The balance sheet should be translated using the applicable period end exchange rate. For equity securities, there are two alternatives for deregistration. If an issuer has no common equity outstanding, or there is no market price for its outstanding common equity, it may qualify as a smaller reporting company if it had less than $50 million in revenues in the last fiscal year. Foreign private issuers that file annual reports on Form 20-F are required only to furnish promptly, in a Form 6-K, material information: Distributed to stockholders or to a national exchange, if made public by that exchange, or, Required to be made public by its domestic laws. Many registrants elect to include these statements, prepared using U.S. GAAP amounts, as part of their U.S. GAAP reconciliation. Under Rule 12g3-2(b), a foreign private issuer is automatically exempt from the registration and periodic reporting requirements of the 1934 Act if the issuer (i) is not currently required to file or furnish reports under Section 13(a) or 15(d) of the 1934 Act (i.e., has not publicly offered or listed securities in the The Form 8-K that is filed must include the same information as a registration of securities on Form 10. As with significance testing, S-X Article 11 pro formas are based on the accounting used by the issuer. Section 6.02 discusses corporate governance requirements applicable to the directors and officers of a foreign private issuer that has registered its equity securities under the Exchange Act. Reports of independent accountants issued for MJDS filers may still refer solely to Canadian GAAS when filed on MJDS forms. Foreign private issuers may be required to register a class of equity securities under the Exchange Act based upon the size of the company and the nature of its share ownership, both globally and within the United States. Disclosure obligations and other significant obligations are imposed on a company and on the company's officers, directors and 10 percent shareholders (1) under the US Securities Act of 1933, as amended (the Securities Act) and (2) under the US Securities Exchange Act of 1934, as amended (the Exchange Act). For each period presented, all measurements are retroactively restated to the purchasing power unit as of the date of the most recent balance sheet information in the filing. Reconstruction of these amounts may not be practical. Item 17(c) of Form 20-F - Basic Requirements. A company that incorporates by reference a prior annual report on Form 20-F need not amend the prior filing, but must file restated financial statements in the registration statement or under cover of a Form 6-K that is incorporated by reference. See footnote 31 to Release No. In 2003, the SEC adopted Item 703 of Regulation S-K to require disclosure of an issuer's share repurchases on a quarterly basis (currently in Forms 10-Q and 10-K). In this instance, the U.S. investor has not had the benefit of knowing the reconciling items between home-country GAAP and U.S. GAAP. Registrants may test for compliance with the foreign private issuer definition once per year. In this situation, the issuer should disclose in the interim data provided on the Form 6-K that different exchange rates have been used for the convenience translation. An issuer that no longer qualifies as a foreign private issuer as of the end of its second fiscal quarter in 2012, for example, would file a Form 10-K in 2013 for its 2012 fiscal year. Issuers are encouraged to contact the staff of the Office of International Corporate Finance to discuss these questions. (Last updated: 9/30/2011). For these types of offerings, Item 8.A. The following table illustrates whether an acquiree or investee must reconcile its financial statements to U.S. GAAP under typical scenarios. A foreign private issuer may cease to be a shell company as a result of a reverse acquisition or merger. Foreign issuers should direct requests for special processing to the Divisions Office of International Corporate Finance in advance of filing. Second, the foreign private issuer must, on any date within 120 days before filing for deregistration, have had less than 300 record holders worldwide. 6220.4The age requirements in Item 8 of Form 20-F also apply to financial statements of: 6220.5A foreign private issuer that has been in existence less than a year must include an audited balance sheet that is no more than nine months old. The registrant's primary financial statements must also be prepared in accordance with U.S. GAAP if post-acquisition periods are considered in determining the years presented. Exercise of outstanding rights granted pro rata to all existing security holders; Dividend or interest reinvestment plan; or, Conversion of outstanding convertible securities or exercise of outstanding transferable warrants. [Instruction 4 to Item 8.A.5 of Form 20-F]. Many foreign companies use American Depositary Receipts (ADRs) as a means of raising capital or establishing a trading presence in the United States. The financial statements in the Forms 10-Q and 10-K would need to be presented in conformity with U.S. GAAP for all required periods. Financial statements of subsidiaries or investees of a foreign private issuer are sometimes prepared in differing GAAPs than that of the registrant. [S-X 8-01] Note that scaled disclosure rules may be used only if the issuers file on a form available to U.S. domestic companies (e.g., Form 10-K). See Section 6300, 10220, and 10320 regarding audited periods required for IFRS issuers. [S-K 512(a)(4)] For this purpose, delayed or continuous offerings include business combination transactions registered on Form F-4, and takedowns from effective shelf registration statements. 6710.1An issuer in a hyperinflationary economy must either comprehensively include the effects of price-level changes in the primary statements or, alternatively, present supplemental information to quantify the effects of changing prices using the historical cost/constant currency or current cost/replacement cost approach. STAY CONNECTED 33-7118] (Last updated 9/30/2009). The one-time accommodation available for first-time IFRS implementers and the guidance found in Instruction G to Form 20-F apply not only to registrants, but also to foreign businesses whose financial statements are required under S-X 3-05, 3-09, 3-10, 3-14 and 3-16. Item 18 requires the same information as Item 17 plus all of the disclosures required by U.S. GAAP and Regulation S-X. Questions may also be submitted by on-line form. Although Form 20-F is most often filed as an annual report under the Exchange Act, it is also used to register classes of securities under the Exchange Act. If a foreign incorporated acquiree or investee does not qualify as a foreign business and financial statements are required under S-X 3-05 or 3-09, those financial statements must be presented in conformity with U.S. GAAP, or: A foreign or domestic registrant may apply SAB 80 in determining the periods for which audited financial statements of acquired foreign businesses are required in an IPO. [Item 17c of Form 20-F]. First, if a foreign private issuer is subject to the reporting requirements under . Effects of Proportional (Pro Rata) Consolidation. It would not be required to file Forms 8-K or 10-Q during the period from June 30, 2009 through December 31, 2009. If the reporting currency used in a registrant's financial statements is different from that of its predecessor, the predecessor's financial statements should be recast using the registrant's reporting currency. However, if it elects to do so, it must comply with all of the requirements of the domestic company forms. Note that SABs related to filing requirements and auditing continue to apply. [Release No. Previous GAAP annual financial statements with a U.S. GAAP reconciliation for the three most recent fiscal year ends. All the Commission laws, rules, forms and regulations associated with the Securities Act of 1933 and the Securities Exchange Act of 1934 are accessible from the Commissions home page by clicking on Divisions Corporation Finance and then clicking Statutes, Rules, and Forms.. Refer to Topic 2 for the tests of significance. Compliance Dates: Registrants must comply with the revisions to Form 20-F for annual Second, the registrant must not have sold securities in a registered offering in the United States during the 12 months preceding deregistration, except for specified exceptions noted in the rule. An ADR is a negotiable certificate that evidences ownership of American Depositary Shares (ADSs) which, in turn, represent an interest in a specified number (or fraction) of a foreign companys shares. Banks and similar financial institutions 6340.3All first-time adopters of IFRS are required to provide certain expanded disclosures about their use of elective transitional treatments under IFRS 1, as well as meet certain presentation requirements with respect to their transitional reconciliation from previous (home-country) GAAP to IFRS under the disclosure requirements of IFRS 1, First-time Adoption of International Financial Reporting Standards. Note that SABs related to filing requirements and auditing continue to apply. While not considered inclusive of all acceptable alternatives, the following are examples of approaches that could provide an appropriate level of information to achieve a bridge between these annual and interim periods. The following table illustrates the basis of accounting on which the tests are based under typical scenarios. Form 20-F is the form used for an annual report ("Annual Report") of a foreign private issuer ("FPI") filed with the U.S. Securities and Exchange Commission (the "SEC"). PDF The Sarbanes-Oxley Act and Foreign Private Issuers - Gibson Dunn PDF FOREIGN PRIVATE ISSUER GUIDE - Squire Patton Boggs That treatment would not be acceptable in SEC filings. This means, for example, that the financial statements must remain current throughout the entire time that an exchange offer is outstanding. benefits if it qualifies as a "foreign private issuer" (an FPI). 6630.1Financial information for all periods presented in the filing should be recast into the new reporting currency using a methodology consistent with ASC 830 (IAS 21 for IFRS filers). Rule 144 supplies a safe harbor for resales of restricted securities by providing that a resale will not be deemed a public distribution if particular criteria are met. 6220.2The 15-month period for audited statements is extended to 18 months, and the nine month period for interim statements is extended to 12 months, for the following offerings: 6220.3Special Rule for Foreign Private Issuer IPOs - Audited financial statements in initial public offerings must be no more than 12 months old at the time of filing and upon the effectiveness of the registration statement. 6210.1Audited Financial Statements Required in a Registration Statement or Annual Report: NOTE: See Section 6410.2(c) and 10220 regarding audited periods required for foreign issuers who have elected to provide U.S. GAAP financial statements in their initial registration statement. 6345.2Some registrants have adopted IFRS as issued by the IASB in the past in the financial statements presented in their local market, while continuing to present U.S. GAAP in their SEC filings. Foreign private issuers interested in having a class of securities quoted in other segments of the over-the-counter market should review the information on the over-the-counter market on the Commissions website. Foreign private issuers may also register a class of securities under Section 12(g) to facilitate trading in other U.S. over-the-counter markets. It would not be required to file Forms 8-K or 10-Q during the period from June 30, 2009 through December 31, 2009. Market participants have generally categorized ADRs into three levels, depending on the extent to which the foreign company has accessed the U.S. markets: Definition and Determination of Eligibility, Registration and Ongoing Reporting Obligations, Activities and Circumstances Requiring Registration, Quotations in the U.S. 6530.2ASC 220-10-45-14A requires the presentation of the changes in the accumulated balance for each of the components of other comprehensive income either on the face of the financial statements or in the footnotes. This is required by the SEC to report information that either: The company makes public pursuant to the law of its home country. The staff will consider deferring the review of a registration statement where the application of the firm's established policies and procedures to that registration statement cannot be confirmed. Some foreign private issuers or acquired foreign businesses are jointly audited by more than one firm. Reconciliations of pro forma information to U.S. GAAP are required even if the historical financial statements of the acquired business are not required to be reconciled. Foreign Private Issuers, Disclosure Requirements | JD Supra SEC adopts amendments to share repurchase disclosure rules - KPMG In general, and subject to certain conditions discussed below, the rules provide that: Additionally, on April 5, 2012, President Obama signed into law the Jumpstart Our Business Startups Act (the JOBS Act), which amends the Securities Act and the Exchange Act in several respects. A majority of its executive officers and directors are not U.S. citizens or residents. In these circumstances, the current and comparative interim period would need to be covered by MD&A and pro forma information would need to be updated to that date. However, this provision does not apply to a registration statement for a typical firm commitment underwritten offering priced under Regulation C, Rule 430A or for listing on an exchange. Once registered under Section12(g), the Exchange Act requires an issuer to file periodic and current reports to the same extent as issuers with a class of securities registered pursuant to Section 12(b) and listed on an exchange. The purpose of the procedure is to ensure that foreign auditors appropriately involve their designated filing reviewer prior to submission of registration statements. See ASC 830 for further guidance. An annual report on Form 20-F is required to be filed within four months after the foreign private issuers fiscal year-end. However, a foreign-domiciled registrant that does not meet the foreign private issuer definition, General financial statement requirements for foreign private issuers, Periods for which Financial Statements are Required [Item 8 of Form 20-F]. (Last updated: 12/31/2010). There are two tests to determine whether a foreign company qualifies as a foreign private issuer: the first relates to the relative degree of its U.S. share ownership, and the second relates to the level of its U.S. business contacts. These tests are found in Securities Act Rule 405 and Exchange Act Rule3b-4. If the audited financial statements for the most recently completed fiscal year have been included in a registration statement before the four month due date of the annual report on Form 20-F, the due date of the Form 20-F remains at four months. (Last updated: 9/30/2011), 6320.3[Reserved] (Last updated: 9/30/2011). If financial statements are required to be filed for foreign acquirees or foreign equity investees, these statements may be prepared on a comprehensive basis other than U.S. GAAP or IFRS as issued by the IASB. This also applies to any other required financial statements where the entity is a foreign business such as those filed pursuant to S-X 3-05, 3-09, 3-10, 3-14 and 3-16, as well as target company financial statements in Forms F-4, Forms S-4, and proxy statements. [Instruction 3 to Item 8.A.5 of Form 20-F], 6330.2For pre-effective registration statements and post-effective amendments with annual financial statements more than nine months old, reconciliation is not required for an interim period where the issuer complies with and explicitly states compliance with IAS 34. The issuer would also begin complying with the proxy rules and Section 16, and become subject to reporting on Forms 8-K and 10-Q, on the first day of its 2013 fiscal year. 33-8959] Consequences of failing to meet the foreign private issuer definition are described in Section 6120.2. For example, if the issuer presents its financial statements in home-country GAAP with reconciliation to U.S. GAAP, then the amounts for the acquiree or investee in the numerator of the tests must be based on U.S. GAAP. Question: What is a hyperinflationary environment? Final Rule: Certification of Disclosure in Companies' Quarterly and This bridging can best be presented by providing a reconciliation directly from U.S. GAAP to IFRS as issued by the IASB in a note to the audited financial statements, or if impracticable, in an audited financial statement schedule, for the comparative balance sheet date and comparative income statement periods preceding the most recent fiscal year. It also means that the financial statements must remain current in a merger or acquisition transaction until shareholder approval has occurred. Disclosure obligations and other significant obligations are imposed on a company and on the company's officers, directors and 10 percent shareholders (1) under the US Securities Act of 1933, as amended (the Securities Act) and (2) under the US Translation should be made at the exchange rate on the balance sheet date or most recent date practicable, if materially different. "foreign private issuer" as set forth in Rule 405 under the Securities Act of 1933, as amended, or After a foreign private issuer has completed an offering registered under the Securities Act or registered as a class of securities under the Exchange Act, it is required to file reports with the Commission on an ongoing basis. A foreign private issuer's most recently audited financial statements cannot exceed the age specified by Item 8 of Form 20-F (generally 15 months) at the registration statement's date of effectiveness. NOTE: This accommodation for proportionately consolidated joint ventures only applies if 1) the joint venture is an operating entity, and 2) its significant financial operating policies are, by contractual arrangement, jointly controlled by all parties having an equity interest in the entity.