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

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Chapter 3 – Key exemptions from Securities Act registrationForm F-X. 164 It must disseminate any informationaldocument to US security holders, in English, on acomparable basis to that provided to security holdersin the home jurisdiction. 165 In addition, if the issuerdisseminates by publication in its home jurisdiction,it must publish the information in a mannerreasonably calculated to inform US security holdersof the offer. 166• Eligibility of securities: 167 The securities offered inthe rights offering must be equity securities of thesame class as the securities held by offerees in theUnited States (directly or through ADRs).• Limitations on transfer: 168 The terms of the rightsmust prohibit transfers by US security holdersexcept in accordance with Regulation S.• Legends: 169 Any US offering documentation mustcontain a legend regarding the non-US nature ofthe transaction and the issuer’s disclosure practices,and must state that investors may have difficulty inenforcing rights against the issuer and its officers anddirectors.www.iflr.comUS SECURITIES OFFERINGS: A GUIDE FOR NON-US ISSUERS25
Chapter 4 – Restrictions on publicity during securities offeringsChapter 4Restrictions on publicity duringsecurities offeringsRegistered transactions(i) The three stages of registrationunder the Securities ActIn a registered transaction, it is unlawful:• to offer or sell a security unless a registrationstatement with respect to that offering has been filedwith the SEC; 170• to sell a security unless a registration statement withrespect to that offering is in effect; 171• to use a prospectus to offer or sell a security unlessthat prospectus meets the requirements of theSecurities Act and the SEC (a conformingprospectus); 172 and• to sell a security unless the security (or confirmationof the sale) is accompanied or preceded by aconforming prospectus. 173As a result of these basic principles, the registrationprocess is generally divided into three stages:• the quiet period – from the time an issuer decides tomake a public offering until it files its registrationstatement;• the waiting period – from the time the registrationstatement is filed until it is declared effective; and• the post-effective period – after the registrationstatement has been declared effective by the SEC.During each of these stages, publicity about the issuer isrestricted in distinct ways.Practice point:An issuer and its underwriters should pay close attentionto the contents of their websites (including hyperlinkedinformation), which are routinely reviewed bythe SEC staff during the registration process.(ii) Restrictions on publicity during thequiet periodAs noted above, the pre-filing or quiet period beginswhen an issuer decides to make a public offering(usually by retaining an investment bank or banks toundertake the offering) and ends when the registrationstatement relating to the offering is first filed publiclywith the SEC.During this period, the issuer may not make offers orsales of the securities being registered. The SEC hasconstrued the concept of premature offers (frequentlycalled “gun jumping”) broadly to include publicity thatdoes not refer to the proposed offering but which maynevertheless stimulate investor or dealer interest in theissuer or its securities. During this period, an issuershould not release publicly any forecasts, projections orpredictions relating to revenues, income or earnings pershare or concerning expected valuations, and should putin place procedures for review of public statements andpress releases.26US SECURITIES OFFERINGS: A GUIDE FOR NON-US ISSUERSwww.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
Page 17 and 18: Chapter 1 - Key statutes and concep
Page 19 and 20: Chapter 2- The registration process
Page 29 and 30: Chapter 3 - Key exemptions from Sec
Page 37: Chapter 3 - Key exemptions from Sec
Page 41 and 42: Chapter 4 - Restrictions on publici
Page 43 and 44: Chapter 5 - Required financial stat
Page 63 and 64: Chapter 6 - The US Sarbanes-Oxley A
Page 79 and 80: Chapter 7 - Liability under the US
Page 87 and 88: Chapter 8 - Communications with res
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Chapter 8 - Communications with res
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Chapter 9 - Other relevant statutes
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Annex A - Non-financial disclosure
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Annex B -NYSE and Nasdaq quantitati
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Annex C - Effective dates for certa
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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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Endnotes552 Id. at 86,381.553 Id.55
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Securities PracticeLatham & Watkins
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Securities offerings and listings in the US: an ... - Latham & Watkins

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