Corporate & Securities Law

Comments Due Soon on the NYSE's Rule 452 Amendment

By dave

Comments Due Soon on the NYSE's Rule 452 Amendment

The NYSE's proposed amendment regarding broker discretionary voting on director elections is on the fast track (as Broc mentioned in the blog a couple of weeks ago), and that fast track means that interested parties only have a very short time to comment on the proposal. As is typical with these sorts of SRO proposals, comments are due only 21 days after publication in the Federal Register. With the Federal Register publication occurring last Friday, that means comments are due by March 27th.

Unlike your typical SRO rulemaking, this one has the potential for a broad impact on companies – changing the voting dynamics in uncontested director elections across the board. While it seems that, given the current environment, commenters won't be able to stop this proposal from happening now, it is nonetheless important that concerns about – and support for – this proposal be aired through the public comment process, so comment if you can. For more on the topic, check out our "Broker Non-Vote" Practice Area.

Note that Exhibit 2 to the 4th Amendment includes the 39 comment letters regarding Rule 452 that the NYSE received in response to its Proxy Working Group Report, which predated the October 2006 submission of the initial notice of proposed Rule 452 changes. The NYSE typically does not solicit comments prior to filing a Section 19(b)(1) notice or any amendment to such a notice, so there are no other publicly available comments on the NYSE's website (or on the SEC's website). One of the main concerns raised by commenters on the Proxy Working Group's recommendation was the potential difficulty in achieving a quorum if director elections become non-routine.

Corp Fin's Guidance for Smaller Reporting Company IPOs

While what we think of as the traditional IPO market continues to be virtually non-existent, smaller companies still keep filing first-time registration statements, whether it be for the purpose of raising capital or to register the resale of shares already issued. (Since the old "SB" forms have been phased out, smaller reporting companies now file on Form S-1 for an "initial public offering.")

Last week, the Corp Fin Staff released "Staff Observations in the Review of Smaller Reporting Company IPOs" to highlight some of the typical comments raised on smaller reporting company registration statements. Many of the comments referenced in this report are equally applicable to registration statements - and other filings - for companies that do not qualify as smaller reporting companies. Topics covered include: the cover page and summary, risk factors, use of proceeds, description of business, MD&A, disclosure about directors, officers and control persons, related person transaction disclosure, the plan of distribution, selling security holders and financial statements.

Developments in Debt Restructurings & Debt Tender/Exchange Offers

We have posted the transcript for the DealLawyers.com webcast: "Developments in Debt Restructurings & Debt Tender/Exchange Offers."

- Dave Lynn

Full post as published by The Corporate Counsel.net Blog on March 09, 2009 (boomark / email).