Register for free to join our community of investors and share your ideas. You will also get access to streaming quotes, interactive charts, trades, portfolio, live options flow and more tools.
Register for free to join our community of investors and share your ideas. You will also get access to streaming quotes, interactive charts, trades, portfolio, live options flow and more tools.
The last run came right off a year of 0.0001 to 0.0014 That is a very good run.
We have had pretty good support in the 2 to 3 range.
For now. It will run. It always does.
Exactly. Well stated.
It is a totally unnecessary expense. At this point, Fred should focus every single dollar into growing AMHD, not appeasing a few people here on IHub.
The SEC agrees:
According to SEC guidelines the PR's are valid.
According to the SEC, a PR is just as good as an 8K. That is in the SEC website.
http://www.sec.gov/rules/sro/nasdaq/2010/34-61713.pdf
SECURITIES AND EXCHANGE COMMISSION
(Release No. 34-61713; File No. SR-NASDAQ-2010-006)
March 15, 2010
Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Order Granting Approval of
Proposed Rule Change to Modify the Press Release Requirements for Listed Companies
I. Introduction
On January 13, 2010, The NASDAQ Stock Market LLC (“Nasdaq” or the “Exchange”)
filed with the Securities and Exchange Commission (“Commission”), pursuant to Section
19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
1
and Rule 19b-4 thereunder,
2
a
proposed rule change to modify certain of Nasdaq’s rules pertaining to its press release
requirements for listed companies. The proposed rule change was published for comment in the
Federal Register on February 8, 2010.
3
The Commission received no comments on the proposed
rule change. This order approves the proposed rule change.
II. Description of Proposed Rule Change
Nasdaq is proposing to modify certain of its rules related to the issuer compliance process
that currently require a company to disclose information in a press release or through the news
media. Nasdaq notes that these rules were generally adopted to address inconsistent issuer
disclosure practices and reflected the view that issuing a press release was the only way to assure
wide dissemination of an important event. However, in 2002, the Commission adopted
Regulation FD,
4
and Nasdaq amended its rules to allow listed companies to provide disclosure of
1
15 U.S.C. 78s(b)(1)
2
17 CFR 240.19b-4.
3
See Securities Exchange Act Release No. 61461 (February 1, 2010), 75 FR 6241
(“Notice”).
4
17 CFR 243.100-103.
material news via any Regulation FD compliant means.
5
Nasdaq asserts that there is now broad
acceptance of Regulation FD compliant methods of disclosure, such as through the use of a Form
8-K. Additionally, Nasdaq argues that its requirements in some instances are duplicative of the
Form 8-K requirements, and notes that Form 8-K disclosures are readily available to investors
and the information contained in them is widely reported on by the news media. As such,
Nasdaq is proposing to modify certain of its rules, as described below, to permit disclosure either
through a press release or by filing a Form 8-K where required by Commission rules.
6
First, Nasdaq proposes to amend Rules 5250(b)(3), 5810(b), 5840(k) and IM-5810-1,
which require disclosure of notifications from Nasdaq staff or an Adjudicatory Body
7
regarding a
company's compliance with the listing standards. Rules 5250(b)(3) and 5810(b) require a
company to “make a public announcement through the news media”
8
disclosing the receipt of a
notice that the company does not meet a listing standard, that staff has determined to delist the
company, or that the company has received a Public Reprimand Letter. IM-5810-1 provides the
time frame for companies to make these disclosures and describes the consequences of failing to
do so. Rule 5840(k) requires that a company that receives a Public Reprimand Letter from an
5
See Securities Exchange Act Release No. 46901 (November 25, 2002), 67 FR 72011
(December 3, 2002).
6
The Commission notes that Nasdaq is not proposing any change to Rule 5840(j),
regarding the voluntary delisting of a company, because the press release requirement in
that rule is required by Exchange Act Rule 12d2-2(c); 17 CFR 240.12d2-2(c). Nasdaq is
also maintaining the requirements in Rule 5635(c)(4) and IM-5365-1, which require that
a company relying on the inducement exception to the requirement to obtain shareholder
approval for equity compensation awards must “disclose in a press release” specific
information about the equity award. Finally, as noted above, late filers will still be
required to issue a press release. See Rule 5250(b)(2) and Rule 5810(b).
7
Rule 5805(a) defines an “Adjudicatory Body” as the Hearings Panel, the Nasdaq Listing
and Hearing Review Council, or the Nasdaq Board, or a member thereof.
8
Nasdaq interprets the requirement to disclose information through the news media to be
satisfied by the issuance of a press release.
2
Adjudicatory Body must make “a public announcement through the news media” disclosing
receipt of that letter. Nasdaq proposes to modify these rules to allow the company, in each case,
to make a public announcement by “filing a Form 8-K, where required by SEC rules, or by
issuing a press release.”
9
However, Nasdaq proposes that a company that is late in filing a
required periodic report with the Commission would still be required to issue a press release
announcing that it has received notice that it does not meet that requirement, and would not be
permitted to fulfill this requirement by only filing a Form 8-K. Nasdaq also proposes to clarify
in each of these rules that notification of these disclosures should be made to the Nasdaq
MarketWatch Department through Nasdaq's electronic disclosure submission system at least ten
minutes prior to the notification to the public.
10
Second, Nasdaq proposes to modify Rule 5635(f), which requires a company to “make a
public announcement through the news media” when it receives an exception to the shareholder
approval requirements because compliance would jeopardize the company's financial viability.
Nasdaq proposes instead to allow companies to make this announcement “by filing a Form 8-K,
where required by SEC rules, or by issuing a press release.” Nasdaq is retaining its current
requirement that companies that receive an exemption are also required to mail this notice to all
9
The Commission notes that under Item 3.01 of Form 8-K, a company is required to file a
Form 8-K when it receives notice from Nasdaq that the company does not satisfy a listing
standard or when Nasdaq issues a Public Reprimand Letter to the company.
10
The Commission notes that Nasdaq recently changed its rules to provide that if the public
release of material information is made outside of Nasdaq market hours, companies must
notify MarketWatch of the material information prior to 6:50 a.m. ET. See Securities
Exchange Act Release No. 61521 (February 16, 2010), 75 FR 8156 (February 23, 2010).
The Exchange has represented that once this proposed rule change (SR-NASDAQ-2010-
006) is approved by the Commission, it will file a separate filing pursuant to Section
19(b) of the Act to make corresponding changes to the rule provisions adopted in this
filing to reflect the previously adopted changes.
3
shareholders at least ten days before issuing securities in reliance on the exception.
Third, Nasdaq proposes to revise Rule 5225(a)(3), which requires a company to
“publicize through, at a minimum, a public announcement through the news media” any change
in the terms of a listed unit. Nasdaq proposes to modify this rule to allow the company to “make
a public announcement by filing a Form 8-K, where required by SEC rules, or by issuing a press
release” of any change in the terms of the unit.
Nasdaq is also proposing to make a number of other modifications to its rules requiring
public disclosure through press releases. In particular, Nasdaq proposes to amend Rule
5250(c)(2), which requires a company that is a foreign private issuer to disclose interim financial
results “in a press release and on a Form 6-K.” Nasdaq proposes to eliminate the requirement
that this information be published in a press release, while maintaining the requirement that it be
on a Form 6-K. A foreign private issuer would still be free to disclose this information in a press
release if it chooses.
Nasdaq also proposes to eliminate the requirement contained in Rule 5250(b)(2) that a
company must issue a press release announcing the receipt of an audit opinion that expresses
doubt about the ability of the company to continue as a going concern. Nasdaq argues that this
requirement, which was adopted in 2003,
11
is duplicative of disclosure already provided in the
Company's annual filing with the Commission, which must be made available to all shareholders
under Nasdaq rules, and which must be distributed to shareholders under the Commission's
Proxy Rules. Nasdaq noted in its Notice, however, that if a company fails to include the audit
opinion in its annual filing, Nasdaq would consider the filing deficient and would move to delist
See Securities Exchange Act Release No. 48745 (November 4, 2003), 68 FR 64154
(November 12, 2003).
4
11
the company on that basis.
In addition, Nasdaq proposes to revise Rules 5810(b) and 5840(k), which require
companies to notify multiple Nasdaq departments before they issue certain disclosures.
12
Nasdaq proposes to modify these rules to require companies to provide these disclosures to the
MarketWatch Department using the electronic disclosure submission system accessible at
www.nasdaq.net.
13
Nasdaq noted that MarketWatch will notify other Nasdaq departments when
14
necessary.
III. Discussion
After careful review, the Commission finds that the proposed rule change is consistent
with the requirements of the Act and the rules and regulations thereunder applicable to a national
securities exchange and, in particular, with Section 6(b)(5) of the Act,
15
which requires, among
other things, that the rules of a national securities exchange be designed to prevent fraudulent
and manipulative acts and practices, to promote just and equitable principles of trade, to remove
impediments to, and perfect the mechanism of, a free and open market and a national market
system and, in general, to protect investors and the public interest.
16
12
Under these rules, a company must notify the MarketWatch, Listing Qualifications, and
Hearings Departments.
13
Companies are already required to use the electronic disclosure submission service to
notify MarketWatch prior to the distribution of material news. See Rule 5250(b)(1) and
IM-5250-1. See also Exchange Act Release No. 55856 (June 4, 2007), 72 FR 32383
(June 12, 2007).
14
Nasdaq also proposes to: (i) add a title to Rule 5250(b)(1) to clarify the text; and (ii) use
capitalization for a defined term in Rule 5615. The Commission notes that these are nonsubstantive changes.
15
15 U.S.C. 78f(b)(5).
16
In approving this proposed rule change, the Commission has considered the proposed
rule’s impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f).
5
The Commission notes that full and fair disclosure of information by issuers of securities
to the public is of critical importance to financial markets and the investing public. As such, the
Commission believes that exchange compliance standards requiring a company to disclose
information should be designed to provide broad public access to such information. As
discussed below, the Commission believes that Nasdaq’s proposal to modify certain of its rules
pertaining to its press release requirements for listed companies will eliminate duplicative
requirements from Nasdaq’s disclosure rules in certain situations where a company is already
required by Commission rules to file a Form 8-K, while still ensuring that issuers disseminate
material information to the public in a broad and inclusive manner.
In 2000, the Commission adopted Regulation FD to curtail the selective disclosure of
material non-public information by issuers to analysts and institutional investors.
17
Regulation
FD provides that public disclosure by issuers can be made by filing a Form 8-K with the
Commission or through another method (or combination of methods) of disclosure that is
reasonably designed to provide broad, non-exclusionary distribution of information to the
public.
18
The Commission is cognizant, in reviewing Nasdaq’s proposal, that in approving
Regulation FD, the Commission specifically noted that it was not intended to alter or supplement
self-regulatory organization rules that typically require companies to issue a press release to
announce material developments.
19
Despite this, the Commission believes that, in many
instances, the filing of a Form 8-K provides an effective, broad, and non-exclusionary means of
distributing material disclosures. The Commission notes that the information required to be
17
See Securities Exchange Act Release No. 43154 (August 15, 2000), 65 FR 51716
(August 24, 2000) (“Regulation FD Adopting Release”).
18
See Regulation FD, 17 CFR 243.100-103.
19
See Regulation FD Adopting Release, supra note 17 at n.70.
6
reported on a Form 8-K is material information that could impact an investor’s decision to buy,
sell or hold a security. For this reason, the Form 8-K is made easily obtainable by investors on
the Commission’s EDGAR Web site, as well as many major financial web sites, and the
information it provides is also commonly reported by the news media. The Commission also
believes that the public has become more familiar with the Form 8-K method of dissemination
since the original adoption of Regulation FD.
The Commission notes that since investors have broad access to the information provided
by the Form 8-K, in certain instances where a company is required to file a Form 8-K pursuant to
Commission rules as well as issue a press release under Nasdaq rules, the information provided
may overlap, resulting in duplicate disclosures of the same information. Although the
Commission would prefer to ensure that investors have as many channels as possible to receive
material disclosures, in these particular situations, the Commission recognizes that requiring both
a Form 8-K and a press release may be unnecessary and may place an additional burden on
issuers while providing no additional significant benefit to investors. The Commission notes,
however, that while it believes that it is appropriate to eliminate the requirement to make these
duplicate disclosures, in certain situations it continues to believe that there are benefits to the
market and investors to issuing a press release when disclosing material information that issuers
should consider.
20
Thus, a company would, of course, be permitted to issue a press release in
addition to their filing of a required Form 8-K.
The Commission also notes that, in those cases where a Form 8-K is not required to be
filed under Commission rules, under its proposal, Nasdaq rules will still require an issuer to
make public disclosures through a press release. We believe these requirements adequately
See Regulation FD Adopting Release, supra note 17.
7
20
balance the situation where investors, the public and the press have an expectation to find
information about a company in a Form 8-K, since the information is required to be filed with
the Commission in that format, with the need to provide adequate disclosure to the public
through a press release on other matters as required under Nasdaq rules.
21
For the
aforementioned reasons, the Commission believes that Nasdaq’s proposal to modify certain of its
rules to permit disclosure either through a press release or by filing a Form 8-K where required
by Commission rules is reasonable and consistent with the Act.
In particular, the Commission believes that Nasdaq’s proposed changes to Rules
5250(b)(3), 5810(b), 5840(k) and IM-5810-1 – requiring disclosure of notifications regarding a
company’s compliance with listing standards – to allow the company, in each case, to make a
public announcement by “filing a Form 8-K, where required by SEC rules, or by issuing a press
release,” are examples where the filing of a single Form 8-K is an appropriate alternative to
requiring both a Form 8-K and a press release. The Commission notes that Item 3.01 of Form
8-K would require a company to file a Form 8-K when it receives notice that the company does
not satisfy a listing standard or when Nasdaq issues a Public Reprimand Letter to the company.
The Commission believes that the Form 8-K, in these instances, addresses the Commission’s
material disclosure concerns for investors, as investors could easily obtain the information in the
Form 8-K and the information may likely result in media coverage. In addition, the Commission
notes that Nasdaq is not proposing that this change will be applicable to its late filer rules and
instead will continue to require that a company that is late in filing a required periodic report
The Commission would generally be concerned if, on matters not required under
Commission rules to be filed on Form 8-K, Nasdaq rules required such matters to be
disclosed in that format because such Form 8-K filings would become a requirement
through Nasdaq rules, even though the requirement had not been adopted by the
Commission.
8
21
with the Commission must issue a press release, even though they are also required to file a
Form 8-K, which is consistent with the Commission’s current treatment of late filers.
22
Similarly, the Commission believes that Nasdaq’s proposal to permit either the filing of a
Form 8-K where required by SEC rules or the issuance of a press release when a company
receives an exception to the shareholder approval requirements because compliance would
jeopardize the company’s financial viability is appropriate and consistent with the Act. The
Commission notes that, in addition to the Form 8-K or a press release, Nasdaq will continue to
require that notice be provided to shareholders by mail at least ten days before issuing securities
in reliance on this exception.
Finally, the Commission believes that Nasdaq’s proposal to allow the filing of a Form
8-K where required by Commission rules in lieu of issuing a press release where there is any
change in the terms of a unit is another instance where the duplicate disclosure is unnecessary
and an extra burden on listed companies. As such, the Commission believes that this proposed
rule change is appropriate and consistent with the Act.
As noted above, Nasdaq also proposes several other changes to its rules pertaining to its
press release requirements for listed companies. First, Nasdaq proposes to modify Rule
5250(c)(2) to require a company that is a foreign private issuer to disclose interim financial
results on a Form 6-K, instead of both a Form 6-K and a press release as required under current
Nasdaq rules. The Commission believes that this change also adequately addresses the
Commission’s investor protection concerns regarding broad availability of disclosure of material
information and is consistent with the Act. The Commission notes that pursuant to Regulation
FD, foreign companies are permitted to meet the requirements of Regulation FD by making
See NYSE Rule 802.01E.
9
22
filings on Form 6-K, rather than on a Form 8-K. Like the Form 8-K, the Form 6-K provides
material disclosures and, similarly, is widely available and utilized by investors, as it is also
accessible on the Commission’s EDGAR Web site and its contents may be widely reported in the
news media. While foreign companies will now be required to only file a Form 6-K to meet
Nasdaq’s disclosure requirement for interim reports, Nasdaq notes in its filing that foreign
issuers would still be free to disclose this information in a press release, in addition to the filing
of a Form 6-K, if it chooses.
In addition, Nasdaq proposes to eliminate the requirement from Rule 5250(b)(2), that a
company must issue a press release announcing the receipt of an audit opinion expressing doubt
about the ability of the company to continue as a going concern. The Commission notes that the
audit opinion is required to be provided in a company’s annual filing with the Commission,
which must also be distributed to shareholders under the Commission’s Proxy Rules,
23
and must
be made available to all shareholders under the Nasdaq rules. Although the Commission
understands that a negative audit opinion constitutes important material information that could
impact an investor’s decision to buy, sell or hold a security, the Commission, after careful
consideration, also believes that publication of this opinion in the annual filing, which the
Commission already requires to be distributed to all shareholders, should provide broad notice to
investors. Additionally, if a company fails to include the audit opinion in its annual filing, the
Commission notes that Nasdaq would consider the filing deficient and would move to delist the
company on that basis, recognizing the importance of the audit opinion disclosure to investors.
24
23
17 CFR 240.14a-1. See Item 13 of Schedule 14A, 17 CFR 240.14a-101.
24
Nasdaq is also proposing to make a conforming change to Rule 5615(a)(3) to eliminate
the reference to the going concern requirement because it will no longer apply. In
addition, Nasdaq is proposing to remove the reference in Rule 5615(a)(3) to the
10
Accordingly, the Commission believes that this change will eliminate unnecessary duplicate
disclosures, while continuing to provide investors with sufficient notice of such material
information.
Finally, Nasdaq proposes to eliminate the requirements in Rule 5810(b) and 5840(k)
that companies must notify multiple Nasdaq departments before issuing certain disclosures. The
Commission is satisfied that Nasdaq’s proposed changes will continue to provide for adequate
notification to the MarketWatch Department, as well as other departments,
25
since Nasdaq has
represented that the MarketWatch Department will notify other Nasdaq departments of the
disclosures when necessary.
26
As such, the Commission believes that Nasdaq’s notification
procedures will be streamlined, eliminating unnecessary duplicative notification requirements for
listed companies, while still ensuring that the necessary departments will be notified by the
MarketWatch Department if necessary for regulatory or other reasons.
For the reasons noted above, the Commission believes that the proposed rule change is
consistent with Section 6(b)(5) of the Act,
27
and will, among other things, protect investors and
the public interest by assuring that the investing public has broad and easy access to full
disclosure of corporate matters. As discussed above, the Commission believes that the changes
proposed by Nasdaq will continue to require issuers to disseminate necessary information to the
requirement for a foreign private issuer to enter into a listing agreement because there is
no need to single out this requirement from all the others of the requirements of the Rule
5000 Series to which a foreign private issuer is subject.
25
Companies are already required to use the electronic disclosure submission service to
notify MarketWatch prior to the distribution of material news. See Rule 5250(b)(1) and
IM-5250-1. See also Securities Exchange Act Release No. 55856 (June 4, 2007), 72 FR
32383 (June 12, 2007) (approving SR–NASDAQ–2007–029).
26
Nasdaq is also proposing: (i) to add a title to Rule 5250(b)(1) to clarify the text; and (ii)
to use capitalization for a defined term in Rule 5615. These are non-substantive changes.
27
15 U.S.C. 78f(b)(5).
11
public in a broad and inclusive manner, while at the same time minimizing duplicative
disclosures.
IV. Conclusion
IT IS THEREFORE ORDERED, pursuant to Section 19(b)(2) of the Act,
28
that the
proposed rule change (SR-NASDAQ-2010-006) be, and it hereby is, approved.
For the Commission, by the Division of Trading and Markets, pursuant to delegated
authority.
29
Florence E. Harmon
Deputy Secretary
28
15 U.S.C. 78s(b)(2).
29
17 CFR 200.30-3(a)(12).
In my opinion it is intellectually dishonest to even hint that this is a scam.
Government web pages confirm the real estate transactions.
Independent emails confirm the BNOC deals.
Independent suppliers confirmed a huge amount of equipment was ordered......
There is ample tangible evidence that AMHD is doing exactly what it says it is doing, period.
Right. Another vendor, like Fitzsimmons, that screwed AMHD.
How do you figure? There has been no court rulings. I check PACER all the time.
How do you figure?
How do you figure? AMHD gave Fitzsimmons Systems $312,500 and got absolutely NOTHING in return. Not even parts nor partially completed parts.
Fitzsimmons claims the parts were "stolen" and his business carried no insurance. I am unable to find a police report substantiating those claims.
According to SEC guidelines the PR's are valid.
According to the SEC, a PR is just as good as an 8K. That is in the SEC website.
http://www.sec.gov/rules/sro/nasdaq/2010/34-61713.pdf
SECURITIES AND EXCHANGE COMMISSION
(Release No. 34-61713; File No. SR-NASDAQ-2010-006)
March 15, 2010
Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Order Granting Approval of
Proposed Rule Change to Modify the Press Release Requirements for Listed Companies
I. Introduction
On January 13, 2010, The NASDAQ Stock Market LLC (“Nasdaq” or the “Exchange”)
filed with the Securities and Exchange Commission (“Commission”), pursuant to Section
19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
1
and Rule 19b-4 thereunder,
2
a
proposed rule change to modify certain of Nasdaq’s rules pertaining to its press release
requirements for listed companies. The proposed rule change was published for comment in the
Federal Register on February 8, 2010.
3
The Commission received no comments on the proposed
rule change. This order approves the proposed rule change.
II. Description of Proposed Rule Change
Nasdaq is proposing to modify certain of its rules related to the issuer compliance process
that currently require a company to disclose information in a press release or through the news
media. Nasdaq notes that these rules were generally adopted to address inconsistent issuer
disclosure practices and reflected the view that issuing a press release was the only way to assure
wide dissemination of an important event. However, in 2002, the Commission adopted
Regulation FD,
4
and Nasdaq amended its rules to allow listed companies to provide disclosure of
1
15 U.S.C. 78s(b)(1)
2
17 CFR 240.19b-4.
3
See Securities Exchange Act Release No. 61461 (February 1, 2010), 75 FR 6241
(“Notice”).
4
17 CFR 243.100-103.
material news via any Regulation FD compliant means.
5
Nasdaq asserts that there is now broad
acceptance of Regulation FD compliant methods of disclosure, such as through the use of a Form
8-K. Additionally, Nasdaq argues that its requirements in some instances are duplicative of the
Form 8-K requirements, and notes that Form 8-K disclosures are readily available to investors
and the information contained in them is widely reported on by the news media. As such,
Nasdaq is proposing to modify certain of its rules, as described below, to permit disclosure either
through a press release or by filing a Form 8-K where required by Commission rules.
6
First, Nasdaq proposes to amend Rules 5250(b)(3), 5810(b), 5840(k) and IM-5810-1,
which require disclosure of notifications from Nasdaq staff or an Adjudicatory Body
7
regarding a
company's compliance with the listing standards. Rules 5250(b)(3) and 5810(b) require a
company to “make a public announcement through the news media”
8
disclosing the receipt of a
notice that the company does not meet a listing standard, that staff has determined to delist the
company, or that the company has received a Public Reprimand Letter. IM-5810-1 provides the
time frame for companies to make these disclosures and describes the consequences of failing to
do so. Rule 5840(k) requires that a company that receives a Public Reprimand Letter from an
5
See Securities Exchange Act Release No. 46901 (November 25, 2002), 67 FR 72011
(December 3, 2002).
6
The Commission notes that Nasdaq is not proposing any change to Rule 5840(j),
regarding the voluntary delisting of a company, because the press release requirement in
that rule is required by Exchange Act Rule 12d2-2(c); 17 CFR 240.12d2-2(c). Nasdaq is
also maintaining the requirements in Rule 5635(c)(4) and IM-5365-1, which require that
a company relying on the inducement exception to the requirement to obtain shareholder
approval for equity compensation awards must “disclose in a press release” specific
information about the equity award. Finally, as noted above, late filers will still be
required to issue a press release. See Rule 5250(b)(2) and Rule 5810(b).
7
Rule 5805(a) defines an “Adjudicatory Body” as the Hearings Panel, the Nasdaq Listing
and Hearing Review Council, or the Nasdaq Board, or a member thereof.
8
Nasdaq interprets the requirement to disclose information through the news media to be
satisfied by the issuance of a press release.
2
Adjudicatory Body must make “a public announcement through the news media” disclosing
receipt of that letter. Nasdaq proposes to modify these rules to allow the company, in each case,
to make a public announcement by “filing a Form 8-K, where required by SEC rules, or by
issuing a press release.”
9
However, Nasdaq proposes that a company that is late in filing a
required periodic report with the Commission would still be required to issue a press release
announcing that it has received notice that it does not meet that requirement, and would not be
permitted to fulfill this requirement by only filing a Form 8-K. Nasdaq also proposes to clarify
in each of these rules that notification of these disclosures should be made to the Nasdaq
MarketWatch Department through Nasdaq's electronic disclosure submission system at least ten
minutes prior to the notification to the public.
10
Second, Nasdaq proposes to modify Rule 5635(f), which requires a company to “make a
public announcement through the news media” when it receives an exception to the shareholder
approval requirements because compliance would jeopardize the company's financial viability.
Nasdaq proposes instead to allow companies to make this announcement “by filing a Form 8-K,
where required by SEC rules, or by issuing a press release.” Nasdaq is retaining its current
requirement that companies that receive an exemption are also required to mail this notice to all
9
The Commission notes that under Item 3.01 of Form 8-K, a company is required to file a
Form 8-K when it receives notice from Nasdaq that the company does not satisfy a listing
standard or when Nasdaq issues a Public Reprimand Letter to the company.
10
The Commission notes that Nasdaq recently changed its rules to provide that if the public
release of material information is made outside of Nasdaq market hours, companies must
notify MarketWatch of the material information prior to 6:50 a.m. ET. See Securities
Exchange Act Release No. 61521 (February 16, 2010), 75 FR 8156 (February 23, 2010).
The Exchange has represented that once this proposed rule change (SR-NASDAQ-2010-
006) is approved by the Commission, it will file a separate filing pursuant to Section
19(b) of the Act to make corresponding changes to the rule provisions adopted in this
filing to reflect the previously adopted changes.
3
shareholders at least ten days before issuing securities in reliance on the exception.
Third, Nasdaq proposes to revise Rule 5225(a)(3), which requires a company to
“publicize through, at a minimum, a public announcement through the news media” any change
in the terms of a listed unit. Nasdaq proposes to modify this rule to allow the company to “make
a public announcement by filing a Form 8-K, where required by SEC rules, or by issuing a press
release” of any change in the terms of the unit.
Nasdaq is also proposing to make a number of other modifications to its rules requiring
public disclosure through press releases. In particular, Nasdaq proposes to amend Rule
5250(c)(2), which requires a company that is a foreign private issuer to disclose interim financial
results “in a press release and on a Form 6-K.” Nasdaq proposes to eliminate the requirement
that this information be published in a press release, while maintaining the requirement that it be
on a Form 6-K. A foreign private issuer would still be free to disclose this information in a press
release if it chooses.
Nasdaq also proposes to eliminate the requirement contained in Rule 5250(b)(2) that a
company must issue a press release announcing the receipt of an audit opinion that expresses
doubt about the ability of the company to continue as a going concern. Nasdaq argues that this
requirement, which was adopted in 2003,
11
is duplicative of disclosure already provided in the
Company's annual filing with the Commission, which must be made available to all shareholders
under Nasdaq rules, and which must be distributed to shareholders under the Commission's
Proxy Rules. Nasdaq noted in its Notice, however, that if a company fails to include the audit
opinion in its annual filing, Nasdaq would consider the filing deficient and would move to delist
See Securities Exchange Act Release No. 48745 (November 4, 2003), 68 FR 64154
(November 12, 2003).
4
11
the company on that basis.
In addition, Nasdaq proposes to revise Rules 5810(b) and 5840(k), which require
companies to notify multiple Nasdaq departments before they issue certain disclosures.
12
Nasdaq proposes to modify these rules to require companies to provide these disclosures to the
MarketWatch Department using the electronic disclosure submission system accessible at
www.nasdaq.net.
13
Nasdaq noted that MarketWatch will notify other Nasdaq departments when
14
necessary.
III. Discussion
After careful review, the Commission finds that the proposed rule change is consistent
with the requirements of the Act and the rules and regulations thereunder applicable to a national
securities exchange and, in particular, with Section 6(b)(5) of the Act,
15
which requires, among
other things, that the rules of a national securities exchange be designed to prevent fraudulent
and manipulative acts and practices, to promote just and equitable principles of trade, to remove
impediments to, and perfect the mechanism of, a free and open market and a national market
system and, in general, to protect investors and the public interest.
16
12
Under these rules, a company must notify the MarketWatch, Listing Qualifications, and
Hearings Departments.
13
Companies are already required to use the electronic disclosure submission service to
notify MarketWatch prior to the distribution of material news. See Rule 5250(b)(1) and
IM-5250-1. See also Exchange Act Release No. 55856 (June 4, 2007), 72 FR 32383
(June 12, 2007).
14
Nasdaq also proposes to: (i) add a title to Rule 5250(b)(1) to clarify the text; and (ii) use
capitalization for a defined term in Rule 5615. The Commission notes that these are nonsubstantive changes.
15
15 U.S.C. 78f(b)(5).
16
In approving this proposed rule change, the Commission has considered the proposed
rule’s impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f).
5
The Commission notes that full and fair disclosure of information by issuers of securities
to the public is of critical importance to financial markets and the investing public. As such, the
Commission believes that exchange compliance standards requiring a company to disclose
information should be designed to provide broad public access to such information. As
discussed below, the Commission believes that Nasdaq’s proposal to modify certain of its rules
pertaining to its press release requirements for listed companies will eliminate duplicative
requirements from Nasdaq’s disclosure rules in certain situations where a company is already
required by Commission rules to file a Form 8-K, while still ensuring that issuers disseminate
material information to the public in a broad and inclusive manner.
In 2000, the Commission adopted Regulation FD to curtail the selective disclosure of
material non-public information by issuers to analysts and institutional investors.
17
Regulation
FD provides that public disclosure by issuers can be made by filing a Form 8-K with the
Commission or through another method (or combination of methods) of disclosure that is
reasonably designed to provide broad, non-exclusionary distribution of information to the
public.
18
The Commission is cognizant, in reviewing Nasdaq’s proposal, that in approving
Regulation FD, the Commission specifically noted that it was not intended to alter or supplement
self-regulatory organization rules that typically require companies to issue a press release to
announce material developments.
19
Despite this, the Commission believes that, in many
instances, the filing of a Form 8-K provides an effective, broad, and non-exclusionary means of
distributing material disclosures. The Commission notes that the information required to be
17
See Securities Exchange Act Release No. 43154 (August 15, 2000), 65 FR 51716
(August 24, 2000) (“Regulation FD Adopting Release”).
18
See Regulation FD, 17 CFR 243.100-103.
19
See Regulation FD Adopting Release, supra note 17 at n.70.
6
reported on a Form 8-K is material information that could impact an investor’s decision to buy,
sell or hold a security. For this reason, the Form 8-K is made easily obtainable by investors on
the Commission’s EDGAR Web site, as well as many major financial web sites, and the
information it provides is also commonly reported by the news media. The Commission also
believes that the public has become more familiar with the Form 8-K method of dissemination
since the original adoption of Regulation FD.
The Commission notes that since investors have broad access to the information provided
by the Form 8-K, in certain instances where a company is required to file a Form 8-K pursuant to
Commission rules as well as issue a press release under Nasdaq rules, the information provided
may overlap, resulting in duplicate disclosures of the same information. Although the
Commission would prefer to ensure that investors have as many channels as possible to receive
material disclosures, in these particular situations, the Commission recognizes that requiring both
a Form 8-K and a press release may be unnecessary and may place an additional burden on
issuers while providing no additional significant benefit to investors. The Commission notes,
however, that while it believes that it is appropriate to eliminate the requirement to make these
duplicate disclosures, in certain situations it continues to believe that there are benefits to the
market and investors to issuing a press release when disclosing material information that issuers
should consider.
20
Thus, a company would, of course, be permitted to issue a press release in
addition to their filing of a required Form 8-K.
The Commission also notes that, in those cases where a Form 8-K is not required to be
filed under Commission rules, under its proposal, Nasdaq rules will still require an issuer to
make public disclosures through a press release. We believe these requirements adequately
See Regulation FD Adopting Release, supra note 17.
7
20
balance the situation where investors, the public and the press have an expectation to find
information about a company in a Form 8-K, since the information is required to be filed with
the Commission in that format, with the need to provide adequate disclosure to the public
through a press release on other matters as required under Nasdaq rules.
21
For the
aforementioned reasons, the Commission believes that Nasdaq’s proposal to modify certain of its
rules to permit disclosure either through a press release or by filing a Form 8-K where required
by Commission rules is reasonable and consistent with the Act.
In particular, the Commission believes that Nasdaq’s proposed changes to Rules
5250(b)(3), 5810(b), 5840(k) and IM-5810-1 – requiring disclosure of notifications regarding a
company’s compliance with listing standards – to allow the company, in each case, to make a
public announcement by “filing a Form 8-K, where required by SEC rules, or by issuing a press
release,” are examples where the filing of a single Form 8-K is an appropriate alternative to
requiring both a Form 8-K and a press release. The Commission notes that Item 3.01 of Form
8-K would require a company to file a Form 8-K when it receives notice that the company does
not satisfy a listing standard or when Nasdaq issues a Public Reprimand Letter to the company.
The Commission believes that the Form 8-K, in these instances, addresses the Commission’s
material disclosure concerns for investors, as investors could easily obtain the information in the
Form 8-K and the information may likely result in media coverage. In addition, the Commission
notes that Nasdaq is not proposing that this change will be applicable to its late filer rules and
instead will continue to require that a company that is late in filing a required periodic report
The Commission would generally be concerned if, on matters not required under
Commission rules to be filed on Form 8-K, Nasdaq rules required such matters to be
disclosed in that format because such Form 8-K filings would become a requirement
through Nasdaq rules, even though the requirement had not been adopted by the
Commission.
8
21
with the Commission must issue a press release, even though they are also required to file a
Form 8-K, which is consistent with the Commission’s current treatment of late filers.
22
Similarly, the Commission believes that Nasdaq’s proposal to permit either the filing of a
Form 8-K where required by SEC rules or the issuance of a press release when a company
receives an exception to the shareholder approval requirements because compliance would
jeopardize the company’s financial viability is appropriate and consistent with the Act. The
Commission notes that, in addition to the Form 8-K or a press release, Nasdaq will continue to
require that notice be provided to shareholders by mail at least ten days before issuing securities
in reliance on this exception.
Finally, the Commission believes that Nasdaq’s proposal to allow the filing of a Form
8-K where required by Commission rules in lieu of issuing a press release where there is any
change in the terms of a unit is another instance where the duplicate disclosure is unnecessary
and an extra burden on listed companies. As such, the Commission believes that this proposed
rule change is appropriate and consistent with the Act.
As noted above, Nasdaq also proposes several other changes to its rules pertaining to its
press release requirements for listed companies. First, Nasdaq proposes to modify Rule
5250(c)(2) to require a company that is a foreign private issuer to disclose interim financial
results on a Form 6-K, instead of both a Form 6-K and a press release as required under current
Nasdaq rules. The Commission believes that this change also adequately addresses the
Commission’s investor protection concerns regarding broad availability of disclosure of material
information and is consistent with the Act. The Commission notes that pursuant to Regulation
FD, foreign companies are permitted to meet the requirements of Regulation FD by making
See NYSE Rule 802.01E.
9
22
filings on Form 6-K, rather than on a Form 8-K. Like the Form 8-K, the Form 6-K provides
material disclosures and, similarly, is widely available and utilized by investors, as it is also
accessible on the Commission’s EDGAR Web site and its contents may be widely reported in the
news media. While foreign companies will now be required to only file a Form 6-K to meet
Nasdaq’s disclosure requirement for interim reports, Nasdaq notes in its filing that foreign
issuers would still be free to disclose this information in a press release, in addition to the filing
of a Form 6-K, if it chooses.
In addition, Nasdaq proposes to eliminate the requirement from Rule 5250(b)(2), that a
company must issue a press release announcing the receipt of an audit opinion expressing doubt
about the ability of the company to continue as a going concern. The Commission notes that the
audit opinion is required to be provided in a company’s annual filing with the Commission,
which must also be distributed to shareholders under the Commission’s Proxy Rules,
23
and must
be made available to all shareholders under the Nasdaq rules. Although the Commission
understands that a negative audit opinion constitutes important material information that could
impact an investor’s decision to buy, sell or hold a security, the Commission, after careful
consideration, also believes that publication of this opinion in the annual filing, which the
Commission already requires to be distributed to all shareholders, should provide broad notice to
investors. Additionally, if a company fails to include the audit opinion in its annual filing, the
Commission notes that Nasdaq would consider the filing deficient and would move to delist the
company on that basis, recognizing the importance of the audit opinion disclosure to investors.
24
23
17 CFR 240.14a-1. See Item 13 of Schedule 14A, 17 CFR 240.14a-101.
24
Nasdaq is also proposing to make a conforming change to Rule 5615(a)(3) to eliminate
the reference to the going concern requirement because it will no longer apply. In
addition, Nasdaq is proposing to remove the reference in Rule 5615(a)(3) to the
10
Accordingly, the Commission believes that this change will eliminate unnecessary duplicate
disclosures, while continuing to provide investors with sufficient notice of such material
information.
Finally, Nasdaq proposes to eliminate the requirements in Rule 5810(b) and 5840(k)
that companies must notify multiple Nasdaq departments before issuing certain disclosures. The
Commission is satisfied that Nasdaq’s proposed changes will continue to provide for adequate
notification to the MarketWatch Department, as well as other departments,
25
since Nasdaq has
represented that the MarketWatch Department will notify other Nasdaq departments of the
disclosures when necessary.
26
As such, the Commission believes that Nasdaq’s notification
procedures will be streamlined, eliminating unnecessary duplicative notification requirements for
listed companies, while still ensuring that the necessary departments will be notified by the
MarketWatch Department if necessary for regulatory or other reasons.
For the reasons noted above, the Commission believes that the proposed rule change is
consistent with Section 6(b)(5) of the Act,
27
and will, among other things, protect investors and
the public interest by assuring that the investing public has broad and easy access to full
disclosure of corporate matters. As discussed above, the Commission believes that the changes
proposed by Nasdaq will continue to require issuers to disseminate necessary information to the
requirement for a foreign private issuer to enter into a listing agreement because there is
no need to single out this requirement from all the others of the requirements of the Rule
5000 Series to which a foreign private issuer is subject.
25
Companies are already required to use the electronic disclosure submission service to
notify MarketWatch prior to the distribution of material news. See Rule 5250(b)(1) and
IM-5250-1. See also Securities Exchange Act Release No. 55856 (June 4, 2007), 72 FR
32383 (June 12, 2007) (approving SR–NASDAQ–2007–029).
26
Nasdaq is also proposing: (i) to add a title to Rule 5250(b)(1) to clarify the text; and (ii)
to use capitalization for a defined term in Rule 5615. These are non-substantive changes.
27
15 U.S.C. 78f(b)(5).
11
public in a broad and inclusive manner, while at the same time minimizing duplicative
disclosures.
IV. Conclusion
IT IS THEREFORE ORDERED, pursuant to Section 19(b)(2) of the Act,
28
that the
proposed rule change (SR-NASDAQ-2010-006) be, and it hereby is, approved.
For the Commission, by the Division of Trading and Markets, pursuant to delegated
authority.
29
Florence E. Harmon
Deputy Secretary
28
15 U.S.C. 78s(b)(2).
29
17 CFR 200.30-3(a)(12).
Here is the link:
http://www.sec.gov/rules/sro/nasdaq/2010/34-61713.pdf
SECURITIES AND EXCHANGE COMMISSION
(Release No. 34-61713; File No. SR-NASDAQ-2010-006)
March 15, 2010
Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Order Granting Approval of
Proposed Rule Change to Modify the Press Release Requirements for Listed Companies
I. Introduction
On January 13, 2010, The NASDAQ Stock Market LLC (“Nasdaq” or the “Exchange”)
filed with the Securities and Exchange Commission (“Commission”), pursuant to Section
19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
1
and Rule 19b-4 thereunder,
2
a
proposed rule change to modify certain of Nasdaq’s rules pertaining to its press release
requirements for listed companies. The proposed rule change was published for comment in the
Federal Register on February 8, 2010.
3
The Commission received no comments on the proposed
rule change. This order approves the proposed rule change.
II. Description of Proposed Rule Change
Nasdaq is proposing to modify certain of its rules related to the issuer compliance process
that currently require a company to disclose information in a press release or through the news
media. Nasdaq notes that these rules were generally adopted to address inconsistent issuer
disclosure practices and reflected the view that issuing a press release was the only way to assure
wide dissemination of an important event. However, in 2002, the Commission adopted
Regulation FD,
4
and Nasdaq amended its rules to allow listed companies to provide disclosure of
1
15 U.S.C. 78s(b)(1)
2
17 CFR 240.19b-4.
3
See Securities Exchange Act Release No. 61461 (February 1, 2010), 75 FR 6241
(“Notice”).
4
17 CFR 243.100-103.
material news via any Regulation FD compliant means.
5
Nasdaq asserts that there is now broad
acceptance of Regulation FD compliant methods of disclosure, such as through the use of a Form
8-K. Additionally, Nasdaq argues that its requirements in some instances are duplicative of the
Form 8-K requirements, and notes that Form 8-K disclosures are readily available to investors
and the information contained in them is widely reported on by the news media. As such,
Nasdaq is proposing to modify certain of its rules, as described below, to permit disclosure either
through a press release or by filing a Form 8-K where required by Commission rules.
6
First, Nasdaq proposes to amend Rules 5250(b)(3), 5810(b), 5840(k) and IM-5810-1,
which require disclosure of notifications from Nasdaq staff or an Adjudicatory Body
7
regarding a
company's compliance with the listing standards. Rules 5250(b)(3) and 5810(b) require a
company to “make a public announcement through the news media”
8
disclosing the receipt of a
notice that the company does not meet a listing standard, that staff has determined to delist the
company, or that the company has received a Public Reprimand Letter. IM-5810-1 provides the
time frame for companies to make these disclosures and describes the consequences of failing to
do so. Rule 5840(k) requires that a company that receives a Public Reprimand Letter from an
5
See Securities Exchange Act Release No. 46901 (November 25, 2002), 67 FR 72011
(December 3, 2002).
6
The Commission notes that Nasdaq is not proposing any change to Rule 5840(j),
regarding the voluntary delisting of a company, because the press release requirement in
that rule is required by Exchange Act Rule 12d2-2(c); 17 CFR 240.12d2-2(c). Nasdaq is
also maintaining the requirements in Rule 5635(c)(4) and IM-5365-1, which require that
a company relying on the inducement exception to the requirement to obtain shareholder
approval for equity compensation awards must “disclose in a press release” specific
information about the equity award. Finally, as noted above, late filers will still be
required to issue a press release. See Rule 5250(b)(2) and Rule 5810(b).
7
Rule 5805(a) defines an “Adjudicatory Body” as the Hearings Panel, the Nasdaq Listing
and Hearing Review Council, or the Nasdaq Board, or a member thereof.
8
Nasdaq interprets the requirement to disclose information through the news media to be
satisfied by the issuance of a press release.
2
Adjudicatory Body must make “a public announcement through the news media” disclosing
receipt of that letter. Nasdaq proposes to modify these rules to allow the company, in each case,
to make a public announcement by “filing a Form 8-K, where required by SEC rules, or by
issuing a press release.”
9
However, Nasdaq proposes that a company that is late in filing a
required periodic report with the Commission would still be required to issue a press release
announcing that it has received notice that it does not meet that requirement, and would not be
permitted to fulfill this requirement by only filing a Form 8-K. Nasdaq also proposes to clarify
in each of these rules that notification of these disclosures should be made to the Nasdaq
MarketWatch Department through Nasdaq's electronic disclosure submission system at least ten
minutes prior to the notification to the public.
10
Second, Nasdaq proposes to modify Rule 5635(f), which requires a company to “make a
public announcement through the news media” when it receives an exception to the shareholder
approval requirements because compliance would jeopardize the company's financial viability.
Nasdaq proposes instead to allow companies to make this announcement “by filing a Form 8-K,
where required by SEC rules, or by issuing a press release.” Nasdaq is retaining its current
requirement that companies that receive an exemption are also required to mail this notice to all
9
The Commission notes that under Item 3.01 of Form 8-K, a company is required to file a
Form 8-K when it receives notice from Nasdaq that the company does not satisfy a listing
standard or when Nasdaq issues a Public Reprimand Letter to the company.
10
The Commission notes that Nasdaq recently changed its rules to provide that if the public
release of material information is made outside of Nasdaq market hours, companies must
notify MarketWatch of the material information prior to 6:50 a.m. ET. See Securities
Exchange Act Release No. 61521 (February 16, 2010), 75 FR 8156 (February 23, 2010).
The Exchange has represented that once this proposed rule change (SR-NASDAQ-2010-
006) is approved by the Commission, it will file a separate filing pursuant to Section
19(b) of the Act to make corresponding changes to the rule provisions adopted in this
filing to reflect the previously adopted changes.
3
shareholders at least ten days before issuing securities in reliance on the exception.
Third, Nasdaq proposes to revise Rule 5225(a)(3), which requires a company to
“publicize through, at a minimum, a public announcement through the news media” any change
in the terms of a listed unit. Nasdaq proposes to modify this rule to allow the company to “make
a public announcement by filing a Form 8-K, where required by SEC rules, or by issuing a press
release” of any change in the terms of the unit.
Nasdaq is also proposing to make a number of other modifications to its rules requiring
public disclosure through press releases. In particular, Nasdaq proposes to amend Rule
5250(c)(2), which requires a company that is a foreign private issuer to disclose interim financial
results “in a press release and on a Form 6-K.” Nasdaq proposes to eliminate the requirement
that this information be published in a press release, while maintaining the requirement that it be
on a Form 6-K. A foreign private issuer would still be free to disclose this information in a press
release if it chooses.
Nasdaq also proposes to eliminate the requirement contained in Rule 5250(b)(2) that a
company must issue a press release announcing the receipt of an audit opinion that expresses
doubt about the ability of the company to continue as a going concern. Nasdaq argues that this
requirement, which was adopted in 2003,
11
is duplicative of disclosure already provided in the
Company's annual filing with the Commission, which must be made available to all shareholders
under Nasdaq rules, and which must be distributed to shareholders under the Commission's
Proxy Rules. Nasdaq noted in its Notice, however, that if a company fails to include the audit
opinion in its annual filing, Nasdaq would consider the filing deficient and would move to delist
See Securities Exchange Act Release No. 48745 (November 4, 2003), 68 FR 64154
(November 12, 2003).
4
11
the company on that basis.
In addition, Nasdaq proposes to revise Rules 5810(b) and 5840(k), which require
companies to notify multiple Nasdaq departments before they issue certain disclosures.
12
Nasdaq proposes to modify these rules to require companies to provide these disclosures to the
MarketWatch Department using the electronic disclosure submission system accessible at
www.nasdaq.net.
13
Nasdaq noted that MarketWatch will notify other Nasdaq departments when
14
necessary.
III. Discussion
After careful review, the Commission finds that the proposed rule change is consistent
with the requirements of the Act and the rules and regulations thereunder applicable to a national
securities exchange and, in particular, with Section 6(b)(5) of the Act,
15
which requires, among
other things, that the rules of a national securities exchange be designed to prevent fraudulent
and manipulative acts and practices, to promote just and equitable principles of trade, to remove
impediments to, and perfect the mechanism of, a free and open market and a national market
system and, in general, to protect investors and the public interest.
16
12
Under these rules, a company must notify the MarketWatch, Listing Qualifications, and
Hearings Departments.
13
Companies are already required to use the electronic disclosure submission service to
notify MarketWatch prior to the distribution of material news. See Rule 5250(b)(1) and
IM-5250-1. See also Exchange Act Release No. 55856 (June 4, 2007), 72 FR 32383
(June 12, 2007).
14
Nasdaq also proposes to: (i) add a title to Rule 5250(b)(1) to clarify the text; and (ii) use
capitalization for a defined term in Rule 5615. The Commission notes that these are nonsubstantive changes.
15
15 U.S.C. 78f(b)(5).
16
In approving this proposed rule change, the Commission has considered the proposed
rule’s impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f).
5
The Commission notes that full and fair disclosure of information by issuers of securities
to the public is of critical importance to financial markets and the investing public. As such, the
Commission believes that exchange compliance standards requiring a company to disclose
information should be designed to provide broad public access to such information. As
discussed below, the Commission believes that Nasdaq’s proposal to modify certain of its rules
pertaining to its press release requirements for listed companies will eliminate duplicative
requirements from Nasdaq’s disclosure rules in certain situations where a company is already
required by Commission rules to file a Form 8-K, while still ensuring that issuers disseminate
material information to the public in a broad and inclusive manner.
In 2000, the Commission adopted Regulation FD to curtail the selective disclosure of
material non-public information by issuers to analysts and institutional investors.
17
Regulation
FD provides that public disclosure by issuers can be made by filing a Form 8-K with the
Commission or through another method (or combination of methods) of disclosure that is
reasonably designed to provide broad, non-exclusionary distribution of information to the
public.
18
The Commission is cognizant, in reviewing Nasdaq’s proposal, that in approving
Regulation FD, the Commission specifically noted that it was not intended to alter or supplement
self-regulatory organization rules that typically require companies to issue a press release to
announce material developments.
19
Despite this, the Commission believes that, in many
instances, the filing of a Form 8-K provides an effective, broad, and non-exclusionary means of
distributing material disclosures. The Commission notes that the information required to be
17
See Securities Exchange Act Release No. 43154 (August 15, 2000), 65 FR 51716
(August 24, 2000) (“Regulation FD Adopting Release”).
18
See Regulation FD, 17 CFR 243.100-103.
19
See Regulation FD Adopting Release, supra note 17 at n.70.
6
reported on a Form 8-K is material information that could impact an investor’s decision to buy,
sell or hold a security. For this reason, the Form 8-K is made easily obtainable by investors on
the Commission’s EDGAR Web site, as well as many major financial web sites, and the
information it provides is also commonly reported by the news media. The Commission also
believes that the public has become more familiar with the Form 8-K method of dissemination
since the original adoption of Regulation FD.
The Commission notes that since investors have broad access to the information provided
by the Form 8-K, in certain instances where a company is required to file a Form 8-K pursuant to
Commission rules as well as issue a press release under Nasdaq rules, the information provided
may overlap, resulting in duplicate disclosures of the same information. Although the
Commission would prefer to ensure that investors have as many channels as possible to receive
material disclosures, in these particular situations, the Commission recognizes that requiring both
a Form 8-K and a press release may be unnecessary and may place an additional burden on
issuers while providing no additional significant benefit to investors. The Commission notes,
however, that while it believes that it is appropriate to eliminate the requirement to make these
duplicate disclosures, in certain situations it continues to believe that there are benefits to the
market and investors to issuing a press release when disclosing material information that issuers
should consider.
20
Thus, a company would, of course, be permitted to issue a press release in
addition to their filing of a required Form 8-K.
The Commission also notes that, in those cases where a Form 8-K is not required to be
filed under Commission rules, under its proposal, Nasdaq rules will still require an issuer to
make public disclosures through a press release. We believe these requirements adequately
See Regulation FD Adopting Release, supra note 17.
7
20
balance the situation where investors, the public and the press have an expectation to find
information about a company in a Form 8-K, since the information is required to be filed with
the Commission in that format, with the need to provide adequate disclosure to the public
through a press release on other matters as required under Nasdaq rules.
21
For the
aforementioned reasons, the Commission believes that Nasdaq’s proposal to modify certain of its
rules to permit disclosure either through a press release or by filing a Form 8-K where required
by Commission rules is reasonable and consistent with the Act.
In particular, the Commission believes that Nasdaq’s proposed changes to Rules
5250(b)(3), 5810(b), 5840(k) and IM-5810-1 – requiring disclosure of notifications regarding a
company’s compliance with listing standards – to allow the company, in each case, to make a
public announcement by “filing a Form 8-K, where required by SEC rules, or by issuing a press
release,” are examples where the filing of a single Form 8-K is an appropriate alternative to
requiring both a Form 8-K and a press release. The Commission notes that Item 3.01 of Form
8-K would require a company to file a Form 8-K when it receives notice that the company does
not satisfy a listing standard or when Nasdaq issues a Public Reprimand Letter to the company.
The Commission believes that the Form 8-K, in these instances, addresses the Commission’s
material disclosure concerns for investors, as investors could easily obtain the information in the
Form 8-K and the information may likely result in media coverage. In addition, the Commission
notes that Nasdaq is not proposing that this change will be applicable to its late filer rules and
instead will continue to require that a company that is late in filing a required periodic report
The Commission would generally be concerned if, on matters not required under
Commission rules to be filed on Form 8-K, Nasdaq rules required such matters to be
disclosed in that format because such Form 8-K filings would become a requirement
through Nasdaq rules, even though the requirement had not been adopted by the
Commission.
8
21
with the Commission must issue a press release, even though they are also required to file a
Form 8-K, which is consistent with the Commission’s current treatment of late filers.
22
Similarly, the Commission believes that Nasdaq’s proposal to permit either the filing of a
Form 8-K where required by SEC rules or the issuance of a press release when a company
receives an exception to the shareholder approval requirements because compliance would
jeopardize the company’s financial viability is appropriate and consistent with the Act. The
Commission notes that, in addition to the Form 8-K or a press release, Nasdaq will continue to
require that notice be provided to shareholders by mail at least ten days before issuing securities
in reliance on this exception.
Finally, the Commission believes that Nasdaq’s proposal to allow the filing of a Form
8-K where required by Commission rules in lieu of issuing a press release where there is any
change in the terms of a unit is another instance where the duplicate disclosure is unnecessary
and an extra burden on listed companies. As such, the Commission believes that this proposed
rule change is appropriate and consistent with the Act.
As noted above, Nasdaq also proposes several other changes to its rules pertaining to its
press release requirements for listed companies. First, Nasdaq proposes to modify Rule
5250(c)(2) to require a company that is a foreign private issuer to disclose interim financial
results on a Form 6-K, instead of both a Form 6-K and a press release as required under current
Nasdaq rules. The Commission believes that this change also adequately addresses the
Commission’s investor protection concerns regarding broad availability of disclosure of material
information and is consistent with the Act. The Commission notes that pursuant to Regulation
FD, foreign companies are permitted to meet the requirements of Regulation FD by making
See NYSE Rule 802.01E.
9
22
filings on Form 6-K, rather than on a Form 8-K. Like the Form 8-K, the Form 6-K provides
material disclosures and, similarly, is widely available and utilized by investors, as it is also
accessible on the Commission’s EDGAR Web site and its contents may be widely reported in the
news media. While foreign companies will now be required to only file a Form 6-K to meet
Nasdaq’s disclosure requirement for interim reports, Nasdaq notes in its filing that foreign
issuers would still be free to disclose this information in a press release, in addition to the filing
of a Form 6-K, if it chooses.
In addition, Nasdaq proposes to eliminate the requirement from Rule 5250(b)(2), that a
company must issue a press release announcing the receipt of an audit opinion expressing doubt
about the ability of the company to continue as a going concern. The Commission notes that the
audit opinion is required to be provided in a company’s annual filing with the Commission,
which must also be distributed to shareholders under the Commission’s Proxy Rules,
23
and must
be made available to all shareholders under the Nasdaq rules. Although the Commission
understands that a negative audit opinion constitutes important material information that could
impact an investor’s decision to buy, sell or hold a security, the Commission, after careful
consideration, also believes that publication of this opinion in the annual filing, which the
Commission already requires to be distributed to all shareholders, should provide broad notice to
investors. Additionally, if a company fails to include the audit opinion in its annual filing, the
Commission notes that Nasdaq would consider the filing deficient and would move to delist the
company on that basis, recognizing the importance of the audit opinion disclosure to investors.
24
23
17 CFR 240.14a-1. See Item 13 of Schedule 14A, 17 CFR 240.14a-101.
24
Nasdaq is also proposing to make a conforming change to Rule 5615(a)(3) to eliminate
the reference to the going concern requirement because it will no longer apply. In
addition, Nasdaq is proposing to remove the reference in Rule 5615(a)(3) to the
10
Accordingly, the Commission believes that this change will eliminate unnecessary duplicate
disclosures, while continuing to provide investors with sufficient notice of such material
information.
Finally, Nasdaq proposes to eliminate the requirements in Rule 5810(b) and 5840(k)
that companies must notify multiple Nasdaq departments before issuing certain disclosures. The
Commission is satisfied that Nasdaq’s proposed changes will continue to provide for adequate
notification to the MarketWatch Department, as well as other departments,
25
since Nasdaq has
represented that the MarketWatch Department will notify other Nasdaq departments of the
disclosures when necessary.
26
As such, the Commission believes that Nasdaq’s notification
procedures will be streamlined, eliminating unnecessary duplicative notification requirements for
listed companies, while still ensuring that the necessary departments will be notified by the
MarketWatch Department if necessary for regulatory or other reasons.
For the reasons noted above, the Commission believes that the proposed rule change is
consistent with Section 6(b)(5) of the Act,
27
and will, among other things, protect investors and
the public interest by assuring that the investing public has broad and easy access to full
disclosure of corporate matters. As discussed above, the Commission believes that the changes
proposed by Nasdaq will continue to require issuers to disseminate necessary information to the
requirement for a foreign private issuer to enter into a listing agreement because there is
no need to single out this requirement from all the others of the requirements of the Rule
5000 Series to which a foreign private issuer is subject.
25
Companies are already required to use the electronic disclosure submission service to
notify MarketWatch prior to the distribution of material news. See Rule 5250(b)(1) and
IM-5250-1. See also Securities Exchange Act Release No. 55856 (June 4, 2007), 72 FR
32383 (June 12, 2007) (approving SR–NASDAQ–2007–029).
26
Nasdaq is also proposing: (i) to add a title to Rule 5250(b)(1) to clarify the text; and (ii)
to use capitalization for a defined term in Rule 5615. These are non-substantive changes.
27
15 U.S.C. 78f(b)(5).
11
public in a broad and inclusive manner, while at the same time minimizing duplicative
disclosures.
IV. Conclusion
IT IS THEREFORE ORDERED, pursuant to Section 19(b)(2) of the Act,
28
that the
proposed rule change (SR-NASDAQ-2010-006) be, and it hereby is, approved.
For the Commission, by the Division of Trading and Markets, pursuant to delegated
authority.
29
Florence E. Harmon
Deputy Secretary
28
15 U.S.C. 78s(b)(2).
29
17 CFR 200.30-3(a)(12).
1x3 now.
Seems like things are really getting primed here. There's some awesome DD by JGygli in the iBox. AMHD does a really good run about once every 1 to 1.5 years, and we are due.
Wrong again Fire Lane. AMHD housing division PRs have been independently verified using government web pages. All real estate transactions have been verified.
All AMHD Barbados transactions have been independently verified with the Barbados National Oil Company.
All AMHD NH transactions were verified with vendors.
AMHD share structure has been verified with the TA.
Actually, just about every stock has given up significant grounds in the last 2 years. AMHD has held up quite nicely. Additionally there was a pretty awesome run in that time as well.
According to SEC guidelines the PR's are valid.
According to the SEC, a PR is just as good as an 8K. That is in the SEC website.
Wrong again EarnestDD. AMHD housing division PRs have been independently verified using government web pages. All real estate transactions have been verified.
All AMHD Barbados transactions have been independently verified with the Barbados National Oil Company.
All AMHD NH transactions were verified with vendors.
AMHD share structure has been verified with the TA.
Someone wants AMHD held back and bad. I can't figure it out. AMHD has had ZERO dilution in several years, is making significant profits with the housing division and has serious promise with a pilot program that they are running with Barbados National Oil Company.
The CEO owns over a billion shares out of the float. I buy every chance I get.
I have lost wayyyyyyyyyyyyyyyyyyyyyyyyyy more on General Electric. If any CEO deserves to be in jail, it is that sorry piece of trash.
Pinks are a high risk environment. PERIOD. You know that, I know that, let us all be a little more honest.
Right. Please.
Exactly EarnyDD. AMHD is the producer that is providing the biodiesel for BNOC.
I'd be willing to bet a decade of iHUB that BNOC gets every single drop from AMHD.
Give me a break. Thousands upon thousands of drivers/operators use diesel of all types/blends/sources/ASTM and NON ASTM every day. Diesel engines are wonderfully robust and are rarely if ever harmed by fuel (beyond a clogged filter). Do you think they get ASTM stuff in any 3rd world nation? Fat chance. And the majority of those vehicles are diesel.
You're trying to tell me....convince me....that AMHD gave Lowell $312,500 so they could sell shares?????????????? WOW.
And never fulfilled it. Lowell bought the equipment, never insured it, and had it "stolen".....but I am unable to find a police report about the "incident".
AMHD lost big time by dealing with Lowell.
You have a business contract with him, do you not?
That couldn't be further from the truth. We have gov't web pages the show ongoing real estate transactions.
Your right. The internet has proven without a doubt that this is NOT A SCAM. Real estate transactions were shown on GOVT websites in exactly the manner PRd.
Wrong again overachiever. Recent DD posted by jgygli has undeniably proven that Fred is taking the company in precisely the direction that he has PRd.
The moment AMHD announced business plans that relied on YOU doing your job.
It is ILLEGAL for Todd to hold the parts if they are requested. Just like YOU said overachiever, the parts rightfully and legally belong to AMHD.
If AMHD would finish paying for the plant they ordered, Todd would likely give them their parts
Geez......I hope he has a police report.....I could not find any information on it.....
Usually you can search the police blotters on the web.
You ask. His phone number is in the IBOX.
Well, the lawyer took off with the retainer. He is now in JAIL. It will take time to recover from that blow. AMHD will continue the suit IMO.
As a shareholder, I am part owner of AMHD. As is typical in large scale contracts, progress payments are made for specific items. Those items (the stainless steel, valves, etc.) were obviously specifically paid for if they were specifically put aside in storage.
So, since the items were stolen, it is a loss to AMHD. Has Todd made an effort to cover the loss? It is specifically MY BUSINESS.
If Todd used the items for another project, it would be theft. Since AMHD paid Todd $312,500, the theft would be grand theft. That would be punishable by several decades of prison.
Did your insurance cover the theft of AMHDs product?
What did you do with their parts?
They have had 60+ real estate transactions this year in 1 county alone. You don't think they made a pile of money on that?
Seriously? You are gonna throw out the SCAM word? Surely you jest! There are verifiable public records that show that AMHD is doing exactly what it says.
I have held GE a LOT longer than AMHD. You think I will ever see $60 again? Yes. But I will see $100k in profit (for ME) in AMHD long before that happens.