The New York Stock Exchange, Inc. (the “NYSE”) recently adopted a new rule requiring NYSE-listed foreign private issuers to submit a Form 6-K to the Securities and Exchange Commission (the “SEC”) containing certain semi-annual financial information. A brief summary of the new rule is set forth below.
The New Rule: Section 203.03 of the NYSE Listed Company Manual
Section 203.03 of the NYSE Listed Company Manual (the “Manual”), which became effective in February 2016, requires foreign private issuers with a security listed on the NYSE to submit to the SEC a Form 6-K within six months of the end of its second fiscal quarter of each year including, at a minimum: (i) an interim balance sheet as of the end of its second fiscal quarter and (ii) a semi-annual income statement that covers its first two fiscal quarters. The earliest semi-annual period that an NYSE-listed foreign private issuer with a December 31 fiscal year-end would be required to file a Form 6-K pursuant to the new rule would be for the six months ended June 30, 2016, resulting in a filing deadline of December 31, 2016.1 The information must be presented in English, but need not be audited or reconciled to U.S. GAAP standards. Companies may voluntarily provide more expansive or more frequent interim financial information than required by the new rule, and all other existing obligations remain in effect.
Many NYSE-listed foreign private issuers release timely interim financial results, including quarterly balance sheet and income statement information. As such, many NYSE-listed foreign private issuers may already report interim financial information in a manner that complies with the new Section 203.03. The new NYSE rule reflects the NYSE’s and the SEC’s desire to make the reporting practices of all foreign private issuers more uniform. Foreign private issuers listed on NASDAQ are already subject to similar reporting obligations pursuant to NASDAQ Listing Rule 5250(c)(2).
The NYSE has also amended Section 802.01E of the Manual to extend the compliance procedures for untimely filings, as set forth therein, to violations of new Section 203.03. Failure to submit a Form 6-K with the required financial information within the required six-month period would constitute a “Late Filing Delinquency,” which would, among other things, require the issuer to issue a press release announcing the delinquency. The NYSE may, in its discretion, extend the compliance period by an additional six months or more. Failure to regain compliance during such cure period could result in the initiation of suspension and/or delisting procedures.
Additional Information
For a copy of the SEC release pertaining to the adoption of this rule, please see: https://www.sec.gov/rules/sro/nyse/2016/34-77198.pdf
For a copy of the NYSE Listed Company Manual, please see: http://nysemanual.nyse.com/LCM/Sections/
If you have any questions concerning this bulletin, please contact your Seward & Kissel Capital Markets Group attorney.
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1 Section 203.03 applies to any fiscal year beginning on or after July 1, 2015. As such, foreign private issuers having other than a December 31 fiscal year may have an earlier reporting deadline. All foreign private issuers subject to Section 203.03 should consult with their legal counsel to determine applicability of Section 203.03 to its particular circumstances.
