Interpretations relating to determining “foreign private issuer” status of an issuer
Companies that qualify as a “foreign private issuer” benefit from many special exemptions under the US securities laws. Among other things, foreign private issuers are not required to file quarterly reports on Form 10-Q or current reports on Form 8-K, are exempt from Section 16 beneficial ownership reporting and short swing profit rules, are exempt from the US proxy rules, benefit from relaxed tender offer rules, are not subject to the detailed compensation disclosure rules, can file financial statements prepared in accordance with IFRS as adopted by the International Accounting Standards Board or, if reconciled to US GAAP, local GAAP or non-IASB IFRS, are exempt from Regulation FD, and have a later deadline to file their annual report (on Form 20-F) than domestic companies. In addition, Regulation S (the securities law exemption for sales of securities outside the United States) provides greater flexibility in some aspects for foreign private issuers compared to domestic issuers.
In order to obtain these benefits, a company must satisfy the definition of “foreign private issuer” contained in the US securities laws. The SEC rules define a foreign private issuer as any corporation or other organization incorporated or organized under the laws of a foreign country (other than a foreign government), unless both of the following two tests are met as of the last business day of the issuer’s most recently completed second fiscal quarter (or, for a first time registrant, within 30 days of filing an initial registration statement with the SEC):
Shareholder Test: more than 50 percent of the outstanding voting securities of the issuer are directly or indirectly owned of record by “US residents”; and
Business Contacts Test: any of the following apply:
the majority of the executive officers or directors are “United States citizens or residents”; or
more than 50 percent of the “assets of the issuer are located in the United States”; or
the business of the issuer is “administered principally” in the United States.
http://knowledge.freshfields.com/m/Global/r/1768/sec_issues_interpretations_for_determining__foreign
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