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SEC 8105 - Form 6-K
Publication date: 30 Sep 2023
us PwC SEC Volume 8105
.1 General
.11 What is Form 6-K and where can I find it?
Form 6-K is an Exchange Act reporting form used by foreign private issuers (FPIs) to report material information that an issuer:
– makes or is required to make public pursuant to the law of the jurisdiction of its domicile or in which it is incorporated or organized,
– files or is required to file with a stock exchange on which its securities are traded and which was made public by that exchange, or
– distributes or is required to distribute to its security holders.
The text of Form 6-K is available on the SEC website (https://www.sec.gov/files/form6-k.pdf).
.12 What are examples of information required to be disclosed in Form 6-K?
Information required to be disclosed is that which is material concerning: changes in business; changes in management or control; acquisitions or dispositions of assets; bankruptcy or receivership; changes in registrant's certifying accountants; the financial condition and results of operations; material legal proceedings; changes in securities or in the security for registered securities; defaults upon senior securities; material increases or decreases in the amount outstanding of securities or indebtedness; the results of the submission of matters to a vote of security holders; transactions with directors, officers or principal security holders; the granting of options or payment of other compensation to directors or officers; material cybersecurity incident; and any other information which the registrant deems of material importance to security holders. See General Instruction B to Form 6-K.
.13 Is a Form 6-K considered “furnished” or “filed”, and what is the difference?
The Exchange Act requires FPIs to “furnish” reports on Form 6-K. Information in Form 6-K is considered “furnished” and not deemed “filed” unless the registrant specifically incorporates it by reference into a filing made under the Securities Act or the Exchange Act, such as into a Form F-1, Form F-3 or Form 20-F.
The difference between the concepts of “furnished” and “filed” is a legal matter that registrants should consider discussing with their legal counsel. As a general matter, we understand that information that is furnished and not deemed filed is not subject to a right of action under Section 18 of the Exchange Act. Additionally, information that is furnished in a Form 6-K is not subject to some of the elements of S-K 10 (e.g., relating to non-GAAP measures), whereas filed information would generally be subject to those requirements.
.9 Frequently asked questions
.901 Does an FPI need to report a change in auditors in an Annual Report on Form 20-F if a Form 6-K is filed?
Each of the U.S. exchanges requires that notice be given to the exchange if a listed company changes independent accountants. Furnishing such information on Form 6-K does not eliminate the requirement to subsequently disclose the change in the registrant's certifying accountant pursuant to the requirements of Item 16F of Form 20-F. See SEC 8100.51 for Item 16F related guidance.
[Editor's note: The disclosures required by Item 16F of Form 20-F are required in annual reports on Form 20-F, as well as in registration statements filed on Form 20-F, Form F-1, Form F-3, and Form F-4.]
See SEC 6150 for additional guidance on change in auditors.
See Topic IV in the Highlights of the May 2023 CAQ International Practices Task Force meeting.
.902 Are there circumstances where FPIs are exempted from Regulation G requirements for Non-GAAP Financial Measures?
FPIs are exempt from Regulation G if three conditions are met:
- The securities of the FPI are listed or quoted on a securities exchange or inter-dealer quotation system outside the U.S.;
- The non-GAAP financial measure is not derived from or based on a measure calculated and presented in accordance with U.S. GAAP; and
- The disclosure is made by, or on behalf of, the FPI outside the U.S., or is included in a written communication that is released by, or on behalf of, the FPI outside the U.S.
[Editor’s note: Information “furnished” under Regulation G that is subsequently included or incorporated by reference into an annual report on Form 20-F or a registration statement becomes subject to the requirements of S-K 10(e).]
See SEC 6020.22 for a discussion of the Regulation G presentation and disclosure model.
See SEC FRM 8140 for additional guidance.
.903 Is a FPI required to file information with respect to significant business acquisitions under the Exchange Act?
No. Unlike a U.S. domestic registrant, a FPI is not required to file information with respect to significant business acquisitions under the Exchange Act, unless such information is (a) required to be disclosed in the local jurisdiction; (b) required to be disclosed by an exchange on which the issue is traded; or (c) otherwise voluntarily disclosed to shareholders. If so, such information should be furnished to the SEC on Form 6-K.
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