US capital markets in the UK - SEC, FPI, US IPO, US M&A, US GAAP conversion

The US securities market is the biggest pool of capital in the world. Each year, more and more organisations from outside of the US decide they’re ready to take part. That could be through:

raising private or publicly traded debt
acquiring a US business
listing in the US through a traditional IPO
adding a secondary US listing in addition to their home market exchange, or
migrating their listing to the US.

Entering the US capital markets can lower your company’s cost of capital, enhance your corporate reputation and profile, set you up to pursue acquisitions in the US, and much more. But it’s not always easy for organisations to get started. There are new processes to follow, stakeholders to manage, and regulations and controls to get to grips with.

Our US capital markets team at PwC UK is based in London, with fluent, native experience of doing business in the US. (And perhaps more importantly, the knowledge and experience of this through the lens of companies outside of the US—it’s in our DNA.) We take the time to understand your business and guide you through what may be the less-familiar aspects of FPIs, ADRs and the SEC. Once we’ve formed the right plan together, we draw on our connections and in-country expertise to support you through your deal.

What to consider when entering the US securities market

First impressions are important in the US. What will yours be like? We’ll help you explore the investment options available to your business and the decisions you’ll need to make. Our UK team can help you navigate all these questions and more.

Transaction structure and financing
Historical track record
Corporate governance and management
Investor considerations
Other considerations

Transaction structure and financing

What type of security should your company list in the US?
Should your company pursue a public or private offering?
Which US exchange should your company list its securities with—the New York Stock Exchange (NYSE) or Nasdaq?
Does your company meet the definition of a Foreign Private Issuer (FPI) or will it be treated as a US domestic company?
What jurisdiction should your company have its topco or holding company domiciled in?

Historical track record

Is your company prepared to report under US GAAP or IFRS?
What will your company’s financial position and results from operations look like under US GAAP or IFRS?
What is the process of transitioning your company’s financial statements to US GAAP or IFRS?
What can your company do to prepare for a PCAOB audit?
If your company is marketing itself based on past financial results, can you demonstrate a history of significant and sustainable revenue growth, or a history of profits?
What are the key financial performance measures that your company will use to tell its equity story?

Corporate governance and management

Does your company have the in-house management experience needed to successfully execute an IPO and meet the ongoing reporting requirements?
What additional corporate governance will be required?
How does your company’s accounting policies compare with other companies in the industry?
Is your company’s internal control environment and information systems capable of handling growth and increased SEC reporting requirements?

Investor considerations

Does management have an attractive story—including environment, social and governance (ESG) themes—for potential investors?
Does your company have highly visible products and services that will be attractive to US investors?
Can management clearly articulate and demonstrate your company’s strategy?
What are the implications of offering shares to US investors?

How we can help

We help companies who aren’t native to the US take advantage of US capital markets to raise capital, list their securities, and much more. We’re based in the UK, with US business experience and a network of financing relationships. And through our global PwC network, we can connect you with all the technical, strategic, and advisory services you could possibly need when going transatlantic.

IPO strategy

If you’re considering an initial public offering (IPO) in the US, you’ll want to tap the expertise of our capital markets advisory team. They’ll guide you through defining your strategy, developing KPIs, laying out the roadmap, and executing the IPO. We can also support with US GAAP conversion and pro forma reconciliation where needed.

Project management

The US capital markets come with some added complexity, so we’ll develop a project plan and timetable to keep your transaction on track. We’ll help make sure every point on the plan contributes to your overall strategy, objectives and equity story.

Accounting and financial reporting

We’ll work with you to enhance your accounting and reporting so they meet Securities and Exchange Commission (SEC) standards. So you can properly prepare and present SEC compliant financial statements and SEC reporting matters, including conversions to either IFRS or US GAAP.

Registration statements

We’ll help you file your registration statement and respond to the SEC. We’ll guide you through the whole process, from drafting the first draft registration statement, through the SEC comment letter process and on to ringing the bell.

Ongoing support

We’ll be on hand to support you once your first US transaction is a done deal. We can help you enhance your company’s controls, and embed new policies and procedures to comply with the special requirements in the US. And on the accounting side, we can help you evaluate new accounting standards or support with complex transactions.

Glossary

When you explore the US capital markets for the first time, you’ll be inundated with unfamiliar abbreviations and acronyms. Fortunately, our team is fluent in how business gets done in the US, and will be on hand to explain and translate all the new terminology.

Here are some key terms you’ll need to know, and what they mean for your company.

US Securities and Exchange Commission (SEC)

The US Securities and Exchange Commission is an independent government agency and regulator of the US securities markets. The SEC is responsible for monitoring the activities of entities operating within the securities industry and protecting investors.

Emerging growth company (EGC)

An emerging growth company can benefit from limiting the number of years that are required in a registration statement, more time to adopt new accounting standards, reduced executive compensation disclosures, and a deferral of Sarbanes Oxley’s auditor attestation requirement.
A company can qualify as an emerging growth company if:
The last day of the fiscal year, it had total annual gross revenues of less than $1.235 billion.
The last day of the fiscal year following the fifth anniversary of the first sale of the issuer’s common equity securities in an offering registered under the Securities Act of 1933 unless:
- Total annual gross revenues are $1.235 billion or more on the last day of the fiscal year.
- The date on which the issuer has issued more than $1 billion in non-convertible debt securities during the previous three year period; or
- The date on which the issuer becomes a large accelerated filer (generally, a company with a public float of at least $700 million).

Foreign Private Issuer (FPI)

A foreign private issuer has the ability to choose between reporting under US GAAP or IFRS. An FPI also benefits from:
- Less stringent updating requirements for financial statements in a registration statement, and more time to file financial statements once listed;
- Home country compensation disclosure rules;
- Exemption from US proxy rules and limited exemption from regulation FD;
- Sarbanes Oxley CEO/CFO certifications only required in annual filings; and,
- Permission to use home country corporate governance practices.
A foreign private issuer is any corporation or other organisation incorporated or organised under laws of any foreign country (outside the US), unless either of the following apply:
- More than 50% of the issuer’s outstanding voting securities are held directly or indirectly of record by residents of the US; and
- Any of the following applies:
  - The majority of the issuer’s executive officers or directors are US citizens or residents;
  - More than 50% of the issuer’s assets are located in the US; or
  - The issuer’s business is administered principally in the US.

Public Company Accounting Oversight Board (PCAOB)

The PCAOB was created by the Sarbanes-Oxley Act of 2002 and is responsible for registering public accounting firms that audit US public companies establishing or adopting auditing standards for quality control, ethics and independence; conducting inspections of registered public accounting firms and conducting investigations and disciplinary proceedings. When a company becomes a public company in the US, the company’s financial statements will have to be audited by an accounting firm that has been registered with the PCAOB in accordance with PCAOB standards.

Rule 3-05

Rule 3-05 is an amendment to Regulation S-X requiring registrants to provide separate audited annual and unaudited interim pre-acquisition financial statements of an acquired or to be acquired business. This rule applies where the acquired business is deemed to be “significant”. Pro forma financial information is also required to show the impact of the acquisition or acquisitions.

The Sarbanes-Oxley Act of 2002

The Sarbanes-Oxley Act of 2002 was enacted on July 30, 2002, and significantly reformed securities law in the US in response to a number of major corporate and accounting scandals involving some of the most prominent companies in the US. In addition to establishing the PCAOB, some sections that have a larger impact on companies are:

Section 404 - Internal control over financial reporting
- Section 404(a) requires an assessment by management of the issuer’s internal control over financial reporting, while Section 404(b) requires an attestation report of the issuer’s independent auditors on management’s assessment
Sections 302 and 906 - Certification requirements
- Two certifications must be provided by an issuer’s CEO and CFO : the Section 302 certification and the Section 906 certification. Under the rules adopted by the SEC, both certifications must be included with an issuer’s annual report on either Form 10-K or Form 20-F, and on Form 10-Q for domestic issuers and can carry with them civil or criminal liability.

American Depository Receipt (ADR)

A significant portion of US public offerings by non-US companies are in the form of depository receipts - usually ADRs (also called American Depository Shares or ADSs). These are negotiable receipts issued to investors by an authorised depositary, normally a US bank or trust company, and are evidence that the depositary owns the securities of a public company. Investors in ADRs have substantially the same rights and voting privileges as owners of the underlying securities.

Rule 144A

Rule 144 allows debt or equity securities privately placed with Qualified Institutional Buyers (“QIB’s”) to be offered or sold to other QIB’s without registration with the SEC. QIB’s include various institutions that manage at least U.S. $100 million in securities.

US capital markets