On March 15, 2010, the SEC approved amendments to Nasdaq’s rules regarding the requirement to disclose certain information through a press release or the news media. The amendments eliminate duplicative requirements from Nasdaq’s disclosure rules in certain situations where a company is already required by SEC rules to file a Form 8-K. The amendments provide that listed companies would be able to make the following disclosures in a press release or by filing a Form 8-K, where required by SEC rules:

  • the receipt of a notice that the company does not meet a listing standard, that Nasdaq intends to delist the company, or a public reprimand letter
  • the receipt of an exception to the shareholder approval requirements because compliance would jeopardize the company’s financial viability; companies will still be required to mail this notice to shareholders 10 days before issuing securities in reliance upon the exemption
  • any change in the terms of a listed unit  

Similarly, Nasdaq eliminated the requirement that foreign private issuers publish their interim financial results in a press release, while maintaining the requirement that it be in a Form 6-K.

In addition, Nasdaq eliminated the requirement that a company issue a press release announcing the receipt of an audit opinion expressing doubt about the ability of the company to continue as a going concern. The SEC noted that although a negative audit opinion constitutes important material information, publication of this opinion in the company’s annual report, which the SEC already requires to be distributed to all shareholders, should provide broad notice to investors. Additionally, if a company fails to include the audit opinion in its annual filing, Nasdaq would consider the filing deficient and would move to delist the company on that basis, recognizing the importance of the audit opinion disclosure to investors.

Nasdaq also modified its rules, which require companies to notify multiple Nasdaq departments before they issue certain disclosures, to require companies to provide these disclosures to the MarketWatch Department using the electronic disclosure submission system accessible at www.nasdaq.net. MarketWatch will then notify other Nasdaq departments when necessary.

The amendments became effective on March 15, 2010.

http://www.sec.gov/rules/sro/nasdaq/2010/34-61713.pdf