Set forth in Title 17 §230.100 of the U.S. Code of Federal Regulations (and discussed in Appointing a Process Agent in Registration Statements), certain Securities and Exchange Commission (SEC) filings on behalf of a foreign issuers – particularly registration statements – require that the name, address and phone number of an agent for service of process (a.k.a process agent) in the U.S. be provided on the cover page. The role of this appointed process agent is solely to receive any legal process or notices related to securities issued by the foreign issuer and forward it to a contact provided to the agent by the foreign issuer.
For certain types of SEC filings, foreign issuers are required to file a separate but concurrent form, SEC Form F-X, to appoint a process agent rather than identify the agent on a form’s cover page. Notable here is that the only purpose of SEC Form F-X is to appoint the agent for service of process.
Below, we’ve listed some of the SEC filings, along with brief descriptions of their related registrations or transactions, that require an SEC Form F-X to be filed in accordance with 17 CFR §239.42:
Form F-8: Registration statement for securities of certain Canadian issuers to be issued in exchange offers or a business combination under the Securities Act of 1933.
Form F-9: Registration of securities of certain investment grade debt or investment grade preferred securities of certain Canadian issuers under the Securities Act of 1933.
Form F-10: Registration statement for securities of certain Canadian issuers under the Securities Act of 1933.
Form F-80: Registration of securities of certain Canadian issuers to be issued in exchange offers or a business combination under the Securities Act of 1933.
Form 40-F: Annual reports filed by certain Canadian issuers pursuant to Section 15(d) and Rule 15d-4.
Form 13E-4F: Issuer tender offer statement filed pursuant Rule 13(e)(4) by foreign issuers.
Form 14D-1F: Third party tender offer statement filed pursuant to Rule 14d-1(b) by foreign issuers.
Since there are many situations where a foreign issuer is required to appoint an agent for service of process, it is prudent to ensure that the process agent listed in SEC filings understands what types of notices or legal process they are required to receive in relation to securities offering filings. This can help prevent the issuer from mistakenly accepting service of process in a matter unrelated to the specific securities offering in which it was named.
This article is provided for informational purposes only and should not be considered, or relied upon, as legal advice.
