Time to catch up on some of the recent proposals at the Exchanges.
No, it’s not Groundhog Day. (In fact, it’s election day. Go vote!) But this proposal from the NYSE to amend Sections 312.03 and 312.04 of the Listed Company Manual sounds remarkably similar to the one that the SEC has just approved for Nasdaq—modifications to the price requirements for purposes of determining whether shareholder approval is required for certain issuances. (See this PubCo post.) Just like the new Nasdaq rule, the NYSE proposal would
change the definition of market value for purposes of the shareholder approval rule and
eliminate the requirement for shareholder approval of issuances at a price less than book value but greater than market value.
The chatter has it that some unicorns are considering skipping the standard underwritten IPO in favor of a “direct listing.” Essentially, this process involves a registered sale by selling shareholders directly into the public market with no intermediary underwriter and—imagine this—no underwriting commissions and no roadshow or similar expenses. Of course, there’s also the small matter of no proceeds to the company. What’s more, companies may be on their own when it comes to any marketing effort, otherwise typically provided by the bankers, and there may be only limited banker support of the stock price in the aftermarket. And what about that first day pop in the stock that can breed so much excitement? Of course, many companies have taken advantage of the fertile territory for capital raising provided by the private markets—after all, that’s how they got to be unicorns—and may have no need of additional capital at this point. Their motivation for becoming public may have more to do with shareholder liquidity and obtaining the “currency” that publicly traded stock can provide in the context of acquisitions and similar transactions. Whether the “direct listing” route to going public catches fire remains to be seen.
NYSE proposes changes regarding delivery to NYSE of proxy materials; SEC approves NYSE restriction on timing of issuance of material news after NYSE close
Two changes—one proposed, one approved—in the NYSE Manual: first, the NYSE is proposing to modify its requirements with respect to delivery to the NYSE of hard copies of proxy materials. Second, the SEC has approved the NYSE’s proposal, as amended, related to a limitation on the issuance of material news in the period immediately after the NYSE close.
The NYSE is proposing two changes with regard to material news: the first relates to a limitation on the issuance of material news in the period immediately after the NYSE close, and the second relates to a delay in the effective date of the NYSE’s recent rule change regarding notice to the NYSE of dividends and stock distributions.
SEC approves NYSE amendments requiring notice related to dividends and stock distributions, even if outside of NYSE trading hours (updated)
Yesterday, the SEC approved a rule change that amended the NYSE Manual to require listed companies to provide notice to the NYSE at least ten minutes before making any public announcement with respect to a dividend or stock distribution, irrespective of the time of day, even when the notice is outside of NYSE trading hours (rather than limited to the hours of 7:00 A.M. and 4:00 P.M. as in the prior rule). Bring your sleeping bags, NYSE staff: the NYSE indicated that “it intends to have its staff available at all times to review dividend or stock distribution notices immediately upon receipt, regardless of the time or date the notices are received….The Exchange staff will contact a listed company immediately if there is a problem with its notification.” Update: the NYSE has now proposed to amend the rule to delay its implementation to be “no later than February 1, 2018,” and will provide reasonable advance notice of the new implementation date by email to listed companies. (See this PubCo post.)
Notwithstanding concerns of Investor Advocate, SEC approves NYSE proposal to exempt certain related-party transactions from shareholder approval requirements
by Cydney Posner As you may recall, in April of this year, the NYSE filed with the SEC a proposed rule change that would exempt from the NYSE’s shareholder approval requirements early stage companies that seek to issue, subject to audit committee approval, shares, for cash, to officers, directors or substantial […]
by Cydney Posner Today, the new Investor Advocate, Rick Fleming, issued a statement regarding his “First Official Recommendation” to the SEC. What was that recommendation? He recommended that the SEC disapprove the NYSE’s proposed rule change that would exempt certain early stage companies from having to obtain shareholder approval before selling additional […]
by Cydney Posner As discussed in this PubCo post, in early August, the SEC issued an Order instituting proceedings to determine whether to disapprove a proposal from the NYSE to amend Sections 312.03(b) and 312.04 (shareholder approval) of the NYSE Listed Company Manual. The proposal would exempt from the NYSE’s shareholder approval […]