Foreign Private Issuers – F Forms

Posted by on November 21, 2016

Foreign Private Issuers – F Forms- 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 F-3 allows incorporation by reference of an annual and other SEC reports.  To qualify to use a Form F-3, the foreign company must, among other requirements that are substantially similar to 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 (ADR).  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: (i) the information that would be required to be filed in a Form 8-K; (ii) information the company makes or is required to make public under the laws of its country of domicile; and (iii) 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 (“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 should consider whether it should use and be subject to the regular U.S. reporting requirements and registration and reporting forms.  If the foreign company opts to be subject to the regular U.S. reporting requirements, it must also use U.S. GAAP for its financial statements.