[Federal Register Volume 64, Number 192 (Tuesday, October 5, 1999)]
[Rules and Regulations]
[Pages 53900-53925]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-25699]
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SECURITIES AND EXCHANGE COMMISSION
17 CFR Parts 210, 228, 229, 230, 239, 240, 249 and 260
[Release Nos. 33-7745; 34-41936; International Series Release No. 1205;
File No. S7-3-99]
RIN 3235-AH62
International Disclosure Standards
AGENCY: Securities and Exchange Commission.
ACTION: Final rule.
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SUMMARY: The Securities and Exchange Commission is adopting revised
disclosure requirements for foreign private issuers to conform to the
international disclosure standards endorsed by the International
Organization of Securities Commissions in September 1998. The
international disclosure standards will replace most of the non-
financial statement disclosure requirements of Form 20-F, the basic
disclosure document for foreign private issuers. We are revising the
registration statements used by foreign private issuers under the
Securities Act of 1933 to reflect the changes in Form 20-F. We also are
revising the definition of ``foreign private issuer'' to give clearer
guidance on how foreign companies should determine whether their
shareholders are U.S. residents.
DATES: Effective Date: September 30, 2000.
Compliance Dates:
Registrants must comply with the revisions to Form 20-F for annual
or transition reports on that form that are filed with respect to
fiscal years ending on or after September 30, 2000.
Registrants eligible to incorporate information from a Form 20-F
annual report must comply with the revisions to Forms F-2 and F-3 and
to Form F-4 for registration statements and post-effective amendments
on those forms filed for the first time after the registrant is
required to file its first annual report on amended Form 20-F.
A registrant voluntarily may comply with any of the revised forms
any time after September 30, 2000, but prior to the compliance date for
that form.
FOR FURTHER INFORMATION CONTACT: Sandra Folsom Kinsey, Senior
International Counsel, or Rani Doyle, Special Counsel, in the Office of
International Corporate Finance, Division of Corporation Finance at
(202) 942-2990.
SUPPLEMENTARY INFORMATION: We are adopting amendments to Form 20-
F1 under the Securities Exchange Act of 1934.2 As
part of those amendments, we are deleting Rule 3-19 under Regulation S-
X.3 We are adopting amendments to Rule 3-20 under Regulation
S-X,4 Items 402, 404, 512, and 601 of Regulation S-
K,5 Rules 175, 434 and 463 of Regulation C,6
Forms F-1, F-2, F-3, F-4, F-6 and S-11 7 under the
Securities Act of 1933,8 Exchange Act Rules 3b-6, 13a-10 and
15d-10,9 and Rule 0-11 under the Trust Indenture Act of 1939
10 to conform references to the items in Form 20-F that are
being revised in connection with the amendments to Form 20-F. We are
adopting amendments to Rules 3-01, 3-02 and 3-12 under Regulation S-X
11 and to Item 310 of Regulation S-B 12 to
eliminate references to Rule 3-19. We also are revising the definition
of foreign private
[[Page 53901]]
issuer in Securities Act Rule 405 13 and Exchange Act Rule
3b-4.14
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\1\ 17 CFR 249.220f (``Form 20-F'').
\2\ 15 U.S.C. Sec. 78a et seq. (the ``Exchange Act'').
\3\ 17 CFR 210.3-19.
\4\ 17 CFR 210.3-20.
\5\ 17 CFR 229.402, 17 CFR 229.404, 17 CFR 229.512 and 17 CFR
229.601.
\6\ 17 CFR 230.175, 17 CFR 230.434 and 17 CFR 230.463.
\7\ See 17 CFR 239.31, 17 CFR 239.32, 17 CFR 239.33, 17 CFR
239.34, 17 CFR 239.36 and 17 CFR 239.18.
\8\ 15 U.S.C. 77a et seq. (the ``Securities Act'').
\9\ 17 CFR 240.3b-6, 17 CFR 240.13a-10 and 17 CFR 240.15d-10.
\10\ 17 CFR 260.0-11.
\11\ 17 CFR 210.3-01, 17 CFR 210.3-02, and 17 CFR 210.3-12.
\12\ 17 CFR 228.310.
\13\ 17 CFR 230.405.
\14\ 17 CFR 240.3b-4.
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I. Executive Summary
Many of our initiatives for foreign issuers have had the goal of
reducing barriers to cross-border offerings and listings in the United
States, while preserving or enhancing existing investor protections. In
addition to our own initiatives, we, as a member of the International
Organization of Securities Commissions, referred to as IOSCO, have
participated in international initiatives intended to facilitate the
cross-border flow of securities and capital by promoting the use of a
single disclosure document that would be accepted in multiple
jurisdictions. In 1998, IOSCO endorsed a core set of disclosure
standards for the non-financial statement portions of a disclosure
document, and encouraged its members to take whatever steps would be
necessary in their own jurisdictions to accept disclosure documents
prepared in accordance with those standards.\15\
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\15\ You can find the full text of the standards endorsed by
IOSCO on the IOSCO Internet Web site <http://www.iosco.org>.
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We believe IOSCO's disclosure standards represent a strong
international consensus on fundamental disclosure topics, and that they
can be used to produce offering and listing documents that will contain
the same high level of information we traditionally have required.
Today we are revising our existing foreign issuer integrated disclosure
system to incorporate fully the international disclosure standards. We
are adopting the revisions to our foreign integrated disclosure system
essentially as proposed,\16\ with a few changes prompted by the
suggestions of commenters. The international disclosure standards
replace most, but not all, of the previous requirements of Form 20-F,
the combined registration and annual report form for foreign private
issuers under the Exchange Act.
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\16\ Securities Act Release No. 7637 (Feb. 2, 1999) [64 FR 2661]
(the ``Proposing Release'').
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We also are revising the definition of ``foreign private issuer''
found in the rules under the Securities Act and the Exchange Act, to
base the definition more closely on the percentage of securities
beneficially owned by U.S. residents.\17\ In response to concerns
raised by commenters, we have modified the proposed definition to give
issuers clearer guidance on how to calculate the amount of their voting
securities held by U.S. residents.
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\17\ See Securities Act Rule 405, 17 CFR 230.405, and Exchange
Act Rule 3b-4, 17 CFR 240.3b-4.
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II. Background of Proposals and Commenters' Concerns
A. Background
As noted in the Proposing Release, we historically have sought to
balance the information needs of investors with the public interest
served by opportunities to invest in a variety of securities, including
foreign securities.\18\ Technological advances have made it easier than
ever for investors to learn about and invest in foreign companies.
Because of the increasing flow of capital across borders, we and other
securities regulators around the world have an interest in ensuring
that a high level of information is available to investors in all
markets. For this reason, we have been actively involved in IOSCO's
efforts to develop a set of high quality international disclosure
standards that could be used in cross-border offerings and listings. We
support international initiatives that raise the level and quality of
information available to investors, facilitate the cross-border flow of
capital and reduce the regulatory burdens on foreign issuers, if those
initiatives do so in a manner that is consistent with our mandate to
protect investors. We believe the international disclosure standards
endorsed by IOSCO achieve those goals and that the best way to promote
use of the standards is to incorporate them fully into our existing
foreign issuer integrated disclosure system.\19\
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\18\ Securities Act Release No. 6360 (Nov. 20, 1981) [46 FR
58511].
\19\ As noted in the Proposing Release, we have preserved the
original wording of the international disclosure standards to the
maximum extent possible. We think this approach will promote
consistent use of the standards and will help foreign issuers
recognize them as a national version of the IOSCO standards accepted
in other jurisdictions. Upon adoption, the international disclosure
standards become part of the U.S. federal securities laws, as we
noted in the Proposing Release. The standards have not been adopted
on a mutual recognition basis with any other jurisdiction, and there
will be no change in our current procedures and practices for
reviewing and commenting on filed documents.
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B. Comments Regarding International Disclosure Standards
We received fifteen comment letters on the Proposing Release.\20\
All of the comment letters expressed support for increasing
international harmonization of disclosure standards and many expressed
support for the proposed amendments. The letters from organizations
representing users of issuer information, such as analysts and
institutional investors, were particularly supportive. These commenters
viewed the proposal as a means for promoting harmonization and
improving comparability, without compromising the level of information
provided by foreign registrants. Several commenters who expressed
support for international harmonization of disclosure standards placed
even greater importance on achieving harmonization in the area of
international accounting standards. As we noted in the Proposing
Release, the development of international accounting standards
currently is the subject of a separate project by IOSCO.\21\ Some of
the commenters had helpful suggestions for incorporating the
international disclosure standards into our foreign integrated
disclosure system and for clarifying the instructions to Form 20-F, and
we have adopted many of these suggestions in the final amendments.
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\20\ You may read and copy the comment letters and the staff's
summary of these letters in our Public Reference Room at 450 Fifth
Street, N.W., Washington, D.C. 20549. Ask for File No. S7-3-99. You
may view the comment letters that were submitted by electronic mail
at the Commission's web site: www.sec.gov.
\21\ See Proposing Release at n. 24.
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A few commenters urged us to evaluate the extent to which other
jurisdictions accept the international disclosure standards before we
take steps to revise our rules. They suggested that the international
disclosure standards be available as an optional, alternative
disclosure system, rather than being mandatory for all foreign
registrants.\22\ These and other commenters tended to view the proposed
amendments to Form 20-F as significantly increasing the disclosure
burden for foreign registrants, and they predicted that imposing these
requirements would deter foreign issuers from offering securities or
listing in the United States. One commenter suggested that the
revisions would penalize foreign registrants who had entered the U.S.
market under the prior rules, and proposed that the over 1,100
reporting foreign issuers be ``grandfathered'' and allowed to continue
using the disclosure standards in effect before these amendments.
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\22\ One commenter held the opposite view. See the comment
letter, dated June 5, 1999, submitted by the Federation of European
Stock Exchanges, which stated that ``[t]he Federation strongly
supports the rejection of the alternative of creating a two-tiered
system of disclosure requirements. The confusion created by an
alternative approach would endanger the very essence of the
proposals by IOSCO.''
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As noted in the Proposing Release, we do not view the amendments to
the foreign integrated disclosure system as resulting in a significant
increase in the information foreign issuers must
[[Page 53902]]
disclose.\23\ In the few cases where the international disclosure
standards ask for information not previously required by Form 20-F, we
understand that the information is required under the domestic
disclosure requirements in many other jurisdictions.\24\ Much of the
information that is new to Form 20-F's disclosure requirements,
therefore, is likely to be disclosed routinely by companies in
countries outside the United States. In some cases, companies already
may provide information required under the amendments to Form 20-F
because of our general requirement to provide additional material
information.\25\
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\23\ Several commenters supported this view, noting in one case
that ``while the format of the IOSCO disclosure standards differs
somewhat from the current format of Form 20-F, the overall of
disclosure required is not significantly different.'' See Rogers &
Wells client memorandum, dated February 1999, submitted as a comment
letter. another commenter expressed the view that ``New Form 20-F is
generally comparable in quality to the disclosure requirements
currently applicable to foreign private issuers.'' See Cleary,
Gottlieb, Steen & Hamilton comment letter, dated May 18, 1999.
\24\ In its comment letter dated June 15, 1999, the Federation
of European Stock Exchanges expressed its members' support for the
proposal and for efforts to create an ``international passport''
that would reduce the burden of different regulatory requirements
while preserving investor protection and promoting transparency. In
explaining its support, the Federation noted that some of the
requirements in amended Form 20-F are equivalent to current and
planned disclosure requirements for most European countries.
\25\ 17 CFR 230.408 and 17 CFR 240.12b-20.
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In some cases, changes in the wording of requirements may create
the impression that different or additional disclosure is required. We
understand that changes in wording may create uncertainty among
practitioners who are familiar with the prior phrasing and are unsure
how to interpret different expressions of what is intended to be
essentially the same requirement. One commenter urged us to identify
disclosure requirements that use different wording but that are not
intended to impose different substantive disclosure requirements.
Although it is not possible to identify every example, we have tried to
bear that concern in mind in our more detailed explanation of the
amendments we are adopting today.
With respect to the suggestion that we delay adopting the
international disclosure standards until we see how widely they are
accepted, or that we implement them on a voluntary basis, we do not
believe that those approaches would achieve our goal of promoting
regulatory harmonization at a high level of disclosure.\26\ We
understand that some of the more developed capital markets represented
in IOSCO either have agreed to accept, or are planning to accept,
disclosure documents prepared using the international disclosure
standards in cross-border offerings and listings. For example, the
London Stock Exchange has advised us that it currently would accept
disclosure documents based on the international disclosure standards,
and, as part of its annual revision of its listing rules, it will be
codifying that position in its rules. Some IOSCO jurisdictions have
adopted the standards for domestic purposes; we understand that is the
case in Argentina, Italy and Mexico. We think that by moving quickly to
incorporate the international disclosure standards into our foreign
registration system, we demonstrate our strong support for high quality
international standards and encourage other jurisdictions to follow
suit. As one of the largest capital markets, we believe our support is
important for widespread acceptance and implementation of the
standards.
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\26\ The Federation of European Stock Exchanges specifically
noted that maintaining alternative disclosure standards would be
inconsistent with the concept of regulatory simplification and the
goals of the amendments. See Federation of European Stock Exchanges
letter dated June 15, 1999.
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In the Proposing Release we explained that we had considered but
rejected the alternative of a two-tiered registration system for
foreign issuers. We continue to believe that any elective approach
would add unnecessary complexity to our registration system, when our
preference is for measures that promote regulatory simplification. For
the same reason--and because, as explained above, we do not view the
international disclosure standards as imposing a significant additional
disclosure burden--we do not plan to ``grandfather'' the existing
foreign reporting companies.
We believe the lengthy effective dates for the revised rules and
forms will allow time to confirm that there is international support
for the standards. The delayed effective dates also provide a
transition period that should be particularly helpful for registrants
adapting to a new disclosure form. For example, as explained later in
this release, issuers filing registration statements on Form 20-F or
Form F-1 will not use the revised forms until September 30, 2000, and
repeat issuers filing registration statements on Forms F-2, F-3 or F-4
will have an even longer transition period. Annual reports on revised
Form 20-F will not be due until March 31, 2001 at the earliest, for
those companies with September 30 fiscal year ends. Companies with
December 31 fiscal year ends will not be required to file an annual
report on revised Form 20-F until June 30, 2001, almost two years from
the date of this release.
C. Comments Regarding Elimination of Rule 3-19
As we explained in the Proposing Release, we are eliminating Rule
3-19 of Regulation S-X, which specifies the content, age and other
requirements for foreign issuer financial statements, because the
requirements of the rule are addressed in new Item 8 of Form 20-F. The
only substantive change relates to the permitted age of financial
statements. Item 8 of Form 20-F requires that audited financial
statements be no older than 15 months at ``the time of the offering or
listing,'' which means the effective date of the registration
statement, rather than the 18 months permitted under Rule 3-19. In the
case of the issuer's initial public offering, the audited financial
statements also must be as of a date not older than 12 months at the
time the offering document is filed. This stricter rule for initial
public offerings does not apply to foreign issuers offering securities
in the United States for the first time if they already are public in
their home country.\27\ Item 8 also provides that if the date of a
registration statement is more than nine months after the end of the
issuer's last fiscal year, the registration statement must contain
interim financial statements, including U.S. GAAP information, covering
at least the first six months of the issuer's fiscal year. This
information may be unaudited.
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\27\ Since many foreign issuers already are public companies
when they file their first registration statement in the United
States, we believe the 12-month rule will apply only in very limited
circumstances. Even in those circumstances, we will consider waiving
the requirement if the issuer represents adequately to the staff
that no jurisdiction outside the United States imposes the 12-month
requirement on the registrant's offering and that complying with the
requirement is impracticable or presents undue hardship. If we waive
the 12-month requirement, issuers would be instructed to comply with
the 15-month age of financial statement requirement of Item 8.A.
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Some commenters pointed out that business history, market factors
and industry practices often cause foreign issuers to prepare financial
statements that are more current than required. These commenters did
not believe the proposal to shorten the age of financial statements
requirement would have significant practical effect on many issuers.
One commenter approved of requiring more current financial information
and urged us to consider accelerating further the filing deadlines
[[Page 53903]]
for annual reports of foreign registrants. On the other hand, several
commenters expressed the view that the proposed change would unduly
burden foreign issuers. These commenters pointed out that foreign
issuers often need additional time to prepare a reconciliation to U.S.
GAAP after they have finished preparing their primary financial
statements.
We believe that the 15-month audited financial statement
requirement is in line with the requirements in other countries and is
not an undue burden on a company seeking to offer securities in the
United States. In most cases, companies have the ability to control the
timing of their offerings so as to reduce the impact of this shorter
age requirement. We believe the 15-month period is sufficient time to
prepare a reconciliation to U.S. GAAP along with the financial
statements. We also hesitate to factor in extra time for a company to
prepare a reconciliation to U.S. GAAP, because this requirement affects
companies in different ways. Whether or not there are any reconciling
items to be reported--and the number and extent of those items--
depends, among other things, on a company's business activities during
the period covered by the financial statements, on how similar the
accounting standards used in preparing the primary financial statements
are to U.S. GAAP, and on the way in which the company has chosen to
apply those accounting standards in preparing its primary financial
statements. For some companies, the burden is not significant.
Some commenters argued that the ``blackout'' period resulting from
the new age of financial statements requirements and the current six-
month due date for annual reports on Form 20-F would pose a particular
hardship for issuers who are in the market more or less continuously,
as in the case of rights offerings, dividend or interest reinvestment
plans, and offerings of securities upon conversion or exercise of
outstanding securities. We already have distinguished these types of
offerings in certain respects, such as by permitting the financial
statements in prospectuses for these types of offerings to be
reconciled to U.S. GAAP in accordance with Item 17, rather than Item
18, of Form 20-F. Because the blackout period may be particularly
disruptive for these types of offerings, we have amended the
instructions to Item 8.A.5 to replace the 15-month requirement for
these types of offerings with an 18-month requirement and to replace
the nine-month interim financial statements requirement with a 12-month
requirement, which mirror the previous requirements for those types of
offerings. We expect to reconsider this accommodation in the future,
however, and may propose reducing the permitted age of financial
statements for these types of offerings based on a review of its
operation in practice or a possible change in the due date for annual
reports.\28\
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\28\ See Section XI.A.2 of Securities Act Release No. 7606A
(Nov. 13, 1998) [63 FR 67174]. In the Securities Act reform release
we proposed accelerating the due date for Form 20-F annual reports
to five months after the close of the issuer's fiscal year and
solicited comment on whether the due date should be accelerated to
four months.
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D. Specific Changes to Registration and Report Forms
Form 20-F is used as an initial registration statement under the
Exchange Act and as an annual report form for foreign private issuers
required to file annual reports pursuant to Section 13 or 15(d) of the
Exchange Act. The amendments to Form 20-F adopted today replace prior
Items 1--14 of Form 20-F, excluding Item 9A, with ten new items that
track the wording of the IOSCO disclosure standards. The item
previously designated as Item 9A, Quantitative and Qualitative
Disclosures about Market Risk, of Form 20-F is retained and renumbered
as Item 11. The items previously designated as Item 15, Defaults Upon
Senior Securities, and Item 16, Changes in Securities and Changes in
Security for Registered Securities, of Form 20-F also are retained and
renumbered as Items 12 and 13, and the wording has been revised to
reflect ``plain English'' drafting principles. These two items continue
to apply only when Form
20-F is used as an annual report form.
Items 17 and 18 of Form 20-F are retained in substance and are not
renumbered; these items explain the financial statement requirements
for registration statements and reports and the different types of
reconciliation to U.S. GAAP that must be provided by issuers who
prepare financial statements using accounting principles other than
U.S. GAAP. As noted in the Proposing Release, the text of old Item 18
was largely the same as the text of old Item 17; our revisions to Item
18 eliminate the redundant text and highlight the differences, but are
not intended to change any substantive requirements of that Item.
The amendments adopted today also bring the exhibit requirements
for foreign issuers more in line with the exhibits required for
domestic issuers filing a registration statement on Form 10 or an
annual report on Form 10-K. The ``Appendix A to Item 2(b)--Oil and
Gas'' is amended only to correct item references; no substantive
changes were made. Corresponding changes were made in the Securities
Act registration statement forms that refer to Form
20-F.
Several commenters made helpful suggestions for clarifying the
instructions to the ten items of the international disclosure standards
or for adapting them to our existing integrated disclosure system. The
ten core items are described below, together with an explanation of
some of the changes from the Proposing Release. As noted, most of the
ten items have been adopted as proposed.
Item 1. Identity of Directors, Senior Management and Advisors
Several commenters noted that the terms ``principal bankers and
legal advisors'' and ``legal advisors to the issue'' may be confusing
or raise liability issues in the United States. While these terms and
the term ``sponsor'' are commonly used and well understood in some
countries, they may not be used in other jurisdictions. We have revised
the instructions to this item to clarify that these individuals or
entities only need be identified if the issuer is required to identify
them in other jurisdictions.
Item 2. Offer Statistics and Expected Timetable
One commenter noted that the timetable for a typical U.S. offering
by a foreign private issuer would be very dependent on market
conditions and other unpredictable factors. We would expect that in
cases such as a typical, U.S.-style, firm-commitment underwritten
offering, the timetable disclosure would be very brief and would likely
focus more on the sequence of events than on precise dates. In other
cases, such as offerings involving a complex corporate restructuring,
we expect that the timetable would provide more detail and likely would
include anticipated dates or elapsed periods of time for major events.
Item 3. Key Information
This item includes requirements for selected financial data,
exchange rate information, the reasons for the offer and the expected
use of proceeds, and information about risk factors. With respect to
the Item 3.B requirement for a statement of capitalization and
indebtedness, we have amended the proposed instructions to clarify that
this statement is not required in annual reports, in line with current
disclosure practice, and also to provide guidance
[[Page 53904]]
on complying with the requirement in the case of offerings under shelf
registration statements. With respect to the requirement for
information on the reason for the offer and use of proceeds, found in
Item 3.C, we view this item as calling for the same type of information
that U.S. companies provide in response to Item 504 of Regulation S-K.
With respect to Item 3.D, risk factors, one commenter suggested that
attempting to limit risk factor disclosure in annual reports to ``the
most significant risk factors'' was confusing and unnecessary. We agree
that, in view of our recent ``plain English'' initiative and its
emphasis on avoiding boilerplate risk factors, any listing of risk
factors--whether in a registration statement or an annual report--
should focus on the most significant risk factors as they apply to the
issuer and its operations. An explicit instruction would be redundant
and may create confusion. Accordingly, we have deleted this
instruction.
Item 4. Information on the Company
This item includes requirements for a description of the issuer's
business and properties. To the extent segment information is required,
this item states that information may be presented on the same basis as
that used to determine the company's business segments under the body
of accounting principles used in preparing the financial statements.
This statement is intended to refer to the accounting principles used
in preparing the primary financial statements, not those used in
preparing any required U.S. GAAP reconciliation. One commenter
suggested that we continue to include the Form 20-F instructions
regarding the necessity of complying with applicable Industry Guides
and, for issuers in extractive industries, the need to name any
independent consultants who have prepared or reviewed estimates of
reserves. Following this suggestion, we have revised the instructions
to Item 4 to reflect our existing instructions in this area.
Item 5. Operating and Financial Review and Prospects
This item corresponds to the current requirement for management's
discussion and analysis of financial condition and results of
operations. We interpret the requirements of this item as being
essentially the same as those of old Item 9 of Form 20-F. We have added
an instruction to clarify that, as was the case under old Item 9, this
section of the registration statement or report should discuss any
aspect of the U.S. GAAP reconciliation and U.S. GAAP differences that
the registrant believes is necessary for an understanding of the
financial statements as a whole. In response to comments asking us to
clarify when information must be provided with respect to inflation
rates and the effects of hyperinflation, we have added an instruction
to provide additional guidance.
Item 6. Directors, Senior Management and Employees
This item includes requirements relating to compensation and
shareholdings for directors and management. The definition of the term
``administrative, supervisory or management bodies'' in Form 20-F's
Glossary states that this term corresponds to ``executive officers'' in
the United States. Two commenters suggested that this attempt at
clarification could create confusion, because in some countries the
members of these bodies may not perform the same functions as executive
officers in U.S. companies. In response to this concern, we have
deleted the clarification and added an instruction stating that the
meaning of these terms will depend on the functions performed.
Several commenters noted that Item 6 requires disclosure of the
amount of shares held by individual directors and management, without
the alternative previously available under old Item 5 of Form 20-F of
providing this information on an aggregate basis. We believe that the
international disclosure standards reflect a consensus that the
individual share ownership of management provides important information
for investors. However, we have added an instruction indicating that if
an individual member of management beneficially owns less than 1% of
the outstanding securities, that fact may be stated instead of
providing the specific number of shares that individual beneficially
owns, as long as the specific number of shares is not otherwise
disclosed or required to be disclosed in a non-U.S. jurisdiction. This
mirrors the approach taken in Item 403 of Regulation S-K for U.S.
issuers.
Item 7. Major Shareholders and Related Party Transactions
This item requires disclosure of information about major
shareholders and others that control or may control the company, as
well as disclosure of related party transactions. At the request of one
commenter, we have added an instruction similar to Instruction 3 to
Item 404(c) of Regulation S-K, to clarify the extent to which banks and
other lending institutions must disclose loans made in the ordinary
course of business. Item 7 reduces the Form 20-F threshold for
disclosure of beneficial ownership from 10% to 5%, and the commenters
that mentioned this change generally expressed support.
Item 8. Financial Information
This item contains requirements relating to the presentation of
financial statements, requirements that previously were set forth in
Rule 3-19 of Regulation S-X, and requirements relating to legal
proceedings. The only change we are making to Regulation S-X is the
elimination of Rule 3-19; the remaining items of Regulation S-X
continue to apply to registration statements and reports filed by
foreign private issuers to the same extent they did before these
amendments to Form 20-F were adopted. With respect to the provisions of
Item 8.A.5 that relate to financial information published by the issuer
that is more current than the financial statements required in the
filing, some commenters expressed concern that these provisions expand
on the requirements of Rule 3-19(f) or change the reconciliation
requirement for this type of information. This was not the intention,
and we have revised the instructions in an attempt to eliminate any
confusion on this point.\29\ We also have added an instruction
clarifying that in order to comply with the requirement for three years
of audited financial statements, the issuer is not required to provide
a balance sheet for the earliest of these periods if it is not required
in a jurisdiction outside the United States.
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\29\ There also is no change in the reconciliation requirement
for interim information presented in selected financial data.
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Two commenters asked if the statement in the Item 8 instructions
and in the General Instructions, that financial statements must be
audited in accordance with U.S. generally accepted auditing standards,
was intended to change the staff's practice of accepting auditor's
reports that state that the audit was conducted in accordance with
local auditing standards that are ``substantially similar'' or
``similar in all material respects'' to U.S. GAAS. As one commenter
noted, that practice was adopted to accommodate audit report styles in
different jurisdictions that differ from the audit report wording
specified by U.S. GAAS. The practice was not intended to relieve the
auditor of the responsibility to perform all auditing procedures
necessary under U.S. GAAS. We do not intend to change our practice of
accepting wording variations in audit reports to comply with local
reporting formats. In all other
[[Page 53905]]
respects, however, in order to avoid ambiguity, the report must say
that the audit was performed in accordance with U.S. GAAS.
Item 9. The Offer and Listing
This item includes requirements for a description of the offering,
including the plan of distribution, trading markets, selling
shareholders, dilution and expenses. Item 9.A requires disclosure of
how the offering price was determined if there is no established market
for the securities being offered. We view this requirement as being
equivalent to the requirement of Item 505 of Regulation S-K. One
commenter pointed out that the requirement in Item 9.B.1 for the
underwriters' addresses could create logistical problems in U.S.-style
offerings where the syndicate members are not decided until final
pricing. In those circumstances, however, an issuer may comply with
this requirement by disclosing only the addresses of the lead
underwriters, which should be known before pricing. Generally speaking,
for a U.S.-style, firm commitment underwritten offering, we would
expect that the responses to Item 9.B, Plan of Distribution, would
include much of the same information provided in response to Item 508
of Regulation S-K, to the extent that information is material to an
investor's understanding of the offering.
Item 10. Additional Information
This item includes requirements for, among other things, a
description of the issuer's share capital, significant provisions of
its articles of incorporation and bylaws, its material contracts, and
applicable taxes. One commenter suggested that certain requirements of
Item 10, specifically subsections 10.A (Share Capital), 10.E (Taxation)
and 10.F (Dividends and Paying Agents), be limited to registration
statements and annual reports relating only to equity securities, since
that information is inapplicable to other types of securities, or would
otherwise be disclosed in the issuer's financial statements or in
response to Item 10.B, Memorandum and Articles of Association. After
considering this comment and the prior requirements of Form 20-F, we
agree that the information called for by Item 10.A and 10.F is less
pertinent to non-equity securities and to annual reports, and we have
amended the item to limit these requirements to registration statements
relating to equity securities.
E. ``Foreign Private Issuer'' Definition
We are adopting the proposed amendments to Rule 405 under the
Securities Act and Rule 3b-4 under the Exchange Act, which contain the
definition of ``foreign private issuer,'' essentially in the form
proposed, with some additional clarification. The amendments, in
effect, change the test of whether more than 50 percent of an issuer's
outstanding voting securities are held by residents of the United
States from a record ownership test to one that more closely reflects
the beneficial ownership of the issuer's securities.\30\ As noted in
the Proposing Release, we believe that the increased prevalence of
offshore nominees and custodial accounts has made record ownership less
meaningful for purposes of determining U.S. ownership. We believe a
test based more closely on beneficial ownership gives a better picture
of whether or not a company incorporated outside the United States is
entitled to the accommodations available to foreign private issuers
under the federal securities laws. The ownership test adopted today is
based on the method of calculation used in Exchange Act Rule 12g3-2(a),
which follows the definition of ``securities held of record'' in Rule
12g5-1, but requires the issuer to ``look through'' the record
ownership of brokers, dealers, banks or nominees holding securities for
the accounts of their customers to determine the residency of those
customers. Issuers also must take into account information regarding
U.S. ownership derived from beneficial ownership reports that are
provided to the issuer or filed publicly, as well as information that
otherwise is provided to the issuer. The reference to beneficial
ownership reports is not limited to reports filed with the Commission,
since we understand that beneficial ownership of an issuer's securities
may be required to be provided to the issuer or disclosed publicly in
other countries, as well as in the United States.
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\30\ There are two parts to the foreign private issuer
definition. The first part is based on ownership of the issuer's
securities. The second part of the definition is based on whether
(a) a majority of the issuer's executive officers or directors are
U.S. citizens or residents, (b) over 50% of its assets are within
the United States, or (c) its business is administered principally
in the United States. Any one of these three factors, together with
majority U.S. ownership, will mean the issuer fails to satisfy the
foreign private issuer definition.
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Several commenters suggested that these changes would create a
substantial burden for companies that trade in many different markets,
and that widely held companies would have to devote significant effort
and expense in determining beneficial ownership in many jurisdictions
where the likelihood of finding U.S. owners is small. In order to
address these concerns, we have limited the application of the ``look
through'' provisions of Rule 12g3-2(a) to voting securities held of
record:
In the United States,
In the issuer's home jurisdiction, and
In the primary trading market for the issuer's securities
if different from the issuer's home jurisdiction.
These jurisdictions should cover most of the trading volume for the
issuer's securities, and searches in these jurisdictions are likely to
yield the greatest number of U.S. beneficial owners. This modification
to the test should reduce the burden on foreign companies while still
producing a reasonably accurate picture of whether or not the company
is a foreign private issuer.
Most commenters questioned the basis for our proposed rebuttable
presumption that, if a foreign issuer's securities trade in the U.S.
markets in the form of American Depositary Receipts, or ADRs, the
shares deposited in the ADR program are held solely by U.S. residents.
These commenters pointed out that, for a number of reasons, non-U.S.
investors may choose to hold securities in ADR form. Because it appears
that issuers will not take advantage of the presumption and will feel
the need to query ADR depositaries regarding the owners of ADRs, we
have determined not to adopt the presumption.
Some commenters pointed out that it is not always possible for
issuers to obtain information about separate customer accounts, as
required by Rule 12g3-2(a). Brokers, dealers, banks or other nominees
may be unwilling or unable to provide information about their customer
accounts. This problem is not unique to the foreign private issuer
definition, however; the duty to inquire about separate customer
accounts already exists for issuers deciding whether the reporting
exemption in Rule 12g3-2(a) is available. In the case of the foreign
private issuer definition, the issuer would not be asking nominees to
provide the number of U.S. shareholders or the names of those
shareholders, but only the percentage of the nominee's holdings of the
issuer's securities that are represented by U.S. accounts. If after
reasonable inquiry, however, the issuer is unable to obtain information
about the nominee's customer accounts, including cases where the
nominee's charge for supplying this information would be unreasonable,
the issuer may rely on a presumption that the customer accounts are
held in the nominee's principal place of business. We have
[[Page 53906]]
revised the instructions to the foreign private issuer definition to
clarify this point.
III. Effective Dates and Transition Provisions
The amendments to rules and forms adopted today become effective
September 30, 2000, with certain exceptions. In some cases, as
explained below, the date at which a registrant will have to comply
with a revised form will depend on that registrant's fiscal year end.
Registration statements filed on Form F-1, Form F-4 or
Form 20-F--Registrants must use revised Form F-1 and revised Form
20-F for registration statements first filed on or after September
30, 2000.\31\ Registrants that are not eligible to incorporate Form
F-4 information by reference to a previously filed annual report on
Form 20-F also must use revised Form F-4 for registration statements
filed on or after September 30, 2000.
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\31\ Forms F-6 and S-11 under the Securities Act were revised to
conform cross-references to Form 20-F. The changes to these forms
also are effective for forms first filed on or after September 30,
2000.
---------------------------------------------------------------------------
Registration statements filed on Forms F-2 and F-3 and
on Form F-4 if it permits information to be incorporated by
reference--These forms permit a registrant to satisfy form
requirements by incorporating information from an annual report on
Form 20-F. Form F-4 also permits the registrant to incorporate
information about the other party to a business combination by
referring to that company's annual report. The revised Forms F-2, F-
3 and F-4 do not provide for incorporation of information by
reference to ``old'' Form 20-F. Accordingly, the revisions to Forms
F-2 and F-3 will be effective for registration statements and post-
effective amendments filed any time after a registrant is required
to file its first annual report on revised Form 20-F. In cases where
a Form F-4 permits information about either party to the business
combination to be incorporated by reference to an annual report on
Form 20-F, the revisions to Form F-4 will be effective for
registration statements and post-effective amendments filed any time
after the party whose information is being incorporated by reference
is required to file its first annual report on Form 20-F.
Annual reports filed on Form 20-F--Revised Form 20-F
must be used for annual or transition reports filed with respect to
fiscal years ending on or after September 30, 2000.
Rule 3-19--Rule 3-19 of Regulation S-X will no longer
apply to registration statements filed on or after September 30,
2000 that are filed on Form F-1 or on a Form F-4 that permits
incorporation of information by reference. A registrant may continue
to rely on Rule 3-19 for registration statements filed on Forms F-2
and F-3, and on a Form F-4 that permits incorporation of information
by reference, until the revisions to those forms take effect.
The following information applies to situations that arise when
registrants make the transition from the old version of a form to the
revised version:
Pre-effective amendments--If, on September 30, 2000, a
foreign private issuer has on file at the Commission a registration
statement on Form F-1, a Form F-4 that does not permit incorporation
by reference or Form 20-F and that registration statement has not
been declared effective, the issuer may continue to file pre-
effective amendments to that registration statement after September
30, 2000 without modifying those pre-effective amendments to reflect
the revisions. This position does not apply to pre-effective
amendments to registration statements on Forms F-2, Form F-3 or a
Form F-4 that permits incorporation by reference, because
registrants will have a lengthy transition period and experience
preparing an annual report on revised Form 20-F, before they have to
comply with the revisions to those Securities Act registration
statements.
Post-effective amendments--The revisions to
registration statement forms adopted today apply to post-effective
amendments filed on or after the effective date given above for a
particular form if the post-effective amendment is to include the
registrant's latest audited financial statements or to update the
prospectus under Section 10(a)(3).\32\
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\32\ 15 U.S.C. 77j(a)(3).
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Registration statements and post-effective amendments
filed under Rules 462 (b) and (c)--Registration statements and post-
effective amendments filed under Rules 462 (b) and (c) are effective
upon filing with the Commission. These registration statements and
amendments must comply with the registration statement revisions
adopted today only if the registrant first filed the underlying
registration statement on or after the effective date given above
for a particular form.
Prospectus supplements--The revisions to registration
statement forms adopted today apply to prospectus supplements filed
on or after the effective date given above for a particular form. If
an issuer filed a base prospectus under Rule 415(a)(1)(x) before it
was required to comply with revised Form F-3, that base prospectus
does not have to be amended, even though subsequent prospectus
supplements must comply with the revised form.
Registrants are encouraged to use the revised forms for
registration statements and annual reports on a voluntary basis before
the compliance dates described above. A registrant that wishes to use
revised Forms F-2, F-3 or F-4 before it has filed its first annual
report on revised Form 20-F may do so. In those cases, however, the
registrant either will have to amend its previously filed annual report
to comply with the new disclosure requirements of Form 20-F or provide
within the body of the Securities Act registration statement the
information it would otherwise incorporate from Form 20-F.
IV. Cost-Benefit Analysis
The amendments update and simplify the disclosure requirements for
foreign private issuers. We believe the amendments will make it easier
for foreign private issuers to raise capital and list their securities
in multiple jurisdictions, including the United States. In addition, as
other jurisdictions adopt or accept the international standards, U.S.
issuers desiring to raise capital in multiple foreign markets will
enjoy the benefits of harmonization.
Foreign issuers seeking to raise capital or list securities in more
than one jurisdiction often encounter differing, and in some cases
conflicting, regulatory requirements. These regulatory hurdles may
influence issuers' decisions about where to offer or list their
securities. A primary goal of the amendments to Form 20-F is to
encourage and facilitate the use of one disclosure document by issuers
seeking to raise capital or list securities in multiple jurisdictions.
The amendments provide the benefits of lowering regulatory barriers to
cross-border offerings and listings with the result of reduced
regulatory costs and burdens. The amendments will bring us closer to
the goal of enabling issuers to prepare one basic disclosure document
that will be accepted in many jurisdictions. Although some tailoring of
the disclosure document may be required to satisfy specific national
requirements, issuers and investors will benefit from greater
uniformity in the requirements for core disclosure topics.
The amendments impose some additional disclosure requirements on
foreign private issuers. However, we believe that the benefits of the
amendments--to issuers and investors--justify possible costs. As we
stated in the proposing release, we believe the IOSCO standards
incorporated into amended Form 20-F are generally comparable to the
prior disclosure requirements of Form 20-F and that foreign private
issuers should not experience significantly increased compliance costs.
Some commenters, including attorneys in private practice informally
contacted by the staff of the Office of International Corporate
Finance, have concurred with our view. They acknowledge that the
disclosure requirements in amended Form 20-F are comparable to the
Form's previous disclosure requirements and would not, in practice,
result in significant additional or quantifiable compliance costs.
We recognize that shortening the age of financial statements
requirement may present burdens for some foreign private
[[Page 53907]]
issuers. We believe that the transparency benefits to investors of the
availability of more current information justifies the potential
burdens of the new requirements. Indeed, several commenters expressed
their belief that the amendments will increase transparency, ensure a
high level of investor protection and enhance the comparability of
disclosures between foreign and domestic issuers. In addition, in
conversations with practitioners, many indicated that they did not
expect the new Form 20-F requirements to impact their clients
adversely, because the market already demands more current financial
information from offerors than presently required. For these issuers,
no new burden will exist. Moreover, in response to concerns raised by
some commenters, the final amendments relax the age of financial
statement requirements for continuous offerings, diminishing the
burdens potentially associated with the new timing requirements.
Furthermore, in many offerings, issuers have flexibility to determine
the timing of their filings and may be able to plan their offerings to
accommodate the requirements. Accordingly, the Commission does not
believe that foreign private issuers should experience a significant
quantifiable burden in complying with the amendments.
There are other reasons to conclude that the benefits of the
amendments, which will accrue both to investors and to issuers, will
justify the costs. First, the purpose of the amendments is to
facilitate cross-border offerings and listings. We believe the
amendments will encourage other jurisdictions to endorse or adopt the
IOSCO standards, and widespread acceptance of the standards will
further reduce compliance burdens for foreign issuers, as well as for
U.S. issuers seeking capital abroad.
Second, we, as well as some commenters, expect additional
compliance costs will be mitigated because a significant number of
foreign private issuers already comply, for various reasons, with the
additional disclosure requirements in the amended Form. For instance:
Foreign issuers often provide the additional information
that is required by the amended Form in order to successfully market
their securities or attract investors, or in response to our general
materiality requirements.
As one commenter noted, some of the new requirements,
including those related to age of financial statements, 5% beneficial
ownership disclosure, and expanded compensation-related disclosure, are
equivalent or comparable to disclosure requirements that currently are
or will soon be mandated in many European jurisdictions.
Other countries, such as Argentina, Italy and Mexico, are
adopting IOSCO's international disclosure standards for their domestic
issuer disclosure requirements. As regulators move further in the
direction of harmonized standards, we expect more jurisdictions to
endorse and more foreign issuers to comply with the IOSCO standards.
Third, not all of the disclosure requirements of the amended Form
will apply to all foreign private issuers; some requirements are based,
as with old Form 20-F, on foreign requirements. In these instances,
disclosure will not be required under the amended Form unless a foreign
private issuer is required to disclose information in another
jurisdiction or makes the requested information public on a voluntary
basis.
Finally, the amendments are scheduled to take effect gradually,
beginning more than one year from adoption, at the earliest. This
schedule will give foreign private issuers a significant amount of time
to familiarize themselves with the amendments and to set up cost-
effective procedures, as necessary, to comply with the amendments. We
believe this will allow foreign issuers to plan and minimize any
compliance costs.
Some commenters expressed concern that the amendments to change the
definition of ``foreign private issuer'' under the Exchange Act and the
Securities Act would impose significant compliance costs. We believe
the new requirements are beneficial to the integrity of our regulatory
system, which provides accommodations for foreign issuers because of
the unique difficulties they face in entering a foreign regulatory
regime. The amendments provide a more accurate portrayal of whether a
company incorporated outside the United States is the type of entity
for whom the special rules and forms for foreign private issuers were
intended.
In response to concerns expressed by commenters about the costs
associated with the amendments, we have determined to adopt a more
focused ``look through'' requirement that will reduce issuer costs and
capture most U.S. ownership information. We believe that the benefits
of accurate issuer categorization justify the additional costs a
company incorporated outside the United States may bear in determining
whether it is entitled to the accommodations available to foreign
private issuers.
In sum, we expect the amendments to revise Form 20-F, accelerate
the age of financial statements requirements, and revise the definition
of foreign private issuers, will impose transitional costs on foreign
private issuers, but after a transitional period, we believe those
costs will become much less significant. We believe those costs are
justified in light of the benefits the amendments will provide to
issuers, investors and the markets.
V. Consideration of Burdens on Competition, and Promotion of
Efficiency, Competition and Capital Formation
Form 20-F is used by foreign private issuers as an initial
registration statement and as an annual report form under the Exchange
Act. The amendments to Form 20-F and related forms and rules should
encourage and facilitate the use of one disclosure document that would
meet the regulatory requirements of multiple jurisdictions. The
Commission sought but did not receive any comments related to whether
the amendments would promote efficiency, competition or capital
formation, or have anti-competitive effects. Under Section 2(b) of the
Securities Act and 3(f) of the Exchange Act, the Commission considered
whether the amendments would promote competition, cross-border capital
formation, and efficiency in multi-jurisdictional offerings and
listings. Moreover, the amendments adopted today reflect the
Commission's consideration, as required by Section 23(a) of the
Exchange Act, of the impact the amendments may have on competition. The
amendments are designed to harmonize disclosure requirements for
foreign issuers, without imposing any negative impact on U.S.
businesses. Therefore, the Commission believes that any burden on
competition imposed by the amendments is necessary or appropriate in
furtherance of the purposes of the Exchange Act.
VI. Regulatory Flexibility Act Certification
Pursuant to the Regulatory Flexibility Act (15 U.S.C. Sec. 605(b)),
the Chairman of the Commission certified at the proposal stage that the
revisions to rules and forms will not have a significant impact on a
substantial number of small entities. We received no comments
specifically addressing the certification. A copy of the certification
was attached as Appendix A to the Proposing Release.
[[Page 53908]]
VII. Paperwork Reduction Act
The amendments affect Form 20-F, which contains ``collection of
information requirements'' within the meaning of the Paperwork
Reduction Act of 1995.\33\ The title for the collection of information
is ``Form 20-F.'' Providing the information required by Form 20-F is
mandatory for foreign private issuers required to register securities
or offerings with the Commission, and the information collected will
not be kept confidential.
---------------------------------------------------------------------------
\33\ 44 U.S.C. Secs. 3501 et seq.
---------------------------------------------------------------------------
The amendments will affect changes to collections of information
within the Paperwork Reduction Act. The collections of information
would be required by amended Form 20-F. Most of the disclosure
requirements of amended Form 20-F closely correspond to the Form's
previous disclosure requirements. The new requirements of the amended
Form are based on common national requirements in other countries, as
identified by IOSCO. For these reasons, we do not expect filers of the
amended Form 20-F to experience a long-term quantifiable change in
their information collection burdens. In the short term, we expect that
foreign private issuers will spend time reviewing Form 20-F to become
familiar with its amended format and requirements, and as necessary,
implement measures to comply with additional disclosure requirements.
The adopted rule is substantially similar to the proposed rules with
respect to the collection of information requirements. Changes from the
proposed Form were undertaken in response to comment letters and
principally are clarifications.
The information collection burden is not readily quantifiable for
several reasons:
Some of the new disclosure requirements are not triggered
unless the Form 20-F filer has a disclosure obligation under foreign
law;
Different issuers will need more or less time to become
familiar with the amendments;
Some foreign private issuers already disclose voluntarily
the information that is required by the amendments.
Once all Form 20-F filers familiarize themselves with the amended
Form, we believe the burden hours will revert to the current
information collection burden estimate. In the longer term, as more
jurisdictions endorse and accept the IOSCO standards, we believe that
the burden estimate may decrease as the differences between U.S.
standards and foreign standards are reduced.
We determined the number of burden hours by estimating the number
of hours it would take for an average foreign private issuer to: (1)
become familiar with the amendments; (2) make an initial filing on
amended Form 20-F and/or related amended Securities Act forms; and (3),
file subsequent registration statements or reports using amended Form
20-F standards. It is our estimate that the average foreign private
issuer initially would need 20 hours to understand the amendments and
another 10 to implement them. We believe this 30 hour burden will
decrease significantly after the first time a foreign private issuer
complies with the amendments.
In addition to the transition burden, the average foreign private
issuer would need 451 hours annually to file an amended Form 20-F or
amended Securities Act form that incorporated Form 20-F standards. To
reach this number, we relied on the total annual burden hour estimate
submitted in connection with Form 20-F to the Office of Management and
Budget, referred to as OMB, in 1996. The resulting estimate is
significantly less than the 1,995 burden hours set forth in the
Proposing Release for these amendments, which upon further review, we
determined was inaccurate. We solicited but did not receive any
comments on this estimate. In subsequent years, we expect the annual
burden to revert to 451 hours per response. We estimate that there
would be 1,007 respondents to Form 20-F. Each respondent would respond
once per year.
The Commission submitted the proposed revisions to those rules and
forms to OMB for review in accordance with 44 U.S.C. 3507(d) and 5 CFR
1320.11. An agency may not conduct or sponsor, and a person is not
required to respond to, a collection of information unless it displays
a currently valid OMB control number. The OMB control number is 3235-
0288. The revised forms and regulations set forth the disclosures that
the Commission will require foreign private issuers to make to the
public about themselves and their securities offerings. Requests for
materials submitted to OMB by the Commission with regard to the
collection of information should be in writing, refer to File No. S7-3-
99, and be submitted to the Securities and Exchange Commission, Records
Management, Office of Filings and Information Services.
VIII. Statutory Basis and Text of Amendments
The amendments to the Commission's rules and forms are adopted
pursuant to Sections 2(b), 5, 6, 7, 10 and 19(a) of the Securities Act
of 1933 as amended, Sections 3, 12, 13, 15 and 23 of the Securities
Exchange Act of 1934, and Section 319 of the Trust Indenture Act of
1939.
List of Subjects
17 CFR Part 210
Accountants, Accounting.
17 CFR Part 228
Reporting and recordkeeping requirements, Securities, Small
business.
17 CFR Parts 229, 239 and 249
Reporting and recordkeeping requirements, Securities.
17 CFR Part 230
Advertising, Investment companies, Reporting and recordkeeping
requirements, Securities.
17 CFR Part 240
Brokers, Reporting and recordkeeping requirements, Securities.
17 CFR Part 260
Reporting and recordkeeping requirements, Securities, Trusts and
trustees.
Text of the Amendments
In accordance with the foregoing, the Securities and Exchange
Commission amends Title 17, chapter II of the Code of Federal
Regulations as follows:
PART 210--FORM AND CONTENT OF AND REQUIREMENTS FOR FINANCIAL
STATEMENTS, SECURITIES ACT OF 1933, SECURITIES EXCHANGE ACT OF
1934, PUBLIC UTILITY HOLDING COMPANY ACT OF 1935, INVESTMENT
COMPANY ACT OF 1940, AND ENERGY POLICY AND CONSERVATION ACT OF 1975
1. The authority citation for part 210 continues to read as
follows:
Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77z-2, 77aa(25),
77aa(26), 78j-1, 78l, 78m, 78n, 78o(d), 78u-5, 78w(a), 78ll(d),
79e(b), 79j(a), 79n, 79t(a), 80a-8, 80a-20, 80a-29, 80a-30, 80a-
37(a), unless otherwise noted.
Sec. 210.3-19 [Removed]
2. By removing and reserving Sec. 210.3-19.
Sec. 210.3-20 [Amended]
3. Amend Sec. 210.3-20 in the last sentence of paragraph (d) by
removing the words ``Items 17(c)(2) or 18(c)(2) of'' and adding, in
their place, the words ``Item 17(c)(2) of''.
4. By removing in 17 CFR Part 210 the words ``Sec. 210.3-19'' and
adding, in their place, the words ``Item 8.A of Form 20-
[[Page 53909]]
F (Sec. 249.220 of this chapter)'' in the following places:
a. Section 210.3-01(h); and
b. Section 210.3-02(d).
Sec. 210.3-12 [Amended]
5. Amend Sec. 210.3-12 in paragraph (f) by removing the words
``specified in Sec. 210.3-19. Financial statements of a foreign
business which are furnished pursuant to Secs. 210.3-05 or 210.3-09
because it is an acquired business or a 50 percent or less owned person
may be of the age specified in Sec. 210.3-19.'' and adding, in their
place, the words ``specified in Item 8.A of Form 20-F (Sec. 249.220f of
this chapter). Financial statements of a foreign business which are
furnished pursuant to Secs. 210.3-05 or 210.3-09 because it is an
acquired business or a 50 percent or less owned person may be of the
age specified in Item 8.A of Form 20-F.''
PART 228--INTEGRATED DISCLOSURE SYSTEM FOR SMALL BUSINESS ISSUERS
6. The authority citation for part 228 continues to read as
follows:
Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s, 77z-2,
77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77jjj, 77nnn, 77sss,
78l, 78m, 78n, 78o, 78u-5, 78w, 78ll, 80a-8, 80a-29, 80a-30, 80a-37,
80b-11, unless otherwise noted.
Sec. 228.310 [Amended]
7. Amend the first sentence in Note 2 of Sec. 228.310 by removing
the words ``Articles 3-19 and 3-20 (17 CFR 210.3-19 and 210.3-20)'' and
adding, in their place, the words ``Item 8.A of Form 20-F (17 CFR
249.220f) and Article 3-20 of Regulation S-X (17 CFR 210.3-20)''.
PART 229--STANDARD INSTRUCTIONS FOR FILING FORMS UNDER SECURITIES
ACT OF 1933, SECURITIES EXCHANGE ACT OF 1934 AND ENERGY POLICY AND
CONSERVATION ACT OF 1975--REGULATION S-K
8. The authority citation for part 229 continues to read in part as
follows:
Authority: 15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s, 77z-2,
77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77iii, 77jjj, 77nnn,
77sss, 78c, 78i, 78j, 78l, 78m, 78n, 78o, 78u-5, 78w, 78ll(d), 79e,
79n, 79t, 80a-8, 80a-29, 80a-30, 80a-37, 80b-11, unless otherwise
noted.
* * * * *
Sec. 229.402 [Amended]
9. Amend Sec. 229.402(a)(1)(ii) by removing the words ``Items 11
and 12 of Form 20-F [17 CFR 249.220f]'' and adding, in their place, the
words ``Items 6.B. and 6.E.2. of Form 20-F (17 CFR 249.220f)''.
10. Amend Sec. 229.404 by revising paragraph 3 of Instructions to
Item 404 to read as follows:
Sec. 229.404 (Item 404) Certain relationships and related
transactions.
* * * * *
Instructions to Item 404.
* * * * *
3. A foreign private issuer will be deemed to comply with Item
404 if it provides the information required by Item 7.B of Form 20-F
(17 CFR 249.220f).
Sec. 229.512 [Amended]
11. Amend Sec. 229.512 in the first sentence of paragraph (a)(4) by
removing the words ``Sec. 210.3-19 of this chapter'' and adding, in
their place, the words ``Item 8.A. of Form 20-F (17 CFR 249.220f)''.
Sec. 229.601 [Amended]
12. Amend Sec. 229.601 in paragraph (b)(10)(iii)(B)(5) by removing
the words ``Item 11 of Form 20-F'' and adding, in their place, the
words ``Item 6.B. of Form 20-F (Sec. 249.220f of this chapter)''.
PART 230--GENERAL RULES AND REGULATIONS, SECURITIES ACT OF 1933
13. The authority citation for part 230 continue to read in part as
follows:
Authority: 15 U.S.C. 77b, 77f, 77g, 77h, 77j, 77r, 77s, 77sss,
78c, 78d, 78l, 78m, 78n, 78o, 78w, 78ll(d), 79t, 80a-8, 80a-24, 80a-
28, 80a-29, 80a-30, and 80a-37, unless otherwise noted.
* * * * *
Sec. 230.175 [Amended]
14. Amend Sec. 230.175 by removing in paragraph (b)(2)(i) the words
``or Item 9 of Form 20-F (Sec. 249.220f of this chapter) `Management's
discussion and analysis of financial condition and results of
operations,' '' and adding, in their place, the words ``Management's
Discussion and Analysis of Financial Condition and Results of
Operations, or Item 5 of Form 20-F, Operating and Financial Review and
Prospects, (Sec. 249.220f of this chapter)''; by removing in paragraph
(c)(3) the words ``Item 9 of Form 20-F'' and adding, in their place,
the words ``Item 5 of Form 20-F''.
15. By amending Sec. 230.405 by revising the definition of
``foreign private issuer'' to read as follows:
Sec. 230.405 Definitions of terms.
* * * * *
Foreign private issuer. The term foreign private issuer means any
foreign issuer other than a foreign government except an issuer meeting
the following conditions:
(1) More than 50 percent of the outstanding voting securities of
such issuer are directly or indirectly owned of record by residents of
the United States; and
(2) Any of the following:
(i) The majority of the executive officers or directors are United
States citizens or residents;
(ii) More than 50 percent of the assets of the issuer are located
in the United States; or
(iii) The business of the issuer is administered principally in the
United States.
Instructions to paragraph (1) of this definition: To determine
the percentage of outstanding voting securities held by U.S.
residents:
A. Use the method of calculating record ownership in Rule 12g3-
2(a) under the Exchange Act (Sec. 240.12g3-2(a) of this chapter),
except that your inquiry as to the amount of shares represented by
accounts of customers resident in the United States may be limited
to brokers, dealers, banks and other nominees located in:
(1) The United States,
(2) Your jurisdiction of incorporation, and
(3) The jurisdiction that is the primary trading market for your
voting securities, if different than your jurisdiction of
incorporation.
B. If, after reasonable inquiry, you are unable to obtain
information about the amount of shares represented by accounts of
customers resident in the United States, you may assume, for
purposes of this definition, that the customers are residents of the
jurisdiction in which the nominee has its principal place of
business.
C. Count shares of voting securities beneficially owned by
residents of the United States as reported on reports of beneficial
ownership that are provided to you or publicly filed and based on
information otherwise provided to you.
* * * * *
16. Amend Sec. 230.434 by revising paragraph (c)(3)(i) to read as
set forth below; and by removing in paragraph (c)(3)(ii) the words
``Item 11 of Form S-3 or Form F-3 (Sec. 239.13 or Sec. 239.33 of this
chapter)'' and adding, in their place, the words ``Item 11 of Form S-3
or Item 5 of Form F-3 (Sec. 239.13 or Sec. 239.33 of this chapter)''.
Sec. 230.434 Prospectus delivery requirements in firm commitment
underwritten offerings of securities for cash.
* * * * *
(c) * * *
(3) * * *
(i) The description of securities required by Item 202 of
Regulations S-K (Sec. 229.202 of this chapter) or by Items 9, 10 and 12
of Form 20-F (Sec. 249.220f of this chapter) as applicable, or a fair
and accurate summary thereof; and
* * * * *
[[Page 53910]]
Sec. 230.463 [Amended]
17. Amend Sec. 230.463 by removing in paragraph (a) the words
``Item 16(e)'' and adding, in their place, the words ``Item 14(e)''.
PART 239--FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933
18. The general authority citation for part 239 continues to read
in part as follows:
Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77z-2, 77sss, 78c,
78l, 78m, 78n, 78o(d), 78u-5, 78w(a), 78ll(d), 79e, 79f, 79g, 79j,
79l, 79m, 79n, 79q, 79t, 80a-8, 80a-24, 80a-29, 80a-30 and 80a-37,
unless otherwise noted.
* * * * *
19. Amend General Instruction E. to Form S-11 (referenced in
Sec. 239.18) by removing the words ``Items 3, 4, 10, 11 and 18,
respectively, of Form 20-F'' and adding, in their place, the words
``Items 6, 7.A, 8.A.7, and 18 of Form 20-F''.
Note: The text of Form S-11 does not and this amendment will not
appear in the Code of Federal Regulations.
20. Amend Form F-1 (referenced in Sec. 239.31) by removing in
General Instruction III the words ``the information that would be
required by Item 11'' and adding in their place the words ``the
information which would be required by Item 4''; by removing in General
Instruction III the words ``called for by Item 9'' and adding in their
place the words ``called for by Items 10.A and 10.B of Form 20-F or
Item 12 of Form 20-F, as applicable''; by removing Items 4 through 10
and 13; by redesignating Items 11, 12, 14, 15, 16, and 17 as Items 4,
5, 6, 7, 8, and 9; by revising the caption for newly designated Item 4
to read ``Information with Respect to the Registrant and the
Offering''; by removing in newly designated Item 4(b) the words
``Pursuant to Item 16'' and adding, in their place, the words
``Pursuant to Item 8''; and, by removing in newly designated Item 8(b)
the words ``and Item 11(b) of this Form'' and adding, in their place,
the words ``and Item 4(b) of this Form''.
21. Amend Form F-1 (referenced in Sec. 239.31) the Instructions As
To Summary Prospectuses section by redesignating paragraphs 1.(c),
1.(d), 1.(e), 1.(f), 1.(g) and 1.(h) as paragraphs 1.(c)(i), 1.(c)(ii),
1.(c)(iii), 1.(c)(iv), 1.(c)(v) and 1.(d); by removing in newly
designated paragraph 1.(c)(i) the words ``As to Item 4, a'' and adding,
in their place, ``A''; by removing in newly designated paragraph
1.(c)(ii) the words ``As to Item 7, a'' and adding, in their place,
``A''; by removing in newly designated paragraph 1.(c)(iii) the words
``As to Item 8, a'' and adding, in their place, ``A''; by removing in
newly designated paragraph 1.(c)(iv) the words ``As to Item 9, a'' and
adding, in their place, ``A''; by removing in newly designated
paragraph 1.(c)(v) the words ``As to Item 11, a brief statement of the
general character of the business done and intended to be done, the
Selected Financial Data (Item 8 of Form 20-F (Sec. 249.220f of this
chapter))'' and adding, in their place, the words ``As to Item 4, a
brief statement of the general character of the business done and
intended to be done, the Selected Financial Data (Item 3.A of Form 20-F
(Sec. 249.220f of this chapter))''; by removing in paragraph 3 the
words ``that information as to Items 9 and 11 specified in paragraphs
(f) and (g) above'' and adding, in their place, the words ``that
information specified in paragraphs 1.(c)(iv) and 1.(c)(v) above''.
Note: The text of Form F-1 does not and this amendment will not
appear in the Code of Federal Regulations.
22. Amend Form F-2 (referenced in Sec. 239.32) by removing Items 4
through 10 and 14; by adding new Item 4 to read as follows; by
redesignating Items 11, 12, 13, 15, 16, and 17 as Items 5, 6, 7, 8, 9,
and 10; by removing in newly designated Item 5(b)(1) the words
``pursuant to Item 12'' and adding, in their place, the words
``pursuant to Item 6''; by removing in newly designated Item 5(b)(2)
the words ``accordance with Item 12 are not sufficiently current to
comply with the requirements of Rule 3-19 of Regulation S-X
(Sec. 210.3-19 of this chapter), financial statements necessary to
comply with that rule'' and adding, in their place, the words
``accordance with Item 6 are not sufficiently current to comply with
the requirements of Item 8.A of Form 20-F, financial statements
necessary to comply with that Item''; and, by removing in the caption
of the Note to newly designated Item 6 the words ``Item 12(a)'' and
adding, in their place, the words ``Item 6(a)''.
Note: The text of Form F-2 does not and this amendment will not
appear in the Code of Federal Regulations.
Securities and Exchange Commission, Washington D.C. 20549
Form F-2--Registration Statement Under the Securities Act of 1933
* * * * *
Item 4. Information About the Offering
Furnish the information about the offering required by the
following items of Form 20-F: Item 2 (Offer Statistics and Expected
Timetable), Item 3.B (Capitalization and Indebtedness), Item 3.C
(Reasons for the Offer and Use of Proceeds), Item 7.C (Interests of
Experts and Counsel), Item 10 (The Offer and Listing) and Item 12
(Description of Securities Other than Equity Securities). You do not
have to repeat in the prospectus any information called for by these
items if the same information is contained in a report being
incorporated by reference into this registration statement.
* * * * *
23. Amend Form F-2 (referenced in Sec. 239.32) the Instructions As
To Summary Prospectuses section by redesignating paragraphs 1.(c),
1.(d), 1.(e), 1.(f), 1.(g) and 1.(h) as paragraphs 1.(c)(i), 1.(c)(ii),
1.(c)(iii), 1.(c)(iv), 1.(c)(v) and 1.(d); by removing in newly
designated paragraph 1.(c)(i) the words ``As to Item 4, a'' and adding,
in their place, ``A''; by removing in newly designated paragraph
1.(c)(ii) the words ``As to Item 7, a'' and adding, in their place,
``A''; by removing in newly designated paragraph 1.(c)(iii) the words
``As to Item 8, the'' and adding, in their place, ``The''; by removing
in newly designated paragraph 1.(c)(iv) the words ``As to Item 9, a''
and adding, in their place, ``A''; and, by removing in newly designated
paragraph 1.(c)(v) the words ``As to Item 12, a brief statement of the
general character of the business done and intended to be done, the
Selected Financial Data (Item 8 of Form 20-F (Sec. 249.220f of this
chapter)'' and adding, in their place, the words ``A brief statement of
the general character of the business done and intended to be done, the
Selected Financial Data (Item 3.A of Form 20-F (Sec. 249.220f of this
chapter)''.
24. Amend Form F-3 (referenced in Sec. 239.33) by removing Items 4
through 10 and 14; by adding new Item 4 to read as follows; by
redesignating Items 11, 12, 13, 15, 16, and 17 as Items 5, 6, 7, 8, 9,
and 10; in newly designated Item 5 remove the words ``Item 12'' and
add, in their place, the words ``Item 6'' in the following places:
twice in Item 5(a), once in Item 5(b)(1), and once in Item 5(b)(2); by
removing in newly designated Item 5(b)(1) the words ``Form 8-K'' and
adding, in their place, the words ``Form 6-K''; by removing in newly
designated Item 5(b)(2) the words ``Rule 3-19 of Regulation S-X
(Sec. 210.3-19 of this chapter), financial statements necessary to
comply with that rule'' and adding, in their place, the words ``Item
8.A. of Form 20-F, financial statements necessary to comply with that
Item''; and by removing in the caption of the Note to newly designated
Item 6 the words ``Item 12(d)'' and adding, in their place, the words
``Item 6(d)''.
Note: The text of Form F-3 does not and this amendment will not
appear in the Code of Federal Regulations.
[[Page 53911]]
Securities and Exchange Commission
Form F-3, Registration Statement Under the Securities Act of 1933
* * * * *
Item 4. Information About the Offering
Furnish the information about the offering required by the
following items of Form 20-F: Item 2 (Offer Statistics and Expected
Timetable), Item 3.B (Capitalization and Indebtedness), Item 3.C
(Reasons for the Offer and Use of Proceeds), Item 7.C (Interests of
Experts and Counsel), Item 10 (The Offer and Listing) and Item 12
(Description of Securities Other than Equity Securities). You do not
have to repeat in the prospectus any information called for by these
items if the same information is contained in a report being
incorporated by reference into this registration statement.
* * * * *
25. Amend Form F-4 (referenced in Sec. 239.34) by removing the
words ``Item 4 of Form 20-F'' and adding, in their place, the words
``Item 7.A. of Form 20-F'' in the following places:
a. The Instruction following Item 18(a)(5)(ii); and
b. the Instruction following Item 19(a)(5).
26. Amend Form F-4 (referenced in Sec. 239.34) by removing the
words ``Item 5 of Form 20-F'' and adding, in their place, the words
``Item 9.A.4. of Form 20-F'' in the following places:
a. Instruction 2. to Item 11;
b. Item 12(a)(5);
c. Item 12(b)(3)(viii);
d. Instruction 2. to Item 13;
e. Item 14(i); and
f. Item 17(b)(2).
27. Amend Item 12(b)(3)(iii) of Form F-4 (referenced in
Sec. 239.34) by removing the words ``Item 6 of Form 20-F, exchange
controls and other limitations on security holders'' and adding, in
their place, the words ``Item 10.D. of Form 20-F, exchange controls''.
28. Amend Item 14(d) of Form F-4 (referenced in Sec. 239.34) by
removing the words ``Item 6 of Form 20-F, exchange controls and other
limitations affecting security holders'' and adding, in their place,
the words ``Item 10.D. of Form 20-F, exchange controls''.
29. Amend Form F-4 (referenced in Sec. 239.34) by removing the
words ``Item 8 of Form 20-F'' and adding, in their place, the words
``Item 3.A. of Form 20-F'' in the following places:
a. Item 3(d), 3(e), 3(f)(1), 3(f)(2), 3(f)(3);
b. Item 12(b)(3)(v);
c. Item 14(f); and
d. Item 17(b)(3);
30. Amend Form F-4 (referenced in Sec. 239.34) by removing the
words ``Item 9 of Form 20-F, management's discussion and analysis of
financial condition and results of operations'' and adding, in their
place, the words ``Item 5 of Form 20-F, operating and financial
review'' in the following places:
a. Item 12(b)(3)(vi)(A);
b. Item 14(g)(1); and
c. Item 17(b)(4)(i).
31. Amend Form F-4 (referenced in Sec. 239.34) by removing the
words ``Item 9A of Form 20-F'' and adding, in their place, the words
``Item 11 of Form
20-F'' in the following places:
a. Item 12(b)(3)(vi)(B);
b. Item 14(g)(2); and
c. Item 17(b)(4)(ii).
32. Amend Item 18(a)(7)(i) of Form
F-4 (referenced in Sec. 239.34) by removing the words ``Item 10 of Form
20-F, directors and officers of registrant'' and adding, in their
place, the words ``Item 6.A. of Form 20-F, directors and senior
management of the registrant''.
33. Amend Item 19(a)(7)(i) of Form
F-4 (referenced in Sec. 239.34) by removing the words ``Item 10 of Form
20-F, directors and officers of the registrant: and adding, in their
place, the words ``Item 6.A. of Form 20-F, directors and senior
management of the registrant''.
34. Amend Form F-4 (referenced in Sec. 239.34) by removing the
words ``Items 11 and 12 of Form 20-F, remuneration and options'' and
adding, in their place, the words ``Items 6.B. and 6.E. of Form20-F,
compensation and share ownership'' in the following places:
a. Item 18(a)(7)(ii); and
b. Item 19(a)(7)(ii).
35. Amend Form F-4 (referenced in Sec. 239.34) by removing the
words ``Item 13 of Form 20-F, interest of management in certain
transactions'' and adding, in their place, the words ``Item 7.B. of
Form 20-F, related party transactions'' in the following places:
a. Item 18(a)(7)(iii); and
b. Item 19(a)(7)(iii).
36. Amend Form F-4 (referenced in Sec. 239.34) by removing the
words ``Rule 3-19 of Regulation S-X (210.3-19 of this chapter)'' or
``Rule 3-19 to Regulation S-X'' or ``Rule 3-19 of Regulation S-X'' and
adding, in their place, the words ``Item 8.A. of Form 20-F'' in the
following places:
a. Item 10(b);
b. Instruction 2 to Item 11;
c. Items 12(a)(2), (a)(5), (b)(2)(i), and (b)(3)(viii);
d. Instruction 2 to Item 13;
e. Item 14(i);
f. the Instructions following Item 14(i); and
g. Items 17(b)(2) and 17(b)(6).
37. Amend Item 3 of Form F-4 (referenced in Sec. 239.34) by
removing in Instruction 2. to Instructions to paragraphs (e) and (f)
the words ``Instruction 7 to Item 8 of Form 20-F'' and adding, in their
place, the words ``The Instructions to Item 3.A. of Form 20-F''.
38. Amend Item 4(a)(3) of Form F-4 (referenced in Sec. 239.34) by
removing the words ``Item 202 of Regulation S-K (Sec. 229.202 of this
chapter)'' and adding, in their place, the words ``Items 10.A and 10.B
of Form 20-F or Item 12 of Form 20-F, as applicable''.
39. Amend Item 7(a) of Form F-4 (referenced in Sec. 239.34) by
removing the words ``Item 507 of Regulation S-K (Sec. 229.507 of this
chapter)'' and adding, in their place, the words ``Item 9.D. of Form
20-F (Sec. 249.220f of this chapter)''.
40. Amend Item 8 of Form F-4 (referenced in Sec. 239.34) by
removing the words ``Item 509 of Regulation S-K (Sec. 229.509 of this
chapter)'' and adding, in their place, the words ``Item 7.C. of Form
20-F (Sec. 249.220f of this chapter)''.
41. Amend Item 12 of Form F-4 (referenced in Sec. 239.34) by
removing in Item 12(a)(2) the words ``Item 9 of Form 20-F'' and adding,
in their place, the words ``Item 5 of Form 20-F''; by removing in Item
12(b)(1) the words ``Items 1 and 2 of Form 20-F'' and adding, in their
place, the words ``Item 4 of Form 20-F''; by removing in Item
12(b)(3)(i) the words ``Items 1(a)(3) and (a)(4) of Form 20-F'' and
adding, in their place, the words ``Items 4.B., 4.B.2., and 4.B.5. of
Form 20-F''; by removing in Item 12(b)(3)(ii) the words ``Item 2 of
Form 20-F'' and adding, in their place, the words ``Item 4.D. of Form
20-F''; by removing in Item 12(b)(3)(iv) the words ``Item 7 of Form 20-
F'' and adding, in their place, the words ``Item 10.E of Form 20-F'';
and by removing in Item 12(b)(3)(v) the words ``Item 8 of Form 20-F''
and adding, in their place, the words ``Item 3.A. of Form 20-F''.
42. Amend Item 14 of Form F-4 (referenced in Sec. 239.34) by
removing in Item 14(a) the words ``Item 1 of Form 20-F, description of
business'' and adding, in their place, the words ``Items 4.A., 4.B.,
and 4.C of Form 20-F, information on the company''; by removing in Item
14(b) the words ``Item 2 of Form 20-F, description of property'' and
adding, in their place, the words ``Item 4.D. of Form 20-F, property,
plant and equipment''; by removing in Item 14(c) words ``Item 3 of Form
20-F'' and adding, in their place, the words ``Item 8.A.7. of Form 20-
F''; by removing in Item 14(e) words ``Item 7 of Form 20-F'' and
adding, in their place, the words ``Item 10.E. of Form 20-F''.
Note: The text of Form F-4 does not and this amendment will not
appear in the Code of Federal Regulations.
[[Page 53912]]
43. Revise Item 1 of Form F-6 (referenced in Sec. 239.36) to read
as follows:
Note: The text of Form F-6 does not and this amendment will not
appear in the Code of Federal Regulations.
Securities and Exchange Commission
Form F-6, Registration Statement Under the Securities Act of 1933 For
Depositary Shares Evidenced by American Depositary Receipts
* * * * *
Item 1. Description of Securities To Be Registered
Furnish the information required by Item 12.E. of Form 20-F
(Sec. 249.22 of this chapter).
* * * * *
PART 240--GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF
1934
44. The general authority citation for part 240 continues to read
in part as follows:
Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77eee,
77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78f, 78i, 78j, 78j-1, 78k,
78k-1, 78l, 78m, 78n, 78o, 78p, 78q, 78s, 78u-5, 78w, 78x, 78ll(d),
78mm, 79q, 79t, 80a-20, 80a-23, 80a-29, 80a-37, 80b-3, 80b-4 and
80b-11, unless otherwise noted.
* * * * *
45. By amending Sec. 240.3b-4 by revising the section heading and
paragraph (c) to read as follows:
Sec. 240.3b-4 Definition of ``foreign government,'' ``foreign issuer''
and ``foreign private issuer''.
* * * * *
(c) The term foreign private issuer means any foreign issuer other
than a foreign government except an issuer meeting the following
conditions:
(1) More than 50 percent of the issuer's outstanding voting
securities are directly or indirectly held of record by residents of
the United States; and
(2) Any of the following:
(i) The majority of the executive officers or directors are United
States citizens or residents;
(ii) More than 50 percent of the assets of the issuer are located
in the United States; or
(iii) The business of the issuer is administered principally in the
United States.
Instruction to paragraph (c)(1): To determine the percentage of
outstanding voting securities held by U.S. residents:
A. Use the method of calculating record ownership in Rule 12g3-
2(a) under the Act (Sec. 240.12g3-2(a)), except that your inquiry as
to the amount of shares represented by accounts of customers
resident in the United States may be limited to brokers, dealers,
banks and other nominees located in:
(1) The United States,
(2) Your jurisdiction of incorporation, and
(3) The jurisdiction that is the primary trading market for your
voting securities, if different than your jurisdiction of
incorporation.
B. If, after reasonable inquiry, you are unable to obtain
information about the amount of shares represented by accounts of
customers resident in the United States, you may assume, for
purposes of this definition, that the customers are residents of the
jurisdiction in which the nominee has its principal place of
business.
C. Count shares of voting securities beneficially owned by
residents of the United States as reported on reports of beneficial
ownership provided to you or filed publicly and based on information
otherwise provided to you.
46. Amend Sec. 240.3b-6 by removing in paragraph (b)(2)(i) the
words ``or Item 9 of Form 20-F'' (Sec. 249.220f of this chapter)
``Management's discussion and analysis of financial condition and
results of operations,'' and adding, in their place, the words
``Management's Discussion and Analysis of Financial Condition and
Results of Operations'' or Item 5 of Form 20-F, ``Operating and
Financial Review and Prospects,''; by removing in paragraph (c)(3) the
words ``Item 9 of Form 20-F'' and adding, in their place, the words
``Item 5 of Form 20-F''.
47. Amend Sec. 240.13a-10 by removing in paragraph (g)(4) the words
``responding to Items 3, 9, 15, 16, and 17 or 18'' and adding, in their
place, the words ``responding to Items 5, 8.A.7., 13, 14, and 17 or
18''.
48. Amend Sec. 240.15d-10 by removing in paragraph (g)(4) the words
``responding to Items, 3, 9, 15, 16, and 17 or 18'' and adding, in
their place, the words ``responding to Items 5, 8.A.7., 13, 14, and 17
or 18''.
PART 249--FORMS, SECURITIES EXCHANGE ACT OF 1934
49. The authority citation for part 249 continues to read, in part,
as follows:
Authority: 15 U.S.C. 78a, et seq., unless otherwise noted;
* * * * *
50. Amend Form 20-F (referenced in Sec. 249.220f) by revising the
General Instructions; by removing Item 11; by revising Items 1 through
9, 10, 12 through 16, 18, 19 and Instructions to Exhibits to read as
follows; by redesignating Item 9A as Item 11; by removing in newly
designated Item 11 each time they appear the words ``Item 9A'' and
adding, in their place, the words ``Item 11''; by removing in
Instruction 3 to Item 17 the words ``Item 1 of Form 20-F'' and adding,
in their place, the words ``Items 4.B.1 and 4.B.2 of Form 20-F''; and,
by removing in the Appendix section following the Instructions As To
Exhibits section each time they appear the words ``Item 2(b)'' and
adding, in their place, the words ``Item 4.D''.
Note: The text of Form 20-F does not and this amendment will not
appear in the Code of Federal Regulations.
United States Securities and Exchange Commission, Washington, D.C.
20549
Form 20-F
* * * * *
General Instructions
A. Who May Use Form 20-F and When It Must Be Filed
(a) Any foreign private issuer may use this form as a
registration statement under Section 12 of the Securities Exchange
Act of 1934 (referred to as the Exchange Act) or as an annual or
transition report filed under Section 13(a) or 15(d) of the Exchange
Act. A transition report is filed when an issuer changes its fiscal
year end. The term ``foreign private issuer'' is defined in Rule 3b-
4 under the Exchange Act.
(b) A foreign private issuer must file its annual report on this
Form within six months after the end of the fiscal year covered by
the report.
(c) A foreign private issuer filing a transition report on this
Form must file its report in accordance with the requirements set
forth in Rule 13a-10 or Rule 15d-10 under the Exchange Act that
apply when an issuer changes its fiscal year end.
B. General Rules and Regulations That Apply to This Form
(a) The General Rules and Regulations under the Securities Act
of 1933 (referred to as the Securities Act) contain general
requirements that apply to registration on any form. Read these
general requirements carefully and follow them when preparing and
filing registration statements and reports on this Form.
(b) Pay particular attention to Regulation 12B under the
Exchange Act. Regulation 12B contains general requirements about
matters such as the kind and size of paper to be used, the
legibility of the registration statement or report, the information
to give in response to a requirement to state the title of
securities, the language to be used and the filing of the
registration statement or report.
(c) In addition to the definitions in the General Rules and
Regulations under the Securities Act and the definitions in Rule
12b-2 under the Exchange Act, General Instruction F defines certain
terms for purposes of this Form.
(d) Note Regulation S-X, which applies to the presentation of
financial information in a registration statement or report.
C. How To Prepare Registration Statements and Reports on This Form
(a) Do not use this Form as a blank form to be filled in; use it
only as a guide in the preparation of the registration statement or
annual report. General Instruction E states which items must be
responded to in a registration statement and which items must
[[Page 53913]]
be responded to in an annual report. The registration statement or
report must contain the numbers and captions of all items. You may
omit the text following each caption in this Form, which describes
what must be disclosed under each item. Omit the text of all
instructions in this Form. If an item is inapplicable or the answer
to the item is in the negative, respond to the item by making a
statement to that effect.
(b) Unless an item directs you to provide information as of a
specific date or for a specific period, give the information in a
registration statement as of a date reasonably close to the date of
filing the registration statement and give the information in an
annual report as of the latest practicable date.
(c) Note Exchange Act Rule 12b-20, which states: ``In addition
to the information expressly required to be included in a statement
or report, there shall be added such further material information,
if any, as may be necessary to make the required statements, in
light of the circumstances under which they are made, not
misleading.''
(d) If the same information required by this Form also is
required by the body of accounting principles used in preparing the
financial statements, you may respond to an item of this Form by
providing a cross-reference to the location of the information in
the financial statements, in lieu of repeating the information.
(e) Note Item 10 of Regulation S-K which explains the Commission
policy on projections of future economic performance and the
Commission policy on securities ratings.
(f) If you are providing the information required by this Form
in connection with a registration statement under the Securities
Act, note that Rule 421 requires you to follow plain English
drafting principles. You can find helpful information in ``A Plain
English Handbook--How to create clear SEC disclosure documents'' and
in staff legal bulletins supplementing the Handbook. These documents
are available on our Internet website, at www.sec.gov.
D. How To File Registration Statements and Reports on This Form
File with the Commission (i) three complete copies of the
registration statement or report, including financial statements,
exhibits and all other papers and documents filed as part of the
registration statement or report, and (ii) five additional copies of
the registration statement or report, which need not contain
exhibits. File at least one complete copy of the registration
statement or report, including financial statements, exhibits and
all other papers and documents filed as part of the registration
statement or report, with each exchange on which any class of
securities is or will be registered. Manually sign at least one
complete copy of the registration statement or report filed with the
Commission and one copy filed with each exchange. Type or print the
signatures on copies that are not manually signed. See Exchange Act
Rule 12b-11(d) for instructions about manual signatures and the
Instructions as to Exhibits of this Form for instructions about
signatures pursuant to powers of attorney.
Registration statements and reports are filed with the
Commission by sending or delivering them to our File Desk between
the hours of 9:00 a.m. and 5:30 p.m., Washington, D.C. time. The
File Desk is closed on weekends and federal holidays. If you file a
registration statement or report by mail or by any means other than
hand delivery, the address is U.S. Securities and Exchange
Commission, Attention: File Desk, 450 Fifth Street, N.W.,
Washington, D.C. 20549. We consider documents to be filed on the
date our File Desk receives them. We do not require foreign private
issuers to file registration statements and reports under our
Electronic Data Gathering and Retrieval System (EDGAR). We encourage
you to use EDGAR, if possible, because documents filed through EDGAR
are easily accessible by the public through the Commission's
Internet Web site and through other electronic means. If you have
technical questions about EDGAR or want to request an access code,
call the EDGAR Filer Support Office at (202) 942-8900. If you have
questions about the EDGAR rules, call the Office of EDGAR Policy at
(202) 942-2940.
E. Which Items To Respond to in Registration Statements and Annual
Reports
(a) Exchange Act Registration Statements. A registration
statement filed under the Exchange Act on this Form must include the
information specified in Part I and Part III. Read the instructions
to each item carefully before responding to the item. In some cases,
the instructions may permit you to omit some of the information
specified in certain items in Part I.
(b) Annual Reports. An annual report on this Form must include
the information specified in Parts I, II and III. Read the
instructions to each item carefully before responding to the item.
In some cases, the instructions may permit you to omit some of the
information specified in certain items in Part I. The instructions
also may permit you to omit certain information if it was previously
reported to us and has not changed. If that is the case, you do not
have to file copies of the previous report with the report being
filed on this Form.
(c) Financial Statements. An Exchange Act registration statement
or annual report filed on this Form must contain the financial
statements and related information specified in Item 17 of this
Form. We encourage you to provide the financial statements and
related information specified in Item 18 of this Form in lieu of
Item 17, but the Item 18 statements and information are not
required. In certain circumstances, Forms F-2, F-3 or F-4 for the
registration of securities under the Securities Act require that you
provide the financial statements and related information specified
in Item 18 in your annual report on Form 20-F. Consult those
Securities Act forms for the specific requirements and consider the
potential advantages of complying with Item 18 instead of Item 17 of
this Form. Note that Items 17 and 18 may require you to file
financial statements of other entities in certain circumstances.
These circumstances are described in Regulation S-X.
The financial statements must be audited in accordance with U.S.
generally accepted auditing standards, and the auditor must comply
with the U.S. standards for auditor independence. If you have any
questions about these requirements, contact the Office of Chief
Accountant in the Division of Corporation Finance at (202) 942-2960.
(d) Securities Act Registration Statements. The registration
statement forms under the Securities Act direct you to provide
information required by specific items of Form 20-F. Some items of
Form 20-F only apply to Securities Act registration statements, and
you do not have to respond to those items if you are using Form 20-F
to file an Exchange Act registration statement or an annual report.
The instructions to the items of Form 20-F identify which
information is required only in Securities Act registration
statements.
F. Definitions
The following definitions apply to various terms used in this
Form, unless the context indicates otherwise.
Affiliate--An ``affiliate'' of a specified person or entity
refers to one who, directly or indirectly, either controls, is
controlled by or is under common control with, the specified person
or entity.
Beneficial owner--The term ``beneficial owner'' of securities
refers to any person who, even if not the record owner of the
securities, has or shares the underlying benefits of ownership.
These benefits include the power to direct the voting or the
disposition of the securities or to receive the economic benefit of
ownership of the securities. A person also is considered to be the
``beneficial owner'' of securities that the person has the right to
acquire within 60 days by option or other agreement. Beneficial
owners include persons who hold their securities through one or more
trustees, brokers, agents, legal representatives or other
intermediaries, or through companies in which they have a
``controlling interest,'' which means the direct or indirect power
to direct the management and policies of the entity.
Company--References to the ``company'' mean the company whose
securities are being offered or listed, and refer to the company on
a consolidated basis unless the context indicates otherwise.
Directors and senior management--This term includes (a) the
company's directors, (b) members of its administrative, supervisory
or management bodies, (c) partners with unlimited liability, in the
case of a limited partnership with share capital, (d) nominees to
serve in any of the aforementioned positions, and (e) founders, if
the company has been established for fewer than five years. The
persons covered by the term ``administrative, supervisory or
management bodies'' vary in different countries and, for purposes of
complying with the disclosure standards, will be determined by the
host country.
Document--This term covers prospectuses and offering documents
used in connection with a public offering of securities and
registration statements or prospectuses used in connection with the
initial listing of securities.
Instruction: References to the ``document'' mean whatever type
of document is being
[[Page 53914]]
prepared using Form 20-F disclosure requirements, including, as
applicable, a prospectus, an Exchange Act registration statement,
and an annual report.
Equity securities--The term ``equity securities'' includes
common or ordinary shares, preferred or preference shares, options
or warrants to subscribe for equity securities, and any securities,
other than debt securities, which are convertible into or
exercisable or redeemable for equity securities of the same company
or another company. If the equity securities available upon
conversion, exercise or redemption are those of another company, the
disclosure standards also apply to the other company.
Group--A ``group'' is a parent and all its subsidiaries.
References to a company's group mean the group of which it is a
member.
Home country--This term refers to the jurisdiction in which the
company is legally organized, incorporated or established and, if
different, the jurisdiction where it has its principal listing.
Host country--This term refers to jurisdictions, other than the
home country, in which the company is seeking to offer, register or
list its securities.
Instruction: Note that, as used in this Form, the term ``host
country'' means the United States and its territories.
Pre-emptive issue--The term ``pre-emptive issue'' and references
to ``pre-emptive purchase rights'' refer to offerings made to the
company's existing shareholders in order to permit them to maintain
their pro rata ownership in the company.
Part I
Item 1. Identity of Directors, Senior Management and Advisers
The purpose of this standard is to identify the company
representatives and other individuals involved in the company's
listing or registration.
A. Directors and senior management. Provide the names, business
addresses and functions of the company's directors and senior
management.
B. Advisers. Provide the names and addresses of the company's
principal bankers and legal advisers to the extent the company has a
continuing relationship with such entities, the sponsor for listing
(where required by the host country regulations), and the legal
advisers to the issue.
C. Auditors. Provide the names and addresses of the company's
auditors for the preceding three years (together with their
membership in a professional body).
Instructions to Item 1: If you are filing Form 20-F as an annual
report under the Exchange Act, you do not have to provide the
information called for by Item 1. You must provide this information,
to the extent applicable, if you are filing a registration statement
under either the Securities Act or the Exchange Act.
Instructions to Item 1.B: You only have to provide the
information called for by Item 1.B if you are required to disclose
the information in a jurisdiction outside the United States. These
persons will not be considered ``experts'' or ``sellers'' under the
Securities Act solely due to the fact that they are named in
response to Item 1.B.
Item 2. Offer Statistics and Expected Timetable
The purpose of this standard is to provide key information
regarding the conduct of any offering and the identification of
important dates relating to that offering.
A. Offer statistics. For each method of offering, e.g., rights
offering, general offering, etc., state the total expected amount of
the issue, including the expected issue price or the method of
determining the price and the number of securities expected to be
issued.
B. Method and expected timetable. For all offerings, and
separately for each group of targeted potential investors, the
document shall state the following information to the extent
applicable to the offering procedure:
1. The time period during which the offer will be open, and
where and to whom purchase or subscription applications shall be
addressed. Describe whether the purchase period may be extended or
shortened, and the manner and duration of possible extensions or
possible early closure or shortening of this period. Describe the
manner in which the latter shall be made public. If the exact dates
are not known when the document is first filed or distributed to the
public, describe arrangements for announcing the final or definitive
date or period.
2. Method and time limits for paying up securities; where
payment is partial, the manner and dates on which amounts due are to
be paid.
3. Method and time limits for delivery of equity securities
(including provisional certificates, if applicable) to subscribers
or purchasers.
4. In the case of pre-emptive purchase rights, the procedure for
the exercise of any right of pre-emption, the negotiability of
subscription rights and the treatment of subscription rights not
exercised.
5. A full description of the manner in which results of the
distribution of securities are to be made public, and when
appropriate, the manner for refunding excess amounts paid by
applicants (including whether interest will be paid).
Instructions to Item 2: If you are filing Form 20-F as a
registration statement or annual report under the Exchange Act, you
do not have to provide the information called for by Item 2. You
must provide this information if you are filing a registration
statement under the Securities Act.
Item 3. Key Information
The purpose of this standard is to summarize key information
about the company's financial condition, capitalization and risk
factors. If the financial statements included in the document are
restated to reflect material changes in the company's group
structure or accounting policies, the selected financial data also
must be restated. See Item 8.
A. Selected financial data.
1. The company shall provide selected historical financial data
regarding the company, which shall be presented for the five most
recent financial years (or such shorter period that the company has
been in operation), in the same currency as the financial
statements. Selected financial data for either or both of the
earliest two years of the five-year period may be omitted, however,
if the company represents to the host country regulator that such
information cannot be provided, or cannot be provided on a restated
basis, without unreasonable effort or expense. If interim period
financial statements are included, the selected financial data
should be updated for that interim period, which may be unaudited,
provided that fact is stated. If selected financial data for interim
periods is provided, comparative data from the same period in the
prior financial year shall also be provided, except that the
requirement for comparative balance sheet data is satisfied by
presenting the year end balance sheet information.
2. The selected financial data presented shall include items
generally corresponding to the following, except that the specific
line items presented should be expressed in the same manner as the
corresponding line items in the company's financial statements. Such
data shall include, at a minimum, net sales or operating revenues;
income (loss) from operations; income (loss) from continuing
operations; net income (loss); net income (loss) from operations per
share; income (loss) from continuing operations per share; total
assets; net assets; capital stock (excluding long term debt and
redeemable preferred stock); number of shares as adjusted to reflect
changes in capital; dividends declared per share in both the
currency of the financial statements and the host country currency,
including the formula used for any adjustments to dividends
declared; and diluted net income per share. Per share amounts must
be determined in accordance with the body of accounting principles
used in preparing the financial statements.
3. Where the financial statements provided in response to Item 8
are prepared in a currency other than the currency of the host
country, disclosure of the exchange rate between the financial
reporting currency and the currency of the host country should be
provided, using the exchange rate designated by the host country for
this purpose, if any:
(a) At the latest practicable date;
(b) The high and low exchange rates for each month during the
previous six months; and
(c) For the five most recent financial years and any subsequent
interim period for which financial statements are presented, the
average rates for each period, calculated by using the average of
the exchange rates on the last day of each month during the period.
B. Capitalization and indebtedness. A statement of
capitalization and indebtedness (distinguishing between guaranteed
and unguaranteed, and secured and unsecured, indebtedness) as of a
date no earlier than 60 days prior to the date of the document shall
be provided showing the company's capitalization on an actual basis
and, if applicable, as adjusted to reflect the sale of new
securities being issued and the intended application of the net
proceeds therefrom. Indebtedness also includes indirect and
contingent indebtedness.
[[Page 53915]]
C. Reasons for the offer and use of proceeds.
1. The document shall disclose the estimated net amount of the
proceeds broken down into each principal intended use thereof. If
the anticipated proceeds will not be sufficient to fund all the
proposed purposes, the order of priority of such purposes should be
given, as well as the amount and sources of other funds needed. If
the company has no specific plans for the proceeds, it should
discuss the principal reasons for the offering.
2. If the proceeds are being used directly or indirectly to
acquire assets, other than in the ordinary course of business,
briefly describe the assets and their cost. If the assets will be
acquired from affiliates of the company or their associates,
disclose the persons from whom they will be acquired and how the
cost to the company will be determined.
3. If the proceeds may or will be used to finance acquisitions
of other businesses, give a brief description of such businesses and
information on the status of the acquisitions.
4. If any material part of the proceeds is to be used to
discharge, reduce or retire indebtedness, describe the interest rate
and maturity of such indebtedness and, for indebtedness incurred
within the past year, the uses to which the proceeds of such
indebtedness were put.
D. Risk factors. The document shall prominently disclose risk
factors that are specific to the company or its industry and make an
offering speculative or one of high risk, in a section headed ``Risk
Factors.'' Companies are encouraged, but not required, to list the
risk factors in the order of their priority to the company. Among
other things, such factors may include, for example: the nature of
the business in which it is engaged or proposes to engage; factors
relating to the countries in which it operates; the absence of
profitable operations in recent periods; the financial position of
the company; the possible absence of a liquid trading market for the
company's securities; reliance on the expertise of management;
potential dilution; unusual competitive conditions; pending
expiration of material patents, trademarks or contracts; or
dependence on a limited number of customers or suppliers. The Risk
Factors section is intended to be a summary of more detailed
discussion contained elsewhere in the document.
Instructions to Item 3:
1. If you are filing Form 20-F as an annual report under the
Exchange Act, you do not have to provide the information called for
by Item 3.B or 3.C. If you are filing Form 20-F as a registration
statement under the Exchange Act, you do not have to provide the
information called for by Item 3.C. You must provide the information
called for by Item 3 if you are filing a registration statement
under the Securities Act.
2. Throughout Form 20-F, the terms ``financial year'' and
``fiscal year'' have the same meaning. The term ``fiscal year'' is
defined in Rule 405 under the Securities Act and Rule 12b-2 under
the Exchange Act.
Instructions to Item 3.A: You may present the selected financial
data on the basis of the accounting principles used in your primary
financial statements. If you do this, however, you also must include
in this summary any reconciliations of the data to U.S. generally
accepted accounting principles and Regulation S-X, pursuant to Item
17 or 18 of this Form. In that case, you only have to provide
selected financial data on a basis reconciled to U.S. generally
accepted accounting principles for (i) those periods for which you
were required to reconcile the primary annual financial statements
in a filing under the Securities Act or the Exchange Act, and (ii)
any interim periods.
If you are unable to provide selected financial data for the
earliest two years of the five-year period, submit the required
representation to us before or at the time you file the document.
Disclose in the document that data for the earliest two years have
been omitted and explain the reasons for the omission.
Instructions to Item 3.B:
1. If you are including the capitalization table called for by
Item 3.B in a prospectus supplement for a shelf offering registered
on Form F-3, the amounts shown in the table may be as of the date of
the most recent balance sheet filed as part of the registration
statement, if the information in the table is updated to reflect
securities issued up to 60 days prior to the date of the supplement.
2. If you are not selling new securities in a firm commitment
underwritten offering or an ``all or none'' best efforts offering,
reflect the capitalization ``as adjusted'' for the net proceeds of
the offering only in the following ways:
a. In a best efforts ``minimum/maximum'' offering, reflect both
the minimum and maximum proceeds; and
b. In a rights offering or an offering of securities upon the
exercise of outstanding warrants, reflect the proceeds only to the
extent exercise is likely in view of the current market price.
Instructions to Item 3.D: Risk factors should be concise and
explain clearly how the risk affects the issuer or the securities.
Item 4. Information on the Company
The purpose of this standard is to provide information about the
company's business operations, the products it makes or the services
it provides, and the factors that affect the business. The standard
also is intended to provide information regarding the adequacy and
suitability of the company's properties, plants and equipment, as
well as its plans for future increases or decreases in such
capacity.
A. History and development of the company. The following
information shall be provided:
1. The legal and commercial name of the company.
2. The date of incorporation and the length of life of the
company, except where indefinite.
3. The domicile and legal form of the company, the legislation
under which the company operates, its country of incorporation and
the address and telephone number of its registered office (or
principal place of business if different from its registered
office). Provide the name and address of the company's agent in the
host country, if any.
4. The important events in the development of the company's
business, e.g. information concerning the nature and results of any
material reclassification, merger or consolidation of the company or
any of its significant subsidiaries; acquisitions or dispositions of
material assets other than in the ordinary course of business; any
material changes in the mode of conducting the business; material
changes in the types of products produced or services rendered; name
changes; or the nature and results of any bankruptcy, receivership
or similar proceedings with respect to the company or significant
subsidiaries.
5. A description, including the amount invested, of the
company's principal capital expenditures and divestitures (including
interests in other companies), since the beginning of the company's
last three financial years to the date of the offering or listing
document.
6. Information concerning the principal capital expenditures and
divestitures currently in progress, including the distribution of
these investments geographically (home and abroad) and the method of
financing (internal or external).
7. An indication of any public takeover offers by third parties
in respect of the company's shares or by the company in respect of
other companies' shares which have occurred during the last and
current financial year. The price or exchange terms attaching to
such offers and the outcome thereof are to be stated.
B. Business overview. The information required by this item may
be presented on the same basis as that used to determine the
company's business segments under the body of accounting principles
used in preparing the financial statements. The following
information shall be provided:
1. A description of the nature of the company's operations and
its principal activities, stating the main categories of products
sold and/or services performed for each of the last three financial
years. Indicate any significant new products and/or services that
have been introduced and, to the extent the development of new
products or services has been publicly disclosed, give the status of
development.
2. A description of the principal markets in which the company
competes, including a breakdown of total revenues by category of
activity and geographic market for each of the last three financial
years.
3. A description of the seasonality of the company's main
business.
4. A description of the sources and availability of raw
materials, including a description of whether prices of principal
raw materials are volatile.
5. A description of the marketing channels used by the company,
including an explanation of any special sales methods, such as
installment sales.
6. Summary information regarding the extent to which the company
is dependent, if at all, on patents or licenses, industrial,
commercial or financial contracts (including contracts with
customers or suppliers) or new manufacturing processes, where such
factors are material to the company's business or profitability.
[[Page 53916]]
7. The basis for any statements made by the company regarding
its competitive position shall be disclosed.
8. A description of the material effects of government
regulations on the company's business, identifying the regulatory
body.
C. Organizational structure. If the company is part of a group,
include a brief description of the group and the company's position
within the group. Provide a listing of the company's significant
subsidiaries, including name, country of incorporation or residence,
proportion of ownership interest and, if different, proportion of
voting power held.
D. Property, plants and equipment. The company shall provide
information regarding any material tangible fixed assets, including
leased properties, and any major encumbrances thereon, including a
description of the size and uses of the property; productive
capacity and extent of utilization of the company's facilities; how
the assets are held; the products produced; and the location. Also
describe any environmental issues that may affect the company's
utilization of the assets. With regard to any material plans to
construct, expand or improve facilities, describe the nature of and
reason for the plan, an estimate of the amount of expenditures
including the amount of expenditures already paid, a description of
the method of financing the activity, the estimated dates of start
and completion of the activity, and the increase of production
capacity anticipated after completion.
Instruction to Item 4: Furnish the information specified in any
industry guide listed in Part 9 of Regulation S-K (Sec. 229.802 of
this chapter) that applies to you, except that if you furnish the
information specified in Appendix A to Item 4.D of this form you do
not need to furnish any additional information specified in Guide 2
relating to oil and gas operations.
Instructions to Item 4.A.4: If you are providing the information
called for by Item 4.A.4 in an annual report, you only have to
provide the required information for the period from the beginning
of your last full financial year up to the latest practicable date.
Instructions to Item 4.B:
1. The reference in Item 4.B to ``the body of accounting
principles used in preparing the financial statements'' means the
accounting principles used in preparing the primary financial
statements, not to accounting principles used only to prepare the
U.S. GAAP reconciliation.
2. If you:
(a) Are filing a registration statement on Form F-1 under the
Securities Act or on Form 20-F under the Exchange Act,
(b) Were not required to file reports under Section 13(a) or
15(d) of the Exchange Act immediately prior to filing that
registration statement, and
(c) Have not received (or your predecessor has not received)
revenue from operations during each of the three fiscal years
immediately prior to filing the registration statement:
you must provide information about your plan of operations. Provide
information comparable to the information required by Item 101(a)(2)
of Regulation S-K.
Instructions to Item 4.D:
1. In the case of an extractive enterprise:
(a) Provide material information about production, reserves,
locations, developments and the nature of your interest. If
individual properties are of major significance to you, provide more
detailed information about those properties and use maps to disclose
information about their location.
(b) If you are giving reserve estimates in the registration
statement or report:
(i) Consult the staff of the Office of International Corporate
Finance of the Division of Corporation Finance. That office may
request that you provide supplementally a copy of the full report of
the engineer or other expert who estimated the reserves. See Rule
418 of Regulation C (Sec. 230.418 of this chapter) and Rule 12b-4 of
Regulation 12B (Sec. 240.12b-4 of this chapter) for information
about submitting supplemental information to the Commission and
requesting its return.
(ii) In documents you file publicly with the Commission, do not
disclose estimates of oil or gas reserves unless the reserves are
proved (or in the case of other extractive industries, proved or
probable) and do not give estimated values of those reserves, unless
foreign law requires you to disclose the information. If these types
of estimates have already been provided to any person that is
offering to acquire you, however, you may include the estimates in
documents relating to the acquisition.
(iii) If you represent that the estimates of reserves you
provide, or any estimated valuation of those reserves, are based on
estimates prepared or reviewed by independent consultants, you must
name those consultants in the document.
(c) If oil and gas operations are material to your or your
subsidiaries' business operations or financial position, provide the
information specified in Appendix A to Item 4.D, located at the end
of this Form.
Item 5. Operating and Financial Review and Prospects
The purpose of this standard is to provide management's
explanation of factors that have affected the company's financial
condition and results of operations for the historical periods
covered by the financial statements, and management's assessment of
factors and trends which are anticipated to have a material effect
on the company's financial condition and results of operations in
future periods.
Discuss the company's financial condition, changes in financial
condition and results of operations for each year and interim period
for which financial statements are required, including the causes of
material changes from year to year in financial statement line
items, to the extent necessary for an understanding of the company's
business as a whole. Information provided also shall relate to all
separate segments of the company. Provide the information specified
below as well as such other information that is necessary for an
investor's understanding of the company's financial condition,
changes in financial condition and results of operations.
A. Operating results. Provide information regarding significant
factors, including unusual or infrequent events or new developments,
materially affecting the company's income from operations,
indicating the extent to which income was so affected. Describe any
other significant component of revenue or expenses necessary to
understand the company's results of operations.
1. To the extent that the financial statements disclose material
changes in net sales or revenues, provide a narrative discussion of
the extent to which such changes are attributable to changes in
prices or to changes in the volume or amount of products or services
being sold or to the introduction of new products or services.
2. Describe the impact of inflation, if material. If the
currency in which financial statements are presented is of a country
that has experienced hyperinflation, the existence of such
inflation, a five year history of the annual rate of inflation and a
discussion of the impact of hyperinflation on the company's business
shall be disclosed.
3. Provide information regarding the impact of foreign currency
fluctuations on the company, if material, and the extent to which
foreign currency net investments are hedged by currency borrowings
and other hedging instruments.
4. Provide information regarding any governmental economic,
fiscal, monetary or political policies or factors that have
materially affected, or could materially affect, directly or
indirectly, the company's operations or investments by host country
shareholders.
B. Liquidity and capital resources. The following information
shall be provided:
1. Information regarding the company's liquidity (both short and
long term), including:
(a) A description of the internal and external sources of
liquidity and a brief discussion of any material unused sources of
liquidity. Include a statement by the company that, in its opinion,
the working capital is sufficient for the company's present
requirements, or, if not, how it proposes to provide the additional
working capital needed.
(b) An evaluation of the sources and amounts of the company's
cash flows, including the nature and extent of any legal or economic
restrictions on the ability of subsidiaries to transfer funds to the
company in the form of cash dividends, loans or advances and the
impact such restrictions have had or are expected to have on the
ability of the company to meet its cash obligations.
(c) Information on the level of borrowings at the end of the
period under review, the seasonality of borrowing requirements and
the maturity profile of borrowings and committed borrowing
facilities, with a description of any restrictions on their use.
2. Information regarding the type of financial instruments used,
the maturity profile of debt, currency and interest rate structure.
The discussion also should include funding and treasury policies and
objectives in terms of the manner in which treasury activities are
controlled, the currencies in which cash and cash equivalents are
held, the extent to which borrowings are at fixed
[[Page 53917]]
rates, and the use of financial instruments for hedging purposes.
3. Information regarding the company's material commitments for
capital expenditures as of the end of the latest financial year and
any subsequent interim period and an indication of the general
purpose of such commitments and the anticipated sources of funds
needed to fulfill such commitments.
C. Research and development, patents and licenses, etc. Provide
a description of the company's research and development policies for
the last three years, where it is significant, including the amount
spent during each of the last three financial years on company-
sponsored research and development activities.
D. Trend information. The company should identify the most
significant recent trends in production, sales and inventory, the
state of the order book and costs and selling prices since the
latest financial year. The company also should discuss, for at least
the current financial year, any known trends, uncertainties,
demands, commitments or events that are reasonably likely to have a
material effect on the company's net sales or revenues, income from
continuing operations, profitability, liquidity or capital
resources, or that would cause reported financial information not
necessarily to be indicative of future operating results or
financial condition.
Instructions to Item 5:
1. Refer to the Commission's interpretive release (No. 33-6835)
dated May 18, 1989 for guidance in preparing this discussion and
analysis by management of the company's financial condition and
results of operations.
2. The discussion should focus on the primary financial
statements presented in the document. You should refer to the
reconciliation to U.S. GAAP, if any, and discuss any aspects of the
differences between foreign and U.S. GAAP, not otherwise discussed
in the reconciliation, that you believe are necessary for an
understanding of the financial statements as a whole.
3. We encourage you to supply forward-looking information, but
that type of information is not required. Forward-looking
information is covered expressly by the safe harbor provisions of
Section 27A of the Securities Act and Section 27A of the Exchange
Act. Forward-looking information is different than presently known
data which will have an impact on future operating results, such as
known future increases in costs of labor or materials. You are
required to disclose this latter type of data if it is material.
Instruction to Item 5.A:
1. You must provide the information required by Item 5.A.2 with
respect to hyperinflation if hyperinflation has occurred in any of
the periods for which you are required to provide audited financial
statements or unaudited interim financial statements in the
document. See Rule 3-20(c) of Regulation S-X for a discussion of
cumulative inflation rates that trigger this requirement.
Item 6. Directors, Senior Management and Employees
The purpose of this standard is to provide information
concerning the company's directors and managers that will allow
investors to assess such individuals' experience, qualifications and
levels of compensation, as well as their relationship with the
company. Information concerning the company's employees is also
required.
A. Directors and senior management. The following information
shall be disclosed with respect to the company's directors and
senior management, and any employees such as scientists or designers
upon whose work the company is dependent:
1. Name, business experience, functions and areas of experience
in the company.
2. Principal business activities performed outside the issuing
company (including, in the case of directors, other principal
directorships).
3. Date of birth or age (if required to be reported in the home
country or otherwise publicly disclosed by the company).
4. The nature of any family relationship between any of the
persons named above.
5. Any arrangement or understanding with major shareholders,
customers, suppliers or others, pursuant to which any person
referred to above was selected as a director or member of senior
management.
B. Compensation. Provide the following information for the last
full financial year for the company's directors and members of its
administrative, supervisory or management bodies:
1. The amount of compensation paid, and benefits in kind
granted, to such persons by the company and its subsidiaries for
services in all capacities to the company and its subsidiaries by
any person. Disclosure of compensation is required on an individual
basis unless individual disclosure is not required in the company's
home country and is not otherwise publicly disclosed by the company.
The standard also covers contingent or deferred compensation accrued
for the year, even if the compensation is payable at a later date.
If any portion of the compensation was paid (a) pursuant to a bonus
or profit-sharing plan, provide a brief description of the plan and
the basis upon which such persons participate in the plan; or (b) in
the form of stock options, provide the title and amount of
securities covered by the options, the exercise price, the purchase
price (if any), and the expiration date of the options.
2. The total amounts set aside or accrued by the company or its
subsidiaries to provide pension, retirement or similar benefits.
C. Board practices. The following information for the company's
last completed financial year shall be given with respect to, unless
otherwise specified, the company's directors, and members of its
administrative, supervisory or management bodies.
1. Date of expiration of the current term of office, if
applicable, and the period during which the person has served in
that office.
2. Details of directors' service contracts with the company or
any of its subsidiaries providing for benefits upon termination of
employment, or an appropriate negative statement.
3. Details relating to the company's audit committee and
remuneration committee, including the names of committee members and
a summary of the terms of reference under which the committee
operates.
D. Employees. Provide either the number of employees at the end
of the period or the average for the period for each of the past
three financial years (and changes in such numbers, if material)
and, if possible, a breakdown of persons employed by main category
of activity and geographic location. Also disclose any significant
change in the number of employees, and information regarding the
relationship between management and labor unions. If the company
employs a significant number of temporary employees, include
disclosure of the number of temporary employees on an average during
the most recent financial year.
E. Share ownership.
1. With respect to the persons listed in subsection 6.B, above,
provide information as to their share ownership in the company as of
the most recent practicable date (including disclosure on an
individual basis of the number of shares and percent of shares
outstanding of that class, and whether they have different voting
rights) held by the persons listed and options granted to them on
the company's shares. Information regarding options shall include:
the title and amount of securities called for by the options; the
exercise price; the purchase price, if any; and the expiration date
of the options.
2. Describe any arrangements for involving the employees in the
capital of the company, including any arrangement that involves the
issue or grant of options or shares or securities of the company.
Instruction to Item 6.C: The term ``plan'' is used very broadly
and includes any type of arrangement for compensation, even if the
terms of the plan are not contained in a formal document.
Instruction to Item 6.E: If (a) any of the persons listed in
subsection 6.B beneficially owns less than one percent of the class
of shares and (b) that person's individual share ownership
previously has not been disclosed to shareholders or otherwise made
public, you may indicate, by an asterisk and explanatory footnote or
similar means, that the person beneficially owns less than one
percent of the class, instead of providing that person's individual
share ownership.
Item 7. Major Shareholders and Related Party Transactions
The purpose of this standard is to provide information regarding
the major shareholders and others that control or may control the
company. The standard also provides information regarding
transactions the company has entered into with persons affiliated
with the company and whether the terms of such transactions are fair
to the company. These standards may require disclosure of related
party transactions not required to be disclosed under the body of
accounting principles used in preparing the financial statements.
This standard is not intended to address the thresholds at which
shareholders are required, on a continuing basis, to disclose their
beneficial ownership of securities.
[[Page 53918]]
A. Major shareholders. To the extent that the following
information is known to the company or can be ascertained from
public filings, it should be provided as of the most recent
practicable date, with references to the number of shares held in
the company including shares beneficially owned.
1. The following information shall be provided regarding the
company's major shareholders, which means shareholders that are the
beneficial owners of 5% or more of each class of the company's
voting securities (unless the company is required to disclose a
lesser percentage in its home country, in which case that lesser
percentage applies):
(a) Provide the names of the major shareholders, and the number
of shares and the percentage of outstanding shares of each class
owned by each of them as of the most recent practicable date, or an
appropriate negative statement if there are no major shareholders.
(b) Disclose any significant change in the percentage ownership
held by any major shareholders during the past three years.
(c) Indicate whether the company's major shareholders have
different voting rights, or an appropriate negative statement.
2. Information shall be provided as to the portion of each class
of securities held in the host country and the number of record
holders in the host country.
3. To the extent known to the company, state whether the company
is directly or indirectly owned or controlled by another
corporation(s), by any foreign government or by any other natural or
legal person(s) severally or jointly, and, if so, give the name(s)
of such controlling corporation(s), government or other person(s),
and briefly describe the nature of such control, including the
amount and proportion of capital held giving a right to vote.
4. Describe any arrangements, known to the company, the
operation of which may at a subsequent date result in a change in
control of the company.
B. Related party transactions. Provide the information required
below for the period since the beginning of the company's preceding
three financial years up to the date of the document, with respect
to transactions or loans between the company and (a) enterprises
that directly or indirectly through one or more intermediaries,
control or are controlled by, or are under common control with, the
company; (b) associates; (c) individuals owning, directly or
indirectly, an interest in the voting power of the company that
gives them significant influence over the company, and close members
of any such individual's family; (d) key management personnel, that
is, those persons having authority and responsibility for planning,
directing and controlling the activities of the company, including
directors and senior management of companies and close members of
such individuals' families; and (e) enterprises in which a
substantial interest in the voting power is owned, directly or
indirectly, by any person described in (c) or (d) or over which such
a person is able to exercise significant influence. This includes
enterprises owned by directors or major shareholders of the company
and enterprises that have a member of key management in common with
the company. Close members of an individual's family are those that
may be expected to influence, or be influenced by, that person in
their dealings with the company. An associate is an unconsolidated
enterprise in which the company has a significant influence or which
has significant influence over the company. Significant influence
over an enterprise is the power to participate in the financial and
operating policy decisions of the enterprise but is less than
control over those policies. Shareholders beneficially owning a 10%
interest in the voting power of the company are presumed to have a
significant influence on the company.
1. The nature and extent of any transactions or presently
proposed transactions which are material to the company or the
related party, or any transactions that are unusual in their nature
or conditions, involving goods, services, or tangible or intangible
assets, to which the company or any of its parent or subsidiaries
was a party.
2. The amount of outstanding loans (including guarantees of any
kind) made by the company or any of its parent or subsidiaries to or
for the benefit of any of the persons listed above. The information
given should include the largest amount outstanding during the
period covered, the amount outstanding as of the latest practicable
date, the nature of the loan and the transaction in which it was
incurred, and the interest rate on the loan.
C. Interests of experts and counsel. If any of the named experts
or counselors was employed on a contingent basis, owns an amount of
shares in the company or its subsidiaries which is material to that
person, or has a material, direct or indirect economic interest in
the company or that depends on the success of the offering, provide
a brief description of the nature and terms of such contingency or
interest.
Instructions to Item 7.B:
1. If you are providing the information called for by Item 7.B
in an annual report, you only have to provide the required
information for the period from the beginning of your last full
fiscal year up to the latest practicable date.
2. In response to Item 7.B.2, if the lender is a bank, savings
and loan association, or broker dealer extending credit under
Federal Reserve Regulation T, and the loans are not disclosed as
nonaccrual, past due, restructured or potential problems under
Industry Guide 3, your response may consist of a statement, if true,
that the loans in question (A) were made in the ordinary course of
business, (B) were made on substantially the same terms, including
interest rates and collateral, as those prevailing at the time for
comparable transactions with other persons, and (C) did not involve
more than the normal risk of collectibility or present other
unfavorable features.
Instruction to Item 7.C: If you are filing Form 20-F as a
registration statement or annual report under the Exchange Act, you
do not have to provide the information called for by Item 7.C. You
must provide this information if you are filing a registration
statement under the Securities Act. Accountants who provide a report
on financial statements that are presented or incorporated by
reference in a registration statement should note Article 2 of
Regulation S-X. That Article contains the Commission's requirements
for qualifications and reports of accountants.
Item 8. Financial Information
The purpose of this standard is to specify which financial
statements must be included in the document, as well as the periods
to be covered, the age of the financial statements and other
information of a financial nature.
A. Consolidated Statements and Other Financial Information.
1. The document must contain consolidated financial statements,
audited by an independent auditor and accompanied by an audit
report, comprised of:
(a) Balance sheet;
(b) Income statement;
(c) Statement showing either (i) changes in equity other than
those arising from capital transactions with owners and
distributions to owners; or (ii) all changes in equity (including a
subtotal of all non-owner items recognized directly in equity);
(d) Cash flow statement;
(e) Related notes and schedules required by the comprehensive
body of accounting standards pursuant to which the financial
statements are prepared; and
(f) If not included in the primary financial statements, a note
analyzing the changes in each caption of shareholders' equity
presented in the balance sheet.
2. The document should include comparative financial statements
that cover the latest three financial years, audited in accordance
with a comprehensive body of auditing standards.
3. The audit report(s) must cover each of the periods for which
these international disclosure standards require audited financial
statements. If the auditors have refused to provide a report on the
annual accounts or if the report(s) contain qualifications or
disclaimers, such refusal or such qualifications or disclaimers
shall be reproduced in full and the reasons given, so the host
country securities regulator can determine whether or not to accept
the financial statements. Include an indication of any other
information in the document which has been audited by the auditors.
4. The last year of audited financial statements may not be
older than 15 months at the time of the offering or listing;
provided, however, that in the case of the company's initial public
offering, the audited financial statements also shall be as of a
date not older than 12 months at the time the document is filed. In
such cases, the audited financial statements may cover a period of
less than a full year.
5. If the document is dated more than nine months after the end
of the last audited financial year, it should contain consolidated
interim financial statements, which may be unaudited (in which case
that fact should be stated), covering at least the first six months
of the financial year. The interim financial statements should
include a balance sheet, income statement, cash flow statement, and
[[Page 53919]]
a statement showing either (i) changes in equity other than those
arising from capital transactions with owners and distributions to
owners, or (ii) all changes in equity (including a subtotal of all
non-owner items recognized directly in equity). Each of these
statements may be in condensed form as long as it contains the major
line items from the latest audited financial statements and includes
the major components of assets, liabilities and equity (in the case
of the balance sheet); income and expenses (in the case of the
income statement) and the major subtotals of cash flows (in the case
of the cash flow statement). The interim financial statements should
include comparative statements for the same period in the prior
financial year, except that the requirement for comparative balance
sheet information may be satisfied by presenting the year end
balance sheet. If not included in the primary financial statements,
a note should be provided analyzing the changes in each caption of
shareholders' equity presented in the balance sheet. The interim
financial statements should include selected note disclosures that
will provide an explanation of events and changes that are
significant to an understanding of the changes in financial position
and performance of the enterprise since the last annual reporting
date. If, at the date of the document, the company has published
interim financial information that covers a more current period than
those otherwise required by this standard, the more current interim
financial information must be included in the document. Companies
are encouraged, but not required, to have any interim financial
statements in the document reviewed by an independent auditor. If
such a review has been performed and is referred to in the document,
a copy of the auditor's interim review report must be provided in
the document.
6. If the amount of export sales constitutes a significant
portion of the company's total sales volume, provide the total
amount of export sales and the percent and amount of export sales in
the total amount of sales volume.
7. Provide information on any legal or arbitration proceedings,
including those relating to bankruptcy, receivership or similar
proceedings and those involving any third party, which may have, or
have had in the recent past, significant effects on the company's
financial position or profitability. This includes governmental
proceedings pending or known to be contemplated.
8. Describe the company's policy on dividend distributions.
B. Significant Changes. Disclose whether or not any significant
change has occurred since the date of the annual financial
statements, and/or since the date of the most recent interim
financial statements, if any, included in the document.
Instructions to Item 8:
1. This item refers to the company, but note that under Rules 3-
05, 3-09, 3-10 and 3-14 of Regulation S-X, you also may have to
provide financial statements or financial information for entities
other than the issuer. In some cases, you may have to provide
financial statements for a predecessor. See the definition of
``predecessor'' in Exchange Act Rule 12b-2 and Securities Act Rule
405.
2. For offerings of securities (a) upon the exercise of
outstanding rights granted by the issuer of the securities to be
offered, if the rights are granted pro rata to all existing
securityholders of the class of securities to which the rights
attach; or (b) pursuant to a dividend or interest reinvestment plan;
or (c) upon the conversion of outstanding convertible securities or
upon the exercise of outstanding transferable warrants issued by the
issuer of the securities to be offered, or by an affiliate of that
issuer, the 15-month period referred to in Item 8.A.4 is extended to
18 months and the interim financial statements referred to in Item
8.A.5 shall be as of a date within 12 months of the date of the
document. The provisions of this paragraph are not applicable if
securities are to be offered or sold in a standby underwriting in
the United States or similar arrangement.
Instructions to Item 8.A.2:
1. You do not have to provide a balance sheet for the earliest
of the three-year periods specified in Item 8.A.2 if that balance
sheet is not required by a jurisdiction outside the United States.
2. The financial statements must be audited in accordance with
U.S. generally accepted auditing standards, and the auditor must
comply with the U.S. and Commission standards for auditor
independence. Note Article 2 of Regulation S-X, which contains
requirements for qualifications and reports of accountants.
Instruction to Item 8.A.3: The circumstances in which we would
accept an audit report containing a disclaimer or qualification are
extremely limited. If you plan to submit this type of report, we
recommend that you contact the staff of the Office of Chief
Accountant in the Division of Corporation Finance well in advance of
filing the document, to discuss the report.
Instructions to Item 8.A.4:
1. In calculating the 15-month requirement for the age of
financial statements, determine the age based on the period of time
that has elapsed between the date of the balance sheet and ``the
time of the offering or listing,'' which means the time the
registration statement is declared effective. You may satisfy this
requirement by providing audited financial statements covering a
period of less than a full year.
2. The additional requirement that financial statements be no
older than 12 months at the date of filing applies only in those
limited cases where a nonpublic company is registering its initial
public offering of securities. We will waive this requirement in
cases where the company is able to represent adequately to us that
it is not required to comply with this requirement in any other
jurisdiction outside the United States and that complying with the
requirement is impracticable or involves undue hardship. File this
representation as an exhibit to the registration statement. If we
waive the 12-month requirement, you must comply with the 15-month
requirement in this item.
Instructions to Item 8.A.5:
1. Item 8.A.5 does not apply to annual reports on Form 20-F.
2. The third sentence of Item 8.A.5 explains that the required
interim financial statements may be in condensed form using major
line items from the latest audited financial statements. To
determine which major line items must be included in condensed
interim information, see Rules 10-01(a) (1) through (7).
3. The third sentence from the end of Item 8.A.5 requires you to
include in the document interim financial information that has been
published by the company if that information covers a more current
period than the statements otherwise required by Item 8. This
requirement does not apply to annual reports filed on Form 20-F. The
requirement covers any publication of financial information that
includes, at a minimum, revenue and income information, even if that
information is not published as part of a complete set of financial
statements. Whenever you provide more current interim financial
information in response to this requirement:
(a) Describe any ways in which the accounting principles,
practices and methods used in preparing that interim financial
information vary materially from the principles, practices and
methods accepted in the United States, and
(b) Quantify any material variations, unless they already are
quantified because they occur in other financial statements included
in the document.
Instructions to Item 8.A.7:
1. This Item also requires disclosure of any material proceeding
in which any director, any member of senior management, or any of
your affiliates is either a party adverse to you or your
subsidiaries or has a material interest adverse to your or your
subsidiaries.
2. If you are providing the information called for by Item 8.A.7
in an annual report, also describe the disposition of any previously
reported litigation that occurred during the last fiscal year.
Item 9. The Offer and Listing
The purpose of this standard is to provide information regarding
the offer or listing of securities, the plan for distribution of the
securities and related matters.
A. Offer and listing details.
1. Indicate the expected price at which the securities will be
offered or the method of determining the price, and the amount of
any expenses specifically charged to the subscriber or purchaser.
2. If there is not an established market for the securities, the
document shall contain information regarding the manner of
determination of the offering price as well as of the exercise price
of warrants and the conversion price of convertible securities,
including who established the price or who is formally responsible
for the determination of the price, the various factors considered
in such determination and the parameters or elements used as a basis
for establishing the price.
3. If the company's shareholders have pre-emptive purchase
rights and where the exercise of the right of pre-emption of
shareholders is restricted or withdrawn, the company shall indicate
the basis for the issue price if the issue is for cash, together
with the reasons for such restriction or withdrawal and the
beneficiaries of such restriction or
[[Page 53920]]
withdrawal if intended to benefit specific persons.
4. Information regarding the price history of the stock to be
offered or listed shall be disclosed as follows:
(a) For the five most recent full financial years: the annual
high and low market prices;
(b) For the two most recent full financial years and any
subsequent period: the high and low market prices for each full
financial quarter;
(c) For the most recent six months: the high and low market
prices for each month;
(d) For pre-emptive issues, the market prices for the first
trading day in the most recent six months, for the last trading day
before the announcement of the offering and (if different) for the
latest practicable date prior to publication of the document.
Information shall be given with respect to the market price in
the host market and the principal trading market outside the host
market. If significant trading suspensions occurred in the prior
three years, they shall be disclosed. If the securities are not
regularly traded in an organized market, information shall be given
about any lack of liquidity.
5. State the type and class of the securities being offered or
listed and furnish the following information:
(a) Indicate whether the shares are registered shares or bearer
shares and provide the number of shares to be issued and to be made
available to the market for each kind of share. The nominal par or
equivalent value should be given on a per share basis and, where
applicable, a statement of the minimum offer price. Describe the
coupons attached, if applicable.
(b) Describe arrangements for transfer and any restrictions on
the free transferability of the shares.
6. If the rights evidenced by the securities being offered or
listed are or may be materially limited or qualified by the rights
evidenced by any other class of securities or by the provisions of
any contract or other documents, include information regarding such
limitation or qualification and its effect on the rights evidenced
by the securities to be listed or offered.
7. With respect to securities other than common or ordinary
shares to be listed or offered, outline briefly the rights evidenced
thereby.
(a) If subscription warrants or rights are to be listed or
offered, state: the title and amount of securities called for; the
amount of warrants or rights outstanding; provisions for changes to
or adjustments in the exercise price; the period during which and
the price at which the warrants or rights are exercisable; and any
other material terms of such warrants or rights.
(b) Where convertible securities or stock purchase warrants to
be listed or offered are subject to redemption or call, the
description of the conversion terms of the securities or material
terms of the warrants shall include whether the right to convert or
purchase the securities will be forfeited unless it is exercised
before the date specified in the notice of redemption or call; the
expiration or termination date of the warrants; the kind, frequency
and timing of notice of the redemption or call, including where the
notice will be published; and, in the case of bearer securities,
that investors are responsible for making arrangements to prevent
loss of the right to convert or purchase in the event of redemption
or call.
B. Plan of distribution.
1. The names and addresses of the entities underwriting or
guaranteeing the offering shall be listed.
2. To the extent known to the company, indicate whether major
shareholders, directors or members of the company's management,
supervisory or administrative bodies intend to subscribe in the
offering, or whether any person intends to subscribe for more than
5% of the offering.
3. Identify any group of targeted potential investors to whom
the securities are offered. If the offering is being made
simultaneously in the markets of two or more countries and if a
tranche has been or is being reserved for certain of these, indicate
any such tranche.
4. If securities are reserved for allocation to any group of
targeted investors, including, for example, offerings to existing
shareholders, directors, or employees and past employees of the
company or its subsidiaries, provide details of these and any other
preferential allocation arrangements.
5. Indicate whether the amount of the offering could be
increased, such as by the exercise of an underwriter's over-
allotment option or ``greenshoe,'' and by how much.
6. Indicate the amount, and outline briefly the plan of
distribution, of any securities that are to be offered otherwise
than through underwriters. If the securities are to be offered
through the selling efforts of brokers or dealers, describe the plan
of distribution and the terms of any agreement or understanding with
such entities. If known, identify the broker(s) or dealer(s) that
will participate in the offering and state the amount to be offered
through each.
7. If the securities are to be offered in connection with the
writing of exchange-traded call options, describe briefly such
transactions.
8. If simultaneously or almost simultaneously with the creation
of shares for which admission to official listing is being sought,
shares of the same class are subscribed for or placed privately or
if shares of other classes are created for public or private
placing, details are to be given of the nature of such operations
and of the number and characteristics of the shares to which they
relate.
9. Unless otherwise described under the response to Item 10.C
(Material Contracts), describe the features of the underwriting
relationship together with the amount of securities being
underwritten by each underwriter in privity of contract with the
company or selling shareholders. The foregoing information should
include a statement as to whether the underwriters are or will be
committed to take and to pay for all of the securities if any are
taken, or whether it is an agency or the type of ``best efforts''
arrangement under which the underwriters are required to take and to
pay for only such securities as they may sell to the public.
10. If any underwriter or other financial adviser has a material
relationship with the company, describe the nature and terms of such
relationship.
C. Markets. The company shall disclose all stock exchanges and
other regulated markets on which the securities to be offered or
listed are traded. When an application for admission to any exchange
and/or regulated market is being or will be sought, this must be
mentioned, without creating the impression that the listing
necessarily will be approved. If known, the dates on which the
shares will be listed and dealt in should be given.
D. Selling shareholders. The following information shall be
provided:
1. The name and address of the person or entity offering to sell
the shares, the nature of any position, office or other material
relationship that the selling shareholder has had within the past
three years with the company or any of its predecessors or
affiliates.
2. The number and class of securities being offered by each of
the selling shareholders, and the percentage of the existing equity
capital. The amount and percentage of the securities for each
particular type of securities beneficially held by the selling
shareholder before and immediately after the offering shall be
specified.
E. Dilution. The following information shall be provided:
1. Where there is a substantial disparity between the public
offering price and the effective cash cost to directors or senior
management, or affiliated persons, of equity securities acquired by
them in transactions during the past five years, or which they have
the right to acquire, include a comparison of the public
contribution in the proposed public offering and the effective cash
contributions of such persons.
2. Disclose the amount and percentage of immediate dilution
resulting from the offering, computed as the difference between the
offering price per share and the net book value per share for the
equivalent class of security, as of the latest balance sheet date.
3. In the case of a subscription offering to existing
shareholders, disclose the amount and percentage of immediate
dilution if they do not subscribe to the new offering.
F. Expenses of the issue. The following information shall be
provided:
1. The total amount of the discounts or commissions agreed upon
by the underwriters or other placement or selling agents and the
company or offeror shall be disclosed, as well as the percentage
such commissions represent of the total amount of the offering and
the amount of discounts or commissions per share.
2. A reasonably itemized statement of the major categories of
expenses incurred in connection with the issuance and distribution
of the securities to be listed or offered and by whom the expenses
are payable, if other than the company. If any of the securities are
to be offered for the account of a selling shareholder, indicate the
portion of such expenses to be borne by such shareholder. The
information may be given subject to future contingencies. If the
amounts of any items are not known, estimates (identified as such)
shall be given.
Instruction to Item 9: If you are using this Form as a
registration statement under the
[[Page 53921]]
Exchange Act, provide only the information called for by Items
9.A.4-7 and 9.C. If you are using this Form as an annual report,
provide only the information called for by Items 9.A.4 and 9.C. If
you are providing this information in a Securities Act registration
statement, provide the information called for by the entire Item.
Instruction to Item 9.A: When you are required to state the
title of the securities, the title must indicate the type and
general character of the securities, such as whether they are
callable, convertible or redeemable and whether there is any
preference or fixed rate of dividends.
Instructions to Item 9.B:
1. You may satisfy the requirement in Item 9.B.1 to provide the
underwriters' addresses by giving the addresses of the lead
underwriters for the offering.
2. If previously you have not been required to file reports
under section 13(a) or 15(d) of the Exchange Act and any of the
managing underwriters (or a majority of the principal underwriters)
has been organized, reactivated or first registered as a broker-
dealer within the past three years, disclose that fact. Also
disclose, if true, that the principal business function of this
underwriter will be to sell the securities being registered or that
your promoters or founders have a material relationship with this
underwriter. Give enough details to provide a clear picture of the
underwriter's experience and its relationship with you, your
promoters or founders, and their controlling persons.
Instruction to Item 9.F: Major categories of expenses include at
least the following: registration fees, federal taxes, state taxes
and fees, trustees' and transfer agents' fees, printing and
engraving costs, legal fees, accounting fees, engineering fees, and
any premiums paid to insure directors or officers for liabilities in
connection with the registration, offer or sale of the securities
you are registering.
Item 10. Additional Information
The purpose of this standard is to provide information, most of
which is of a statutory nature, that is not covered elsewhere in the
document.
A. Share capital. The following information shall be given as of
the date of the most recent balance sheet included in the financial
statements and as of the latest practicable date:
1. The amount of issued capital and, for each class of share
capital: (a) the number of shares authorized; (b) the number of
shares issued and fully paid and issued but not fully paid; (c) the
par value per share, or that the shares have no par value; and (d) a
reconciliation of the number of shares outstanding at the beginning
and end of the year. If more than 10% of capital has been paid for
with assets other than cash within the past five years, that fact
should be stated.
2. If there are shares not representing capital, the number and
main characteristics of such shares shall be stated.
3. Indicate the number, book value and face value of shares in
the company held by or on behalf of the company itself or by
subsidiaries of the company.
4. Where there is authorized but unissued capital or an
undertaking to increase the capital, for example, in connection with
warrants, convertible obligations or other outstanding equity-linked
securities, or subscription rights granted, indicate: (i) the amount
of outstanding equity-linked securities and of such authorized
capital or capital increase and, where appropriate, the duration of
the authorization; (ii) the categories of persons having
preferential subscription rights for such additional portions of
capital; and (iii) the terms, arrangements and procedures for the
share issue corresponding to such portions.
5. The persons to whom any capital of any member of the group is
under option or agreed conditionally or unconditionally to be put
under option, including the title and amount of securities covered
by the options; the exercise price; the purchase price, if any; and
the expiration date of the options, or an appropriate negative
statement. Where options have been granted or agreed to be granted
to all the holders of shares or debt securities, or of any class
thereof, or to employees under an employees' share scheme, it will
be sufficient so far as the names are concerned, to record that fact
without giving names.
6. A history of share capital for the last three years
identifying the events during such period which have changed the
amount of the issued capital and/or the number and classes of shares
of which it composed, together with a description of changes in
voting rights attached to the various classes of shares during that
time. Details should be given of the price and terms of any issue
including particulars of consideration where this was other than
cash (including information regarding discounts, special terms or
installment payments). If there are no such issues, an appropriate
negative statement must be made. The reason for any reduction of the
amount of capital and the ratio of capital reductions also shall be
given.
7. An indication of the resolutions, authorizations and
approvals by virtue of which the shares have been or will be created
and/or issued, the nature of the issue and amount thereof and the
number of shares which have been or will be created and/or issued,
if predetermined.
B. Memorandum and articles of association. The following
information shall be provided:
1. Indicate the registor and the entry number therein, if
applicable, and describe the company's objects and purposes and
where they can be found in the memorandum and articles.
2. With respect to directors, provide a summary of any
provisions of the company's articles of association or charter and
bylaws with respect to: (a) a director's power to vote on a
proposal, arrangement or contract in which the director is
materially interested; (b) the directors' power, in the absence of
an independent quorum, to vote compensation to themselves or any
members of their body; (c) borrowing powers exercisable by the
directors and how such borrowing powers can be varied; (d)
retirement or non-retirement of directors under an age limit
requirement; and (e) number of shares, if any, required for
director's qualification.
3. Describe the rights, preferences and restrictions attaching
to each class of the shares, including: (a) dividend rights,
including the time limit after which dividend entitlement lapses and
an indication of the party in whose favor this entitlement operates;
(b) voting rights, including whether directors stand for reelection
at staggered intervals and the impact of that arrangement where
cumulative voting is permitted or required; (c) rights to share in
the company's profits; (d) rights to share in any surplus in the
event of liquidation; (e) redemption provisions; (f) sinking fund
provisions; (g) liability to further capital calls by the company;
and (h) any provision discriminating against any existing or
prospective holder of such securities as a result of such
shareholder owning a substantial number of shares.
4. Describe what action is necessary to change the rights of
holders of the stock, indicating where the conditions are more
significant than is required by law.
5. Describe the conditions governing the manner in which annual
general meetings and extraordinary general meetings of shareholders
are convoked, including the conditions of admission.
6. Describe any limitations on the rights to own securities,
including the rights of non-resident or foreign shareholders to hold
or exercise voting rights on the securities imposed by foreign law
or by the charter or other constituent document of the company or
state that there are no such limitations if that is the case.
7. Describe briefly any provision of the company's articles of
association, charter or bylaws that would have an effect of
delaying, deferring or preventing a change in control of the company
and that would operate only with respect to a merger, acquisition or
corporate restructuring involving the company (or any of its
subsidiaries).
8. Indicate the bylaw provisions, if any, governing the
ownership threshold above which shareholder ownership must be
disclosed.
9. With respect to items 2 through 8 above, if the law
applicable to the company in these areas is significantly different
from that in the host country, the effect of the law in these areas
should be explained.
10. Describe the conditions imposed by the memorandum and
articles of association governing changes in the capital, where such
conditions are more stringent than is required by law.
C. Material contracts. Provide a summary of each material
contract, other than contracts entered into in the ordinary course
of business, to which the company or any member of the group is a
party, for the two years immediately preceding publication of the
document, including dates, parties, general nature of the contracts,
terms and conditions, and amount of any consideration passing to or
from the company or any other member of the group.
D. Exchange controls. Describe any governmental laws, decrees,
regulations or other legislation of the home country of the company
which may affect:
1. The import or export of capital, including the availability
of cash and cash equivalents for use by the company's group.
[[Page 53922]]
2. The remittance of dividends, interest or other payments to
nonresident holders of the company's securities.
E. Taxation. The company shall provide information regarding
taxes (including withholding provisions) to which shareholders in
the host country may be subject. Information should be included as
to whether the company assumes responsibility for the withholding of
tax at the source and regarding applicable provisions of any
reciprocal tax treaties between the home and host countries, or a
statement, if applicable, that there are no such treaties.
F. Dividends and paying agents. Disclose any dividend
restrictions, the date on which the entitlement to dividends arises,
if known, and any procedures for nonresident holders to claim
dividends. Identify the financial organizations which, at the time
of admission of shares to official listing, are the paying agents of
the company in the countries where admission has taken place or is
expected to take place.
G. Statement by experts. Where a statement or report attributed
to a person as an expert is included in the document, provide such
person's name, address and qualifications and a statement to the
effect that such statement or report is included, in the form and
context in which it is included, with the consent of that person,
who has authorized the contents of that part of the document.
H. Documents on display. The company shall provide an indication
of where the documents concerning the company which are referred to
in the document may be inspected. Exhibits and documents on display
generally should be translated into the language of the host
country, or a summary in the host country language should be
provided.
I. Subsidiary Information. Certain information relating to the
company's subsidiaries must be provided in some countries, if the
information is not otherwise called for by the body of generally
accepted accounting principles used in preparing the financial
statements.
Instructions to Item 10:
1. In annual reports filed on Form 20-F:
(a) You do not have to provide the information called for by
Items 10.A, 10.F and 10.G; and
(b) If the information called for by Item 10.B has been reported
previously in a registration statement on Form 20-F or a
registration statement filed under the Securities Act and has not
changed, you may incorporate that information by a specific
reference in the annual report to the previous registration
statement.
2. In registration statements filed under the Securities Act or
the Exchange Act that relate to securities other than common equity,
you do not have to provide the information called for by Items 10.A
or 10.F.
3. The information referred to in Item 10.I is not required for
registration statements and reports filed in the United States.
* * * * *
Item 12. Description of Securities Other Than Equity Securities
A. Debt Securities. If you are registering debt securities,
provide the following information if it is relevant to the
securities you are registering.
1. Information about interest, conversions, maturity,
redemption, amortization, sinking funds or retirement.
2. The kind and priority of any lien securing the issue, as well
as a brief identification of the principal properties subject to
each lien.
3. Subordination of the rights of holders of the securities to
other security holders or creditors. If the securities are
designated in their title as subordinated, give the aggregate amount
of outstanding indebtedness as of the most recent practicable date
that is senior to the subordinated debt and briefly describe any
limitations on the issuance of additional senior indebtedness, or
state that there is no limitation.
4. Information about provisions restricting the declaration of
dividends or requiring the creation or maintenance of any reserves
or of any ratio of assets or requiring the maintenance of
properties.
5. Information about provisions permitting or restricting the
issuance of additional securities, the withdrawal of cash deposited
against the issuance of additional securities, the incurring of
additional debt, the release or substitution of assets securing the
issue, the modification of the terms of the security and similar
provisions. You do not need to describe provisions permitting the
release of assets upon the deposit of equivalent funds or the pledge
of equivalent property, the release of property no longer required
in the business, obsolete property or property taken by eminent
domain, the application of insurance monies, and similar provisions.
6. The general type of event that constitutes a default and
whether or not you are required to provide periodic evidence of the
absence of a default or of compliance with the terms of the
indenture.
7. Modification of the terms of the security or the rights of
security holders.
8. If the rights evidenced by the securities you are registering
are or may be materially limited or qualified by the rights of any
other authorized class of securities, provide enough information
about the other class of securities so investors will understand the
rights evidenced by the securities you are registering. You do not
need to provide information about the other class of securities if
all of it will be retired, as long as you have taken appropriate
steps to ensure that retirement will be completed on or before the
time you deliver the securities you are registering.
9. The tax effects of any ``original issue discount'' as that
term is defined in Section 1232 of the Internal Revenue Code (26
U.S.C. 1232), including cases where the debt security is being sold
in a package with another security and the allocation of the
offering price between the two securities may have the effect of
offering the debt security at an original issue discount.
10. The name and address of the trustee and the nature of any
material relationship between the trustee and you or any of your
affiliates, the percentage of the class of securities that is needed
to require the trustee to take action, and what indemnification the
trustee may require before proceeding to enforce the lien.
11. The names and addresses of the paying agents.
12. The currency or currencies in which the debt is payable. If
the debt may be paid in two or more currencies, state who has the
option to determine the currency conversion and what the basis will
be for that determination.
13. Any law or decree determining the extent to which the
securities may be serviced.
14. The consequences of any failure to pay principal, interest,
or any sinking or amortization installment.
15. If the securities are guaranteed, the name of the guarantor
and a brief outline of the contract of guarantee.
B. Warrants and Rights. If the securities you are registering
are being offered pursuant to warrants or rights, provide the
following information, in addition to the description of the
securities the warrants or rights represent.
1. The amount of securities called for by the warrants or
rights.
2. The period during and the price at which the warrants or
rights are exercisable.
3. The amount of warrants or rights outstanding.
4. Provisions for changes or adjustments in the exercise price.
5. Any other material terms of the warrants or rights.
C. Other Securities. If you are registering securities other
than equity, debt, warrants or rights, briefly describe the rights
evidenced by the securities you are registering. The description
should be comparable in detail to the description you would be
required to provide for equity, debt, warrants or rights.
D. American Depositary Shares. If you are registering American
depositary shares represented by American depositary receipts,
provide the following information.
1. Give the name of the depositary and the address of its
principal executive office.
2. Give the title of the American depositary receipts and
identify the deposited security. Briefly describe the American
depositary shares, including provisions, if any, regarding:
(a) The amount of deposited securities represented by one unit
of American depositary receipts;
(b) Any procedure for voting the deposited securities;
(c) The procedure for collecting and distributing dividends;
(d) The procedures for transmitting notices, reports and proxy
soliciting material;
(e) The sale or exercise of rights;
(f) The deposit or sale of securities resulting from dividends,
splits or plans of reorganization;
(g) Amendment, extension or termination of the deposit
arrangements;
(h) The rights that holders of American depositary receipts have
to inspect the books of the depositary and the list of receipt
holders;
(i) Any restrictions on the right to transfer or withdraw the
underlying securities; and
(j) Any limitation on the depositary's liability.
3. Describe all fees and charges that a holder of American
depositary receipts may
[[Page 53923]]
have to pay, either directly or indirectly. Indicate the type of
service, the amount of the fees or charges and to whom the fees or
charges are paid. In particular, provide information about any fees
or charges in connection with (a) depositing or substituting the
underlying shares; (b) receiving or distributing dividends; (c)
selling or exercising rights; (d) withdrawing an underlying
security; and (e) transferring, splitting or grouping receipts.
Provide information about the depositary's right, if any, to collect
fees and charges by offsetting them against dividends received and
deposited securities.
Instructions to Item 12:
1. You do not need to provide the information called for by this
item if you are using this form as an annual report.
2. You do not need to include any information in a registration
statement or prospectus in response to Item 305(a)(2) of the Trust
Indenture Act of 1939, 15 U.S.C. 77aaa et seq., as amended, if the
information is not otherwise required by this Item.
3. If you are registering convertible securities or stock
purchase warrants that are subject to redemption or call, include
the following information in your description of the securities.
a. Whether holders will forfeit the right to convert or purchase
the securities unless they exercise that right before the date
specified in the notice of redemption or call;
b. The expiration or termination date of the warrants;
c. The kinds, frequency and timing of the redemption or call
notice, including the cities or newspapers in which you will publish
the notice; and
d. In the case of bearer securities, that investors are
responsible for making arrangements to avoid losing the right to
convert or purchase if there is a redemption or call, such as by
reading the newspapers in which you will publish the redemption or
call notice.
4. When you are required to state the title of the securities,
the title must indicate the type and general character of the
securities.
Part II
Item 13. Defaults, Dividend Arrearages and Delinquencies
A. If there has been:
1. A material default in the payment of principal, interest, a
sinking or purchase fund installment, or
2. Any other material default not cured within 30 days, relating
to indebtedness of you or any of your significant subsidiaries, and
if the amount of the indebtedness exceeds 5% of your total assets on
a consolidated basis, identify the indebtedness and state the nature
of the default. If the default falls under paragraph A.1 above,
state the amount of the default and the total arrearage on the date
you file this report.
B. If the payment of dividends is in arrears or there has been
any other material delinquency not cured within 30 days, relating
to:
1. Any class of your preferred stock which is registered or
ranks prior to any class of registered securities, or
2. Any class of preferred stock of your significant
subsidiaries, state the title of the class and the nature of the
arrearage or delinquency. If the payment of dividends is in arrears,
state the amount of this arrearage and the total arrearage on the
date you file this report.
Instructions to Item 13:
1. If you previously have reported information called for by
this item in a report on Form 6-K, you may incorporate the
information by specifically referring in this report to the previous
report.
2. You do not have to provide the information called for by this
Item if the default or arrearage relates to a class of securities
held entirely by or for the account of you or any of your wholly
owned subsidiaries.
Instructions to Item 13.A: This requirement only applies to
events that have become defaults under the governing instruments,
i.e., after any grace period has expired and any notice requirements
have been satisfied.
Item 14. Material Modifications to the Rights of Security Holders and
Use of Proceeds
A. If you or anyone else has modified materially the instruments
defining the rights of holders of any class of registered
securities, identify that class of securities and briefly describe
the general effect of the modification on the rights of those
security holders.
B. If you or anyone else has modified materially or qualified
the rights evidenced by any class of registered securities by
issuing or modifying any other class of securities, briefly describe
the general effect of the issuance or modification on the rights of
holders of the registered securities.
C. If you or anyone else has withdrawn or substituted a material
amount of the assets securing any class of your registered
securities, provide the following information.
1. Give the title of the securities.
2. Identify and describe briefly the assets withdrawn or
substituted.
3. Indicate the provisions in the underlying indenture, if any,
that authorize the withdrawal or substitution.
D. If the trustees or paying agents for any registered
securities have changed during the last financial year, give the
names and addresses of the new trustees or paying agents.
E. Use of proceeds. If required pursuant to Rule 463 under the
Securities Act, report the use of proceeds after the effective date
of the first Securities Act registration statement filed by you or
your predecessor. You must report the use of proceeds:
(i) On the first Form 20-F annual report you file pursuant to
sections 13(a) and 15(d) of the Exchange Act after the Securities
Act registration statement is effective, and
(ii) On each of your subsequent Form 20-F annual reports filed
pursuant to sections 13(a) and 15(d) of the Exchange Act.
You may cease reporting the use of proceeds on the later of the
date you disclose application of all the offering proceeds, or the
date you disclose termination of the offering. If a required report
on the use of proceeds relates to the first effective registration
statement of your predecessor, you must provide the report.
Provide the information required by paragraphs E.1 through E.4
below in the first Form 20-F annual report you file pursuant to
sections 13(a) and 15(d) of the Exchange Act. In subsequent Form 20-
F annual reports, you only need to provide the information required
by paragraphs E.2 through E.4 if that information has changed since
the last Form 20-F annual report you filed.
1. The effective date of the Securities Act registration
statement for which the use of proceeds information is being
disclosed and the Commission file number assigned to that
registration statement;
2. The offering date, if the offering has commenced, or an
explanation of why it has not commenced;
3. If the offering terminated before any securities were sold,
an explanation for the termination; and
4. If the offering did not terminate before any securities were
sold, disclose:
(a) Whether the offering has terminated and, if so, whether it
terminated before all of the registered securities were sold;
(b) The name(s) of the managing underwriter(s), if any;
(c) The title of each class of securities registered and, if a
class of convertible securities is being registered, the title of
any class of securities into which the convertible securities may be
converted;
(d) For each class of securities (other than a class into which
a class of registered convertible securities may be converted
without additional payment to the issuer) the following information,
provided for both the account of the issuer and the account(s) of
any selling shareholder(s): the amount registered, the aggregate
price of the offering amount registered, the amount sold and the
aggregate offering price of the amount sold to date;
(e) From the effective date of the Securities Act registration
statement to the ending date of the reporting period, the amount of
expenses incurred for the issuer's account in connection with the
issuance and distribution of the registered securities for
underwriting discounts and commissions, finders' fees, expenses paid
to or for underwriters, other expenses and total expenses. Indicate
if a reasonable estimate for the amount of expenses is provided
instead of the actual amount of the expense. Indicate whether the
payments were:
(i) Direct or indirect payments to directors, officers, general
partners of the issuer or their associates; to persons owning 10% or
more of any class of the issuer's equity securities; and to
affiliates of the issuer; or
(ii) Direct or indirect payments to others;
(f) The net offering proceeds to the issuer after deducting the
total expenses described in paragraph E.4(e) of this Item;
(g) From the effective date of the Securities Act registration
statement to the ending date of the reporting period, the amount of
net offering proceeds to the issuer used for construction of plant,
building and facilities; purchase and installation of machinery and
equipment; purchases of real estate; acquisition of other
business(es); repayment of indebtedness; working capital; temporary
investments (which should be specified); and any other purposes for
which at least 5% of
[[Page 53924]]
the issuer's total offering proceeds or $100,000 (whichever is less)
has been used (which should be specified). Indicate if a reasonable
estimate for the amount of net offering proceeds applied instead of
the actual amount of net offering proceeds used. Indicate whether
such payments were:
(i) Direct or indirect payments to directors, officers, general
partners of the issuer or their associates; to persons owning 10% or
more of any class of the issuer's equity securities; and to
affiliates of the issuer; or
(ii) Direct or indirect payments to others; and
(h) If the use of proceeds in paragraph E.4(g) of this Item
represents a material change in the use of proceeds described in the
prospectus, the issuer should describe briefly the material change.
Instruction to Item 14: If you previously have reported
information called for by this item in a report on Form 6-K, you may
incorporate the information by specifically referring in this report
to the previous report.
Instruction to Item 14.B: You should report any working capital
restrictions or other limitations on the payment of dividends.
Instruction to Item 14.C: You do not have to provide the
information called for by Item 14.C. if the withdrawal or
substitution is made pursuant to the terms of an indenture qualified
under the Trust Indenture Act of 1939.
Item 15. [Reserved]
Item 16. [Reserved]
Part III
[See General Instruction E(c)]
* * * * *
Item 18. Financial Statements
Provide the following information:
(a) All of the information required by Item 17 of this Form, and
(b) All other information required by U.S. generally accepted
accounting principles and Regulation S-X unless such requirements
specifically do not apply to the registrant as a foreign issuer.
However, information may be omitted (i) for any period in which net
income has not been presented on a basis reconciled to United States
generally accepted accounting principles, or (ii) if the financial
statements are furnished for a business acquired or to be acquired
pursuant to Sec. 210.3-05 or less-than-majority-owned investee
pursuant to Sec. 210.3-09 of this chapter.
Instruction to Item 18: All of the instructions to Item 17 also
apply to this Item, except Instruction 3 to Item 17, which does not
apply.
Item 19. Exhibits
List all exhibits filed as part of the registration statement or
annual report, including exhibits incorporated by reference.
Instruction to Item 19: If you incorporate any financial
statement or exhibit by reference, include the incorporation by
reference in the list required by this Item. Note Rule 1b2-23
regarding incorporation by reference. Note also the Instructions to
Exhibits at the end of this Form.
Signatures
The registrant hereby certifies that it meets all of the
requirements for filing on Form 20-F and that it has duly caused and
authorized the undersigned to sign this registration statement
[annual report] on its behalf.
----------------------------------------------------------------------
(Registrant)
----------------------------------------------------------------------
(Signature)*
Date:------------------------------------------------------------------
----------------------------------------------------------------------
*Print the name and title of the signing officer under this
signature.
Instructions as to Exhibits
File the exhibits listed below as part of an Exchange Act
registration statement or report. Rule 12b-32 explains the
circumstances in which you may incorporate exhibits by reference.
Rule 24b-2 explains the procedure to be followed in requesting
confidential treatment of information required to be filed.
Previously filed exhibits may be incorporated by reference. If
any previously filed exhibits have been amended or modified, file
copies of the amendment or modification or copies of the entire
exhibit as amended or modified.
Include an exhibit index in each registration statement or
report you file, immediately preceding the exhibits you are filing.
The exhibit index must list each exhibit according to the number
assigned to it below. If an exhibit is incorporated by reference,
note that fact in the exhibit index. The pages of the manually
signed original registration statement should be numbered in
sequence, and the exhibit index should give the page number in the
sequential numbering system where each exhibit can be found.
1. The articles of incorporation or association and bylaws, or
comparable instruments, as currently in effect and any amendments to
those documents. If you are filing an amendment, file a complete
copy of the document as amended.
2. (a) All instruments defining the rights of holders of the
securities being registered. You do not have to file instruments
that define the rights of participants, rather than security
holders, in an employee benefit plan.
(b) All instruments defining the rights of holders of long-term
debt issued by you or any subsidiary for which you are required to
file consolidated or unconsolidated financial statements, except
that you do not have to file:
(i) Any instrument relating to long-term debt that is not being
registered on this registration statement, if the total amount of
securities authorized under that instrument does not exceed 10% of
the total assets of you and your subsidiaries on a consolidated
basis and you have filed an agreement to furnish us a copy of the
instrument if we request it;
(ii) Any instrument relating to a class of securities if, on or
before the date you deliver the securities being registered, you
take appropriate steps to assure that class of securities will be
redeemed or retired; or
(iii) Copies of instruments evidencing script certificates for
fractions of shares.
(c) A copy of the indenture, if the securities being registered
are or will be issued under an indenture qualified under the Trust
Indenture Act of 1939. Include a reasonably itemized and informative
table of contents and a cross-reference sheet showing the location
in the indenture of the provisions inserted pursuant to sections 310
through 318(a) inclusive of the Trust Indenture Act.
3. Any voting trust agreements and any amendments to those
agreements.
4. (a) Every contract that is material to you and (i) is to be
performed in whole or in part on or after the date you file the
registration statement or (ii) was entered into not more than two
years before the filing date. Only file a contract if you or your
subsidiary is a party or has succeeded to a party by assumption or
assignment or if you or your subsidiary has a beneficial interest.
(b) If a contract is the type that ordinarily accompanies the
kind of business you and your subsidiaries conduct, we will consider
it have been made in the ordinary course of business and will not
require you to file it, unless it falls within one or more of the
following categories. Even if it falls into one of these categories,
you do not have to file the contract if it is immaterial in amount
or significance.
(i) Any contract to which (A) directors, (B) officers, (C)
promoters, (D) voting trustees or (E) security holders named in the
registration statement are parties, unless the contract involves
only the purchase or sale of current assets that have a determinable
market price and the assets are purchased or sold at that price;
(ii) Any contract upon which your business is substantially
dependent. Examples of these types of contracts might be (a)
continuing contracts to sell the major part of your products or
services or to purchase the major part of your requirement of goods,
services or raw materials, or (b) any franchise or license or other
agreement to use a patent, formula, trade secret, process or trade
name if your business depends to a material extent on that patent,
formula, trade secret processor trade name;
(iii) Any contract for the acquisition or sale of any property,
plant or equipment if the consideration exceeds 15% of your fixed
assets on a consolidated basis; or
(iv) Any material lease under which you hold part of the
property described in the registration statement.
(c) We will consider any management contract or compensatory
plan, contract or arrangement in which your directors or members of
your administrative, supervisory or management bodies participate to
be material. File these management contracts or compensatory plans,
contracts or arrangements unless they fall into one of the following
categories:
(i) Ordinary purchase and sale agency agreements;
(ii) Agreements with managers of stores in a chain or similar
organization;
(iii) Contracts providing for labor or salesmen's bonuses or for
payments to a class of security holders in their capacity as
security holders;
(iv) Any compensatory plan, contract or arrangement that is
available by its terms to
[[Page 53925]]
employees, officers or directors generally, if the operation of the
plan, contract or arrangement uses the same method to allocate
benefits to management and nonmanagment participants; and
(v) Any compensatory plan, contract or arrangement if you are
furnishing compensation information on an aggregate basis as
permitted by Item 6.B.
If you are filing compensatory plans, contracts or arrangements,
only file copies of the plans and not copies of each individual's
personal agreement under the plans, unless there are particular
provisions in a personal agreement that should be filed as an
exhibit so investors will understand that individual's compensation
under the plan.
5. A list showing the number and a brief identification of each
material foreign patent for an invention not covered by a United
States patent, but only if we request you to file the list.
6. A statement explaining in reasonable detail how earnings per
share information was calculated, unless the computation is clear
from material contained in the registration statement or report.
7. A statement explaining in reasonable detail how any ratio of
earning to fixed charges, any ratio of earnings to combined fixed
charges and preferred stock dividends or any other ratios in the
registration statement or report were calculated.
8. A list of all your subsidiaries, their jurisdiction of
incorporation and the names under which they do business. You may
omit the names of subsidiaries that, in the aggregate, would not be
a ``significant subsidiary'' as defined in rule 1-02(w) of
Regulation S-X as of the end of the year covered by the report. You
may omit the names of multiple wholly owned subsidiaries carrying on
the same line of business, such as chain stores or service stations,
if you give the name of the immediate parent company, the line of
business and the number of omitted subsidiaries broken down by U.S.
and foreign operations.
9. Statement pursuant to the instructions to Item 8.A.4,
regarding the financial statements filed in registration statements
for initial public offerings of securities.
10. (a) Any additional exhibits you wish to file as part of the
registration statement or report, clearly marked to indicate their
subject matter, and (b) any document or part of a document
incorporated by reference in this filing if it is not otherwise
required to be filed or is not a Commission filed document
incorporated in a Securities Act registration statement.
* * * * *
PART 260--GENERAL RULES AND REGULATIONS, TRUST INDENTURE ACT OF
1939
51. The authority citation for part 260 continues to read as
follows:
Authority: 15 U.S.C. 77eee, 77ggg, 77nnn, 78sss, 78ll(d), 80b-3,
80b-4, and 80b-11.
Sec. 260.0-11 [Amended]
51. Amend Sec. 260.0-11 by removing in paragraph (b)(2) the words
`` Item 9 of Form 20-F (Sec. 249.220f of this chapter), management's
discussion and analysis of financial condition and results of
operations,'' and adding, in their place, the words `` Item 5 of Form
20-F (Sec. 249.220f of this chapter), ``Operating and Financial Review
and Prospects,''''; and by removing in paragraph (c)(3) the words
``Item 9 of Form 20-F'' and adding, in their place, the words `` Item 5
of Form 20-F''.
By the Commission.
Margaret H. McFarland,
Depuptpy Secretary.
[FR Doc. 99-25699 Filed 10-4-99; 8:45 am]
BILLING CODE 8010-01-P