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ARTICLE · 07 NOVEMBER 2008

Avoiding The Traps: The Top Five Questions To Ask Before A U.S. Or Cross-Border Offering

Davies Ward Phillips & Vineberg LLP
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Canadian companies embarking on a U.S. offering or including U.S. investors in a Canadian offering can make the process go more smoothly if they answer the following questions while they are still in the planning stages.

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Canadian companies embarking on a U.S. offering or including U.S. investors in a Canadian offering can make the process go more smoothly if they answer the following questions while they are still in the planning stages.

1. Is the company a "foreign private issuer"? If a company is not a foreign private issuer under SEC rules, it may face restrictions under U.S. securities laws in conducting a Canadian offering. In addition, the company will not be eligible for exemptions from SEC reporting requirements that are otherwise available to non-U.S. companies. Companies organized outside the U.S. will not meet the requirements for foreign private issuer status if a majority of their voting securities are held by U.S. residents and any of the following is true: a majority of their directors or executive officers are U.S. citizens or residents; 50% or more of their assets are located in the United States; or their business is administered from the United States.

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