May a registrant include in its SEC filings supplemental disclosures that do not comply with the SEC’s new rules, but comply with a foreign mining code such as Canada’s NI 43-101?
Not in its core “filed” SEC reports, such as Form 10-Ks, 10-Qs and 20-Fs, and certain Form 8-Ks. Nor can such information be incorporated by reference into a non-MJDS SEC registration statement.
However, the SEC’s new rules will not prohibit a registrant from including supplemental disclosures that are inconsistent with the SEC’s rules in disclosures that are not subject to the rules, such as disclosures on an issuer’s website, in press releases or in certain SEC submitted documents such as a Form 8-K furnished under Regulation FD, or for foreign private issuers a Form 6-K that is not incorporated by reference into an applicable registration statement. This is consistent with the existing reporting regime for U.S. issuers, under which many U.S. issuers voluntarily prepare technical reports and other disclosures that comply with NI 43-101 or other foreign standards and make such reports available to the public outside their core “filed” SEC reports. As under existing Guide 7, a registrant seeking to make such supplemental disclosures should assure itself that neither such disclosures nor its SEC filings are misleading.
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