[Federal Register Volume 80, Number 87 (Wednesday, May 6, 2015)]
[Notices]
[Pages 26118-26121]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-10503]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-74849; File No. SR-NYSE-2015-02]


Self-Regulatory Organizations; New York Stock Exchange LLC; 
Notice of Filing of Proposed Rule Change Amending Sections 312.03(b) 
and 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

April 30, 2015.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of 
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby 
given that, on April 16, 2015, New York Stock Exchange LLC (``NYSE'' or 
the ``Exchange'') filed with the Securities and Exchange Commission 
(the ``Commission'') the proposed rule change as described in Items I, 
II, and III below, which Items have been prepared by the self-
regulatory organization. The

[[Page 26119]]

Commission is publishing this notice to solicit comments on the 
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to amend Sections 312.03(b) and 312.04 of the 
NYSE Listed Company Manual (the ``Manual'') to exempt early stage 
companies from having to obtain shareholder approval before issuing 
shares to related parties, affiliates of related parties or entities in 
which a related party has a substantial interest. The text of the 
proposed rule change is available on the Exchange's Web site at 
www.nyse.com, at the principal office of the Exchange, and at the 
Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the self-regulatory organization 
included statements concerning the purpose of, and basis for, the 
proposed rule change and discussed any comments it received on the 
proposed rule change. The text of those statements may be examined at 
the places specified in Item IV below. The Exchange has prepared 
summaries, set forth in sections A, B, and C below, of the most 
significant parts of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The Exchange proposes to amend Sections 312.03(b) and 312.04 of the 
Manual to exempt early stage companies from having to obtain 
shareholder approval before selling shares for cash to related parties, 
affiliates of related parties or entities in which a related party has 
a substantial interest.
    The Exchange recently eliminated its Assets and Equity Test initial 
listing standard and replaced it with a new initial listing standard 
that permits companies to list on the Exchange if they demonstrate a 
total global market capitalization of at least $200 million (the 
``Global Market Capitalization Test''). Among the stated reasons for 
adopting this rule change was to enable the Exchange to compete with 
the Nasdaq Global Market (``Nasdaq'') for the listing of early stage 
companies that do not yet meet the $75 million minimum assets and $50 
million minimum stockholders' equity requirements that were required to 
list under the Exchange's Assets and Equity Test that was formerly in 
place.
    In the Exchange's experience, many early stage companies do not yet 
generate revenues internally from sales. Instead, such companies are 
largely dependent on raising funds via financing transactions, such as 
an initial public offering (``IPO'') and subsequent sales of their 
equity securities, in order to continue operations or to finance their 
research or exploration activities. Early stage companies are hampered 
in their ability to access debt financing due to their lack of cash 
flows and tangible assets. It is also often difficult for them to 
access the public equity markets by means of firm commitment 
underwritten offerings, as many of them are ineligible for shelf 
registration. Consequently, these early stage companies frequently need 
to raise capital via private placement share issuances to their 
founders or other significant existing shareholders or their executive 
officers or directors. Under Section 312.03(b), any of these potential 
investors in private placements would generally be deemed to be a 
``related party'' (``Related Party'') of the listed company.\4\ 
Accordingly, if the private placement share issuance to any of these 
Related Parties exceeds either one percent of the number of shares of 
common stock or one percent of the voting power outstanding before the 
issuance, the company is required by Section 312.03(b) to obtain 
shareholder approval prior to the issuance.\5\
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    \4\ For purposes of 312.03(b), a Related Party is defined as a 
director, officer or substantial security holder (i.e., a holder of 
5% or more of the common stock) of the company.
    \5\ Section 312.03 (b) requires shareholder approval of shares 
[sic] issuances exceeding 1% to:
    (1) A Related Party;
    (2) a subsidiary, affiliate or other closely-related person of a 
Related Party; or
    (3) any company or entity in which a Related Party has a 
substantial direct or indirect interest.
    However, if the Related Party involved in the transaction is 
classified as such solely because such person is a substantial 
security holder, and if the issuance relates to a sale of stock for 
cash at a price at least as great as each of the book and market 
value of the issuer's common stock, then shareholder approval will 
not be required unless the number of shares of common stock to be 
issued, or unless the number of shares of common stock into which 
the securities may be convertible or exercisable, exceeds either 5% 
of the number of shares of common stock or 5% of the voting power 
outstanding before the issuance.
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    The process of obtaining shareholder approval is frequently 
expensive and time consuming for listed companies. It typically takes 
several months of advance preparation and requires companies to go 
through an SEC review process, mail proxy statements and hold a 
shareholder meeting. The delays inherent in obtaining shareholder 
approval can be especially troublesome for early stage companies that 
do not yet generate significant revenue from operations and may 
therefore need to raise capital quickly in order to fund their ongoing 
operations. Accordingly, the Exchange proposes to amend Sections 
312.03(b) and 312.04 to provide early stage companies with a limited 
exemption to the requirements of Section 312.02(b).
    The Exchange proposes to amend Section 312.04 to include a 
definition of an ``Early Stage Company.'' An Early Stage Company will 
be defined as a company that has not reported annual revenues greater 
than $20 million in any two consecutive fiscal years since its 
incorporation. Further, an Early Stage Company will lose that 
designation at any time after listing on the Exchange that it files an 
annual report with the Commission in which it reports two consecutive 
fiscal years in which it has revenues greater than $20 million in each 
year.\6\ The Exchange proposes to amend Section 312.03(b) to exempt 
Early Stage Companies from the requirement that they obtain shareholder 
approval prior to a sale of securities for cash to Related Parties, 
affiliates of Related Parties, or entities in which a Related Party has 
a substantial interest, provided that the Early Stage Company's audit 
committee or a comparable committee comprised solely of independent 
directors reviews and approves all such transactions prior to their 
completion. Any issuance of securities that is not a sale for cash, 
including any issuance in connection with the acquisition of stock or 
assets of another company, will remain subject to the shareholder 
approval provisions of Section 312.03(b). Additionally, as stated in 
Section 312.04(a), an exemption from one provision of Section 312.03 is 
not a general exemption from all of Section 312.03. Therefore, 
notwithstanding that a transaction by an Early Stage Company may have 
an exemption under Section 312.03(b), the shareholder approval 
requirements of Sections 312.03(c) (requiring shareholder approval of 
issuances relating to 20% or more of the company's stock) and 312.03(d) 
(requiring shareholder approval of any

[[Page 26120]]

issuance giving rise to a change of control) will still be 
applicable.\7\
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    \6\ A company's annual financial statements prior to listing on 
the Exchange will also be considered when determining if it should 
lose its Early Stage Company designation. For example, if a company 
files an annual report with the Commission one year after listing on 
the Exchange and such annual report shows that the company has had 
revenues greater than $20 million in each of two consecutive years 
(even if one of those years was prior to listing on the Exchange), 
the company will lose its Early Stage Company designation at that 
time.
    \7\ The Exchange notes that the shareholder approval 
requirements of Nasdaq and the NYSE MKT do not restrict the amount 
of stock a company can sell for cash to a Related Party provided 
that the price per share is at least as great as each of the book 
and market value of the issuer's stock. Under the Exchange's 
proposal, however, an issuer will only be able to sell up to 19.9% 
of its outstanding stock to a Related Party for cash without first 
obtaining shareholder approval. For sales to a Related Party equal 
to or greater than 20% of the issuer's common stock, such issuer 
will be subject to the shareholder approval provisions of Section 
312.03(c).
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    Further, the provisions of Section 312.03(c) apply to any 
transaction or series of transactions. In applying Section 312.03(c), 
the Exchange carefully reviews issuances to determine whether they are 
related and should be aggregated for purposes of the rule. The Exchange 
analyses [sic] the relationship between separate issuances with 
particular care if they occur within a short period of time, are made 
to the same or related parties, or if there is a common use of 
proceeds. The Exchange would engage in this analysis with respect to 
any series of sales made by an Early Stage Company to a Related Party. 
Should the Exchange determine that it is necessary to aggregate the 
series of sales and, as aggregated, the total number of shares sold 
exceeds 19.9% of the shares outstanding, shareholder approval would be 
required pursuant to Section 312.03(c).
    The Exchange believes that the proposed rule change will enable 
Early Stage Companies to raise capital in an efficient manner in order 
to fund their research or exploration activities or grow their business 
while still being sufficiently protective of shareholders. First, under 
the proposed rule change, a company will only be able to avail itself 
of the exemption if it has not reported revenues greater than $20 
million in any two consecutive fiscal years since its incorporation. 
After listing, once a company does report revenues greater than $20 
million in each of two consecutive fiscal years, it will lose its 
designation as an Early Stage Company and be subject to all shareholder 
approval requirements set forth in Section 312.03(b). Once the Early 
Stage Company designation is lost, it cannot be regained if the subject 
company later reports reduced revenues. The proposed rule change, 
therefore, is narrowly tailored and not designed to benefit companies 
whose revenues have diminished over time due to a decline in demand for 
their products. Further, the Exchange believes that the proposed rule 
change benefits shareholders of Early Stage Companies. Investors who 
choose to invest in Early Stage Companies are aware that the ability to 
raise additional capital in a flexible manner is crucial to the 
ultimate success of these companies. It is to the benefit of these 
investors, therefore, that Early Stage Companies have the ability to 
raise capital quickly and inexpensively. Without the exemption afforded 
by the proposed rule change, Early Stage Companies may not be able to 
raise capital or may do so on less advantageous terms to the detriment 
of their shareholders. Lastly, under the proposed rule, the sale of 
shares for cash by and [sic] Early Stage Company to a Related Party 
will only be exempt from the shareholder approval requirements of 
Section 312.03(b) to the extent such Early Stage Company's audit 
committee (or comparable committee comprised solely of independent 
directors) has reviewed and approved such transaction prior to its 
completion.
    The Exchange notes that many Early Stage Companies have 
historically listed on Nasdaq or NYSE MKT. Importantly, neither Nasdaq 
nor NYSE MKT has a rule comparable to Section 312.03(b) requiring that 
listed companies obtain shareholder approval prior to 1% (or in certain 
cases 5%) share issuances in cash sales to a Related Party.\8\ For the 
reasons enumerated above, the Exchange believes that Section 
312.03(b)'s current requirements are particularly onerous for Early 
Stage Companies and could therefore discourage their listing on the 
Exchange. Thus, the Exchange believes the proposed rule change is 
necessary to enable the Exchange to compete with Nasdaq for the listing 
of Early Stage Companies.
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    \8\ Both Nasdaq and the NYSE MKT do, however, have a rule 
requiring shareholder approval prior to the issuance of shares as 
sole or partial consideration for an acquisition of the stock or 
assets of another company if a Related Party has a 5% or greater 
interest in the company or assets to be acquired and the shares to 
be issued as consideration would result in an increase in shares 
outstanding of 5% or more.
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    The Exchange intends to allow any company falling within the 
proposed definition of an Early Stage Company (whether listed before or 
after the adoption of the Global Market Capitalization Test listing 
standard) to avail itself of the proposed exemption from Section 
312.03(b). The Exchange believes this is appropriate given that such 
companies are in a similar stage of development and face the same 
financing challenges as any companies that will benefit from the 
exemption if listed subsequent to its adoption. Further, based on the 
Exchange's review of companies listed on the Exchange, only a small 
number of current listed companies would qualify for the exemption. 
While exempting currently listed companies that qualify as Early Stage 
Companies from the provisions of Section 312.03(b) removes a protection 
currently afforded such companies' shareholders, the Exchange believes 
that this lessened protection is desirable because of the overall 
benefit of providing these companies with necessary flexibility in 
raising capital. First, the Exchange believes that shareholders were 
likely well aware of the ongoing capital needs of such companies at the 
time of their initial investment. Early Stage Companies typically make 
ample disclosure in both their offering documents and their periodic 
filings, including risk factor disclosure, of their significant capital 
requirements and the negative consequences of being unable to meet 
those requirements. Therefore, shareholders of currently listed 
companies able to avail themselves of the Early Stage Company exemption 
to Section 312.03(b) will benefit from such companies having less 
cumbersome access to capital in order to fund their business and 
operations. Second, although currently listed companies that fall 
within the definition of Early Stage Company will be exempt from the 
shareholder approval requirements of Section 312.03(b), any transaction 
that would have required shareholder approval under such provision will 
still require the review and approval of such Early Stage Company's 
audit committee or comparable committee comprised of independent 
directors, thus offering an additional protection to shareholders. 
Lastly, the ability of an Early Stage Company to raise money via a sale 
of shares to a Related Party as opposed to via a public offering is 
likely to be more cost efficient as such company will not incur 
underwriting and other standard offering expenses that are incurred in 
the standard public offering. The greater speed with which a private 
sale can be executed also protects shareholders from the market risk 
associated with a possible share price decline during a public offering 
process.
    The Exchange also proposes to delete obsolete text from Section 
312.03 related to a limited transition period that is no longer 
relevant.
 2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent 
with Section 6(b) \9\ of the Act, in general, and furthers the 
objectives of Section 6(b)(5)

[[Page 26121]]

of the Act,\10\ in particular in that it is designed to promote just 
and equitable principles of trade, to foster cooperation and 
coordination with persons engaged in regulating, clearing, settling, 
processing information with respect to, and facilitating transactions 
in securities, 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. The Exchange believes that 
the proposed amendment is consistent with the investor protection 
objectives of Section 6(b)(5) because it creates a very limited 
exemption to the NYSE's shareholder approval requirements that would be 
applicable only to share issuances by a narrowly-defined category of 
Early Stage Companies. The Exchange believes this amendment is 
consistent with the protection of investors because: (i) Investors 
investing in Early Stage Companies do so in the knowledge that those 
companies do not currently generate revenue and that their ability to 
continue to execute their business strategy is significantly dependent 
on their ability to raise additional capital quickly and cheaply; and 
(ii) issuances that would be exempt from shareholder approval under the 
proposed amendment would need to be approved by an Early Stage 
Company's audit committee or comparable committee comprised of 
independent directors, mitigating the risk of any inappropriate 
conflict of interest in the transaction.
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    \9\ 15 U.S.C. 78f(b).
    \10\ 15 U.S.C. 78f(b)(5).
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 B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition that is not necessary or appropriate 
in furtherance of the purpose of the Act. The proposed rule change 
provides a limited exemption to the shareholder approval requirements 
of Section 312.03(b) for Early Stage Companies. These companies 
frequently must conduct time-sensitive capital raises in order to 
continue their research or exploration activities and fund their 
operations. Currently, any such company listed on the Exchange may be 
required to engage in a costly and time consuming process of obtaining 
shareholder approval for certain share issuances to a related party. If 
the same company was listed on Nasdaq or NYSE MKT, however, it would 
not be required to engage in this process as neither marketplace has a 
comparable rule to Section 312.03(b). As such, the limited exemption 
proposed herein would more closely align the Exchange, Nasdaq and NYSE 
MKT's rule in this regard and enable the Exchange to more effectively 
compete for the listing of Early Stage Companies.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    No written comments were solicited or received with respect to the 
proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Within 45 days of the date of publication of this notice in the 
Federal Register or up to 90 days (i) as the Commission may designate 
if it finds such longer period to be appropriate and publishes its 
reasons for so finding or (ii) as to which the self-regulatory 
organization consents, the Commission will:
    (A) by order approve or disapprove the proposed rule change, or
    (B) institute proceedings to determine whether the proposed rule 
change should be disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-NYSE-2015-02 on the subject line.

Paper Comments

     Send paper comments in triplicate to Brent J. Fields, 
Secretary, Securities and Exchange Commission, 100 F Street NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number SR-NYSE-2015-02. This file 
number should be included on the subject line if email is used. To help 
the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for Web site viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE., 
Washington, DC 20549, on official business days between the hours of 
10:00 a.m. and 3:00 p.m. Copies of the filing also will be available 
for inspection and copying at the principal office of the Exchange. All 
comments received will be posted without change; the Commission does 
not edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly. All 
submissions should refer to File Number SR-NYSE-2015-02 and should be 
submitted on or before May 27, 2015.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\11\
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    \11\ 17 CFR 200.30-3(a)(12).
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Brent J. Fields,
Secretary.
[FR Doc. 2015-10503 Filed 5-5-15; 8:45 am]
BILLING CODE 8011-01-P