Securities Law Update

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NASDAQ Requires 10-Minute Notification Prior to Release of Material Information

Effective December 7, 2009, The Nasdaq Stock Market LLC (“Nasdaq”) requires Nasdaq-listed companies to provide Nasdaq’s Market Watch Department with at least 10 minutes prior notification when releasing material information. See Nasdaq Listing Rule 5250(b)(1). Previously, Nasdaq merely recommended such advance notice. Notification is required to be made through the Nasdaq electronic submission system available at, except in emergency situations. This notice requirement is intended to provide Nasdaq with information to assess whether a trading halt is appropriate to permit full dissemination of the news to the public and to maintain an orderly trading market. The New York Stock Exchange contains similar notification requirements. See NYSE Listed Company Manual Section 202.06(B). Nasdaq also clarified that, consistent with the Securities and Exchange Commission (“SEC”) guidance, the posting of information on a company website by itself, would not satisfy the public disclosure requirements of Regulation FD. The final SEC Release No. 34-61008 (November 16, 2009) containing the amendments to the Nasdaq Listing Rules is available here.

SEC Proposes Amendments to Rules Regarding Internet Availability of Proxy Materials

In an effort to improve notice of and access to proxy materials and increase participation by shareholders in proxy voting, the SEC proposed amendments to the proxy rules under the Securities Exchange Act of 1934 (the “Exchange Act”). The proposed amendments would provide issuers and other soliciting persons with additional flexibility in formatting and drafting the Notice of Internet Availability of Proxy Materials (the “Notice”). If adopted, the Notice: (1) would be required to address specified topics, in lieu of the mandatory boiler-plate legend currently required in the Notice; (2) would not be required to mirror the proxy card so long as the Notice identified each matter being considered at the meeting; and (3) would be permitted to be accompanied by an explanation of the process of receiving or reviewing the proxy materials and voting. The proposed amendments would also modify the filing deadlines for a non-issuer soliciting person utilizing the notice-only option for delivery of proxy materials. Comments to the proposed amendments were due by November 20, 2009. If adopted, the final rules could be effective for the upcoming proxy season.

The proposing SEC Release No. 34-60825 (October 14, 2009) is available here. The final SEC adopting release with respect to the notice and access proxy rules is SEC Release 34-55146 (January 22, 2007) and is available here.

As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.

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