As the number of U.S. companies launching initial public offerings (“IPOs”) by filing registration statements increased throughout 2013, foreign issuers joined in on the going public and capital raising process. While their numbers are still relatively small compared to their U.S. counterparts, statistics show that foreign IPOs and going public transactions have more than doubled from 2012.
While listing on a U.S. exchange has long been considered an achievement that confers prestige on foreign companies, the economic crisis of 2008 put a damper on enthusiasm for initial public offerings and going public transactions in the U.S. generally. That appears to be changing.
One reason for the increase in foreign issuers going public in the U.S. is the U.S. economy is stronger than the European economy, providing more fertile ground for raising capital. Equally important is the fact that foreign issuers choosing to list in the U.S. are, perhaps ironically, subject to less regulation than U.S. companies.
The SEC’s disclosure requirements for foreign issuers are significantly less than for U.S. issuers even in going public transactions. For example, while foreign issuers are required to file an audited annual report on Form 20-F, they are not required to provide quarterly reports. Foreign issuers may submit less detailed information about executive compensation, and are not bound by the SEC’s proxy rules.
Additional advantages are offered to foreign issuers by the JOBS Act. Both domestic and foreign issuers may qualify as “emerging growth companies”. The JOBS Act defines emerging growth companies as businesses with less than $1 billion in gross annual revenues that have raised less than $1 billion in debt over the past three years. These companies now enjoy benefits that include a less burdensome disclosure regime and more. Most important for those engaging in an IPO is the option of choosing confidential SEC review of draft registration statements on Form S-1, and other forms.
This means that successive amendments to initial registration statements on Form S-1 for IPO’s and direct public offerings cannot be seen by the public. The public will, in fact, have no idea that the company is planning an IPO or going public transaction unless it elects to disclose that fact. Once the SEC declares an issuer’s Form S-1 registration statement effective, it will be published on Edgar. More than 90 percent of companies, domestic and foreign, engaging in recent IPOs have made use of the confidential filing provision in their Form S-1 registration Statement.
The foreign companies seeking to list in the U.S. in 2013 are for the most part from North America and Europe, but the New York Times’s Dealbook recently reported that Chinese issuers are looking to make a comeback in our markets.
For the first decade of the century, as the Chinese economy surged, Chinese companies flocked to the New York Stock Exchange and the Nasdaq. A few, like Baidu (BIDU) have been extremely successful. Others, unfortunately, became embroiled in accounting and insider trading scandals that resulted in delistings and civil and criminal charges. As one “China stock” after another came under scrutiny, the public’s once considerable interest in them evaporated. In 2012, only two Chinese companies launched initial public offerings in the U.S.
Even so, financial regulators’ concerns have not disappeared; authorities in the U.S. and China continue to search for ways to ensure that the events of the recent past will not be repeated.
On balance, the picture is bright. The U.S. economy appears to be on the road to recovery, and the equity markets are thriving. The JOBS Act has created attractive opportunities for emerging growth companies. In this climate, it is likely that an increasing number of foreign issuers will choose to list on U.S. markets.
This blog post about initial public offerings is provided as a general informational service to clients and friends of Hamilton & Associates Law Group and should not be construed as, and does not constitute, legal and compliance advice on any specific matter, nor does this message create an attorney-client relationship. For more information concerning the rules and regulations affecting SEC registration statements, Rule 144, Form 8K, FINRA Rule 6490, Rule 506 private placement offerings, Regulation A, Rule 504 offerings, Rule 144, SEC reporting requirements, 1933 Act registration statements on Form S-1, S-8 and 1934 Act registration statements on Form 10, OTC Pink Sheet listings, OTCBB and OTCMarkets disclosure requirements, DTC Chills, Global Locks, reverse mergers, public shells, go public direct transactions and direct public offerings please contact Hamilton and Associates at (561) 416-8956 or firstname.lastname@example.org. Please note that the prior results discussed herein do not guarantee similar outcomes.
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