Rules Take Effect Requiring NYSE-Listed Foreign Private Issuers to Submit Semi-Annual Unaudited Financial Information | Practical Law

Rules Take Effect Requiring NYSE-Listed Foreign Private Issuers to Submit Semi-Annual Unaudited Financial Information | Practical Law

The NYSE's proposal to require foreign private issuers to submit semi-annual unaudited financial information to the SEC on Form 6-K took effect on February 19, 2016.

Rules Take Effect Requiring NYSE-Listed Foreign Private Issuers to Submit Semi-Annual Unaudited Financial Information

by Practical Law Corporate & Securities
Published on 22 Feb 2016 • USA (National/Federal)
The NYSE's proposal to require foreign private issuers to submit semi-annual unaudited financial information to the SEC on Form 6-K took effect on February 19, 2016.
On February 19, 2016, the NYSE's proposed rule change to add new Section 203.03 to its Listed Company Manual took effect on filing with the SEC. New Section 203.03 requires NYSE-listed foreign private issuers (FPIs) to submit semi-annual unaudited financial information to the SEC on Form 6-K, a requirement that already applies to NASDAQ-listed FPIs.
SEC rules do not require FPIs to submit interim financial information to the SEC, unlike domestic issuers which are required to do so quarterly on Form 10-Q. However, under new Section 203.03, a NYSE-listed FPI must, at a minimum, submit to the SEC a Form 6-K that includes both:
  • An interim balance sheet as of the end of its second fiscal quarter.
  • A semi-annual income statement that covers its first two fiscal quarters.
The rule change states that the purpose of new Section 203.03 is to establish a minimum interim reporting regime for FPIs, and that companies:
  • May provide more expansive or more frequent interim financial information if they wish.
  • Must still comply with any reporting obligations that may arise under the requirements of Form 6-K, or home country law or regulation (which, depending on the circumstances, may effectively require an FPI to submit quarterly financial information on Form 6-K).
Under new Section 203.03, an FPI must submit its Form 6-K no later than six months following the end of its second fiscal quarter. The financial information included in the Form 6-K:
  • Must be presented in English.
  • Does not have to be reconciled to US GAAP.
The rule change also amends Section 802.01E of the Listed Company Manual to subject FPIs that have not timely filed the required Form 6-K to the same compliance procedures as are applied to listed companies that are late in filing their annual report or Form 10-Q. Under amended Section 802.01E, an FPI that is delayed in filing its Form 6-K will have an initial six-month compliance period within which to file the Form 6-K and any subsequently due Form 20-F or Form 6-K. If the FPI does not submit all required filings during that six-month period, the NYSE's staff has the discretion to allow the FPI an additional six-month compliance period. An FPI that fails to become timely with its filing obligations within the compliance periods will be subject to delisting.
In addition, the rule change amends Section 103.00 of the Listed Company Manual to clarify that, despite the provision in that section that allows FPIs to follow home country practice in lieu of complying with the NYSE's interim reporting requirements applicable to domestic companies, all FPIs must disclose interim financial information on Form 6-K on a semi-annual basis in compliance with new Section 203.03.
The rule change applies to any fiscal year beginning on or after July 1, 2015. Therefore, the earliest semi-annual period with respect to which a company will be required to submit a Form 6-K is for the six-month period that ended on December 31, 2015. This means that FPIs have until at least June 30, 2016 to file their first Form 6-K, with the required semi-annual financial information, under new Section 203.03.
On February 22, 2016, the NYSE sent an email to all NYSE-listed companies to notify them of the rule change. The email instructs FPIs to submit their Form 6-K in the form filed with the SEC to [email protected] promptly after it has been filed.
To learn more about filing a Form 6-K, see Practice Note, Preparing Form 6-K.