On August 30, 2023, the staff of the U.S. Securities and Exchange Commission posted three compliance and disclosure interpretations (“C&DIs”) providing guidance on Form F-SR.  Form F-SR is  the new form for a foreign private issuer  (“FPI”) that files SEC reports on Forms 20-F and 6-K to use for quarterly tabular disclosure of daily share buybacks.

C&DI 113.01 specified that Form F-SR does NOT need to be filed if during the covered fiscal quarter the FPI or affiliated purchaser did not repurchase any of its equity securities that are registered under Section 12 of the Securities Exchange Act of 1934.

C&DI 113.02  provided if the FPI or affiliated issuer does not have any buybacks that would trigger a Form F-SR for a quarter, the FPI does NOT need file a Form F-SR for that quarter solely to check the box for purchases or sales of securities by a director or member of senior management.

C&DI 113.03 stated that if an FPI or affiliated purchaser engaged in a buyback during its fourth quarter, the FPI must file a Form F-SR within 45 days after the end of the quarter; it CANNOT wait until the Form 20-F to report those buybacks.

For more information the SEC’s new disclosure rules for shares buybacks, see our Legal Update, “SEC Adopts New Share Repurchase Rules,” dated May 8, 2023.

The complete text of these new C&DI’s appears below:

Question 113.01

Question: Is a Form F-SR required to be filed if, during the covered fiscal quarter, the foreign private issuer or affiliated purchaser did not repurchase any of its equity securities registered under Exchange Act Section 12?

Answer: No, a Form F-SR is not required to be filed under these circumstances. Note, however, there is no de minimis exception to the Form F-SR filing requirement; even the repurchase of a very small number of equity securities would trigger a Form F-SR filing. [August 30, 2023]

Question 113.02

Question: A foreign private issuer or affiliated purchaser did not conduct any repurchases that would trigger the requirement to file a Form F-SR. Is a Form F-SR nevertheless required solely to check the box under “Registrant Purchases of Equity Securities” section of Form F-SR for the covered purchases or sales of securities by a director or member of senior management who would be identified pursuant to Item 1 of Form 20-F?

Answer: No. [August 30, 2023]

Question 113.03

Question: Is a Form F-SR required to be filed for the final quarter of the fiscal year?

Answer: Yes, if a foreign private issuer or affiliated purchaser engaged in repurchases during the final quarter of the fiscal year, then a Form F-SR would be required for that final quarter and must be filed within 45 days after the end of the quarter. Foreign private issuers are not permitted to wait to report the repurchases during the final quarter of the fiscal year in the Form 20-F for that fiscal year. See Exchange Act Release No. 34-97424 (May 3, 2023) at fn. 185. [August 30, 2023]

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