May 12, 2015

Today’s Webcast: “The NYSE Speaks ’15: Latest Developments and Interpretations”

Tune in today for the webcast – “The NYSE Speaks ’15: Latest Developments and Interpretations” – to hear NYSE Staffers John Carey, Tanya Hoos and Jamie Patturelli discuss all the latest. Please print out this deck of “Course Materials” in advance…

Just a few days left to the Form SD filing deadline. Here’s a recap of the 15 filed so far – and here’s a tip on how to avoid conflict minerals smelter/refiner list errors…

NYSE Proposes Shareholder Approval “Share Issuances” Exemption for New Companies

Recently, the NYSE proposed amendments to Sections 312.03(b) & 312.04 of the NYSE Listed Company Manual to exempt “Early Stage Companies” from having to obtain shareholder approval before issuing shares for cash to related parties, affiliates of related parties or entities in which a related party has a substantial interest since these companies frequently have to rely on private placements to their founders or other significant existing shareholders or their executive officers or directors for capital-raising…

Nasdaq’s New FAQ on Net Share Settled Convertible Securities

This Gibson Dunn blog is about a new Nasdaq FAQ – here’s an excerpt:

While the FAQ speaks specifically to flexible settlement provisions where an issuer can settle conversions through cash, shares or a combination of both, a NASDAQ representative has told us that NASDAQ’s new position is equally applicable where net share settlement is mandatory. In addition, we understand from NASDAQ that its position is the same, regardless of how the issuer ultimately elects to settle conversions where the securities provide for flexible net share settlement. Issuers will still need to assess whether other provisions of NASDAQ’s shareholder approval rules may be applicable to a particular offering (for example, if the transaction might result in a change of control) or whether other terms of the convertible securities might implicate the 20% Rule (for example, certain conversion price adjustment provisions, any make-whole provisions, or provisions requiring additional cash payments to investors at the time of conversion such as payments for forgone future interest).

The New York Stock Exchange (“NYSE”) historically has taken a similar view that net share settled or flexible net share settled convertible securities should be viewed as being issued with a conversion price below the greater of book or market value. We understand based on a discussion with a representative of the NYSE that the NYSE has also expressly revised its position on this issue to be consistent with NASDAQ.

We view NASDAQ’s and the NYSE’s new position as a very welcome and pragmatic change, which should enhance the ability of smaller issuers to issue net share settled or flexible net share settled convertible securities and access the convertible securities market.

Tune in to our July webcast with the Nasdaq Staff! “Nasdaq Speaks ’15: Latest Developments and Interpretations”

– Broc Romanek