Foreign Issuer Going Public Registration Statements and SEC Filings
The Securities and Exchange Commission (“SEC”) requires various forms of SEC registration statements covering the offer and sale of securities for both public and private companies. The eligibility and requirements of each SEC registration statement vary depending on the characteristics of the issuer and the securities offering. The requirements vary for US issuers and non-US companies.
Non-US companies may seek to file a US registration statement to go public and access the US public capital markets to raise capital in the US, use its securities as a currency for mergers and acquisitions or to list on a national securities exchange like NASDAQ or the NYSE.
Foreign issuers going public in the U.S. who qualify as Foreign Private Issuers can avail themselves of certain benefits, including less detailed disclosure and reporting requirements. When going public, a Foreign Issuer can offer and sell the same types of securities that a U.S. Issuer can offer and sell.
What is a Foreign Issuer?
A Foreign Issuer can be a foreign government, a national of any foreign country, or a corporation or
other organization incorporated or organized under the laws of any foreign country that issues securities in the U.S.
What is a Foreign Private Issuer?
For an issuer to qualify as a Foreign Private Issuer, the SEC provides two tests. A foreign company will qualify as a foreign private issuer if either:
- 50% or less of its outstanding voting securities are held by U.S. residents, or
- more than 50% of its outstanding voting securities are held by U.S. residents and none of the following:
- the majority of its executive officers or directors are not U.S. citizens or residents;
- more than 50% of the issuer’s assets are not located in the U.S.; and
- the issuer’s business is not principally administered in the U.S.
As a Foreign Private Issuer, the company may use registration and reporting forms specifically for Foreign Private Issuers.
SEC Registration Statements and Forms
Foreign Private Issuers are eligible to use the following Securities Act registration statements and forms:
Form F-1 Registration Statement
Form F-1 is the registration statement form most commonly used by foreign private issuers seeking to sell securities in a registered offering in accordance with Securities Act requirements. Form F-1 requires detailed disclosures about the Foreign Private Issuer’s business, management, operations and financial condition. Additionally, Form F-1 can be used for initial public offerings and resale registration statements of Foreign Private Issuers.
Form S-1 Registration Statement
Foreign issuers may also register securities on Form S-1. Form S-1 can be used to register debt or equity securities and is often used in initial public offerings as well as secondary selling shareholder registrations. Form S-1 may be used to register securities of any issuer other than foreign governments or political subdivisions thereof or certain asset-backed securities for which no other form is authorized or prescribed and is the most commonly used registration statement form. Form S-1 requires detailed disclosures about the issuer’s business, management, operations and financial condition.
Form F-3 Registration Statement
SEC Form F-3 Registration Statement is available to a Foreign Private Issuer that has (1) been subject to Exchange Act reporting requirements for at least 12 months, (2) filed at least one annual report on Form 20-F, and timely filed all required SEC reports, (3) not defaulted on certain payment obligations, and (4) has an aggregate public float of at least $75 million. Foreign Issuers qualifying to register securities on Form F-3 registration statement may incorporate their annual report and other SEC reports by reference into their Form F-3 registration statement.
Form F-4 Registration Statement
Foreign Private Issuers may use a Form F-4 registration statement to register securities issued with certain business combinations, exchange offers, reclassifications, mergers, consolidations and asset transfers.
Form F-6 is a registration statement for American Depository Receipts (ADRs). An ADR is issued by a U.S. bank that holds a deposit of the foreign private issuer’s shares in relation to a foreign bank, either directly or indirectly. ADRs evidence ownership of American Depository Shares, representing an interest in a foreign company’s shares. ADRs are subject to Exchange Act reporting requirements unless they are exempt under Rule 12G3-2(b).
Foreign private issuers registering securities on Form F-1 or F-4 may file annual reports on Form 20-F instead of Form 10-K. Form 20-F must be filed within 4 months of the end of each fiscal year. Unlike domestic issuers, Foreign Private Issuers are not required to file quarterly reports and file six-month reports on Form 6-K.
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 article 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
200 E Palmetto Rd, Suite 103
Boca Raton, Florida 33432
Telephone: (561) 416-8956
Facsimile: (561) 416-2855