Securities Lawyer's Deskbook
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General Rules and Regulations
promulgated
under the
Securities Exchange Act of 1934





Rule 3b-4 -- Definition of "Foreign Government," "Foreign Issuer" and "Foreign Private Issuer"


  1. The term foreign government means the government of any foreign country or of any political subdivision of a foreign country.

  2. The term foreign issuer means any issuer which is a foreign government, a national of any foreign country or a corporation or other organization incorporated or organized under the laws of any foreign country.

  3. The term foreign private issuer means any foreign issuer other than a foreign government except for an issuer meeting the following conditions as of the last business day of its most recently completed second fiscal quarter:

    1. More than 50 percent of the issuer's outstanding voting securities are directly or indirectly held of record by residents of the United States; and

    2. Any of the following:

      1. The majority of the executive officers or directors are United States citizens or residents;

      2. More than 50 percent of the assets of the issuer are located in the United States; or

      3. The business of the issuer is administered principally in the United States.


      Instruction to paragraph (c)(1): To determine the percentage of outstanding voting securities held by U.S. residents:

      1. Use the method of calculating record ownership in Rule 12g3-2(a) under the Act, except that your inquiry as to the amount of shares represented by accounts of customers resident in the United States may be limited to brokers, dealers, banks and other nominees located in:

        1. The United States,

        2. Your jurisdiction of incorporation, and

        3. The jurisdiction that is the primary trading market for your voting securities, if different than your jurisdiction of incorporation.

      2. If, after reasonable inquiry, you are unable to obtain information about the amount of shares represented by accounts of customers resident in the United States, you may assume, for purposes of this definition, that the customers are residents of the jurisdiction in which the nominee has its principal place of business.

      3. Count shares of voting securities beneficially owned by residents of the United States as reported on reports of beneficial ownership provided to you or filed publicly and based on information otherwise provided to you.


      4. Notwithstanding paragraph (c) of this section, in the case of a new registrant with the Commission, the determination of whether an issuer is a foreign private issuer will be made as of a date within 30 days prior to the issuer's filing of an initial registration statement under either the Act or the Securities Act of 1933.

      5. Once an issuer qualifies as a foreign private issuer, it will immediately be able to use the forms and rules designated for foreign private issuers until it fails to qualify for this status at the end of its most recently completed second fiscal quarter. An issuer's determination that it fails to qualify as a foreign private issuer governs its eligibility to use the forms and rules designated for foreign private issuers beginning on the first day of the fiscal year following the determination date. Once an issuer fails to qualify for foreign private issuer status, it will remain unqualified unless it meets the requirements for foreign private issuer status as of the last business day of its second fiscal quarter.


    Regulatory History


    32 FR 7848, May 30, 1967, as amended at 48 FR 46739, Oct. 14, 1983; 64 FR 53900, 53912, Oct. 5, 1999; 73 FR 58300, 58323, Oct. 6, 2008.



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