Foreign Issuer NASDAQ IPO

A United Kingdom-based biotechnology company wanted to raise capital in the United States through an Initial Public Offering (IPO) and list on a US national exchange (Nasdaq) for the offering. Among the issues that needed to be resolved:

• Deciding whether to remain a UK corporation or reorganize into an offshore jurisdiction, such as the Cayman Islands;
• Finding a solution to the UK stamp tax imposed on share transfers of UK issuers which the US securities market electronic transfer system cannot accept responsibility for; and
• Addressing a number of accounting statement timing and presentation issues to satisfy the UK issuer and SEC regulations (Form F-1)

The GEABP team, working with UK counsel, helped the UK issuer explore different alternatives to satisfy the various issues and stakeholder constituencies:

• After evaluating many jurisdictional and reorganization issues, including potential tax considerations of the pre-public shareholders of the UK issuer, it was determined that the UK issuer would remain as a UK corporation for operational, research grant and tax considerations. However, that decision raised the second consideration of being able to issue securities in the US and the transfer of shares in the US markets without having the UK stamp tax burden.
• In order to avoid the UK stamp act on US market transfer, the GEABP team introduced the UK issuer to the American Depositary Share (ADS) concept and made an introduction to Bank of New York Mellon as an ADS issuer.
• Throughout the IPO process, as the offering shaped up, the GEABP team advised the UK issuer on its SEC disclosure about the business operations, securities offered, management, and financial statement requirements. The GEABP team negotiated and advised on the offering documentation, all of which was under New York law.

The UK issuer successfully completed its IPO in February 2022, listing on Nasdaq. The securities offered were shares in the form of ADSs and warrants for ordinary shares that would be converted to ADSs upon the warrant exercised for deposit into the DTC system.