52752 Federal Register / Vol. 73, No. 176 / Wednesday, September 10, 2008 / Rules and Regulations 

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. 

9 17 CFR 240.12g3–2(b). 

10See the definition of foreign private issuer at 

Exchange Act Rule 3b–4(c) (17 CFR 240.3b–4(c)). 11When 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. 

12Current Exchange Act Rule 12g3–2(b)(1)(iii) (17 

CFR 240.12g3–2(b)(1)(iii)). 

13Release 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’’). 

14An 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)). 

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

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 InterDealer 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

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-thecounter 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– 


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Federal Register / Vol. 73, No. 176 / Wednesday, September 10, 2008 / Rules and Regulations 52753 

15Brokers 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)). 

16See Securities Act Rule 144A(d)(4) (17 CFR 

230.144A(d)(4)). 

17Current 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). 

18Current 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. 

19Current 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. 

20Current Exchange Act Rule 12g3–2(b)(2) (17 

CFR 240.12g3–2(b)(2)). 

21See 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)). 

23See Release No. 34–55540 (March 27, 2007), 72 

FR 16934 (April 5, 2007). 

24Current Exchange Act Rule 12g3–2(e) (17 CFR 

240.12g3–2(e)). 

25Current Exchange Act Rule 12g3–2(f) (17 CFR 

240.12g3–2(f)). 

26Current 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. 

27Note 1 to Current Exchange Act Rule 12g3–2(e). 

28Release No. 34–57350. 

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

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

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. 

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

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 nonU.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

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: 

• 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

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 reevaluate 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. 

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: 


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29 15 U.S.C. 78m(a). 

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. 

31An 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. 

32By 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. 

• The issuer is not required to file or 

furnish reports under Exchange Act 

Section 13(a) 29 or 15(d); 

• 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: 

Æ 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 

Æ 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. 

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 nonU.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: 

• 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: 


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Federal Register / Vol. 73, No. 176 / Wednesday, September 10, 2008 / Rules and Regulations 52755 

33These 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. 

34 17 CFR 249.306. 

35 17 CFR 240.12b–12(d)(3). 

36Exchange Act Rule 12g3–2(b)(1)(ii) (17 CFR 

240.12g3–2(b)(1)(ii)). 

37Exchange Act Rule 12h–6(a)(3) (17 CFR 

240.12h–6(a)(3)). 

38See, 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. 

39See, for example, the letter of Sullivan & 

Cromwell, dated April 25, 2008. 

Æ 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 

Æ 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

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

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 interdealer quotation system; and 

• The related provision 

grandfathering Nasdaq-traded 

companies meeting specified conditions 

from Rule 12g3–2(b)’s automated interdealer 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 brokerdealers to fulfill their obligations under 

Exchange Act Rule 15c2–11 with 

respect to the equity securities of a nonreporting 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 nonU.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

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 nonU.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 


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40See, for example, the letter of the American Bar 

Association, Business Law Section (‘‘ABA’’), dated 

April 30, 2008. 

41As 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. 

42Note 1 to Rule 12g3–2(b)(1) (17 CFR 240.12g3–

2(b)(1)). 

43As 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 offexchange 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. 

44See, for example, the letters of JPMorgan Chase 

Bank (‘‘JPMorganChase’’), dated April 18, 2008, and 

the Organization for International Investment 

(‘‘OFII’’), dated April 23, 2008. 

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. 

46Unless 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)). 

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. 

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

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

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

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. 

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

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 


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47See, for example, the letters of Cleary Gottlieb 

Steen & Hamilton LLP (‘‘Cleary Gottlieb’’), dated 

April 25, 2008, and EuropeanIssuers, dated April 

25, 2008. 

48See, for example, the letters of the International 

Bar Association, dated April 25, 2008, and 

Linklaters, dated April 24, 2008. 

49See, for example, the letters of BNY and 

O’Melveny & Myers LLP, dated April 25, 2008. 

50See 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. 

51See 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. 

52See the letter of Gloria W. Nusbacher and 24 

other attorneys. 

53Note 3 to Exchange Act Rule 12g3–2(b)(1). 

54Exchange Act Rule 12g3–2(b)(1)(i) (17 CFR 

240.12g3–2(b)(1)(i)). 

55Current Exchange Act Rule 12g3–2(d)(1) (17 

CFR 240.12g3–2(d)(1)). 

56 15 U.S.C. 78l(b). 

57Current Exchange Act Rule 12g3–2(d)(1). 

58See, for example, the letter of Sullivan & 

Cromwell. 

59See, for example, the letter of OFII. 

60Current Exchange Act Rule 12g3–2(b)(2) (17 

CFR 240.12g3–2(b)(2)). 

61Under current Rule 12g3–2(b), several issuers 

have applied for the exemption although the 120- 

day period has lapsed. 

it has not voluntarily sought a public 

market there.47

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

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. 

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

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

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. 

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

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. 

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. 

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. 

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 


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62Current 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. 

63Exchange 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. 

64Current Exchange Act Rule 12g3–2(b)(1)(i). 

65Current Exchange Act Rule 12g3–2(e)(2). 

66While 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. 

67Any 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). 

68Exchange 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). 

69These are the same types of information 

specified in current Exchange Act Rule 12g3–2(b)(3) 

(17 CFR 240.12g3–2(b)(3)). 

70Exchange Act Rule 12g3–2(b)(2)(i) (17 CFR 

240.12g3–2(b)(2)(i)). 

71Current Exchange Act Rule 12g3–2(b)(1)(iii). 

72Exchange Act Rule 12g3–2(b)(2)(ii) (17 CFR 

240.12g3–2(b)(2)(ii)). Form 6–K imposes a similar 

requirement. 

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 nonreporting 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. 

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

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 overthe-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. 

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: 

• 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

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. 

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 


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73An example of such a system is the System for 

Electronic Document Analysis and Retrieval 

(‘‘SEDAR’’) maintained by the Canadian Securities 

Administrators. 

74Exchange Act Rule 12g3–2(b)(3)(ii) (17 CFR 

240.12g3–2(b)(3)(ii)). 

75Note 1 to Current Exchange Act Rule 12g3–2(e) 

(17 CFR 240.12g3–2(e)). 

76See, for example, the letters of Sullivan & 

Cromwell and Simpson Thacher & Bartlett 

(‘‘Simpson Thacher’’), dated April 18, 2008. 

77See 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). 

78See, for example, the letters of Shearman & 

Sterling, dated April 25, 2008, and Sullivan & 

Cromwell. 

79Current 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 nonU.S. disclosure documents published since the first 

day of its most recently completed fiscal year. 

80See, for example, Release No. 34–51893 (June 

21, 2005), 70 FR 37128 (June 28, 2005). 

81See the Proposing Release at n. 86. 

82See, for example, the letters of Simpson 

Thacher and Sullivan & Cromwell. 

83See the letters of Ziegler, Ziegler & Associates, 

dated April 28, 2008, and BNY. 

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. 

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 nonU.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. 

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

These are the same documents for 

which an issuer that has deregistered 

under Rule 12h–6 must currently 

provide English translations.75

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 nonU.S. disclosure documents are the same 

documents for which the Commission 

staff has historically required English 

translations because of their importance 

to investors.77

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. 

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. 

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 nonU.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

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, brokerdealers and other market participants 

may do so by, for example, stating on its 

Internet Web site that it has 

electronically published specified nonU.S. disclosure documents in order to 

claim or maintain the Rule 12g3–2(b) 

exemption. 

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 


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84Exchange Act Rule 12g3–2(c) (17 CFR 

240.12g3–2(c)). 

85See, 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. 

86See 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. 

87See, for example, the letter of the OFII. 

88Current 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). 

89The 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). 

90 17 CFR 240.12h–6(d). Under that rule, a nonExchange 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. 

91The 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. 

92Current Exchange Act Rules 12g3–2(d)(1) and 

(2). 

• 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

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 noncompliant issuer. 

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 nonU.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. 

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. 

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

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). 

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. 

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 


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93Under 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. 

94Public Law 107–204, 116 Stat. 745 (2002). 

95See, 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. 

96See the letter of Osler, Hoskins & Harcourt, 

dated April 28, 2008. 

97See Part II.K.1 below. 

98The 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). 

99Current Exchange Act Rule 12g3–2(d)(3) (17 

CFR 12g3–2(d)(3)). 

100Release No. 34–20264 (October 6, 1983), 48 FR 

46736 (October 14, 1983). 

101Nasdaq 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). 

102Current 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. 

103Letter 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). 

104Release 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. 

105See the ABA letter and the letter of the Pink 

OTC Markets Inc. (‘‘Pink OTC’’), dated April 10, 

2008. 

106Part 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. 

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

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

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

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. 

H. Elimination of the ‘‘Automated InterDealer 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 interdealer 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

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

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. 

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 


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107A 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. 

108Currently 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. 

109See the letter of JPMorganChase. 

110See the letters of Ziegler, Ziegler & Associates 

and BNY. 

111See the Note to Form F–6, Part I, Item 2. 

112ADR 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. 

113See 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. 

114See the letters of BNY and Pink OTC. 

115 17 CFR 240.15c2–11. 

116Rule 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. 

117Rule 15c2–11(a)(4) (17 CFR 240.15c2–

11(a)(4)). 

electronic information delivery system 

in its primary trading market.107

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

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. 

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

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. 

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 overthe-counter securities that may facilitate 

a fraudulent or manipulative scheme. 

The Rule currently prohibits a brokerdealer 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 brokerdealer.117

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 brokerdealer 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. 


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118We 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). 

119See the letters of the ABA, BNY, 

JPMorganChase, Pink OTC, and Shearman & 

Sterling. 

120The ABA suggested a five-year transition 

period. 

121See the letters of the ABA, BNY and Pink 

OTC. 

122See the BNY letter. 123 44 U.S.C. 3501 et seq. 

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

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. 

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 threemonth 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. 

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. 

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-thecounter market. 


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124The 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. 125 44 U.S.C. 3507(d) and 5 CFR 1320.11. 

126We 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 × 20 hrs. = 13,700 hrs. 

127 49,728 hrs. ¥ 13,700 hrs. = 36,028 hrs. for 

work excluding application work. 36,028 hrs. × .25 

= 9,007 hrs. for English translation work. 36,028 

hrs. ¥ 9,007 hrs. = 27,021 hrs. × .75 = 20,266 hrs. 

for non-English translation work. 9,007 hrs. × .25 

= 2,252 hrs. for English translation work. 13,700 

hrs. × .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. 

128The 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. 

129 27,021 hrs. × .25 = 6,755 hrs. × $400/hr. = 

$2,702,000 for non-English translation work. 9,007 

hrs. × .75 = 6,755 hrs. × $125/hr. = $844,375 for 

English translation work. 13,700 hrs. × .75 = 10,275 

hrs. × $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. 

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 nonExchange 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. 

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. 

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

• 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 

• Outside firms perform service at a 

total cost of $7,656,375 129 to produce 


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Federal Register / Vol. 73, No. 176 / Wednesday, September 10, 2008 / Rules and Regulations 52765 

130The 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. 

131We 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. 

132 1,386 × 12 = 16,632 publications. 

133 16,632 × 4 hrs. = 66,528 hrs. 350 × 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. 

134 59,528 hrs. × .25 = 14,882 hrs. for English 

translation work. 59,528 hrs. ¥ 14,882 hrs. = 44,646 

hrs.; 44,646 hrs. × .75 = 33,485 hrs. for non-English 

translation work; 14,882 hrs. × .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. × $175/hr. = $6,511,050. 

31,080 hrs. × $175/hr. = $5,439,000. 

135 44,646 hrs. × .25 = 11,162 hrs. × $400/hr. = 

$4,464,800 for non-English translation work; 14,882 

hrs. × .75 = 11,162 hrs. × $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. 

136Based 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 preamendment Rule 12g3–2(b) costs. $12,371,100 ¥ 

$10,334,100 = $2,037,000 increase in Rule 12g3–

2(b) costs. 

137 150 hrs. × .25 = 38 hrs. 

138 150 hrs. × .75 × $400/hr. = $45,000. 

139For the additional 350 filers: 350 × 1.5 hrs. = 

525 hrs., 525 hrs. + 150 hrs. = 675 hrs., 675 hrs./ 

500 = 1.35 hrs. per Form F–6. 

140 675 hrs. × .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 inhouse costs incurred by foreign private issuers 

compared to $6,650 of pre-amendment in-house 

costs. 169 hrs. × $175/hr. = $29,575. 38 hrs. × $175/ 

hr. = $6,650. 

141 675 hrs. × .75 = 506 hrs. × $400/hr. = 

$202,400. $202,400 ¥ $45,000 = $157,400. 

142Based 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 postamendment 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. 

143Use 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 Rule 12g3–2(b) submissions or 

publications.130

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: 

• 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

• 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

• 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 

• Outside firms perform services at a 

total cost of $5,860,050 135 to produce 

the Rule 12g3–2(b) publications.136

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 

• Outside firms perform services at a 

total cost of $45,000 to produce the 

Form F–6s.138

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

• 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 

• 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

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-thecounter 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-thecounter 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 brokerdealers 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. 

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 


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52766 Federal Register / Vol. 73, No. 176 / Wednesday, September 10, 2008 / Rules and Regulations 

144An 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 noncompliance with the Rule’s ongoing requirements. 

145 15 U.S.C. 78w(a)(2). 

146 15 U.S.C. 77b(b). 

147 15 U.S.C. 78c(f). 

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-thecounter market for the benefit of U.S. 

investors. 

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 nonU.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-thecounter 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. 

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 anticompetitive 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 


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Federal Register / Vol. 73, No. 176 / Wednesday, September 10, 2008 / Rules and Regulations 52767 

148 5 U.S.C. 605(b). 

149 15 U.S.C. 77f, 77g, 77h, 77j, and 77s. 

150 15 U.S.C. 78c, 78l, 78m, 78w, and 78mm. 

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 brokerdealers 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 nonU.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. 

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

Text of Rule Amendments 

List of Subjects in 17 CFR Parts 239, 

240 and 249 

Reporting and recordkeeping 

requirements, Securities. 

■ 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 

■ 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. 

* * * * * 

■ 2. Amend Form F–6 (referenced in 

§ 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 

■ 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–


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52768 Federal Register / Vol. 73, No. 176 / Wednesday, September 10, 2008 / Rules and Regulations 

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. 

* * * * * 

■ 4. Amend § 240.12g3–2 by revising 

paragraphs (b), (c), and (d), and 

removing paragraphs (e) and (f), to read 

as follows: 

§ 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 (§ 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 (§ 239.36 of this chapter), but 

not the underlying deposited securities, 

are exempt from section 12(g) of the Act 

under this paragraph. 

■ 5. Amend § 240.15c2–11 by revising 

paragraph (a)(4) to read as follows: 

§ 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 

§ 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 

■ 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. 

* * * * * 

■ 7. Amend Form 40–F (referenced in 

§ 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. 

■ 8. Amend Form 6–K (referenced in 

§ 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. 


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Federal Register / Vol. 73, No. 176 / Wednesday, September 10, 2008 / Rules and Regulations 52769 

Note: The text of Form 6–K does not and 

this amendment will not appear in the Code 

of Federal Regulations. 

■ 9. Amend Form 15F (referenced in 

§ 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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