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

Chapter 2– The registration processPractice point:An important advantage of Forms F-2 and F-3 overForm F-1 is that a significant portion of the requiredinformation may be incorporated by reference intoForms F-2 and F-3 from the issuer’s most recentannual report on Form 20-F and its other ExchangeAct filings (although use of Form F-2 requires deliveryof copies of any information that is so incorporated).Form F-3 also contemplates incorporation of subsequentExchange Act reports, which allows F-3 issuersto file a shelf registration statement and offer securitieson a delayed or continuous basis. 42 Even though anF-2 or F-3 issuer is permitted to incorporate by reference,in most underwritten deals the underwriterswill require the issuer to include in the prospectussome information regarding its business, strategy andother matters they consider necessary to market theoffering effectively.Practice point:Foreign private issuers considering use of Form F-2 orForm F-3 should pay particular attention to timelysubmissions of current reports on Exchange Act Form6-K.Practice point:Form 20-F – from which much of the disclosure inForm F-3 and Form F-2 derives – has alternativefinancial statement requirements for Exchange Actperiodic reports and Securities Act registration statements,with the latter more extensive. An issuerseeking to incorporate by reference using Form F-3or F-2 must generally meet the more stringent Item18 standard in its Exchange Act reports.(iii) Form F-4Form F-4 is available to register securities issued inconnection with business combinations and exchangeoffers. Form F-4 requires information concerning: 43• the relevant transaction, including pro forma financialinformation for an acquisition or, as applicable, theterms of the exchange;• the issuer, its business and the risks associated with therelevant investment, consistent with the disclosurerequired by Forms F-1, F-2 or F-3 (issuers eligible touse Forms F-2 and F-3 may incorporate by referencein Form F-4 to the same extent as permitted by thoseforms); and• for acquisitions, the company being acquired,including most of the same business and financialinformation that is required for a similarly situatedissuer (if the company to be acquired already filesreports with the SEC, the necessary information maybe incorporated by reference in certain circumstances).Practice point:Form F-4 is the applicable form for foreign privateissuers who are offering new securities for outstandingsecurities, including those who have sold debt orcertain preferred stock under Rule 144A andRegulation S in a private placement that is beingexchanged for identical, SEC-registered debt or preferredsecurities. This technique, known as the A/Bexchange offer, is a commonly used financing structure.It allows issuers and underwriters to access thefixed income markets quickly through a private placementwhile achieving public market pricing (that is,without liquidity discounts) because of the A/Bexchange offer.(iv) Form F-6Form F-6 is a separate, additional form filed by adepositary bank to register ADSs evidenced by ADRs,the form in which equity interests in foreign privateissuers are frequently held and traded in the UnitedStates. Form F-6 may only be used if: 44www.iflr.comUS SECURITIES OFFERINGS: A GUIDE FOR NON-US ISSUERS11