United States: NYSE Updates Timely Alert Procedures

NYSE-listed companies should have received the NYSE Timely Alert Memo from NYSE Regulation on September 23, 2015, regarding changes to the NYSE's Timely Alerts procedures. These changes go into effect on Monday, September 28, 2015. It is important to read and understand the new Timely Alerts procedures and implement internal procedures to comply with the new rules. Unlike the current rules (which apply from 9:30 a.m. to 4:00 p.m.), the new NYSE Timely Alert procedures will apply between the hours of 7:00 am ET and 4:00 pm ET.

Beginning on September 28th (Monday), between the hours of 7:00 a.m. ET and 4:00 p.m. ET, companies are required to call the NYSE at least 10 minutes in advance of issuing news that is of a material nature or that might impact trading in the companies' securities. Outside of these hours, companies are not required to provide advance notice to the NYSE, but are encouraged to email a courtesy copy of the news if it is material in nature. Before the effective date of these new rules, a NYSE-listed company was required to notify the NYSE Market Watch Group at least ten minutes before releasing material news if the release would occur "shortly before the opening or during trading hours" (in effect, from 9:30 a.m. to 4:00 p.m.).

When providing the 10 minute advance notice, NYSE-listed companies should direct their call to the Market Watch Group at 877-NYX-ALRT (877-699-2578) or 212-656-5414. When calling, the company's representative must be knowledgeable about the details of the news being issued in case questions arise.

In advance of issuance, the company must also email (nysealert@nyse.com) the substance of the announcement to the NYSE, the Reg FD-compliant method it intends to use to disseminate the news (SEC filing, press release), how the NYSE can locate the information upon publication, and contact information of a company representative with knowledge of the news. When the announcement is in written form, the text of the announcement must be provided as well.

In the subject line of the email, companies must include the following: ticker symbol followed by a hyphen and the headline of the press release (example: XYZ-XYZ Corp. Announced First Quarter Earnings).

For release of material information following market close, the NYSE advises companies to hold the release of material news until the earlier of (i) publication of the official closing price on the NYSE or (ii) 4:15 p.m., in order to allow for the orderly closing of a company's stock on the NYSE. Importantly, this aspect of the new timely alert procedures is only advisory in nature, and will not impact securities offerings in which it is often important to launch immediately following market close at 4:01 p.m.

The new rules also clarify that companies must release material news by the "fastest available means." Under the NYSE rules, this requires that companies either (i) include the news in a Form 8-K or other SEC filing, or (ii) issue the news in a press release to the major news wire services, including, at a minimum, Dow Jones & Company, Inc., Reuters Economic Services and Bloomberg Business News. This should not cause any change for companies.

During the period prior to the opening of trading on the NYSE, if a company requests it, the NYSE will institute a trading halt for dissemination of material news. If, however, it appears that the dissemination of material news will not be complete prior to the opening of trading, the NYSE may temporarily halt trading without the company's request in order to facilitate an orderly opening process. During normal trading hours, the NYSE retains the ability to institute a trading halt if a company is going to release material information. In addition, the revised rules also permit the NYSE to implement a trading halt and request additional information from a company relating to (i) material news, (ii) the company's compliance with the NYSE continued listing requirements or (iii) any other information which is necessary to protect investors and the public interest. This is a broad expansion of the NYSE's ability to halt trading.

The SEC release can be found here http://www.sec.gov/rules/sro/nyse/2015/34-75809.pdf and the revised NYSE Listing Rules are here: http://www.sec.gov/rules/sro/nyse/2015/34-75809-ex5.pdf.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Brinkley Dickerson
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