Foreign Private Issuers

Transcription

1 Foreign Private Issuers March 10, 2017 Steve Bernard Corporate Megan Baier Corporate The materials in this presentation, and the opinions expressed in this webinar, are those of the authors and speakers, respectively, and do not necessarily reflect the opinions of the companies or institutions with which such authors or speakers are affiliated. In addition, neither these materials nor the views expressed in this webinar are intended to constitute legal advice as to any particular situation. 1

2 The US securities law regime Are you a foreign private issuer? Technical benefits of being an FPI Practical benefits of being an FPI Losing FPI status FAQs Overview 2

3 The US Securities Law Regime Domestic Issuers versus Foreign Private Issuers Relative extent and timing of disclosure obligations NYSE/Nasdaq and home country rules 3

4 Are you a Foreign Private Issuer? Your company must have been formed in a country other than the United States (a non-us issuer ) A non-us issuer will be deemed a foreign private issuer unless: More than 50% of its outstanding voting securities are held directly or indirectly by residents of the United States, and Any one of the following is true: A majority of its executive officers are US citizens or residents A majority of its directors are US citizens or residents More than 50% of its assets are located in the US Its business is administered principally in the US 4

5 Technical Benefits of Being an FPI Reduced reporting obligations Annual report (Form 20-F) due 4 months of fiscal year end instead of days for domestic issuers No requirement to file quarterly reports (Form 10-Q) No requirement to file periodic reports for certain potentially material events (Form 8-K) No requirement to file proxy solicitation materials No reporting obligations for D&O securities transactions (Section 16) Financial information goes stale more slowly Financial statements can be prepared in accordance with IFRS NYSE and Nasdaq also have more flexible rules, particularly in relation to corporate governance Not subject to Regulation FD 5

6 Practical Benefits of Being an FPI Gap between what you re required to do and what you will voluntarily do Probably: Quarterly earnings disclosures Corporate governance Proxy disclosures Regulation FD Probably not: Most 8-Ks D&O securities transactions 6

7 Losing FPI Status FPI status is determined once each year as of the end of the issuer s second fiscal quarter Think ahead: Follow-on offerings in the US Non-US venture funds distributing shares to US resident limited partners General resales by non-us founders / other pre-ipo non-us shareholders into the US market Must fail both tests to lose status 7

8 Losing FPI Status (cont.) Deemed to be a domestic issuer as of the first day of the following fiscal year (i.e. you have 6 months to get ready ) Implications: Must report financials in US GAAP 10-Ks, 10-Qs, 8-Ks Proxy rules Disclosure of D&O securities transactions (Section 16) 8

9 FAQs Q: Should we re-domicile our parent company into either a more tax-friendly jurisdiction or the US? 9

10 FAQs Q: We re not currently listed in any other country should we dual-list in the US and in another jurisdiction? 10

11 FAQs What are ADRs? 11

12 FAQs Q: We expect that we currently fail (or shortly following the US IPO will fail) the US resident shareholder prong of the foreign private issuer definition. Our executive officers / board is approximately half US and half non-us. Should we add more non-us officers / directors to preserve our foreign private issuer status? 12

13 Thank you! Steve Bernard Wilson Sonsini Goodrich & Rosati 650 Page Mill Road Palo Alto, California Office: (650) Megan Baier Wilson Sonsini Goodrich & Rosati 1301 Avenue of the Americas New York, New York Office: (212)