The New York Stock Exchange (the NYSE) adopted a new rule that requires listed foreign private issuers1 (FPIs) to submit a Form 6-K to the US Securities and Exchange Commission (the SEC) that includes (i) an interim balance sheet as of the end of its second fiscal quarter and (ii) a semiannual income statement that covers its first two fiscal quarters. FPIs must file the Form 6-K within six months following the end of their second financial quarter. The financial information included in the Form 6-K must be presented in English; however, there is no requirement that the information be reconciled to US Generally Accepted Accounting Principles or that it be presented in US dollars. The new rule becomes effective immediately for any FPIs whose fiscal year begins on or after July 1, 2015.
Under the new rule, a failure to file the Form 6-K within six months following the close of the FPI’s second quarter constitutes a “Late Filing Delinquency.” As with other Late Filing Delinquencies, an FPI that is delayed in filing its Form 6-K has an initial six-month compliance period within which to file the Form 6-K and any other reports subsequently due on Forms 20-F and 6-K. If the FPI does not file all the required documentation during the initial six-month period, the NYSE has discretion to provide the FPI with an additional compliance period of up to six months. Any FPI that fails to become timely with its filing obligations within the compliance periods provided under the rule (including, in the case of a company that received the maximum twelve-month cure period, the Form 6-K including the semiannual financial information for the first six months of the subsequent fiscal year) is subject to delisting.
Almost all FPIs currently listed on the NYSE issue interim financial information on a semiannual or quarterly basis and, therefore, will not be burdened by the new rule. The NYSE believes that requiring FPIs to file semiannual financial information is important for the protection of investors because annual financial disclosure occurs too infrequently to enable investors to make informed investment decisions. FPIs listed on the London Stock Exchange and other EU regulated exchanges are already subject to semiannual reporting and, therefore, will not be affected by the NYSE rule. The Nasdaq Stock Market had adopted similar rules in 2011.
In addition, notwithstanding the new requirements, FPIs still enjoy certain benefits as compared with domestic reporting issuers. FPIs must file with the SEC an annual report on Form 20-F and furnish on Form 6-K information that they make public in their home jurisdiction, information that they file with the exchange on which their securities are traded or information that they distribute to their security holders, but do not need to file quarterly reports on Form 10-Q or current reports on Form 8-K and remain exempt from the SEC’s proxy rules and Section 16, among other provisions. Moreover, FPIs are provided more time to provide annual and semiannual financial information than is available to domestic reporting issuers.