I am attorney Laura Anthony founding partner of Legal & Compliance, a full service corporate,
securities, and business transactions law firm.
Today is the continuation in a LawCast series discussing U.S. investments in foreign businesses
and foreign companies trading in the U.S. public markets.
Although a foreign private issuer may voluntarily register and report using the same forms and
rules applicable to U.S. issuers, they may also opt to use special forms and rules specifically
designed for and only available to foreign companies.
Form 20-F is the primary disclosure document and Exchange Act registration form for foreign
private issuers and is analogous to both an annual report on Form 10-K and an Exchange
Act registration statement on Form 10.
A Form F-1 is the general registration form for the offer and sale of securities under
the Securities Act and, like Form S-1, is the form to be used when the company does
not qualify for the use of any other registration form.
A Form F-3 is analogous to a Form S-3.
A Form S-3 allows incorporation by reference of an annual report and other SEC reports.
And to qualify to use a Form F-3, the foreign company must, among other requirements that
are substantially similar to Form S-3, have been subject to the Exchange Act reporting
requirements for at least 12 months, and filed all reports in a timely manner during that
time.
The company must also have filed at least one annual report on Form 20-F. A Form F-4
is used for business combinations and exchange offers, and a Form F-6 is used for American
Depository Receipts, or ADR’s.
Also, under certain circumstances, a foreign private issuer can submit a registration statement
on a confidential basis.
Once registered, a foreign private issuer must file periodic reports.
A Form 20-F is used for an annual report and is due within four months of fiscal year-end.
Quarterly reports are not required.
A Form 6-K is used for periodic reports and captures the information that would be required
to be filed in a Form 8-K, information the company makes or is required to make public
under the laws of its country of domicile and, information it files or is required to
file with a U.S. and foreign stock exchange.
As noted in the last LawCast on this subject, a foreign private issuer may elect to use
either U.S. GAAP; International Financial Reporting Standards, or IFRS, or home country
accounting standards with a reconciliation to U.S. GAAP in the preparation and presentation
of its financial statements.
Regardless of the accounting standard used, the audit firm must be registered with the
PCAOB.
All filings with the SEC must be made in English.
Where a document or contract is being translated from a different language, the SEC has rules
to ensure the translation is fair and accurate.
The SEC rules do not have scaled disclosure requirements for foreign private issuers.
That is, all companies, regardless of size, must report the same information.
A foreign private issuer that would qualify as a smaller reporting company or emerging
growth company in the U.S. should consider whether it should use and be subject to the
regular U.S. reporting requirements and registration forms.
If the foreign company opts to be subject to the regular U.S. reporting requirements,
it must use U.S. GAAP for its financial statements.
I am securities attorney Laura Anthony, founding partner of Legal & Compliance, and producer
of LawCast.
Should you have any questions about today’s topic, please visit SecuritiesLawBlog.com
and LawCast.com, or contact me directly.
Inquiries of a technical nature are always encouraged.