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Accessing the U.S. Capital Markets ACCESSING THE U.S. CAPITAL MARKETS NON-U.S. IssuERS An Introduction to United States Securities Laws This and other volumes of Accessing the U.S. Capital Markets have been prepared by Sidley Austin LLP for informational purposes only, and neither this volume nor any other volume constitutes legal advice. The information contained in this and other volumes is not intended to create, and receipt of this or any other volume does not constitute, a lawyer-client relationship. Readers should not act upon information in this or any other volume without seeking advice from professional advisers. Sidley Austin LLP, a Delaware limited liability partnership which operates at the firm’s offices other than Chicago, London, Hong Kong and Sydney, is affiliated with other partnerships, including Sidley Austin LLP, an Illinois limited liability partnership (Chicago); Sidley Austin LLP, a separate Delaware limited liability partnership (London); Sidley Austin, a New York general partnership (Hong Kong); Sidley Austin, a Delaware general partnership of registered foreign lawyers restricted to practicing foreign law (Sydney); and Sidley Austin Nishikawa Foreign Law Joint Enterprise (Tokyo). The affiliated partnerships are referred to herein collectively as “Sidley Austin LLP,” “Sidley Austin” or “Sidley.” This volume is available electronically at www.accessingsidley.com. If you would like additional printed copies of this volume, please contact one of our lawyers or our Marketing Department at 212-839-5300, e-mail: [email protected]. For further information regarding Sidley Austin, you may access our web site at www.sidley.com Our web site contains address, phone and e-mail information for our offices and lawyers. Attorney Advertising. For purposes of compliance with New York State Bar rules, Sidley Austin LLP’s headquarters are 787 Seventh Avenue, New York, NY 10019, 212-839-5300 and One South Dearborn, Chicago, IL 60603, 312-853-7000. Prior results described herein do not guarantee a similar outcome. TABLE OF CONTENTS ACCESSING THE U.S. CAPITAL MARKETS – NON-U.S. ISSUERS Page INTRODUCTION ................................................................................................................................................1 AN OVERVIEW OF U.S. SECURITIES REGULATORS AND LAWS ........................................................2 SECTION I: PRELIMINARY MATTERS......................................................................................................15 CHAPTER 1 THE U.S. OFFERING PROCESS...........................................................................16 CHAPTER 2 PRE-OFFERING MATTERS..................................................................................58 SECTION II: REGISTERED PUBLIC OFFERINGS....................................................................................66 CHAPTER 3 THE SECURITIES REGISTRATION AND REPORTING PROCESS.................67 CHAPTER 4 DISCLOSURE REQUIREMENTS.........................................................................84 CHAPTER 5 SHELF REGISTRATION .....................................................................................139 CHAPTER 6 LISTING ON U.S. SECURITIES EXCHANGES ................................................148 SECTION III: ONGOING COMPLIANCE OBLIGATIONS.....................................................................192 CHAPTER 7 ONGOING REPORTING AND OTHER REQUIREMENTS..............................193 SECTION IV: EXEMPT OFFERINGS, SECURITIES AND ISSUERS ....................................................227 CHAPTER 8 1933 ACT-EXEMPT OFFERINGS AND SECURITIES .....................................228 CHAPTER 9 1940 ACT-EXEMPT ISSUERS ............................................................................245 SECTION V: SELECTED ISSUERS .............................................................................................................256 CHAPTER 10 FINANCE SUBSIDIARIES ................................................................................257 CHAPTER 11 REITS ..................................................................................................................267 CHAPTER 12 BANK ISSUERS .................................................................................................273 CHAPTER 13 CANADIAN ISSUERS .......................................................................................288 CHAPTER 14 FOREIGN GOVERNMENTAL ISSUERS .........................................................304 SECTION VI: OTHER MATTERS ...............................................................................................................314 CHAPTER 15 HOME COUNTRY MATTERS..........................................................................315 CHAPTER 16 REPURCHASING, EXCHANGING AND AMENDING AN ISSUER’S OUTSTANDING SECURITIES...................................................................................................319 i © Sidley Austin LLP – January 2009 CHAPTER 17 LIABILITIES UNDER U.S. SECURITIES LAWS ............................................332 CHAPTER 18 DE-REGISTERING UNDER THE 1934 ACT ...................................................345 CHAPTER 19 ACQUISITIONS BY NON-U.S. ENTITIES.......................................................353 GLOSSARY ......................................................................................................................................................366 APPENDIX A DETERMINING WHETHER AN ISSUER IS A PRIMA FACIE INVESTMENT COMPANY OR EXEMPT PURSUANT TO RULE 3a-1 UNDER THE INVESTMENT COMPANY ACT OF 1940.....................A-1 APPENDIX B DISCLOSURES ABOUT SEGMENTS OF AN ENTERPRISE AND RELATED INFORMATION.....................B-1 APPENDIX C SUMMARY OF SEC RELEASES ON MD&A .......................................................................................................C-1 APPENDIX D U.S. REGULATION OF ACTIVITIES OF NON-U.S. BANKS IN THE UNITED STATES.................................D-1 ii © Sidley Austin LLP – January 2009 DETAILED TABLE OF CONTENTS Page INTRODUCTION ................................................................................................................................................1 AN OVERVIEW OF U.S. SECURITIES REGULATORS AND LAWS ........................................................2 GENERAL..............................................................................................................................................2 U.S. SECURITIES INDUSTRY REGULATORS ...............................................................................3 The U.S. Securities and Exchange Commission ........................................................................3 The Financial Industry Regulatory Authority ............................................................................3 The Public Company Accounting Oversight Board...................................................................4 U.S. Securities Exchanges .........................................................................................................4 U.S. State and Territorial Securities Regulators.........................................................................5 U.S. Federal and State Bank and Thrift Regulators ...................................................................5 The Commodity Futures Trading Commission..........................................................................5 SECURITIES ACT OF 1933.................................................................................................................6 Purpose.......................................................................................................................................6 Registration................................................................................................................................6 Prospectuses...............................................................................................................................7 Trading Restrictions...................................................................................................................7 American Depositary Receipts...................................................................................................7 SECURITIES EXCHANGE ACT OF 1934.........................................................................................7 Purpose.......................................................................................................................................7 Registration and Reporting ........................................................................................................8 SARBANES-OXLEY ACT OF 2002 ....................................................................................................9 Purpose.......................................................................................................................................9 Disclosure and Related Requirements........................................................................................9 Audit, Auditor and Audit Committee Requirements..................................................................9 Other Requirements .................................................................................................................10 Application...............................................................................................................................10 TRUST INDENTURE ACT OF 1939.................................................................................................11 Purpose.....................................................................................................................................11
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