Background. Rule 15c2-12 promulgated by the U.S. Securities and Exchange Commission (SEC) under the Securities Exchange Act of 1934, as amended, requires an underwriter in a primary offering to ascertain that the issuer or an obligated person for whom financial information or operating data is presented in the final official statement has undertaken in writing (Continuing Disclosure Undertaking) to provide certain items of information to the marketplace. The current version of Rule 15c2-12 requires that such information be filed with each Nationally Recognized Municipal Securities Information Repository (NRMSIR) and, in the case of states that have established a State Information Depository (SID), with such SID. Pursuant to the amended Rule 15c2-12, effective July 1, 2009, all information filed under a Continuing Disclosure Undertaking must be filed solely with the Municipal Securities Rulemaking Board (MSRB) under its Electronic Municipal Market Access (EMMA) system.
On December 5, 2008, the SEC adopted amendments to Rule 15c2-12 to provide for a centralized filing system for all filings of information made under Rule 15c2-12. Effective July 1, 2009, all such filings must be submitted to the MSRB for posting through EMMA, an Internet-based system maintained by the MSRB. Similar to EDGAR, an on-line system maintained by the SEC for all corporate market filings, EMMA will serve as a single centralized repository for all municipal market filings.
To comply with the amended Rule 15c2-12, all Continuing Disclosure Undertakings entered into after July 1, 2009, must require that all information filed under Rule 15c2-12, including annual financial information, material events notices, and other information which the issuer or the obligated person chooses to provide to the market, be filed with the MSRB through EMMA. Filings with NRMSIRs and SIDs after July 1, 2009, will not constitute compliance with Rule 15c2-12.
Until the amendments go into effect, all continuing disclosure information filings must be made with NRMSIRs and SIDs, as provided under the current Continuing Disclosure Undertakings, and filings with the MSRB alone (either directly or through EMMA) will not constitute compliance with the current Rule 15c2-12.
The amendments do not affect substantive requirements of Rule 15c2-12 with respect to types of disclosure information which is to be provided to the market. However, the amendments will modify the continuing disclosure requirements for issuers who have less than $10 million of debt outstanding. Instead of providing annual financial information or operating data, if customarily prepared by such issuer and is publicly available, to any person upon request or at least annually to the SID, if any, such issuer will be required to provide annual financial information or operating data, if customarily prepared by such issuer and is publicly available, to the MSRB.
Issuers and obligated persons will be able to upload disclosure information to EMMA free of charge either directly or through a designated dissemination agent (such as a trustee for the bonds or other authorized dissemination agent). All disclosure filings through EMMA will need to be made in PDF files configured to permit documents to be saved, viewed, printed, and retransmitted by electronic means, and each filing will need to be accompanied by identifying information prescribed by the MSRB (such as the category of information being provided, the bond issues to which such information relates, the name and date of the filed document, etc.). In addition, starting from January 1, 2010, the MSRB will require that such PDF files be in word-searchable format. All documents and information submitted through EMMA will be available to the public through the Internet free of charge.
The amendments of Rule 15c2-12 do not require that continuing disclosure undertakings entered into prior to July 1, 2009 be amended to include the language relating to the new filing requirements. Rather, such undertakings will be deemed compliant with the amended Rule 15c2-12 and the MSRB will be treated as the sole NRMSIR.