[Federal Register Volume 82, Number 235 (Friday, December 8, 2017)]
[Notices]
[Pages 58039-58042]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-26447]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-82209; File No. SR-IEX-2017-41]


Self-Regulatory Organizations; Investors Exchange LLC; Notice of 
Filing and Immediate Effectiveness of Proposed Rule Change To Amend 
Rules 14.501(a)(4), 14.501(d), and 14.502(b) To Modify the Process IEX 
Would Follow When a Company Fails To Hold an Annual Meeting of 
Shareholders, and To Correct Three Nonsubstantive Typographical Errors 
in Rules 14.502(b) and 14.504(b)

December 4, 2017.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that 
on November 20, 2017, the Investors Exchange LLC (``IEX'' or the 
``Exchange'') filed with the Securities and Exchange Commission 
(``Commission'') the proposed rule change as described in Items I, II, 
and III, below, which Items have been prepared by the Exchange. The 
Commission is publishing this notice to solicit comments on the 
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    Pursuant to the provisions of Section 19(b)(1) under the Securities 
Exchange Act of 1934 (``Act''),\3\ and Rule 19b-4 thereunder,\4\ 
Investors Exchange LLC (``IEX'' or ``Exchange'') is filing with the 
Commission proposed rule change to amend Rules 14.501(a)(4), 14.501(d), 
and 14.502(b) to modify the process IEX would follow when a company 
fails to hold an annual meeting of shareholders, and to correct three 
nonsubstantive typographical errors in Rules 14.502(b) and 14.504(b). 
The Exchange has designated this proposal as non-controversial and 
provided the Commission with the notice required by Rule 19b-
4(f)(6)(iii) under the Act.\5\ The text of the proposed rule change is 
available at the Exchange's Web site at www.iextrading.com, at the 
principal office of the Exchange, and at the Commission's Public 
Reference Room.
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    \3\ 15 U.S.C. 78s(b)(1).
    \4\ 17 CFR 240.19b-4.
    \5\ 17 CFR 240.19b-4(f)(6)(iii).
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II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the self-regulatory organization 
included statements concerning the purpose of and basis for the 
proposed rule change and discussed any comments it received on the 
proposed rule change. The text of these statement [sic] may be examined 
at the places specified in Item IV below. The self-regulatory 
organization has prepared summaries, set forth in Sections A, B, and C 
below, of the most significant aspects of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    On June 17, 2016, the Commission granted IEX's application for 
registration as a national securities exchange under Section 6 of the 
Act including approval of rules applicable to the qualification, 
listing and delisting of companies on the Exchange.\6\ The Exchange 
plans to begin listing companies in 2018.
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    \6\ See Securities Exchange Act Release No. 78101 (June 17, 
2016), 81 FR 41141 (June 23, 2016) (File No. 10-222).
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    Each company that would list common stock or voting preferred 
stock, and their equivalents, on IEX must hold an annual meeting of 
shareholders no later than one year after the end of the company's 
fiscal year and solicit proxies for that meeting.\7\ An annual meeting 
allows the equity owners of the company the opportunity to elect 
directors and meet with management to discuss company affairs. 
Currently, should a company fail to hold its annual meetings as 
required by Rule 14.408, staff of IEX Regulation (``Staff'') would have 
no discretion to allow additional time for the company to regain 
compliance. Rather, Staff would be required by Rule 14.501(d)(1) to 
issue a Delisting Determination, subjecting the company to immediate 
suspension and delisting unless the company appeals to the Listings 
Review Committee.\8\ IEX proposes to amend Rules 14.501(a)(4), 
14.501(d), and 14.502(b) to provide Staff with limited discretion to 
grant a listed company that failed to hold its annual meeting of 
shareholders an extension of time to comply with the requirement.\9\
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    \7\ See Rules 14.408(a) and (b), respectively. Rule 
14.407(a)(4)(D) also requires a limited partnership to hold an 
annual meeting of limited partners if required by statute or 
regulation in the state in which the limited partnership is formed 
or doing business or by the terms of the partnership's limited 
partnership agreement. Rule 14.407(a)(4)(F) requires the limited 
partnership to distribute information statements or proxies when a 
meeting of limited partners is required. The proposed process 
described herein would apply in the identical manner to limited 
partnerships required to hold a meeting as it does to other 
companies. See also Rules 14.407(a)(4)(D) and (F) (partner meetings 
and proxy solicitation of limited partnerships).
    \8\ A listed company may request review of a Staff Delisting 
Determination by the Listings Review Committee. A timely request for 
a hearing will stay the suspension and delisting pending the 
issuance of a written Panel Decision. See Rule 14.502.
    \9\ The Exchange notes that listed companies and certain limited 
partnerships are also required to solicit proxies and provide proxy 
statements for all meetings of shareholders or partners. See Rules 
14.408(b) and 14.407(a)(4)(F), respectively. A listed company or 
limited partnership that has not timely held an annual meeting has 
not violated the proxy solicitation rule because no meeting has been 
held.
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    IEX notes that the only other rule where a company would be subject 
to immediate suspension and delisting, besides when it fails to solicit 
proxies and hold an annual meeting, would be when Staff makes a 
determination pursuant to the Rule Series 14.100 that the company's 
continued listing raises a public interest concern. Such a 
determination would generally be made only following discussion and 
review of the facts and circumstances with the company. For all other 
deficiencies under Chapters 14 and 16 of the IEX rules, a listed 
company is provided with either a fixed compliance period within which 
to regain compliance,\10\ or given

[[Page 58040]]

the opportunity to submit a plan to regain compliance, which Staff 
would review and determine whether to grant the company a limited time 
to implement.\11\ Generally, a company would be allowed 45 days to 
submit the plan of compliance \12\ and, upon review of the plan, Staff 
could grant the company up to 180 days from the date of Staff's initial 
notification of the company's non-compliance to regain compliance.\13\ 
If upon review of the company's plan Staff determines that an extension 
is not warranted, Staff would issue a Delisting Determination,\14\ 
which triggers the company's right to request review by the Listings 
Review Committee.\15\
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    \10\ See Rule 14.501(d)(3).
    \11\ See Rule 14.501(d)(2).
    \12\ Companies deficient with the filing requirement for 
periodic reports are provided up to 60 days to submit a plan of 
compliance. See Rule 14.501(d)(2)(F). Staff can shorten these 
deadlines where deemed appropriate.
    \13\ See Rule 14.501(d)(2)(B)(i).
    \14\ See Rule 14.501(d)(2)(B)(ii).
    \15\ See Rule 14.502.
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    There are a variety of reasons a company may fail to timely hold an 
annual meeting. In many of these cases, the circumstances that 
precipitated the delay may arise just before a planned meeting. These 
can include, for example, situations where a company was required to 
adjourn and reschedule its annual meeting to allow its shareholders 
more time to review proxy materials in connection with a shareholder 
proxy contest. In other cases, a company could be unable to hold an 
annual meeting because it was delinquent in filing periodic reports and 
therefore could not include the required financial information in its 
proxy statement. In that case, under current listing rules, the company 
could receive an extension of time to regain compliance with the filing 
requirement. However, if during any such compliance period the company 
fails to hold an annual meeting of shareholders, Staff would be 
required to issue a delist determination at that time for both the 
filing delinquency and the annual meeting deficiency, even if the 
compliance period for the filing delinquency had not expired.\16\ Under 
these circumstances, as required by the Listing Rules, Staff would 
notify the company in writing of the annual meeting deficiency \17\ and 
the company would be required to publicly disclose such 
notification.\18\ The annual meeting deficiency would then be 
considered at the same time and together with the filing delinquency in 
any subsequent delisting proceeding.\19\
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    \16\ See Rule 14.501(d)(2)(A).
    \17\ See Rule 14.501(b).
    \18\ See Rule 14.501(c).
    \19\ See Rule 14.501(e).
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    For these reasons, IEX is proposing to amend Rules 14.501(a)(4), 
14.501(d), and 14.502(b) to afford those companies and limited 
partnerships that fail to hold an annual meeting in accordance with the 
listing rules an opportunity to submit a plan of compliance for Staff's 
review.\20\ As proposed, Rule 14.501(d)(2)(G) is entitled ``Annual 
Meeting'' and specifies the process applicable to deficiencies from the 
standards of Rules 14.408(a) and 14.407(a)(4)(D), which relate to 
Annual Meetings and Partner Meetings respectively. Subparagraph (i) 
provides that the Staff's notice shall provide the Company with 45 
calendar days to submit a plan to regain compliance with the listing 
standard; provided, however, that the Company shall not be provided 
with an opportunity to submit such a plan if review under the Rule 
Series 14.500 of a prior Staff Delisting Determination with respect to 
the Company is already pending. Staff may extend this deadline for up 
to an additional 15 calendar days upon good cause shown and may request 
such additional information from the Company as is necessary to make a 
determination regarding whether to grant such an extension. 
Subparagraph (ii) provides that the maximum additional time provided by 
all exceptions granted by Staff is 180 calendar days from the deadline 
to hold the annual meeting (one year after the end of the Company's 
fiscal year). In determining whether to grant an exception, and the 
length of any such exception, Staff will consider, and the Company 
should address in its plan of compliance, the Company's specific 
circumstances, including the likelihood that the Company would be able 
to hold an annual meeting within the exception period, the Company's 
past compliance history, the reasons for the failure to hold the annual 
meeting timely, corporate events that may occur within the exception 
period, the Company's general financial status, and the Company's 
disclosures to the market. This review will be based on information 
provided by a variety of sources, which may include the Company, its 
audit committee, its outside auditors, the staff of the SEC and any 
other regulatory body.
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    \20\ As noted above, the company or limited partnership 
generally would have 45 days to submit a plan to regain compliance, 
although Staff could shorten that period where it believes 
appropriate.
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    Additionally, proposed Rule 14.502(b)(1)(F) provides that the 
Listings Review Committee may grant an exception for a period not to 
exceed 360 days from the deadline to hold the annual meeting (one year 
after the end of the Company's fiscal year).\21\ This time frame is 
consistent with the limit on extensions that Nasdaq provides for its 
listed companies that fail to timely hold an annual meeting,\22\ and 
would incorporate any extension of time previously provided by the 
Staff, and is not cumulative with the 180 calendar day extension that 
the Staff can provide. IEX believes that the proposed rule change would 
provide consistency with the administration of other continued listing 
standards without undermining the requirement that IEX-listed companies 
hold annual meetings. Specifically, under existing IEX listing rules, a 
company that becomes deficient with the continued listing standards 
identified in IEX Rule 14.501(d)(2) and (3) is provided with either an 
opportunity to submit a plan to regain compliance or a specified cure 
period (as applicable) after it becomes deficient of up to 180 calendar 
days. Thereafter, if such company has not regained compliance it will 
receive a Staff Delisting Determination, but can appeal to the Listings 
Review Committee which has authority to grant an exception to the 
continued listing standards for an additional period not to exceed 180 
days from the date of the Staff Delisting Determination with respect to 
the deficiency for which the exception is granted.\23\
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    \21\ It is IEX's understanding that a substantial majority of 
Nasdaq-listed companies that received delisting notices for failing 
to solicit proxies and hold their annual meetings regain compliance 
within a six-month period. See Securities Exchange Act Release No. 
77137 (February 12, 2016), 81 FR 8582 (February 19, 2016) (SR-
NASDAQ-2015-144).
    \22\ See Nasdaq Rule 5815(c)(1)(G).
    \23\ As proposed, the 360 calendar day limit on extensions for 
annual meeting deficiencies would be several weeks less than the 
total amount of time that can be granted under current rules for the 
other continued listing deficiencies. As proposed, for annual 
meeting deficiencies, the maximum amount of time that can be granted 
is 360 days from deadline to hold an annual meeting (i.e., one year 
after the end of the Company's fiscal year end). In contrast, for 
other continued listing deficiencies that allow for a cure period or 
opportunity to submit a plan to regain compliance (except for number 
of market makers) the cure period or compliance plan extension can 
extend for 180 days, and then the Listings Review Committee can 
provide an additional 180 calendar days to regain compliance through 
an appeal. These 180 calendar day measurement periods include the 
time for Staff notification to the company plus the 15 calendar day 
appeal deadline and so in total would be greater 360 calendar days 
from the date of deficiency. See Rules 14.501(d)(2) and (3) and 
14.502(b)(1)(A).
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    A non-compliant company would have to publicly disclose, under both 
Commission and IEX rules, that it had

[[Page 58041]]

received notification of non-compliance with the annual meeting 
rule.\24\
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    \24\ See Rule 14.501(c) and Supplementary Material .01. See also 
Item 3.01 of SEC Form 8-K.
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    IEX is also proposing to modify Rule 14.501(a)(4) to make clear 
that a Public Reprimand Letter \25\ is not an available notification 
type for unresolved deficiencies from the standards of Rules 14.207(c) 
(obligation to file periodic financial reports), 14.407(a)(4)(D) 
(partner meetings of limited partnerships), and 14.408(a) (meetings of 
shareholders). This proposed change is substantially identical to 
Nasdaq Rule 5810(4). IEX Rule 14.500(b)(5) provides that a ``Public 
Reprimand Letter'' may be issued by the Staff or a Decision of the 
Listings Review Committee in cases where the Company has violated an 
Exchange corporate governance or notification listing standard (other 
than one required by Rule 10A-3 of the Act) and Staff or the Listings 
Review Committee determines that delisting is an inappropriate 
sanction. While the Exchange does not believe that the obligation to 
file periodic financial reports or hold an annual meeting fall within 
the coverage of Rule 14.500(b)(5), in view of Nasdaq's amendment to its 
comparable rule, the Exchange believes that the added clarity is 
appropriate to avoid any confusion among listed companies on a going 
forward basis.
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    \25\ See Rule 14.500(b)(5).
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    In addition, IEX is proposing conforming amendments to Rules 
14.501(d)(2)(A)(iii) and 14.501(d)(2)(B) to reflect that listed 
companies that are deficient with respect to the standards requiring 
annual meetings of shareholders or partner meetings of limited 
partners, pursuant to Rules 14.408(a) and 14.407(a)(4)(D) respectively, 
are included in the deficiencies for which a listed company may submit 
a Plan of Compliance for Staff review.
    Finally, IEX is proposing to correct three nonsubstantive 
typographical errors in Rules 14.502(b) and 14.504 which incorrectly 
refer to the Listing Review Committee rather than the Listings Review 
Committee.
    The Exchange does not propose to charge any fees in connection with 
the proposed rule change.
2. Statutory Basis
    IEX believes that the proposed rule change is consistent with 
Section 6(b) \26\ of the Act in general, and furthers the objectives of 
Section 6(b)(5) of the Act,\27\ in particular, in that it is designed 
to prevent fraudulent and manipulative acts and practices, to promote 
just and equitable principles of trade, to foster cooperation and 
coordination with persons engaged in facilitating transactions in 
securities, to remove impediments to and perfect the mechanism of a 
free and open market and a national market system and, in general, to 
protect investors and the public interest; and is not designed to 
permit unfair discrimination between customers, issuers, brokers, or 
dealers.
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    \26\ 15 U.S.C. 78f.
    \27\ 15 U.S.C. 78f(b)(5).
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    Specifically, the proposed changes are consistent with these 
requirements because they would provide a more efficient process to 
address annual meeting deficiencies by permitting staff to grant 
additional time to a company to comply with the annual meeting 
requirement in limited situations after Staff review of a compliance 
plan. The proposed changes, are consistent with the time frames 
available to Nasdaq companies that fail to hold an annual meeting, as 
well as the time frames available to IEX listed companies that become 
noncompliant with other continued listing standards, as described in 
the Purpose section. Furthermore, as is the case under the current 
rule, a company notified that it is deficient in the annual meeting 
requirement is required to publicly disclose such notice and the rules 
basis for it. IEX will also separately publicly disclose a list of 
noncompliant companies and the listing standards with which they do not 
comply. Accordingly, the Exchange believes that the proposed rule would 
protect investors and the public interest.
    As described in the Purpose section, there are various reasons why 
a company may not be able to hold an annual meeting and for which 
immediate delisting is an inappropriate outcome under the 
circumstances. In lieu of the current requirement, which would require 
that Staff send an immediate Delisting Determination in such 
circumstances, the proposal vests Staff with discretion to determine 
whether the reason for the deficiency and the plan to regain compliance 
merit an extension. The listing rules allow Staff such discretion for 
other deficiencies, and the only case where Staff would be required to 
send an immediate Delisting Determination is where Staff concludes, 
after review of the facts and circumstances, that continued listing is 
contrary to the public interest. IEX believes that it is consistent 
with the Act to provide Staff with discretion to grant an extension for 
an annual meeting deficiency based on a plan of compliance, consistent 
with the process that would be applicable for the majority of 
deficiencies under existing IEX listing rules. Accordingly, the 
Exchange believes that the proposal promotes the requirements of the 
Act by providing Staff with such limited discretion while maintaining 
Staff authority to initiate delisting of a company when warranted.
    The Exchange also notes that the proposed rule change is 
substantially identical to existing Nasdaq rules that were approved by 
the Commission, with differences only to account for the IEX 
streamlined delisting appeal structure (compared to the multiple levels 
of appeal provided for in Nasdaq rules) and terminology.\28\
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    \28\ See Securities Exchange Act Release No. 77137 (February 12, 
2016), 81 FR 8582 (February 19, 2016) (SR-NASDAQ-2015-144).
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    In its approval of the Nasdaq rule filing adopting comparable 
rules, the Commission stresses that ``[t]he development and enforcement 
of meaningful corporate governance listing standards for a national 
securities exchange is of substantial importance to financial markets 
and the investing public'' as well as the critical importance of annual 
meetings of shareholders to allow shareholders the ability to exercise 
their rights to participate in corporate governance matters. The 
Commission also emphasized that under the Nasdaq proposal, ``Staff 
retains discretion not to grant an exception from the continued listing 
requirements to a company that has failed to hold its annual meeting on 
time'' and that ``[t]he Commission expects Staff to exercise this 
discretion carefully and discerningly. . . and based on the specified 
rule factors.'' \29\ In approving the Nasdaq rule filing the Commission 
thus found that such rule change was reasonably designed to further the 
goals of Section 6(b)(5) of the Act. As discussed in the Purpose 
section, the Exchange will retain the same discretion, subject to the 
same standards, pursuant to proposed Rule 14.501(d)(2)(G).
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    \29\ See supra note 28.
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    The Exchange believes that the same factors and analysis that led 
to the Commission's approval of the comparable Nasdaq rule change are 
applicable to IEX's proposed rule change. Consequently, the Exchange 
does not believe that the proposed rule change raises any new or novel 
issues.
    The Exchange also believes that it is consistent with the 
protection of investors and the public interest to make clear in IEX 
rules that a Public Reprimand Letter does not apply to deficiencies 
from the obligation to file periodic financial reports or the 
requirement to hold an annual meeting

[[Page 58042]]

in order to provide transparency that the only cure under Exchange 
rules is for the company to file the periodic financial report or hold 
its annual meeting.
    Finally, the Exchange believes that it is consistent with the 
protection of investors and the public interest to correct the three 
nonsubstantive typographical errors in Rules 14.502(b) and 14.504 to 
avoid any confusion among potential listed companies.

B. Self-Regulatory Organization's Statement on Burden on Competition

    IEX does not believe that the proposed rule change will result in 
any burden on competition that is not necessary or appropriate in 
furtherance of the purposes of the Act. The proposed rule change is 
designed to promote consistent and fair regulation, rather than for any 
competitive purpose. Moreover, as a new listing exchange, IEX has 
extremely limited ability to impose any burden on competition.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    Written comments were neither solicited nor received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    The Exchange has designated this rule filing as non-controversial 
under Section 19(b)(3)(A) \30\ of the Act and Rule 19b-4(f)(6) \31\ 
thereunder. Because the proposed rule change does not: (i) 
Significantly affect the protection of investors or the public 
interest; (ii) impose any significant burden on competition; and (iii) 
become operative for 30 days from the date on which it was filed, or 
such shorter time as the Commission may designate, it has become 
effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-
4(f)(6) thereunder.
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    \30\ 15 U.S.C. 78s(b)(3)(A).
    \31\ 17 CFR 240.19b-4(f)(6).
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    At any time within 60 days of the filing of the proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is necessary or 
appropriate in the public interest, for the protection of investors, or 
otherwise in furtherance of the purposes of the Act. If the Commission 
takes such action, the Commission shall institute proceedings under 
Section 19(b)(2)(B) \32\ of the Act to determine whether the proposed 
rule change should be approved or disapproved.
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    \32\ 15 U.S.C. 78s(b)(2)(B).
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IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule 
change is consistent with the Act. Comments may be submitted by any of 
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include 
File Number SR-IEX-2017-41 on the subject line.

Paper Comments

     Send paper comments in triplicate to Brent J. Fields, 
Secretary, Securities and Exchange Commission, 100 F Street NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number SR-IEX-2017-41. This file 
number should be included on the subject line if email is used. To help 
the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's Internet Web site (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all 
written statements with respect to the proposed rule change that are 
filed with the Commission, and all written communications relating to 
the proposed rule change between the Commission and any person, other 
than those that may be withheld from the public in accordance with the 
provisions of 5 U.S.C. 552, will be available for Web site viewing and 
printing in the Commission's Public Reference Room, 100 F Street NE., 
Washington, DC 20549, on official business days between the hours of 
10:00 a.m. and 3:00 p.m. Copies of the filing also will be available 
for inspection and copying at the principal office of the Exchange. All 
comments received will be posted without change. Persons submitting 
comments are cautioned that we do not redact or edit personal 
identifying information from comment submissions. You should submit 
only information that you wish to make available publicly. All 
submissions should refer to File Number SR-IEX-2017-41 and should be 
submitted on or before December 29, 2017.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\33\
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    \33\ 17 CFR 200.30-3(a)(12).
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Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2017-26447 Filed 12-7-17; 8:45 am]
 BILLING CODE 8011-01-P