UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 40-F/A
(Amendment No. 2)
| o | REGISTRATION STATEMENT PURSUANT TO SECTION 12 OF THE SECURITIES EXCHANGE ACT OF 1934 | |
OR | ||
ý | ANNUAL REPORT PURSUANT TO SECTION 13(a) OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2007
Commission file number: 001-32399
BANRO CORPORATION
(Exact Name of Registrant as Specified in its Charter)
| Canada (Province or other jurisdiction of incorporation or organization) | 1040 (Primary Standard Industrial Classification Code) | Not Applicable (I.R.S. Employer Identification No.) |
1 First Canadian Place
100 King Street West, Suite 7070
Toronto, Ontario M5X 1E3
(416) 366-2221
(Address and Telephone Number of Registrant's Principal Executive Offices)
DL Services Inc.
U.S. Bank Center
1420 5th Avenue, Suite 3400
Seattle, WA 98101-4010
(206) 903-8800
(Name, address (including zip code) and telephone number (including area code) of agent for service in the United States)
Securities registered or to be registered pursuant to Section 12(b) of the Act:
| Title of Each Class: | Name of Each Exchange On Which Registered: | |
|---|---|---|
| Common shares, no par value | American Stock Exchange |
Securities registered or to be registered pursuant to Section 12(g) of the Act: None
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act: None
For annual reports, indicate by check mark the information filed with this form:
ý Annual Information Form ý Audited Annual Financial Statements
Indicate the number of outstanding shares of each of the issuer's classes of capital or common stock as of the close of the period covered by the annual report: 39,860,137
Indicate by check mark whether the Registrant by filing the information contained in this Form is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities
Exchange Act of 1934 (the "Exchange Act"). If "Yes" is marked, indicate the filing number assigned to the Registrant in connection with such Rule. o Yes ý No
Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports) and (2) has been subject to such filing requirements for the past 90 days. ý Yes o No
This amendment number two to the Annual Report on Form 40-F, as previously filed on May 5, 2008, and amended on September 2, 2008 is being filed to clarify certain information relating to the Company's management's determination that material weaknesses existed in the Company's internal control over financial reporting at December 31, 2007 referred to under the section heading "Changes in Internal Controls Over Financial Reporting". Amendments to this section reflect actions taken by management of the Company to date to remediate the material weakness discovered during management's review of internal control over financial reporting for the fiscal year ended December 31, 2007. No other sections of the Annual Report on Form 40-F, as previously filed have been amended, revised, or updated. In addition, pursuant to Rule 12b-15 under the Securities Exchange Act of 1934, as amended, the certifications pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 ("SOX"), and the certifications pursuant to Section 906 of SOX, filed as exhibits to the Original Form 40-F, have been re-executed as of the date of, and are refiled as part of, this Amendment as Exhibits 99.5, 99.6, 99.7 and 99.8. No other changes have been made to the Original Form 40-F. The filing of this Amendment shall not be deemed an admission that the Original Form 40-F, when made, included any known untrue statement of material fact or knowingly omitted to state a material fact necessary to make a statement not misleading.
This Amendment is incorporated by reference into the Company's Registration Statement on Form F-10 (No. 333-156055) and the prospectuses included therein.
CHANGES IN INTERNAL CONTROLS OVER FINANCIAL REPORTING
As a result of the material weaknesses relating to internal control over financial reporting, the Company's management concluded that the Company's internal control over financial reporting was not effective as of December 31, 2007.
As of April 18, 2008, the Company began to take and implement the following remediation steps to remedy the material weaknesses and enhance the internal control over financial reporting and entity-level controls:
By implementing these remedial measures, management intends to improve the Company's internal control over financial reporting in the future. The Company's management is working and will continue to work under the supervision of the Audit Committee to identify and implement additional corrective actions, where required, to improve the effectiveness of our internal control over financial reporting, including the enhancement of systems and procedures.
The Company estimates that the cost of the remediation has not been and will not be a material amount and that the remediation efforts will be completed before the filing of the December 31, 2008 fiscal year Annual Report on Form 40-F.
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The Company's management, including the CEO and CFO, does not expect that its disclosure controls and procedures or internal controls and procedures will prevent all error and all fraud. A control system, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the control system are met. Further, the design of a control system must reflect the fact that there are resource constraints, and the benefits of controls must be considered relative to their costs. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, within the Company have been detected. These inherent limitations include the realities that judgments in decision-making can be faulty, and that breakdowns can occur because of simple error or mistake. Additionally, controls can be circumvented by the individual acts of some persons, by collusion of two or more people, or by management override of the control. The design of any system of controls also is based in part upon certain assumptions about the likelihood of future events, and there can be no assurance that any design will succeed in achieving its stated goals under all potential future conditions; over time, control may become inadequate because of changes in conditions, or the degree of compliance with the policies or procedures may deteriorate. Because of the inherent limitations in a cost-effective control system, misstatements due to error or fraud may occur and not be detected.
The Company undertakes to make available, in person or by telephone, representatives to respond to inquiries made by the Commission staff, and to furnish promptly, when requested to do so by the Commission staff, information relating to: the securities registered pursuant to Form 40-F; the securities in relation to which the obligation to file an annual report on Form 40-F arises; or transactions in said securities.
The Company filed an Appointment of Agent for Service of Process and Undertaking on Form F-X with respect to the class of securities in relation to which the obligation to file this Form 40-F arises.
EXHIBITS | | |
|---|---|---|
99.1* | Annual Information Form of the Company for the year ended December 31, 2007 | |
99.2* | Management's Discussion and Analysis | |
99.3* | Annual Financial Statements as amended and restated | |
99.4* | Auditor's Attestation | |
99.5 | Certification of Chief Executive Officer pursuant to Rule 13(a)-14(a) or 15(d)-14 of the Securities Exchange Act of 1934 | |
99.6 | Certification of Chief Financial Officer pursuant to Rule 13(a)-14(a) or 15(d)-14 of the Securities Exchange Act of 1934 | |
99.7 | Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 | |
99.8 | Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 | |
99.9* | Consent of BDO Dunwoody LLP, Chartered Accountants | |
99.10* | Consent of Michael B. Skead | |
99.11* | Consent of Martin F. Pittuck | |
99.12* | Consent of Gordon Cunningham | |
99.13* | Consent of Daniel K. Bansah | |
99.14* | Consent of Anthony Smith | |
99.15* | Consent of A. Gareth O'Donovan |
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Pursuant to the requirements of the Exchange Act, the Registrant certifies that it meets all of the requirements for filing on Form 40-F and has duly caused this annual report to be signed on its behalf by the undersigned, thereto duly authorized.
| BANRO CORPORATION | ||||
By: | /s/ Michael J. Prinsloo | |||
| Name: | Michael J. Prinsloo | |||
| Title: | Chief Executive Officer | |||
Date: January 13, 2009
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