How Does A Foreign Issuer Register Shares When Going Public?

Foreign Issuers Registering A foreign issuer seeking to go public has several registration statement forms available for its going public transactions. Regardless of the registration statement form selected, all registration statements and other material filed with the Securities and Exchange Commission (“SEC”) must be submitted in electronic format on the SEC’s Electronic Data Gathering and Retrieval (“EDGAR”) system. All registration statements including those of foreign private issuers are subject to the SEC’s review and comment.

Some registration statement forms can be used exclusively by foreign private issuers under the Securities Act of 1933, as amended (“Securities Act”) and The Securities Exchange Act of 1934 (“Exchange Act”), depending upon the purpose for registration and whether the registration statement is used in connection with a going public transaction.

Securities Act Registration Statements

  • Form F-1 can be used for an initial public offering and a direct public offering by a foreign private issuer.  Form F-1 is the form for transactions for which no other form is authorized or prescribed.
  • Form F-3 is a “short form,” providing for incorporation by reference of an annual report and other reports filed with the SEC. Form F-3 is available to foreign private issuers that have been subject to Exchange Act reporting requirements for at least 12 months, have filed all required reports in a timely manner for at least the last 12 months, have filed at least one annual report on Form 20-F, have not defaulted on certain payment obligations, and have an aggregate worldwide public float of common stock of at least $75 million. Form F-3 may be available in other circumstances as well.
  • Form F-4 is the form prescribed for business combinations and exchange offers by foreign private issuers.
  • Form F-6 is the form for American Depositary Receipts by foreign private issuers.

Exchange Act Registration

Form 20-F is the form generally used by foreign private issuers that wish to register their securities under Section 12(b) of the Exchange Act and list on a national securities exchange. Foreign private issuers that wish to voluntarily register their securities under Section 12(g) may also file a Form 20-F to register their securities under the Exchange Act. Foreign private issuers that meet certain shareholder and asset thresholds both globally and within the United States and that do not qualify for the Rule 12g3-2(b) exemption are also required to register using Form 20-F under Section 12(g) of the Exchange Act.

Confidential Registration Submissions For Foreign Issuers Going Public

A foreign issuer may submit a confidential registration statement to the SEC on a non-public basis under certain circumstances. This allows the foreign company to respond to SEC comments on the disclosures prior to the filing being publicly available.

Section 106 of the JOBS Act added Section 6(e) to the Securities Act under which an emerging growth company may confidentially submit a confidential initial registration statement under the Securities Act for confidential, non-public review by the SEC before public filing, provided that the initial confidential submission and all amendments thereto are publicly filed not later than 21 days before the date on which the issuer conducts a road show, as this term is defined in Securities Act Rule 433(h)(4).

The SEC’s notice on non-public submissions from foreign private issuers summarizes limited circumstances under which a foreign issuer may submit non-public registration statements in connection with an initial registration of securities in a going public transaction.

As with any registration statement filed with the SEC, a registration statement confidentially must be complete in all material respects at the time of submission.

For further information, please contact Brenda Hamilton, Securities Attorney at 101 Plaza Real South, Suite 202 North, Boca Raton, FL, (561) 416-8956, or by email at [email protected].  This securities law Q & A is provided as a general or informational service to clients and friends of Hamilton & Associates Law Group, P.A. and should not be construed as, and does not constitute legal advice on any specific matter, nor does this message create an attorney-client relationship.  Please note that prior results discussed herein do not guarantee similar outcomes.

Hamilton & Associates | Securities Lawyers
Brenda Hamilton, Going Public Attorney
101 Plaza Real South, Suite 202 North
Boca Raton, Florida 33432
Telephone: (561) 416-8956
Facsimile: (561) 416-2855