| NYSE Alternext US listed companies are required to file an Application for Listing of Additional Shares ("LAS") and seek authorization from the Exchange whenever a listed company seeks to issue additional shares. A listed company is not permitted to issue or to authorize its transfer agent or registrar to issue or register additional securities of a listed class until it has filed an application for the listing of such additional securities and received notification from the Exchange that the securities have been approved for listing.
The Exchange's approval is contingent upon the securities being issued for the purpose and under the terms and conditions authorized by the company's Board of Directors and as specified in the listing application.
The Exchange also reviews each additional listing application to determine if shareholder approval will be required as a condition to approval. It is important to note that treasury shares may not be reissued, without first obtaining shareholder approval, for any purpose where the rules or policies of the Exchange would require such approval had the shares to be issued been previously authorized but issued.
The Aggregation Test
For purposes of the stockholder approval requirements (for example, Section 712 and 713 of the NYSE Alternext US Company Guide), Staff will aggregate two or more transactions when they in substance constitute parts of one larger transaction. While each situation involves a "facts and circumstances" analysis, the following factors are considered:
- Use of proceeds - For example, will the funds raised be used for the same or related purpose and/or will the funds raised in one of the transactions be used to finance another of the transactions?
- Timing - For example, were the transactions agreed to and/or completed within close time proximity to each other? While there is no "safe harbor," generally transactions not within six months of each other will not be aggregated absent other compelling factors.
- Commonality of investors - For example, is there a substantial overlap between the investors or other participants in the transactions?
- Contingencies - For example, is one or more of the transactions contingent on completion of another of the transactions?
- Single plan of financing - For example, do the transactions constitute a single plan of financing? Was one contemplated at the time of the other?
There are normally four steps in the additional listing process. They are:
- company decides to issue additional shares of a listed security for any purpose whatsoever;
- company submits an additional listing application in the form prescribed by the Exchange, signed by an officer of the issuer, one to two weeks in advance of the date on which the Exchange approval is necessary, together with supporting documentation and relevant exhibits;
- the Exchange reviews and, if necessary, comments on the additional listing application; and
- the Exchange approves the application.
The following are examples of transactions that would require the filing of either an additional listing application or a substitution listing application:
- Private Placement
- Acquisition/Merger
- Secondary Public Offering
- Exchange Offer
- Debt Restructuring
- Stock Split
- Stock Option Plan
- Reverse Stock Split
- Re-Incorporation
- Reorganization
- Change in Par Value
Please be advised that the aforementioned transactions are only a few of the transactions which would require an additional listing or substitution listing application. For questions regarding the listing of additional shares on the NYSE Alternext US, please contact Ed Newhart at 212-306-2436.
Send the Application for Listing of Additional Shares ("LAS") to:
Ed Newhart
NYSE Regulation, Inc.
30 Broad Street, 5th Floor
New York, NY 10004
|
