Filing and documentary requirements

General filing requirements

Give details of any filing requirements for public offerings of debt securities. Outline any requirements for debt securities that are not applicable to offerings of other securities.

In a public offering of debt securities in the United States, the issuer must file a registration statement with the Securities and Exchange Commission (SEC) under the Securities Act. The form of registration statement used will depend on the issuer, its reporting history and market capitalisation, among other factors. The most common types of registration statements include the following.

  • Registration statement on Form S-1 (or F-1 in the case of a foreign private issuer (FPI)): this is a long-form registration statement that may be used to register debt securities by an issuer that is not a reporting company under the Exchange Act or has not been subject to the reporting requirements for at least 12 calendar months.
  • Registration statement on Form S-3 (or F-3 in the case of an FPI): this is a short-form registration statement that may be used by eligible seasoned issuers to register securities, most commonly in the form of a ‘shelf registration’ pursuant to which offerings of securities may be made from time to time (referred to as ‘shelf offerings’). Eligible issuers include registrants that have filed all required reports under the Exchange Act for at least 12 calendar months on a timely basis and have a worldwide market capitalisation held by non-affiliates of at least US$75 million. An issuer may also be eligible to use Form S-3 or F-3 to register non-convertible investment-grade debt securities if certain additional eligibility requirements are met.
  • Automatic shelf registration statement for well-known, seasoned issuers (WKSIs): this is a short-form registration statement on Form S-3 or F‑3 that is automatically effective upon filing with the SEC. To qualify as a WKSI, an issuer must be eligible to register a primary offering of its securities on Form S-3 or F-3; have a worldwide market capitalisation held by non-affiliates of at least US$700 million or have issued at least US$1 billion aggregate amount of non-convertible securities other than common equity in the last three years for cash; and not be an ineligible issuer or an asset-backed issuer. The benefit of an automatic shelf registration statement is that it may be used to issue securities immediately upon filing with the SEC, whereas each of the Forms referred to above require approval from the SEC following a comment period prior to use.

 

Each form of registration statement contains two parts. The first part is the prospectus, which contains material information regarding the issuer and the securities being offered. The prospectus is used to market an offering to investors. The second part contains additional information and exhibits, which are filed with the SEC but not distributed to investors.

For shelf offerings, the issuer is required to file a prospectus supplement to the prospectus included in the shelf registration statement to provide additional information about the offering and the terms of the securities.

Under the Trust Indenture Act (TIA), an issuer is required to file a form of TIA-qualified indenture and a Form T-1 relating to the trustee with the registration statement. The indenture governs the terms and conditions of the securities being offered. The TIA requires the inclusion of certain provisions in the indenture for the benefit of the security holders. Indentures for private offerings of debt securities often include many TIA provisions, even though it is not strictly required.

Prospectus requirements

In a public offering of debt securities, must the issuer produce a prospectus or similar documentation? What information must it contain?

The registration statement filed in connection with any public offering of debt securities must include a prospectus. The applicable form of registration statement sets forth the qualitative and quantitative disclosure requirements that govern the content of the prospectus. The following are some of the principal categories of information that must be disclosed:

  • descriptions of the issuer’s business, the securities being offered and the expected use of proceeds from the offering;
  • risk factors relating to the issuer and the securities;
  • information regarding the issuer’s executive officers and directors and corporate governance arrangements;
  • information about the underwriters and the plan of distribution;
  • tax considerations relating to the securities;
  • consent from legal advisers and auditors;
  • financial statements and any related information for the issuer and any guarantors prepared in accordance with, or reconciled to, the US Generally Accepted Accounting Principles or, in the case of FPIs, the International Financial Reporting Standards;
  • if required under the SEC’s rules depending on the materiality of the transaction, financial statements for any significant company being acquired (including pro forma financial statements relating to the acquisition); and
  • management’s discussion and analysis (MD&A) of financial condition and results of operations.

 

Under the SEC’s integrated disclosure framework, the disclosure requirements in filings under the Securities Act and the Exchange Act are based on the same set of rules and regulations for US companies (Regulation S-K for non-financial statement disclosure and Regulation S-X for financial statement disclosure). FPIs satisfy a different set of disclosure requirements, which are similar but in some respects less proscriptive and allow a foreign company to provide only disclosures required in its home country. Issuers that are subject to Exchange Act reporting requirements can generally incorporate by reference disclosure from their Exchange Act filings (such as financial statements, MD&A and business description) into their registration statement under the Securities Act, which can save significant time and effort during the preparation of offering documents.

Documentation

Describe the drafting process for the offering document.

The process for drafting the offering documents for public offerings and private offerings is very similar. In public offerings, the offering document is called a prospectus (which may be supplemented by a prospectus supplement), and in private offerings, it is generally called an offering memorandum or offering circular.

A prospectus in a public offering must satisfy the applicable disclosure requirements. In addition, the disclosure must be complete in all material respects and free from material misstatements or omissions. There is no distinct test for materiality; rather, information is material if it would be ‘viewed by the reasonable investor as having significantly altered the “total mix” of information made available’ (Basic Inc v Levinson, US Sup Ct (1988)). Material misstatements or omissions in the offering documentation can give rise to lawsuits by investors, including class actions, or SEC enforcement actions.

To help ensure the accuracy and completeness of an offering memorandum in a private offering, its disclosure will generally track the disclosure in a prospectus for a comparable registered offering. This approach mitigates potential liability for the issuer and other market participants. However, because an unregistered offering is not subject to the same disclosure requirements, market participants may take a more flexible approach with regard to certain, specific SEC requirements that are burdensome to satisfy. Offering documents for private offerings must also not contain any material misstatements or omissions, and offering documents for both registered and unregistered offerings must not contain any knowing and wilful false statements, whose inclusion could potentially result in criminal prosecution.

All parties involved in an offering are involved to various degrees in the drafting process. The issuer and its counsel draft most of the disclosure, while the underwriters and their counsel often draft certain sections of the offering document, including the description of the notes, which describes the terms of the securities, and the underwriting section, which describes who the underwriters will be, what compensation they will receive and any conflicts of interest, among other things. All parties, including the auditors, are involved in reviewing and commenting on the offering document. In addition, underwriters and their counsel may request backup materials to support the disclosure, particularly quantitative disclosure that is not otherwise comforted by the auditors. The trustee and its counsel will generally review the portions of the offering document relating to the terms of the securities, with a focus on those sections relating to the rights and obligations of the trustee.

The drafting process will be significantly more extensive if an issuer is not subject to the reporting obligations of the Exchange Act or is not able to incorporate its Exchange Act filings into the registration statement or offering memorandum. In particular, preparation of financial information that is being used as part of the disclosure for a US offering for the first time can require a significant amount of time. In addition, in a registered offering, unless the issuer is a WKSI whose registration statement is effective automatically upon filing, the drafting process may involve a series of comments from and responses to the SEC, which may involve various revisions to the offering document to accommodate the SEC’s comments. The SEC review process can take a couple of months or more, depending on the scope of the SEC’s comments and the revisions required.

Which key documents govern the terms and conditions of the debt securities? Who are the parties to such documents? How can such documents be accessed?

The key document governing the terms and conditions of the debt securities is the indenture. An indenture may be in the form of a stand-alone indenture or a base indenture that is supplemented in connection with a particular offering of debt securities. The parties to the indenture are the issuer, any guarantors and the trustee. The interests of the security holders are represented by the trustee. The underwriters are not parties to the indenture but provide input on the terms and conditions investors will expect and accept, particularly with respect to high-yield or other complex debt securities.

A summary of the terms and conditions of the debt securities is provided in a section of the prospectus called the ‘Description of the Notes’. Although this section does not govern the terms and conditions of the securities, it must accurately describe the securities because investors will rely on it for making their investment decisions, and the issuer and other market participants could have potential liability for any material misstatements or omissions.

In registered offerings, the indenture or form of indenture is accessible as an exhibit to the issuer’s registration statement, and the executed indenture or supplemental indenture is filed as an exhibit to a current report filed by the issuer with the SEC at closing. For private offerings, issuers that are reporting companies under the Exchange Act also generally file their indentures as exhibits to their periodic reports filed with the SEC.

Does offering documentation require approval before publication? In what forms should it be available?

A registration statement for a public offering must be filed with the SEC before any offers are made and must become effective before any sales are made. With the exception of shelf registration statements for WKSIs, which become effective automatically upon filing, the staff of the SEC may review a registration statement before declaring it effective. The SEC review may involve a full review of the registration statement or a limited review of certain aspects of the disclosure. Alternatively, the SEC may advise the issuer that it does not intend to conduct a review. The SEC will initially take about 30 days to review the initial filing, and less time to review subsequent amendments.

An issuer will seek to have any SEC comments cleared before beginning marketing efforts for the offering. This will avoid the risk of further amendments to the document after it has been sent to potential investors that could require recirculation of the prospectus. In addition, the Financial Industry Regulatory Authority (FINRA) must review all public offerings in which a broker-dealer participates as underwriter, unless an exemption applies. FINRA review is primarily focused on underwriting compensation and disclosure of potential conflicts of interest involving the underwriters. The FINRA rules provide exemptions from the filing requirements for, among other things, particular types of securities, such as investment-grade, non-convertible debt securities, as well as offerings of securities registered on Forms S-3, F-3, or F-10 if the registrant is an ‘experienced issuer’ under the FINRA rules. If FINRA review is required, the SEC will expect FINRA to issue a no objection letter before the SEC will declare the registration statement effective.

In registered offerings, the registration statement, including the prospectus, becomes publicly available on the SEC’s website after it is filed. In addition, the issuer will provide the underwriters with a PDF of the prospectus for distribution to investors during marketing and may, if requested, also provide hard copies of the prospectus.

In unregistered offerings, the offering document is not required to be publicly filed and remains confidential. Private offerings of debt securities do not require SEC or FINRA approval. Similar to public offerings, the issuer will share a PDF of the offering document with the underwriters for distribution to investors in connection with the marketing of the offering, and it may, if requested, also deliver the offering document in hard copy.

Authorisation

Are public offerings of debt securities subject to review and authorisation? What is the time frame for approval? What are the restrictions imposed, if any, on the issuer and the underwriters during the review process?

Public sales of debt securities in the United States cannot be made unless the issuer has an effective registration statement on file with the SEC. If the registration statement is subject to SEC review, it will not be declared effective until all SEC comments have been resolved and the review is complete. Only shelf registration statements filed by WKSIs become automatically effective without SEC review. Once a non-WKSI shelf registration statement has been declared effective, any subsequent prospectus supplements filed with the SEC in shelf offerings will not be subject to SEC review.

The SEC review and comment process varies in length. For example, the SEC staff may decide not to review a shelf registration statement filed by a non-WKSI seasoned issuer but will almost certainly review a long-form registration statement filed by a non-reporting issuer, the review process of which could take a couple of months or longer.

Under US federal securities laws, the issuer or underwriters may ‘test the waters’ and engage in certain written or oral communications with investors before or after a registration statement is filed to gauge investor interest in a contemplated registered securities offering. These communications are subject to various conditions and may be required to be publicly filed.

In addition, FINRA may review the registration statement, and industry-specific regulators, such as regulators of financial institutions, may also review the offering documents.

On what grounds may the regulators refuse to approve a public offering of securities?

The SEC will only declare a registration statement effective once all comments have been cleared and the review process is complete. Industry-specific regulatory approval may be required for certain issuers.

How do the rules differ for public and private offerings of debt securities? What types of exemptions from registration are available?

Every offer or sale of a security must be either registered with the SEC or exempt from registration (ie, in an exempt transaction or involving an exempt security). Most transaction-based exemptions are set out in, or based on, section 4 of the Securities Act. To provide issuers with greater certainty when relying on those exemptions, the SEC has adopted rules that set forth ‘safe harbours’ from registration. Each exemption and safe harbour has specific requirements relating to issuer eligibility, the number and type of eligible investors, offering size and communication restrictions, among other matters. The most commonly used exemptions are discussed briefly below.

  • Private placements: the most commonly used registration exemptions by issuers are the private placement exemptions provided by section 4(a)(2) and Regulation D. Securities sold in a private placement are restricted securities subject to resale restrictions.
    • Section 4(a)(2) of the Securities Act exempts ‘transactions by an issuer not involving any public offering’. Although ‘public offering’ is not defined, factors used to determine the nature of the offering include the number and sophistication of offerees, the size and manner of the offering and investor access to information.
    • Regulation D under the Securities Act provides three safe harbours from registration (Rules 504, 506(b) and 506(c)). Rule 504 provides an exemption for small offerings of securities not exceeding US$5 million in any 12-month period as long as certain conditions are met. Rule 506(b), most commonly relied upon by issuers, exempts offerings of any size and permits sales to an unlimited number of ‘accredited investors’ and up to 35 other purchasers, provided there is no general solicitation or advertising. In contrast, Rule 506(c) permits general solicitation or advertising, provided that all purchasers are accredited investors and issuers take reasonable steps to verify that purchasers are accredited investors. Accredited investors include enumerated categories of entities (eg, banks, broker-dealers and insurance companies) and qualifying natural persons (based on certain wealth, income or knowledge requirements). Rule 506(d) disqualifies certain ‘bad actors’ from participating in unregistered offerings under Regulation D.
  • Resale exemptions for privately placed securities: Rule 144A and Regulation S are resale safe harbours that are available to persons other than the issuer to effect resales of restricted securities. The safe harbours under Rule 144A and Regulation S are often used concurrently in unregistered offerings of debt securities.
    • Rule 144A is a safe harbour frequently used in the US debt capital markets that permits financial intermediaries, such as underwriters (‘initial purchasers’ in this context), to buy unregistered securities from an issuer and resell them to ‘qualified institutional buyers’ (entities that are deemed financially sophisticated), provided certain conditions are satisfied. Securities sold in a Rule 144A transaction must not be the same class of securities listed on a US national securities exchange. Securities sold pursuant to Rule 144A are restricted securities that are subject to resale restrictions.
    • Regulation S is a safe harbour based on extraterritoriality. Under Regulation S, securities may be offered and sold outside the United States in offshore transactions without registration with the SEC. Generally, an offering under Regulation S must not be made to persons in the United States, and there can be no directed selling efforts in the United States. Additional conditions apply depending on the category of issuer.
  • Exempt securities: section 3 of the Securities Act exempts certain types of securities from registration. For example, section 3(a)(2) exempts any security issued or guaranteed by a US bank. A foreign bank can also rely on this exemption if the foreign bank has a US branch or agency that issues the securities directly or guarantees the securities issued by the foreign parent. In addition, commercial paper with a maturity of nine months or less may be exempt under section 3(a)(3) (or, alternatively, may be issued pursuant to the section 4(a)(2) private placement exemption).

 

Although unregistered offerings are not subject to the registration requirements of the Securities Act, they are still subject to, among other things, the anti-fraud provisions of section 10(b) of the Exchange Act and Rule 10b-5 thereunder.

Offering process

Describe the public offering process for debt securities. How does the private offering process differ?

A typical public offering process for debt securities can be divided into four steps.

 

Organisational matters

After the issuer engages one or more banks as underwriters, the working group will have a ‘kick-off’ call to ensure that all parties are aligned on the timeline, responsibilities and documentation.

 

Document preparation and due diligence

The offering documentation will be prepared by the issuer and its counsel with input from all parties. Underwriters’ counsel will prepare the underwriting agreement and take an active role in documentary due diligence. All parties will participate in due diligence calls with the issuer’s management and the auditors.

Once all parties have had the opportunity to review and comment on the registration statement, the registration statement will be filed with the SEC. After receiving the SEC’s comments, the issuer and its counsel will take the lead in responding to the comments and amending the registration statement. During this process, the parties will continue to negotiate the transaction documents, including closing deliverables, and conduct due diligence.

Assuming favourable market conditions, once all SEC comments have been addressed, the offering will be launched, and marketing will commence using the prospectus and, often, a roadshow presentation. This process helps to gauge investor interest in the securities. Management may also participate in calls with investors.

 

Pricing

Unless the issuer is a WKSI, at least two business days before pricing, the issuer will file an acceleration request with the SEC, requesting that the registration statement be declared effective. Subsequently, a pricing call is held with representatives of the issuer, including any required pricing committee, and the underwriters to determine the final offering price, the interest rate and other terms of the debt securities.

Following the pricing call, the underwriters and their counsel prepare a term sheet reflecting the pricing terms. Once all parties have reviewed the term sheet, the issuer files the final term sheet with the SEC as a free-writing prospectus. Concurrently, the underwriters confirm sales with the investors. The issuer, any guarantors and the underwriters execute the underwriting agreement, and the auditors then deliver their comfort letter to the underwriters. Within two business days after pricing, the issuer files the final prospectus reflecting the pricing terms with the SEC.

 

Settlement

Settlement for a debt securities offering typically occurs two to seven business days following the pricing date. On the settlement date, the indenture is executed, and closing documents are delivered. Following completion of the documentary conditions for settlement, the underwriters wire the net proceeds to the issuer, and the issuer issues and delivers the debt securities to the underwriters. Settlement usually occurs through the Depository Trust Company. After the offering settles, the issuer files a current report with the SEC, which attaches the executed indenture and a legal opinion regarding the legality of the debt securities.

Offerings of debt securities pursuant to an effective shelf registration statement can be done on an accelerated timeline and are frequently used by established SEC-reporting companies. At launch, a preliminary prospectus supplement reflecting the terms of the particular offering, along with any necessary updates to the base prospectus, is filed with the SEC. The final prospectus supplement reflecting the pricing terms is filed with the SEC within two business days of pricing.

Unregistered offerings generally follow a similar process, except that no SEC filings are required. A confidential offering memorandum is prepared that is generally consistent in form and substance with the disclosure in a prospectus for a comparable public offering. Marketing, pricing and settlement also follow a similar process. Depending on the issuer and the number and nature of the offerees, an offering document may not be used in certain private placements of debt securities.

Closing documents

What are the usual closing documents that the underwriters or the initial purchasers require in public and private offerings of debt securities from the issuer or third parties?

Both public and private offerings of debt securities involve a number of documents that are delivered at closing. The primary documents required by the underwriting or purchase agreement or indenture include:

  • legal opinions and disclosure letters (10b-5 letters) addressed to the underwriters or initial purchasers from both counsel to the issuer and counsel to the underwriters;
  • comfort letters from the issuer’s independent auditors addressed to the underwriters or initial purchasers, providing certain assurances in respect of financial information included in the registration statement or offering memorandum;
  • certificates from the issuer’s officers certifying various matters, including the continued accuracy on the closing date of the representations and warranties in the underwriting or purchase agreement;
  • a secretary’s certificate from the issuer attaching organisational documents and resolutions and certifying that documents such as the registration statement, underwriting or purchase agreement and indenture have been signed by duly authorised signers of the issuer;
  • opinions and certificates addressed to the trustee; and
  • a certificate from the trustee.
Listing fees

What are the typical fees for listing debt securities on the principal exchanges?

Typically, investment-grade securities are not listed on an exchange, although it is common for trading markets to develop. Certain foreign issuers list debt securities on an exchange for non-US legal or tax reasons where a listing is required. If debt securities are listed, both the New York Stock Exchange (NYSE) and Nasdaq have an initial listing fee and an ongoing annual fee that vary depending on the type of debt securities, the principal amount issued and outstanding and whether other securities of the issuer are already listed on the exchange. For example, the initial listing fee for bonds on the NYSE is US$25,000, and the annual listing fee for structured products ranges from US$25,000 to US$100,000.

Law stated date

Correct on

Give the date on which the information above is accurate.

31 December 2020.