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Release No. 33-6459 Release No. 34-19612 March 18, 1983
American Depositary ReceiptsACTION: Final rules.SUMMARY: The Commission today announces the adoption of (1) a new form for registering Depositary Shares under the Securities Act of 1933 replacing two existing forms; and (2) a rule allowing depositaries to designate the date and time of effectiveness of registration statements filed on that form. These actions simplify and streamline the registration process of Depositary Shares, codify current practices, and eliminate obsolete provisions. EFFECTIVE DATE: (Immediately upon publication in the FEDERAL REGISTER.) The staff will fully review the initial registration statements on Form F-6 filed by each depositary. Thereafter, the depositary may use the provisions of Rule 466. FOR FURTHER INFORMATION CONTACT: Carl T. Bodolus ((202) 272-3246) or Ronald Adee ((202) 272-3250), Office of International Corporate Finance, Division of Corporation Finance, Securities and Exchange Commission, 450 Fifth Street, N.W., Washington, D.C. 20549. SUPPLEMENTARY INFORMATION: The Commission is adopting several changes in its regulation of American Depositary Receipts ("ADRs") that include: a definition of the term Depositary Shares; a new Form F-6 to consolidate and replace Forms S-12 (17CFR239.19) and C-3 (17CFR239.5) for the registration of Depositary Shares under the Securities Act of 1933 (the "Securities Act") 15 U.S.C. 77a et seq. (1976 and Supp. III 1979; and Rule 466 17 CFR 230.466 that permits depositary banks to designate, under certain circumstances, the effective date and time of registration statements filed on Form F-6. The Commission solicited public comments on these changes in Release No. 33-6438 (November 19, 1982) 47 FR 53904. Two depositary banks and one law firm commented on the proposals. 1 The form and rules as adopted have been revised to be largely consistent with most of the comments except as explained below. First, the legal entity created by the agreement for the issuance of ADRs is required to sign a registration statement on Form F-6, although the depositary may sign on behalf of such entity. Two commentators disagreed with the proposal that the entity sign the registration statement even for sponsored arrangements because in those situations the foreign issuer and various officers and directors must sign the registration statement. The Commission believes that the signature of the depositary on behalf on behalf of the entity is necessary because the depositary must undertake to submit certain information to the Commission and must determine the effective date under Rule 466. 2 Signatures of the foreign issuer and its representatives would not bind the depositary. Second, one condition for the use of Form F-6 is that the foreign issuer be reporting under section 13(a) or 15(d) of the Exchange Act or the deposited shares be exempt under Rule 12g3-2(b) 17 CFR 240.12g3-2(b). Two commentators opposed this condition because it might preclude a depositary from establishing an ADR arrangement if the foreign issuer had not registered or established the exemption. Form F-6, as adopted, contains the requirement. The Commission wishes to emphasize that the ADR procedure, Form F-6, and old Form S-12, were intended to facilitate trading in foreign securities for which there is an existing market in the United States. Therefore, the foreign private issuer is likely to have an obligation to register its securities under section 12 or to have an exemption from registration. 3 Thus, in many situations the foreign private issuer has an obligation to register or establish the Rule 12g3-2(b) exemption before the ADR arrangement is created. In the past, many foreign private issuers for which an ADR arrangement is created will establish the Rule 12g3-2(b) exemption at the same time so the Commission envisions few practical problems with this eligibility condition. The typical fee structure for ADRs has remained virtually unchanged since 1928. In view of the significant inflation experienced since then, the Commission believes the ADR procedures should be revised to facilitate changes in fees. Form S-12 required the fee schedule to be printed on the ADR certificate. Although Form F-6 permits this, it also allows another procedure. Basically, the certificate may contain a general description of the fees charged, a statement that the fees may differ among depositaries, a statement that the depositary may change fees upon thirty days notice, and an undertaking to provide the fee schedule without charge upon request. 4 Thus, if fees are changed, a new fee schedule would be prepared but the outstanding certificates would not need to be replaced. List of Subjects in 17 CFR 200, 230,239,240,249: Administrative Practice and Procedure, Freedom of Information, Privacy, Reporting Requirements, and Securities. TEXT OF FINAL RULES 17 CFR Chapter II is amended as follows: PART 200--ORGANIZATION; CONDUCT AND ETHICS; AND INFORMATION AND REQUESTS 1. By adding Form F-6 to paragraph (b) of §200.800 to read as follows: §200.800 OMB control numbers assigned pursuant to the Paperwork Reduction Act. * * * * * 17 CFR part or * * * * * * * * * * (b) Display. PART 230--GENERAL RULES AND REGULATIONS, SECURITIES ACT OF 1933 2.By revising paragraph (a) of §230.174 to read as follows: §230.174 Delivery of prospectus by dealers; exemptions under section 4(3) of the Act. * * * * * (a) No prospectus need be delivered if the registration statement is on Form F-6 (§239.36 of this chapter). * * * * * 3. By adding the definition of "Depositary Share" after the definition of "Control" in §230.405 to read as follows: §230.405 Definitions of terms. * * * * * Depositary share. The term "depositary share" means a security, evidenced by an American Depositary Receipt, that represents a foreign security or a multiple of or fraction thereof deposited with a depositary. * * * * * 4. By revising paragraph (a)(1)(viii) of §230.415 to read as follows: §230.415 Delayed or continuous offering and sale of securities. (a) * * * (1) * * * (viii) Securities which are registered on Form F-6 (§239.36 of this chapter). * * * * * 5. By revising paragraph (j) of §230.457 to read as follows: §230.457 Computation of fee. * * * * * (j) Notwithstanding the other provisions of this rule, the proposed maximum aggregate offering price of Depositary Shares evidenced by American Depositary Receipts shall, only for the purpose of calculating the registration fee, be computed upon the basis of the maximum aggregate fees or charges to be imposed in connection with the issuance of such receipts. * * * * * 6. By adding §230.466 to read as follows: §230.466. Effective date of certain registration statements on Form F-6. (a) A depositary that previously has filed a registration statement on Form F-6 (§239.36 of this chapter) may designate a date and time for a registration statement (including post-effective amendments) on Form F-6 to become effective and such registration statement shall become effective in accordance with such designation if the following conditions are met: (1) The depositary previously has filed a registration statement on Form F-6 (§239.36 of this chapter), which the Commission has declared effective, with identical terms of deposit, except for the number of foreign securities a Depositary Share represents, and the depositary so certifies; and (2) The designation of the effective date and time is set forth on the facing-page of the registration statement, or in any pre-effective amendment thereto. A pre-effective amendment containing such a designation properly made shall be deemed to have been filed with the consent of the Commission. (b)(1) The Commission may, in the manner and under the circumstances set forth in paragraph (b)(2) of this section, suspend the ability of a depositary to designate the date and time of effectiveness of a registration statement, and such suspension shall remain in effect until the Commission furnishes written notice to the depositary that the suspension has been terminated. Any suspension, so long as it is in effect, shall apply to any registration statement that has been filed but has not, at the time of such suspension, become effective and to any registration statement the depositary files after such suspension. Any such suspension applies only to the ability to designate the date and time of effectiveness under paragraph (a) of this section and does not otherwise affect the registration statement. (2) Any suspension under paragraph (b)(1) of this section becomes effective when the Commission furnishes written notice thereof to the depositary. The Commission may issue a subpension if it appears to the Commission: (i) that any registration statement containing a designation under this section is incomplete or inaccurate in any material respect, whether or not such registration has become effective, or (ii) that the depositary has not complied with any of the conditions of this section. The depositary may petition the Commission to review the suspension. The Commission will order a hearing on the matter if a request for such a hearing is included in the petition. PART 239--FORMS PRESCRIBED UNDER THE SECURITIES ACT OF 1933 7. By removing §239.5 §239.5 Removed 8. By removing §239.19 §239.19Removed 9. By adding registration statement Form F-6 (§239.36) to read as follows (The Form does not appear in the Code of Federal Regulations): §239.36 Form F-6, for registration under the Securities Act of 1933 of depositary shares evidenced by American Depositary Receipts. Form F-6 may be used for the registration under the Securities Act of 1933 (the "Securities Act") of Depositary Shares evidenced by American Depositary Receipts ("ADRs") issued by a depositary against the deposit of the securities of a foreign issuer (regardless of the physical location of the certificates) if the following conditions are met: (a) The holder of the ADRs is entitled to withdraw the deposited securities at any time subject only to (1) temporary delays caused by closing transfer books of the depositary or the issuer of the deposited securities or the deposit of shares in connection with voting at a shareholders meeting, or the payment of dividends, (2) the payment of fees, taxes, and similar charges, and (3) compliance with any laws or governmental regulations relating to ADRs or to the withdrawal of deposited securities; (b) The deposited securities are offered or sold in transactions registered under the Securities Act or in transactions that would be exempt therefrom if made in the United States; and (c) As of the filing date of this registration statement, the issuer of the deposited securities is reporting pursuant to the periodic reporting requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934 or the deposited securities are exempt therefrom by Rule 12g3-2(b) (§240.12g3-2(b) of this chapter) unless the issuer of the deposited securities concurrently files a registration statement on another form for the deposited securities. CALCULATION OF REGISTRATION FEE$l FORM F-6 GENERAL INSTRUCTIONS I. Eligibility Requirements for Use of Form F-6 A. General. Form F-6 may be used for the registration under the Securities Act of 1933 (the "Securities Act") of Depositary Shares evidenced by American Depositary Receipts ("ADRs") issued by a depositary against the deposit of the securities of a foreign issuer (regardless of the physical location of the certificates) if the following conditions are met: (1) The holder of the ADRs is entitled to withdraw the deposited securities at any time subject only to (i) temporary delays caused by closing transfer books of the depositary or the issuer of the deposited securities or the deposit of shares in connection with voting at a shareholders meeting, or the payment of dividends, (ii) the payment of fees, taxes, and similar charges, and (iii) compliance with any laws or governmental regulations relating to ADRs or to the withdrawal of deposited securities; (2) The deposited securities are offered or sold in transactions registered under the Securities Act or in transactions that would be exempt therefrom if made in the United States; and (3) As of the filing date of this registration statement, the issuer of the deposited securities is reporting pursuant to the periodic reporting requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934 or the deposited securities are exempt therefrom by Rule 12g3-2(b) (§240.12g3-2(b) of this chapter) unless the issuer of the deposited securities concurrently files a registration statement on another form for the deposited securities. B. Registration of Deposited Securities. Form F-6 is available for registration of the Depositary Shares only. The registration of the deposited securities, if necessary, shall be on any other form the registrant is eligible to use. Alternatively, Depositary Shares may also be registered on any form used to register the deposited securities if such registration statement also conforms to the requirements of Parts I and II of Form F-6 and either the depositary or the legal entity created by the agreement for the issuance of ADRs signs the registration statement with respect to the disclosure and undertakings made in response to such requirements. The amount of fees charged need not be disclosed in the prospectus if the depositary makes and follows the undertakings in Item 4(c) and if the prospectus lists the various services for which fees may be charged, states that such fees may differ from those other depositaries charge, states that the fee schedule is available without charge from the depositary, and states that each registered holder of an ADR will receive thirty days notice of a change in the fee schedule. II. Amount of Securities; Filing Fee An ADR evidences one or more Depositary Shares, as defined in Rule 405 (§230.405 of this chapter). The registration statement relates to Depositary Shares, not the number of physical certificates issued. For example, if an ADR is issued against a Depositary Share, which equals two common shares in a foreign issuer, the registration of 100,000 Depositary Shares represents 200,000 common shares. If the depositary issues a certificate for 10,000 Depositary Shares and another for 15,000 Depositary Shares, then 75,000 (100,000 minus 25,000) Depositary Shares (not 99,998) remain available for distribution under the registration statement. Rule 457(j) (§230.457(j) of this chapter) describes the method of computing the filing fee. III. Application of General Rules and Regulations A. Attention is directed to the General Rules and Regulations under the Securities Act, particularly Regulation C (§230.400 et seq. of this chapter). That Regulation contains general requirements regarding the preparation and filing of registration statements. B. The prospectus may consist of the ADR certificate if it includes the information required in Part I of this Form. Such prospectus need not conform to the requirements of Rule 420 (§240.420 of this chapter) except that the type shall be roman type at least as large as 5 1/2-point modern type. C. The number of copies of the registration statement and of each amendment required by Rules 402 and 472 (§230.402 and §230.472 of this chapter) shall be filed with the Commission except that the number of additional copies referred to in Rule 402(b) may be reduced from ten to three and the number of additional copies referred to in Rule 472(a) may be reduced from eight to three. PART 1. INFORMATION REQUIRED IN PROSPECTUS Item 1. Description of Securities to be Registered. Furnish the information required by Item 202(f) of Regulation S-K (§229.202(f) of this chapter). Item 2. Available Information. State the information in either (a) or (b) below, whichever is applicable, and that the documents described therein can be inspected by holders of ADRs and copied at public reference facilities maintained by the Commission in Washington, D.C. (a) The foreign issuer furnishes the Commission with certain public reports and documents required by foreign law or otherwise under Rule 12g3-2(b) under the Securities Exchange Act of 1934. (b) The foreign issuer is subject to the periodic reporting requirements of the Securities Exchange Act of 1934 and, accordingly, files certain reports with the Commission. Part II. Information Not Required in Prospectus Item 3. Exhibits. Subject to the rules as to incorporation by reference, the exhibits specified below shall be filed as a part of the registration statement. Exhibits shall be appropriately lettered or numbered for convenient reference. Exhibits incorporated by reference may bear the designation given in the previous filing. Instruction 1 to Item 601 of Regulation S-K applies to this paragraph. (a) A copy of the Deposit Agreement or Deposit Agreements under which the securities registered hereunder are issued. If the Deposit Agreement is amended during the offering of the Depositary Shares, such amendments shall be filed as amendments to the registration statement. (b) Any other agreement, to which the depositary is a party relating to the issuance of the Depositary Shares registered hereby or the custody of the deposited securities represented thereby. (c) Every material contract relating to the deposited securities between the depositary and the issuer of the deposited securities in effect at any time within the last three years. (d) An opinion of counsel as to the legality of the securities being registered, indicating whether they will when sold be legally issued, and entitle the holders thereof to the rights specified therein. (e) Furnish the name of each dealer known to the registrant or depositary who (1) has deposited shares against issuance of ADRs within the past six months, (2) proposes to deposit shares against issuance of ADRs, or (3) assisted or participated in the creation of the plan for the issuance of the ADRs or the selection of the deposited securities. As to each such person indicate the number of securities proposed to be deposited to the extent known. The information furnished pursuant to this item is not to be deemed "filed" as part of the registration statement. (f) If the procedure in Rule 466 is being used, a certification in the following form: ____________________ Certification under Rule 466 The depositary,______________________________, represents and certifies the following: (1) That it previously had filed a registration statement on Form F-6 (Name and File No.), which the Commission declared effective, with terms of deposit identical to the terms of deposit of this registration statement except for the number of foreign securities a Depositary Share represents. (2) That its ability to designate the date and time of effectiveness under Rule 466 has not been suspended. Depositary______________________________ By Signature and Title______________________________ Item 4. Undertakings. Notwithstanding the provisions of Rule 415(a)(2) (§230.415(a)(2) of this chapter), the undertakings in Item 512(a) of Regulation S-K are not required. Furnish the following undertakings: (a) The depositary undertakes to furnish promptly the following information to the Commission semi-annually, beginning on or before six months after the effective date of the registration statement: (1) The following information in substantially the tabular form indicated: Number of Number of Total Amount of (2) The name of each dealer known to depositary depositing shares against issuance of ADRs during the period covered by the report. (b) The depositary hereby undertakes to make available at the principal office of the depositary in the United States, for inspection by holders of the ADRs, any reports and communications received from the issuer of the deposited securities which are both (1) received by the depositary as the holder of the deposited securities; and (2) made generally available to the holders of the underlying securities by the issuer. (c) If the amounts of fees charged are not disclosed in the prospectus, the depositary undertakes to prepare a separate document stating the amount of any fee charged and describing the service for which it is charged and to deliver promptly a copy of such fee schedule without charge to anyone upon request. The depositary undertakes to notify each registered holder of an ADR thirty days before any change in the fee schedule. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that all the requirements for filing on Form F-6 are met and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of ____________________, State of ____________________, on ____________________, 19 ____. Legal entity created by the agreement for the issuance of American Depositary Receipts for shares of ____________________. ______________________________ By Signature and Title ______________________________ Registrant ______________________________ By Signature and Title ______________________________ Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated. Signature______________________________ Title______________________________ Date______________________________ ____________________ Instructions. 1. The legal entity created by the agreement for the issuance of ADRs shall sign the registration statement as registrant. The depositary may sign on behalf of such entity, but the depositary for the issuance of ADRs itself shall not be deemed to be an issuer, a person signing the registration statement, or a person controlling such issuer. If the issuer of the deposited securities sponsors the ADR arrangement, the registration statement shall also be signed by the issuer and its principal executive officer or officers, its principal financial officer, its controller or principal accounting officer, at least a majority of the board of directors or persons performing similar functions, and its authorized representative in the United States. 2. The name of each person who signs the registration statement shall be typed or printed beneath his signature. Any person who occupies more than one of the specified positions shall indicate each capacity in which he signs the registration statement. Attention is directed to Rule 402 concerning manual signatures and Item 601 of Regulation S-K concerning signatures pursuant to powers of attorney. PART 240--GENERAL RULES AND REGULATIONS, SECURITIES EXCHANGE ACT OF 1934 10. By adding the definition of "Depositary Share" after the definition of "Control" in §240.12b-2 to read as follows: §240.12b-2 Definitions. * * * * * Depositary share. The term "depositary share" means a security, evidenced by an American Depositary Receipt, that represents a foreign security or a multiple of or faction thereof deposited with a depositary. * * * * * 11. By adding §240.15d-3 to read as follows: §240.15d-3 Reports for depositary shares registered on Form F-6. Annual and other reports are not required with respect to Depositary Shares registered on Form F-6 (§230.36 of this chapter) if the depositary furnishes the information required by Item 4(a) of that Form. The exemption in this rule does not apply to any deposited securities registered on any other form under the Securities Act of 1933. * * * * * PART 240--FORMS, SECURITIES EXCHANGE ACT OF 1934 12. By adding General Instruction H to Form 20-F (§249.220f) (the Form does not appear in the Code of Federal Regulations): §249.220f Registration of securities of foreign private issuers pursuant to Sections 12(b) or (g) and annual reports pursuant to Sections 13 and 15(d). General Instructions: * * * * * H. American Depositary Receipts (ADRs) This form, or any other form available for the registration of deposited securities, may be used to register Depositary Shares if either the depositary or the legal entity created by the agreement for ADRs signs the registration statement with regard to the description of the ADRs and the Depositary Shares. * * * * * STATUTORY BASIS These amendments are adopted pursuant to authority in Sections 6, 7, 8, 9, 10, and 19(a) of the Securities Act of 1933; Sections 12, 13, 15(d), and 23(a) of the Securities Exchange Act of 1934. Secs. 6, 7, 8, 10, 19(a), 48 Stat. 78, 79, 81, 85; secs. 205, 209, 48 Stat. 906, 908; sec. 301, 54 Stat. 857; sec. 8, 68 Stat. 685; sec. 1, 79 Stat. 1051; sec. 308(a)(2), 90 Stat. 57,; secs. 12, 13, 15(d), 23(a), 48 Stat. 892, 894, 895, 901; secs. 1, 3, 8, 49 Stat. 1375, 1377, 1379; sec. 203(a), 49 Stat. 704; sec. 202, 68 Stat. 686; secs. 3, 4, 6, 78 Stat. 565-568, 569, 570-574; secs. 1, 2, 82 Stat. 454; sec. 28(c), 84 Stat. 1435; secs. 1, 2, 84 Stat. 1497; sec. 105(b), 88 Stat. 1503; secs. 8, 9, 10, 18, 89 Stat. 117, 118, 119, 155; sec. 308(b), 90 Stat. 57; secs. 202, 203, 204, 91 Stat. 1494, 1498, 1499, 1500; 15 U.S.C. 77f, 77g, 77h, 77j, 77s(a), 781, 78m, 78o(d), 78w(a). By the Commission. 1 Copies of these comment letters are in File No. S7-953 and are available for public inspection and copying at the Commissions Public Reference Room. 2 Item 4 of Form F-6. 3 Section 12 applies only to equity securities. In rare instances, ADR arrangements have been established for debt securities. In these circumstances, the Commission would expect the foreign issuer to register under section 12 or to establish for debt securities. In these circumstances, the Commission would expect the foreign issuer to register under section 12 or to establish the exemption in Rule 12g3-2(b). 4 General Instruction B and Item 4(c) of Form F-6. |
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