[Federal Register Volume 85, Number 183 (Monday, September 21, 2020)]
[Notices]
[Pages 59349-59353]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-20702]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-89878; File No. SR-NASDAQ-2020-057]


Self-Regulatory Organizations; The Nasdaq Stock Market LLC; 
Notice of Filing of Proposed Rule Change To Allow Companies To List in 
Connection With a Direct Listing With a Primary Offering in Which the 
Company Will Sell Shares Itself in the Opening Auction on the First Day 
of Trading on Nasdaq and To Explain How the Opening Transaction for 
Such a Listing Will Be Effected

September 15, 2020.
    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 September 4, 2020, The Nasdaq Stock Market LLC (``Nasdaq'' or the 
``Exchange'') filed with the Securities and Exchange Commission 
(``SEC'' or ``Commission'') the proposed rule change as described in 
Items I and II 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

    The Exchange proposes to allow companies to list in connection with 
a primary offering in which the company will sell shares itself in the 
opening auction on the first day of trading on Nasdaq and to explain 
how the opening transaction for such a listing will be effected.
    The text of the proposed rule change is available on the Exchange's 
website at https://listingcenter.nasdaq.com/rulebook/nasdaq/rules, at 
the principal office of the Exchange, and at the Commission's Public 
Reference Room.

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 Exchange included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the

[[Page 59350]]

proposed rule change. The text of these statements may be examined at 
the places specified in Item IV below. The Exchange 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
    Nasdaq proposes to (1) adopt Listing Rule IM-5315-2 to permit a 
company to list in connection with a primary offering in which the 
company will sell shares itself in the opening auction on the first day 
of trading on the Exchange (a ``Direct Listing with a Capital Raise''); 
\3\ (2) amend Rule 4702 to add a new order type (the ``Company Direct 
Listing Order''), which will be used during the Nasdaq Halt Cross for 
the shares offered by the company in a Direct Listing with a Capital 
Raise; and (3) amend Rules 4120(c)(9), 4573(a)(3) and 4753(b)(2) to 
establish requirements for disseminating information, establishing the 
opening price and initiating trading through the Nasdaq Halt Cross in a 
Direct Listing with a Capital Raise.
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    \3\ A Direct Listing with a Capital Raise includes situations 
where either: (i) Only the company itself is selling shares in the 
opening auction on the first day of trading; or (ii) the company is 
selling shares and selling shareholders may also sell shares in such 
opening auction.
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Proposed Listing Rule IM-5315-2
    Listing Rule IM-5315-1 provides additional initial listing 
requirements for listing a company that has not previously had its 
common equity securities registered under the Act on the Nasdaq Global 
Select Market at the time of effectiveness of a registration statement 
filed solely for the purpose of allowing existing shareholders to sell 
their shares (a ``Direct Listing''). To allow a company to also sell 
shares on its own behalf in connection with its initial listing upon 
effectiveness of a registration statement, without a traditional 
underwritten public offering, the Exchange proposes to adopt Listing 
Rule IM-5315-2. This proposed rule would allow a company that has not 
previously had its common equity securities registered under the Act, 
to list its common equity securities on the Nasdaq Global Select Market 
at the time of effectiveness of a registration statement pursuant to 
which the company itself will sell shares in the opening auction on the 
first day of trading on the Exchange.
    In considering the initial listing of a company in connection with 
a Direct Listing on the Nasdaq Global Select Market, Listing Rule IM-
5315-1 currently provides that the Exchange will determine that such 
company has met the applicable Market Value of Unrestricted Publicly 
Held Shares requirements based on the lesser of: (i) An independent 
third-party valuation of the company (a ``Valuation''); \4\ and (ii) 
the most recent trading price for the company's common stock in a 
Private Placement Market where there has been sustained recent trading. 
For a security that has not had sustained recent trading in a Private 
Placement Market \5\ prior to listing, Nasdaq will determine that such 
Company has met the Market Value of Unrestricted Publicly Held Shares 
requirement if the Company satisfies the applicable Market Value of 
Unrestricted Publicly Held Shares requirement and provides a Valuation 
evidencing a Market Value of Publicly Held Shares of at least 
$250,000,000.
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    \4\ IM-5315-1 describes the requirement for a Valuation, 
including the experience and independence of the entity providing 
the Valuation.
    \5\ Nasdaq defines ``Private Placement Market'' in Listing Rule 
5005(a)(34) as a trading system for unregistered securities operated 
by a national securities exchange or a registered broker-dealer.
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    In contrast, when applying this requirement to a Direct Listing 
with a Capital Raise, the Exchange and investors know the minimum price 
at which the company can sell shares in the offering, and therefore is 
proposing the following:
     Nasdaq will calculate the value of shares, including those 
being sold by the company and those held by public shareholders 
immediately prior to the listing, using a price per share equal to the 
price that is 20% below the lowest price in the price range disclosed 
by the issuer in its registration statement.\6\ Nasdaq also will 
determine whether the company has met the applicable bid price and 
market capitalization requirements based on the same per share price.
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    \6\ As described below, the Nasdaq Halt Cross would not execute 
at a price that is more than 20% below the bottom of the disclosed 
range. Thus, this is the minimum price at which the company could 
list in connection with a Direct Listing with a Capital Raise.
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     In determining whether the company satisfies the Market 
Value of Unrestricted Publicly Held Shares for initial listing on the 
Nasdaq Global Select Market, the Exchange will deem such Company to 
have met the applicable requirement if the amount of the Company's 
Unrestricted Publicly Held Shares before the offering, along with the 
market value of the shares to be sold by the company in the Direct 
Listing with a Capital Raise is at least $110 million (or $100 million, 
if the Company has stockholders' equity of at least $110 million).\7\
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    \7\ For example, if the company is selling five million shares 
in the opening auction and there are 45 million shares issued and 
outstanding immediately prior to the listing that are eligible for 
inclusion as unrestricted publicly-held shares based on disclosure 
in the company's registration statement, then the Market Value of 
Unrestricted Publicly Held Shares will be calculated based on a 
combined total of 50 million shares. If the lowest price of the 
price range disclosed in the company's registration statement is $10 
per share, the Exchange will attribute to the company a Market Value 
of Unrestricted Publicly Held Shares of $400 million, based on a $8 
price per share, which is 20% below the bottom of the disclosed 
range ($10).
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    Officers, directors or owners of more than 10% of the company's 
common stock prior to the opening auction may purchase shares sold by 
the company in the opening auction, provided that such purchases are 
not inconsistent with general anti-manipulation provisions, Regulation 
M, and other applicable securities laws. In addition, in the same way 
as for shares of a company listing following a traditional underwritten 
IPO, such an insider owner may purchase shares sold by other 
shareholders or sell its own shares in the opening auction and in 
trading after the opening auction, to the extent not inconsistent with 
general anti-manipulation provisions, Regulation M, and other 
applicable securities laws. Except as proposed for a Direct Listing 
with a Capital Raise, shares held by these types of inside investors 
are not included in calculations of Publicly Held Shares for purposes 
of Exchange listing rules.\8\ The Exchange notes that such investors 
may acquire in secondary market trades shares sold by the issuer in a 
Direct Listing with a Capital Raise that were included when calculating 
whether the issuer meets the Market Value of Unrestricted Publicly Held 
Shares requirement for initial listing. However, the Exchange notes 
that a company listing in conjunction with a Direct Listing with a 
Capital Raise will be required to have a Market Value of Unrestricted 
Publicly Held Shares much higher than the Exchange's minimum $45 
million Market Value of Unrestricted Publicly Held Shares requirement 
for a traditional underwritten IPO. This heightened requirement, along 
with the ability of all investors to purchase shares in the opening 
process on the Exchange, should result in companies using a Direct 
Listing a Capital Raise having adequate public float and a liquid 
trading market after the completion of the opening auction.
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    \8\ Rule 5005(a)(35).

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[[Page 59351]]

    Any company listing in connection with a Direct Listing with a 
Capital Raise would continue to be subject to, and required to meet, 
all other applicable initial listing requirements, including the 
requirements to have the applicable number of shareholders and at least 
1,250,000 Unrestricted Publicly Held Shares outstanding at the time of 
initial listing, and the requirement to have a price per share of at 
least $4.00 at the time of initial listing.\9\
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    \9\ See Listing Rules 5315(f)(1), (e)(1) and (2), respectively. 
Rule 5315(f)(1) requires a security to have: (A) At least 550 total 
holders and an average monthly trading volume over the prior 12 
months of at least 1,100,000 shares per month; or (B) at least 2,200 
total holders; or (C) a minimum of 450 round lot holders and at 
least 50% of such round lot holders must each hold unrestricted 
securities with a market value of at least $2,500.
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    Proposed Listing Rule IM-5315-2 also requires that securities 
listing in connection with a Direct Listing with a Capital Raise must 
begin trading on Nasdaq following the initial pricing through the 
Nasdaq Halt Cross, which is described in Rules 4120(c)(8) and 4753. To 
allow such initial pricing, the company must, in accordance with Rule 
4120(c)(9), have a broker-dealer serving in the role of financial 
advisor to the issuer of the securities being listed, who is willing to 
perform the functions under Rule 4120(c)(8) that are performed by an 
underwriter with respect to an initial public offering.\10\
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    \10\ As noted below, the Exchange also proposes to amend Rule 
4120(c)(9) to specify that any services provided by such financial 
advisor to the issuer of a security, including a company listing in 
connection with a Direct Listing with a Capital Raise, must provide 
such services in a manner that is consistent with all federal 
securities laws, including Regulation M and other anti-manipulation 
requirements.
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Amendment to Rule 4702
    The Exchange proposes to amend Rule 4702 to add a new order type, 
the ``Company Direct Listing Order'' or ``CDL Order'', which will be 
used for the company's order in a Direct Listing with a Capital Raise. 
This will be a market order entered for the quantity of shares offered 
by the issuer, as disclosed in an effective registration statement for 
the offering that will execute at the price determined in the Nasdaq 
Halt Cross. A CDL Order may be entered only on behalf of the issuer and 
the CDL Order may not be cancelled or modified. Only one Nasdaq member, 
representing the issuer, may enter a CDL Order during a Direct Listing 
with a Capital Raise.
    Under Nasdaq rules, a market order, such as the CDL Order, must be 
executed in full at the price determined in the Nasdaq Halt Cross. In 
addition, all orders priced better than the price determined in the 
Nasdaq Halt Cross also would need to be satisfied.
Amendments to Rules 4120(c)(9), 4753(a)(3) and 4753(b)(2)
    Nasdaq proposes to amend Rules 4120(c)(9), 4573(a)(3) and 
4753(b)(2) to establish requirements for disseminating information, 
establishing the opening price and initiating trading through the 
Nasdaq Halt Cross in a Direct Listing with a Capital Raise.
    Nasdaq proposes to add Rule 4120(c)(9)(B) to specify that in the 
case of the Direct Listing with a Capital Raise, a security shall not 
be released for trading by Nasdaq unless the expected price at which 
the cross would occur (as defined in Rule 4120(c)(8)(A)(i)) is at or 
above the price that is 20% below the lowest price of the price range 
established by the issuer in its effective registration statement.\11\ 
This requirement would be in addition to the existing conditions 
described in Rule 4120(c)(8)(A)(i), (ii), and (iii), which would 
continue to apply.\12\
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    \11\ SEC Rule 430A and question 227.03 of the SEC Staff's 
Compliance and Disclosure Interpretations, dated November 6, 2017, 
generally allow a company to price a public offering 20% outside of 
the disclosed price range without regard to the materiality of the 
changes to the disclosure contained in the company's registration 
statement.
    \12\ Rule 4120(c)(8)(A) provides that a security will not be 
released for trading until Nasdaq receives notice from the 
underwriter of the IPO or financial advisor in the case of a Direct 
Listing that the security is ready to trade, the system verifies 
that all market orders will be executed in the cross, and the price 
determined in the cross satisfies a price validation test.
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    Because the financial advisor is responsible for determining when 
the security subject to the Nasdaq Halt Cross is ready to trade, these 
proposed rule changes would make the financial advisor responsible for 
determining whether the Halt Cross for a Direct Listing with a Capital 
Raise can proceed. If there is insufficient buy interest to satisfy the 
CDL Order as required by this proposed rule, the cross would not 
proceed and such security would not begin trading. If the cross cannot 
be conducted, the Exchange would notify market participants via a 
Trader Update that the Direct Listing with a Capital Raise has been 
cancelled and any orders for that security that have been entered on 
the Exchange, including the CDL Order, would be cancelled back to the 
entering firms.
    Because the CDL Order will be a market order, if the Halt Cross 
proceeds, that order will execute in full in the Halt Cross, along with 
orders priced at or better than the price determined in the Halt Cross. 
As noted above, the Halt Cross would not be allowed to proceed if the 
price calculated is 20% or more below the lowest price disclosed by the 
company in its effective registration statement. There would be no 
upper limit to the price determined in the Halt Cross.
    Nasdaq also proposes changes to Rules 4573(a)(3) and 4753(b)(2) to 
make adjustments to the calculation of the Current Reference Price, 
which is disseminated in the Nasdaq Order Imbalance Indicator, in the 
case of a Direct Listing with a Capital Raise and for how the price at 
which the Nasdaq Halt Cross will execute. In each case, where there are 
multiple prices that would satisfy the conditions for determining a 
price, Nasdaq proposes to modify the fourth tie-breaker for a Direct 
Listing with a Capital Raise, to use the price closest to the price 
that is 20% below the lowest price of the price range disclosed by the 
issuer in its effective registration statement.
    Finally, Nasdaq proposes to amend Rule 4120(c)(9) to specify that 
the activities performed by a financial advisor under Rule 4120(c)(8) 
must be conducted in a manner that is consistent with all federal 
securities laws, including Regulation M and other anti-manipulation 
requirements.\13\ This change will apply to traditional Direct 
Listings, as described under IM-5315-1, IM-5405-1 and IM-5505-1, as 
well as to Direct Listings with a Capital Raise, as described under 
proposed IM-5315-2.
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    \13\ Rule 4120(c)(8) describes the activities performed by an 
underwriter in an IPO and by a financial advisor in a Direct 
Listing.
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2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act,\14\ in general, and furthers the objectives of Section 
6(b)(5) of the Act,\15\ in particular, in that it is designed to 
promote just and equitable principles of trade, 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.
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    \14\ 15 U.S.C. 78f(b).
    \15\ 15 U.S.C. 78f(b)(5).
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    Nasdaq believes that the proposed amendment to the listing 
requirements is consistent with the protection of investors. The 
proposal would require that a company completing a Direct Listing with 
a Capital Raise have an aggregate market value of unrestricted 
publicly-held shares immediately prior to listing together with the 
market value of shares the company sells in the opening auction total 
at least $110 million (or $100 million, if the Company has 
stockholders' equity of at

[[Page 59352]]

least $110 million), with such market value calculated using a price 
per share equal to 20% below the lowest price of the price range 
established by the issuer in its registration statement. While 
officers, directors or owners of more than 10% of the company's common 
stock prior to the opening auction may purchase shares sold by the 
company or other shareholders in the opening transaction on Nasdaq, in 
the event that such purchases are not inconsistent with general anti-
manipulation provisions, Regulation M, and other applicable securities 
laws, Nasdaq expects that a company expecting to sell a significant 
portion of its shares to officers, directors and existing significant 
shareholders would not undertake a public listing through a Direct 
Listing with a Capital Raise. Nasdaq also notes that a company may list 
on the Global Select Market in connection with its initial public 
offering with a market value of unrestricted publicly held shares of 
$45 million and that unlike a company listing in connection with a 
Direct Listing that could qualify for the price-based initial listing 
requirements based on a Valuation, a company listing in connection with 
a Direct Listing with a Capital Raise, like an IPO, must qualify for 
such requirements based on the minimum price at which it could sell 
shares in the offering. The higher requirement, along with the ability 
of all investors to purchase shares in the opening process on the 
Exchange, should result in companies using a Direct Listing a Capital 
Raise having adequate public float and a liquid trading market after 
the completion of the opening auction.
    Nasdaq also believes that it is consistent with the protection of 
investors to calculate the security's bid price and values derived from 
the security's price using a price per share equal to the price that is 
20% below the lowest price of the price range disclosed by the issuer 
in its registration statement. Commission rules and interpretations 
generally allow the sale of securities pursuant to an effective 
registration statement at a price that is 20% below the lowest price of 
the price range disclosed by the issuer in its registration statement. 
As a result, Nasdaq will allow the Halt Cross to take place as low as 
this price, but no lower, and so this is the minimum price at which the 
company could be listed.
    The proposed requirement that a company that lists on the Nasdaq 
Global Select Markets through a Direct Listing with a Capital Raise 
must begin trading of the company's securities following the initial 
pricing through the Halt Cross will promote fair and orderly markets by 
protecting against volatility in the pricing and initial trading of 
securities covered by the proposed rule change. Accordingly, Nasdaq 
believes these changes, as required by Section 6(b)(5) of the Exchange 
Act, are reasonably designed to protect investors and the public 
interest and promote just and equitable principles of trade for the 
opening of securities listing in connection with a Direct Listing with 
a Capital Raise on the Nasdaq Global Select Market.
    Nasdaq also believes that the proposed adoption of the CDL Order 
type in Rule 4702 and the addition of requirements to the operation of 
the Nasdaq Halt Cross in Rule 4120(c)(9) will remove impediments to and 
perfect the mechanism of a free and open market and a national market 
system because it would guarantee that the Nasdaq Halt Cross would only 
occur above a minimum specified price, as described above, and, if the 
Halt Cross occurs, all shares offered by the company would be sold at 
no less than such minimum price. Unlike an IPO, a company listing 
through a Direct Listing with a Capital Raise would not have an 
underwriter to guarantee that a specified number of shares would be 
sold by the company at a price consistent with disclosure in the 
company's effective registration statement. This certainty would be 
effected in two ways. First, the proposed CDL Order would be required 
to be equal to the total number of shares disclosed as being offered by 
the company in the prospectus included in the effective registration 
statement filed in connection with its listing. The Nasdaq Halt Cross 
would only occur if all of the shares in this market order could be 
executed. Second, the Nasdaq Halt Cross would be required to occur at a 
price per share no less than the price that is 20% below the lowest 
price of the price range disclosed by the issuer in its registration 
statement. Nasdaq further believes that these proposed changes would 
remove impediments to and perfect the mechanism of a free and open 
market and a national market system because they are designed to 
function seamlessly with the existing process for the Nasdaq Halt 
Cross, including dissemination of information about the expected price.
    Nasdaq also believes that it is consistent with the protection of 
investors and the public interest to remind financial advisors in a 
Direct Listing, including Direct Listings with a Capital Raise, that 
activities in connection with the listing must be conducted in a manner 
that is consistent with the federal securities laws, including 
Regulation M and other anti-manipulation requirements.
    Nasdaq believes that the proposed rule change to modify the fourth 
tie-breaker used in calculating the Current Reference Price 
disseminated in the Nasdaq Order Imbalance Indicator and the price at 
which the Nasdaq Halt Cross will occur, protects investors and the 
public interest. For a Direct Listing, in using the Halt Cross to 
initiate the initial trading in the company's securities, the Current 
Reference Price and price at which the Nasdaq Halt Cross will occur may 
be based on the most recent transaction price in a Private Placement 
Market where the security has had recent sustained trading in such a 
market over several months; otherwise the price will be determined by 
the Exchange in consultation with a financial advisor to the issuer. 
For an IPO, however, the fourth tie-breaker used in calculating the 
Current Reference Price, is the price that is closest to the Issuer's 
Initial Public Offering Price. Because a Direct Listing with a Capital 
Raise is similar to an IPO in that the company sells securities in the 
offering, the proposed rule change provides that the forth tie-breaker 
in calculating the Current Reference Price for such security is the 
price that is closest to the price that is 20% below the lowest price 
of the price range disclosed by the issuer in its effective 
registration statement, which is the minimum price at which the Halt 
Cross will occur.

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

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition not necessary or appropriate in 
furtherance of the purposes of the Act. The proposed amendments would 
not impose any burden on competition, but would rather increase 
competition. In that regard, the Commission recently approved a similar 
proposal to allow a Direct Listing with a Capital Raise on the New York 
Stock Exchange.\16\ Allowing Nasdaq to have similar rules will give 
issuers interested in this pathway to access the capital markets a 
choice of listing venues, which will enhance competition among 
exchanges.
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    \16\ Securities Exchange Act Release No. 89684 (August 26, 
2020), 85 FR 54454 (September 1, 2020) (approving SR-NYSE-2019-67). 
See also a letter from J. Matthew DeLesDernier, Assistant Secretary, 
the Office of the Secretary of the SEC, to John Carey Senior 
Director, NYSE Group Inc., indicating that the approval order is 
stayed until the Commission orders otherwise. (Available at https://www.sec.gov/rules/sro/nyse/2020/34-89684-carey-letter.pdf).

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[[Page 59353]]

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

    No written comments were either solicited or received.

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

    Within 45 days of the date of publication of this notice in the 
Federal Register or within such longer period up to 90 days (i) as the 
Commission may designate if it finds such longer period to be 
appropriate and publishes its reasons for so finding or (ii) as to 
which the Exchange consents, the Commission will: (a) By order approve 
or disapprove such proposed rule change, or (b) institute proceedings 
to determine whether the proposed rule change should be disapproved.

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-NASDAQ-2020-057 on the subject line.

Paper Comments

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

All submissions should refer to File Number SR-NASDAQ-2020-057. 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 website (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 website 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 such 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-NASDAQ-2020-057, and should be submitted 
on or before October 13, 2020.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\17\
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    \17\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-20702 Filed 9-18-20; 8:45 am]
BILLING CODE 8011-01-P