Section 1503(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act contains new reporting requirements regarding mine safety in certain circumstances. Issuers that are operators of a coal or other mine are required to file a current report on Form 8-K upon the receipt of an imminent danger order under section 107(a) of the Federal Mine Safety and Health Act of 1977 (the “Mine Act”) issued by the Mine Safety and Health Administration ("MSHA"). Recent 8-K filings with such disclosure include:
Massey Energy Co. on 11/26/10 (SEC file no. 1-7775)
Patriot Coal Corp. on 11/12/10 (file no. 1-33466)
Alpha Natural Resources, Inc. on 10/25/10 (file no. 1-32331)
Dodd-Frank Section 1503(b) also requires Form 8-K disclosure upon the receipt of written notice from MSHA that the coal or other mine has a pattern of violations of mandatory health or safety standards under Section 104(e) of the Mine Act, or the potential to have such a pattern. Recent 8-K filings with such disclosure include:
FirstEnergy Corp. on 11/26/10 (SEC file no. 333-21011)
James River Coal Co. on 11/24/10 (file no. 0-51129)
Rhino Resource Partners LP on 11/24/10 (file no. 1-34892)
Section 1503(a) of Dodd-Frank requires reporting companies that operate mines to provide certain safety information in their periodic reports filed with the SEC. Such information includes the total number of mining-related fatalities, the total number of violations or citations under various sections of the Mine Act, and the total dollar value of proposed assessments from the MSHA. Recent Form 10-Q filings provide examples in Part II, Item 5:
Molycorp, Inc. on 11/15/10 (SEC file no. 1-34827)
Granite Construction Inc. on 11/9/10 (file no. 1-12911)
3M Co. on 11/5/10 (file no. 1-3285)
Monday, November 29, 2010
Wednesday, November 17, 2010
Reverse Stock Splits to Ensure Minimum Bid Price for Nasdaq Listing
XO Holdings, Inc. PRE 14C on 11/17/10 (SEC file no. 0-30900)
OXiGENE, Inc. DEF14A on 11/12/10 (SEC file no. 0-21990)
Atrinsic, Inc. DEF14A on 10/25/10 (SEC file no. 1-12555)
Telecom services provider XO Holdings, which trades on the OTC Bulletin Board at a price per share below $1 for the past two years, intends to apply for listing on the Nasdaq Global Market. In order to increase the minimum bid price of the common stock to above the $4 minimum bid price required to apply for listing, the XO board of directors on November 16 unanimously authorized an amendment to its certificate of incorporation to effect a one-for-twenty reverse stock split. The preliminary information statement reports that stockholders affiliated with XO chairman Carl C. Icahn who collectively own more than 50% of the total voting power of the outstanding capital stock have consented to the amendment, which under Delaware law is sufficient for approval.
OXiGENE and Atrinsic already trade on the Nasdaq Global Market under the ticker symbols OXGN and ATRN, respectively. Both issuers had received notice that for the last 30 consecutive business days, the bid price of the common shares closed below the minimum $1 per share requirement pursuant to Nasdaq Listing Rule 5450(a)(1) for continued inclusion on the Nasdaq Global Market. In order to increase the market price per share and regain compliance with the minimum bid price requirement, OXiGENE and Atrinsic seek shareholder approval to amend their respective certificates of incorporation to effect a reverse stock split at the discretion of the board of directors at a ratio within a specified range.
OXiGENE, Inc. DEF14A on 11/12/10 (SEC file no. 0-21990)
Atrinsic, Inc. DEF14A on 10/25/10 (SEC file no. 1-12555)
Telecom services provider XO Holdings, which trades on the OTC Bulletin Board at a price per share below $1 for the past two years, intends to apply for listing on the Nasdaq Global Market. In order to increase the minimum bid price of the common stock to above the $4 minimum bid price required to apply for listing, the XO board of directors on November 16 unanimously authorized an amendment to its certificate of incorporation to effect a one-for-twenty reverse stock split. The preliminary information statement reports that stockholders affiliated with XO chairman Carl C. Icahn who collectively own more than 50% of the total voting power of the outstanding capital stock have consented to the amendment, which under Delaware law is sufficient for approval.
OXiGENE and Atrinsic already trade on the Nasdaq Global Market under the ticker symbols OXGN and ATRN, respectively. Both issuers had received notice that for the last 30 consecutive business days, the bid price of the common shares closed below the minimum $1 per share requirement pursuant to Nasdaq Listing Rule 5450(a)(1) for continued inclusion on the Nasdaq Global Market. In order to increase the market price per share and regain compliance with the minimum bid price requirement, OXiGENE and Atrinsic seek shareholder approval to amend their respective certificates of incorporation to effect a reverse stock split at the discretion of the board of directors at a ratio within a specified range.
Wednesday, November 10, 2010
Merger Parties Rely on IRS "Signing Date Rule" for Intended Tax Treatment
Robbins & Myers, Inc. has registered common stock valued at approximately $386 million in connection with a proposed merger with T-3 Energy Services, Inc. (Form S-4 on 11/10/10, SEC file no. 333-170502). If the merger is completed, T-3 stockholders will receive 0.894 issuer common shares plus $7.95 in cash, without interest, for each T-3 common share. This exchange ratio is fixed and will not be adjusted to reflect stock price changes prior to the closing of the merger.
In order to qualify as a tax-free reorganization, the merger must comply with certain requirements under Section 368(a) of the Internal Revenue Code, including that at least 40% of the total consideration received by target stockholders in the merger must consist of Robbins common stock. Because the terms of the merger agreement provide for a fixed number of common shares to be transferred to T-3 stockholders, it is unknown at the time of the special meetings whether the 40% continuity of interest test will be met if such calculation is based on the value of the Robbins stock on the closing date of the merger.
The Treasury Department has provided guidance in the form of temporary and proposed treasury regulations, whereby if a binding contract that provides for fixed consideration is entered into, fluctuations in the value of the stock consideration subsequent to the entry into the contract will not affect the determination of whether the transaction qualifies as a Section 368(a) reorganization. Robbins and T-3 will use this "signing date rule" for purposes of applying the continuity of interest test. Even though the temporary treasury regulations expired on March 19, 2010, Notice 2010-25, 2010-14 I.R.B. provides that the proposed treasury regulations may be relied on by certain parties involved in the transactions if all such parties elect to apply the provisions under the regulations.
In order to qualify as a tax-free reorganization, the merger must comply with certain requirements under Section 368(a) of the Internal Revenue Code, including that at least 40% of the total consideration received by target stockholders in the merger must consist of Robbins common stock. Because the terms of the merger agreement provide for a fixed number of common shares to be transferred to T-3 stockholders, it is unknown at the time of the special meetings whether the 40% continuity of interest test will be met if such calculation is based on the value of the Robbins stock on the closing date of the merger.
The Treasury Department has provided guidance in the form of temporary and proposed treasury regulations, whereby if a binding contract that provides for fixed consideration is entered into, fluctuations in the value of the stock consideration subsequent to the entry into the contract will not affect the determination of whether the transaction qualifies as a Section 368(a) reorganization. Robbins and T-3 will use this "signing date rule" for purposes of applying the continuity of interest test. Even though the temporary treasury regulations expired on March 19, 2010, Notice 2010-25, 2010-14 I.R.B. provides that the proposed treasury regulations may be relied on by certain parties involved in the transactions if all such parties elect to apply the provisions under the regulations.
Monday, November 8, 2010
Issuer Share Repurchases Through "Dutch Auction" Self-Tender Offers
iMergent, Inc. Schedule TO dated 11/3/10 (SEC file no. 005-59275)
Premiere Global Services, Inc. Schedule TO on 10/27/10 (005-47353)
Silgan Holdings Inc. Schedule TO dated 10/8/10 (file no. 005-53165)
Scholastic Corp. Schedule TO dated 9/28/10 (file no. 005-42284)
Each of the companies listed above filed Tender Offer Statements to purchase a specified number of its common shares for cash by means of a modified “Dutch auction.” This procedure allows tendering shareholders to select a price within a price range specified by the company at which such shareholders are willing to sell shares. After the tender offer expires, the company selects the lowest purchase price per share within the range that will allow it to purchase the desired number of shares. All shares are purchased at the same price, even if tendered at a lower price.
The Offer to Purchase is the first exhibit to each filing and includes the background and purpose of the offer. The offers provide shareholders an opportunity to obtain liquidity with respect to all or a portion of their shares without potential disruption to the stock price and the usual transaction costs associated with open market sales, while at the same time increasing non-tendering shareholders’ proportionate interest in the company. It is common for such offers to give priority to holders of fewer than 100 shares (odd lots) in order to reduce the administrative costs of mailing securities filings and notices to such shareholders.
Premiere Global Services, Inc. Schedule TO on 10/27/10 (005-47353)
Silgan Holdings Inc. Schedule TO dated 10/8/10 (file no. 005-53165)
Scholastic Corp. Schedule TO dated 9/28/10 (file no. 005-42284)
Each of the companies listed above filed Tender Offer Statements to purchase a specified number of its common shares for cash by means of a modified “Dutch auction.” This procedure allows tendering shareholders to select a price within a price range specified by the company at which such shareholders are willing to sell shares. After the tender offer expires, the company selects the lowest purchase price per share within the range that will allow it to purchase the desired number of shares. All shares are purchased at the same price, even if tendered at a lower price.
The Offer to Purchase is the first exhibit to each filing and includes the background and purpose of the offer. The offers provide shareholders an opportunity to obtain liquidity with respect to all or a portion of their shares without potential disruption to the stock price and the usual transaction costs associated with open market sales, while at the same time increasing non-tendering shareholders’ proportionate interest in the company. It is common for such offers to give priority to holders of fewer than 100 shares (odd lots) in order to reduce the administrative costs of mailing securities filings and notices to such shareholders.
Friday, November 5, 2010
Companies in the Wind Power Industry Going Public
Development stage company WildCap Energy Inc. filed a Form S-1 on November 5 for the resale of common stock by selling shareholders (SEC file no. 333-170377). WildCap seeks to commercialize technology developed at the University of Arizona for vertical axis wind turbines using active flow control. The option agreement signed on 1/10/10 by the company and The Arizona Board of Regents is filed as Exhibit 10.1. The parties are presently negotiating a license agreement that will be subject to any rights of the U.S. Government to utilize the technology royalty free.
First Wind Holdings Inc. has been in registration for an initial public offering since July 2008. The independent wind energy company focuses on development and operation of utility-scale wind energy projects in the United States. First Wind set the price range for its underwritten $200 million IPO in the S-1 Amendment filed on 10/13/10 (file no. 333-152671). The Registration Statement was declared effective and the shares approved for listing on the Nasdaq Global Select Market as of October 27.
China Ming Yang Wind Power Group Limited completed its $350 million IPO on October 4 with American Depositary Shares trading on the NYSE under the symbol "MY" (file no. 333-169256). The manufacturer of megawatt-class wind turbines is incorporated in the Cayman Islands and is the largest non-state owned or controlled wind turbine manufacturer in China. China Ming Yang filed a Form 6-K on 10/13/10 to discuss the results of a national bidding process for four offshore wind farm concession projects in China.
First Wind Holdings Inc. has been in registration for an initial public offering since July 2008. The independent wind energy company focuses on development and operation of utility-scale wind energy projects in the United States. First Wind set the price range for its underwritten $200 million IPO in the S-1 Amendment filed on 10/13/10 (file no. 333-152671). The Registration Statement was declared effective and the shares approved for listing on the Nasdaq Global Select Market as of October 27.
China Ming Yang Wind Power Group Limited completed its $350 million IPO on October 4 with American Depositary Shares trading on the NYSE under the symbol "MY" (file no. 333-169256). The manufacturer of megawatt-class wind turbines is incorporated in the Cayman Islands and is the largest non-state owned or controlled wind turbine manufacturer in China. China Ming Yang filed a Form 6-K on 10/13/10 to discuss the results of a national bidding process for four offshore wind farm concession projects in China.
Tuesday, November 2, 2010
Issuers Amending Bylaws to Reflect Possibility of Dual Record Dates
First Niagara Financial Group, Inc. Form 8-K on 9/23/10 (SEC file no. 0-23975)
News Corp. Form 10-K on 8/6/10 (file no. 1-32352)
Standard Parking Corp. Form 8-K on 1/27/10 (file no. 0-50796)
Companies set a date — known as the “record date” — on which persons who are shareholders on such date are entitled to receive notice of a meeting and to vote at the meeting. If a shareholder sells after the record date, that person (who no longer holds the shares) still has the right to vote. This can mean that holders without an economic stake in the matter can influence the outcome of a vote.
Effective in August 2009, changes to the Delaware General Corporation Law allow boards to fix one record date for determining stockholders entitled to notice of a stockholder meeting and a separate record date for determining the stockholders entitled to vote at the meeting. Each of the filings listed above report amendments to the company's bylaws approved by the board of directors, and each present the restated bylaws as an exhibit.
News Corp. Form 10-K on 8/6/10 (file no. 1-32352)
Standard Parking Corp. Form 8-K on 1/27/10 (file no. 0-50796)
Companies set a date — known as the “record date” — on which persons who are shareholders on such date are entitled to receive notice of a meeting and to vote at the meeting. If a shareholder sells after the record date, that person (who no longer holds the shares) still has the right to vote. This can mean that holders without an economic stake in the matter can influence the outcome of a vote.
Effective in August 2009, changes to the Delaware General Corporation Law allow boards to fix one record date for determining stockholders entitled to notice of a stockholder meeting and a separate record date for determining the stockholders entitled to vote at the meeting. Each of the filings listed above report amendments to the company's bylaws approved by the board of directors, and each present the restated bylaws as an exhibit.
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