On December 8, 2016, the Securities and Exchange Commission’s (“SEC”) Division of Corporation Finance (the “Staff”) released several new compliance and disclosure interpretations (“C&DIs”) clarifying the definition of “foreign private issuer” (an “FPI”) under Rule 405 (“Rule 405”) under the Securities Act of 1933, as amended (the “Securities Act”), and Rule 3b-4(c) (“Rule 3b-4(c)”) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). On the same day, the Staff issued additional C&DIs, which provide explanations on the permitted use of an F-Series registration statement and Form 20-F by an FPI (and its subsidiaries) in certain contexts. This alert provides a brief summary of these C&DIs.

I. Definition of FPI -

The Staff issued C&DIs to clarify whether an issuer qualifies as an FPI under Rule 405 under the Securities Act and Rule 3b-4(c) under the Exchange Act. Rule 405 and Rule 3b-4(c) each define a “foreign private issuer” as any issuer incorporated or organized under the laws of a foreign country (other than a foreign government), except an issuer that satisfies the following conditions: (1) as of the last business day of the issuer’s most recently completed second fiscal quarter, more than 50 percent of the issuer’s outstanding voting securities are directly or indirectly held of record by residents of the United States; and (2) any one of the following conditions are satisfied: (i) the majority of the issuer’s executive officers or directors are U.S. citizens or residents, (ii) more than 50 percent of the issuer’s assets are located in the United States, or (iii) the issuer’s business is administered principally in the United States.