New York Stock Exchange - IPO Overview

Transcription

1 New York Stock Exchange - IPO Overview 1 Regulatory Background 1.1 Overview of Regulatory Background Securities must be registered under Section 12(b) of the Securities Exchange Act of 1934 (the "Exchange Act") before they can be traded on the New York Stock Exchange ("NYSE") of the United States of America. Section 12(b) registration for foreign issuers should be made on Form 20-F. This form requires general information regarding the business, properties, capitalisation, and management of the company. Form 20-F requires less detailed information than would be required of an American company. However, requirements for financial statements, schedules, and accountants' certificates are substantially the same as those required of domestic companies. Registration is required even if the company has previously registered its securities in connection with a public offering in the United States or if it has registered securities under Section 12(g) of the Exchange Act for purposes of over-the counter trading. However, short-form registration is available for companies that have registered under Section 12(g) or that have securities registered under the Securities Act of 1933 (the "Securities Act"). Where a listing applicant has not previously registered its shares with the U.S. Securities and Exchange Commission (the "SEC") under either the Securities Act or the Exchange Act, draft registration statements and Form 20-F should be submitted to the SEC for preliminary review and comment in advance of filing the company's listing application. 1.2 Regulatory Entities The regulatory entity involved in listing on NYSE is the SEC. 1.3 Required Approvals SEC approval is required for listing and initial public offerings. 2 Listing Criteria 2.1 Suitability / Eligibility of Listing Applicant 1. Foreign companies may elect to apply for listing under either the domestic listing standards or under the worldwide listing standards for foreign issuers. The worldwide listing standards focus on worldwide, rather than US, distribution of the foreign issuer's shares, eliminating the impediment presented by the domestic standards' requirement that companies have a minimum distribution of shares within the US. 1 CRITERIA REQUIREMENTS WORLDWIDE DOMESTIC May satisfy either A, B, or C: Distribution Round-Lot Holders Total Shareholders 5,000 A. 400 U.S. round lot shareholders 1 U.S. SECURITIES LAW FOR INTERNATIONAL FINANCIAL TRANSACTIONS AND CAPITAL MARKETS 3.10 (2d ed.) 1

2 CRITERIA REQUIREMENTS WORLDWIDE DOMESTIC May satisfy either A, B, or C: B. 2,200 total shareholders and 100,000 shares monthly trading volume (most recent 6 months) Financials Public Shares 2.5MM 1.1MM Public Market Value IPO's, Carve-outs & Spin-offs N/A US$100MM C. 500 total shareholders and 1,000,000 shares monthly trading volume (most recent 12 months) US$40MM All other listings N/A US$100MM Earnings Aggregate Pre-tax Income for last 3 years Minimum Pre-Tax Income in each of 2 preceding years OR Aggregate Pre-tax Income for last 3 years Minimum in the most recent year Minimum in the next most recent year Valuation / Revenue Test May satisfy either A or B A. Valuation with Cash Flow Test US$100MM US$25MM N/A N/A N/A Global Market Capitalisation US$500MM Revenues (most recent 12-month period) Aggregate Cash Flow for last 3 years Minimum Cash Flow in each of 2 preceding years B. Pure Valuation Test US$100MM US$100MM US$25MM US$10MM US$2MM (all 3 years must be positive) US$12MM US$5MM US$2MM US$500MM US$100MM US$25MM (all 3 years must be positive) N/A 2

3 CRITERIA REQUIREMENTS WORLDWIDE DOMESTIC May satisfy either A, B, or C: Global Market Capitalisation US$750MM Revenues (most recent fiscal year) Affiliated Company For new entities with a parent or affiliated company listed on the NYSE US$75MM Global Market Capitalisation US$500MM At least 12 months of operating history Yes US$750MM US$75MM US$500MM Yes Affiliated listed company is in good standing Affiliated listed company retains control of the entity 2.2 Trading Record Requirements Yes Yes Yes Yes The company need not have previously been traded Eligibility for Electronic Settlement All securities initially listing on or after 1 January 2007 must be eligible for a direct registration system operated by a securities depository. A "securities depository" means a securities depository registered as a clearing agency under Section 17A(b)(2) of the Exchange Act. Before listing on the NYSE, the issuer must confirm that a Committee on Uniform Securities Identification Procedures number identifying the securities has been included in the file of eligible issues maintained by a securities depository registered as a clearing agency under Section 17 of the Exchange Act. 3 Overseas Companies Foreign incorporated companies may list on the NYSE. Companies already listed on a foreign market are also eligible to list on the NYSE. It takes one to several months to complete the entire listing process from the time the company begins the confidential eligibility process with the SEC to the time the company's securities begin trading on the NYSE. The SEC registration process takes longer to complete and its duration cannot be predicted by the NYSE. 2 Phone conversation, Yuri Tsagyak, NYSE Eligibility Review Department, (212)

4 The NYSE application process occurs on a parallel track to the SEC registration process. The NYSE will typically complete the confidential review of eligibility within two weeks after the issuer submits all documentation. If faster review is necessary, the NYSE will meet an issuer's timetable. On receipt of formal clearance of eligibility, an issuer has six months to submit a formal listing application. 3 For companies that list at the time of their initial public offerings ("IPOs"), if necessary, the NYSE will rely on a written commitment from the underwriter to represent the anticipated value of the company's offering in order to determine a company's compliance with the listing standards. Similarly, for spin-offs, the NYSE will rely on a representation from the parent company's investment banker (or other financial advisor) or transfer agent in order to estimate the market value based upon the disclosed distribution ratio. 4 4 Shareholding Requirements 4.1 Public Float The domestic listing standards require at least 1.1 million publicly held shares in the U.S. The worldwide listing standards require 2.5 million shares with an aggregate market value of US$100 million to be publicly held worldwide. Shares held by directors, officers, or their immediate families and other concentrated holdings of 10% or more are excluded in calculating the number of publicly-held shares Restrictions on Major Shareholders Anyone who acquires 5% or more of any equity security must file a disclosure with the SEC and any exchanges on which the security is listed under SEC rule 13d. 4.3 Post IPO Lock-up Lock-up agreements are commonly used to prevent company insiders (e.g., officers, directors, employees, friends, family, and venture capitalists) from selling their shares for a set period of time after listing. The federal securities laws do not govern the actual terms of lock-up agreements, but they require a company employing a lock-up to disclose the terms in its registration documents, including its prospectus. At the same time, some states require lock-up agreements under their "blue-sky" laws, but these state laws may vary. The terms of lock-up agreements may vary, but most prevent insiders from selling their shares for a period of 180 days. Lock-ups may also limit the number of shares that can be sold over a designated period of time. Although the securities laws do not govern lock-up agreements, Rule 144 of the Securities Act requires owners of restricted securities to hold them for a certain period of time prior to selling them in the marketplace. Restricted securities are securities acquired in unregistered, private sales from the issuer or from an affiliate of the issuer. If the company that issued the U.S. SECURITIES LAW FOR INTERNATIONAL FINANCIAL TRANSACTIONS AND CAPITAL MARKETS 3.12 (2d ed.) NYSE Manual, A NYSE Manual,

5 securities is subject to the reporting requirements of the Securities Exchange Act of 1934, then the owner must hold the securities for at least six months. 5 Listing Procedure and Timetable First, a company submits all information for confidential review of eligibility. By the third week, a NYSE representative will contact the company as to eligibility clearance and conditions of listing. The company will be provided with copies of original listing applications and a guide to supporting documents. The company may file an original listing application and supporting documents any time within six months. Once a company has filed an original listing application and sufficient supporting documentation with the NYSE, the NYSE will authorise the company's securities for listing and certify such authorisation to the SEC. Additionally, the NYSE will acknowledge receipt of the company's application via publication in the regular Weekly Bulletin or through some other comparable outlet. The SEC, under the Exchange Act, requires a mandatory 30-day waiting period, however, this can be accelerated upon request. By the twelfth week, the company's securities are admitted to trading. The original listing date can be set for any day after effectiveness of registration under the Exchange Act. 5.1 Marketing the Offer The following applies to all U.S. exchanges: Prior to filing a registration statement with the SEC, issuers may not sell a security, nor may an issuer make any offer (either oral or written) to sell a security. Section 5(a) of the Securities Act subjects all issuers to a waiting period after the registration statement is filed but before the registration becomes effective. Sales and contracts of sale are prohibited during this period, however oral offers to buy and sell the security are permitted. Written, radio, and television offers to sell during the waiting period are generally prohibited, but an issuer may transmit a preliminary prospectus under Securities Act Rule 430, a summary prospectus under Rule 431, or a complete Securities Act Section 10(a) prospectus if available. 5.2 Required Documentation Before submitting an application for listing, all issuers undergo a confidential review of eligibility. A foreign issuer should submit the following information, much of which is in the issuer's registration statement on Form 20-F, for the review: a certified copy of its charter and bylaws in English; samples of certificates traded or to be traded in the U.S. market; a copy of the depositary agreement, if any; 5

6 annual reports to shareholders for the last five years, and, if no English version is available, translations for the last three years' reports; the latest available prospectus for an offering under the Securities Act and latest annual SEC filing; if no SEC documents are available, submit the most recent document used for a public offering or an offering to existing shareholders and any filings made with a regulatory authority; the proxy statement distributed to shareholders for the most recent general meeting, translated into English; worldwide and U.S. stock distribution schedules; data characterising the share distribution and the number of publicly-held shares, provided for both U.S. and worldwide holdings such as amount of stock owned by large holders, stock owned by officers, restrictions on stocks, and a list of the markets on which the stock is already traded; Names of 10 largest holders Exchange member organizations holding 1,000 or more shares List of exchanges or markets upon which company s securities are currently traded, as well as price range and volume Stock owned or known to be controlled by directors, officers, and their immediate families, and other holdings of 10% or more Any time of restriction relating to shares Estiamte of non-officer employee ownership Company shares held in profit sharing, savings, pension, or similar plans for benefit of company s employees. description of full ownership of any partially-owned subsidiaries; a list of the issuer's principal bankers; agencies that regulate the issuer or any part of its operations and a description of the extent of that regulation; the name, title, and principal occupation of the issuer's directors and principal officers; the number of employees and general status of labour relations; a description of pending material litigation and opinion of counsel as to the potential effect of the litigation on the issuer's operations. Once the NYSE has issued a formal clearance of eligibility, an issuer has six months to submit a formal listing application. The listing application provides a summary of the issuer's business and securities and describes the conditions under which future shares will be issued. The issuer must also file various documents in support of the application, including: Formal request for listing. 6

7 Any general information concerning the applicant and the legal status of shares to be listed, which might include A copy of the prospectus Most recent Form 20-F Annual Report Copies of subsequent 6-K Interim Reports Current Form 20-F registration statement Copy of most recent SEC filings Copy of issuer s latest proxy statement or information statement covering the most recent annual stockholders meeting. Statement concerning any recent material developments not otherwise disclosed. Names of foreign stock exchanges which the security is dealt in with indication of its status Any restrictions on ownership Description of any restrictions on export or import of capital Clear statement of all taxes to which shareholders are subject. Detailed statement of fees. Statement of any defaults on obligations of the company within the last ten years. Charter and By-Laws: Copy of the charter, certified by the secretary of the state / country of incorporation, and copy of the by-laws, certified by the secretary of the company. Resolutions of shareholders and the Board of Directors authorising issuance of any unissued securities for which listing application is made; of the Board of Directors authorising listing of the specified amount of the designated security; of the Board of Directors authorising appointments of the transfer agent and registrar. Opinion of home country counsel Stock Distribution Schedule. Certificate of Transfer Agent. Certificate of Registrar. A letter from the registrar certifying the number of shares of the class or series for which listing application is made which were registered as of, or about, the date of the listing application. Notice of Availability of Stock Certificates. Specimens of the securities for which listing application is made. Public Authority Certificate. Prospectus. Financial Statements: A set of the financial statements including the report of the company's independent public accountants or, in the case of interim statements, the report of the company's chief financial officer. 7

8 Adjustments to historical financial data. Listing Agreement. Memorandum with Respect to Unpaid Dividends, Unsettled Rights and Record Dates. Registration form under the Exchange Act. Supporting documents should be completed at least one week before the date on which the NYSE is to take action on the application. if, for any reason, any of the required documents are not filed by the time action is taken on the application, the NYSE may make its authorisation of listing conditional upon the file being completed prior to the first day of trading. 5.3 Publication of the Prospectus The following applies to all U.S. exchanges: A preliminary prospectus must plainly state that it is subject to completion. If someone makes a written request for a preliminary prospectus during the waiting period, the issuer must make a reasonable effort to send the latest version on file with the SEC. Transmittal of a summary prospectus is subject to a variety of other requirements more fully enumerated in Guy P. Lander, U.S. Securities Law for International Financial Transactions and Capital Markets Database 2:23 (updated November 2007). After registration becomes effective, an issuer is no longer subject to the restrictions of Section 5(a), and must now comply with the prospectus requirements of Section 5(b) of the Securities Act. All post-effective period prospectuses are subject to the requirements of Section 10. At this stage, an issuer must produce a prospectus prior to delivering any security. 6 Documentary Requirements 6.1 Contents of Main Listing Document All securities listed on any U.S. exchange must comply with the Securities Act Rules. With respect to prospectuses, Rules 430, 430A, 430B, and 431 apply. Rule 430 applies to prospectuses for use prior to the effective date. Rule 430A applies to prospectuses in a registration statement at the time of effectiveness. Rule 430B applies to prospectuses in a registration statement after the effective date. Rule 431 applies to summary prospectuses. 7 Financial Information 7.1 Audited Financial Statements 8

9 For registration under the Exchange Act, foreign issuers register using Form 20-F, which must be prepared and signed by the foreign company. The form must be accompanied by financial statements including audited consolidated balance sheets as of the end of each of the two most recent fiscal years together with audited consolidated statements of income and changes in financial position for each of the three fiscal years preceding the date of the most recent consolidated balance sheet. These forms must be submitted with the listing application. 7.2 Applicable Accounting Standards The NYSE accepts any accounting standards accepted by the SEC. For foreign issuers this includes generally accepted accounting principles ("GAAP") and International Financial Reporting Standards ("IFRS") Period Covered by Accounts The number of years accounts must cover varies depending on the numerical listing standard under which the issuer applied. 7 A company that qualifies as a smaller reporting company under federal securities laws may be subject to less burdensome requirements and shorter time periods. 7.4 Overseas Companies Federal securities laws may impose additional requirements on foreign companies. 7.5 Pro Forma Financial Information For certain companies in certain industries, a projection covering a two or three year period may be entirely reasonable. other companies may not have a reasonable basis for projections beyond the current year. Accordingly, management should select the period most appropriate in the circumstances. 7.6 Interim Financial Information Companies must include financial information from the prior two or three years and the most recently completed quarterly financial information. 8 Parties Involved 8.1 Sponsor No advisor or sponsor is required where a company is simply applying to be listed. An underwriter is required if the company is seeking to make an IPO Phone conversation, Yuri Tsagyak, NYSE Eligibility Review department, (212) Phone conversation, Yuri Tsagyak, NYSE Eligibility Review department, (212) Phone conversation, Yuri Tsagyak, NYSE Eligibility Review department, (212)

10 Sponsorship by a NYSE member firm as to the liquidity and depth of the market for a foreign company's shares may substitute for documentation concerning the number of shareholders where bearer shares are in widespread use. 9 There are no specific requirements for a sponsor under NYSE guidelines. Note, however, that as part of a confidential eligibility review, a company may be asked to provide a list of the company's principal bankers and a statement of the holdings of the applicant's stock by any one of these bankers which is in excess of 5%. 8.2 Other Advisers Attorneys: Although a formal opinion of counsel is no longer required, issuers must either: furnish the Exchange with copies of opinions of counsel filed in connection with recent public offerings; or if no opinions of counsel exist, provide to the NYSE a certificate of good standing from the company's jurisdiction of incorporation. 10 Accountants: The Sarbanes-Oxley Act of 2002 requires accountants who audit an issuer's financial statements to register with the Public Company Accounting Oversight Board. 9 Listing Costs 9.1 Listing Fees An issuer must pay fees when they initially list shares, when they list additional shares of a listed security, and annually. A foreign issuer applying to list on the NYSE must pay a one-time fee of US$50,000 plus an amount based on the number of ordinary shares issued and outstanding in the United States. If additional ordinary shares are issued in the United States during the year, they must be listed and an initial listing fee paid for those securities. 11 Finally, the issuer pays an annual fee based on a four-quarter average of securities issued and outstanding in the United States during the preceding year. 12 When determining listing fees, calculations are made at each level of the schedule up to and including the last level applicable to the number of shares being listed. The total listing fee equals the sum of the amounts calculated at each level of the schedule. Number of Securities Issued Up to and including 75 million Over 75 million up to and including 300 million Over 300 million Fee Per Share US$ US$ US$ NYSE Manual, NYSE Manual, U.S. SECURITIES LAW FOR INTERNATIONAL FINANCIAL TRANSACTIONS AND CAPITAL MARKETS 3.13 (2d ed.) 12 NYSE Manual,

11 9.2 Underwriters' Fees Fees for underwriters will vary depending on the type and complexity of the transaction. Underwriters receive a commission plus a fee for services. 9.3 Lawyers' and Accountants' Fees Costs will vary depending on the size and complexity of the offering. Accounting fees for several recent offerings by foreign companies typically range from US$100,000 to US$500,000 but can be as high as US$2 million depending on the issuer. Legal fees may range between US$100,000 to US$500,000 or more depending on the type and complexity of the offering and the issuer. 10 Corporate Governance Requirements Listed companies that are foreign issuers (as such term is defined in Rule 3b-4 under the Exchange Act) are permitted to follow home country practice in lieu of the NYSE provisions for corporate governance, except for the following: 13 Listed companies must have an audit committee that satisfies the requirements of Rule 10A-3 under the Exchange Act. 14 Listed foreign issuers must disclose any significant ways in which their corporate governance practices differ from those followed by domestic companies under NYSE listing standards. They may provide this disclosure in English on their websites or in the annual reports distributed to shareholders. 15 Each listed company CEO must promptly notify the NYSE in writing after any executive officer of the listed company becomes aware of any material non-compliance with any applicable provisions of the NYSE corporate governance requirements. 16 Each listed company must submit an executed Written Affirmation annually to the NYSE. In addition, each listed company must submit an interim Written Affirmation each time a change occurs to the board or any of the committees subject to corporate governance requirements. The annual and interim Written Affirmations must be in the form specified by the NYSE Continuing Obligations The NYSE has both quantitative and qualitative continued listing criteria. When a company falls below any criterion, the NYSE will review the appropriateness of continued listing. Numerical Criteria for Capital and Common Stock For companies that listed under the Earnings standard: 13 NYSE Manual, 303A NYSE Manual, 303A NYSE Manual, 303A NYSE Manual, 303A. 12(b) 17 NYSE Manual, 303A.12 (c) 11

12 average global market capitalisation over a consecutive 30 trading-day period is less than US$50 million; and total stockholders equity is less than US$50 million; or average global market capitalisation over a consecutive 30 trading-day period is less than US$15 million. For companies that listed under the Pure Valuation with Cash Flow standard: average global market capitalisation over a consecutive 30 trading-day period is less than US$250 million; and total revenues for the most recent 12 months are less than US$20 million; or average global market capitalisation over a consecutive 30 trading-day period is less than US$75 million. For companies that listed under the Pure Valuation standard: average global market capitalisation over a consecutive 30 trading-day period is less than US$375 million; and total revenues for the most recent fiscal year are less than US$15 million; or average global market capitalisation over a consecutive 30 trading-day period is less than US$100 million. Companies that listed under the Affiliated Company standard will not be subject to numerical criteria unless the parent / affiliated company no longer controls the entity or such parent / affiliated company itself falls below the numerical criteria. Price Criteria for Capital or Common Stock A company will be considered to be below compliance standards if the average closing price of a security as reported on the consolidated tape is less than US$1.00 over a consecutive 30 trading-day period. 18 Qualitative Standards Companies will be evaluated for failure to meet continued listing standards if they demonstrate any of the following: Reduction in operating assets and / or scope of operations: The operating assets have been or are to be substantially reduced such as by sale, lease, spin off, distribution, discontinuance, abandonment, destruction, condemnation, seizure or expropriation. This may also occur where the company has ceased to be an operating company or discontinued a substantial portion of its operations or business for any reason. 18 NYSE Manual,

13 Bankruptcy and / or liquidation: an intent to file under any of the sections of the bankruptcy law has been announced or a filing has been made or liquidation has been authorised and the company is committed to proceed. Authoritative advice received that security is without value. Registration no longer effective: The registration or exemption from registration pursuant to the Exchange Act is no longer effective for any reason. Proxies are not solicited for all meetings of stockholders: Actively operating companies currently filing application to list on the NYSE must agree to solicit proxies from stockholders. Agreements are violated: The company, its transfer agent or registrar, violates any of its, or their, listing or other agreements with the NYSE. Payment, redemption or retirement of entire class, issue or series: Whenever the entire outstanding amount of a listed class, issue, or series is to be retired through payment at maturity, or through redemption, reclassification or otherwise. Operations contrary to public interest: if the company or its management shall engage in operations that, in the opinion of the NYSE, are contrary to the public interest. Audit committee: An audit committee in conformity with NYSE requirements is not maintained. Number of publicly-held shares is less than 100,000. Number of holders is less than 100. Aggregate market value of shares outstanding is less than $1,000,000. The failure of a company to make timely, adequate, and accurate disclosures of information to its shareholders and the investing public. Failure to observe good accounting practices in reporting of earnings and financial position. Other conduct not in keeping with sound public policy. Unsatisfactory financial conditions and / or operating results. Most recent independent public accountant's opinion on the financial statements contains a qualified, adverse, or disclaimer opinion; or an unqualified opinion with a "going concern" emphasis. Inability to meet current debt obligations or to adequately finance operations. Abnormally low selling price or volume of trading. 13

14 Unwarranted use of company funds for the repurchase of its equity securities. A breach by the company of the terms of its listing agreement. Any other event or condition which may exist or occur that makes further dealings or listing of the securities on the NYSE inadvisable or unwarranted in the opinion of the NYSE. 12 Our Office The experienced attorneys at Patton Boggs LLP can advise foreign clients regarding NYSE listing. For further information please contact Jeffrey Haas at (202) or jhaas@pattonboggs.com. December 2013 Patton Boggs LLP Patton Boggs LLP 2550 M Street NW Washington DC United States of America Tel: (202) Fax: (202) jbrand@pattonboggs.com, dmishkin@pattonboggs.com, jhaas@pattonboggs.com Website: 14