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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 40-F
|__| Registration statement pursuant to Section 12 of the Securities Exchange
Act of 1934
or
|X| Annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934
For the fiscal year ended: December 31, 2005
Commission file number: 001-32399
Banro Corporation
(Exact name of registrant as specified in its charter)
Canada 1040 N/A
(Province or Other Jurisdiction (Primary Standard (I.R.S. Employer
of Incorporation or Organization) Industrial Identification No.)
Classification Code)
Martin Pomerance 1 First Canadian Place
Dorsey & Whitney LLP 100 King Street West, Suite 7070
250 Park Avenue Toronto, Ontario M5X 1E3, Canada
New York, New York 10177 (416) 366-2221
(212) 735-0784 (Address and telephone number of
(Name, address (including zip code) and registrant's principal executive
telephone number (including area code) of offices)
agent for service in the United States)
Securities registered pursuant to Section 12(b) of the Act:
Title of Each Class: Name of Each Exchange On Which Registered:
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Common Shares, no par value American Stock Exchange
Toronto Stock Exchange
Securities 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:
|X| Annual Information Form |X| 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.
Title of Each Class: Outstanding at December 31, 2005:
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Common Shares 32,711,688
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. |_| Yes 82-_____ |X| 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. |X| Yes |_| No
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UNDERTAKINGS
The Registrant 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 to transactions in said securities.
CONTROLS AND PROCEDURES
The Registrant's management, with the participation of the Registrant's
Chief Executive Officer and Chief Financial Officer, evaluated the effectiveness
of the Registrant's disclosure controls and procedures (as defined in Rule
13a-15(e) under the Exchange Act) as of the end of the period covered by this
report (the "Evaluation Date"). Based upon the evaluation described above, the
Chief Executive Officer and Chief Financial Officer concluded that as of the
Evaluation Date, the Registrant's disclosure controls and procedures were
effective.
No changes were made in the Registrant's internal control over financial
reporting during the period covered by this report that have materially
affected, or are reasonably likely to materially affect, the Registrant's
internal control over financial reporting.
The Registrant's management, including the Chief Executive Officer and
Chief Financial Officer, does not expect that the Registrant's disclosure
controls and procedures or internal control over financial reporting 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 Registrant 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.
AUDIT COMMITTEE FINANCIAL EXPERT
John A. Clarke serves as a member of the audit committee of the
Registrant's Board of Directors. The Board of Directors has reviewed the
definition of "audit committee financial expert" under item 8(a) of General
Instruction B to Form 40-F and determined that Mr. Clarke satisfies the criteria
for a audit committee financial expert under the Exchange Act. The Commission
has indicated that the designation of Mr. Clarke as an audit committee financial
expert does not make Mr. Clarke an "expert" for any purpose, impose any duties,
obligations or liability on Mr. Clarke that are greater than those imposed on
members of the audit committee and board of directors who do not carry this
designation or affect the duties, obligations or liability of any other member
of the audit committee.
CODE OF ETHICS
The Registrant has adopted a code of ethics that applies to the
Registrant's principal executive officer, principal financial officer and
principal accounting officer or controller, or persons performing similar
functions. A copy of Registrant's code of ethics is available without charge,
upon request made to the Secretary at 1 First Canadian Place, 100 King Street
West, Suite 7070, Toronto, Ontario M5X 1E3, Canada.
PRINCIPAL ACCOUNTANT FEES AND SERVICES
The disclosure provided under the heading "Audit Committee Information -
External Auditors Service Fees " in Exhibit 99.1 hereto is incorporated by
reference herein.
OFF-BALANCE SHEET ARRANGEMENTS
None
TABULAR DISCLOSURE OF CONTRACTUAL OBLIGATIONS
The disclosure provided under the heading "Liquidity and Capital
Resources - Contractual Obligations" in Exhibit 99.3 hereto is incorporated by
reference herein.
SIGNATURES
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,
thereunto duly authorized.
BANRO CORPORATION
/s/ Peter Cowley
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Peter Cowley
President and Chief Executive Officer
Date: March 31, 2006
EXHIBIT INDEX
The following exhibits have been filed as part of the Annual Report:
Exhibit Description
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99.1 Annual Information Form for the financial year ended December 31, 2005
99.2 Audited Comparative Consolidated Financial Statements of the
Registrant including the notes thereto, as of December 31, 2005 and
2004 and for each of the years ended December 31, 2005, 2004 and 2003
together with the report of the auditors thereon, including a U.S.
GAAP reconciliation
99.3 Management's Discussion and Analysis for the year ended December 31,
2005
99.4 Consent of BDO Dunwoody LLP, Chartered Accountants
99.5 Consent of SRK Consulting
99.6 Consent of Christopher O. Naas
99.7 Section 302 Certifications
99.8 Section 906 Certifications