A. SEC 2026 Agenda Signals Possible Foreign Private Issuer Eligibility Reforms
The 2026 Regulatory Flexibility Agenda published by the U.S. Securities and Exchange Commission (“SEC”) includes “Foreign Private Issuer Eligibility Enhancements” at the proposed rule stage, with an expected Notice of Proposed Rulemaking timing of October 2026. The agenda item follows the SEC’s June 2025 concept release on whether the “Foreign Private Issuer” (“FPI”) definition should be revised in light of developments in the reporting FPI population.
This is not yet a proposed rule and does not itself change existing FPI status tests or accommodations. However, because FPI status drives annual reporting on Form 20-F, current reporting on Form 6-K, U.S. proxy rule accommodations, quarterly reporting exemptions, and other governance and disclosure practices, the agenda item is material for listed FPIs and IPO candidates.
Key Issues on the SEC Agenda:
- Possible Rule Proposal: the Division of Corporation Finance is considering recommending that the SEC propose enhancements to the regulatory framework governing FPIs. Changes to FPI eligibility can materially affect compliance cost, reporting cadence, investor expectations, and U.S. listing strategy.
- Rationalization of Disclosure Practices: rationalize disclosure practices to facilitate material disclosure and shareholders’ access to that information.
- Rule 144 Safe Harbor: the Division of Corporation Finance is considering recommending that the Commission repropose amendments to Rule 144, a non-exclusive safe harbor that permits the public resale of restricted or control securities if the conditions of the rule are met, to increase instances in which the safe harbor would be available.
- Registered Offerings Reform: the Division of Corporation Finance is considering recommending that the SEC propose rule amendments to modernize the shelf registration process to reduce compliance burdens and further facilitate capital formation.
We note that the SEC’s proposed rules would prohibit FPIs from registering securities on Form S-3 or Form S-1, even if they voluntarily report as domestic issuers and would be eligible for Form S-3 or Form S-1 today. FPIs would continue to have access to Form F-3 and Form F-1 as the basic registration statement form. FPIs that qualify as “Well-Known Seasoned Issuer (“WKSIs”) would retain WKSI status and would remain eligible for WKSI benefits, even though they would not be Form S-3 eligible and could not qualify as an “Eligible Listed Issuers” or “Seasoned Eligible Listed Issuers”.
Key Takeaways for FPIs:
- Refresh the company’s annual FPI status analysis and document key inputs, including U.S. shareholder base, management/director residency, assets, business administration and home-market nexus.
- Prepare a “loss of FPI status” playbook covering Form 10-K/10-Q/8-K reporting, U.S. proxy rules, Regulation FD, XBRL timing, auditor and internal control implications, and governance calendar changes.
- For IPO candidates and companies with evolving U.S. ownership or management footprint, model how possible eligibility reforms could affect listing venue, disclosure timetable and transaction documentation.
- Monitor SEC rulemaking closely and consider submitting comments if proposed changes could affect the company or similarly situated issuers.
- Brief the board, audit committee and disclosure committee now, because any future transition period could require significant operational preparation.
B. Nasdaq Move to 23-Hour Trading; EDGAR and Disclosure Implications
Nasdaq has announced that, effective December 6, 2026, it will introduce a new 9:00 p.m. through 4:00 a.m. ET trading session, moving toward nearly continuous trading 23 hours per day, five days per week. Trades executed between 9:00 p.m. ET and midnight will be assigned the next trading day’s trade date; trades from midnight through 8:00 p.m. ET will carry the current day’s trade date.
EDGAR does not currently match the 23-hour trading day
EDGAR generally accepts filings from 6:00 a.m. to 10:00 p.m. ET on weekdays, excluding federal holidays. Filings made outside those hours are processed the next business day. In addition, most submissions that begin after 5:30 p.m. ET receive the next business day’s filing date/dissemination treatment, with limited exceptions such as Forms 3, 4 and 5 that can receive same-day treatment if submitted by 10:00 p.m. ET.
- 4:00 a.m. through 6:00 a.m. ET: Nasdaq trading may be occurring, but EDGAR is not yet open. A company generally cannot file or furnish a Form 6-K, Form F-3/F-1, Form 20-F amendment or other EDGAR filing until EDGAR reopens at 6:00 a.m. ET.
- 6:00 a.m. through 5:30 p.m. ET: EDGAR is open and most filings can receive the same business day’s filing date, subject to normal validation and filing-specific requirements.
- 5:30 p.m. through 10:00 p.m. ET: EDGAR is open, but most public-company submissions filed or furnished after 5:30 p.m. ET will generally receive the next business day’s filing date/dissemination treatment. This matters for announcements made during late after-hours or the new 9:00 p.m.–10:00 p.m. portion of the overnight trading session.
- 10:00 p.m. through 4:00 a.m. ET: Nasdaq trading may be occurring, but EDGAR is closed. Issuers should not assume that an EDGAR filing is available as the primary disclosure tool during this window.
Practical disclosure implications for FPIs:
- The expansion of live trading hours may compress the time between a material foreign-market development and U.S. market reaction, while EDGAR availability remains constrained. FPIs should consider updating disclosure controls and procedures so that material developments outside U.S. business hours are escalated quickly and a coordinated disclosure plan is ready before trading begins or continues in the U.S. market.
- Form 6-K Timing: FPIs should pre-clear internal triggers for when home-country announcements, exchange releases, financial results, major transactions, cybersecurity events or other material developments require a Form 6-K. Where the event occurs during EDGAR-closed hours, companies should prepare the 6-K and exhibits for filing at 6:00 a.m. ET while considering whether another broad public disclosure channel is needed before then.
- Pre/Post-market Announcements: earnings releases and transaction announcements should be planned around both trading hour liquidity and EDGAR cutoffs. A “post-market” release after 5:30 p.m. ET may not receive same-day EDGAR filing treatment even though the share may continue trading for hours.
- Board and Management Readiness: the new U.S. trading window overlaps local daytime hours. The Board should define who can approve announcements, trading halts, Form 6-Ks and investor messaging outside the traditional U.S. market day.
- Trading Policies: insider trading windows, blackout periods, 10b5-1 plan administration, employee communications and leak-response procedures should be reviewed, since, for example “after market close” would convey a different meaning.
- Market Monitoring: companies should consider overnight monitoring for unusual price/volume moves, market rumors and social media-driven activity, especially around earnings, offerings, M&A, litigation and regulatory events.
We note that on September 1, 2026, the SEC announced the agenda and panelists for its September 17, 2026 roundtable on preparations for 24-hour trading, which it first announced on July 23, 2026. The three panels will address preparedness for a 24-hour market, including exchange and broker-dealer readiness, overnight surveillance, closing price processes, clearance and settlement changes and investor protection practices, systems readiness, and expected impacts on liquidity and capital formation.
C. Nasdaq $5 Million MVLS Delisting Requirement – Current Status
The SEC approved Nasdaq’s proposed $5 million Market Value of Listed Securities (“MVLS”) continued listing requirement on July 22, 2026, but the approval order was automatically stayed on July 29, 2026 after notices of intent to seek full SEC review were filed. Currently, the new requirement is not operative unless and until the SEC orders otherwise.
- Scope: The rule would add a $5 million MVLS continued listing requirement for primary equity securities listed on the Nasdaq Global Select Market, Nasdaq Global Market and Nasdaq Capital Market.
- Trigger: a deficiency would be determined if the issuer’s MVLS remained below $5 million for 30 consecutive business days.
- Consequence if Implemented: as approved, the rule would have required a Staff Delisting Determination and immediate suspension/delisting process, without the ordinary cure period available for many other continued listing deficiencies.
- Appeal Mechanics: although a company could request review by a Nasdaq Hearings Panel, the approved rule would not have allowed continued Nasdaq trading during the appeal as a matter of course.
Key Takeaways for FPIs:
If the stay is lifted and the rule becomes effective, companies with MVLS below or near $5 million may have limited time to evaluate their options. Therefore, early planning is crucial.
- Closely Monitor MVLS: companies should track their MVLS, in addition to public quote-site market capitalization. Nasdaq’s definition uses the consolidated closing bid price multiplied by the measure to be valued.
- Firm Up Capital Raising Plans: potential strategies may include PIPEs, registered directs, strategic investors, industry partners or equity financings tied to credible business milestones. However, because this is a market-value-driven hurdle, a financing viewed as highly dilutive may fail to cure the deficiency if the resulting market price decline offsets the added capital or shares.
- Do Not Rely on a Reverse Share Split: a reverse share split may help with a bid-price deficiency, but it does not by itself increase market value.
- Consider Strategic Transactions: M&A transactions, business combinations or other balance sheet investment strategies may be considered where they credibly increase sustainable market value. Any such strategy should be evaluated carefully for accounting, securities law, valuation and disclosure implications.
- Prepare For an OTC Transition: because suspended securities would generally trade OTC while an appeal is pending, companies at risk should have a contingency plan for OTC trading, investor communications and financing consequences.
