SEC Mandates EDGAR Filing for Foreign Issuers

The Securities and Exchange Commission has adopted rule amendments requiring foreign private issuers and foreign governments to make most filings under the Securities Act of 1933 and the Securities Exchange Act of 1934 electronically through the SEC’s EDGAR system instead of on paper. The SEC has also adopted rule amendments clarifying when an electronic or paper filer may submit an English summary instead of a full English translation of a foreign language document.

The amendments will apply to documents filed or submitted on or after November 4, 2002, with certain transitional exceptions. SEC Release Nos. 33-8099, 34-45922, Int’l Series Release No. 1259 (May 14, 2002).

Since 1996, all U.S. domestic reporting companies have been required to file essentially all registration statements and reports with the SEC in electronic form. Until these latest amendments, foreign private and governmental issuers had been exempted from mandatory electronic filing and were permitted to file on paper. The amendments eliminate the exemption, requiring foreign issuers to file most types of registration statements and reports electronically, subject only to certain “hardship” exemptions (which will be granted only in very rare cases).

Registrations and annual reports; TIA filings. Foreign private issuers will be required to file via EDGAR all Securities Act registration statements (including Forms F-1, F-2, F-3 and F-4 as well as Form F-6 relating to American Depositary Receipts), Exchange Act registration statements and Exchange Act annual reports (Form 20-F). This requirement also applies to Canadian issuers using Multijurisdictional Disclosure System (MJDS) forms (Securities Act registration Forms F-7, F-8, F-9, F-10, F-80 and Exchange Act registration statements and annual reports on Form 40-F).

Foreign governments must electronically file Securities Act registration statements (Schedule B), Exchange Act registration statements (Form 18) and Exchange Act annual reports (Form 18-K). The amended rules also require that Schedule B registration statements specifically disclose that the SEC maintains an Internet site containing reports, statements and other information and the SEC’s Internet address (www.sec.gov).

Under the amendments, filings with respect to foreign private and governmental issuers under the Trust Indenture Act must also be made electronically.

Form 6-K. Foreign issuers will also be required to file Exchange Act Form 6-K reports electronically. The amendments, however, permit foreign issuers to file a Form 6-K either electronically or on paper if the sole purpose of the Form 6-K is to submit (1) an annual report to shareholders or (2) a “statutory” home country report (required to be made public pursuant to the law of the jurisdiction of the issuer’s domicile or incorporation or rules of the issuer’s home country exchange) as long as the report or other document (a) is not a press release, (b) is not required to be and has not been distributed to the foreign issuer’s security holders, and (c) if discussing a material event, including disclosure of annual audited or interim consolidated financial results, has already been the subject of a Form 6-K submission or other Commission filing on EDGAR.

Form 6-K has been amended to require the issuer to check a box identifying the permitted paper filing exception relied upon in connection with the paper submission.

Schedules 13D and 13G and tender offer schedules. All persons are required to file electronically any statements of beneficial ownership on Schedules 13D and 13G and tender offer schedules (Schedules 13E-4F, 14D-1F and 14D-9F and Schedule TO) that pertain to the securities of a foreign issuer, whether filed by a foreign or domestic person.

Form CB. The amended rules require Form CB (an exemptive form that both foreign and domestic persons must file when engaging in specified rights offerings, exchange offers or business combinations with respect to a foreign private issuer) to be electronically filed if the party filing or submitting is an Exchange Act reporting company.

Forms F-X and F-N. The amended rules require electronic filing of Forms F-N (designating U.S. agent for service by foreign banks and insurance companies) and F-X (designating same for MJDS and specified other foreign filers) except in certain cases.

Reports of supranational entities. The amendments permit, but do not require, electronic submission of reports required to be filed by so-called supranational entities (International Bank for Reconstruction and Development, Inter-American Development Bank, Asian Development Bank, African Development Bank, International Finance Corporation and European Bank for Reconstruction and Development).

Submissions under Rule 12g3-2(b). Submissions under Exchange Act Rule 12g3-2(b) may still be made on paper. Rule 12g3-2(b) provides an exemption from Exchange Act reporting status for foreign issuers that have not taken voluntary steps to enter U.S. capital markets. Such issuers submit certain information to the SEC from time to time.

Confidential submissions; elimination of first-time filer paper requirement. Submissions made to the SEC on a confidential basis, such as a registration statement for a foreign issuer’s initial U.S. public offerings, will continue to be made in paper form. The requirement that an EDGAR filer must submit a paper copy of its first electronic filing to the SEC has been eliminated.

Prior to the amendments, foreign issuers were permitted to submit paper filings containing foreign language documents (such as exhibits, attachments and consents) accompanied by an English version, summary or translation of the foreign language document. Under the amended rules, all electronic filings or submissions must be in the English language. Foreign language documents must be submitted in the form of fair and accurate English translations or, in certain circumstances, fair and accurate English summaries.

English summary option. The English summary option is available under the amended rules for any foreign language documents other than:

• articles of incorporation, memoranda of association, bylaws and comparable documents;
• instruments defining rights of security holders, including indentures under the Trust Indenture Act;
• voting agreements, including voting trust agreements;
• contracts to which directors, officers, promoters, voting trustees or security holders named in a registration statement are parties;
• contracts upon which a filer’s business is substantially dependent;
• audited annual and interim consolidated financial information; and
• any document that is or will be the subject of a confidential treatment request.

Any English summary submitted must fairly and accurately summarize the terms of each material provision of the foreign language document and fairly and accurately describe the terms that have been omitted or abridged.

Amendments to Form 6-K related to foreign translations. Form 6-K was amended to require that foreign issuers submit full English translations (whether transmitted electronically or on paper) of:

• press releases;
• communications and other documents distributed directly to security holders for each class of securities for which a reporting obligation under the Exchange Act exists, except for offering circulars and prospectuses that relate entirely to foreign offerings; and
• documents disclosing annual audited or interim consolidated financial information.

Form 6-K was also amended to clarify that a foreign private issuer is not required to submit under cover of Form 6-K an offering circular or prospectus that pertains solely to a foreign offering, even when an English translation or English summary is available, if the issuer has already submitted on EDGAR a Form 6-K, Form 20-F or other SEC filing that reported material information disclosed in the offering circular or prospectus.

Unabridged foreign language document submissions. Issuers are permitted to submit copies of the unabridged foreign language document in paper to accompany an English summary or translation or when permitted by the applicable form.

French and English MJDS filings permitted. An MJDS filer is permitted to include in an electronic HTML document filing both French and English text in an exhibit to or part of a registration statement, annual report, or tender offer schedule if the filer included the French text to comply with the requirements of the Canadian securities administrator or other Canadian authority.

The new amendments will apply to any securities document filed or submitted on or after November 4, 2002. Foreign issuers that have filed a registration statement in paper before the November 4 may continue to file amendments in paper through December 31. If the registration statement becomes effective before then, a foreign issuer could also file its final prospectus in paper.

In order to use EDGAR, a foreign issuer must first obtain a series of unique identification codes and passwords from the SEC. Applications for identification codes and passwords require an issuer to submit a Form ID to the SEC. Form ID is available at www.sec.gov.

Documents must be prepared and properly formatted before they can be transmitted to the SEC via EDGAR. EDGAR filing services are available through most financial printers and a variety of EDGAR filing services companies. Dorsey & Whitney also offers EDGAR filing services, including reviewing, formatting and transmitting documents.

June 4, 2002