General Rules and Regulations
Securities Exchange Act of 1934
Rule 12g3-2 -- Exemptions for American Depositary Receipts and Certain Foreign Securities
Securities of any class issued by any foreign private
issuer shall be exempt from section 12(g)
of the Act if the class has fewer than 300 holders resident in the United
States. This exemption shall continue until the next fiscal year end at which
the issuer has a class of equity securities held by 300 or more persons resident
in the United States. For the purpose of determining whether a security is
exempt pursuant to this paragraph:
Securities held of record by persons resident
in the United States shall be determined as provided in Rule
12g5-1 except that securities held of record by a broker, dealer,
bank or nominee for any of them for the accounts of customers resident
in the United States shall be counted as held in the United States by
the number of separate accounts for which the securities are held. The
issuer may rely in good faith on information as to the number of such
separate accounts supplied by all owners of the class of its securities
which are brokers, dealers, or banks or a nominee for any of them.
Persons in the United States who hold the
security only through a Canadian Retirement Account (as that term is defined
in Rule 237(a)(2) under the
Securities Act of 1933, shall not be counted as holders resident in the
A foreign private issuer shall be exempt from the requirement to register a class of equity
securities under section 12(g) of the Act if:
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
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:
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.
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.
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.
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.
An issuer must electronically publish the information required by paragraph (b)(2) of this secti
on promptly after
the information has been made public.
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:
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.
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:
Its annual rep ort, 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.
The exemption under paragraph (b) of this section shall remain in effect until:
The issuer no longer satisfies the electronic publication condition of paragraph (b)(2) of this section;
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
The issuer registers a class of securities under section 12 of the Act or incurs reporting obligations under section 15(d) of the Act.
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.
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