December 7, 2009
Rule 5250(b)(1) requires that a company notify NASDAQ's MarketWatch of the release of information if that information involves any of the events set forth in IM 5250-1, including "any event requiring the filing of Form 8-K".
The purpose of the notice requirement in Rule 5250(b)(1) is to provide NASDAQ MarketWatch with the opportunity to consider whether to impose a trading halt. Thus, prior notice should only be required of information that would reasonably be expected to affect the value of a company's securities. In many instances a Form 8-K must be filed even though the information disclosed in the Form 8-K would not be expected to affect the value of the company's securities. For example, technical amendments to a company's bylaws must be reported in Item 5.03 to Form 8-K. However, it can be reasonably expected that the disclosure in the Form 8-K of these amendments in most instances will have no impact on the value of the company's securities.
For these reasons, I recommend that IM 5250-1 be amended to clarify that not every event requiring the filing of a Form 8-K must be notified ten minutes in advance. In particular, I recommend that "Any event requiring the filing of a Form 8-K" be amended to read as follows: "Any event requiring the filing of a Form 8-K when the event would reasonably be expected to affect the value of the Company's securities".