The Securities and Exchange Commission is requesting comments prior to August 31, 2015 regarding whether the Commission should approve or disapprove a proposed change to the NYSE Listed Company Manual Sections 312.03 and 312.04. The NYSE Listed Company Manual contains a number of regulations requiring that a listed company obtain shareholder approval for certain issuances of securities, which provisions are often referred to as the "shareholder vote provisions" or the "20% rule." In this case, the NYSE proposes to amend the referenced sections in order to provide an exemption pursuant to which an "early stage company" the securities of which are listed on the NYSE may issue shares of common stock (or exchangeable or convertible securities) to certain related parties without shareholder approval. The exemption from the requirement to obtain shareholder approval would be available only to an "early stage company," which would be defined as a company that has not reported revenues in excess of $20 million in any two consecutive fiscal years since incorporation. The early stage company's audit committee would be required to review and approve the proposed transaction prior to completion. The exemption would only be available for sales for cash and would not be available for issuances in connection with an acquisition. Many of the securities exchanges' rules imposing shareholder approval in connection with certain transactions serve to deter companies from raising much-needed capital. This modest positive change would prove beneficial to shareholders.
Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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