August 31, 2010

Corp Fin Deputy Director Brian Breheny To Leave

After 7 years in Corp Fin, Deputy Director Brian Breheny announced yesterday that he was leaving to become a partner for Skadden Arps. Before serving as Deputy Director for the past few years, Brian served as head of the Office of Mergers & Acquisitions since his arrival at the SEC in 2003. Well-liked and a witty speaker at conferences, Brian’s presence at the Commission will be missed.

A lot of comings and goings among the senior SEC Staff yesterday, as another long-time Enforcement Staffer announced his departure and a big hire for Market Reg was announced too.

Nasdaq Proposes Easier Path to Second Bid Price Grace Period

Last week, Nasdaq filed a proposal with the SEC that would ease the eligibility criteria for a company to receive a second 180-day compliance (ie. “grace” period) for a bid price deficiency on the Nasdaq Capital Market – but also proposed other changes that would enhance the ability of Nasdaq Staff to not grant the additional grace period if it determines that it was not possible for the company to cure the deficiency.

Under existing rules, once a company has a closing bid price below $1 for 30 consecutive days, it becomes deficient and receives notice that it has a 180-day grace period to regain compliance. Compliance can be achieved by maintaining a minimum $1 closing bid price for 10 consecutive days. At the expiration of the 180-day period, a company can receive an additional 180 day grace period, provided it is either already listed on the Capital Market or transfers to that market and satisfies all of the Capital Market’s initial listing criteria, except for bid price.

The proposal would:

– Ease the requirements for the second grace period for the Capital Market by allowing a company to qualify if it satisfies the lower continued listing requirement for market value. The initial listing criteria for market value is between $5 and $15 million, whereas the continued listing standard is $1 million. The company would continue to be required to meet one of the other sets of initial listing criteria for the Capital Market, other than the bid price.

– Require that the company notify Nasdaq of its intent to cure the bid price deficiency and provide authority to the Staff to determine that the company is not eligible for the second grace period if (i) the company does not indicate its intent to cure the deficiency or (ii) it does not appear to the Staff that it is possible for the company to cure the deficiency.

– To avail itself of the second grace period (that is only available to Capital Market companies), a company listed on the Global or Global Select Markets would continue to be permitted to transfer to the Capital Market if it meets the applicable market value requirement for continued listing (and all other applicable requirements) for initial listing on the Capital Market (except for the bid price requirement) and notifies Nasdaq of its intent to cure the bid price deficiency. However, the proposal also provides that a Global Market company may request a hearing to remain on Global Market.

CFTC Seeks Input on 30 Rulemakings

Here is news from Sullivan & Cromwell: On August 26th, the Commodity Futures Trading Commission issued this Federal Register notice requesting public comment on the 30 rulemakings identified by the CFTC to implement Title VII of the Dodd-Frank Act. This unusual CFTC release reflects the complexity and quantity of rulemaking the agency faces. Comments pursuant to this release are discretionary and should focus on topics that may be novel or not obviously on the list of topics the CFTC would be considering as it drafts its proposed rules.

– Broc Romanek