2nd FCF IPO Conference

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1 2nd FCF IPO Conference IPOs in the USA and/or Germany Two Perspectives/Two Options Is the Swim Worth It? Weighing Cross-Border Listings April 23, Dechert LLP

2 Introduction Recent trend of U.S. listings by foreign companies Notable interest by European companies over past 3-4 years due to the relative strength of U.S. IPO market and legislative and regulatory developments Will this trend continue? Appears to be strong interest with clients asking law firms and banks to review options Continued increase in U.S. SEC filings Success of recent U.S. IPOs What are some of the business and markets reasons behind this trend? What topics are typically discussed when considering a U.S. listing? What are some of the legal and practical reasons that make a U.S. listing a more manageable task than in prior years? 2 2

3 Overview State of the IPO Market in the U.S. Increase in Cross-Border IPOs Benefits of Becoming a Public Company in the U.S. Other Considerations for a U.S. Public Company What is Involved? The JOBS Act and Qualification as an Emerging Growth Company What is a Foreign Private Issuer (FPI)? Overview of Accommodations Available to FPIs Not Available to U.S. Domestic Issuers Exchange Act Reporting and Other Obligations Corporate Governance (Home Country Rules) Code of Conduct / Anti-bribery Provisions 3 3

4 State of the IPO Market in the U.S to Date IPO Issuance Volume ($ Billion) Companies raised US$72.8 billion through cross-border IPOs in 2014, more than double the amount in 2013 of US$33.3 billion. Growth in capital raised through cross-border IPOs significantly outpaced domestic listings in the U.S. 4 4

5 Our Examples of U.S. IPOs by Foreign Private Issuers Forward Pharma voxeljet Egalet Innocell Novadaq US$235 million IPO NASDAQ US$97.2 million IPO US$41.4 million Follow-on offering NYSE US$50.4 million IPO NASDAQ US$58.5 million IPO NASDAQ US$40.3 million U.S. IPO Two follow-on offerings NASDAQ Counsel to Issuer Counsel to Issuer Counsel to Issuer Counsel to Underwriter Counsel to Issuer Criteo Kofax OCI Resources US$250 million IPO Follow-on offering NASDAQ IPO in the U.S. and Dual NASDAQ and LSE listing US$95 million IPO NASDAQ Counsel to Investors Counsel to Issuer Counsel to Issuer 5 5

6 Benefits of Becoming a Public Company in the U.S. FPIs realize a number of benefits by becoming a public company in the U.S., including: Valuation Higher visibility and global market credibility Ready access to the largest and most liquid capital markets in the world Comparability with peer companies in the U.S. Enhanced ability to attract and retain key officers and employees by offering them equity based compensation in a U.S. publicly traded company Research coverage by U.S. based analysts Exit options include U.S. market Acquisition currency for future M&A 6 6

7 Other Considerations for Becoming a Public Company in the U.S. Frequently Discussed Topics and Issues Is a migration of issuer to the U.S. or elsewhere required/recommended? Tax structures, location of IP are often key drivers Is the U.S. regulatory environment more strict (e.g., SEC vs. BaFin)? Level of prospectus content and liability in the U.S. (similar prospectus disclosure requirements based on IOSCO standards) Is being public more complex and difficult to manage in the U.S.? Liability of officers and directors Increased litigation risks (liability under the U.S. federal and state securities laws; risk of U.S. class action lawsuits) Costs of the IPO (financial advisory/underwriting, legal, accounting and other offering expenses) 7 7

8 What is Involved? The process and major deliverables for a U.S. offering and listing will generally follow the same practice as in a European issuer s home country Structuring considerations, including whether the offering will be via American Depositary Shares (ADSs), accounting issues Establish time line and players in the working group Data room; diligence and drafting sessions Offering document/prospectus Filing of registration statement/prospectus with the U.S. Securities and Exchange Commission Audited financial statements / interim financial statements TTW Meetings for an EGC Road show Pricing, listing and closing 8 8

9 What is Involved? (cont d) U.S. SEC timeline for review and effectiveness and listing 2 to 4 months from initial filing/submission Further required legal documentation Listing application Underwriting Agreement Disclosure letters Officer s certificates Comfort Letter - auditor Legal opinions, in particular 10b-5 disclosure opinion by U.S. counsel Costs for financial statements; IFRS; Sarbanes Oxley; exemptions under JOBS Act Depository arrangements for the issuance of ADSs 9 9

10 The JOBS Act and Qualification as an Emerging Growth Company The Jumpstart Our Business Startups Act (the JOBS Act ), adopted in April 2012, eases many of the regulatory burdens imposed on smaller companies in connection with going public The JOBS Act established a new category of issuer called an Emerging Growth Company (an issuer with total gross revenues of under $1 billion during its most recently completed fiscal year, an EGC ), providing FPIs that qualify further relief from the burdens imposed on public companies in the U.S. Among other things, EGCs: Can submit draft registration statements to the SEC for confidential review prior to public filing Testing the Waters - Can engage in oral or written communications with QIBs and institutional accredited investors to gauge interest in a proposed IPO 10 10

11 The JOBS Act and Qualification as an Emerging Growth Company (cont d) Are only required to present two years of audited financials as opposed to three and need not disclose certain financial information for periods prior to those presented in their IPO registration statements Are not required to obtain an attestation report on internal control over financial reporting from their registered public accounting firms The vast majority of IPO registrations in the U.S. since April 2012 are classified as EGCs 11 11

12 What is a Foreign Private Issuer (FPI)? A FPI is any foreign issuer (other than a government), unless: > 50% of such issuer s outstanding voting securities are held of record by residents of the U.S.; and Any of the following apply: The majority of such issuer s executive officers or directors are U.S. citizens or residents; > 50% of such issuer s assets are located in the U.S.; or Such issuer s business is administered principally in the U.S. After the initial determination that an FPI qualifies as an FPI in connection with its IPO, it is required to test its status as FPI once per year on the last business day of its second fiscal quarter 12 12

13 Overview of Accommodations Available to FPIs Not Available to US Domestic Issuers FPIs are considered to have lighter and less restrictive SEC obligations than domestic U.S. issuers, and are subject to numerous exemptions from national securities exchange listing rules The following highlights some of the regulatory concessions available to FPIs not available to U.S. domestic issuers: 13 Significantly less required disclosure (in annual, quarterly and current reports), including with respect to individualized compensation information of certain executive officers and directors General exemptions from SEC and NASDAQ/NYSE rules governing the solicitation of proxies Relaxed rules relating to timely Exchange Act filings Relaxed rules relating to intentional disclosures of material non-public information (Reg FD) Exemptions from insider reporting obligations and short-swing profit rules 13

14 Exchange Act Reporting and Other Obligations FPI Reporting Obligations Pursuant to the Exchange Act, a FPI is required to file annual reports on Form 20-F and furnish other reports on Form 6-K, but, unlike a U.S. domestic issuer, a FPI is not required to file or make public quarterly financial information, subject to certain exceptions Annual Reports Form 20-F (consisting of a cover page and required disclosure narrative, tabular and financial statements on a variety of topics), a FPI s main disclosure document, must be filed within four months after the end of each fiscal year Form 20-F often requires less time to compile than a Form 10-K (which U.S. domestic issuers have to file) as its disclosure requirements are not as burdensome (e.g., Form 20-F permits compensation information to be disclosed on an aggregate basis, whereas, Form 10-K requires such information to be disclosed on an individual basis) 14 14

15 Exchange Act Reporting and Other Obligations (cont d) Quarterly Financial Reports FPIs are generally not required to furnish financial information to the SEC other than in their annual report on Form 20-F unless such information meets a few limited requirements; therefore, FPIs are not generally required to provide quarterly financial information to their shareholders For marketability reasons, underwriters sometimes require FPIs to file a Form 6-K containing substantially the same information as required by a quarterly report on Form 10-Q (that a domestic U.S. issuer would have to file) on a quarterly basis market practice and home country requirements may push the issuer in this direction 15 15

16 Exchange Act Reporting and Other Obligations (cont d) Current Reports FPIs are not required to comply with Form 8-K s disclosure obligations and are required to furnish to the SEC only a limited amount of information on a current report on Form 6-K Material non-public information that was made public under local law Information that was filed with and made public by any foreign stock exchange on which the company s securities are listed Information that was distributed or required to be distributed to shareholders under local law For the same marketability reasons as noted on the previous slide, underwriters sometimes require FPIs to file a Form 6-K containing substantially the same information as required by Form 8-K 16 16

17 Corporate Governance (Home Country Rules) Home Country Rules apply with few exemptions resulting from SOX FPIs registered in the U.S. may continue to follow broadly the corporate governance practices in accordance with their home country rules and regulations, examples include: German Stock Corporations or European SEs can list in the US with the applicable board structures under local law Certain SOX requirements can be implemented in using local law structures, example: Audit committee is required but can be formed by supervisory board Relief from national exchange stockholder approval rules (with respect to security issuances) NASDAQ allows FPIs to follow home-country practice whereas NYSE exempts FPIs from its 20% rule altogether Stockholder voting and nomination, election and removal of directors FPIs are not subject to the SEC rules regarding distribution of proxy statements prior to stockholders meetings FPIs and their directors are subject to the duties and liabilities that arise under the law of the home jurisdiction 17 17

18 Code of Conduct / Anti-bribery Provisions Code of conduct or code of ethics in line with FCPA best practice recommended although there is no strict requirement Code of conduct is part of the ongoing 20-F disclosure requirements Applicable anti-bribery law Home country rules (i.e., UK Anti-bribery Act) Foreign Corrupt Practices Act applies to FPIs 18 18

19 Thank You For further information, visit our website at dechert.com. Dechert practices as a limited liability partnership or limited liability company other than in Dublin, Hong Kong and Luxembourg. Dechert lawyers acted on the matters listed in this presentation either at Dechert or prior to joining the firm

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