Today we’re sharing Part 2 of an article written by Mike Melbinger on the timely and challenging matter of stock option repricing. Mike is a Partner in the Chicago Office of Winston & Strawn LLP. His law practice focuses exclusively on executive compensation and employee retirement benefit issues. Use this link to catch up, if you missed Part 1 yesterday of “Stock Option Repricing: When You Are Underwater.”
Follow-Up on Potential Alternative to Repricing Underwater Stock Options (Part 2)
(first published May 6, 2020)
A couple weeks ago, I wrote on SEC approval of the New York Stock Exchange’s request to provide temporary waivers of the shareholder approval requirements applicable to certain kinds of equity sales to officers and directors, see A Potential Alternative to Repricing Underwater Stock Options. This week, the SEC approved a similar request by Nasdaq.
Similar to the NYSE, Nasdaq Listing Rule 5635(c) requires shareholder approval for certain sales to officers, directors, employees, or consultants (affiliates) when such issuances could be considered a form of “equity compensation.” In light of many companies’ need to quickly raise capital during the pandemic, the SEC approved Nasdaq’s proposal to adopt Listing Rule 5636T(c)1, which would provide for an exception from shareholder approval under Listing Rule 5635(c)2 for an affiliate’s participation in a capital-raising transaction alongside non-affiliated investors. Unlike the NYSE rule, however, this exception will only apply if the affiliate’s participation in the transaction was specifically required by unaffiliated investors.
In addition, to protect against self-dealing, under the exception, an affiliate investing in the transaction must not have participated in negotiating the economic terms of the transaction, any affiliate’s participation must be less than 5% of the transaction, and all affiliates’ participation collectively must be less than 10% of the transaction.
To rely on this exception, a company must execute a binding agreement governing the issuance of the securities and submit certain notices no later than June 30, 2020. The company also must file a Form 8-K3 describing the transaction, but is not required to notify Nasdaq at least 15 calendar days in advance of the transaction, as normally would be required by Listing Rule 5250(e)(2)4.
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