[co-author: Evan Eldridge]

On July 17, 2023, the US Securities and Exchange Commission’s Division of Corporation Finance (“Division”) released another Sample Letter (“Letter”) that outlines the disclosures that the Staff is focused on in relation to companies based or having the majority of their operations in the People’s Republic of China (“China-based Companies”). Our discussion on the Division’s previous sample comment letter can be found here.

The Letter notes that China-based Companies should enhance their compliance with disclosure obligations under the federal securities laws and provide more prominent, specific, and tailored disclosures about China-specific matters so that investors have the material information they need to make informed investment and voting decisions. In the Letter, the Division focuses on three tailored areas of disclosure that should be addressed.

The Letter prompts the China-based Company to identify the disclosure obligations under the Holding Foreign Companies Accountable Act (“HFCAA”). Public companies identified as Commission Identified Issuers (“CIIs”) that are foreign issuers must comply with the submission and disclosure requirements under the HFCAA and Commission rules for each year in which they are identified including (i) the percentage of shares of the issuer owned by government entities in the foreign jurisdiction in which the issuer is incorporated or organized; (ii) whether government entities in the foreign jurisdiction in which the issuer’s auditor resides have a controlling financial interest with respect to the issuer; (iii) the name of each Chinese Communist Party (the “CCP”) official who is a member of the board of directors of the issuer or the operating entity with respect to the issuer; and (iv) whether the issuer’s articles of incorporation or equivalent organizing document contains any charter of the CCP.

The Letter calls on the China-based Company to identify material risks related to the role of the government of the People’s Republic of China (“PRC”) in their operations, specifically on any intervention or control of the China-based Company by the PRC government. The Letter defines “control” consistent with the federal securities rules, to mean “the possession direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of securities, by contract, or otherwise.”

Finally, the Letter calls for disclosure concerning the Uyghar Forced Labor Prevention Act (UFLPA) and its prohibition of imported goods from the Xinjiang Uyghar Autonomous Region of the PRC. The China-based Company should consider and disclose any material impacts of the provisions of this statute on the company’s business.

A copy of the Letter may be viewed here.

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