The New York Stock Exchange LLC (“NYSE”) Listed Company Manual requires NYSE-listed companies (including closed-end investment companies and business development companies that are NYSE-listed) (“Listed Companies”) to release quickly to the public any news or information which might reasonably be expected to materially affect the market for their securities (“Immediate Release Policy”).1 Effective May 7, 2009, the NYSE has amended the Listed Company Manual (the “Amendments”) to allow Listed Companies the flexibility to comply with the Immediate Release Policy by choosing any method (or combination of methods) of public disclosure that complies with Regulation Fair Disclosure under the Securities Exchange Act of 1934, as amended (“Regulation FD”). Prior to the Amendments, Listed Companies were required to comply with the Immediate Release Policy by issuing a press release.
Regulation FD allows a public company to disclose material information by any means reasonably designed to effect “broad, non-exclusionary distribution of the information to the public.”2 Acceptable methods of public disclosure for purposes of Regulation FD include: furnishing or filing with the Securities and Exchange Commission (the “Commission”) a Form 8-K, issuing a press release through a widely circulated news or wire service, making announcements through press conferences, conference calls or webcasts3 and, in certain circumstances, adding disclosure on the Listed Company’s website.4 The method chosen should take into account the particular circumstances of the Listed Company.
The Amendments also clarify that if an announcement of news of a material event or a statement dealing with a rumor calls for immediate release before the opening of the market or during market hours (9:30 A.M. to 5:00 P.M., New York time), prior notification to the NYSE is required. Previously, the NYSE recommended, but did not require Listed Companies to provide such advance notice. The prior notification must be made by telephone to the Listed Company’s NYSE representative, at least ten minutes prior to public disclosure, indicating the substance of the announcement, the method of dissemination and the information necessary to locate the news upon publication. If the announcement is in written form, Listed Companies must also provide the text of such announcement to the NYSE by email at least ten minutes prior to public disclosure. The newly mandated procedure is intended to better enable the NYSE to consider whether trading in the relevant security should be temporarily halted. The Commission’s release relating to the Amendments is available at http://www.sec.gov/rules/sro/nyse/2009/34-59823.pdf.