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Periodic Reporting Requirements and Disclosure Obligations Toolkit (Foreign Private Issuers)
Resources to assist foreign private issuers and their counsel and securityholders in complying with the periodic reporting requirements and disclosure obligations of the Exchange Act and the rules and regulations of the national securities exchanges.
Under the Securities Exchange Act of 1934 ( www.practicallaw.com/5-382-3808) (Exchange Act), foreign private issuers ( www.practicallaw.com/1-382-3481) (FPIs) that are reporting companies ( www.practicallaw.com/2-382-3758) with a class of securities registered under Section 12(b) or 12(g) of the Exchange Act (Section 12 Reporting Companies) or subject to Section 15(d) of the Exchange Act are required to file periodic reports with the Securities and Exchange Commission ( www.practicallaw.com/9-382-3806) (SEC). However, FPIs may elect to rely on special accommodations included in SEC rules and regulations that reduce the reporting burdens on FPIs. These special accommodations and reduced reporting burdens have been designed to encourage more non-US companies to enter the US capital markets and have been set out in certain alternative SEC forms that FPIs may report on, including:
Annual reports on Form 20-F ( www.practicallaw.com/8-386-0012) .
Current reports on Form 6-K ( www.practicallaw.com/3-385-1557) .
Certain Canadian issuers that qualify for the multijurisdictional disclosure system ( www.practicallaw.com/3-566-1965) may file their annual reports on Form 40-F ( www.practicallaw.com/6-386-0013) instead of Form 20-F.
FPIs are also required to file:
Iran notices (if applicable).
Form SD ( www.practicallaw.com/0-521-4859) (which issuers use to satisfy certain disclosure requirements relating to conflict minerals ( www.practicallaw.com/2-521-4858) ).
In addition, certain large securityholders of Section 12 Reporting Companies are required to file Schedule 13D ( www.practicallaw.com/1-383-6600) s or Schedule 13G ( www.practicallaw.com/9-383-6597) s.
FPIs that are emerging growth companies ( www.practicallaw.com/3-518-8137) may use scaled reporting for their Exchange Act filings, including exemptions from certain provisions of Regulation S-K ( www.practicallaw.com/1-382-3749) . FPIs may only utilize the scaled disclosure regime for smaller reporting companies ( www.practicallaw.com/4-382-3823) if they file on the SEC forms used by domestic issuers ( www.practicallaw.com/0-570-3066) and present their financial statements in accordance with US GAAP ( www.practicallaw.com/3-382-3512) . For more information on the periodic reporting requirements and disclosure obligations applicable to domestic issuers and their affiliates ( www.practicallaw.com/1-382-3221) and securityholders, see Periodic Reporting Requirements and Disclosure Obligations Toolkit (Domestic Issuers) ( www.practicallaw.com/w-000-4553) .
Companies that have a class of securities listed on a national securities exchange are also subject to the material nonpublic information disclosure requirements of the applicable exchange, including requirements relating to the timing and method of the disclosure.
Reporting companies that are FPIs enjoy exemptions from many significant disclosure requirements under US federal securities laws that apply to reporting companies that are domestic issuers, including:
The proxy solicitation and disclosure rules under Section 14 of the Exchange Act.
The insider reporting requirements under Section 16 of the Exchange Act.
The fair disclosure requirements under Regulation FD ( www.practicallaw.com/9-382-3745) .
However, while FPIs are not technically required to comply with Regulation FD, many FPIs voluntarily comply, because:
The requirements are designed to address antifraud policy concerns similar to those underlying the prohibition on insider trading that all reporting companies must comply with.
Selective disclosure could result in antifraud liability under Rule 10b-5 under the Exchange Act.
This Toolkit includes links to a number of resources designed to assist FPIs and their counsel and securityholders in complying with the periodic reporting requirements and disclosure obligations of the Exchange Act and the rules and regulations of the national securities exchanges.