Securities Lawyer 101 l Brenda Hamilton

Securities Lawyer 101 l Brenda Hamilton

Wednesday, June 5, 2013

Benefits of Foreign Issuer Status in Going Public Transactions

A private foreign company seeking to go public may be classified as a U.S. domestic issuer or a non-U.S., foreign private issuer under SEC rules. The status as a foreign private issuer holds many benefits for foreign companies seeking public company status. These benefits include less stringent narrative and financial statement disclosure in public offering documents making the SEC registration process less burdensome.
Upon completion of a going public transaction, foreign companies become subject to less stringent SEC periodic reporting requirements. Additionally, upon obtaining public company status, foreign companies are not subject to the proxy rules which impose disclosure and procedural obligations for companies who solicit shareholder votes.
The term “foreign private issuer” is not determined by solely where an issuer is incorporated or domiciled. Instead it is defined under the securities laws.

Qualification as a Foreign Issuer

An foreign companies qualification as a foreign private issuer is determined initially as of a date within thirty days prior to its filing with the SEC of an initial registration statement for its initial public offering in a going public transaction or listing in the U.S on a securities exchange.  After completion of its going public transaction, the foreign company’s status as a foreign issuer is determined annually on the last business day of its second fiscal quarter. If a company ceases to be a foreign private issuer, then it must comply with the requirements of a U.S. issuer beginning on the first day of the fiscal year following the determination date.
Under U.S. securities laws a foreign issuer is any foreign entity that does not meet the conditions below:
(1) more than 50 percent of the issuer’s outstanding voting securities are directly or indirectly held of record by residents of the U.S. residents.; and
(2) any of the following:
(i) the majority of the issuer’s executive officers or directors are U.S. citizens or residents;
(ii) more than 50 percent of the issuer’s assets are located in the U.S.; or
(iii)   the issuer’s business is administered principally in the U.S.
Under the above definition, a foreign company domiciled outside the U.S. will be deemed a foreign private issuer if more than 50 percent of its voting securities are held by non-U.S. residents (without considering the three tests in (2) above). Even where 50% of a foreign company’s equity securities are held by U.S. residents, it will be treated as a foreign private issuer, so long as it does not satisfy any of the three tests above.

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