[Federal Register Volume 86, Number 97 (Friday, May 21, 2021)]
[Notices]
[Pages 27659-27663]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-10710]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-91904; File No. SR-NASDAQ-2021-007]


Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Order 
Instituting Proceedings To Determine Whether To Approve or Disapprove a 
Proposed Rule Change To Adopt Additional Initial Listing Criteria for 
Companies Primarily Operating in Jurisdictions That Do Not Provide the 
PCAOB With the Ability To Inspect Public Accounting Firms

May 17, 2021.

I. Introduction

    On February 1, 2021, The Nasdaq Stock Market LLC (``Nasdaq'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``Commission''), pursuant to Section 19(b)(1) of the Securities 
Exchange Act of 1934 (``Act'') \1\ and Rule 19b-4 thereunder,\2\ a 
proposed rule change to adopt additional initial listing criteria for 
companies primarily operating in jurisdictions that do not provide the 
Public Company Accounting Oversight Board (``PCAOB'') with the ability 
to inspect public accounting firms. The proposed rule change was 
published for comment in the Federal Register on February 16, 2021.\3\ 
On March 26, 2021, pursuant to Section 19(b)(2) of the Act,\4\ the 
Commission designated a longer period within which to approve the 
proposed rule change, disapprove the proposed rule change, or institute 
proceedings to determine whether to disapprove the proposed rule 
change.\5\ This order institutes proceedings pursuant to Section 
19(b)(2)(B) of the Act \6\ to determine whether to approve or 
disapprove the proposed rule change.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 91089 (February 9, 
2021), 86 FR 9549 (``Notice''). Comments on the proposed rule change 
can be found at: https://www.sec.gov/comments/sr-nasdaq-2021-007/srnasdaq2021007.htm.
    \4\ 15 U.S.C. 78s(b)(2).
    \5\ See Securities Exchange Act Release No. 91413, 86 FR 17263 
(April 1, 2021). The Commission designated May 17, 2021 as the date 
by which the Commission shall approve or disapprove, or institute 
proceedings to determine whether to approve or disapprove, the 
proposed rule change.
    \6\ 15 U.S.C. 78s(b)(2)(B).
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II. Description of the Proposed Rule Change

    The Exchange states that the Exchange's rules, in addition to 
federal securities laws, require that a company's financial statements 
included in its initial registration statement or annual report be 
audited by an independent public accountant that is registered with the 
PCAOB.\7\ According to the Exchange, the Exchange and investors rely on 
the work of auditors to provide reasonable assurances that the 
financial statements provided by a company are free of material 
misstatements, and on the PCAOB's critical role in overseeing the 
quality of the auditor's work.\8\ The Exchange states its belief that 
accurate financial statement disclosure is critical for investors to 
make informed investment decisions.\9\
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    \7\ See Notice, supra note 3, at 9549. See also Nasdaq Rules 
5210(b) and 5250(c)(3) (requiring for initial and continued listing 
on Nasdaq that companies must be audited by an independent public 
accountant that is registered as a public accounting firm with the 
PCAOB); 15 U.S.C. 7212(a) (Registration with the PCAOB); 17 CFR 
210.2-01 (Qualifications of Accountants).
    \8\ See Notice, supra note 3, at 9550.
    \9\ See id.
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    The Exchange states that the former Chairman and former Chief 
Accountant of the Commission and the Chairman of the PCAOB have raised 
concerns that national barriers on access to information can impede 
effective regulatory oversight of U.S.-listed companies with operations 
in certain countries, including the PCAOB's inability to inspect the 
audit work and practices of auditors in those countries.\10\ The 
Exchange states that similar concerns have been expressed by members of 
Congress, the State Department, and the President's Working Group on 
Financial Markets.\11\ The Exchange states that it shares these 
concerns and believes the lack of transparency from certain markets 
raises concerns about the accuracy of disclosures, accountability, and 
access to information, particularly when a company is based in a 
jurisdiction that does not provide the PCAOB with access to conduct 
inspections of public accounting firms that audit Nasdaq-listed 
companies (``Restrictive Market'').\12\
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    \10\ See id. (citing to various statements by former Commission 
Chairman Jay Clayton, former Commission Chief Accountant Wes 
Bricker, and PCAOB Chairman William D. Duhnke III, available at 
https://www.sec.gov/news/public-statement/statement-vital-role-audit-quality-and-regulatory-access-audit-and-other; https://www.sec.gov/news/public-statement/emerging-market-investments-disclosure-reporting; and https://www.sec.gov/news/public-statement/clayton-emerging-markets-roundtable-2020-07-09). See id. at 9550, 
n.8.
    \11\ See id. at 9550 (citing to ``Congress Passes Legislation to 
De-List Chinese Companies Unless U.S. Has Access to Audit 
Workpapers'' (December 2, 2020), available at https://sherman.house.gov/media-center/press-releases/congress-passes-legislation-to-de-list-chinese-companies-unless-us-has; Former 
Commission Chairman Jay Clayton, ``Statement after the Enactment of 
the Holding Foreign Companies Accountable Act'' (December 18, 2020), 
available at https://www.sec.gov/news/public-statement/clayton-hfcaa-2020-12#_ftn5; Press Statement of Michael R. Pompeo, Secretary 
of State, New Nasdaq Restrictions Affecting Listing of Chinese 
Companies (June 4, 2020), available at https://2017-2021-translations.state.gov/2020/06/04/new-nasdaq-restrictions-affecting-listing-of-chinese-companies/index.html; President's Working Group 
on Financial Markets: Report on Protecting United States Investors 
from Significant Risks from Chinese Companies (July 24, 2020), 
available at https://home.treasury.gov/system/files/136/PWG-Report-on-Protecting-United-States-Investors-from-Significant-Risks-from-Chinese-Companies.pdf). See id. at 9550, nn.9-11.
    \12\ See id. at 9550.
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    The Exchange further states that such concerns can be compounded 
when a company from a Restrictive Market lists on the Exchange through 
an initial public offering (``IPO'') or a business combination with a 
small offering size or a low public float percentage because such 
companies may not attract market attention and develop sufficient 
public float, investor base, and trading interest to provide the depth 
and liquidity necessary to promote fair and orderly trading.\13\ 
According to the Exchange, such securities may trade infrequently, in a 
more volatile manner and with a wider bid-ask spread, all of which may 
result in trading at a price that may not

[[Page 27660]]

reflect their true market value.\14\ Furthermore, the Exchange states 
that less liquid securities may be more susceptible to price 
manipulation and that, in particular, the risk of price manipulation 
due to insider trading is more acute with respect to a company that 
principally administers its business in a Restrictive Market 
(``Restrictive Market Company''), particularly if a company's financial 
statements contain undetected material misstatements due to error or 
fraud and the PCAOB is unable to inspect the company's auditor to 
determine if it complied with PCAOB and Commission rules and 
professional standards in connection with its performance of 
audits.\15\ The Exchange states that risk to investors in such cases 
may be compounded because regulatory investigations into price 
manipulation, insider trading, and compliance concerns may be impeded 
and investor protections and remedies may be limited in such cases due 
to obstacles encountered by U.S. authorities in bringing or enforcing 
actions against the companies and insiders.\16\
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    \13\ See id.
    \14\ See id. The Exchange also states that foreign issuers are 
more likely to issue a portion of an offering to investors in their 
home country, which raises concerns that such investors will not 
contribute to the liquidity of the security in the U.S. secondary 
market. See id.
    \15\ See id.
    \16\ See id.
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    Nasdaq states that it believes the U.S. capital markets can provide 
Restrictive Market Companies with access to additional capital to fund 
ground-breaking research and technological advancements and that such 
companies provide U.S. investors with opportunities to diversify their 
portfolio by providing exposure to Restrictive Markets.\17\ However, 
Nasdaq further states that it believes that Restrictive Market 
Companies present unique potential risks to U.S. investors due to 
restrictions on the PCAOB's ability to inspect the audit work and 
practices of auditors in those countries, which create concerns about 
the accuracy of disclosures, accountability, and access to 
information.\18\ Nasdaq states that it believes its proposal will 
reduce trading volatility and price manipulation and help to ensure 
that Restrictive Market Companies have sufficient investor base and 
public float to support fair and orderly trading on the Exchange.\19\
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    \17\ See id. at 9553-54. See also Letter from Jeffrey S. Davis, 
Senior Vice President, General Counsel, Nasdaq, Inc. (April 30, 
2021) (``Nasdaq Response Letter''), at 2.
    \18\ See Notice, supra note 3, at 9554.
    \19\ See id. See also Nasdaq Response Letter, supra note 17, at 
3.
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    Specifically, the Exchange proposes to adopt a definition of 
``Restrictive Market'' \20\ and to apply additional initial listing 
requirements to a Restrictive Market Company listing on the Exchange in 
connection with an IPO or a business combination.\21\ The Exchange also 
proposes to prohibit a Restrictive Market Company from listing on the 
Nasdaq Capital Market in connection with a Direct Listing,\22\ but to 
allow a Restrictive Market Company to list on the Nasdaq Global Select 
Market or Nasdaq Global Market in connection with a Direct Listing, 
provided that such company meets all applicable initial listing 
requirements for such market.
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    \20\ See infra note 24 and accompanying text.
    \21\ The Exchange states that, currently, it may rely upon its 
discretionary authority under Nasdaq Rule 5101 to deny initial 
listing or apply additional or more stringent criteria when it is 
concerned that a small offering size for an IPO may not reflect the 
company's initial valuation or may not ensure sufficient liquidity 
to support trading in the secondary market. Pursuant to Nasdaq Rule 
5101, Nasdaq has broad discretionary authority over the initial and 
continued listing of securities in Nasdaq in order to maintain the 
quality of and public confidence in its market, to prevent 
fraudulent and manipulative acts and practices, to promote just and 
equitable principles of trade, and to protect investors and the 
public interest. Nasdaq may use such discretion to deny initial 
listing, apply additional or more stringent criteria for the initial 
or continued listing of particular securities, or suspend or delist 
particular securities based on any event, condition, or circumstance 
that exists or occurs that makes initial or continued listing of the 
securities on Nasdaq inadvisable or unwarranted in the opinion of 
Nasdaq, even though the securities meet all enumerated criteria for 
initial or continued listing on Nasdaq. See Nasdaq Rule 5101.
    \22\ Nasdaq defines ``Direct Listing'' as the listing of 
``companies that have sold common equity securities in private 
placements, which have not been listed on a national securities 
exchange or traded in the over-the-counter market pursuant to FINRA 
Form 211 immediately prior to the initial pricing.'' See Nasdaq Rule 
IM-5315-1.
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A. Definition of Restrictive Market

    The Exchange proposes to adopt a new definition of Restrictive 
Market in Nasdaq Rule 5005(a)(37).\23\ As proposed, a Restrictive 
Market will be defined as a jurisdiction that does not provide the 
PCAOB with access to conduct inspections of public accounting firms 
that audit Nasdaq-listed companies.\24\ Under the proposed rule, Nasdaq 
will consider a company's business to be principally administered in a 
Restrictive Market if: (i) The company's books and records are located 
in that jurisdiction; (ii) at least 50% of the company's assets are 
located in such jurisdiction; or (iii) at least 50% of the company's 
revenues are derived fromsuch jurisdiction.\25\
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    \23\ The Exchange proposes to renumber current paragraphs 
(a)(37) through (a)(46) of Nasdaq Rule 5005 in connection with the 
addition of the definition of Restrictive Market. See Notice, supra 
note 3, at 9551.
    \24\ See proposed Nasdaq Rule 5005(a)(37). The Exchange states 
that the PCAOB maintains a map of where it can and cannot conduct 
oversight activities on its website and publishes a list identifying 
the public companies for which a PCAOB-registered public accounting 
firm signed and issued an audit report and is located in a 
jurisdiction where obstacles to PCAOB inspections exist. See Notice, 
supra note 3, at 9551.
    \25\ See proposed Nasdaq Rule 5005(a)(37). The term ``Company'' 
means the issuer of a security listed or applying to list on Nasdaq. 
See Nasdaq Rule 5005(a)(6). The Exchange provides the following 
examples. Company X's books and records are located in Country Y, 
which is not a Restrictive Market, while 90% of its revenues are 
driven from operations in Country Z, which is a Restrictive Market. 
Nasdaq would consider Company X's business to be principally 
administered in Country Z, so Company X would be considered a 
Restrictive Market Company. Alternatively, Company A's books and 
records are located in Country B, which is a Restrictive Market, but 
90% of its revenues are derived from Country C, which is not a 
Restrictive Market. Nasdaq would consider Company A's business to be 
principally administered in Country B, so Company A would be 
considered a Restrictive Market Company. See Notice, supra note 3, 
at 9551.
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B. Minimum Offering Size or Public Float Percentage Requirement for an 
IPO

    The Exchange proposes to adopt new Nasdaq Rule 5210(k)(i) to 
require a Restrictive Market Company listing its Primary Equity 
Security \26\ on Nasdaq in connection with its IPO to offer a minimum 
amount of securities in a Firm Commitment Offering \27\ in the U.S. to 
Public Holders \28\ that (i) will result in gross proceeds to the 
Company of at least $25 million or (ii) will represent at least 25% of 
the Company's post-offering Market Value of Listed Securities,\29\ 
whichever is lower. A Restrictive Market Company listing on the 
Exchange in connection with an IPO that is subject to the proposed rule 
would also need to comply with all other applicable listing 
requirements.\30\

[[Page 27661]]

The Exchange states that it believes this proposed listing requirement 
for Restrictive Market Companies conducting an IPO will provide greater 
support for the company's price, as determined through the offering, 
and will help assure there will be sufficient liquidity, U.S. investor 
interest, and distribution to support price discovery once the security 
is listed.\31\ In addition, the Exchange states that the proposal will 
help ensure that Restrictive Market Companies seeking to list on the 
Exchange have sufficient investor base and public float to support fair 
and orderly trading on the Exchange.\32\
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    \26\ Nasdaq Rule 5005(a)(33) defines ``Primary Equity Security'' 
as ``a Company's first class of Common Stock, Ordinary Shares, 
Shares or Certificates of Beneficial Interest of Trust, Limited 
Partnership Interests or American Depositary Receipts (ADR) or 
Shares (ADS).''
    \27\ Nasdaq Rule 5005(a)(17) defines ``Firm Commitment 
Offering'' as ``an offering of securities by participants in a 
selling syndicate under an agreement that imposes a financial 
commitment on participants in such syndicate to purchase such 
securities.''
    \28\ Nasdaq Rule 5005(a)(36) defines ``Public Holders'' as 
``holders of a security that includes both beneficial holders and 
holders of record, but does not include any holder who is, either 
directly or indirectly, an Executive Officer, director, or the 
beneficial holder of more than 10% of the total shares 
outstanding.''
    \29\ ``Market Value'' means the consolidated closing bid price 
multiplied by the measure to be valued. See Nasdaq Rule 5000(a)(23). 
``Listed Securities'' means securities listed on Nasdaq or another 
national securities exchange. See Nasdaq Rule 5000(a)(22).
    \30\ The Exchange provides the following examples to illustrate 
the proposed rule. First, Company X, which principally administers 
its business in a Restrictive Market, is applying to list on Nasdaq 
Global Market and has an expected post-offering Market Value of 
Listed Securities of $75,000,000. Since 25% of $75,000,000 is 
$18,750,000, which is lower than $25,000,000, pursuant to the 
requirements of the proposed rule, Company X would be eligible to 
list based on a Firm Commitment Offering in the U.S. to Public 
Holders of at least $18,750,000. Company X would also need to comply 
with the other applicable listing requirements of the Nasdaq Global 
Market, including a Market Value of Unrestricted Publicly Held 
Shares of at least $8 million. See Notice, supra note 3, at 9551; 
Nasdaq Rule 5405(b)(1)(C). See also Nasdaq Rules 5005(a)(45) 
(definition of ``Unrestricted Publicly Held Shares''), 5005(a)(46) 
(definition of ``Unrestricted Securities''), and 5005(a)(37) 
(definition of ``Restricted Securities''). As another example, 
Company Y, which also principally administers its business in a 
Restrictive Market, is applying to list on the Nasdaq Global Select 
Market and its post-offering Market Value of Listed Securities is 
expected to be $200,000,000. Since 25% of $200,000,000 is 
$50,000,000, which is higher than $25,000,000, pursuant to the 
requirements of the proposed rule, Company Y would be eligible to 
list based on a Firm Commitment Offering in the U.S. to Public 
Holders that will result in gross proceeds of at least $25,000,000. 
Company Y would also need to comply with the other applicable 
listing requirements of the Nasdaq Global Select Market, including a 
Market Value of Unrestricted Publicly Held Shares of at least $45 
million. See Notice, supra note 3, at 9551-52; Nasdaq Rule 
5315(f)(2)(C).
    \31\ See Notice, supra note 3, at 9552.
    \32\ See id.
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    The Exchange further states that it has observed that Restrictive 
Market Companies listing on Nasdaq in connection with an IPO with an 
offering size below $25 million or public float ratio below 25% have a 
high rate of compliance concerns.\33\ The Exchange states that it 
believes the proposed listing requirement for Restrictive Market 
Companies conducting an IPO will mitigate such compliance concerns.\34\
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    \33\ See id. Specifically, the Exchange states that 39 out of 
113 Restrictive Market Companies that listed on Nasdaq through an 
IPO from January 1, 2015 to September 30, 2020 would not have 
qualified under the requirement in proposed Nasdaq Rule 5210(k)(i) 
because they had offering amounts of $25 million or less. According 
to Nasdaq, two of these companies were considered to be Restrictive 
Market Companies because they had at least 50% of the company's 
assets located in a Restrictive Market, and 37 met the definition 
because they had at least 50% of the company's revenues derived from 
a Restrictive Market. Of those companies thatwould not have 
qualified under the requirement in proposed Nasdaq Rule 5210(k)(i), 
twenty, or 51%, were cited for a compliance issue, which Nasdaq 
states is a significantly higher rate than other Restrictive Market 
Companies (16%). The Exchange also states that, during the same 
period, 25 out of 84 (or 30%) of Restrictive Market Companies that 
had a ratio of offering size to Market Value of Listed Securities of 
25% or less failed to comply with one or more listing standards 
after listing, which, according to the Exchange, is a significantly 
higher non-compliance rate than for other foreign companies (11%) 
and other Restrictive Market Companies (21%) that had such listings. 
The Exchange also found that, during the same period, 35 Restrictive 
Market Companies would not have met either the $25 million offering 
size requirement or the 25% of the company's post-offering Market 
Value of Listed Securities requirement, and 18 of those companies 
were cited for a compliance concern. See id.
    \34\ See id.
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C. Minimum Market Value of Unrestricted Publicly Held Shares 
Requirement for a Business Combination

    The Exchange proposes to adopt new Nasdaq Rule 5210(k)(ii) to 
require a Company that is conducting a business combination, as 
described in Nasdaq Rule 5110(a) \35\ or IM-5101-2,\36\ with a 
Restrictive Market Company to have a minimum Market Value of 
Unrestricted Publicly Held Shares \37\ following the business 
combination equal to the lesser of (i) $25 million or (ii) 25% of post-
business combination entity's Market Value of Listed Securities. A 
Restrictive Market Company subject to the proposed rule would also need 
to comply with all other applicable listing requirements.\38\
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    \35\ Nasdaq Rule 5110(a) (Business Combinations with non-Nasdaq 
Entities Resulting in a Change of Control) sets forth requirements 
applicable to a Company that engages in a business combination with 
a non-Nasdaq entity, resulting in a change of control of the Company 
and potentially allowing the non-Nasdaq entity to obtain a Nasdaq 
Listing.
    \36\ Nasdaq Rule IM-5101-2 (Listing of Companies Whose Business 
Plan is to Complete One or More Acquisitions) sets forth 
requirements applicable to a Company whose business plan is to 
complete an IPO and engage in a merger or acquisition with one or 
more unidentified companies within a specific period of time.
    \37\ Nasdaq Rule 5005(a)(45) defines ``Unrestricted Publicly 
Held Shares'' as Publicly Held Shares that are Unrestricted 
Securities. ``Publicly Held Shares'' means shares not held directly 
or indirectly by an officer, director or any person who is the 
beneficial owner of more than 10 percent of the total shares 
outstanding. See Nasdaq Rule 5005(a)(35). ``Unrestricted 
Securities'' means securities that are not subject to resale 
restrictions for any reason, including, but not limited to, 
securities: (i) Acquired directly or indirectly from the issuer or 
an affiliate of the issuer in unregistered offerings such as private 
placements or Regulation D offerings; (ii) acquired through an 
employee stock benefit plan or as compensation for professional 
services; (iii) acquired in reliance on Regulation S, which cannot 
be resold within the United States; (iv) subject to a lockup 
agreement or a similar contractual restriction; or (v) considered 
``restricted securities'' under Rule 144. See Nasdaq Rules 
5005(a)(46) and (37).
    \38\ The Exchange provides the following examples to illustrate 
the proposed rule. First, Company A is currently listed on the 
Nasdaq Capital Market and plans to acquire a company that 
principally administers its business in a Restrictive Market, in 
accordance with IM-5101-2. Following the business combination, 
Company A intends to transfer to the Nasdaq Global Select Market. 
Company A expects the post-business combination entity to have a 
Market Value of Listed Securities of $250,000,000. Since 25% of 
$250,000,000 is $62,500,000, which is higher than $25,000,000, 
pursuant to the requirements of the proposed rule, to qualify for 
listing the post-business combination entity must have a minimum 
Market Value of Unrestricted Publicly Held Shares of at least 
$25,000,000. The company would also need to comply with the other 
applicable listing requirements of the Nasdaq Global Select Market, 
including a Market Value of Unrestricted Publicly Held Shares of at 
least $45,000,000. See Notice, supra note 3, at 9552; Nasdaq Rule 
5315(f)(2)(C). As another example, Company B is currently listed on 
Nasdaq Capital Market and plans to combine with a non-Nasdaq entity 
that principally administers its business in a Restrictive Market, 
resulting in a change of control as defined in Nasdaq Rule 5110(a), 
whereby the non-Nasdaq entity will become the Nasdaq-listed company. 
Following the change of control, Company B expects the listed 
company to have a Market Value of Listed Securities of $50,000,000. 
Since 25% of $50,000,000 is $12,500,000, which is lower than 
$25,000,000, pursuant to the requirements of the proposed rule, the 
listed company must have a minimum Market Value of Unrestricted 
Publicly Held Shares following the change of control of at least 
$12,500,000. The post-business combination company would also need 
to comply with all other applicable listing requirements of the 
Nasdaq Capital Market, including a Market Value of Unrestricted 
Publicly Held Shares of at least $5 million. See Notice, supra note 
3, at 9552; Nasdaq Rule 5505(b)(3)(C).
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    The Exchange states that it believes that a business combination as 
described in Nasdaq Rule 5110(a) or IM-5101-2 involving a Restrictive 
Market Company presents similar risks to U.S. investors as an IPO of a 
Restrictive Market Company, and therefore, Nasdaq believes it is 
appropriate to apply similar thresholds to post-business combination 
entities to ensure that a company listing through a business 
combination would have satisfied equivalent standards that apply to an 
IPO.\39\ The Exchange further states that it believes that the proposed 
listing requirement for post-business

[[Page 27662]]

combination entities would help to provide an additional assurance that 
there are sufficient freely tradable shares and investor interest to 
support fair and orderly trading on the Exchange when the target 
company principally administers its business in a Restrictive 
Market.\40\
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    \39\ See Notice, supra note 3, at 9553. The Exchange states that 
it found that out of seven business combinations involving 
Restrictive Market Companies from 2015 through September 30, 2020, 
five would not have qualified under proposed Nasdaq Rule 5210(k)(ii) 
to have a minimum Market Value of Unrestricted Publicly Held Shares 
following the business combination of $25 million or 25% of the 
post-business combination entity's Market Value of Listed 
Securities, whichever is lower. The Exchange states that all five of 
these companies have been cited for a deficiency after the 
completion of their business combination. On the other hand, Nasdaq 
states that only one out of the two business combinations involving 
Restrictive Market Companies that would have qualified under 
proposed Nasdaq Rule 5210(k)(ii) during such period was cited for a 
compliance concern. See id.
    \40\ See id.
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D. Direct Listings of Restrictive Market Companies

    The Exchange proposes to adopt new Nasdaq Rule 5210(k)(iii) to 
provide that a Restrictive Market Company that is listing its Primary 
Equity Security on Nasdaq in connection with a Direct Listing, as 
defined in Nasdaq Rule IM-5315-1,\41\ would be permitted to list on: 
(i) The Nasdaq Global Select Market, provided that the Company meets 
all applicable listing requirements for the Nasdaq Global Select Market 
and the additional requirements of Nasdaq Rule IM-5315-1, or (ii) the 
Nasdaq Global Market, provided that the Company meets all applicable 
listing requirements for the Nasdaq Global Market and the additional 
requirements of Nasdaq Rule IM-5405-1.\42\ On the other hand, proposed 
Nasdaq Rule 5210(k)(iii) would provide that a Restrictive Market 
Company would not be permitted to list on the Nasdaq Capital Market in 
connection with a Direct Listing, notwithstanding the fact that the 
Company may meet the applicable initial listing requirements for the 
Nasdaq Capital Market and the additional requirements in Nasdaq Rule 
IM-5505-1.\43\
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    \41\ See supra note 22.
    \42\ See Notice, supra note 3, at 9553.
    \43\ See id.
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    The Exchange's rules currently set forth initial listing 
requirements for companies listing on the Nasdaq Global Select Market, 
Nasdaq Global Market, and Nasdaq Capital Market,\44\ and additional 
listing requirements for Companies conducting a Direct Listing on such 
markets.\45\ The Exchange states that it believes it is appropriate to 
permit Restrictive Market Companies to list through a Direct Listing on 
the Nasdaq Global Select Market or Nasdaq Global Market because such 
companies would be subject to the additional listing requirements set 
forth in Nasdaq Rule IM-5315-1 or IM-5405-1, respectively.\46\ On the 
other hand, the Exchange states that it does not believe that the 
additional requirements for Direct Listing on the Nasdaq Capital 
Market, set forth in Nasdaq Rule IM-5501-1, are sufficient to overcome 
concerns regarding sufficient liquidity and investor interest to 
support fair and orderly trading on the Exchange with respect to 
Restrictive Market Companies.\47\
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    \44\ See Nasdaq Rules 5315, 5405, and 5505.
    \45\ See Nasdaq Rules IM-5315-1, IM-5405-1, and IM-5505-1.
    \46\ See Notice, supra note 3, at 9553.
    \47\ See id. As an example, the Exchange states that the Nasdaq 
Global Select Market and Nasdaq Global Market require a company to 
have at least 1,250,000 and 1.1 million Unrestricted Publicly Held 
Shares, respectively, and a Market Value of Unrestricted Publicly 
Held Shares of at least $45 million and $8 million, respectively. 
See Nasdaq Rules 5315(e)(2), 5315(f)(2)(C), 5405(a)(2), and 
5405(b)(1)(C). In contrast, the Nasdaq Capital Market only requires 
a company to have at least 1 million Unrestricted Publicly Held 
Shares and a Market Value of Unrestricted Publicly Held Shares of at 
least $5 million. See Nasdaq Rules 5505(a)(2) and 5505(b)(3)(C); 
Notice, supra note 3, at 9553, n.34.
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III. Proceedings To Determine Whether To Approve or Disapprove SR-
NASDAQ-2021-007 and Grounds for Disapproval Under Consideration

    The Commission is instituting proceedings pursuant to Section 
19(b)(2)(B) of the Act \48\ to determine whether the proposed rule 
change should be approved or disapproved. Institution of such 
proceedings is appropriate at this time in view of the legal and policy 
issues raised by the proposal. Institution of proceedings does not 
indicate that the Commission has reached any conclusions with respect 
to any of the issues involved. Rather, as described below, the 
Commission seeks and encourages interested persons to provide comments 
on the proposed rule change to inform the Commission's analysis of 
whether to approve or disapprove the proposal.
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    \48\ 15 U.S.C. 78s(b)(2)(B).
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    Pursuant to Section 19(b)(2)(B) of the Act,\49\ the Commission is 
providing notice of the grounds for disapproval under consideration. 
The Commission is instituting proceedings to allow for additional 
analysis of the proposal's consistency with Section 6(b)(5) of the Act, 
which requires, among other things, that the rules of a national 
securities exchange be ``designed to prevent fraudulent and 
manipulative acts and practices, to promote just and equitable 
principles of trade,'' and ``to protect investors and the public 
interest.'' \50\
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    \49\ Id.
    \50\ 15 U.S.C. 78f(b)(5).
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    As discussed above, the Exchange is proposing to apply additional 
initial listing requirements to a Restrictive Market Company listing on 
the Exchange in connection with an IPO or a business combination and to 
prohibit a Restrictive Market Company from listing on the Nasdaq 
Capital Market in connection with a Direct Listing. The Commission has 
received one comment letter regarding the proposed rule change \51\ and 
a response to comments from the Exchange.\52\ Given the comment letter 
received and the recently filed response from the Exchange, the 
Commission is seeking additional public comment on the proposed rule 
change in order to determine whether it is consistent with the 
requirements of Section 6(b)(5) of the Act.
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    \51\ See Letter from Jeffrey P. Mahoney, General Counsel, 
Council of Institutional Investors (February 18, 2021).
    \52\ See Nasdaq Response Letter, supra note 17.
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    The Commission notes that, under the Commission's Rules of 
Practice, the ``burden to demonstrate that a proposed rule change is 
consistent with the Act and the rules and regulations thereunder . . . 
is on the self-regulatory organization ['SRO'] that proposed the rule 
change.'' \53\ The description of a proposed rule change, its purpose 
and operation, its effect, and a legal analysis of its consistency with 
applicable requirements must all be sufficiently detailed and specific 
to support an affirmative Commission finding,\54\ and any failure of an 
SRO to provide this information may result in the Commission not having 
sufficient basis to make an affirmative finding that a proposed rule 
change is consistent with the Act and the applicable rule and 
regulations.\55\
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    \53\ Rule 700(b)(3), Commission Rules of Practice, 17 CFR 
201.700(b)(3).
    \54\ See id.
    \55\ See id.
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IV. Procedure: Request for Written Comments

    The Commission requests that interested persons provide written 
submissions of their views, data, and arguments with respect to the 
issues identified above, as well as any other concerns they may have 
with the proposal. In particular, the Commission invites the written 
views of interested persons concerning whether the proposed rule change 
is consistent with Section 6(b)(5) of the Act or any other provision of 
the Act, or the rules and regulations thereunder. Although there do not 
appear to be any issues relevant to approval or disapproval that would 
be facilitated by an oral presentation of views, data, and arguments, 
the Commission will consider, pursuant to Rule 19b-4, any request for 
an opportunity to make an oral presentation.\56\
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    \56\ Section 19(b)(2) of the Act, as amended by the Securities 
Act Amendments of 1975, Public Law 94-29 (June 4, 1975), grants the 
Commission flexibility to determine what type of proceeding--either 
oral or notice and opportunity for written comments--is appropriate 
for consideration of a particular proposal by a self-regulatory 
organization. See Securities Act Amendments of 1975, Senate Comm. on 
Banking, Housing & Urban Affairs, S. Rep. No. 75, 94th Cong., 1st 
Sess. 30 (1975).

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[[Page 27663]]

    Interested persons are invited to submit written data, views, and 
arguments regarding whether the proposed rule change should be approved 
or disapproved by June 11, 2021. Any person who wishes to file a 
rebuttal to any other person's submission must file that rebuttal by 
June 25, 2021.
    The Commission asks that commenters address the sufficiency of the 
Exchange's statements in support of the proposal, which are set forth 
in the Notice,\57\ in addition to any other comments they may wish to 
submit about the proposed rule change.
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    \57\ See supra note 3.
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    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-2021-007 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-2021-007. 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 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-NASDAQ-2021-007 and should be submitted 
on or before June 11, 2021. Rebuttal comments should be submitted by 
June 25, 2021.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\58\
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    \58\ 17 CFR 200.30-3(a)(57).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-10710 Filed 5-20-21; 8:45 am]
BILLING CODE 8011-01-P