NYSE Listed Foreign Private Issuers Now Required to Submit Unaudited Semiannual Financial Information
- Foreign private issuers listed on the New York Stock Exchange (NYSE) will need to furnish semiannual unaudited financial statements on Form 6-K.
- Although the rule became operative on Feb. 5, 2016, the earliest deadline for submission of semiannual unaudited financial statements on Form 6-K will be June 30, 2016, for foreign private issuers whose second quarter ended Dec. 31, 2015.
- NYSE listed foreign private issuers will need to furnish financial information with the U.S. Securities and Exchange Commission (SEC) at least twice per year: (a) audited annual financial statements on Form 20-F and (b) unaudited semiannual financial statements covering the first two fiscal quarters. The rule makes mandatory what was a commonly accepted, voluntary practice among foreign private issuers.
The New York Stock Exchange (NYSE) recently proposed to amend the NYSE Listed Company Manual to require foreign private issuers1 listed on the NYSE to furnish2 with the U.S. Securities and Exchange Commission (SEC) semiannual unaudited financial information on Form 6-K.
Unlike their U.S. counterparts, foreign private issuers listed on the NYSE previously were not required to furnish interim financial information.
The new listing requirement would not alter the existing exemption3 for foreign private issuers from the Exchange Act registration and periodic reporting obligations applicable to U.S. domestic listed issuers. Note, however, that foreign private issuers remain obliged to furnish annual reports on Form 20-F, including audited4 annual financial statements.
NYSE Listing Requirement
The NYSE listing requirements now require a NYSE listed foreign private issuer, at a minimum, to furnish with the SEC semiannually a Form 6-K, including:
- an interim balance sheet as of the end of its second fiscal quarter
- a semiannual income statement that covers its first two fiscal quarters
This unaudited financial information must be submitted on Form 6-K no later than six months after the end of the issuer's second fiscal quarter and presented in English, but the unaudited financial information need not be reconciled to U.S. Generally Accepted Accounting Principles (GAAP).
The NYSE proposed the new rule because it believes that annual financial disclosure is simply too infrequent to enable investors to make informed investment decisions. In addition, the NYSE said that it did not believe the rule change would affect most foreign private issuers significantly since many already provide this information.5
Penalty for Failure to Furnish
A NYSE listed foreign private issuer who fails furnish unaudited financial information semiannually on Form 6-K within the time required would have an initial six-month compliance period in which to furnish the unaudited financial information. SEC staff would have discretion to extend the period another six months. Any foreign private issuer that failed to comply within the cure period would risk delisting.
Because the NASDAQ already has a similar rule and because many NYSE listed foreign private issuers already voluntarily furnish semiannual unaudited financial information, the SEC took the atypical position to make the proposed NYSE rule immediately operative, although the SEC accepted comments on the rule until March 17, 2016.
Holland & Knight works with counsel in non-U.S. jurisdictions to help them evaluate the effect that new rules like this NYSE listing requirement may have on foreign private issuers.
1 A foreign private issuer is any issuer incorporated or organized under the laws of a country other than the U.S., except an issuer that meets both of the following conditions: (i) more than 50 percent of the outstanding voting securities of the issuer are directly or indirectly held by U.S. residents and (ii) (a) the majority of the officers or directors of the issuer are U.S. citizens or residents, (b) more than 50 percent of the assets are located in the U.S. or (c) the business is administered principally in the U.S.
2 The information and documents furnished on Form 6-K are not deemed filed for purposes of Section 18 liability under the Securities Exchange Act of 1934 (Exchange Act), as amended for false or misleading statements concerning a material fact.
3 Exchange Act Rule 12g3-2(b) exempts many foreign private issuers from registering under the Exchange Act. Exempted foreign private issuers must nevertheless furnish Form 20-F annually, including audited annual financial statements and furnish Form 6-K whenever, among other times, the foreign private issuer (i) makes or is required to make information public pursuant to the law of the jurisdiction of its domicile or incorporation or organization, (ii) files or is required to file information with a stock exchange on which its securities are traded or (iii) distributes or is required to distribute information to its security holders. Foreign private issuers that do not qualify for the 12g3-2(b) exemption would consequently be subject to the Exchange Act's periodic reporting requirements, including filing audited financial statements and annual reports on Form 10-K, unaudited interim financial statements, and quarterly reports on Form 10-Q and current reports on Form 8-K.
4 Item 17(c) to Form 20-F permits the financial statements to be audited under U.S. GAAP, International Financial Reporting Standards (IFRS) or the home country's applicable accounting standards.
5 Note that NASDAQ Rule 5250(c)(2) already requires NASDAQ listed foreign private issuers to submit to the SEC on Form 6-K semiannual unaudited financial information in English (but not reconciled to U.S. GAAP) no later than six months after the close of the company's second fiscal quarter.
Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.