3.4 Application to Various Types of Issuers
The requirements of Rules 3-16 and 13-02 apply to several categories of issuers,
including FPIs, SRCs, and issuers offering securities under Regulation A. The
sections below discuss specific considerations.
3.4.1 Foreign Private Issuers
FPIs are required to comply with Rule 13-02 (in Form 20-F and on registration
statements such as Forms F-3 and F-4). However, since FPIs are not required to
issue quarterly reports, they are only required to provide financial disclosures
for interim periods in registration statements for collateralized securities.
FPIs may provide financial statements in accordance with U.S.
GAAP, IFRS Accounting Standards, or home country GAAP reconciled to U.S. GAAP.
The financial disclosures required by Rule 13-02 may be provided on the same
basis as the registrant’s financial statements. If such information is disclosed
on the basis of home country GAAP, there is no explicit requirement for the FPI
to reconcile to U.S. GAAP, as is required for the registrant’s consolidated
financial statements. However, FPIs that apply home country GAAP should consider
Rule 13-02(a)(6) and (7), which require the registrant to disclose additional
financial information “if the information would be material for investors to
evaluate the pledge of the affiliate’s securities as collateral” and would
provide “[s]ufficient information so as to make the financial and non-financial
information presented not misleading.” As a result, registrants that apply home
country GAAP may conclude that reconciliation of the financial disclosures to
U.S. GAAP is appropriate though not explicitly required.
Furthermore, Exhibit 17 in Form 20-F, Item 19, requires
registrants to identify (1) each affiliate whose security is pledged as
collateral and (2) the security or securities that are pledged as
collateral.
3.4.2 Smaller Reporting Companies
Rule 13-02 requires SRCs to provide the same information as other registrants.
One of the primary disclosure accommodations available to SRCs is the ability to
provide two years, rather than three, of annual financial statements. However,
because Rule 13-02 only requires reporting of the most recent annual and interim
periods, this accommodation for SRCs does not affect the disclosures required
for collateralized securities.
3.4.3 Regulation A
Although Regulation A of the Securities Act exempts offerings
under a certain threshold from registration, the SEC issued clarifying
instructions to Forms 1-A, 1-K, and 1-SA that specify that Rules 3-16 and 13-02
apply to Regulation A issuers.
Also, Exhibit 17 in Form 1-A, Item 17, requires registrants to identify (1) each
affiliate whose security is pledged as collateral and (2) the security or
securities that are pledged as collateral. This exhibit will also be required in
Part II of Form 1-K, Item 8(b), and in Form 1-SA, Item 4(b).