Recent amendments to the NYSE MKT Company Guide provide that NYSE MKT-listed companies can comply with that Exchange’s immediate release policy by disseminating required information using any method or combination of methods that complies with the SEC’s Regulation Fair Disclosure (Reg FD). Therefore these companies are no longer required to issue a simultaneous release to national business and financial news–wire services.

Rules for NYSE MKT, a market within the New York Stock Exchange that focuses on small-cap companies, require a listed company to make immediate public disclosure of all material information concerning its affairs, under the ÔÇčimmediate release policy.” In order to comply with the policy, a company should release material information to the public in a manner designed to obtain the widest possible public dissemination. Section 402(b)(ii) of the Company Guide had specified that any public disclosure of material information should be made by an announcement released to the national business and financial news-wire services.

The recent amendments to Sections 401 and 402 of the Company Guide allow companies to utilize any Reg FD-compliant method or combination of methods to disseminate information in accordance with the immediate release policy. Companies are no longer required to announce material news via a simultaneous release to the national business and financial news-wire services. Instead, Reg FD allows companies to publicly disclose information by filing a Form 8-K with the SEC or by using another method of disclosure that is reasonably designed to provide broad, non-exclusionary distribution of the information to the public. Such methods include press releases, conference calls, press conferences, and webcasts, as long as the public is provided adequate notice and granted access. The amendments give listed companies the ability to utilize flexibility and discretion with respect to the appropriate method of public disclosure of material information.

Nevertheless, the Exchange encourages companies to continue to disclose material news via press releases. Under the amended rules, if a company intends to utilize a press release to comply with the immediate release policy, the release should be given to Dow Jones & Company, Inc., Reuters Economic Services, and Bloomberg Business News in order to ensure adequate coverage. Further, a company may disseminate information using its website and social media. However, if a company utilizes these methods of dissemination, it must comply with the SEC’s applicable guidelines.

Sections 401 and 402 of the Company Guide were further amended to codify the Exchange’s long-standing expectation that listed companies must call the Exchange if they intend to release material information shortly before the opening of the market or during trading hours. A listed company must call the Exchange at least 10 minutes prior to making a public announcement, and the company must inform the Exchange of the substance of the announcement and identify the Reg FD-compliant method it intends to use. A company must also provide the Exchange with the necessary information to locate the information upon publication. If a public announcement is in written form, a company must provide the text of the announcement to the Exchange via e-mail or web-based system at least 10 minutes prior to its release.

If you have questions about the impact of these amendments on you and/or your company, please contact Mary J. Mullany, at 215.864.8631 or, Justin P. Klein at 215.864.8606 or, Gerald J. Guarcini at 215.864.8625 or, Katayun I. Jaffari at 215.864.8475 or, Kaleena F. Laputka at 215.864.8605 or, or the Ballard Spahr attorney with whom you work.

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