On January 17, 2023, the New York Stock Exchange (NYSE) published its annual Listed Company Compliance Guide for NYSE Issuers (Guidance Letter). This year’s Guidance Letter provides useful reminders of NYSE-specific rules and policies. It also includes a reminder of the forthcoming NYSE listing standards to implement the recently adopted clawback rules, which the NYSE (and Nasdaq) must propose no later than February 27, 2023 (see our previous client alert).
Key reminders for 2023 include:
- NYSE Timely Alert/Material News Policy. Section 202.05 of the NYSE Listed Company Manual provides that companies are “expected to release quickly to the public any news or information which might reasonably be expected to materially affect the market for its securities.” The NYSE’s Timely Alert/Material News Policy applies to written releases of material news (such as press releases or Form 8-K filings), as well as verbal releases of material news during the course of management or investor presentations or investor conferences. The NYSE provides for certain procedures in connection with the dissemination of material news under its Timely Alert/Material News Policy.
- During trading day. If material news is to be released during trading hours (i.e., 7:00 a.m., ET to 4:00 p.m., ET), the company must call the NYSE’s Market Watch Group at (212) 656-5414 or (877) 699-2578 at least 10 minutes before dissemination of the material news. If a material event occurs beyond the company’s control, then the company must call the Market Watch Group (at the numbers listed above) promptly upon becoming aware of the material event having occurred, and the company must also promptly disseminate news of the material event to the public. In addition, the company must submit electronically through Listing Manager or via email to nysealert@nyse.com a copy of any material announcement, together with information about the Regulation FD-compliant method (e.g., press release, Form 8-K) it intends to use to disseminate the news to the public, and how the NYSE can locate the news upon publication.
- Outside of trading hours. If material news is to be released outside of trading hours, then the NYSE does not generally require advance notice (other than for dividends or stock distributions). However, companies are encouraged to submit a copy of the material news once it is disclosed either electronically through Listing Manager or via email to nysealert@nyse.com. Of note, under Section 202.06 of the NYSE Listed Company Manual, companies are prohibited from publishing material news after the official closing time for the NYSE’s trading session (i.e., 4:00 p.m., ET) until the earlier of 4:05 p.m., ET or the publication of the official closing price of the company’s security. The Guidance Letter reminds companies that they “can refer to NYSE Connect (https://www.nyse.com/connect) to obtain real-time information about the timing of completion of closing auctions for their securities or, in the alternative, obtain this information from major market data vendors.”
- During trading day. If material news is to be released during trading hours (i.e., 7:00 a.m., ET to 4:00 p.m., ET), the company must call the NYSE’s Market Watch Group at (212) 656-5414 or (877) 699-2578 at least 10 minutes before dissemination of the material news. If a material event occurs beyond the company’s control, then the company must call the Market Watch Group (at the numbers listed above) promptly upon becoming aware of the material event having occurred, and the company must also promptly disseminate news of the material event to the public. In addition, the company must submit electronically through Listing Manager or via email to nysealert@nyse.com a copy of any material announcement, together with information about the Regulation FD-compliant method (e.g., press release, Form 8-K) it intends to use to disseminate the news to the public, and how the NYSE can locate the news upon publication.
- Record Date Notification. NYSE-listed companies are required to notify the NYSE at least 10 calendar days in advance of the record date for shareholder meetings, including for the annual shareholders’ meeting. If the company changes the record date, then it must notify the NYSE (again) at least 10 calendar days in advance of the new record date. Record dates should not fall on a weekend or NYSE holiday. Record date notifications for annual shareholder meetings may be submitted through Listing Manager or via email to proxyadmin@nyse.com. Companies should keep this timing in mind as they set their annual filing and disclosure calendars for the proxy season.
- Annual Written Affirmation of Compliance with NYSE Corporate Governance Requirements. NYSE-listed companies are required to file an Annual Written Affirmation each calendar year through Listing Manager, affirming compliance with the NYSE’s corporate governance listing standards set forth in Section 303A of the NYSE Listed Company Manual. For domestic issuers, the Annual Written Affirmation must be filed no later than 30 days after the annual shareholders’ meeting, and for foreign private issuers, it must be filed 30 calendar days after the company’s annual report is filed. Domestic companies must also submit an Annual CEO Certification, which is incorporated in the Annual Written Affirmation and confirms compliance with the NYSE corporate governance listing standards.
Domestic companies are also required to file an Interim Written Affirmation through Listing Manager within five business days after any triggering event specified on that form (e.g., changes in board or committee composition or independence, or change in foreign private issuer, controlled company, or smaller reporting company status). If any of these triggering events occur within 30 days of the annual shareholders’ meeting, the company may include them in the Annual Written Affirmation in lieu of the Interim Written Affirmation. Separately, if there are changes to executive officers, then the company is required to provide prompt notice to the NYSE, and the changes should be reported to the company’s Listings representative so that any relevant contact information can be updated. Changes to executive officers may also trigger the NYSE’s Timely Alert/Material News Policy. - Supplemental Listing Applications. As discussed in our previous client alert, companies with equity plans that provide for automatic increases to the number of shares authorized for issuance thereunder, often referred to as evergreen increases, are required to file a supplemental listing application (SLAP), and the NYSE must authorize the SLAP prior to the issuance of those evergreen shares (or securities convertible into those shares). The SLAP should be submitted electronically through Listing Manager as soon as the board of directors approves or confirms, as the case may be, the evergreen shares.
Please refer to the entire Guidance Letter for additional reminders including relating to changing the date of the company’s earnings release, the annual meeting requirement, redemption or conversion of listed securities and share reporting, requirements for annual reports, related party transactions, broker search cards, NYSE Rule 452, shareholder approval and voting rights requirements, voting requirements for proposals at shareholder meetings, and foreign private issuer semi-annual reporting.