Securities offerings and listings in the US: an ... - Latham & Watkins

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Chapter 2– The registration process• Is there a possibility that the issuer will wish to pursuean unregistered transaction instead of the publicoffering? Based on Securities Act Rule 155, an issueris permitted to conduct a private placement 30 daysafter withdrawing a public offering. 37 Rule 155 givesgeneral guidance that 30 days is an appropriate quietperiod in advance of a private placement. 38Registration formsThe SEC has specific forms for the registration of securitiesunder both the Securities Act and the Exchange Act.Forms not only contain their own disclosure requirements,but also specify certain items that must be disclosed underSecurities Act Regulation S-K (for textual disclosurerequirements) (S-K) and under Securities Act RegulationS-X (S-X), which governs financial statements. Theprimary forms for foreign private issuers are:SEC registration formsDescriptionSecurities Act formsForm F-1The form for first-time issuers and all other issuers who are not eligible for Form F-2 or F-3.Form F-2A “short form” available to seasoned issuers who do not necessarily meet the publicfloat requirements of Form F-3. Issuers may incorporate by reference informationcontained in filings made under the Exchange Act, such as an annual report on Form20-F, as long as copies of any information so incorporated are delivered with theprospectus.Form F-3A “short form” available for investment grade debt and to seasoned issuers with apublic float (shares owned by non-affiliates) of at least $75 million. Issuers mayincorporate by reference information contained in filings made under the ExchangeAct, such as an annual report on Form 20-F.Form F-4The form for business combinations and exchange offers.Form F-6The form for American Depositary Shares (ADSs) evidenced by AmericanDepositary Receipts (ADRs).Form S-8The form for registering securities issued to employees under an employmentbenefit plan, and interests in such plans.Exchange Act formsForm 20-FThe form for registering outstanding securities that will be listed on the NYSE orquoted on Nasdaq, and for annual reports.Form 8-Awww.iflr.comA “short-form” available for registering newly issued securities that will be listed onthe NYSE or quoted on Nasdaq in connection with a concurrent public offering inthe United States. Form 8-A is used in conjunction with the applicable Securities Actregistration form.US SECURITIES OFFERINGS: A GUIDE FOR NON-US ISSUERS 9
Chapter 2– The registration processThe central form for foreign private issuers is Form 20-F. Form 20-F sets out the required disclosure for USlistings and annual reports by foreign private issuers. Inaddition, the registration forms for public securitiesofferings refer extensively to Form 20-F.For both the Securities Act and the Exchange Act, therelevant forms typically prescribe broad categories ofinformation, rather than specific disclosures. In the caseof a Securities Act registration form, the registrationstatement includes a prospectus containing prescribedcategories of financial and non-financial disclosure, aswell as additional information not included in theprospectus, including exhibits (such as corporatedocuments and material contracts). The registrationstatement, prospectus and annual report must contain abasic package of financial statements and other financialinformation to illustrate the financial condition andresults of operations of the issuer.A checklist showing the non-financial informationrequired by Forms F-1, F-2, F-3 and 20-F is attached asAnnex A. Financial statement requirements arediscussed in “Required Financial Statement Disclosure,”below.(i) Form F-1Form F-1 is the Securities Act form for any securities ofa foreign private issuer that is a first-time SEC registrantor for which no other form is authorized or prescribed.It requires the issuer to include all required informationin the prospectus itself (rather than to incorporate thatinformation by reference from Exchange Act filings), andis therefore typically a lengthy document.(ii) Forms F-2 and F-3Form F-3 has both issuer and transaction requirements.It is available to a foreign private issuer that has: 39• securities registered under the Exchange Act or isrequired to file reports with the SEC under Section15(d) of the Exchange Act (by virtue of havingregistered an offering under the Securities Act);• filed at least one annual report on Form 20-F;• been subject to the reporting requirements of theExchange Act and filed all required materials on atimely basis for at least 12 months prior to the filingof the registration statement; and• had no material default on loans or long-term leasesor failure to pay a sinking fund installment ordividend on preferred stock since the end of the lastfinancial year covered by audited financial statementsin its Exchange Act reports, and no subsidiary of theissuer has had such a default.If an issuer is F-3 eligible, it may use Form F-3 for thefollowing transactions: 40• offerings by the issuer of non-convertible investmentgrade securities;• offerings of securities by the issuer (other than nonconvertibleinvestment grade debt securities) for cashif the aggregate market value worldwide of theissuer’s common equity held by non-affiliates is atleast $75 million;• secondary offerings of securities by holders of theissuer’s securities (often pursuant to a registrationrights agreement); and• offerings of securities by the issuer upon exercise ofcertain outstanding transferable warrants, uponexercise of rights granted pro rata by the issuer toexisting holders of the class offered, pursuant to adividend or interest reinvestment plan, or uponconversion of outstanding convertible securities.Form F-2 may be used by an issuer that has had (andwhose subsidiaries have had) no material defaults sincethe end of the last financial year and either has a longerhistory (36 months of Exchange Act reporting) than anF-3 issuer or meets the $75 million public floatrequirement of Form F-3. 41 Form F-2 (but not FormF-3) requires the issuer to deliver a copy of the issuer’sincorporated Exchange Act filings with theprospectus.10 US SECURITIES OFFERINGS: A GUIDE FOR NON-US ISSUERS www.iflr.com
Page 1 and 2: IFLRinternational Financial Law Rev
Page 3 and 4: About Latham & WatkinsLatham & Watk
Page 5 and 6: EditorNigel SavageProduction editor
Page 7 and 8: Table of contentsChapter 3 - Key ex
Page 9 and 10: Table of contentsSpecial considerat
Page 11 and 12: Table of contentsChapter 10 - Concl
Page 13 and 14: US SECURITIES OFFERINGS: A GUIDE FO
Page 15 and 16: Chapter 1 - Key statutes and concep
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Page 19 and 20: Chapter 2- The registration process
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Chapter 6 - The US Sarbanes-Oxley A
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Chapter 7 - Liability under the US
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Chapter 9 - Other relevant statutes
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EndnotesEndnotes1 We do not discuss
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Endnotesparticular class of persons
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Endnotes210 Id. Item 17(c)(2)(iii).
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Securities PracticeLatham & Watkins
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