[Federal Register: September 10, 2008 (Volume 73, Number 176)] [Rules and Regulations] [Page 52751-52769] From the Federal Register Online via GPO Access [wais.access.gpo.gov] [DOCID:fr10se08-19] [[Page 52751]] ----------------------------------------------------------------------- Part III Securities and Exchange Commission ----------------------------------------------------------------------- 17 CFR Parts 239, 240 and 249 Exemption From Registration Under Section 12(G) of the Securities Exchange Act of 1934 for Foreign Private Issuers; Final Rule [[Page 52752]] ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION 17 CFR Parts 239, 240 and 249 [Release No. 34-58465; International Series Release No. 1309; File No. S7-04-08] RIN 3235-AK04 Exemption From Registration Under Section 12(G) of the Securities Exchange Act of 1934 for Foreign Private Issuers AGENCY: Securities and Exchange Commission. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: We are adopting amendments to the rule that exempts a foreign private issuer from having to register a class of equity securities under Section 12(g) of the Securities Exchange Act of 1934 (``Exchange Act'') based on the submission to the Commission of certain information published by the issuer outside the United States. The exemption allows a foreign private issuer to have its equity securities traded in the U.S. over-the-counter market without registration under Section 12(g). The adopted rule amendments will eliminate the current written application and paper submission requirements under Rule 12g3-2(b) by automatically exempting from Exchange Act Section 12(g) a foreign private issuer that meets specified conditions. Those conditions will require an issuer to maintain a listing of its equity securities in its primary trading market located outside the United States, and require it to publish electronically in English specified non-United States disclosure documents. As a result, the adopted amendments should make it easier for U.S. investors to gain access to a foreign private issuer's material non-United States disclosure documents and thereby to make better informed decisions regarding whether to invest in that issuer's equity securities through the over-the-counter market in the United States or otherwise. As is currently the case, issuers must continue to register their securities under the Exchange Act to have them listed on a national securities exchange or traded on the OTC Bulletin Board. DATES: Effective Date: October 10, 2008. FOR FURTHER INFORMATION CONTACT: Elliot Staffin, Special Counsel, at (202) 551-3450, in the Office of International Corporate Finance, Division of Corporation Finance, U.S. Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-3628. SUPPLEMENTARY INFORMATION: We are adopting amendments to Commission Rules 12g3-2 \1\ and 15c2-11 \2\ under the Exchange Act,\3\ Forms 15F,\4\ 40-F,\5\ and 6-K \6\ under the Exchange Act, and Form F-6 \7\ under the Securities Act of 1933 (``Securities Act'').\8\ --------------------------------------------------------------------------- \1\ 17 CFR 240.12g3-2. \2\ 17 CFR 240.15c2-11. \3\ 15 U.S.C. 78a et seq. \4\ 17 CFR 249.324. \5\ 17 CFR 249.240f \6\ 17 CFR 249.306. \7\ 17 CFR 239.36. \8\ 15 U.S.C. 77a et seq. --------------------------------------------------------------------------- Table of Contents I. Executive Summary and Background A. Introduction 1. Current Rule 12g3-2(b) Requirements 2. Proposed Rule 12g3-2 Amendments B. Principal Comments Regarding the Proposed Rule Amendments C. Summary of the Adopted Rule Amendments II. Discussion A. Foreign Listing Condition 1. The Primary Trading Market Definition 2. Elimination of the Proposed 20 Percent Trading Volume Condition 3. Treatment of Compensatory Stock Options B. Non-Exchange Act Reporting Condition 1. Non-Reporting Issuers 2. Deregistered Issuers C. Electronic Publishing of Non-U.S. Disclosure Documents 1. Electronic Publishing Requirement To Claim Exemption 2. Electronic Publishing Requirement To Maintain Exemption 3. English Translation Requirement D. Elimination of the Written Application Requirement E. Duration of the Amended Rule 12g3-2(b) Exemption F. Elimination of the Successor Issuer Prohibition G. Elimination of the Rule 12g3-2(b) Exception for MJDS Filers H. Elimination of the ``Automated Inter-Dealer Quotation System'' Prohibition and Related Grandfathering Provision I. Revisions to Form F-6 J. Amendment of Exchange Act Rule 15c2-11 K. Transition Periods 1. Regarding Section 12 Registration 2. Regarding Processing of Paper Submissions III. Paperwork Reduction Act A. Rule 12g3-2(b) Submissions or Publications B. Form F-6 IV. Cost-Benefit Analysis A. Expected Benefits B. Expected Costs V. Consideration of Impact on the Economy, Burden on Competition and Promotion of Efficiency, Competition and Capital Formation VI. Regulatory Flexibility Act Certification VII. Statutory Basis and Text of Rule Amendments I. Executive Summary and Background A. Introduction Exchange Act Rule 12g3-2(b) \9\ exempts a foreign private issuer \10\ from Section 12(g) registration \11\ if, among other requirements, the issuer furnishes to the Commission on an ongoing basis information it has made public or is required to make public under the laws of its jurisdiction of incorporation, organization or domicile, pursuant to its non-U.S. stock exchange filing requirements, or that it has distributed or is required to distribute to its security holders (collectively, its ``non-U.S. disclosure documents'').\12\ The Commission adopted Rule 12g3-2(b) more than 40 years ago in order to exempt from Section 12(g) registration foreign companies that have not obtained a listing on a national securities exchange or otherwise sought a public market for their equity securities in the United States.\13\ --------------------------------------------------------------------------- \9\ 17 CFR 240.12g3-2(b). \10\ See the definition of foreign private issuer at Exchange Act Rule 3b-4(c) (17 CFR 240.3b-4(c)). \11\ When read in conjunction with Exchange Act Rules 12g-1 (17 CFR 240.12g-1) and 12g3-2(a) (17 CFR 240.12g3-2(a)), Exchange Act Section 12(g) requires an issuer to file an Exchange Act registration statement regarding a class of equity securities within 120 days of the last day of its fiscal year if, on that date, the number of its record holders is 500 or greater, the number of its U.S. resident holders is 300 or more, and the issuer's total assets exceed $10 million. \12\ Current Exchange Act Rule 12g3-2(b)(1)(iii) (17 CFR 240.12g3-2(b)(1)(iii)). \13\ Release No. 34-8066 (April 28, 1967). For additional background on the initial adoption of Rule 12g3-2(b), see Part I.A of Release No. 34-57350 (February 19, 2008), 73 FR 10102 (February 25, 2008) (``Proposing Release''). --------------------------------------------------------------------------- Acquiring the Rule 12g3-2(b) exemption enables a foreign private issuer to have its equity securities traded on a limited basis in the over-the-counter market in the United States while avoiding registration under Exchange Act Section 12(g). Typically a foreign private issuer obtains the Rule 12g3-2(b) exemption in order to have established an unlisted, sponsored or unsponsored depositary facility for its American Depositary Receipts (``ADRs'').\14\ Establishing the Rule 12g3- [[Page 52753]] 2(b) exemption also permits registered broker-dealers to fulfill their current information obligations concerning foreign private issuers' securities for which they seek to publish quotations.\15\ It further facilitates resales of an issuer's securities to qualified institutional buyers (``QIBs'') under Rule 144A.\16\ --------------------------------------------------------------------------- \14\ An ADR is a negotiable instrument that represents an ownership interest in a specified number of securities, which the securities holder has deposited with a designated bank depositary. The filing of Securities Act Form F-6 (17 CFR 239.36) is required in order to establish an ADR facility. The eligibility criteria for the use of Form F-6 include the requirement that the issuer of the deposited securities have a reporting obligation under Exchange Act Section 13(a) or have established the exemption under Rule 12g3- 2(b). See General Instruction I.A.3 of Form F-6. While required to be registered on Form F-6 under the Securities Act, ADRs are exempt from registration under Exchange Act Section 12(g) pursuant to current Exchange Act Rule 12g3-2(c) (17 CFR 240.12g3-2(c)). \15\ Brokers currently can comply with their obligations under Exchange Act Rule 15c2-11 (17 CFR 240.15c2-11) when a foreign company has established and maintains the Rule 12g3-2(b) exemption by, in part, reviewing the information furnished to the Commission under the exemption. See Rule 15c2-11(a)(4) (17 CFR 240.15c2- 11(a)(4)). \16\ See Securities Act Rule 144A(d)(4) (17 CFR 230.144A(d)(4)). --------------------------------------------------------------------------- 1. Current Rule 12g3-2(b) Requirements Currently, in order to establish the Exchange Act Rule 12g3-2(b) exemption, a foreign private issuer must initially submit to the Commission a list of its non-U.S. disclosure requirements as well as copies of its non-U.S. disclosure documents published since the beginning of its last fiscal year.\17\ An issuer must further submit its non-U.S. disclosure documents on an ongoing basis in order to maintain the exemption. The current Rule provides that an issuer need only submit copies of information that is material to an investment decision for the purpose of obtaining or maintaining the exemption.\18\ At the time of the initial submission, an issuer must also provide the Commission with the number of U.S. holders of its equity securities and the percentage held by them, as well as a brief description of how its U.S. holders acquired those shares.\19\ --------------------------------------------------------------------------- \17\ Current Exchange Act Rule 12g3-2(b)(1)(i) (17 CFR 240.12g3- 2(b)(1)(i)). Historically, an issuer has submitted its home jurisdiction materials as part of a letter application to the Commission, which has been processed through the Office of International Corporate Finance in the Division of Corporation Finance. The written application process does not apply to an issuer that receives the Rule 12g3-2(b) exemption upon the effectiveness of its Exchange Act deregistration pursuant to Exchange Act Rule 12h-6 (17 CFR 240.12h-6). \18\ Current Exchange Act Rule 12g3-2(b)(3) (17 CFR 240.12g3- 2(b)(3)). As examples of material information, the Rule lists an issuer's financial condition or results of operations, changes in its business, the acquisition or disposition of assets, the issuance, redemption or acquisition of securities, changes in management or control, the granting of options or other payment to directors or officers, and transactions with directors, officers or principal security holders. \19\ Current Exchange Act Rule 12g3-2(b)(1)(v) (17 CFR 240.12g3- 2(b)(1)(v)). An issuer must also disclose the dates and circumstances of the most recent public distribution of securities by the issuer or an affiliate. --------------------------------------------------------------------------- Rule 12g3-2(b) currently requires that an applicant submit all of the necessary non-U.S. disclosure documents and other information before the date that a registration statement would otherwise become due under Section 12(g).\20\ Once an issuer has timely submitted its application and obtained the exemption, the issuer may surpass any of the record holder, U.S. resident holder, or asset thresholds that would otherwise trigger an obligation to register a class of securities under Section 12(g) or the rules thereunder, as long as it maintains the exemption by submitting the required non-U.S. disclosure documents. --------------------------------------------------------------------------- \20\ Current Exchange Act Rule 12g3-2(b)(2) (17 CFR 240.12g3- 2(b)(2)). --------------------------------------------------------------------------- For most of its 40-year history, the Rule 12g3-2(b) disclosure regime has mandated paper submissions. Even after the adoption of EDGAR filing rules for foreign private issuers, the Commission has required a foreign private issuer to submit its initial Rule 12g3-2(b) supporting materials in paper.\21\ The Commission has based this treatment of Rule 12g3-2(b) materials on the analogous treatment of applications for an exemption from Exchange Act reporting obligations filed pursuant to Exchange Act Section 12(h).\22\ --------------------------------------------------------------------------- \21\ See Release No. 33-8099 (May 14, 2002), 67 FR 36678 (May 24, 2002). \22\ 15 U.S.C. 78l(h). We require the filing of Section 12(h) exemptive applications in paper pursuant to Regulation S-T Rule 101(c)(16) (17 CFR 232.101(c)(16)). --------------------------------------------------------------------------- In March 2007, the Commission voted to adopt amendments to Rule 12g3-2, which enable a foreign private issuer to claim the Rule 12g3- 2(b) exemption immediately upon the effectiveness of its termination of Exchange Act registration and reporting pursuant to contemporaneously adopted Exchange Act Rule 12h-6.\23\ The March 2007 amendments require an issuer that has obtained the Rule 12g3-2(b) exemption, upon the effectiveness of its termination of registration and reporting pursuant to Rule 12h-6, to publish specified non-U.S. disclosure documents in English on an ongoing basis on its Internet Web site or through an electronic information delivery system generally available to the public in its primary trading market, rather than submit that information in paper to the Commission.\24\ The amendments further permit, but do not require, a foreign private issuer that has obtained or will obtain the Rule 12g3-2(b) exemption, upon application to the Commission and not pursuant to Rule 12h-6, to publish electronically in the same manner its non-U.S. disclosure documents required to maintain the exemption.\25\ --------------------------------------------------------------------------- \23\ See Release No. 34-55540 (March 27, 2007), 72 FR 16934 (April 5, 2007). \24\ Current Exchange Act Rule 12g3-2(e) (17 CFR 240.12g3-2(e)). \25\ Current Exchange Act Rule 12g3-2(f) (17 CFR 240.12g3-2(f)). --------------------------------------------------------------------------- The March 2007 amendments further clarified the English translation requirements under Rule 12g3-2(b).\26\ The amendments provide that, when electronically publishing its non-U.S. disclosure documents required to maintain the Rule 12g3-2(b) exemption, at a minimum, a foreign private issuer must electronically publish English translations of the following documents if in a foreign language: --------------------------------------------------------------------------- \26\ Current Exchange Act Rule 12g3-2(b)(4) (17 CFR 240.12g3- 2(b)(4)) provides that copies furnished to the Commission of press releases and any materials distributed directly to security holders must be in English, and states that English summaries and versions may be used instead of English translations. However, the rule does not specify what other documents must be translated fully into English, and when summaries or versions may be used. --------------------------------------------------------------------------- Its annual report, including or accompanied by annual financial statements; Interim reports that include financial statements; Press releases; and All other communications and documents distributed directly to security holders of each class of securities to which the exemption relates.\27\ --------------------------------------------------------------------------- \27\ Note 1 to Current Exchange Act Rule 12g3-2(e). --------------------------------------------------------------------------- 2. Proposed Rule 12g3-2 Amendments In February 2008, we proposed amendments to Rule 12g3-2(b) in order to adapt that exemptive regime to the several significant developments occurring since its initial adoption four decades ago.\28\ Those developments include the increased globalization of securities markets, advances in information technology, and the increased use of ADR facilities by foreign companies to trade their securities in the United States, which have multiplied the number of foreign companies engaged in cross-border activities, as well as increased the amount of U.S. investor interest in the securities of foreign companies. Just as those developments led us to re-evaluate and revise the Commission rules governing when a foreign private issuer may terminate its Exchange Act registration and reporting obligations, so those same factors have led us to reconsider as well the Commission rules that determine when a foreign private issuer must enter the Section 12(g) registration regime. --------------------------------------------------------------------------- \28\ Release No. 34-57350. --------------------------------------------------------------------------- We proposed to amend Exchange Act Rule 12g3-2 to permit a foreign private issuer to claim the Rule 12g3-2(b) exemption, without having to submit an application to, or otherwise notify, the Commission, as long as: [[Page 52754]] The issuer is not required to file or furnish reports under Exchange Act Section 13(a) \29\ or 15(d); --------------------------------------------------------------------------- \29\ 15 U.S.C. 78m(a). --------------------------------------------------------------------------- The issuer currently maintains a listing of the subject class of securities on one or more exchanges in a foreign jurisdiction that, either singly or together with the trading of the same class of the issuer's securities in another foreign jurisdiction, constitutes the primary trading market for those securities; Either: [cir] The average daily trading volume (``ADTV'') of the subject class of securities in the United States for the issuer's most recently completed fiscal year has been no greater than 20 percent of the average daily trading volume of that class of securities on a worldwide basis for the same period; or [cir] The issuer has terminated its registration of a class of securities under Exchange Act Section 12(g), or terminated its obligation to file or furnish reports under Exchange Act Section 15(d), pursuant to Exchange Act Rule 12h-6; and Unless claiming the exemption in connection with or following its recent Exchange Act deregistration, the issuer has published specified non-U.S. disclosure documents, required to be made public from the first day of its most recently completed fiscal year, in English on its Internet Web site or through an electronic information delivery system generally available to the public in its primary trading market. As proposed, a foreign private issuer that met the above requirements would be immediately exempt from Exchange Act registration under Rule 12g3-2(b) even if, on the last day of its most recently completed fiscal year, it exceeded the asset and shareholder thresholds for Section 12(g) registration, and although the 120-day window for filing a registration statement under Section 12(g) had elapsed. Further, as proposed, an issuer could immediately claim the Rule 12g3- 2(b) exemption upon the effectiveness of, or following its recent Exchange Act deregistration, whether pursuant to the older exit rules of Rule 12g-4 or 12h-3,\30\ or Rule 12h-6, or the suspension of its reporting obligations under Section 15(d),\31\ if it met the above requirements other than the electronic publication condition for its most recently completed fiscal year. --------------------------------------------------------------------------- \30\ 17 CFR 240.12g-4 or 240.12h-3. Both Rules 12g-4 and 12h-3 permit an issuer to exit the Exchange Act reporting regime following the filing of a Form 15 (17 CFR 249.323), which certifies that the issuer has fewer than 300 record holders or less than 500 record holders and total assets not exceeding $10 million on the last day of each of its most recent 3 fiscal years. \31\ An issuer may suspend its Section 15(d) reporting obligations under Rule 12h-3 or Section 15(d) itself. The statutory section provides that suspension occurs if, on the first day of the fiscal year, other than the year in which the issuer's registration statement went effective, the issuer's record holders number less than 300. --------------------------------------------------------------------------- The proposed rules would require any issuer, whether a prior registrant or not, to maintain the Rule 12g3-2(b) exemption by publishing its specified non-U.S. disclosure documents on an ongoing basis and for each subsequent fiscal year, in English, on its Internet Web site or through an electronic information delivery system generally available to the public in its primary trading market. The proposed rules would require the electronic publication in English of the same types of information required under the March 2007 amendments. As proposed, the Rule 12g3-2(b) exemption would remain in effect until: The issuer no longer satisfies the electronic publication condition; The issuer no longer maintains a listing for the subject class of securities on one or more exchanges in its primary trading market; The ADTV of the subject class of securities in the United States exceeds 20 percent of the average daily trading volume of that class of securities on a worldwide basis for the issuer's most recently completed fiscal year, other than the year in which the issuer first claims the exemption; or The issuer registers a class of securities under Exchange Act Section 12 or incurs reporting obligations under Exchange Act Section 15(d). B. Principal Comments Regarding the Proposed Rule Amendments We received letters from 32 commenters, including law firms, business, industry and legal trade associations, depositary banks, financial advisory firms, and an OTC market participant. Most commenters strongly supported the Commission's proposals to eliminate the written application process for the Exchange Act Rule 12g3-2(b) exemption and replace the paper submission process for an issuer's non- U.S. disclosure documents with mandated electronic publication as a condition to claiming and maintaining the exemption. However, most commenters were critical of the proposal that, as a condition to claiming and maintaining the Rule 12g3-2(b) exemption, a foreign private issuer's U.S. ADTV must be no greater than 20% of its worldwide ADTV for the issuer's most recently completed fiscal year. Those commenters urged us either to eliminate the trading volume condition in its entirety or else increase the U.S. ADTV threshold to a higher percentage, such as 35%, 40% or 50% of worldwide ADTV. Some commenters also requested that we impose a trading volume condition only as an initial requirement for claiming the exemption, and not as a condition for continued use in subsequent years. Other areas receiving comment included whether: To adopt the foreign listing condition as a requirement for either initially claiming the exemption or maintaining it in subsequent years; To permit an issuer to publish English summaries, brief English descriptions, or English versions instead of English translations of its non-U.S. disclosure documents; To provide a period of time for an issuer to cure a deficiency in its compliance with one or more conditions before it would be required to register under the Exchange Act; To require an issuer to provide some form of public notice that it was claiming and intended to rely on the Rule 12g3-2(b) exemption; To modify Form F-6 in light of the rule amendments, including whether to adopt provisions regarding unsponsored ADR facilities; and To grandfather any issuer having the Rule 12g3-2(b) exemption before the effective date of the rule amendments. C. Summary of the Adopted Rule Amendments We have carefully considered commenters' concerns regarding the proposed amendments to Rule 12g3-2(b), and have addressed many of them in the rule amendments that we are adopting today. Most notably, we have determined to adopt a trading volume measure solely as part of the foreign listing/primary trading market condition, and not as a separate condition. As adopted, the rule amendments will enable a foreign private issuer to claim the Rule 12g3-2(b) exemption,\32\ without having to submit a written application to the Commission, as long as the issuer: --------------------------------------------------------------------------- \32\ By the use of the term ``claim'' in his release, we do not mean to imply that a foreign private issuer must apply for or provide notice of the Rule 12g3-2(b) exemption in order to qualify for that exemption. Rather, as amended, the Rule 12g3-2(b) exemptive regime is meant to be self-executing. --------------------------------------------------------------------------- Currently maintains a listing of the subject class of securities on one or more exchanges in its primary trading market, which is defined to mean, as proposed, that: [[Page 52755]] [cir] At least 55 percent of the trading in the subject class of securities on a worldwide basis took place in, on or through the facilities of a securities market or markets in a single foreign jurisdiction or in no more than two foreign jurisdictions during the issuer's most recently completed fiscal year; and [cir] If a foreign private issuer aggregates the trading of its subject class of securities in two foreign jurisdictions, the trading for the issuer's securities in at least one of the two foreign jurisdictions is greater than the trading in the United States for the same class of the issuer's securities; The issuer is not required to file or furnish reports under Exchange Act Section 13(a) or 15(d), as proposed; and Unless claiming the exemption upon or following its recent Exchange Act deregistration, the issuer has published in English specified non-U.S. disclosure documents, from the first day of its most recently completed fiscal year, on its Internet Web site or through an electronic information delivery system generally available to the public in its primary trading market.\33\ --------------------------------------------------------------------------- \33\ These rule amendments relate solely to the application of Exchange Act Section 12(g) and not to antifraud or other provisions of the U.S. federal securities laws. --------------------------------------------------------------------------- The adopted rule amendments will require an issuer to maintain the Rule 12g3-2(b) exemption by electronically publishing the specified non-U.S. disclosure documents for subsequent years. An issuer will lose the exemption if it: Fails to publish electronically the required non-U.S. disclosure documents; No longer meets the foreign listing/primary trading market condition; or Incurs Exchange Act reporting obligations. We are adopting the rule amendments regarding English translation requirements, as proposed. While we decline to permit the use of ``brief English descriptions'' or ``English versions,'' we have clarified that, generally, an issuer may provide an English summary for a non-U.S. disclosure document if such a summary would be permitted for a document submitted under cover of Form 6-K \34\ or Exchange Act Rule 12b-12(d)(3).\35\ --------------------------------------------------------------------------- \34\ 17 CFR 249.306. \35\ 17 CFR 240.12b-12(d)(3). --------------------------------------------------------------------------- We are adopting conforming amendments to Form F-6 and Rule 15c2-11. Other adopted rule amendments include eliminating, as proposed: The current provision that generally prohibits the Rule 12g3-2(b) exemption tosuccessor issuers; The rarely used ability of a Canadian issuer filing under the Multijurisdictional Disclosure System (``MJDS'') to obtain the Rule 12g3-2(b) exemption for a class of equity securities while having Exchange Act reporting obligations regarding a class of debt securities; The current provision that prohibits an issuer from relying on the Rule 12g3-2(b) exemption if its securities are traded through an automated inter-dealer quotation system; and The related provision grandfathering Nasdaq-traded companies meeting specified conditions from Rule 12g3-2(b)'s automated inter-dealer quotation system prohibition. While the adopted rule amendments do not include a grandfathering provision, we are establishing, as proposed, a three-year transition period to provide sufficient time for any current Rule 12g3-2(b)-exempt issuer, which will no longer qualify for the exemption under the rule amendments, either to comply with all of the conditions of amended Rule 12g3-2(b) or register under the Exchange Act. We also are establishing, as proposed, a three-month transition period following the effectiveness of the rule amendments during which the Commission will accept and process any non-U.S. disclosure documents submitted in paper by Rule 12g3-2(b)-exempt issuers. Thereafter, the Commission will no longer process paper Rule 12g3-2(b) submissions. By enabling a qualified foreign private issuer to claim the Rule 12g3-2(b) exemption automatically, and without regard to the number of its U.S. shareholders, the adopted rule amendments should encourage more foreign private issuers to claim the Rule 12g3-2(b) exemption. That would enable the establishment of additional ADR facilities, make it easier for broker-dealers to fulfill their obligations under Exchange Act Rule 15c2-11 with respect to the equity securities of a non-reporting foreign private issuer, and facilitate the resale of a foreign company's securities to QIBs in the United States under Securities Act Rule 144A. Consequently, the adopted rule amendments should foster the increased trading of a foreign private issuer's securities in the U.S. over-the-counter market. By requiring the electronic publication in English of specified non-U.S. disclosure documents for an issuer claiming the Rule 12g3-2(b) exemption, the adopted amendments should make it easier for U.S. investors to gain access to a foreign private issuer's material non- U.S. disclosure documents, and make better informed decisions regarding whether to invest in that issuer's equity securities through the over- the-counter market in the United States or otherwise. Thus, the adopted amendments should foster increased efficiency in the trading of the issuer's securities for U.S. investors. II. Discussion A. Foreign Listing Condition We are adopting, as proposed, the condition that, in order to be eligible to claim the Rule 12g3-2(b) exemption, an issuer must currently maintain a listing of the subject class of securities on one or more exchanges in a foreign jurisdiction that, either singly or together with the trading of the same class of the issuer's securities in another foreign jurisdiction, constitutes the primary trading market for those securities.\36\ This condition is substantially similar to the foreign listing condition adopted as part of the March 2007 amendments.\37\ --------------------------------------------------------------------------- \36\ Exchange Act Rule 12g3-2(b)(1)(ii) (17 CFR 240.12g3- 2(b)(1)(ii)). \37\ Exchange Act Rule 12h-6(a)(3) (17 CFR 240.12h-6(a)(3)). --------------------------------------------------------------------------- The purpose of the foreign listing condition is to help assure that there is a non-U.S. jurisdiction that principally regulates and oversees the trading of the issuer's securities and the issuer's disclosure obligations to investors. This foreign listing condition increases the likelihood that the principal pricing determinants for a foreign private issuer's securities are located outside the United States, and makes more likely the availability of a set of non-U.S. securities disclosure documents to which a U.S. investor may turn for material information when making investment decisions about the issuer's securities in the U.S. over-the-counter market. Several commenters supported the proposed foreign listing condition substantially as proposed or at least in principle.\38\ Some commenters supported a condition that would require an issuer to be subject to a recognized foreign regulatory authority and a set of public disclosure obligations, but would not require a foreign listing.\39\ We decline to adopt such a provision because, among other factors, we believe it could be difficult for market participants to determine whether an issuer is in fact subject to a [[Page 52756]] complying foreign regulatory regime. In addition, a listing on a securities market generally involves the affirmative action of an issuer to be traded on that market and to be subject to the listing requirements of that market, including applicable ongoing disclosure requirements. The foreign listing requirement therefore supports one of the underlying purposes of the Rule 12g3-2(b) exemption--to make material information available to investors. --------------------------------------------------------------------------- \38\ See, for example, the letter of the Bank of New York (``BNY''), dated April 25, 2008. This letter, along with other comment letters, is available at http://www.sec.gov/comments/s7-04- 08/s70408.shtml. \39\ See, for example, the letter of Sullivan & Cromwell, dated April 25, 2008. --------------------------------------------------------------------------- A few commenters opposed the foreign listing condition on the grounds that it would impose costs on those issuers that have not yet obtained a foreign listing, and which are likely to be smaller companies.\40\ As we noted when proposing the rule amendments, the foreign listing condition is consistent with the Commission staff's past and current practice of administering the Rule 12g3-2(b) exemption. Any issuer, regardless of size, has had to obtain a foreign listing before it could receive the exemption. Accordingly, the adopted rule should impose no new burdens in this regard.\41\ --------------------------------------------------------------------------- \40\ See, for example, the letter of the American Bar Association, Business Law Section (``ABA''), dated April 30, 2008. \41\ As is currently the case, an issuer that, on the last day of its most recently completed fiscal year, has not exceeded the 500 worldwide holder threshold under Exchange Act Section 12(g), the 300 U.S. holder threshold under Rule 12g3-2(a), or the $10 million annual aset threshold under Rule 12g-1, could claim an exemption from Section 12(g) registration for a class of equity securities based upon one or more of those provisions, and would not have to comply with Rule 12g3-2(b)'s foreign listing or other conditions, if it chose not to rely on that rule for its exemption from Section 12(g) registration. However, such an issuer would have to claim the Rule 12g3-2(b) exemption, and satisfy all of its conditions, if it sought to have established an ADR facility for its equity securities. ADRs must be registered on a Form F-6, which requires an issuer of the deposited securities to be either an Exchange Act reporting company or have the Rule 12g3-2(b) exemption. --------------------------------------------------------------------------- 1. The Primary Trading Market Definition The adopted rule amendments define primary trading market, as proposed, to mean that at least 55 percent of the worldwide trading in the issuer's subject class of securities took place in, on or through the facilities of a securities market or markets in a single foreign jurisdiction or in no more than two foreign jurisdictions during the issuer's most recently completed fiscal year. The rule amendments further instruct that, if a foreign private issuer aggregates the trading of its subject class of securities in two foreign jurisdictions for that purpose, the trading for the issuer's securities in at least one of the two foreign jurisdictions must be larger than the trading in the United States for the same class of the issuer's securities.\42\ --------------------------------------------------------------------------- \42\ Note 1 to Rule 12g3-2(b)(1) (17 CFR 240.12g3-2(b)(1)). --------------------------------------------------------------------------- As proposed, we have based the adopted definition on the definition of primary trading market under the March 2007 amendments. Like the earlier amendments, the amendments we are adopting today will permit an issuer to aggregate its securities over multiple markets in one or two foreign jurisdictions in recognition that many foreign private issuers have listings on more than one exchange in one or more non-U.S. markets.\43\ --------------------------------------------------------------------------- \43\ As under the earlier amendments, measurement for the primary trading market determination will be by reference to ADTV as reported by the relevant market. An issuer would measure the ADTV of on-exchange transactions in its securities aggregated over one or two foreign jurisdictions against its worldwide trading volume. The issuer could include in this measure off-exchange transactions in those jurisdictions comprising the numerator only if it includes those off-exchange transactions when calculating worldwide trading volume in the denominator. This denominator would consist of U.S. ADTV, which must include both on-exchange and off-exchange transactions, and non-U.S. ADTV, which must include on-exchange transactions, but could also include off-exchange transactions. See Note 1 to Rule 12g3-2(b)(1) and Release No. 34-55540 at 72 FR 16934, 16939. --------------------------------------------------------------------------- Some commenters urged the Commission to adopt a primary trading market definition that would permit an issuer to aggregate its trading over an unlimited number of foreign jurisdictions or permit an issuer's trading in its primary foreign markets to comprise less than 55 percent of its worldwide trading.\44\ We decline to adopt these suggestions because, by defining an issuer's primary trading market to comprise no more than two foreign jursidictions, it becomes more likely that an eligible issuer will be subject to an overseas regulator with principal authority for regulating the issuance and trading of the issuer's securities and the issuer's disclosure to investors. Similarly, requiring an issuer's primary non-U.S. trading to constitute no less than 55 percent of its worldwide trading helps assure that a clear majority of an issuer's securities trading occurs outside the United States. If the United States was the sole or principal market for a foreign private issuer's securities, then the Commission would have a greater regulatory interest in subjecting the foreign company to the Exchange Act reporting regime. --------------------------------------------------------------------------- \44\ See, for example, the letters of JPMorgan Chase Bank (``JPMorganChase''), dated April 18, 2008, and the Organization for International Investment (``OFII''), dated April 23, 2008. --------------------------------------------------------------------------- The adopted rule amendments will not require an issuer establishing the exemption, but not deregistering, to have maintained a foreign listing for the previous twelve months, or for some other specified period of time, as was required under the March 2007 amendments. As noted in the Proposing Release, we see no reason to exclude newly listed foreign companies from eligibility. Many foreign exchanges require substantial initial disclosure before a listing is accepted. Moreover, there is currently no similar requirement for a non-reporting company applying for the Rule 12g3-2(b) exemption. Under Rule 12h-6, an issuer must certify that, at the time it files its Form 15F,\45\ it meets that rule's foreign listing requirement. That issuer will also have to meet Rule 12g3-2(b)'s foreign listing requirement upon the effectiveness of its Exchange Act termination of registration and reporting under Rule 12h-6 in order to be able to claim the Rule 12g3-2(b) exemption. Since typically that effectiveness occurs 90 days from the date of filing of the Form 15F, we expect most Form 15F filers will satisfy the adopted foreign listing requirement under Rule 12g3-2(b).\46\ --------------------------------------------------------------------------- \45\ 17 CFR 249.324. Similar to a Form 15, Form 15F is the form that a foreign private issuer must file to certify that it meets the conditions for terminating its Exchange Act registration and reporting obligations under Rule 12h-6. \46\ Unless the Commission objects, termination of an issuer's reporting and registration under Rule 12h-6 is effective 90 days after the filing of its Form 15F. Exchange Act Rule 12h-6(g)(1) (17 CFR 240.12h-6(g)(1)). --------------------------------------------------------------------------- 2. Elimination of the Proposed 20 Percent Trading Volume Condition In addition to the trading volume standard under the primary trading market definition, we proposed that an issuer's U.S. ADTV must be no greater than 20 percent of its worldwide ADTV for its most recently completed fiscal year. We have determined not to adopt this separate trading volume condition. Most commenters opposed the 20 percent trading volume condition. Several commenters maintained that a foreign private issuer cannot control the level of U.S. trading of its equity securities because U.S. investors are able to purchase a foreign private issuer's securities in the issuer's home market and subsequently trade them in the United States, or purchase the issuer's securities through unsponsored ADR facilities in the United States. According to these commenters, those factors could cause an issuer's U.S. trading volume to exceed the proposed trading volume threshold and thereby require the issuer to register its securities in the United States although [[Page 52757]] it has not voluntarily sought a public market there.\47\ --------------------------------------------------------------------------- \47\ See, for example, the letters of Cleary Gottlieb Steen & Hamilton LLP (``Cleary Gottlieb''), dated April 25, 2008, and EuropeanIssuers, dated April 25, 2008. --------------------------------------------------------------------------- Some commenters further stated that the proposed trading volume condition would likely discourage foreign private issuers from establishing or maintaining sponsored ADR facilities or engaging in exempted offerings in the U.S., such as private placements and Rule 144A resales, to the detriment of U.S. investors.\48\ In addition, commenters noted that the proposed trading volume condition would be unnecessary should the Commission adopt the proposed foreign listing condition and accompanying definition of primary trading market.\49\ --------------------------------------------------------------------------- \48\ See, for example, the letters of the International Bar Association, dated April 25, 2008, and Linklaters, dated April 24, 2008. \49\ See, for example, the letters of BNY and O'Melveny & Myers LLP, dated April 25, 2008. --------------------------------------------------------------------------- After consideration of the comments, we have determined that adopting these amendments without the 20 percent trading volume condition is consistent with the protection of U.S. investors. Most of the foreign private issuers that currently claim the Rule 12g3-2(b) exemption have U.S. trading volumes that fall below the proposed 20 percent threshold although there is no mandatory trading volume condition.\50\ We expect that the primary trading market provision will serve to protect U.S. investors by making it more likely that foreign companies claiming the exemption will be subject to disclosure requirements where they are listed. --------------------------------------------------------------------------- \50\ See the Memo by Jennifer Marietta-Westberg, Office of Economic Analysis, dated March 10, 2008, which is available at http://www.sec.gov/comments/s7-04-08/s70408-2.pdf. --------------------------------------------------------------------------- 3. Treatment of Compensatory Stock Options Currently, the scope of the exemption afforded to a class of equity securities under Rule 12g3-2(b) may include compensatory stock options that relate to that class of equity securities.\51\ Some commenters expressed their concern that, as proposed, the scope of the amended rule would not include compensatory stock options since the exemption extends to a class of equity securities, the compensatory stock options would likely be deemed a separate class, and the compensatory stock options would typically not be listed in the issuer's primary trading market.\52\ --------------------------------------------------------------------------- \51\ See current Exchange Act Rule 12g3-2(b)(1), which states that ``securities'' of a foreign private issuer shall be exempt from Section 12(g) if the rule's conditions are met. \52\ See the letter of Gloria W. Nusbacher and 24 other attorneys. --------------------------------------------------------------------------- It is not our intention to change the scope of Rule 12g3-2(b) in this regard. Accordingly, we have added a note to the amended rule to clarify that compensatory stock options for which the underlying securities are in a class exempt under Rule 12g3-2(b) are also exempt under that rule.\53\ --------------------------------------------------------------------------- \53\ Note 3 to Exchange Act Rule 12g3-2(b)(1). --------------------------------------------------------------------------- B. Non-Exchange Act Reporting Condition We are adopting the condition, as proposed, that in order to be eligible for the Rule 12g3-2(b) exemption, an issuer must not have any reporting obligations under Exchange Act Section 13(a) or 15(d).\54\ Like the current non-Exchange Act reporting condition of Rule 12g3- 2(b),\55\ the purpose of this provision is to prevent an issuer from claiming the Rule 12g3-2(b) exemption when it already has incurred active Exchange Act reporting obligations. --------------------------------------------------------------------------- \54\ Exchange Act Rule 12g3-2(b)(1)(i) (17 CFR 240.12g3- 2(b)(1)(i)). \55\ Current Exchange Act Rule 12g3-2(d)(1) (17 CFR 240.12g3- 2(d)(1)). --------------------------------------------------------------------------- 1. Non-Reporting Issuers A foreign private issuer will satisfy the proposed non-reporting condition if it does not already have reporting obligations under either Exchange Act Section 13(a) or 15(d). Since Section 13(a) imposes reporting obligations on an issuer that has registered a class of securities under Section 12, a foreign private issuer that has an effective registration statement filed with the Commission under Section 12(b),\56\ for example, covering a class of debt securities, or Section 12(g), covering a particular class of equity securities, would be ineligible to claim the exemption. This treatment is consistent with the current Exchange Act reporting prohibition under Rule 12g3- 2(b).\57\ --------------------------------------------------------------------------- \56\ 15 U.S.C. 78l(b). \57\ Current Exchange Act Rule 12g3-2(d)(1). --------------------------------------------------------------------------- We received relatively few comments on the proposed non-reporting condition. While some commenters supported the proposed condition,\58\ others requested that, in the interest of increasing the flexibility of capital raising in the United States for foreign private issuers, we permit an issuer to claim the Rule 12g3-2(b) exemption with respect to a particular class of equity securities although it has Exchange Act reporting obligations regarding a class of debt securities or a different class of equity securities.\59\ We decline to adopt this suggested modification because we believe that it could cause confusion for investors and other market participants regarding the scope of an issuer's Exchange Act reporting obligations and the protections available under the Exchange Act. --------------------------------------------------------------------------- \58\ See, for example, the letter of Sullivan & Cromwell. \59\ See, for example, the letter of OFII. --------------------------------------------------------------------------- Currently an issuer may apply for the Rule 12g3-2(b) exemption, although it may have exceeded the Section 12(g) shareholder thresholds on the last day of its most recently completed fiscal year, as long as the statutory 120-day period for filing a Section 12(g) registration statement has not lapsed.\60\ We proposed to eliminate this 120-day submission requirement because, under the revised Rule 12g3-2(b) exemptive scheme, we did not believe that this requirement would be necessary to protect investors. --------------------------------------------------------------------------- \60\ Current Exchange Act Rule 12g3-2(b)(2) (17 CFR 240.12g3- 2(b)(2)). --------------------------------------------------------------------------- The revised exemption does not depend on an issuer's determination of the number of its worldwide or U.S. shareholders, and does not require that it submit a written application disclosing that information. Instead, it affirmatively requires a foreign private issuer to meet a foreign listing requirement and electronically publish specified material non-U.S. disclosure documents in English. If we also required an issuer to claim the exemption within the 120-day period, we believe some issuers, particularly smaller ones, would be unable to meet that deadline.\61\ Those issuers would have to wait until the end of their current fiscal year and the start of a new 120-day period before they could claim the exemption. We see little benefit in requiring issuers to wait several months before being able to claim the exemption. On the other hand, providing the exemption and encouraging these issuers to publish their material non-U.S. disclosure documents in English should benefit U.S. investors. Commenters uniformly agreed with our assessment on this issue. Therefore, we are eliminating the 120-day requirement for issuers under Rule 12g3-2(b), as proposed. --------------------------------------------------------------------------- \61\ Under current Rule 12g3-2(b), several issuers have applied for the exemption although the 120-day period has lapsed. --------------------------------------------------------------------------- 2. Deregistered Issuers Under the adopted, revised exemptive scheme, a foreign private issuer that has suspended its Exchange Act reporting obligations upon the filing of Form 15, pursuant to Rule 12g-4 or 12h-3, or Form 15F, pursuant to Rule 12h-6, will [[Page 52758]] satisfy the non-reporting requirement upon the effectiveness of its deregistration, assuming that it has not otherwise incurred additional Exchange Act reporting obligations. Similarly, a foreign private issuer that has suspended its reporting obligations pursuant to the statutory terms of Section 15(d) will satisfy the non-reporting condition immediately upon its determination that it had less than 300 shareholders as of the beginning of its most recent fiscal year. Thus, unlike the current rule, the adopted rule amendments will not require an issuer to look back over the previous eighteen months and determine whether it had Exchange Act reporting obligations during that period.\62\ We eliminated the eighteen month requirement when adopting the March 2007 rule amendments that granted the Rule 12g3-2(b) exemption automatically to a foreign private issuer upon the effectiveness of its termination of Exchange Act registration and reporting pursuant to Rule 12h-6. We see no reason to treat differently foreign private issuers that have terminated their Section 12(g) registration under the older Rule 12g-4 or suspended their Section 15(d) reporting obligations pursuant to that statutory section or under Rule 12h-3 and following the filing of Form 15. Elimination of a lengthy waiting period will hasten the electronic publication of a foreign private issuer's non-U.S. disclosure documents required under the exemption and, thus, help improve the ability of U.S. investors to make informed decisions regarding that issuer's securities. Commenters uniformly supported this revision, which we are adopting as proposed. --------------------------------------------------------------------------- \62\ Current Exchange Act Rule 12g3-2(d)(1) provides that the Rule 12g3-2(b) exemption is generally not available to a foreign private issuer that, during the preceding 18 months, has registered a class of securities under Exchange Act Section 12 or had an active or suspended Section 15(d) reporting obligation. --------------------------------------------------------------------------- C. Electronic Publishing of Non-U.S. Disclosure Documents 1. Electronic Publishing Requirement To Claim Exemption We are adopting, as proposed, the requirement that, unless in connection with or following a recent Exchange Act deregistration, in order to claim the Rule 12g3-2(b) exemption, an issuer must have published in English, on its Internet Web site or through an electronic information delivery system generally available to the public in its primary trading market, information that, from the first day of its most recently completed fiscal year, it: Has made public or been required to make public pursuant to the laws of the country of its incorporation, organization or domicile; Has filed or been required to file with the principal stock exchange in its primary trading market on which its securities are traded and which has been made public by that exchange; and Has distributed or been required to distribute to its security holders.\63\ These are the same categories of information that the Commission has historically required a non-reporting company to submit in paper when applying for the exemption under Rule 12g3-2(b).\64\ They also are the same non-U.S. disclosure documents that, more recently, the Commission has required an issuer to publish electronically in order to maintain its Rule 12g3-2(b) exemption claimed upon the effectiveness of its deregistration under Rule 12h-6.\65\ Commenters strongly supported this electronic publication requirement.\66\ --------------------------------------------------------------------------- \63\ Exchange Act Rule 12g3-2(b)(1)(iii) (17 CFR 240.12g3- 2(b)(1)(iii)) and Note 2 to Exchange Act Rule 12g3-2(b)(1). As proposed, the adopted amendments do not require a deregistered issuer to satisfy the non-U.S. publication requirement in order to claim the Rule 12g3-2(b) exemption since that issuer will have filed Exchange Act reports for the prior fiscal year upon which investors may rely. \64\ Current Exchange Act Rule 12g3-2(b)(1)(i). \65\ Current Exchange Act Rule 12g3-2(e)(2). \66\ While commenters uniformly supported the electronic publication condition, some questioned the proposed requirement to provide English translations of specified non-U.S. disclosure documents. See Part II.C.3 of this release. --------------------------------------------------------------------------- The purpose of this non-U.S. electronic publication condition is to provide U.S. investors with ready access to material information when trading in the issuer's equity securities in the over-the-counter market.\67\ This condition also will assist U.S. investors who are interested in trading the issuer's securities in its primary securities market. Moreover, having a foreign private issuer's key non-U.S. disclosure documents electronically published in English will assist broker-dealers in meeting their Rule 15c2-11 obligations and facilitate resales of that issuer's securities to QIBs under Rule 144A. --------------------------------------------------------------------------- \67\ Any trading of a foreign private issuer's Rule 12g3-2(b)- exempt securities in the United States would have to occur through an over-the-counter market such as that maintained by the Pink Sheets, LLC since, as of April, 1998, the NASD has required a foreign private issuer to register a class of securities under Exchange Act Section 12 before its securities could be traded through the electronic over-the-counter bulletin board administered by Nasdaq. See, for example, NASD Notice to Members (January 1998). --------------------------------------------------------------------------- As under the current rule, the adopted amendments will require an issuer only to publish electronically information that is material to an investment decision regarding the subject securities,\68\ such as: --------------------------------------------------------------------------- \68\ Exchange Act Rule 12g3-2(b)(3)(i) (17 CFR 240.12g3- 2(b)(3)(i)). Although the substantive requirements are the same, we have made conforming changes to General Instruction E and Part II, Item 9 of Form 15F to reflect the renumbering of the non-U.S. publication requirements of Rule 12g3-2(b). --------------------------------------------------------------------------- Results of operations or financial condition; Changes in business; Acquisitions or dispositions of assets; The issuance, redemption or acquisition of securities; Changes in management or control; The granting of options or the payment of other remuneration to directors or officers; and Transactions with directors, officers or principal security holders.\69\ --------------------------------------------------------------------------- \69\ These are the same types of information specified in current Exchange Act Rule 12g3-2(b)(3) (17 CFR 240.12g3-2(b)(3)). --------------------------------------------------------------------------- 2. Electronic Publishing Requirement to Maintain Exemption In order to maintain the Rule 12g3-2(b) exemption, the adopted amendments will require an issuer to publish the same information specified in the prior fiscal year provision, on an ongoing basis and for subsequent fiscal years, on its Internet Web site or through an electronic information delivery system in its primary trading market.\70\ This requirement will apply to any issuer claiming the exemption, whether or not a former Exchange Act registrant. Like the prior fiscal year publication condition, this ongoing publication condition will help assure that investors and other market participants have access to an issuer's specified non-U.S. disclosure documents, in English, which are material to an investment decision. Most commenters strongly supported this ongoing non-U.S. electronic publication condition. --------------------------------------------------------------------------- \70\ Exchange Act Rule 12g3-2(b)(2)(i) (17 CFR 240.12g3- 2(b)(2)(i)). --------------------------------------------------------------------------- Similar to the current rule,\71\ the adopted rule amendments will require an issuer to publish electronically its non-U.S. disclosure documents promptly after the information has been made public, pursuant to its home jurisdiction laws, non-U.S. stock exchange rules, or shareholder meeting rules and practices.\72\ As under current Commission staff practice, what constitutes ``promptly'' will depend on the type of document and the amount of time required to prepare an English [[Page 52759]] translation. Currently an issuer typically must electronically publish or submit in paper a copy of a material press release on or around the same business day of its original publication. --------------------------------------------------------------------------- \71\ Current Exchange Act Rule 12g3-2(b)(1)(iii). \72\ Exchange Act Rule 12g3-2(b)(2)(ii) (17 CFR 240.12g3- 2(b)(2)(ii)). Form 6-K imposes a similar requirement. --------------------------------------------------------------------------- The adopted amendments will permit an issuer to meet Rule 12g3- 2(b)'s electronic publication requirement concurrently with the publishing in English of a non-U.S. disclosure document through an electronic information delivery system generally available to the public in its primary trading market. Thus, if an issuer's non-U.S. stock exchange or securities regulatory authority permits the issuer to publish electronically a required report on its electronic delivery system, and the public has ready access to the report and other documents maintained on the system,\73\ that electronic publication solely will satisfy the proposed Rule 12g3-2(b)'s electronic publishing requirements. --------------------------------------------------------------------------- \73\ An example of such a system is the System for Electronic Document Analysis and Retrieval (``SEDAR'') maintained by the Canadian Securities Administrators. --------------------------------------------------------------------------- 3. English Translation Requirement We are adopting, as proposed, the condition that, in order to claim or maintain the Rule 12g3-2(b) exemption, an issuer must publish electronically, at a minimum, English translations of the following documents if in a foreign language: Its annual report, including or accompanied by annual financial statements; Interim reports that include financial statements; Press releases; and All other communications and documents distributed directly to security holders of each class of securities to which the exemption relates.\74\ --------------------------------------------------------------------------- \74\ Exchange Act Rule 12g3-2(b)(3)(ii) (17 CFR 240.12g3- 2(b)(3)(ii)). --------------------------------------------------------------------------- These are the same documents for which an issuer that has deregistered under Rule 12h-6 must currently provide English translations.\75\ --------------------------------------------------------------------------- \75\ Note 1 to Current Exchange Act Rule 12g3-2(e) (17 CFR 240.12g3-2(e)). --------------------------------------------------------------------------- Some commenters requested that we permit an issuer to provide brief English descriptions or English versions of specified non-U.S. disclosure documents instead of English translations.\76\ We decline to adopt this suggestion because, as we stated in the Proposing Release, the specified non-U.S. disclosure documents are the same documents for which the Commission staff has historically required English translations because of their importance to investors.\77\ --------------------------------------------------------------------------- \76\ See, for example, the letters of Sullivan & Cromwell and Simpson Thacher & Bartlett (``Simpson Thacher''), dated April 18, 2008. \77\ See Part II.D.1 of the Proposing Release. We similarly eliminated the ability of foreign registrants to provide English versions or brief English descriptions of specified non-U.S. documents submitted under cover of Form 6-K because of the vagueness and lack of utility of such versions and descriptions submitted to the Commission. See Release No. 33-8099 (May 14, 2002), 67 FR 36678 (May 24, 2002). --------------------------------------------------------------------------- Some commenters also requested that we provide guidance regarding when an issuer may provide an English summary instead of an English translation.\78\ Generally, if, as a registrant, an issuer could submit an English summary for a non-U.S. disclosure document under cover of Form 6-K or pursuant to Exchange Act Rule 12b-12(d)(3), it can do so when claiming or maintaining the Rule 12g3-2(b) exemption. --------------------------------------------------------------------------- \78\ See, for example, the letters of Shearman & Sterling, dated April 25, 2008, and Sullivan & Cromwell. --------------------------------------------------------------------------- D. Elimination of the Written Application Requirement The adopted rule amendments eliminate the current requirement that, in order to obtain the Rule 12g3-2(b) exemption, if not proceeding under Rule 12h-6, a foreign private issuer must submit written materials, typically in the form of a letter application, to the Commission. These materials currently include a list of the issuer's non-U.S. disclosure requirements, the number of U.S. holders of its subject securities and the percentage of outstanding shares held by them, the circumstances in which its U.S. holders acquired those securities, and the date and circumstances of the most recent public distribution of the securities of the issuer or its affiliate.\79\ As long as an issuer satisfies the adopted rule's conditions, it no longer has to submit these materials to the Commission. Commenters strongly supported eliminating the written application process. --------------------------------------------------------------------------- \79\ Current Exchange Act Rules 12g3-2(b)(1), (2) and (5). As part of the written application process, an issuer must also submit paper copies of its non-U.S. disclosure documents published since the first day of its most recently completed fiscal year. --------------------------------------------------------------------------- Elimination of Rule 12g3-2(b)'s written application process for all foreign private issuers is consistent with our adoption of an automatic application of the Rule 12g3-2(b) exemption upon the effectiveness of an issuer's deregistration under Rule 12h-6. Moreover, since the adopted rule amendments permit an issuer to claim the Rule 12g3-2(b) exemption based on a foreign listing/primary trading market condition, regardless of the number of its U.S. shareholders, the current shareholder information requirement would be of marginal use. Further, since, as adopted, as a condition to claiming and maintaining the Rule 12g3-2(b) exemption, an issuer will have to publish electronically its non-U.S. disclosure documents, investors should be able to ascertain many of the issuer's non-U.S. disclosure requirements from a review of those publicly available documents. From time to time, the Commission has published a list of issuers claiming the Rule 12g3-2(b) exemption that have submitted relatively current information pursuant to that rule.\80\ Commission staff has compiled this list based on a review of submitted paper documents. As we stated in the Proposing Release, as part of the streamlining of the Rule 12g3-2(b) process that the adopted rule amendments are intended to effect, the Commission anticipates it will no longer publish these lists subsequent to the effective date of the new rules.\81\ --------------------------------------------------------------------------- \80\ See, for example, Release No. 34-51893 (June 21, 2005), 70 FR 37128 (June 28, 2005). \81\ See the Proposing Release at n. 86. --------------------------------------------------------------------------- Some commenters suggested that, as a substitute for these lists, we adopt a requirement that an issuer must notify the Commission and other market participants that it is claiming and intends to rely on the Rule 12g3-2(b) exemption.\82\ We decline to adopt such a notice requirement because we believe that, as other commenters have noted, a notice requirement could run contrary to the goal of encouraging an issuer to claim the Rule 12g3-2(b) exemption and electronically disseminate its non-U.S. disclosure documents in English.\83\ Nevertheless, an issuer that wants to provide notice to investors, broker-dealers and other market participants may do so by, for example, stating on its Internet Web site that it has electronically published specified non-U.S. disclosure documents in order to claim or maintain the Rule 12g3-2(b) exemption. --------------------------------------------------------------------------- \82\ See, for example, the letters of Simpson Thacher and Sullivan & Cromwell. \83\ See the letters of Ziegler, Ziegler & Associates, dated April 28, 2008, and BNY. --------------------------------------------------------------------------- E. Duration of the Amended Rule 12g3-2(b) Exemption As adopted, the amended Rule 12g3-2(b) exemption will remain in effect until an issuer: No longer electronically publishes the specified non-U.S. disclosure documents required to maintain the exemption; No longer maintains a listing for the subject class of securities on one or more exchanges in a primary trading market, as defined by the rule; or [[Page 52760]] Registers a class of securities under Section 12 of the Exchange Act or incurs reporting obligations under Section 15(d) of the Exchange Act.\84\ --------------------------------------------------------------------------- \84\ Exchange Act Rule 12g3-2(c) (17 CFR 240.12g3-2(c)). --------------------------------------------------------------------------- The duration of the amended Rule 12g3-2(b) exemption is similar to the duration of the current exemption. Both depend on an issuer's continued compliance with the requirement to publish its non-U.S. disclosure documents. Under both provisions, Section 12 registration or the incurrence of Section 15(d) reporting obligations terminates the exemption.\85\ Moreover, currently, if an issuer can no longer claim the Rule 12g3-2(b) exemption because it has not complied with the rule's publication requirements, it must determine on the last day of the fiscal year whether, because of its record holder count, it would be required to register a class of securities under Section 12(g). The same would hold true under the rule amendments for a non-compliant issuer. --------------------------------------------------------------------------- \85\ See, for example, current Exchange Act Rule 12g3-2(e)(3). A Rule 12g3-2(b)-exempt issuer that acquires an Exchange Act reporting company following an exchange of shares, and thereby succeeds to the target company's Exchange Act reporting obligations under Exchange Act Rule 12g-3 (17 CFR 240.12g-3) or Exchange Act Rule 15d-5 (17 CFR 240.15d-5), would lose the Rule 12g3-2(b) exemption upon succession. If such successor issuer qualified for deregistration under Exchange Act Rule 12h-6, it could claim the Rule 12g3-2(b) exemption upon deregistration. --------------------------------------------------------------------------- We are also adopting the provision, as proposed, that an issuer will lose the Rule 12g3-2(b) exemption if it no longer meets the foreign listing condition. An issuer will no longer satisfy the foreign listing condition either because it is no longer listed in its primary trading market, or because the one or two foreign jurisdictions in which it trades no longer qualifies as its primary trading market, as defined by the rule. Since the definition of primary trading market uses a trading volume standard for the issuer's most recently completed fiscal year, an issuer will have to redetermine its relative U.S. and foreign trading volumes on an annual basis. Some commenters opposed basing the duration of the Rule 12g3-2(b) exemption on whether an issuer remains listed in its primary trading market.\86\ We believe this provision is necessary in order to help ensure the continued availability of a set of non-U.S. disclosure documents to which investors may turn when making decisions regarding an issuer's securities. It is also necessary to help make sure that an issuer's principal trading market has not become the U.S. market, which would require the issuer to register and report under the Exchange Act. --------------------------------------------------------------------------- \86\ See the letters of the ABA and Sullivan & Cromwell. The primary objection was that adherence to the electronic publication condition should be a sufficient basis for maintaining the exemption as it is under the current rule. --------------------------------------------------------------------------- Some commenters requested that we at least establish a ``cure'' period, such as six or twelve months, during which an issuer would either have to correct any deficiency or else register under the Exchange Act.\87\ We decline to adopt a specific cure period. We believe that in order to best protect investors, an issuer that finds itself not in compliance with any of the conditions required to maintain the Rule 12g3-2(b) exemption must either re-establish compliance with the rule in a reasonably prompt manner or else register under the Exchange Act. --------------------------------------------------------------------------- \87\ See, for example, the letter of the OFII. --------------------------------------------------------------------------- There is no cure period for domestic issuers that find they are subject to registration under Section 12(g). Thus, foreign private issuers are treated in a similar manner as domestic issuers in this respect. As noted, foreign private issuers may be able to avoid registration by re-establishing compliance with Rule 12g3-2(b), for example, by relisting its securities in its primary trading market. F. Elimination of the Successor Issuer Prohibition The adopted rule amendments will eliminate the provision that precludes an issuer from obtaining the Rule 12g3-2(b) exemption if, following the issuance of shares to acquire by merger, consolidation, exchange of securities or acquisition of assets, it has succeeded to the Exchange Act reporting obligations of another issuer.\88\ Until recently, the sole exception to this successor issuer prohibition was for Canadian companies that registered the securities to be issued in the transaction on specified MJDS registration statements under the Securities Act.\89\ --------------------------------------------------------------------------- \88\ Current Exchange Act Rule 12g3-2(d)(2). An issuer succeeds to the Exchange Act reporting obligations of another either under Exchange Act Rule 12g-3 (17 CFR 240.12g-3) or 15d-5 (17 CFR 240.15d- 5). \89\ The specified MJDS registration statements are Forms F-8, F-9, F-10 and F-80 (17 CFR 239.38, 239.39, 239.40, and 239.41). --------------------------------------------------------------------------- As part of the March 2007 rule amendments, we adopted a provision that permits a successor issuer to terminate its newly acquired Exchange Act reporting obligations as long as it meets Rule 12h-6's substantive requirements for equity or debt securities issuers.\90\ We also amended Exchange Act Rule 12g3-2 to permit a successor issuer to claim the Rule 12g3-2(b) exemption upon the effectiveness of its termination of Exchange Act registration and reporting under Rule 12h- 6. We see no reason to treat differently a successor issuer that qualifies for deregistration under one of the older exit rules, Rule 12g-4 or 12h-3, or under Section 15(d). --------------------------------------------------------------------------- \90\ 17 CFR 240.12h-6(d). Under that rule, a non-Exchange Act reporting foreign private issuer that has acquired a reporting foreign private issuer in a transaction exempt under the Securities Act, for example, under Rule 802 (17 CFR 230.802), or Securities Act Section 3(a)(10) (15 U.S.C. 77c(a)(10)), may qualify immediately for termination of its Exchange Act reporting obligations under Rule 12h-6, without having to file an Exchange Act annual report, as long as the acquired company's reporting history fulfills Rule 12h-6's prior reporting condition and the successor issuer meets the rule's other conditions. --------------------------------------------------------------------------- Elimination of the successor issuer prohibition will help encourage a successor issuer to claim the Rule 12g3-2(b) exemption and electronically publish its specified non-U.S. disclosure documents in English. No commenter opposed the proposed elimination of the successor issuer prohibition. Accordingly, we are removing the successor issuer prohibition under Rule 12g3-2(b), as proposed. G. Elimination of the Rule 12g3-2(b) Exception for MJDS Filers The adopted rule amendments will eliminate the Rule 12g3-2 provisions that make the Rule 12g3-2(b) exemption available to Canadian issuers that have only filed with the Commission specified registration statements under the MJDS,\91\ although they may have filed those registration statements within the previous 18 months or to effect transactions in which they would succeed to Exchange Act reporting obligations.\92\ Because the adopted amendments will eliminate the 18 month and successor issuer prohibitions under Rule 12g3-2(b), they will remove as unnecessary the MJDS filer exceptions to those prohibitions. --------------------------------------------------------------------------- \91\ The Commission adopted the Rule 12g3-2 provisions when adopting the MJDS in order to encourage Canadian issuers to use the MJDS. See Release No. 33-6879 (October 22, 1990), 55 FR 462881 (November 2, 1990), as adopted in Release No. 33-6902 (June 21, 1991), 56 FR 30036 (July 1, 1991). The MJDS generally permits a qualified Canadian issuer to file with the Commission its Canadian registration statements and reports under cover of the MJDS forms. \92\ Current Exchange Act Rules 12g3-2(d)(1) and (2). --------------------------------------------------------------------------- The adopted rule amendments will also eliminate the current ability of a Canadian issuer that already has the Rule 12g3-2(b) exemption, but that subsequently acquires Exchange Act reporting obligations as a MJDS filer, for example, with regard to a class of debt securities, to retain the Rule 12g3-2(b) exemption for its equity securities. Such a MJDS filer currently may submit its [[Page 52761]] non-U.S. disclosure documents simultaneously to fulfill its Exchange Act reporting obligations under the MJDS and its non-U.S. publication obligations under Rule 12g3-2(b).\93\ --------------------------------------------------------------------------- \93\ Under the current rules, a Canadian issuer that checks the appropriate box on the cover of each filed Form 40-F and submitted Form 6-K is able to use those Exchange Act reports to maintain its Rule 12g3-2(b) exemption as well. --------------------------------------------------------------------------- We proposed to eliminate this ability of a MJDS filer simultaneously to maintain the Rule 12g3-2(b) exemption both because few issuers have ever used that ability and because it no longer is the case that a MJDS filer must file the same documents to fulfill its obligations under the Exchange Act and Rule 12g3-2(b). Since the enactment of the Sarbanes-Oxley Act,\94\ and Commission rules adopted under that Act, Canadian issuers must respond to several U.S. disclosure requirements when preparing their Form 40-F annual reports.\95\ --------------------------------------------------------------------------- \94\ Public Law 107-204, 116 Stat. 745 (2002). \95\ See, for example, Form 40-F's certifications required concerning an issuer's disclosure controls and procedures and its internal controls over financial reporting, and the disclosure required concerning its audit committee financial expert, its code of ethics, and its off-balance sheet arrangements. --------------------------------------------------------------------------- Only one commenter opposed eliminating this rarely used ability to be a MJDS filer while simultaneously claiming the Rule 12g3-2(b) exemption.\96\ The primary ground for objection was that some issuers may already be relying on the ability to use MJDS reports for this dual purpose. We continue to believe that this ability is rarely used if at all. Moreover, as explained below, we are adopting a three-year transition period following effectiveness of the adopted rule amendments, that will provide ample time for a MJDS registrant of debt securities, which has simultaneously claimed the Rule 12g3-2(b) exemption for a class of equity securities, to register that class of securities under the Exchange Act.\97\ --------------------------------------------------------------------------- \96\ See the letter of Osler, Hoskins & Harcourt, dated April 28, 2008. \97\ See Part II.K.1 below. --------------------------------------------------------------------------- Accordingly, we are adopting the elimination of this MJDS provision, as proposed.\98\ Under the adopted rule amendments, a MJDS registrant will be eligible to claim the Rule 12g3-2(b) exemption on the same grounds as other foreign registrants. If it has recently exited the Exchange Act reporting regime under Rule 12h-6, 12g-4 or12h- 3 or Section 15(d), it can claim the exemption, assuming it satisfies the rule amendments' other conditions. Otherwise, the filing of a MJDS registration statement under the Securities Act or Exchange Act will trigger Exchange Act reporting obligations and preclude that issuer from claiming the exemption. --------------------------------------------------------------------------- \98\ The adopted rule amendments remove the instruction on the cover page of Form 40-F and Form 6-K requiring a registrant to indicate whether it also is furnishing the materials pursuant to Rule 12g3-2(b). --------------------------------------------------------------------------- H. Elimination of the ``Automated Inter-Dealer Quotation System'' Prohibition and Related Grandfathering Provision The adopted amendments will also eliminate the provision generally prohibiting a foreign private issuer from claiming the Rule 12g3-2(b) exemption if it has securities or ADRs quoted in the United States on an automated inter-dealer quotation system,\99\ which, until recently, referred to the inter-dealer quotation system administered by the National Association of Securities Dealers Inc., and known as Nasdaq. The Commission initially adopted this prohibition in 1983 because of its belief that, since its establishment in 1971, Nasdaq had so matured into a trading system with substantial similarities to a national securities exchange that Nasdaq-traded foreign private issuers should be required to meet the same disclosure standards as exchange-traded foreign private issuers.\100\ We are eliminating this prohibition, as proposed, because Nasdaq has since become a national securities exchange.\101\ --------------------------------------------------------------------------- \99\ Current Exchange Act Rule 12g3-2(d)(3) (17 CFR 12g3- 2(d)(3)). \100\ Release No. 34-20264 (October 6, 1983), 48 FR 46736 (October 14, 1983). \101\ Nasdaq ceased operations as an automated inter-dealer quotation system and became a national securities exchange effective August 1, 2006. See Release No. 34-53128 (January 13, 2006), 71 FR 3550 (January 23, 2006). --------------------------------------------------------------------------- When the Commission adopted the automatic inter-dealer quotation system prohibition, it recognized that the general prohibition could cause some Nasdaq-quoted foreign companies that already had obtained the Rule 12g3-2(b) exemption to withdraw from Nasdaq. Therefore, the Commission excepted from that prohibition securities that: Were quoted on Nasdaq on October 5, 1983 and have been continuously traded since; Were exempt under Rule 12g3-2(b) on October 5, 1983 and have remained so since; and After January 2, 1986, were issued by a non-Canadian company.\102\ --------------------------------------------------------------------------- \102\ Current Exchange Act Rule 12g3-2(d)(3). The Commission based the more limited grandfathering of Canadian securities on the more active U.S. market for those securities, which had led to abuses under Rule 12g3-2(b). Release No. 34-20264. --------------------------------------------------------------------------- The adopted rule amendments will eliminate this grandfathering provision because, as we stated in the Proposing Release, due to developments occurring since its adoption, we no longer believe the grandfathering provision is necessary. Only nine of the grandfathered issuers remain listed on Nasdaq.\103\ Pursuant to Commission order, Nasdaq is now a national securities exchange, and those issuers must register their securities under Exchange Act Section 12(b) by August 1, 2009 if they wish to remain listed on Nasdaq.\104\ Pursuant to the terms of the Commission order, as long as the nine grandfathered issuers continue to comply with the conditions of Rule 12g3-2(b), brokers and dealers may trade their securities in reliance on the Rule 12g3-2(b) exemption until the above deadline for Exchange Act registration. Those few commenters that addressed the issue supported the proposed elimination of the grandfathering provision.\105\ Accordingly, we are adopting the elimination, as proposed. --------------------------------------------------------------------------- \103\ Letter from Edward S. Knight to Nancy M. Morris (July 31, 2006), attached to Release No. 34-54240 (July 31, 2006), 71 FR 45246 (August 8, 2006). \104\ Release No. 34-54241 (July 31, 2006), 71 FR 45359 (August 8, 2006). The Commission granted the grandfathered issuers an additional three years to register their securities under Section 12(b) in order to avoid disruptions in the trading of their securities caused by their delisting from Nasdaq and to provide them with time to meet U.S. disclosure requirements. \105\ See the ABA letter and the letter of the Pink OTC Markets Inc. (``Pink OTC''), dated April 10, 2008. --------------------------------------------------------------------------- I. Revisions to Form F-6 Currently, a registrant of ADRs must state on Form F-6, the registration statement used to register ADRs under the Securities Act, that the issuer of the deposited securities against which the ADRs will be issued is either an Exchange Act reporting company or furnishes public reports and other documents to the Commission pursuant to Rule 12g3-2(b).\106\ We proposed to require a Form F-6 registrant to state that, if the issuer of deposited securities is not an Exchange Act reporting company, such issuer publishes information in English required to maintain the Rule 12g3-2(b) exemption on its Internet Web site or through an electronic information delivery system generally available to the public in its primary trading market. The registrant would also have to disclose the issuer's address of its Internet Web site or the [[Page 52762]] electronic information delivery system in its primary trading market.\107\ --------------------------------------------------------------------------- \106\ Part I, Item 2 of Form F-6. Form F-6 states that the registrant is the legal entity created by the deposit agreement for the issuance of ADRs for the deposited securities. \107\ A registrant that has effected a Form F-6 registration statement before the effective date of these final rules would not have to amend the Form F-6 to provide the issuer's Internet Web site address until the registrant's first substantive amendment of the Form F-6. However, once a registrant has disclosed the issuer's Internet address on the Form F-6, it should promptly amend the Form F-6 to disclose a subsequent change in that address. --------------------------------------------------------------------------- Some commenters stated that, if the Commission elects not to publish an annual list of Rule 12g3-2(b)-exempt issuers, it will be difficult for a depositary of an unsponsored ADR facility \108\ to determine that the issuer of the subject securities has complied with the electronic publication condition of Rule 12g3-2(b). Those commenters requested that, for unsponsored facilities, we either eliminate the Form F-6 condition that an issuer must be subject to Exchange Act reporting or must furnish reports required under Rule 12g3-2(b),\109\ or revise the proposed Form F-6 amendment to permit the depositary to base its representation concerning an issuer's Rule 12g3- 2(b) electronic publication upon the depositary's reasonable, good faith belief.\110\ --------------------------------------------------------------------------- \108\ Currently an ADR facility may be either sponsored or unsponsored. With a sponsored facility, the issuer of the deposited securities is a party to the deposit agreement along with the depositary and is able to exercise some control regarding the terms and operations of the facility. With an unsponsored facility, the depositary solely controls the terms and operations of the facility. \109\ See the letter of JPMorganChase. \110\ See the letters of Ziegler, Ziegler & Associates and BNY. --------------------------------------------------------------------------- We are not revising the requirement under Form F-6 that the issuer of the deposited securities be either an Exchange Act reporting company or be exempt from registration under Rule 12g3-2(b) because such revision would eliminate any ongoing disclosure obligations as a condition of Form F-6 registration, which would not be in the best interest of investors. However, we are amending Form F-6 to state that, in the case of an unsponsored ADR facility, a Form F-6 filer may base its representation that the issuer publishes information in English required to maintain the exemption from registration under Exchange Act Rule 12g3-2(b) upon the filer's reasonable, good faith belief after exercising reasonable diligence.\111\ Except for this one change, we are adopting the Form F-6 amendment, as proposed. --------------------------------------------------------------------------- \111\ See the Note to Form F-6, Part I, Item 2. --------------------------------------------------------------------------- Currently an issuer that does not seek to have its securities traded in the United States in the form of ADRs is able, by not formally establishing the Rule 12g3-2(b) exemption and submitting documents to the Commission, to restrict the ability of ADR depositary banks to establish unsponsored ADR facilities. Because the adopted rule amendments will expand the availability of the Rule 12g3-2(b) exemption by making it available to all otherwise eligible foreign private issuers that post materials to their Web sites or publish them through an electronic information delivery system in their primary trading market, ADR depositaries will be able to establish unsponsored ADRs on this expanded group of foreign private issuers based upon their reasonable, good faith belief, after exercising reasonable diligence, that those issuers comply with Rule 12g3-2(b).\112\ --------------------------------------------------------------------------- \112\ ADR depositaries will also be able to establish sponsored ADR facilities with foreign private issuers that choose to have their shares represented by ADRs in the United States. --------------------------------------------------------------------------- We solicited comment on whether, because of the expanded availability of the Rule 12g3-2(b) exemption under the proposed rule amendments, we should require, as a condition to the registration of ADRs on Form F-6, that the issuer give its consent to the depositary, or at least that the depositary must have notified the issuer of its intention to register ADRs and must not have received an affirmative statement of objection from the issuer. Those few commenters that addressed this matter disagreed on whether imposing such additional conditions on the creation of unsponsored ADR facilities was necessary or advisable.\113\ Given this disagreement, and because we concur with those commenters who stated that imposing such additional conditions could run counter to the goal of streamlining the Rule 12g3-2(b) regime for the benefit of investors and issuers,\114\ we are not adopting at this time any additional conditions regarding the formation of unsponsored ADR facilities. --------------------------------------------------------------------------- \113\ See the letters of Cleary Gottlieb and EuropeanIssuers, both of which favored requiring a depositary to notify an issuer before establishing an unsponsored ADR facility, and requiring it to terminate an unsponsored facility created without the consent of an issuer if the issuer decides to create a sponsored facility. But see the letters of BNY and Pink OTC, both of which opposed the adoption of a condition requiring a depositary to obtain the consent of an issuer before establishing an unsponsored ADR facility, and the letter of Deutsche Bank, dated April 21, 2008, which stated that, because, in practice, depositary banks typically obtain the issuer's consent before establishing an unsponsored ADR facility, a rule requiring such consent was not necessary. \114\ See the letters of BNY and Pink OTC. --------------------------------------------------------------------------- J. Amendment of Exchange Act Rule 15c2-11 Exchange Act Rule 15c2-11 \115\ contains requirements that are intended to deter broker-dealers from initiating or resuming quotations for covered over-the-counter securities that may facilitate a fraudulent or manipulative scheme. The Rule currently prohibits a broker-dealer from publishing (or submitting for publication) a quotation for a covered over-the-counter security in a quotation medium unless it has obtained and reviewed current information about the issuer.\116\ One of the specified types of information satisfying this Rule 15c2-11 obligation is information furnished to the Commission pursuant to Rule 12g3-2(b). A broker-dealer must make this information reasonably available upon request to any person expressing an interest in a proposed transaction involving the security with the broker- dealer.\117\ --------------------------------------------------------------------------- \115\ 17 CFR 240.15c2-11. \116\ Rule 15c2-11(a) (17 CFR 240.15c2-11(a)). The broker-dealer must also have a reasonable basis for believing that the issuer information, when considered along with any supplemental information, is accurate and is from a reliable source. \117\ Rule 15c2-11(a)(4) (17 CFR 240.15c2-11(a)(4)). --------------------------------------------------------------------------- We proposed to amend Rule 15c2-11 to conform to the proposed rule amendments so that a broker-dealer must have available the information that, since the beginning of its last fiscal year, the issuer has published pursuant to the Rule 12g3-2(b) exemption. We further proposed to permit a broker-dealer to fulfill its Rule 15c2-11 obligation to make reasonably available upon request the information published pursuant to Rule 12g3-2(b) by providing the requesting person with appropriate instructions regarding how to obtain the information electronically. This reflects our view that most investors will have ready access to the electronically published documents of Rule 12g3- 2(b)-exempt issuers. The proposed amendment of Rule 15c2-11 received little comment. Because this proposal will make it easier for broker-dealers to fulfill their Rule 15c2-11 obligations for the benefit of investors, we are adopting it, as proposed. Because some issuers currently still make paper submissions to maintain their Rule 12g3-2(b) exemption, we expect that, during the first year of the amended rules' effectiveness, a broker-dealer may have to resort to both paper submissions and electronically published materials in order to fulfill its Rule 15c2-11 obligations regarding a particular issuer. [[Page 52763]] Eventually, however, a broker-dealer will only have to look to an issuer's electronically published materials for the purpose of Rule 15c2-11. K. Transition Periods 1. Regarding Section 12 Registration While we believe most issuers that currently have the Rule 12g3- 2(b) exemption will continue to be able to claim the exemption upon the effectiveness of the adopted rule amendments, some may not be able to do so because, for example, they no longer maintain a foreign listing or their principal foreign trading market comprises less than 55 percent of their worldwide trading and, therefore, does not meet the definition of primary trading market under the amended rule. Those issuers will have to file a Section 12 registration statement if they are unable to meet all of the amended rule's conditions or fail to qualify under another exemption from Section 12(g). In order to provide those issuers with sufficient time to prepare for and complete the Section 12 registration process, including obtaining required audited financial statements, we are adopting a three-year transition period, as proposed. Those issuers must become Exchange Act registrants no later than three years from the effective date of the adopted rule amendments if they are unable to comply fully with all of the amended rule's conditions.\118\ --------------------------------------------------------------------------- \118\ We adopted a similar three-year transition period to enable those grandfathered Nasdaq-traded foreign companies that were Rule 12g3-2(b)-exempt to register under Section 12(b) after Nasdaq became an exchange. See Release No. 34-54241 (July 31, 2006), 71 FR 45359 (August 8, 2006). --------------------------------------------------------------------------- We believe this three-year transition period is necessary for the benefit not just of issuers, but of broker-dealers and investors as well. If a currently exempt issuer is unable to claim the Rule 12g3- 2(b) exemption upon the effectiveness of the rule amendments because it no longer has a foreign listing or cannot meet the primary trading market definition, but continues to comply with the electronic publishing condition, a broker-dealer will be able to rely on that issuer's electronic postings to meet its Rule 15c2-11 obligations to investors and to facilitate resales of that issuer's securities in Rule 144A transactions during the transition period. Several commenters urged the Commission to grandfather indefinitely current Rule 12g3-2(b)-exempt companies.\119\ Most of those issuers also stated their support for a three-year transition period as an alternative to a grandfathering provision.\120\ We decline to adopt a grandfathering provision because, in the interest of protecting investors, we believe that any issuer that claims the Rule 12g3-2(b) exemption must comply fully with the foreign listing condition and definition of primary trading market. Adoption of a three-year transition period will enable issuers to achieve full compliance with Rule 12g3-2(b) or Exchange Act registration without unduly burdening them. --------------------------------------------------------------------------- \119\ See the letters of the ABA, BNY, JPMorganChase, Pink OTC, and Shearman & Sterling. \120\ The ABA suggested a five-year transition period. --------------------------------------------------------------------------- 2. Regarding Processing of Paper Submissions We expect that, following the effectiveness of the adopted rule amendments, some Rule 12g3-2(b)-exempt companies will continue to submit their non-U.S. disclosure documents in paper to the Commission either because they are unaware of the amendments or lack electronic publishing capabilities. In order to assist those companies in complying with the new amendments, and because there may also be some investors who currently do not have ready access to the Internet, we are adopting a three-month transition period, as proposed. During this period, the Commission will continue to process paper Rule 12g3-2(b) submissions and make them publicly available in the Public Reference Room for three months following the effectiveness of the rule amendments. Thereafter, the Commission will no longer process paper Rule 12g3-2(b) submissions. An issuer that continues to make Rule 12g3- 2(b) submissions in paper after this three-month period, and does not publish the submitted documents electronically as required, will no longer be able to claim the Rule 12g3-2(b) exemption. Those commenters that addressed the matter supported such a transition period,\121\ although one commenter suggested a one-year period instead of a three-month period.\122\ Because of recent advances in information technology, we continue to believe that three months will be sufficient time for all Rule 12g3-2(b)-exempt issuers to develop the capabilities to publish electronically their non-U.S. disclosure documents, and for investors and other interested persons to determine how and where to access those electronically published documents. --------------------------------------------------------------------------- \121\ See the letters of the ABA, BNY and Pink OTC. \122\ See the BNY letter. --------------------------------------------------------------------------- III. Paperwork Reduction Act The final rule amendments contain ``collection of information'' requirements within the meaning of the Paperwork Reduction Act of 1995 (``PRA'').\123\ The title of the affected collections of information are submissions under Exchange Act Rule 12g3-2 (OMB Control No. 3235- 0119) and Securities Act Form F-6 (OMB Control No. 3235-0292). 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. Compliance with the amendments to Rule 12g3-2 and Form F-6 is mandatory. --------------------------------------------------------------------------- \123\ 44 U.S.C. 3501 et seq. --------------------------------------------------------------------------- Exchange Act Rule 12g3-2 is an exemptive rule that, under paragraph (b) of that rule, provides an exemption from Exchange Act Section 12(g) registration for a foreign private issuer that, on an ongoing basis, either submits copies of its material non-U.S. disclosure documents to the Commission in paper or publishes those documents on its Internet Web site or through an electronic information delivery system in its primary trading market. We adopted paragraph (b) of Rule 12g3-2 in order to provide information for U.S. investors concerning foreign private issuers with limited securities trading in U.S. capital markets. Securities Act Form F-6 is the form used to register ADRs, which are a special type of security issued by a U.S. bank, representing a specified amount of securities issued by a foreign company that are deposited with the bank. We adopted Form F-6 in order to provide investors with information concerning a foreign company's ADRs, as disclosed in the deposit agreement, which must be attached as an exhibit to the Form F-6. The hours and costs associated with making submissions under Exchange Act Rule 12g3-2(b) and preparing and filing Form F-6 constitute reporting and cost burdens imposed by those collections of information. We based our estimates of the effects that the final rule amendments will have on those collections of information primarily on our review of the most recently completed PRA submissions for Rule 12g3-2(b) documents and Form F-6, on the particular requirements for those submissions and form, and on other information, for example, concerning relative U.S. and foreign trading volume for foreign private issuers whose equity securities trade in the U.S. over-the-counter market. [[Page 52764]] The final rule amendments to Exchange Act Rule 12g3-2 will permit a foreign private issuer to claim the Rule 12g3-2(b) exemption, without having to submit paper copies of written materials to the Commission, if, among other requirements, it maintains a listing of the subject class of securities on one or more exchanges in its primary trading market. The final rule amendments define primary trading market to mean that at least 55 percent of the trading in the issuer's subject class of securities on a worldwide basis took place in, on or through the facilities of a securities market or markets in a single foreign jurisdiction or in no more than two foreign jurisdictions during the issuer's most recently completed fiscal year. The final rule amendments also provide that, if a foreign private issuer aggregates the trading of its subject class of securities in two foreign jurisdictions for the purpose of meeting the primary trading market definition, the trading for the issuer's securities in at least one of the two foreign jurisdictions must be larger than the trading in the United States for the same class of the issuer's securities. The final rule amendments further require that, as a condition to claiming the Rule 12g3-2(b) exemption, a non-Exchange Act reporting issuer must publish in English specified non-U.S. disclosure documents required by Rule 12g3-2(b) for its most recently completed fiscal year on its Internet Web site or through an electronic information delivery system in its primary trading market, instead of requiring their submission in paper as part of a written application to the Commission. The final rule amendments also require an issuer similarly to publish electronically specified non-U.S. disclosure documents in English on an ongoing basis for subsequent fiscal years as a condition to maintaining the Rule 12g3-2(b) exemption, rather than permitting their submission in paper to the Commission. The final amendments to Form F-6 will require a registrant to state that the issuer of the deposited securities, which is not an Exchange Act reporting company, publishes information in English required to maintain the Rule 12g3-2(b) exemption on the issuer's Internet Web site or through its primary trading market's electronic information delivery system.\124\ The final amendments will also require the registrant to disclose the address of the issuer's Internet Web site or electronic information delivery system. A registrant that already has an effective Form F-6 will have to disclose the address of where the issuer electronically publishes its non-U.S. disclosure documents under Rule 12g3-2(b) when the registrant first amends its Form F-6 following the effective date of the final rule amendments. --------------------------------------------------------------------------- \124\ The final amendments provide that the registrant of an unsponsored ADR facility may make the required representation based upon its reasonable good faith belief after exercising reasonable diligence. --------------------------------------------------------------------------- We have prepared the annual burden and cost estimates of the final rule amendments on Rule 12g3-2(b) submissions or publications and Form F-6 based on the following current estimates and assumptions: A foreign private issuer incurs 75% of the burden required to produce each Rule 12g3-2(b) submission or publication, excluding the initial application for the Rule 12g3-2(b) exemption and English translation work, and 25% of the burden required to perform work for the initial application and English translation for the Rule 12g3-2(b) submissions or publications; Outside firms, including legal counsel, accountants and other advisors incur 25% of the burden required to produce each Rule 12g3-2(b) submission or publication, not including the initial application for the Rule 12g3-2(b) exemption and English translation work, at an average cost of $400 per hour, and 75% of the burden required to produce the initial application at an average cost of $400 per hour, and 75% of the burden resulting from English translation work at an average cost of $125 per hour; English translation work constitutes on average 25% of the total work required for the Rule 12g3-2(b) submissions; A registrant satisfies 25% of the burden required to produce each Form F-6; and Outside firms, including legal counsel, accountants and other advisors, satisfy 75% of the burden required to produce each Form F-6 at an average cost of $400 per hour. We published a notice requesting comment on the collection of information requirements in the Proposing Release and submitted these requirements to the Office of Management and Budget (``OMB'') for review in accordance with the PRA.\125\ We received several comment letters regarding the proposed rule amendments, although none addressed their estimated effects on the collection of information requirements. We have revised the proposed rule amendments in response to those comments. As a result, we have revised the estimated reporting and cost burdens of the rule amendments, as discussed below. --------------------------------------------------------------------------- \125\ 44 U.S.C. 3507(d) and 5 CFR 1320.11. --------------------------------------------------------------------------- A. Rule 12g3-2(b) Submissions or Publications We estimate that, currently under Rule 12g3-2(b), on an annual basis: 1,036 foreign private issuers claim the Rule 12g3-2(b) exemption; Each issuer makes on average 12 submissions or publications, for a total of 12,432 submissions or publications under Rule 12g3-2(b); Production of those Rule 12g3-2(b) submissions or publications requires a total of 49,728 burden hours, or an average of 4 burden hours per submission or publication (for all work performed by foreign private issuers and outside firms); Of those total burden hours, 13,700 hours result from work incurred by 685 issuers to produce their initial Rule 12g3-2(b) applications; \126\ --------------------------------------------------------------------------- \126\ We previously estimated that 685 issuers obtained the Rule 12g3-2(b) exemption before the adoption of Rule 12h-6, which eliminated the application process for issuers that deregister pursuant to that new rule. See Release No. 34-55540. All of the 685 issuers obtained the Rule 12g3-2(b) exemption after having submitted a letter application to the Commission. Based on a review of several Rule 12g3-2(b) applications, and an assessment of Rule 12g3-2(b)'s requirements and current practice, we estimated then, and continue to estimate, that it takes approximately 20 hours on average to complete a Rule 12g3-2(b) letter application. 685 x 20 hrs. = 13,700 hrs. --------------------------------------------------------------------------- Foreign private issuers incur a total of 25,943 burden hours \127\ to produce the Rule 12g3-2(b) submissions or publications, or an average of 2.1 burden hours per submission or publication; \128\ and --------------------------------------------------------------------------- \127\ 49,728 hrs. - 13,700 hrs. = 36,028 hrs. for work excluding application work. 36,028 hrs. x .25 = 9,007 hrs. for English translation work. 36,028 hrs. - 9,007 hrs. = 27,021 hrs. x .75 = 20,266 hrs. for non-English translation work. 9,007 hrs. x .25 = 2,252 hrs. for English translation work. 13,700 hrs. x .25 = 3,425 hrs. for application work. 20,266 hrs. + 2,252 hrs. + 3,425 hrs. = 25,943 hrs. for total work performed by foreign private issuers. 25,943 hrs./12,432 = 2.1 hrs per submission or publication. \128\ The last OMB-approved submission for Rule 12g3-2(b) reported 31,080 burden hours for foreign private issuers. Our current estimate of 25,943 burden hours is due to our assessment of the average annual burden hours required to produce written applications under Rule 12g3-2(b), most of which are incurred by outside firms. The decrease in hours represents an adjustment to the previous OMB-approved burden estimate for Rule 12g3-2(b), which we noted when submitting the PRA estimate for the Proposing Release. --------------------------------------------------------------------------- Outside firms perform service at a total cost of $7,656,375 \129\ to produce [[Page 52765]] the Rule 12g3-2(b) submissions or publications.\130\ --------------------------------------------------------------------------- \129\ 27,021 hrs. x .25 = 6,755 hrs. x $400/hr. = $2,702,000 for non-English translation work. 9,007 hrs. x .75 = 6,755 hrs. x $125/ hr. = $844,375 for English translation work. 13,700 hrs. x .75 = 10,275 hrs. x $400/hr. = $4,110,000 for application work. $2,702,000 + $844,375 + $4,110,000 = $7,656,375 for total work performed by outside firms. \130\ The last OMB-approved submission for Rule 12g3-2(b) reported $4,895,100 in total costs for outside firms. Our current estimate of $7,656,375 is due to the previously noted assessment of the average annual burden hours required to produce written applications under Rule 12g3-2(b). This increase in costs represents an adjustment to the previous OMB-approved cost estimate for Rule 12g3-2(b), which we noted when submitting the PRA estimate for the Proposing Release. --------------------------------------------------------------------------- We estimate that, on an annual basis, up to 350 additional foreign private issuers could claim the Rule 12g3-2(b) exemption as a result of the amendments to Rule 12g3-2 we are adopting today.\131\ This increase in the number of Rule 12g3-2(b)-exempt issuers would cause: --------------------------------------------------------------------------- \131\ We previously estimated that the proposed rule amendments would cause an additional 150 issuers to claim the Rule 12g3-2(b) exemption. We have increased the estimated number of issuers affected by the final rule amendments in part due to the elimination of the proposed condition that would have required an issuer to have its U.S. trading volume no greater than 20 percent of its worldwide trading volume for its last fiscal year. Under the final rule amendments, an issuer must still meet the foreign listing/primary trading market condition, which effectively limits the issuer's U.S. trading volume to no greater than 45%. The increase in the estimated number of issuers affected by the final rule amendments is also due to a reconsideration of the number of unsponsored ADR facilities that could result from the amended rules. --------------------------------------------------------------------------- The number of issuers claiming the Rule 12g3-2(b) exemption to total 1,386; The number of Rule 12g3-2(b) publications to total 16,632; \132\ --------------------------------------------------------------------------- \132\ 1,386 x 12 = 16,632 publications. --------------------------------------------------------------------------- The number of burden hours required to produce these Rule 12g3-2(b) publications to total 59,528 hours (for all work performed by issuers and outside firms); \133\ --------------------------------------------------------------------------- \133\ 16,632 x 4 hrs. = 66,528 hrs. 350 x 20 hrs. = 7,000 hrs. of work saved by the elimination of the written application requirement. 66,528 hrs. - 7,000 hrs. = 59,528 hrs. --------------------------------------------------------------------------- The number of burden hours incurred by foreign private issuers to produce the Rule 12g3-2(b) publications to total 37,206 hours, or 2.2 burden hours per publication; \134\ and --------------------------------------------------------------------------- \134\ 59,528 hrs. x .25 = 14,882 hrs. for English translation work. 59,528 hrs. - 14,882 hrs. = 44,646 hrs.; 44,646 hrs. x .75 = 33,485 hrs. for non-English translation work; 14,882 hrs. x .25 = 3,721 hrs. for English translation work; 33,485 hrs. + 3,721 hrs. = 37,206 total hrs. incurred by foreign private issuers. 37,206 hrs./ 16,632 = 2.2 hrs. per publication. This represents an increase of 6,126 hrs. from the most recent OMB-approved burden estimate for Rule 12g3-2(b) submissions or publications. Using a rate of $175/hr. for in-house work, the adopted amendments could result in $6,511,050 of in-house costs incurred by foreign private issuers compared to $5,439,000 of in-house costs based on the previous OMB-approved burden estimate for Rule 12g3-2(b) submissions or publications. 37,206 hrs. x $175/hr. = $6,511,050. 31,080 hrs. x $175/hr. = $5,439,000. --------------------------------------------------------------------------- Outside firms perform services at a total cost of $5,860,050 \135\ to produce the Rule 12g3-2(b) publications.\136\ --------------------------------------------------------------------------- \135\ 44,646 hrs. x .25 = 11,162 hrs. x $400/hr. = $4,464,800 for non-English translation work; 14,882 hrs. x .75 = 11,162 hrs. x $125/hr. = $1,395,250 for English translation work; $4,464,800 + $1,395,250 = $5,860,050 for total costs incurred by outside firms. This represents an increase of $964,950 from the most recent OMB- approved cost estimate for Rule 12g3-2(b) submissions or publications. \136\ Based on the above estimates, the amendments could result in a $2,037,000 increase in Rule 12g3-2(b) costs. $6,511,050 + $5,860,050 = $12,371,100 in total post-amendment Rule 12g3-2(b) costs. $5,439,000 + $4,895,100 = $10,334,100 in total pre-amendment Rule 12g3-2(b) costs. $12,371,100 - $10,334,100 = $2,037,000 increase in Rule 12g3-2(b) costs. --------------------------------------------------------------------------- B. Form F-6 We currently estimate that, on an annual basis: 150 registrants file Form F-6; Each registrant files one Form F-6, for a total of 150 Form F-6s; Production of these Form F-6s requires 150 burden hours, or one burden hour per Form F-6 (for all work performed by registrants and outside firms); Of those total hours, registrants incur 38 hours to produce the Form F-6s, or an average of .25 hours per Form F-6; \137\ and --------------------------------------------------------------------------- \137\ 150 hrs. x .25 = 38 hrs. --------------------------------------------------------------------------- Outside firms perform services at a total cost of $45,000 to produce the Form F-6s.\138\ --------------------------------------------------------------------------- \138\ 150 hrs. x .75 x $400/hr. = $45,000. --------------------------------------------------------------------------- We estimate that, on an annual basis, approximately 350 additional registrants could file Form F-6 as a result of the final rule amendments. We further estimate that, as a result of the final rule amendments, the burden required to produce each Form F-6 would increase by .5 hours. This increase in the number of Form F-6s and burden hours would cause: The number of Form F-6s filed to increase by 350 for a total of 500; The total hours required to produce the Form F-6s to increase by 525 hours for a total of 675 hours, or 1.35 hours per Form F-6; \139\ --------------------------------------------------------------------------- \139\ For the additional 350 filers: 350 x 1.5 hrs. = 525 hrs., 525 hrs. + 150 hrs. = 675 hrs., 675 hrs./500 = 1.35 hrs. per Form F- 6. --------------------------------------------------------------------------- The number of burden hours incurred by registrants to produce the Form F-6s to increase by 131 hours to 169 hours, or.34 hours per Form F-6; \140\ and --------------------------------------------------------------------------- \140\ 675 hrs. x .25 = 169 hrs., 169 hrs. - 38 hrs. = 131 hrs., 169 hrs./500 = .34 hr. per Form F-6. Using a rate of $175/hr. for in-house work, the adopted amendments could result in $29,575 of in- house costs incurred by foreign private issuers compared to $6,650 of pre-amendment in-house costs. 169 hrs. x $175/hr. = $29,575. 38 hrs. x $175/hr. = $6,650. --------------------------------------------------------------------------- Outside firms to perform services at a total cost of $202,400 (an increase of $157,400) \141\ to produce the Form F-6s.\142\ --------------------------------------------------------------------------- \141\ 675 hrs. x .75 = 506 hrs. x $400/hr. = $202,400. $202,400 - $45,000 = $157,400. \142\ Based on the above estimates, the amendments could result in a $180,325 increase in Form F-6 costs. $29,575 + $202,400 = $231,975 in total post-amendment Form F-6 costs. $6,650 + $45,000 = $51,650 in total pre-amendment Form F-6 costs. $231,975 - $51,650 = $180,325 increase in Form F-6 costs. Thus, considering the estimated effects on both Rule 12g3-2(b) submissions and publications and Form F-6, the amendments could result in a $2,217,325 increase in total costs. $2,037,000 + $180,325 = $2,217,325. --------------------------------------------------------------------------- IV. Cost-Benefit Analysis A. Expected Benefits The adopted rule amendments are designed to encourage more foreign companies, which have not listed or otherwise publicly sold their securities in the United States, to claim the Rule 12g3-2(b) exemption, and thereby require them to publish on the Internet material disclosure documents in English, enhancing the ability of U.S. investors to trade equity securities of such companies in the U.S. over-the-counter market. The Rule 12g3-2(b) exemption permits a foreign company to have established an unlisted ADR facility under which its equity securities are traded as ADRs in the U.S. over-the-counter market for the convenience of U.S. investors, even if its U.S. investors exceed the Section 12(g) shareholder thresholds.\143\ The Rule 12g3-2(b) exemption also permits a foreign company to have its equity securities traded in the form of ordinary shares through the U.S. over-the-counter market, makes it easier for broker-dealers to fulfill their obligations under Exchange Act Rule 15c2-11, and facilitates the resale of a foreign company's securities to qualified institutional buyers in the United States under Securities Act Rule 144A. --------------------------------------------------------------------------- \143\ Use of an ADR facility makes it easier for a U.S. investor to receive dividends in U.S. dollars. Moreover, because the clearance and settlement process for ADRs generally is the same for securities of domestic companies that are traded in U.S. markets, a U.S. holder of an ADR is able to hold securities of a foreign company that trades, clears and settles within automated U.S. systems and within U.S. time periods. --------------------------------------------------------------------------- The adopted rule amendments should result in new investment opportunities in foreign securities for U.S. investors by encouraging more foreign companies to claim the Rule 12g3-2(b) exemption and thereby have their securities traded in the United States over-the- counter market. The new investment opportunities in foreign securities may also lead to improved diversification in the portfolios of U.S. investors. The adopted rule amendments will encourage more foreign companies to [[Page 52766]] claim the Rule 12g3-2(b) exemption by reducing the costs of obtaining that exemption for foreign private issuers in two ways. First, the rule amendments will enable an otherwise eligible issuer to claim the Rule 12g3-2(b) exemption, regardless of the number of its U.S. security holders, as long as it maintains a listing of the subject class of equity securities on one or more exchanges in no more than two foreign jurisdictions constituting its primary trading market. The rule amendments define ``primary trading market'' to mean that at least 55 percent of the worldwide trading volume of the issuer's subject class of securities occurs in no more than two foreign jurisdictions, and the trading volume in one of the foreign jurisdictions must be larger than the U.S. trading volume for the same class of securities. Currently Rule 12g3-2(b) requires an issuer to disclose the number of its U.S. security holders and the percentage of its outstanding securities held by them when applying for the Rule's exemption from Exchange Act registration.\144\ Since it is typically more difficult for a foreign company to calculate the number of its U.S. holders than to determine its U.S. or foreign trading volume, the adopted rule amendments should make it easier for more foreign companies to claim the exemption and thereby have their securities traded in the U.S. over-the-counter market for the benefit of U.S. investors. --------------------------------------------------------------------------- \144\ An issuer must also currently recalculate the number of its U.S. security holders when applying for reinstatement of the Rule 12g3-2(b) exemption should it lose that exemption due to non- compliance with the Rule's ongoing requirements. --------------------------------------------------------------------------- Second, the adopted rule amendments will eliminate the current written application process that requires an issuer to submit in paper specified information concerning, for example, its non-U.S. disclosure requirements, along with paper copies of its non-U.S. disclosure documents published since the beginning of its last fiscal year. Since outside law firms typically perform most of the work required for the application, the rule amendments should reduce Rule 12g3-2(b) costs for foreign companies and encourage more of them to have their securities traded in the U.S. over-the-counter market pursuant to the Rule 12g3- 2(b) exemption for the benefit of U.S. investors. The adopted rule amendments will further benefit U.S. investors by requiring any foreign company that claims the Rule 12g3-2(b) exemption to publish in English specified non-U.S. disclosure documents on its Internet Web site or through an electronic information delivery system that is generally available to the public in its primary trading market. Currently an issuer that has obtained the Rule 12g3-2(b) exemption upon application may submit its non-U.S. documents on an ongoing basis in paper to the Commission. By requiring the electronic publication in English of specified non-U.S. documents for any issuer claiming the Rule 12g3-2(b) exemption, the adopted amendments should make it easier for U.S. investors to gain access to a foreign private issuer's material non-U.S. disclosure documents and make better informed decisions regarding whether to invest in that issuer's equity securities. B. Expected Costs Investors will incur costs from the adopted rule amendments to the extent that the amendments encourage more foreign companies, which otherwise would be required to register their equity securities under the Exchange Act, to claim the Rule 12g3-2(b) exemption, where the information, enforcement remedies, and other effects of registration are valuable to investors. We estimate that, on an annual basis, approximately 350 additional foreign private issuers could claim the Rule 12g3-2(b) exemption as a result of the adopted amendments to Rule 12g3-2. Some less technologically capable investors may also incur costs resulting from the search and retrieval of a foreign company's electronically published documents. However, we expect those costs to be less than the costs that investors currently must incur to obtain written copies of a foreign company's non-U.S. disclosure documents submitted in paper to the Commission. A foreign company will incur costs resulting from the amended rule's requirement to publish electronically specified non-U.S. disclosure documents in English to the extent that it is not already required to, or does not already, do so pursuant to any applicable law or rule. A foreign private issuer will also incur costs resulting from its required annual determination regarding whether it is still in compliance with the amended rule's primary trading market provision. However, those costs will likely be less than the costs that an issuer currently must incur when calculating the number of its U.S. holders pursuant to Rule 12g3-2(b). If, because of those costs, the foreign company does not claim or maintain the Rule 12g3-2(b) exemption, U.S. investors interested in trading in the securities of that company would have to resort to trading in the company's non-U.S. primary trading market. Those U.S. investors could incur costs associated with finding and contracting with a broker-dealer who is able to trade in the foreign reporting company's primary trading market. U.S. investors could also face additional costs resulting from currency conversion and higher transaction costs trading the securities in a foreign market. U.S. investors would also incur costs from lost investment opportunities and possibly lost diversification benefits to the extent that they choose not to trade in a foreign company's securities that are not available in the U.S. over-the-counter market. V. Consideration of Impact on the Economy, Burden on Competition and Promotion of Efficiency, Competition and Capital Formation Analysis When adopting rules under the Exchange Act, Section 23(a)(2) of the Exchange Act \145\ requires us to consider the impact that any new rule will have on competition. Section 23(a)(2) also prohibits us from adopting any rule that will impose a burden on competition not necessary or appropriate in furtherance of the purposes of the Exchange Act. Furthermore, when engaging in rulemaking that requires us to consider or determine whether an action is necessary or appropriate in the public interest, Section 2(b) \146\ of the Securities Act and Section 3(f) of the Exchange Act \147\ require the Commission to consider whether the action will promote efficiency, competition and capital formation. --------------------------------------------------------------------------- \145\ 15 U.S.C. 78w(a)(2). \146\ 15 U.S.C. 77b(b). \147\ 15 U.S.C. 78c(f). --------------------------------------------------------------------------- In the Proposing Release, we considered the proposed rule amendments in light of the standards set forth in the above statutory sections. We solicited comment on whether, if adopted, the proposed rule amendments would result in any anti-competitive effects or promote efficiency, competition and capital formation. We further encouraged commenters to provide empirical data or other facts to support their views on any anti-competitive effects or any burdens on efficiency, competition or capital formation that might result from adoption of the proposed amendments. We did not receive any comments or any empirical data in this regard concerning the proposed amendments. Accordingly, since the adopted rule amendments are similar to the proposed rule amendments, we continue to believe the amended rules will [[Page 52767]] contribute to efficiency, competition and capital formation. The adopted amendments revise the rules that determine when a foreign private issuer may claim the exemption from Exchange Act Section 12(g) registration under Exchange Act Rule 12g3-2(b). That exemption permits limited trading of an issuer's exempted equity securities in the over-the-counter market in the United States as long as the issuer submits its non-U.S. disclosure documents to the Commission, notwithstanding that the issuer exceeds the Section 12(g) registration thresholds. Many foreign private issuers rely on the Rule 12g3-2(b) exemption to have established ADR facilities, which make it easier for U.S. investors to trade in those issuers' equity securities. The Rule 12g3-2(b) exemption also makes it easier for broker-dealers to meet their Exchange Act Rule 15c2-11 obligations, and effect the resale of a foreign private issuer's securities to QIBs under Securities Act Rule 144A. The adopted rule amendments will permit a foreign private issuer to claim the Rule 12g3-2(b) exemption without having to submit a paper application to the Commission, as is currently required, if, among other conditions, the issuer maintains a listing on one or more exchanges in no more than two foreign jurisdictions that constitute its primary trading market. The adopted rule amendments will also require an issuer to publish in English specified non-U.S. disclosure documents on its Internet Web site or through an electronic information delivery system that is generally available to the public in its primary trading market. Currently an issuer that has obtained the Rule 12g3-2(b) exemption by application may submit its non-U.S. disclosure documents in paper to the Commission. By enabling a qualified foreign private issuer to claim the Rule 12g3-2(b) exemption automatically, and without regard to the number of its U.S. shareholders, as is currently the case, the adopted rule amendments should encourage more foreign private issuers to claim the Rule 12g3-2(b) exemption by lowering the costs of obtaining that exemption. Consequently, the adopted rule amendments should increase the efficiency of foreign private issuers' claiming the exemption and foster the trading of foreign companies' equity securities in the U.S. over-the-counter market, for example, by enabling the establishment of additional ADR facilities and making it easier for broker-dealers to meet their Rule 15c2-11 obligations with respect to foreign securities. The enhanced ability of investors to trade foreign securities in the United States should help encourage competition between domestic and foreign firms for investors in the U.S. over-the-counter market. Moreover, by requiring the electronic publication in English of specified non-U.S. disclosure documents for any issuer claiming the Rule 12g3-2(b) exemption, the adopted amendments should make it easier for U.S. investors to gain access to a foreign private issuer's material non-U.S. disclosure documents and make better informed decisions regarding whether to invest in that issuer's equity securities. Thus, the proposed amendments should foster increased efficiency in the trading of the issuer's securities. VI. Regulatory Flexibility Act Certification Under Section 605(b) of the Regulatory Flexibility Act,\148\ we certified that, when adopted, the proposed rule amendments would not have a significant economic impact on a substantial number of small entities. We included this certification in Part VI of the Proposing Release. While we encouraged written comments regarding this certification, no commenters responded to this request. --------------------------------------------------------------------------- \148\ 5 U.S.C. 605(b). --------------------------------------------------------------------------- VII. Statutory Basis and Text of Rule Amendments We are adopting the amendments to Securities Act Form F-6, Exchange Act Rules 12g3-2 and 15c2-11, and Exchange Act Forms 40-F, 6-K, and 15F under the authority in Sections 6, 7, 10 and 19 of the Securities Act \149\ and Sections 3(b), 12, 13, 23 and 36 of the Exchange Act.\150\ --------------------------------------------------------------------------- \149\ 15 U.S.C. 77f, 77g, 77h, 77j, and 77s. \150\ 15 U.S.C. 78c, 78l, 78m, 78w, and 78mm. --------------------------------------------------------------------------- Text of Rule Amendments List of Subjects in 17 CFR Parts 239, 240 and 249 Reporting and recordkeeping requirements, Securities. 0 For the reasons set out in the preamble, we are amending Title 17, Chapter II of the Code of Federal Regulations as follows. PART 239--FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933 0 1. The authority citation for part 239 continues to read in part as follows: Authority: 15 U.S.C. 77f, 77g, 77h, 77j, 77s, 77z-2, 77z-3, 77sss, 78c, 78l, 78m, 78n, 78o(d), 78u-5, 78w(a), 78ll, 78mm, 80a- 2(a), 80a-3, 80a-8, 80a-9, 80a-10, 80a-13, 80a-24, 80a-26, 80a-29, 80a-30, and 80a-37, unless otherwise noted. * * * * * 0 2. Amend Form F-6 (referenced in Sec. 239.36) by revising Item 2 of Part I 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. FORM F-6 Registration Statement Under the Securities Act of 1933 for Depositary Shares Evidenced by American Depositary Receipts * * * * * Part I--Information Required In Prospectus * * * * * Item 2. Available Information Provide the information in either (a) or (b) below, whichever is applicable. (a) State that the foreign issuer publishes information in English required to maintain the exemption from registration under Rule 12g3- 2(b) under the Securities Exchange of 1934 on its Internet Web site or through an electronic information delivery system generally available to the public in its primary trading market. Then disclose the address of the foreign issuer's Internet Web site or the electronic information delivery system in its primary trading market. (b) State that the foreign issuer is subject to the periodic reporting requirements of the Securities Exchange Act of 1934 and accordingly files reports with the Commission. Then disclose that these reports are available for inspection and copying through the Commission's EDGAR system or at public reference facilities maintained by the Commission in Washington, DC. Note to Item 2: In the case of an unsponsored ADR facility, you may base your representation that the issuer publishes information in English required to maintain the exemption from registration under Exchange Act Rule 12g3-2(b) upon your reasonable, good faith belief after exercising reasonable diligence. * * * * * PART 240--GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF 1934 0 3. The authority citation for part 240 continues to read in part as follows: Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 77s, 77z-2, 77z-3, 77eee, 77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78e, 78f, 78g, 78i, 78j, 78j-1, 78k, 78k-1, 78l, 78m, 78n, 78o, 78p, 78q, 78s, 78u-5, 78w, 78x, 78ll, 78mm, 80a- [[Page 52768]] 20, 80a-23, 80a-29, 80a-37, 80b-3, 80b-4, 80b-11, and 7201 et seq.; and 18 U.S.C. 1350, unless otherwise noted. * * * * * 0 4. Amend Sec. 240.12g3-2 by revising paragraphs (b), (c), and (d), and removing paragraphs (e) and (f), to read as follows: Sec. 240.12g3-2 Exemptions for American depositary receipts and certain foreign securities. * * * * * (b)(1) A foreign private issuer shall be exempt from the requirement to register a class of equity securities under section 12(g) of the Act (15 U.S.C. 78l(g)) if: (i) The issuer is not required to file or furnish reports under section 13(a) of the Act (15 U.S.C. 78m(a)) or section 15(d) of the Act (15 U.S.C. 78o(d)); (ii) The issuer currently maintains a listing of the subject class of securities on one or more exchanges in a foreign jurisdiction that, either singly or together with the trading of the same class of the issuer's securities in another foreign jurisdiction, constitutes the primary trading market for those securities; and (iii) The issuer has published in English, on its Internet Web site or through an electronic information delivery system generally available to the public in its primary trading market, information that, since the first day of its most recently completed fiscal year, it: (A) Has made public or been required to make public pursuant to the laws of the country of its incorporation, organization or domicile; (B) Has filed or been required to file with the principal stock exchange in its primary trading market on which its securities are traded and which has been made public by that exchange; and (C) Has distributed or been required to distribute to its security holders. Note 1 to Paragraph (b)(1): For the purpose of paragraph (b) of this section, primary trading market means that at least 55 percent of the trading in the subject class of securities on a worldwide basis took place in, on or through the facilities of a securities market or markets in a single foreign jurisdiction or in no more than two foreign jurisdictions during the issuer's most recently completed fiscal year. If a foreign private issuer aggregates the trading of its subject class of securities in two foreign jurisdictions for the purpose of this paragraph, the trading for the issuer's securities in at least one of the two foreign jurisdictions must be larger than the trading in the United States for the same class of the issuer's securities. When determining an issuer's primary trading market under this paragraph, calculate average daily trading volume in the United States and on a worldwide basis as under Rule 12h-6 under the Act (Sec. 240.12h-6). Note 2 to Paragraph (b)(1): Paragraph (b)(1)(iii) of this section does not apply to an issuer when claiming the exemption under paragraph (b) of this section upon the effectiveness of the termination of its registration of a class of securities under section 12(g) of the Act, or the termination of its obligation to file or furnish reports under section 15(d) of the Act. Note 3 to Paragraph (b)(1): Compensatory stock options for which the underlying securities are in a class exempt under paragraph (b) of this section are also exempt under that paragraph. (2)(i) In order to maintain the exemption under paragraph (b) of this section, a foreign private issuer shall publish, on an ongoing basis and for each subsequent fiscal year, in English, on its Internet Web site or through an electronic information delivery system generally available to the public in its primary trading market, the information specified in paragraph (b)(1)(iii) of this section. (ii) An issuer must electronically publish the information required by paragraph (b)(2) of this section promptly after the information has been made public. (3)(i) The information required to be published electronically under paragraph (b) of this section is information that is material to an investment decision regarding the subject securities, such as information concerning: (A) Results of operations or financial condition; (B) Changes in business; (C) Acquisitions or dispositions of assets; (D) The issuance, redemption or acquisition of securities; (E) Changes in management or control; (F) The granting of options or the payment of other remuneration to directors or officers; and (G) Transactions with directors, officers or principal security holders. (ii) At a minimum, a foreign private issuer shall electronically publish English translations of the following documents required to be published under paragraph (b) of this section if in a foreign language: (A) Its annual report, including or accompanied by annual financial statements; (B) Interim reports that include financial statements; (C) Press releases; and (D) All other communications and documents distributed directly to security holders of each class of securities to which the exemption relates. (c) The exemption under paragraph (b) of this section shall remain in effect until: (1) The issuer no longer satisfies the electronic publication condition of paragraph (b)(2) of this section; (2) The issuer no longer maintains a listing of the subject class of securities on one or more exchanges in a primary trading market, as defined under paragraph (b)(1) of this section; or (3) The issuer registers a class of securities under section 12 of the Act or incurs reporting obligations under section 15(d) of the Act. (d) Depositary shares registered on Form F-6 (Sec. 239.36 of this chapter), but not the underlying deposited securities, are exempt from section 12(g) of the Act under this paragraph. 0 5. Amend Sec. 240.15c2-11 by revising paragraph (a)(4) to read as follows: Sec. 240.15c2-11 Initiation or resumption of quotations without specific information. * * * * * (a) * * * (4) The information that, since the beginning of its last fiscal year, the issuer has published pursuant to Sec. 240.12g3-2(b), and which the broker or dealer shall make reasonably available upon the request of a person expressing an interest in a proposed transaction in the issuer's security with the broker or dealer, such as by providing the requesting person with appropriate instructions regarding how to obtain the information electronically; or * * * * * PART 249--FORMS, SECURITIES EXCHANGE ACT OF 1934 0 6. The authority citation for part 249 continues to read in part as follows: Authority: 15 U.S.C. 78a et seq. and 7201 et seq.; and 18 U.S.C. 1350, unless otherwise noted. * * * * * 0 7. Amend Form 40-F (referenced in Sec. 249.240f), the cover page, by removing the second to last paragraph, which pertains to information furnished pursuant to Rule 12g3-2(b), including the check boxes. Note: The text of Form 40-F does not and this amendment will not appear in the Code of Federal Regulations. 0 8. Amend Form 6-K (referenced in Sec. 249.306), the cover page, by removing the two paragraphs, which pertain to information furnished pursuant to Rule 12g3-2(b), following the second Note, including the check boxes. [[Page 52769]] Note: The text of Form 6-K does not and this amendment will not appear in the Code of Federal Regulations. 0 9. Amend Form 15F (referenced in Sec. 249.324) by revising General Instruction E and Item 9 of Part II to read as follows: Note: The text of Form 15F does not and this amendment will not appear in the Code of Federal Regulations. FORM 15F Certification of a Foreign Private Issuer's Termination of Registration of a Class of Securities Under Section 12(G) of the Securities Exchange Act of 1934 or Its Termination of the Duty To File Reports Under Section 13(A) or Section 15(D) of the Securities Exchange Act of 1934 * * * * * General Instructions * * * * * E. Rule 12g3-2(b) Exemption Regardless of the particular Rule 12h-6 provision under which it is proceeding, a foreign private issuer that has filed a Form 15F regarding a class of equity securities shall receive the exemption under Rule 12g3-2(b) (17 CFR 240.12g3-2(b)) for the subject class of equity securities immediately upon the effective date of its termination of registration and reporting under Rule 12h-6. Refer to Rules 12g3-2(b)(2) and (b)(3) (17 CFR 240.12g3-2(b)(2) and (b)(3)) and Rule 12g3-2(c) (17 CFR 240.12g3-2(c)) for the conditions that a foreign private issuer must meet in order to maintain the Rule 12g3-2(b) exemption following its termination of Exchange Act registration and reporting. * * * * * Part II Item 9. Rule 12g3-2(b) Exemption Disclose the address of your Internet Web site or of the electronic information delivery system in your primary trading market on which you will publish the information required to maintain the exemption under Rule 12g3-2(b). Instruction to Item 9 Refer to Rule 12g3-2(b)(3)(ii) (17 CFR 240.12g3-2(b)(3)(ii)) for instructions regarding providing English translations of documents required to maintain the Rule 12g3-2(b) exemption. * * * * * By the Commission. Dated: September 5, 2008. Florence E. Harmon, Acting Secretary. [FR Doc. E8-20995 Filed 9-9-08; 8:45 am] BILLING CODE 8010-01-P
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