Securities Law & Instruments

Headnote

Application for relief in Ontario from the requirement to file annual certificates through SEDAR in order to rely on exemption for issuers that comply with the requirements in section 302(a) of the Sarbanes-Oxley Act -- Applicant not a SEDAR filer.

Application for relief in Ontario from the requirement to file interim certificates -- Applicant a SEC foreign issuer but not a designated foreign issuer -- Issuer has de minimis presence in Canada -- Relief granted subject to conditions, including compliance with the foreign private issuer requirements in section 302(a) of the Sarbanes-Oxley Act.

Rules cited

Multilateral Instrument 52-109 -- Certification of Disclosure in Issuers' Annual and Interim Filings.

National Instrument 71-102 -- Continuous Disclosure and Other Exemptions Relating to Foreign Issuers.

IN THE MATTER OF

THE SECURITIES ACT,

R.S.O. 1990, C. S.5, AS AMENDED (THE ACT)

AND

IN THE MATTER OF

SONY CORPORATION

 

DECISION DOCUMENT

(Multilateral Instrument 52-109)

WHEREAS Sony Corporation (Sony) has applied for an exemption pursuant to section 4.5 of Multilateral Instrument 52-109 Certification of Disclosure In Issuers' Annual and Interim Filings (MI 52-109) from the requirements contained in MI 52-109:

(a) to file annual certificates under section 2.1; and

(b) to file interim certificates under section 3.1;

AND WHEREAS unless otherwise defined or the context otherwise requires, the terms herein have the meaning set out in National Instrument 14-101 Definitions;

AND WHEREAS the Director has considered the application and the recommendation of staff of the Ontario Securities Commission;

AND WHEREAS Sony has represented to the Director that:

1. Sony is a Japanese joint stock company (Kabushiki Kaisha), and is a reporting issuer in Ontario, Québec and British Columbia.

2. The registered office of Sony is located at 7-35, Kitashinagawa 6-chome, Shinagawa-ku, Tokyo, Japan.

3. Except for not filing its interim certificates for the interim periods ended June 30, 2004 and September 30, 2004, Sony is not in default of Ontario securities legislation.

4. The American Depositary Receipts (ADRs) of Sony are listed on the Toronto Stock Exchange (the TSX).

5. The common stock or ADRs of Sony are also listed on the Tokyo, Osaka, New York, London, Paris, Frankfurt, Dusseldorf, Brussels, Vienna, and Swiss exchanges.

6. The ADRs of Sony are registered pursuant to section 12(b) of the 1934 Act.

7. Under National Instrument 71-102 Continuous Disclosure and Other Exemptions Relating to Foreign Issuers (NI 71-102), Sony is classified as a "SEC foreign issuer".

8. Under National Instrument 13-101 System for Electronic Document Analysis and Retrieval (SEDAR) (NI 13-101), Sony is a "foreign issuer (SEDAR)". As a result, Sony is not required to comply with NI 13-101.

9. Sony does not intend to become an electronic SEDAR filer.

10. Under subsection 4.1(1) of MI 52-109, Sony would be exempt from the requirement to file annual certificates under MI 52-109 if

(a) it is in compliance with U.S. federal securities laws implementing the annual report certification requirements in section 302(a) of the Sarbanes-Oxley Act of 2002 (the Sarbanes-Oxley Act); and

(b) its signed certificates relating to its annual report for its most recently completed financial year are filed through SEDAR as soon as reasonably practicable after they are filed with the SEC.

11. Sony is a SEC foreign issuer under NI 71-102.

12. As a result, the certification exemption for foreign issuers in section 4.2 of MI 52-109 is not available to Sony.

13. Sony is subject to foreign disclosure requirements.

14. During Sony's last financial year ended March 31, 2004, the volume of trading of its ADRs on the TSX was only 0.02% of the comparative volume of its ADR trading on the NYSE.

15. As at March 31, 2004, Ontario registered holders comprised only 0.0051% of the holders of its outstanding ADRs, Québec registered holders comprised only 0.0017% of the holders of its outstanding ADRs, and Canadian registered holders comprised only 0.0001% of the holders of its outstanding common stock.

16. The total number of equity securities owned, directly or indirectly, by residents of Canada does not exceed 10 per cent, on a fully-diluted basis, of the total number of equity securities of Sony, calculated in accordance with NI 71-102.

17. Under subsection 4.1(3) of MI 52-109, issuers are exempt from the requirement to file interim certificates in the Canadian form if:

(a) the issuer furnishes to the SEC a current report on Form 6-K containing the issuer's quarterly financial statements and MD&A;

(b) the Form 6-K is accompanied by signed certificates that are furnished to the SEC in the same form required by U.S. federal securities laws implementing the quarterly report certification requirements in section 302(a) of the Sarbanes-Oxley Act; and

(c) the signed certificates relating to the quarterly report filed under cover of the Form 6-K are filed through SEDAR as soon as reasonably practicable after they are furnished to the SEC.

18. Sony furnishes to the SEC a current report on Form 6-K containing Sony's quarterly financial statements.

19. No form of certification under the Sarbanes-Oxley Act is required from Sony for quarterly financial statements furnished under Form 6-K as of the date hereof.

20. Sony does not voluntarily furnish to the SEC signed certificates relating to quarterly reports filed under Form 6-K in compliance with section 302(a) of the Sarbanes-Oxley Act.

THE DECISION of the Director under the Legislation is that pursuant to section 4.5 of MI 52-109, the requirements contained in MI 52-109:

(a) to file its annual certificates under section 2.1; and

(b) to file interim certificates under section 3.1;

shall not apply to Sony for so long as:

(a) Sony is in compliance with U.S. federal securities laws implementing the certification requirements in section 302(a) of the Sarbanes-Oxley Act applicable to Sony;

(b) Sony is in compliance with its disclosure obligations under the 1934 Act;

(c) the total number of equity securities owned, directly or indirectly, by residents of Canada does not exceed 10 per cent, on a fully diluted basis, of the total number of equity securities of Sony;

(d) Sony's signed certificates filed with the SEC relating to its annual report for each financial year are filed with the Ontario Securities Commission as soon as reasonably practicable after they are filed with the SEC; and

(e) Sony's signed certificates filed with the SEC relating to its quarterly financial statements, if any, are filed with the Ontario Securities Commission as soon as reasonably practicable after they are filed with the SEC.

December 9, 2004.

"Erez Blumberger"