At the annual meeting of stockholders held this week for three Delaware-incorporated issuers, amended and restated articles of incorporation were approved to provide for the phased-in declassification of the board of directors. Avery Dennison Corp. and Life Technologies Corp. also made corresponding amendments to restated bylaws, which are included as exhibits to the respective Form 8-K filings dated 4/29 and 4/28/11 (SEC file nos. 1-07685 and 0-25317).
First Niagara Financial Group, Inc. (0-23975) filed the restated articles with the Form 8-K dated April 27 that reports stockholder approval of the board declassification. Previously, First Niagara directors were elected for staggered terms of three years. In the declassification proposal presented in the Schedule 14A proxy statement filed March 21, the board indicates that it considered the corporate governance trend towards annual election of directors, as well as the view of many corporate governance experts and institutional shareholders that a classified board has the effect of insulating directors from a corporation’s stockholders.
Commencing with the First Niagara board class standing for election at the 2012 annual meeting, directors will stand for election for one-year terms, expiring at the next succeeding annual meeting of stockholders. The class of directors that stood for election at this year’s annual meeting for a term ending in 2014 and the class of directors whose term ends in 2013 will continue to hold office until the end of the terms for which they are elected and will stand for election for one year terms thereafter. Commencing in 2014, all directors will be elected on an annual basis.
Avery Dennison and Life Technologies also had three classes of directors with staggered three year terms. The proposals to phase out the board classification and gradually move to one year terms are presented in the proxy statements filed on 3/17 and 3/18/11, respectively.
Friday, April 29, 2011
Tuesday, April 19, 2011
Issuer No Longer Eligible to Use Form S-3, Files S-1 and Post-Effective Amendment
Cytomedix, Inc. securities were delisted from the NYSE Amex on January 25, 2011, and began to be quoted on the OTC Bulletin Board. By Form 8-K filed January 21, the company reported that it had withdrawn its appeal of the determination that it had not timely regained compliance with the Exchange’s continued listing standards because stockholders’ equity is less than $6M. Consequently, Cytomedix is no longer eligible to use Form S-3.
The company filed a universal shelf registration on Form S-3 on 12/3/07 that was declared effective on 3/28/08 (SEC File No. 333-147793). To maintain the registration of these previously registered securities, Cytomedix filed a Form S-1 on 4/12/11 and a registration fee in respect of the common shares was paid concurrently with the filing (333-173463).
A subsequent Form S-3 filed by Cytomedix which registered common shares for resale, from time to time, on behalf of certain selling shareholders was declared effective on 11/3/10 (333-168936). On 4/12/11, the company filed Post-Effective Amendment No. 1 to Form S-3 on Form S-1 to convert its registration statement on Form S-3 to Form S-1. All filing fees payable in connection with the registration of these securities were previously paid in connection with the filing of the original registration statement.
The company filed a universal shelf registration on Form S-3 on 12/3/07 that was declared effective on 3/28/08 (SEC File No. 333-147793). To maintain the registration of these previously registered securities, Cytomedix filed a Form S-1 on 4/12/11 and a registration fee in respect of the common shares was paid concurrently with the filing (333-173463).
A subsequent Form S-3 filed by Cytomedix which registered common shares for resale, from time to time, on behalf of certain selling shareholders was declared effective on 11/3/10 (333-168936). On 4/12/11, the company filed Post-Effective Amendment No. 1 to Form S-3 on Form S-1 to convert its registration statement on Form S-3 to Form S-1. All filing fees payable in connection with the registration of these securities were previously paid in connection with the filing of the original registration statement.
Thursday, April 14, 2011
Amended Rule 19b-4 Defines Business Day in Event of Government Shutdown
By Final Rule that became effective on April 13, 2011, the SEC has amended 1934 Act Rule 19b-4 so that references to “business day” in Section 19(b) of the Exchange Act and Rule 19b-4 thereunder refer to a day other than a Saturday, Sunday, Federal holiday, a day that the U.S. Office of Personnel Management has announced that Federal agencies in the Washington, DC area are closed to the public, a day on which the SEC is subject to a Federal government shutdown in the event of a lapse in appropriations, or a day on which the Commission’s Washington, DC office is otherwise not open for regular business.
Section 19(b) provides the time frames within which the SEC must act in connection with the review and processing of self-regulatory organization proposed rule changes. In particular, Section 19(b)(10)(B) of the Exchange Act provides that the SEC may, within seven business days after receipt of a filing, reject as improperly filed a filing that does not comply with SEC rules relating to the required form of a proposed rule change. Rule 19b-4 did not previously define what constitutes a business day.
The SEC explained that, by excluding as business days those days on which it is not open for regular business, during which it lacks personnel to review the proposed rule changes, the amendment facilitates the statutory purposes and requirements for a full and adequate review. Without the rule change, an SRO proposal might go into effect in the absence of a review, publication in the Federal Register or an opportunity for public comment, all of which are contemplated by the 1934 Act.
Because the amendment was technical in nature and pertains to the SEC’s organization, procedure or practice, it was not necessary to publish it for comment. The SEC found good cause for the technical amendment to take effect immediately.
Section 19(b) provides the time frames within which the SEC must act in connection with the review and processing of self-regulatory organization proposed rule changes. In particular, Section 19(b)(10)(B) of the Exchange Act provides that the SEC may, within seven business days after receipt of a filing, reject as improperly filed a filing that does not comply with SEC rules relating to the required form of a proposed rule change. Rule 19b-4 did not previously define what constitutes a business day.
The SEC explained that, by excluding as business days those days on which it is not open for regular business, during which it lacks personnel to review the proposed rule changes, the amendment facilitates the statutory purposes and requirements for a full and adequate review. Without the rule change, an SRO proposal might go into effect in the absence of a review, publication in the Federal Register or an opportunity for public comment, all of which are contemplated by the 1934 Act.
Because the amendment was technical in nature and pertains to the SEC’s organization, procedure or practice, it was not necessary to publish it for comment. The SEC found good cause for the technical amendment to take effect immediately.
Wednesday, April 6, 2011
SEC Publishes Small Entity Compliance Guide for Exchange Act Section 14A
As reported in this blog on January 31, 2011, the SEC adopted amendments to its disclosure rules and forms on January 25 for public companies that are subject to federal proxy rules. Such amendments, inserted as Section 14A to the Securities Exchange Act of 1934 and relating to shareholder approval of executive compensation, took effect on April 4.
The new rules implement Section 951 of the Dodd-Frank Reform Act, which allows the SEC to exempt smaller issuers from its requirements. All public companies other than smaller reporting companies, must hold say-on-pay and frequency votes at shareholder meetings starting January 21, 2011. Smaller reporting companies will be subject to the votes at annual meetings starting on January 21, 2013. The SEC has published a small entity compliance guide to assist registrants with compliance.
Companies are required to disclose preliminary vote results within four business days of the completion of the shareholder meeting and final voting results within four business days after those results are known on Form 8-K. Companies other than smaller reporting companies are required to address in the Compensation Discussion and Analysis (CD&A) whether and, if so, how their compensation policies and decisions have taken into account the results of the most recent say-on-pay vote. Smaller reporting companies are not required to provide a CD&A.
A smaller reporting company is one that has a common equity public float of less than $75 million as of the last business day of its most recently completed second fiscal quarter or one that is unable to calculate its public float and has annual revenue of $50 million or less upon entering the system.
The new rules implement Section 951 of the Dodd-Frank Reform Act, which allows the SEC to exempt smaller issuers from its requirements. All public companies other than smaller reporting companies, must hold say-on-pay and frequency votes at shareholder meetings starting January 21, 2011. Smaller reporting companies will be subject to the votes at annual meetings starting on January 21, 2013. The SEC has published a small entity compliance guide to assist registrants with compliance.
Companies are required to disclose preliminary vote results within four business days of the completion of the shareholder meeting and final voting results within four business days after those results are known on Form 8-K. Companies other than smaller reporting companies are required to address in the Compensation Discussion and Analysis (CD&A) whether and, if so, how their compensation policies and decisions have taken into account the results of the most recent say-on-pay vote. Smaller reporting companies are not required to provide a CD&A.
A smaller reporting company is one that has a common equity public float of less than $75 million as of the last business day of its most recently completed second fiscal quarter or one that is unable to calculate its public float and has annual revenue of $50 million or less upon entering the system.
Friday, April 1, 2011
Oil & Gas Independent Engages M&A Consultant for Russian Project
Arcland Energy Corp., a Utah-incorporated exploration and development company headquartered in Dallas, has entered into a consulting agreement for mergers and acquisition services with Digital Associates Capital Limited, a United Kingdom limited liability company engaged in investment banking services. The agreement provides for Digital to render financing services for asset acquisitions in the oil and gas production and refinery industry in oil fields located in or related to the Russian Federation, including without limitation, securing and evaluating acquisition opportunities and financing options.
The agreement has an initial term of 364 days from the effective date with automatic one year renewals provided neither party has provided written notice of termination not later than six months before the automatic renewal. In connection with and at the Arcland's closing of an oil and natural gas transaction in or related to the Russian Federation, Arcland shall pay a fee to Digital equal to 3% of the total purchase price of the applicable oil and natural gas assets acquired by the company. The agreement is dated March 30 and is Exhibit 10.1 to the Form 8-K filed on April 1 (SEC file no. 0-10315).
Arcland executed a Letter of Intent on March 7 with Switzerland's Linnem Development Corporation SA to acquire a 75 percent interest in a Russian oilfield. Subject to a formal definitive agreement to be entered into within 90 days of the execution of the letter of intent, Arcland will acquire a 75% stake plus one share in the existing Kumskaya Neft project upon, among other things, completion of financing of at least $125,000,000 to develop and operate the oilfields. Upon the prospective closing, the Kumskaya Neft project would become a wholly-owned subsidiary of the company.
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