1) The effective date of the Securities Act registration statement
for which the use of proceeds information is being disclosed and the
Commission file number assigned to the registration statement;
(2) If the offering has commenced, the offering date, and if the
offering has not commenced, an explanation why it has not;
(3) If the offering terminated before any securities were sold, an
explanation for such termination; and
(4) If the offering did not terminate before any securities were
sold, disclose:
(i) Whether the offering has terminated and, if so, whether it
terminated before the sale of all securities registered;
(ii) The name(s) of the managing underwriter(s), if any;
(iii) The title of each class of securities registered and, where a
class of convertible securities is being registered, the title of any
class of securities into which such securities may be converted;
(iv) For each class of securities (other than a class of securities
into which a class of convertible securities registered may be
converted without additional payment to the issuer) the following
information, provided for both the account of the issuer and the
account(s) of any selling security holder(s): the amount registered,
the aggregate price of the offering amount registered, the amount sold
and the aggregate offering price of the amount sold to date;
(v) From the effective date of the Securities Act registration
statement to the ending date of the reporting period, the amount of
expenses incurred for the issuer's account in connection with the
issuance and distribution of the securities registered for underwriting
discounts and commissions, finders' fees, expenses paid to or for
underwriters, other expenses and total expenses. Indicate if a
reasonable estimate for the amount of expenses incurred is provided
instead of the actual amount of expense. Indicate whether such payments
were:
(A) Direct or indirect payments to directors, officers, general
partners of the issuer or their associates; to persons owning ten (10)
percent or more of any class of equity securities of the issuer; and to
affiliates of the issuer; or
(B) Direct or indirect payments to others;
(vi) The net offering proceeds to the issuer after deducting the
total expenses described in paragraph (f)(4)(v) of this Item;
(vii) From the effective date of the Securities Act registration
statement to the ending date of the reporting period, the amount of net
offering proceeds to the issuer used for construction of plant,
building and facilities; purchase and installation of machinery and
equipment; purchases of real estate; acquisition of other business(es);
repayment of indebtedness; working capital; temporary investments
(which should be specified); and any other purposes for which at least
five (5) percent of the issuer's total offering proceeds or $100,000
(whichever is less) has been used (which should be specified). Indicate
if a reasonable estimate for the amount of net offering proceeds
applied is provided instead of the actual amount of net offering
proceeds used. Indicate whether such payments were:
(A) Direct or indirect payments to directors, officers, general
partners of the issuer or their associates; to persons owning ten (10)
percent or more of any class of equity securities of the issuer; and to
affiliates of the issuer; or
(B) Direct or indirect payments to others; and
(viii) If the use of proceeds in paragraph (f)(4)(vii) of this Item
represents a material change in the use of proceeds described in the
prospectus, the issuer should describe briefly the material change.
PART 230--GENERAL RULES AND REGULATIONS, SECURITIES ACT OF 1933
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,
78d, 78l, 78m, 78n, 78o, 78w, 78ll(d), 79t, 80a-8, 80a-29, 80a-30,
and 80a-37, unless otherwise noted.
* * * * *
2. By amending Sec. 230.401 by revising paragraph (c) to read as
follows:
Sec. 230.401 Requirements as to proper form.
* * * * *
(c) An amendment to a registration statement and prospectus, other
than an amendment described in paragraph (b) of this section, may be
filed on any shorter Securities Act registration form for which it is
eligible on the filing date of the amendment. At the issuer's option,
the amendment also may be filed on the same Securities Act registration
form used for the most recent amendment described in paragraph (b) of
this section or, if no such amendment has been filed, the initial
registration statement and prospectus.
* * * * *
[[Page 39763]]
3. By amending Sec. 230.404 in paragraph (a) by removing the phrase
``cross reference sheet;''.
4. By amending Sec. 230.424 in paragraph (d) by removing the phrase
``at least five days before it is broadcast or otherwise issued to the
public'' in the second sentence and in its place adding ``in accordance
with the requirements of this section''.
5. By amending Sec. 230.462 by adding paragraph (d) to read as
follows:
Sec. 230.462 Immediate effectiveness of certain registration
statements and post-effective amendments.
* * * * *
(d) A post-effective amendment filed solely to add exhibits to a
registration statement shall become effective upon filing with the
Commission.
6. By amending Sec. 230.463 by revising paragraphs (a) and (b) to
read as follows:
Sec. 230.463 Report of offering of securities and use of proceeds
therefrom.
(a) Except as provided in this section, following the effective
date of the first registration statement filed under the Act by an
issuer, the issuer or successor issuer shall report the use of proceeds
pursuant to Item 701 of Regulation S-B or S-K or Item 16(e) of Form 20-
F, as applicable, on its first periodic report filed pursuant to
Sections 13(a) and 15(d) (15 U.S.C. 78m(a) and 78o(d)) of the
Securities Exchange Act of 1934 after effectiveness, and thereafter on
each of its subsequent periodic reports filed pursuant to Sections
13(a) and 15(d) of the Securities Exchange Act of 1934 through the
later of disclosure of the application of all the offering proceeds or
disclosure of the termination of the offering.
(b) A successor issuer shall comply with paragraph (a) of this
section only if a report of the use of proceeds is required with
respect to the first effective registration statement of the
predecessor issuer.
* * * * *
7. By amending Sec. 230.497 in paragraph (f) by removing the phrase
``at least 5 days before it is broadcast or otherwise issued to the
public'' in the second sentence and in its place adding ``in accordance
with the requirements of this section''.
PART 232--REGULATION S-T--GENERAL RULES AND REGULATIONS FOR
ELECTRONIC FILINGS
8. The authority citation for part 232 continues to read as
follows:
Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s(a), 77sss(a),
78c(b), 78l, 78m, 78n, 78o(d), 78w(a), 78ll(d), 79t(a), 80a-8, 80a-
29, 80a-30 and 80a-37.
9. By amending Sec. 232.101 by removing paragraph (c)(5) and
redesignating paragraphs (c)(6) through (c)(18) as paragraphs (c)(5)
through (c)(17).
PART 239--FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933
The authority citation for part 239 continues to read in part as
follows:
Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77z-2, 77sss, 78c,
78l, 78m, 78n, 78o(d), 78u-5, 78w(a), 78ll(d), 79e, 79f, 79g, 79j,
79l, 79m, 79n, 79q, 79t, 80a-8, 80a-29, 80a-30 and 80a-37, unless
otherwise noted.
* * * * *
11. By amending Form SB-1 (referenced in Sec. 239.9) by revising
the facing page to read as follows:
(Note: The text of Form SB-1 does not, and the amendments thereto
will not, appear in the Code of Federal Regulations.)
Form SB-1
U.S. Securities and Exchange Commission
Washington, D.C. 20549
Form SB-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
(Amendment No.________)
----------------------------------------------------------------------
(Name of small business issuer in its charter)
----------------------------------------------------------------------
(State or jurisdiction of incorporation or organization)
----------------------------------------------------------------------
(Primary Standard Industrial Classification Code Number)
----------------------------------------------------------------------
(I.R.S. Employer Identification No.)
----------------------------------------------------------------------
(Address and telephone number of principal executive offices)
----------------------------------------------------------------------
(Address of principal place of business or intended principal place
of business)
----------------------------------------------------------------------
(Name, address, and telephone number of agent for service)
Approximate date of commencement of proposed sale to the public
________
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, check the
following box and list the Securities Act registration statement number
of the earlier effective registration statement for the same offering.
[ ] ______
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] ______
If this Form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] ______
If delivery of the prospectus is expected to be made pursuant to
Rule 434, check the following box. [ ]
* * * * *
12. By amending Form SB-2 (referenced in Sec. 239.10) by revising
the facing page to read as follows:
(Note: The text of Form SB-2 does not, and the amendments thereto
will not, appear in the Code of Federal Regulations.)
Form SB-2
U.S. Securities and Exchange Commission
Washington, D.C. 20549
Form SB-2
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
(Amendment No. ________)
----------------------------------------------------------------------
(Name of small business issuer in its charter)
----------------------------------------------------------------------
(State or jurisdiction of incorporation or organization)
----------------------------------------------------------------------
(Primary Standard Industrial Classification Code Number)
----------------------------------------------------------------------
(I.R.S. Employer Identification No.)
----------------------------------------------------------------------
(Address and telephone number of principal executive offices)
----------------------------------------------------------------------
(Address of principal place of business or intended principal place
of business)
----------------------------------------------------------------------
(Name, address, and telephone number of agent for service)
Approximate date of commencement of proposed sale to the public
________
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, check the
following box and list the Securities Act registration statement number
of the earlier effective registration statement for the same offering.
[ ]________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]________
If this Form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]________
[[Page 39764]]
If delivery of the prospectus is expected to be made pursuant to
Rule 434, check the following box. [ ]
* * * * *
13. By amending Form S-1 (referenced in Sec. 239.11) by revising
the facing page to read as follows:
(Note: The text of Form S-1 does not, and the amendments thereto
will not, appear in the Code of Federal Regulations.)
FORM S-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
----------------------------------------------------------------------
(State or other jurisdiction of incorporation or organization)
----------------------------------------------------------------------
(Primary Standard Industrial Classification Code Number)
----------------------------------------------------------------------
(I.R.S. Employer Identification No.)
----------------------------------------------------------------------
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
----------------------------------------------------------------------
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Approximate date of commencement of proposed sale to the public
----------------------------------------------------------------------
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act, check the following box. [ ]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, check the
following box and list the Securities Act registration statement number
of the earlier effective registration statement for the same offering.
[ ]________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]________
If this Form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]________
If delivery of the prospectus is expected to be made pursuant to
Rule 434, check the following box. [ ]
* * * * *
By amending Form S-2 (referenced in Sec. 239.12) by revising the
facing page to read as follows:
(Note: The text of Form S-2 does not, and the amendments thereto
will not, appear in the Code of Federal Regulations.)
FORM S-2
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-2
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
----------------------------------------------------------------------
(State or other jurisdiction of incorporation or organization)
----------------------------------------------------------------------
(I.R.S. Employer Identification No.)
----------------------------------------------------------------------
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
----------------------------------------------------------------------
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Approximate date of commencement of proposed sale to the public
----------------------------------------------------------------------
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act, check the following box. [ ]
If the registrant elects to deliver its latest annual report to
security holders, or a complete and legal facsimile thereof, pursuant
to Item 11(a)(1) of this Form, check the following box. [ ]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, check the
following box and list the Securities Act registration statement number
of the earlier effective registration statement for the same offering.
[ ] ________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] ________
If this Form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] ________
If delivery of the prospectus is expected to be made pursuant to
Rule 434, check the following box. [ ]
* * * * *
By amending Form S-3 (referenced in Sec. 239.13) in General Instruction
II.B. by removing the phrase ``and cross-reference sheet are'' in the
third sentence and in its place adding ``is''.
By amending Form S-11 (referenced in Sec. 239.18) by revising the
facing page to read as follows:
(Note: The text of Form S-11 does not, and the amendments thereto
will not, appear in the Code of Federal Regulations.)
FORM S-11
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-11
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------------------------------------------------------------
(Exact name of registrant as specified in governing instruments)
----------------------------------------------------------------------
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
----------------------------------------------------------------------
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Approximate date of commencement of proposed sale to the public
----------------------------------------------------------------------
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, check the
following box and list the Securities Act registration statement number
of the earlier effective registration statement for the same offering.[
] ________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] ________
If this Form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] ________
If delivery of the prospectus is expected to be made pursuant to
Rule 434, check the following box. [ ]
* * * * *
17. By amending Form S-4 (referenced in Sec. 239.25) by revising
the
[[Page 39765]]
facing page and by adding General Instruction K to read as follows:
(Note: The text of Form S-4 does not, and the amendments thereto
will not, appear in the Code of Federal Regulations.)
FORM S-4
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
----------------------------------------------------------------------
(State or other jurisdiction of incorporation or organization)
----------------------------------------------------------------------
(Primary Standard Industrial Classification Code Number)
----------------------------------------------------------------------
(I.R.S. Employer Identification No.)
----------------------------------------------------------------------
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
----------------------------------------------------------------------
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Approximate date of commencement of proposed sale to the public
________.
If the securities being registered on this Form are being offered
in connection with the formation of a holding company and there is
compliance with General Instruction G, check the following box. [ ]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, check the
following box and list the Securities Act registration statement number
of the earlier effective registration statement for the same offering.
[ ] ________
If this Form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] ________
* * * * *
GENERAL INSTRUCTIONS
* * * * *
K. Registration of Additional Securities
With respect to the registration of additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, the
registrant may file a registration statement consisting only of the
following: the facing page; a statement that the contents of the
earlier registration statement, identified by file number, are
incorporated by reference; required opinions and consents; the
signature page; and any price-related information omitted from the
earlier registration statement in reliance on Rule 430A that the
registrant chooses to include in the new registration statement. The
information contained in such a Rule 462(b) registration statement
shall be deemed to be a part of the earlier registration statement as
of the date of effectiveness of the Rule 462(b) registration statement.
Any opinion or consent required in the Rule 462(b) registration
statement may be incorporated by reference from the earlier
registration statement with respect to the offering, if: (i) such
opinion or consent expressly provides for such incorporation; and (ii)
such opinion relates to the securities registered pursuant to Rule
462(b). See Rule 411(c) and Rule 439(b) under the Securities Act.
* * * * *
18. By amending Form F-1 (referenced in Sec. 239.31) by revising
the facing page to read as follows:
(Note: The text of Form F-1 does not, and the amendments thereto
will not, appear in the Code of Federal Regulations.)
FORM F-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form F-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------------------------------------------------------------
(Exact Name of Registrant as specified in its charter)
----------------------------------------------------------------------
(Translation of Registrant's name into English)
----------------------------------------------------------------------
(State or other jurisdiction of incorporation or organization)
----------------------------------------------------------------------
(Primary Standard Industrial Classification Code Number)
----------------------------------------------------------------------
(I.R.S. Employer Identification No.)
----------------------------------------------------------------------
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
----------------------------------------------------------------------
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Approximate date of commencement of proposed sale to the public
________.
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act, check the following box. [ ]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, check the
following box and list the Securities Act registration statement number
of the earlier effective registration statement for the same offering.
[ ] ________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] ________
If this Form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] ________
If delivery of the prospectus is expected to be made pursuant to
Rule 434, check the following box. [ ]
* * * * *
19. By amending Form F-2 (referenced in Sec. 239.32) by revising
the facing page to read as follows:
(Note: The text of Form F-2 does not, and the amendments thereto
will not, appear in the Code of Federal Regulations.)
FORM F-2
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form F-2
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------------------------------------------------------------
(Exact Name of Registrant as specified in its charter)
----------------------------------------------------------------------
(Translation of Registrant's name into English)
----------------------------------------------------------------------
(State or other jurisdiction of incorporation or organization)
----------------------------------------------------------------------
(I.R.S. Employer Identification Number)
----------------------------------------------------------------------
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
----------------------------------------------------------------------
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Approximate date of commencement of proposed sale to the public
________.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, check the
following box. [ ]
[[Page 39766]]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act, check the following box. [ ]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, check the
following box and list the Securities Act registration statement number
of the earlier effective registration statement for the same offering.
[ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] ________
If delivery of the prospectus is expected to be made pursuant to
Rule 434, check the following box. [ ]
* * * * *
20. By amending Form F-4 (referenced in Sec. 239.34) by revising
the facing page and by adding General Instruction H to read as follows:
(Note: The text of Form F-4 does not, and the amendments thereto
will not, appear in the Code of Federal Regulations.)
FORM F-4
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form F-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------------------------------------------------------------
(Exact Name of Registrant as specified in its charter)
----------------------------------------------------------------------
(Translation of Registrant's name into English)
----------------------------------------------------------------------
(State or other jurisdiction of incorporation or organization)
----------------------------------------------------------------------
(Primary Standard Industrial Classification Code Number)
----------------------------------------------------------------------
(I.R.S. Employer Identification Number)
----------------------------------------------------------------------
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
----------------------------------------------------------------------
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Approximate date of commencement of proposed sale of the securities
to the public
----------------------------------------------------------------------
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, check the
following box and list the Securities Act registration statement number
of the earlier effective registration statement for the same offering.
[ ] ________
If this Form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] ________
* * * * *
GENERAL INSTRUCTIONS
* * * * *
H. Registration of Additional Securities
With respect to the registration of additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, the
registrant may file a registration statement consisting only of the
following: The facing page; a statement that the contents of the
earlier registration statement, identified by file number, are
incorporated by reference; required opinions and consents; the
signature page; and any price-related information omitted from the
earlier registration statement in reliance on Rule 430A that the
registrant chooses to include in the new registration statement. The
information contained in such a Rule 462(b) registration statement
shall be deemed to be a part of the earlier registration statement as
of the date of effectiveness of the Rule 462(b) registration statement.
Any opinion or consent required in the Rule 462(b) registration
statement may be incorporated by reference from the earlier
registration statement with respect to the offering, if: (i) Such
opinion or consent expressly provides for such incorporation; and (ii)
such opinion relates to the securities registered pursuant to Rule
462(b). See Rule 411(c) and Rule 439(b) under the Securities Act.
* * * * *
21. By removing and reserving Sec. 239.61 and by removing Form SR.
22. By amending Form D (referenced in Sec. 239.500), Part E,
Question 1, by revising the words ``17 CFR 230.252 (c), (d), (e) or
(f)'' to read ``17 CFR 230.262''.
(Note: The text of Form D does not, and the amendments will not,
appear in the Code of Federal Regulations.)
PART 240--GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF
1934
23. The authority citation for part 240 continues to read in part
as follows:
Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77eee,
77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78f, 78i, 78j, 78k, 78k-1,
78l, 78m, 78n, 78o, 78p, 78q, 78s, 78u-5, 78w, 78x, 78ll(d), 79q,
79t, 80a-20, 80a-23, 80a-29, 80a-37, 80b-3, 80b-4 and 80b-11, unless
otherwise noted.
* * * * *
24. By adding Sec. 240.12a-8 to read as follows:
Sec. 240.12a-8 Exemption of depositary shares.
Depositary shares (as that term is defined in Sec. 240.12b-2)
registered on Form F-6 (Sec. 239.36 of this chapter), but not the
underlying deposited securities, shall be exempt from the operation of
section 12(a) of the Act (15 U.S.C. 78l(a)).
25. By revising the undesignated subject heading preceding
Sec. 240.12d1-1 to read as follows:
Certification by Exchanges and Effectiveness of Registration
26. By amending Sec. 240.12d1-2 by revising paragraph (b) and
adding paragraph (c) to read as follows:
Sec. 240.12d1-2 Effectiveness of registration.
* * * * *
(b) A registration statement on Form 8-A (17 CFR 249.208a) for the
registration of a class of securities under Section 12(b) of the Act
(15 U.S.C. 78l(b)) shall become effective:
(1) If a class of securities is not concurrently being registered
under the Securities Act of 1933 (``Securities Act''), upon the later
of receipt by the Commission of certification from the national
securities exchange or the filing of the Form 8-A with the Commission;
or
(2) If a class of securities is concurrently being registered under
the Securities Act, upon the later of the filing of the Form 8-A with
the Commission, receipt by the Commission of certification from the
national securities exchange listed on the Form 8-A or effectiveness of
the Securities Act registration statement relating to the class of
securities.
(c) A registration statement on Form 8-A (17 CFR 249.208a) for the
[[Page 39767]]
registration of a class of securities under Section 12(g) of the Act
(15 U.S.C. 78l(g)) shall become effective:
(1) If a class of securities is not concurrently being registered
under the Securities Act, upon the filing of the Form 8-A with the
Commission; or
(2) If class of securities is concurrently being registered under
the Securities Act, upon the later of the filing of the Form 8-A with
the Commission or the effectiveness of the Securities Act registration
statement relating to the class of securities.
27. By revising Sec. 240.12g-3 to read as follows:
Sec. 240.12g-3 Registration of securities of successor issuers under
section 12(b) or 12(g).
(a) Where in connection with a succession by merger, consolidation,
exchange of securities, acquisition of assets or otherwise, securities
of an issuer that are not already registered pursuant to section 12 of
the Act (15 U.S.C. 78l) are issued to the holders of any class of
securities of another issuer that is registered pursuant to either
section 12 (b) or (g) of the Act (15 U.S.C. 78l (b) or (g)), the class
of securities so issued shall be deemed to be registered under the same
paragraph of section 12 of the Act unless upon consummation of the
succession:
(1) Such class is exempt from such registration other than by
Sec. 240.12g3-2;
(2) All securities of such class are held of record by less than
300 persons; or
(3) The securities issued in connection with the succession were
registered on Form F-8 or Form F-80 (Sec. 239.38 or Sec. 239.41 of this
chapter) and following succession the successor would not be required
to register such class of securities under section 12 of the Act (15
U.S.C. 78l) but for this section.
(b) Where in connection with a succession by merger, consolidation,
exchange of securities, acquisition of assets or otherwise, securities
of an issuer that are not already registered pursuant to section 12 of
the Act (15 U.S.C. 78l) are issued to the holders of any class of
securities of another issuer that is required to file a registration
statement pursuant to either section 12(b) or (g) of the Act (15 U.S.C.
78l(b) or (g)) but has not yet done so, the duty to file such statement
shall be deemed to have been assumed by the issuer of the class of
securities so issued. The successor issuer shall file a registration
statement pursuant to the same paragraph of section 12 of the Act with
respect to such class within the period of time the predecessor issuer
would have been required to file such a statement unless upon
consummation of the succession:
(1) Such class is exempt from such registration other than by
Sec. 240.12g3-2;
(2) All securities of such class are held of record by less than
300 persons; or
(3) The securities issued in connection with the succession were
registered on Form F-8 or Form F-80 (Sec. 239.38 or Sec. 239.41 of this
chapter) and following the succession the successor would not be
required to register such class of securities under section 12 of the
Act (15 U.S.C. 78l) but for this section.
(c) Where in connection with a succession by merger, consolidation,
exchange of securities, acquisition of assets or otherwise, securities
of an issuer that are not already registered pursuant to section 12 of
the Act (15 U.S.C. 78l) are issued to the holders of classes of
securities of two or more other issuers that are each registered
pursuant to section 12 of the Act, the class of securities so issued
shall be deemed to be registered under section 12 of the Act unless
upon consummation of the succession:
(1) Such class is exempt from such registration other than by
Sec. 240.12g3-2;
(2) All securities of such class are held of record by less than
300 persons; or
(3) The securities issued in connection with the succession were
registered on Form F-8 or Form F-80 (Sec. 239.38 or Sec. 239.41 of this
chapter) and following succession the successor would not be required
to register such class of securities under section 12 of the Act (15
U.S.C. 78l) but for this section.
(d) If the classes of securities issued by two or more predecessor
issuers (as described in paragraph (c) of this section) are registered
under the same paragraph of section 12 of the Act (15 U.S.C. 78l), the
class of securities issued by the successor issuer shall be deemed
registered under the same paragraph of section 12 of the Act. If the
classes of securities issued by the predecessor issuers are not
registered under the same paragraph of section 12 of the Act, the class
of securities issued by the successor issuer shall be deemed registered
under section 12(g) of the Act (15 U.S.C. 78l(g)).
(e) An issuer that is deemed to have a class of securities
registered pursuant to section 12 of the Act (15 U.S.C. 78l) according
to paragraph (a), (b), (c) or (d) of this section shall file reports on
the same forms and such class of securities shall be subject to the
provisions of sections 14 and 16 of the Act (15 U.S.C. 78n and 78p) to
the same extent as the predecessor issuers, except as follows:
(1) An issuer that is not a foreign issuer shall not be eligible to
file on Form 20-F (Sec. 249.220f of this chapter) or to use the
exemption in Sec. 240.3a12-3.
(2) A foreign private issuer shall be eligible to file on Form 20-F
(Sec. 249.220f of this chapter) and to use the exemption in
Sec. 240.3a12-3.
(f) An issuer that is deemed to have a class of securities
registered pursuant to section 12 of the Act (15 U.S.C. 78l) according
to paragraphs (a), (b), (c) or (d) of this section shall indicate in
the Form 8-K (Sec. 249.308 of this chapter) report filed with the
Commission in connection with the succession, pursuant to the
requirements of Form 8-K, the paragraph of section 12 of the Act under
which the class of securities issued by the successor issuer is deemed
registered by operation of paragraphs (a), (b), (c) or (d) of this
section. If a successor issuer that is deemed registered under section
12(g) of the Act (15 U.S.C. 78l(g)) by paragraph (d) of this section
intends to list a class of securities on a national securities
exchange, it must file a registration statement pursuant to section
12(b) of the Act (15 U.S.C. 78l(b)) with respect to that class of
securities.
(g) An issuer that is deemed to have a class of securities
registered pursuant to section 12 of the Act (15 U.S.C. 78l) according
to paragraph (a), (b), (c) or (d) of this section shall file an annual
report for each fiscal year beginning on or after the date as of which
the succession occurred. Annual reports shall be filed within the
period specified in the appropriate form. Each such issuer shall file
an annual report for each of its predecessors that had securities
registered pursuant to section 12 of the Act (15 U.S.C. 78l) covering
the last full fiscal year of the predecessor before the registrant's
succession, unless such report has been filed by the predecessor. Such
annual report shall contain information that would be required if filed
by the predecessor.
28. By revising Sec. 240.13a-1 to read as follows:
Sec. 240.13a-1 Requirements of annual reports.
Every issuer having securities registered pursuant to section 12 of
the Act (15 U.S.C. 78l) shall file an annual report on the appropriate
form authorized or prescribed therefor for each fiscal year after the
last full fiscal year for which financial statements were filed in its
registration statement. Annual reports shall be filed within the
[[Page 39768]]
period specified in the appropriate form.
29. By removing and reserving Sec. 240.13a-2.
30. By revising Sec. 240.15d-3 to read as follows:
Sec. 240.15d-3 Reports for depositary shares registered on Form F-6.
Annual and other reports are not required with respect to
Depositary Shares registered on Form F-6 (Sec. 230.36 of this chapter).
The exemption in this section does not apply to any deposited
securities registered on any other form under the Securities Act of
1933.
31. By revising paragraph (a) of Sec. 240.15d-5 to read as follows:
Sec. 240.15d-5 Reporting by successor issuers.
(a) Where in connection with a succession by merger, consolidation,
exchange of securities, acquisition of assets or otherwise, securities
of any issuer that is not required to file reports pursuant to section
15(d) (15 U.S.C. 78o(d)) of the Act are issued to the holders of any
class of securities of another issuer that is required to file such
reports, the duty to file reports pursuant to such section shall be
deemed to have been assumed by the issuer of the class of securities so
issued. The successor issuer shall, after the consummation of the
succession, file reports in accordance with section 15(d) of the Act
(15 U.S.C. 78o(d)) and the rules and regulations thereunder, unless
that issuer is exempt from filing such reports or the duty to file such
reports is suspended under section 15(d) of the Act (15 U.S.C. 78o(d)).
* * * * *
PART 249--FORMS, SECURITIES EXCHANGE ACT OF 1934
32. The authority citation for part 249 continues to read in part
as follows:
Authority 15 U.S.C. 78a, et seq., unless otherwise noted;
* * * * *
33. By amending Sec. 249.208a by revising paragraph (c) and adding
paragraph (d) to read as follows:
Sec. 249.208a Form 8-A, for registration of certain classes of
securities pursuant to section 12(b) or (g) of the Securities Exchange
Act of 1934.
* * * * *
(c) If this form is used for the registration of a class of
securities under Section 12(b) of the Act (15 U.S.C. 78l(b)), it shall
become effective:
(1) If a class of securities is not concurrently being registered
under the Securities Act of 1933 (15 U.S.C. 77a et seq.)(''Securities
Act''), upon the later of receipt by the Commission of certification
from the national securities exchange listed on the form or the filing
of the Form 8-A with the Commission; or
(2) If a class of securities is concurrently being registered under
the Securities Act, upon the later of the filing of the Form 8-A with
the Commission, receipt by the Commission of certification from the
national securities exchange listed on the form, or the effectiveness
of the Securities Act registration statement relating to the class of
securities.
(d) If this form is used for the registration of a class of
securities under Section 12(g) of the Act (15 U.S.C. 78l(g)), it shall
become effective:
(1) If a class of securities is not concurrently being registered
under the Securities Act, upon the filing of the Form 8-A with the
Commission; or
(2) If a class of securities is concurrently being registered under
the Securities Act, upon the later of the filing of the Form 8-A with
the Commission or the effectiveness of the Securities Act registration
statement relating to the class of securities.
34. By amending Form 8-A (referenced in Sec. 249.208a) by revising
paragraph (c) and adding paragraph (d) to General Instruction A, by
revising the checkboxes on the cover page, by adding a sentence and
blank line for the Securities Act registration statement file number
after the checkboxes on the cover page, by revising ``Item 1'' under
``Information Required In Registration Statement'', by removing ``I.''
before the first Instruction and by removing Instruction II of the
Instructions as to Exhibits to read as follows:
(Note: The text of Form 8-A does not, and the amendments will not,
appear in the Code of Federal Regulations.)
FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES PURSUANT TO SECTION
12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934
GENERAL INSTRUCTIONS
A. Rule as to Use of Form 8-A
* * * * *
(c) If this form is used for the registration of a class of
securities under Section 12(b), it shall become effective:
(1) If a class of securities is not concurrently being registered
under the Securities Act of 1933 (15 U.S.C. 77a et seq.) (``Securities
Act''), upon the later of receipt by the Commission of certification
from the national securities exchange listed on this form or the filing
of the Form 8-A with the Commission; or
(2) If a class of securities is concurrently being registered under
the Securities Act, upon the later of the filing of the Form 8-A with
the Commission, receipt by the Commission of certification from the
national securities exchange listed on this form or effectiveness of
the Securities Act registration statement relating to the class of
securities.
(d) If this form is used for the registration of a class of
securities under Section 12(g), it shall become effective:
(1) If a class of securities is not concurrently being registered
under the Securities Act, upon the filing of the Form 8-A with the
Commission; or
(2) If class of securities is concurrently being registered under
the Securities Act, upon the later of the filing of the Form 8-A with
the Commission or the effectiveness of the Securities Act registration
statement relating to the class of securities.
* * * * *
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES PURSUANT TO SECTION
12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934
* * * * *
If this form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective pursuant
to General Instruction A.(c), check the following box. [ ]
If this form relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective pursuant
to General Instruction A.(d), check the following box. [ ]
Securities Act registration statement file number to which this
form relates:
----------------------------------------------------------------------
(if applicable)
* * * * *
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be Registered
Furnish the information required by Item 202 of Regulation S-K
(Sec. 229.202 of this chapter) or Item 202 of Regulation S-B
(Sec. 228.202 of this chapter), as applicable.
* * * * *
[[Page 39769]]
35. By removing and reserving Sec. 249.208b and by removing Form 8-
B.
36. By amending Form 10 (referenced in Sec. 249.210) by revising
Item 11 to read as follows:
(Note: The text of Form 10 does not, and the amendments thereto will
not, appear in the Code of Federal Regulations.)
FORM 10
* * * * *
Item 11. Description of Registrant's Securities to be Registered
Furnish the information required by Item 202 of Regulation S-K
(Sec. 229.202 of this chapter). If the class of securities to be
registered will trade in the form of American Depositary Receipts,
furnish Item 202(f) disclosure for such American Depositary Receipts as
well.
37. By amending Form 20-F (referenced in Sec. 249.220f) by removing
from the facing page the words ``(Fee Required)'' and ``(No Fee
Required)'', by revising the introductory text of paragraph (c) to Item
14 of Part II preceding the Instructions, by revising the caption to
Item 16 and by adding paragraph (e) to Item 16 of Part III to read as
follows:
(Note: The text of Form 20-F does not, and the amendments thereto
will not, appear in the Code of Federal Regulations.)
Form 20-F
* * * * *
PART II
Item 14. Description of Securities to be Registered
* * * * *
(c) American Depositary Receipts
If the class of securities to be registered on Form 20-F is to be
traded in the form of American Depositary Receipts, furnish the
following information:
* * * * *
PART III
* * * * *
Item 16. Changes in Securities, Changes in Security for Registered
Securities and Use of Proceeds
* * * * *
(e) Use of proceeds.
If required pursuant to Rule 463 (17 CFR 230.463) under the
Securities Act, following the effective date of the first registration
statement filed under the Securities Act by an issuer, the issuer or
successor issuer shall report the use of proceeds on its first periodic
report filed pursuant to sections 13(a) and 15(d) of the Exchange Act
after effectiveness of its Securities Act registration statement, and
thereafter on each of its subsequent periodic reports filed pursuant to
sections 13(a) and 15(d) of the Exchange Act through the later of
disclosure of the application of all the offering proceeds, or
disclosure of the termination of the offering. If a report of the use
of proceeds is required with respect to the first effective
registration statement of the predecessor issuer, the successor issuer
shall provide such a report. The information provided pursuant to
paragraphs (e)(2) through (e)(4) of this Item need only be provided
with respect to the first periodic report filed pursuant to sections
13(a) and 15(d) of the Exchange Act after effectiveness of the
registration statement filed under the Securities Act. Subsequent
periodic reports filed pursuant to sections 13(a) and 15(d) of the
Exchange Act need only provide the information required in paragraphs
(e)(2) through (e)(4) of this Item if any of such required information
has changed since the last periodic report filed. In disclosing the use
of proceeds in the first periodic report filed pursuant to the Exchange
Act, the issuer or successor issuer should include the following
information:
(1) The effective date of the Securities Act registration statement
for which the use of proceeds information is being disclosed, the
Commission file number assigned to the registration statement;
(2) If the offering has commenced, the offering date, and if the
offering has not commenced, an explanation why it has not;
(3) If the offering terminated before any securities were sold, an
explanation for such termination; and
(4) If the offering did not terminate before any securities were
sold, disclose:
(i) Whether the offering has terminated and, if so, whether it
terminated before the sale of all securities registered;
(ii) The name(s) of the managing underwriter(s), if any;
(iii) The title of each class of securities registered and, where a
class of convertible securities is being registered, the title of any
class of securities into which such securities may be converted;
(iv) For each class of securities (other than a class of securities
into which a class of convertible securities registered may be
converted without additional payment to the issuer) the following
information, provided for both the account of the issuer and the
account(s) of any selling security holder(s): the amount registered,
the aggregate price of the offering amount registered, the amount sold
and the aggregate offering price of the amount sold to date;
(v) From the effective date of the Securities Act registration
statement to the ending date of the reporting period, the amount of
expenses incurred for the issuer's account in connection with the
issuance and distribution of the securities registered for underwriting
discounts and commissions, finders' fees, expenses paid to or for
underwriters, other expenses and total expenses. Indicate if a
reasonable estimate for the amount of expenses incurred is provided
instead of the actual amount of expense. Indicate whether such payments
were:
(A) Direct or indirect payments to directors, officers, general
partners of the issuer or their associates; to persons owning ten (10)
percent or more of any class of equity securities of the issuer; and to
affiliates of the issuer; or
(B) Direct or indirect payments to others;
(vi) The net offering proceeds to the issuer after deducting the
total expenses described in paragraph (e)(4)(v) of this Item;
(vii) From the effective date of the Securities Act registration
statement to the ending date of the reporting period, the amount of net
offering proceeds to the issuer used for construction of plant,
building and facilities; purchase and installation of machinery and
equipment; purchases of real estate; acquisition of other business(es);
repayment of indebtedness; working capital; temporary investments
(which should be specified); and any other purposes for which at least
five (5) percent of the issuer's total offering proceeds or $100,000
(whichever is less) has been used (which should be specified). Indicate
if a reasonable estimate for the amount of net offering proceeds
applied instead of the actual amount of net offering proceeds used.
Indicate whether such payments were:
(A) Direct or indirect payments to directors, officers, general
partners of the issuer or their associates; to persons owning ten (10)
percent or more of any class of equity securities of the issuer; and to
affiliates of the issuer; or
(B) Direct or indirect payments to others; and
(viii) If the use of proceeds in paragraph (e)(4)(vii) of this Item
represents a material change in the use of proceeds described in the
prospectus, the issuer should describe briefly the material change.
* * * * *
38. By amending Form 10-Q (referenced in Sec. 249.308a) by revising
the caption to Item 2 of Part II, and by adding paragraph (d) to Item 2
of Part II preceding the Instruction to read as follows:
[[Page 39770]]
(Note: The text of Form 10-Q does not, and the amendments thereto
will not appear in the Code of Federal Regulations.)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
* * * * *
PART II--OTHER INFORMATION
* * * * *
Item 2. Changes in Securities and Use of Proceeds
* * * * *
(d) If required pursuant to Rule 463 (17 CFR 230.463) of the
Securities Act of 1933, furnish the information required by Item 701(f)
of Regulation S-K (Sec. 229.701(f) of this chapter).
* * * * *
39. By amending Form 10-QSB (referenced in Sec. 249.308b) by
revising the caption to Item 2 of Part II, and by adding paragraph (d)
to Item 2 of Part II preceding the Instruction to read as follows:
(Note: The text of Form 10-QSB does not, and the amendments thereto
will not, appear in the Code of Federal Regulations.)
FORM 10-QSB
* * * * *
PART II--OTHER INFORMATION
* * * * *
Item 2. Changes in Securities and Use of Proceeds
* * * * *
(d) If required pursuant to Rule 463 (17 CFR 230.463) of the
Securities Act of 1933, furnish the information required by Item 701(f)
of Regulation S-B (Sec. 228.701(f) of this chapter).
* * * * *
40. By amending Form 10-K (referenced in Sec. 249.310) by removing
from General Instruction I.(c) the phrase ``General Instruction
(J)(1)(a)'' and adding in its place ``General Instruction (I)(1)(a)'',
by removing from the facing page the words ``(Fee Required)'' and ``(No
Fee Required)'', and in Item 5 of Part II by designating the current
text as paragraph (a) and by adding paragraph (b) to read as follows:
(Note: The text of Form 10-K does not, and the amendments thereto
will not, appear in the Code of Federal Regulations.)
FORM 10-K
* * * * *
PART II
Item 5. Market for Registrant's Common Equity and Related Stockholder
Matters
* * * * *
(b) If required pursuant to Rule 463 (17 CFR 230.463) of the
Securities Act of 1933, furnish the information required by Item 701(f)
of Regulation S-K (Sec. 229.701(f) of this chapter).
* * * * *
By amending Form 10-KSB (referenced in Sec. 249.310b) by removing
from the facing page the words ``(Fee Required)'' and ``(No Fee
Required)'', and in Item 5 of Part II by designating the current text
as paragraph (a) and by adding paragraph (b) to read as follows:
(Note: The text of Form 10-KSB does not, and the amendments thereto
will not, appear in the Code of Federal Regulations.)
FORM 10-KSB
* * * * *
PART II
Item 5. Market for Common Equity and Related Stockholder Matters
* * * * *
(b) If required pursuant to Rule 463 (17 CFR 230.463) of the
Securities Act of 1933, furnish the information required by Item 701(f)
of Regulation S-B (Sec. 228.701(f) of this chapter).
* * * * *
By the Commission.
Dated: July 18, 1997.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 97-19444 Filed 7-23-97; 8:45 am]
BILLING CODE 8010-01-P