Foreign Private Issuers: Qualifying for Valuable Exemptions from SEC Reporting Requirements

Analyzing the Shareholder Test and Business Contacts Test, Maintaining FPI Status, New SEC Guidance

Recording of a 90-minute CLE webinar with Q&A


Conducted on Wednesday, May 10, 2017
Recorded event now available


This CLE webinar will analyze the criteria for qualifying as a foreign private issuer (FPI) for purposes of securities registration, and review best practices for documenting and obtaining FPI status and reduced reporting requirements afforded FPIs. The panel will also discuss new guidance released by the SEC in December 2016 which has provided some added clarity regarding FPI requirements.

Description

As part of its long-standing policy to encourage foreign companies to access the U.S. capital markets, the SEC historically has made significant regulatory accommodations to foreign companies that qualify as FPIs. However, U.S. securities laws distinguish between foreign companies that are truly foreign in nature and foreign companies so closely associated with the U.S. that they are subject to the same registration and disclosure requirements as domestic U.S. companies.

Any foreign company that claims FPI status must be able to support the determination that it qualifies under one of two tests: one based on the foreign company’s level of U.S. shareholdings (the shareholder test) and the other based on its contacts with the U.S. (the business contacts test). SEC guidance released in Dec. 2016 impacts both tests.

The shareholder test is based on the method of calculation used in Rule 12g3-2(a) under the Exchange Act, which follows the definition of “securities held of record” in Rule 12g5-1 under the Exchange Act. For foreign companies that have a majority of voting securities held of record (directly or indirectly) by U.S. residents, the business contacts test will be the determining factor in their status as an FPI. The test has three parts: (1) citizenship and residency; (2) location of assets; and (3) administration of business.

Listen as our authoritative panel analyzes the criteria considered in qualifying for FPI treatment, including the shareholder test and the business test, and how the new SEC guidance has effected that analysis. The panel will also discuss the process of applying for FPI treatment, the best documentation practices for maintaining FPI status and reporting benefits afforded FPIs.

Outline

  1. Definition of FPI—Rule 405 of the Securities Act of 1933, Rule 3b-4 of the Securities Exchange Act of 1934
  2. Shareholder test
  3. Business contacts test
    1. Citizenship and residency of officers and directors
    2. Location of assets
    3. Administration of business
  4. New SEC guidance
  5. Application process and timing
    1. New registrants
    2. Existing registrants
  6. Maintaining the FPI exemption
  7. Benefits afforded FPIs
    1. No requirement for quarterly reporting
    2. Not subject to accelerated filing
    3. Exemption from U.S. proxy rules
    4. Exemption from insider trading reports
    5. Exemption from short-swing profit recovery rules
    6. Exemption from Regulation FD
    7. Exemptions from Regulation BTR and Regulation G
    8. Limited executive compensation disclosures
  8. Potential exemption from XBRL data tagging rules

Benefits

The panel will review these and other key issues:

  • What is an FPI, and what are the benefits of being an FPI?
  • How is majority ownership determined under the shareholder test?
  • What criteria are considered in the business contacts test?
  • How has new SEC guidance impacted the analysis of whether a company is an FPI?

Faculty

Thomas M. Rose, Partner
Troutman Sanders, Washington, D.C.

Mr. Rose's practice focuses principally on U.S. cross-border securities and corporate law matters. He represents various U.S., Canadian and other foreign issuers and investment banks in a variety of public and private financings, including financings under the U.S.-Canada Multijurisdictional Disclosure System (MJDS), other cross-border public offerings, and U.S.- foreign private placements (including Rule 144A, Regulation D and Regulation S offerings). He also advises U.S., Canadian and other foreign issuers with respect to the U.S. securities and corporate law aspects of mergers and acquisition transactions. In addition, he advises U.S., Canadian and other foreign issuers in connection with initial listings on the NYSE, the NYSE MKT and the NASDAQ, and on the continuous U.S. reporting and corporate governance requirements under U.S. federal securities laws and the rules of such Exchanges. He also acts as a Principal American Liaison (a PAL) on the OTCQX market for a number of foreign issuers.

Shona Smith, Partner
Troutman Sanders, Seattle

Ms. Smith's corporate practice focuses principally on U.S. and cross-border corporate and securities matters. She represents various U.S., Canadian and other foreign issuers and investment banks in a variety of public and private equity and debt financings, including financings under the U.S.-Canada Multijurisdictional Disclosure System, other cross-border public offerings, and U.S.-foreign private placements. She also advises U.S., Canadian and other foreign issuers with respect to the U.S. securities law aspects of mergers and acquisitions. In addition, Shona advises U.S., Canadian and other foreign issuers in connection with initial listings on the NYSE, the NASDAQ and the NYSE MKT, and on the continuous reporting and corporate governance requirements under the U.S. federal securities laws.


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