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U.S. SECURITIES OFFERINGS AND EXCHANGE LISTING BY FOREIGN PRIVATE ISSUERS B. JEFFERY BELL, ESQ.* Copyright © 2019. All rights reserved. Quotation with attribution is hereby permitted. * Jeff Bell is a partner in the Mergers & Acquisitions/Private Equity group in MoFo’s New York office. Special thanks are due to John Dougherty, Don Lee and Lee Nisson for their assistance in preparing these materials. TABLE OF CONTENTS Page Page I. Securities Act ............................................. 2 III. Foreign Private Issuer Status ...................... 8 A. Registration Requirement and A. Qualification as a Foreign Private Exemptions .......................................... 2 Issuer .................................................... 8 1. Exempt Issuance Transactions ....... 2 B. Benefits of Foreign Private Issuer 2. Resale Restrictions ......................... 3 Status .................................................... 9 B. Registration Forms ............................... 4 IV. Listing on a U.S. Securities Exchange ..... 10 C. Communication by Issuers During the A. Listing through an American Offering Process................................... 5 Depositary Receipt Program .............. 10 D. Emerging Growth Companies .............. 5 B. Exchange Application Process and II. Exchange Act ............................................. 6 Listing Standards ................................ 11 A. Applicability of Registration and 1. Exchange Application Process ..... 11 Reporting Requirements ...................... 6 2. Quantitative Listing Standards ..... 11 B. Rule 12g3-2(b) Exemption from 3. Quantitative Maintenance Exchange Act Registration .................. 7 Standards ...................................... 12 C. Required Periodic Reports ................... 8 4. Corporate Governance Standards . 12 1. Annual Report on Form 20-F ......... 8 5. Disclosure and Notification 2. Current Reports on Form 6-K ........ 8 Requirements ................................ 12 EXHIBITS Exhibit A - Disclosure Required under Form 20-F Exhibit B - Quantitative Listing Standards Exhibit C - Quantitative Maintenance Standards Exhibit D - Corporate Governance Standards INDEX OF DEFINED TERMS ADR ................................................................. 1 NCM ............................................................... 11 Board ............................................................ N-5 NYSE ................................................................ 1 Compliance Period ....................................... N-1 NYSE Rules .................................................... 11 EGC .................................................................. 5 Qualified Institutional Buyer ............................ 3 Exchange Act ................................................... 1 Regulation D ..................................................... 2 FCPA ................................................................ 7 Sarbanes-Oxley Act ...................................... 6-7 JOBS Act .......................................................... 5 SEC ................................................................... 1 MD&A.......................................................... A-1 Securities Act .................................................... 1 NASDAQ ......................................................... 1 WKSI ................................................................ 4 NASDAQ Rules ............................................. 11 i INTRODUCTION Foreign companies frequently seek to raise capital in the U.S. and/or become listed for trading on a U.S. securities exchange. Beyond access to the U.S. capital markets, a foreign issuer can gain publicity and prestige by becoming a public company in the U.S. Doing so requires complying with U.S. securities laws and exchange rules, but a number of exemptions exist that make such compliance significantly easier for companies that qualify as a “foreign private issuer.” The two primary sources of U.S. securities law are the Securities Act of 1933, as amended (the “Securities Act”), and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), together with the regulations promulgated under each by the Securities and Exchange Commission (the “SEC”). In general terms, the Securities Act governs the offer and sale of securities in the U.S. and the Exchange Act regulates the trading of securities on securities exchanges and ongoing periodic reporting. This memo outlines the principal U.S. securities laws and exchange rules that apply to foreign private issuers offering securities for sale in the U.S. or listing their securities on a U.S. securities exchange. Part I of this memo outlines the framework applicable to issuances under the Securities Act. Part II discusses the Exchange Act registration and reporting requirements applicable to foreign private issuers. Part III discusses the qualification for, and benefits of, foreign private issuer status. Part IV describes the requirements for listing on the New York Stock Exchange (“NYSE”) and the NASDAQ Stock Market (“NASDAQ”), the two principal U.S. securities exchanges, and American Depositary Receipt (“ADR”) programs, which are a common way in which foreign private issuers list securities on U.S. exchanges. I. SECURITIES ACT A. Registration Requirement and Exemptions The Securities Act requires any transaction involving the offer or sale of a security1 to be registered with the SEC, unless the security is a type that is exempt from registration2 or the transaction is exempt from registration.3 1. Exempt Issuance Transactions The most common transactions that are exempt from registration are: • Offshore Transactions. Regulation S promulgated under the Securities Act exempts from registration transactions involving an offer and sale of securities that occurs outside of the U.S. Under this regulation, an offer and sale of securities is deemed to occur outside of the U.S. if it is made in an “offshore transaction”4 in which no “directed selling efforts”5 are made in the U.S. by the issuer, a distributor, any of their respective affiliates, or any person acting on their behalf, and certain other restrictions are imposed on the offering to prevent “flowback” of the securities into the U.S.6 • Private Placements. Section 4(a)(2) of the Securities Act exempts from registration offers and sales by an issuer that do not involve a public offering. As a general matter, issuers may make such sales to sophisticated investors who have not been solicited as part of a general solicitation or advertising effort and who have been provided with information relevant to their investment decision. Section 4(a)(2) itself does not set forth clear rules that an issuer may follow to ensure the sale is exempt from registration. As a result, many sales under this provision are conducted pursuant to Regulation D promulgated under the Securities Act (“Regulation D”), which sets forth certain safe-harbor criteria by which a sale of securities is deemed to qualify as a private placement. To be eligible for the Regulation D safe harbor, an issuance of securities must comply with a number of restrictions. First, the issuer must exercise reasonable care to ensure that the purchasers are not underwriters under the Securities Act (i.e., not acquiring the securities with a view to the distribution thereof).7 Second, the issuer must ensure that the securities are issued only to specified categories of purchasers. If the issuer offers or sells securities through general solicitation or general advertising, 8 Regulation D permits private placements9 only to purchasers who are “accredited investors.”10, 11 If the issuer offers or sells securities without undertaking any general solicitation or general advertising, it may sell securities to accredited investors and to up to 35 non-accredited investors who have such knowledge and experience in financial and business matters that they are capable of evaluating the merits and risks of the prospective investment.12 -2- Conditional Small Issues Exemption. Section 3(b) of the Securities Act exempts from registration smaller offerings by non-reporting private companies. The securities sold in such smaller offerings under Section 3(b) are freely transferable, as they are not deemed restricted securities. Sales under this provision are often conducted pursuant to Regulation A promulgated under the Securities Act (“Regulation A”), which sets forth certain safe-harbor criteria which issuers may rely on to satisfy the requirements for a conditional small issues exemption. In 2015, Regulation A was supplemented by the addition of Section 3(b)(2), widely referred to as “Regulation A+,” which provides exemption from registration for two tiers of offerings. Tier 1 is characterized by being subject to a lower dollar limit for the offering (up to USD 20 million) and to state securities laws (“blue sky laws”). Under Tier 2 an issuer may conduct a larger offering (up to USD 50 million) and is exempt from blue sky laws, but is also subject to ongoing reporting obligations after the completion of the offering. • Rule 144A Transactions. Rule 144A promulgated under the Securities Act exempts transactions in which securities are sold to an investment bank, as initial purchaser,13 and then resold to “Qualified Institutional Buyers.”14 A valid Rule 144A transaction must meet certain requirements, including (a) the issuer must give notice to the buyers that it is relying on Rule 144A; (b) the securities must not be, when issued,
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