Unravel the Mysteries of the Required SEC Filings of

Foreign Companies

• Mary M. Ames, Director of Library Services, Edwards & Angell, LLP

• David G. Molenda, SEC Research Manager, CCH Washington Service Bureau 7-14-04

Securities Act of 1933 (“33 Act”)

Requires issuers to file Registration Statements prior to offering securities to the public (“Offering Registration”).

Securities Act of 1933, File Numbers:

The first 1933 Act file no. was 2-00001.

File no. 2-99999 was assigned in 1985.

File no. 033-00001 was assigned next.

File no. 033-99998 was assigned in 1996.

File no. 333-00002 was assigned next.

File No. 333-99996 was assigned in 2002.

Subsequent file numbers now have another digit, i.e. file no. 333-100006.

Securities Exchange Act of 1934 (“34 Act”)

Requires issuers to file a Registration Statement prior to listing securities on a national exchange or trading securities over-the-counter (“Exchange Registration”)

The 34 Act also requires periodic reporting.

Securities Exchange Act of 1934

The format of a 1934 Act file number is a five digit number (inclusive of leading zeros),

preceded by numeral 1 if the company is listed on a national exchange,

or preceded by a zero if the company trades over-the-counter (“OTC”).

Thus, for example, 1-00022 or 0-12435.

Definition of "Foreign Government"

The term foreign government means the government of any foreign country or of any political subdivision of a foreign country.

Form Types Pertaining to Foreign Governments

• Schedule B – form used by foreign governments or political subdivisions thereof to register securities under the Securities Act of 1933.

• Form 18 – used for registration on a national securities exchange of securities of foreign governments or political subdivisions thereof.

• Form 18-K – annual report form of foreign governments or political subdivisions thereof.

Definition of "Foreign Issuer"

The term foreign issuer means any issuer which is a foreign government, a national of any foreign country, or a corporation or other organization incorporated or organized under the laws of any foreign country.

Definition of "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 issuer's outstanding voting securities are directly or indirectly held of record by residents of the United States; and…

"Foreign Private Issuer" (continued)

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.

Form S-1 Form F-1

• Basic registration form.

• Basic registration form for certain foreign private issuers.

Form S-1MEF Form F-1MEF

• A new registration filed under Rule 462(b) to add up to an additional 20% of securities to a prior related registration statement filed on Form S-1.

• A new registration filed under Rule 462(b) to add up to an additional 20% of securities to a prior related registration statement filed on Form F-1.

Form S-2 Form F-2

• Simplified optional form of registration.

• Permits incorporation by reference from previous periodic reports filed under the 1934 act.

• Simplified optional form of registration for certain foreign private issuers.

Form S-2 Eligibility Requirements

• Filer has been required to file under the 1934 Act for a minimum of three years.

• All required reports have been timely filed in the past 12 months.

Form F-2 Eligibility Requirements

• For use by certain foreign private issuers that have an equity float of at least $75M worldwide,

• or are registering non-convertible “investment grade securities,”

• or have reported under the 1934 Act for a minimum of three years.

Form S-3 Form F-3

• Most simplified registration form.

• Filer must meet eligibility tests relating to both the registrant and to the transaction.

• Most simplified registration form for certain foreign private issuers.

Form S-4 Form F-4

• Form used to register securities in connection with business combinations and exchange offers.

• Form used to register securities in connection with business combinations and exchange offers involving certain foreign private issuers.

Other Short-Form (MEF) Registrationswhich increase the size of the offering:

• S-2MEF

• S-3MEF

• S-4MEF

• S-11MEF

• F-2MEF

• F-3MEF

• F-4MEF

• S-BMEF

Form S-6 Form F-6

• Form used to register securities issued by unit investment trusts.

• Form used to register depositary shares represented by American Depositary Receipts (“ADRs”) issued by a depositary against the deposit of securities of a foreign issuer.

Advantages of ADR Offerings

• Allows holders to receive dividends in dollars rather than the currency of the issuer’s home jurisdiction.

• Potentially creates liquidity as some institutional investors may only be able to invest in dollar denominated or exchange-traded securities.

• Allow investors to buy and sell securities that trade and sell under U.S. settlement procedures.

Registration Forms Pertaining to Canadian Issuers

• F-7 Relates to rights offers extended to U.S. shareholders.• F-8 Registers securities of Canadian issuers offered in

exchange offers or business combination.• F-9 Registers investment grade debt or preferred

securities.• F-10 May be used by eligible issuers for any securities

and acts as a wrap-around for the Canadian offering document, but requires US GAAP.

• F-80 Registers securities of Canadian issuers offered in exchange offers or business combination.

Other “S” Series Registration Forms

• S-8 Securities to be offered to an issuer’s employees pursuant to benefit plans or agreements.

• S-11 Securities of certain real estate companies, including real estate investment trusts (REITs).

• S-20 Registration of standardized options, requires a definitive disclosure document with respect to the options class.

• S-B Registration (Schedule B) by foreign governments or political subdivisions thereof.

Optional Forms Available to Small Business Issuers

• SB-1 Limited to $10M of securities, not only for the transaction being registered but for offerings in any continuous 12 month period.

• SB-2 Requires less disclosure than Form S-1, but more comprehensive than Form SB-1.

• SB-1MEF and SB-2MEF Available for offering up to an additional 20% of the securities.

1934 Act Registration Forms

• Form 10 General form to register securities of issuers for which no other form is prescribed. Other forms are prescribed for Foreign Private Issuers.

• Form 10SB General form for small business issuers (limited to U.S. & Canadian companies).

• Form 8-A Optional short form available to 1934 Act registrants, or for use with a concurrent initial public offering under the 1933 Act.

Integrated 34 Act Form Types

• Form 20-F Used both as a Registration Statement to register securities of foreign private issuers or as an Annual Report.

• Form 40-F Used both as a Registration Statement of eligible Canadian foreign private issuers or as an Annual Report of such issuers (serves as a “wraparound” for the company’s Canadian public reports).

34 Act Forms for Periodic Reports

• Form 10-K Annual Report form providing comprehensive overview, audited financial statements, and cumulative list of exhibits.

• Form 10-Q Quarterly financial report, includes unaudited financial statements.

• Form 8-K Current report for material events in between reporting periods.

Form 10-K variationsForm 10-KSB – Form used by a qualified small business, does not include Item 7A, Item 9 or Item 14 of Form 10-K. (Items renumbered 1 to 13). Form 10-KT – Transitional financial report for companies changing fiscal year end. Form 10-K405 – Indicates the company was in violation of Section 16 (an officer or director failed to file a Form 3, 4 or 5 on time). Otherwise, content same as Form 10-K. Form NT 10-K – Also known as Form 12b-25, indicates a Form 10-K will be filed late. Form 10-K/A (or 10-KSB/A, or 10-K405/A) – indicates Amendment to Form 10-K.

Form 6-K Report used by certain foreign private issuers to furnish information:

(i) required to be made public in the country of its domicile;

(ii) filed with and made public by a foreign stock exchange on which its securities are traded; or

(iii) distributed to security holders.

Obligation to Register under the 34 Act:

• listing of securities on a national exchange or trading securities over-the-counter, a voluntary 1934 Act registration under Section 12(b),

• securities of foreign private issuers that are widely-held, in general over 500 persons worldwide (and more than 300 in the U.S.) and assets > $10M, a required 1934 Act registration under Section 12(g),

• 1933 Act registrants may incur periodic reporting obligations under 1934 Act Section 15(d).

Rule 12g3-2 “Information Supplying” Exemption

• Available if fewer than 300 holders of the foreign security class reside in the U.S.

• Not available if the issuer’s securities are listed on a U.S. exchange or is otherwise subject to 1934 Act requirements.

• Must file with the SEC whatever is required in the home jurisdiction, the local stock exchange where the securities trade, or has been distributed to its security holders.

Advantages to 12g3-2 Exemption

• Avoid registration under the 1934 Act and filing of periodic reports.

• Enable offering of ADRs, an over-the-counter program that falls short of a formal listing, and thus does not trigger compliance with U.S. rules (U.S. GAAP, Sarbanes-Oxley Act).

Form 8-K Contents

Item 1. Changes in Control of Registrant

Item 2. Acquisition or Disposition of Assets

Item 3. Bankruptcy or Receivership

Item 4. Changes in Certifying Accountant

Item 5. Other Events & Regulation FD Disclosure

Item 6. Resignations of Directors

Form 8-K Contents (continued)

Item 7. Financial Statements

Item 8. Change in Fiscal Year

Item 9. Regulation FD Disclosure

Item 10. Changes or Waivers to Code of Ethics

Item 11. Notice of Pension Fund Blackout Period

Item 12. Results of Operations and Financial Condition (material information regarding an annual or quarterly period just ended.)

Form 8-K Contents (as of 8/23/04)

Item 1.01 Entry Into Material Agreements

Item 1.02 Termination of Material Agreement

Item 1.03 Bankruptcy

Item 2.01 Acquisition or Disposition of Assets

Item 2.02 Results of Operations

Item 2.03 Financial Obligations – Off-Balance Sheet

Item 2.04 Acceleration of Financial Obligations

Form 8-K Contents (as of 8/23/04)

Item 2.05 Exit or Disposal Activities

Item 2.06 Material Impairments

Item 3.01 Notice of Delisting or Noncompliance

Item 3.02 Unregistered Sale of Securities

Item 3.03 Modification of Shareholder Rights

Item 4.01 Changes of Accountants

Item 4.02 Non-Reliance on Financial Statements

Item 5.01 Change in Control

Form 8-K Contents (as of 8/23/04)

Item 5.02 Resignation of Directors or Officers

Item 5.03 By-Law Amendments/Change in FY

Item 5.04 Suspension of Trading, Employee

Benefit Plans

Item 5.05 Code of Ethics

Item 7.01 Regulation FD

Item 8.01 Voluntary Disclosure of Other Events

Item 9.01 Exhibits

Thank You!

mames@ealaw.com

molendad@cch.com

Form 10-K Contents

PART I 

Item 1. Business

Item 2. Properties

Item 3. Legal Proceedings

Item 4. Submission of Matters to a Vote of Security Holders 

PART II (financial disclosure)

  Item 5. Market for Registrant’s Common Equity and Related Stockholder Matters

Item 6. Selected Financial Data

Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations (“MD&A”)

Item 7A. Quantitative and Qualitative Disclosures About Market Risk

Item 8. Financial Statements and Supplementary Data

Item 9. Changes in and Disagreements With Accountants on Accounting and Financial Disclosure

Form 10-K Contents (continued)

PARTS III & IV (proxy disclosure, schedules & exhibits)

Item 10. Directors and Executive Officers

Item 11. Executive Compensation

Item 12. Security Ownership of Certain Beneficial Owners and Management

Item 13. Certain Relationships and Related Transactions

Item 14. Controls and Procedures

Item 15. Exhibits, Financial Statement Schedules, and Reports on Form 8-K

Item 16. Principal Accountant Fees & Services

Form 10-K Contents (continued)

Form 20-F Contents PART I 

Item 1. Identity of Directors, Senior Management and Advisors

Item 2. Offer Statistics and Expected Timetable

Item 3. Key Information

Item 4. Information on the Company

Item 5. Operating and Financial Review

Form 20-F Contents (continued) PART I continued 

Item 6. Directors, Senior Management and Employees

Item 7. Major Shareholders and Related Party Transactions

Item 8. Financial Information

Item 9. The Offer and Listing

PART I continued

  Item 10. Additional Information

Item 11. Quantitative and Qualitative Disclosures About Market Risk

Item 12. Description of Securities Other than Equity Securities

Form 20-F Contents (continued)

Form 20-F Contents (continued)

PART II 

Item 13. Defaults, Dividend Arrearages and Delinquencies

Item 14. Material Modifications to the Rights of Security Holders & Use of Proceeds

Item 15. Controls and Procedures

Item 16. [Reserved]

Form 20-F Contents (continued)

PART II 

Item 16A. Audit Committee Financial Report

Item 16B. Code of Ethics

Item 16C. Controls and Procedures

Item 16D. Exemptions from the Listing Standards for Audit Committees

Item 16E. Purchases of Equity Securities by the Issuer & Affiliated Purchasers

Form 20-F Contents (continued)

PART III 

Item 17. Financial Statements

Item 18. Financial Statements (US GAAP)

Item 19. Exhibits

Form 10-Q Contents

PART I – Financial Information 

Item 1. Financial Statements

Item 2. MD&A

Item 3. Quantitative and Qualitative Disclosures on Market Risk

Item 4. Controls and Procedures

Form 10-Q Contents (continued)

PART II – Other Information 

Item 1. Legal ProceedingsItem 2. Changes in Securities and

Use of ProceedsItem 3. Defaults on Senior SecuritiesItem 4. Submission of Matters to a

Vote of Security HoldersItem 5. Other Information Item 6. Exhibits & Reports on Form 8-K