83 FR 42541 - Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Adopt Initial and Continued Listing Standards for Subscription Receipts and Fees for Their Listing

SECURITIES AND EXCHANGE COMMISSION

Federal Register Volume 83, Issue 163 (August 22, 2018)

[Federal Register Volume 83, Number 163 (Wednesday, August 22, 2018)]
[Notices]
[Pages 42541-42544]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-18058]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-83861; File No. SR-NASDAQ-2018-059]


Self-Regulatory Organizations; The Nasdaq Stock Market LLC; 
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To 
Adopt Initial and Continued Listing Standards for Subscription Receipts 
and Fees for Their Listing

August 16, 2018.
    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 August 3, 2018, The Nasdaq Stock Market LLC (``Nasdaq'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``SEC'' or ``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

    The Exchange proposes to adopt initial and continued listing 
standards for subscription receipts and fees for their listing.
    The text of the proposed rule change is available on the Exchange's 
website at http://nasdaq.cchwallstreet.com, 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 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
    The Exchange proposes to adopt initial and continued listing 
standards for the listing of Subscription Receipts on the Nasdaq 
Capital Market and fees for their listing.
    Subscription Receipts are a financing technique that has been used 
for many years by Canadian public companies. Typically, Canadian 
companies use Subscription Receipts as a means of providing cash 
consideration in merger or acquisition transactions. Subscription 
Receipts are sold in a public offering that occurs after the execution 
of an acquisition agreement. The proceeds of the Subscription Receipt 
offering are held in a custody account and, if the related acquisition 
closes, the Subscription Receipt holders receive a specified number of 
shares of the issuer. If the acquisition does not close, then the 
Subscription Receipts are redeemed for their original purchase price 
plus any interest accrued on the custody account. The benefit of 
Subscription Receipts to the issuer is that they provide a contingent 
form of financing that only becomes permanent if the acquisition is 
completed. By contrast, a company financing the cash consideration for 
an acquisition by means of a traditional equity or debt offering is at 
risk of having incurred unnecessary dilution of its shareholders or 
indebtedness if the related acquisition fails to close. Subscription 
Receipts provide investors with flexibility to elect to invest in the 
post merger company and not in the company in its pre-merger form.
    Nasdaq has received inquiries from market participants about the 
possibility of the use of Subscription Receipts as a fundraising 
alternative for listed companies. As a result of this interest, the 
Exchange is now proposing to adopt listing standards for Subscription 
Receipts. Under the proposed rule, Nasdaq will initially list 
Subscription Receipts on the Capital Market pursuant to proposed Rule 
5520 if they meet the following requirements: \3\
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    \3\ As described in more detail below, these requirements are 
each either identical or substantially similar to those in Section 
102.08 of the NYSE Listed Company Manual for the initial listing of 
Subscription Receipts.
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    (a) The security that the Subscription Receipts are exchangeable 
for must be listed on the Nasdaq Global Select, Global or Capital 
Market.
    (b) The issuer of the Subscription Receipts must not have received 
a Staff Delisting Determination with respect to the security the 
Subscription Receipts are exchangeable for and must not have been 
notified about a deficiency in any continued listing standard with 
respect to the issuer of the Subscription Receipts or the security the 
Subscription Receipts are exchangeable for, except with respect to a 
corporate governance requirement where the issuer has received a grace 
period under Rule 5810(c)(3)(E).\4\
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    \4\ Rule 5810(c)(3)(E) provides a grace period for a company to 
regain compliance if the company fails to meet the majority board 
independence or the audit committee composition requirements due to 
one vacancy, or fails to meet the audit committee composition 
requirements because an audit committee member ceases to be 
independent for reasons outside of her control. The grace period is 
until the earlier of the company's next annual shareholders meeting 
or one year from the event that caused the deficiency to cure the 
deficiency. However, if the company's next annual shareholders' 
meeting is held sooner than 180 days after the event that caused the 
deficiency, then the company has 180 days from the event that caused 
the deficiency to cure it.
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    (c) The proceeds of the Subscription Receipts offering must be 
designated solely for use in connection with the consummation of a 
specified acquisition that is the subject of a binding acquisition 
agreement (the ``Specified Acquisition'').
    (d) The proceeds of the Subscription Receipts offering must be held 
in an interest-bearing custody account by an independent custodian.
    (e) The Subscription Receipts will promptly be redeemed for cash 
(i) at any

[[Page 42542]]

time the Specified Acquisition is terminated, or (ii) if the Specified 
Acquisition does not close within twelve months from the date of 
issuance of the Subscription Receipts, or such earlier time as is 
specified in the operative agreements. If the Subscription Receipts are 
redeemed, the holders will receive cash payments equal to their 
proportionate share of the funds in the custody account, including any 
interest earned on those funds.
    (f) If the Specified Acquisition is consummated, the holders of the 
Subscription Receipts will receive the shares of common stock for which 
their Subscription Receipts are exchangeable.
    (g) At the time of initial listing, the Subscription Receipts must 
have a price per Subscription Receipt of at least $4.00, a minimum 
Market Value of Publicly Held Shares of $100 million, 1,100,000 
Publicly Held Shares \5\ and 400 holders of round lots (i.e., 100 
securities).
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    \5\ Listing Rule 5005(a)(34) defines publicly held shares as 
``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.''
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    (h) The sale of the Subscription Receipts and the issuance of the 
common stock of the issuer in exchange for the Subscription Receipts 
must both be registered under the Securities Act.
    Listed Subscription Receipts will be convertible into the primary 
listed class of common stock of the listed company issuing the 
Subscription Receipts and will thereafter be subject to all of the 
continued listing requirements applicable to a primary class of common 
stock listed on the Nasdaq.
    Nasdaq proposes to adopt Rule 5565 to include continued listing 
standards applicable to Subscription Receipts. The Exchange will 
immediately initiate suspension and delisting procedures under the Rule 
5800 Series when (i) the number of publicly held shares is less than 
100,000, (ii) the number of public holders is less than 100, (iii) the 
total market value of the listed Subscription Receipts is below $15 
million over 30 consecutive trading days, (iv) the related common 
equity security ceases to be listed or receives a delisting 
determination from Nasdaq staff, or (v) the issuer announces that the 
Specified Acquisition has been terminated.\6\ An issuer of Subscription 
Receipts that fails these requirements will be issued a delisting 
letter under Rule 5810(c)(1) and will not be eligible to provide a plan 
to regain compliance.
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    \6\ These requirements are substantially similar to those in 
Section 802.01B of the NYSE Listed Company Manual for the continued 
listing of Subscription Receipts.
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    Because the issuer of the Subscription Receipt is already listing 
its primary common stock on Nasdaq, it must comply with the continued 
listing standards for common stock as well as the corporate governance 
requirements applicable to listed companies. In addition to the 
foregoing, Subscription Receipts will be subject to potential delisting 
for all of the reasons generally applicable to operating companies 
under the Rule 5800 Series. The Exchange notes that an issuer of 
Subscription Receipts may be subject to delisting at the time of 
closing of the related acquisition pursuant to Rule 5110(a), which 
requires a company to meet the initial listing standards following a 
business combination with a non-Nasdaq entity resulting in a change of 
control of the listed company and potentially allowing the non-Nasdaq 
entity to obtain a Nasdaq listing.
    Nasdaq proposes to amend Rule 4120(a) and IM-5250-1 to provide that 
whenever it halts trading in a security of a listed company pending 
dissemination of material news or implements any other required 
regulatory trading halt, the Exchange will also halt trading in any 
listed Subscription Receipt that is exchangeable by its terms into the 
common stock of such company. The Exchange will monitor activity in 
Subscription Receipts to identify and deter any potential improper 
trading activity in such securities and will adopt surveillance 
procedures, and make any enhancements necessary, to enable it to 
monitor Subscription Receipts alongside the common equity securities 
into which they are convertible. Additionally, the Exchange will rely 
on its existing trading surveillances, administered by the Exchange, or 
the Financial Industry Regulatory Authority (``FINRA'') on behalf of 
the Exchange,\7\ which are designed to detect violations of Exchange 
rules and applicable federal securities laws.
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    \7\ FINRA conducts cross-market surveillances on behalf of the 
Exchange pursuant to a regulatory services agreement. The Exchange 
is responsible for FINRA's performance under this regulatory 
services agreement.
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    Finally, Nasdaq proposes to adopt fees for Subscription Receipts in 
proposed Rule 5920. Specifically, Nasdaq proposes to charge a $25,000 
entry fee, which would include a $5,000 application fee, for the 
listing of a class of Subscription Receipts on the Nasdaq Capital 
Market. Given their short-term nature, Nasdaq does not propose to 
charge a separate annual fee to list Subscription Receipts and 
Subscription Receipts would not be included in the shares considered 
when calculating Nasdaq's All-inclusive Annual Listing Fee.\8\ While 
other securities listed on Nasdaq may have short terms, such as 
warrants, these securities are not required to have a short defined 
life and may have terms that extend for many years. In fact, no other 
security that can be listed on Nasdaq is required, as a condition for 
listing, to have a term of twelve months from issuance or less. For 
this reason, Nasdaq believes it is appropriate to adopt a different fee 
schedule for Subscription Receipts, which recognizes their required 
short-term nature.\9\
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    \8\ See IM-5910-1(e) and IM-5920-1(e), which impose the All-
Inclusive Annual Fee based on total shares outstanding and define 
``total shares outstanding'' to mean ``the aggregate number of all 
securities outstanding for each class of equity securities (not 
otherwise identified in this Rule 5900 Series) listed [on Nasdaq] . 
. . .'' (emphasis added). Because proposed Rule 5920(a)(7) would 
identify Subscription Receipts and subject them to a different fee 
schedule, the Subscription Receipts would not be included in total 
shares outstanding for this purpose.
    \9\ Nasdaq also proposes to make a non-substantive change to 
eliminate a duplicate phrase in Rule 5501.
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2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act,\10\ in general, and furthers the objectives of Section 
6(b)(5) of the Act,\11\ 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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    \10\ 15 U.S.C. 78f(b).
    \11\ 15 U.S.C. 78f(b)(5).
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    The Exchange believes that the proposed listing standard is 
consistent with Section 6(b)(5) of the Act in that it contains 
requirements in relation to the listing of Subscription Receipts that 
provide adequate protections for investors and the public interest. In 
particular, the Exchange believes that the quantitative requirements, 
which require that Subscription Receipts must have a price per share of 
at least $4.00, a minimum total market value of publicly held shares of 
$100 million, 1,100,000 publicly held shares, and 400 holders of round 
lots (collectively, the ``Distribution Criteria''), are designed to 
protect investors in that they are identical to the requirements the 
Commission recently approved for NYSE to list Subscription 
Receipts.\12\ In

[[Page 42543]]

approving that filing, the Commission noted that the Distribution 
Criteria is the same that currently applies to the listing of common 
stock in connection with an initial public offering under NYSE listing 
rules and that the $100 million market value of publicly held shares 
requirement is similar to the requirements for other initial listing of 
securities on NYSE, which should help ensure that a sufficient market, 
with adequate depth and liquidity, exists for the initial listing of 
Subscription Receipts.
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    \12\ See Exchange Act Release No. 81856 (October 11, 2017), 82 
FR 48296 (October 17, 2017) (approving SR-NYSE-2017-31).
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    Similarly, the Exchange believes that the proposed continued 
listing standards for Subscription Receipts are consistent with the 
requirements of the Act and the protection of investors. Under the 
proposal, the Exchange will immediately initiate suspension and 
delisting procedures when (i) the number of publicly held shares is 
less than 100,000, (ii) the number of public holders is less than 100, 
(iii) the total market value of listed Subscription Receipts is below 
$15 million over 30 consecutive trading days, (iv) the related common 
equity security ceases to be listed or receives a delisting 
determination from Nasdaq staff, or (v) the issuer announces that the 
Specified Acquisition has been terminated. In addition, Subscription 
Receipts will be subject to potential delisting for all of the reasons 
generally applicable to operating companies, including those outlined 
in the Rule 5800 Series of Nasdaq's rules, and may also be subject to 
delisting at the time of closing of the related acquisition pursuant to 
Rule 5110(a), which requires a company to meet the initial listing 
standards following a business combination with a non-Nasdaq entity 
resulting in a change of control of the listed company and potentially 
allowing the non-Nasdaq entity to obtain a Nasdaq listing. The Exchange 
believes the application of Rule 5110(a), which requires a company to 
meet the initial listing standards following a business combination 
with a non-Nasdaq entity resulting in a change of control of the listed 
company and potentially allowing the non-Nasdaq entity to obtain a 
Nasdaq listing, will help to ensure that companies that would not 
otherwise qualify for original listing on the Exchange could not list, 
for example, by merging with a listed company. Taken as a whole, Nasdaq 
believes that these standards should help ensure that a sufficient 
market, with adequate depth and liquidity, exists for the continued 
listing of Subscription Receipts and are similar to the continued 
listing standards for other securities that have similar 
characteristics.
    Nasdaq also notes that once the Specified Acquisition has occurred 
and a Subscription Receipt is converted to common stock, that common 
stock is subject to the continued listing requirements for such common 
stock under Rules 5450 or 5550, as applicable. In addition to the 
quantitative listing requirements proposed for Subscription Receipts, 
the proposed initial and continued listing standards also include 
additional protections for Subscription Receipt holders. For example, 
the issuer of Subscription Receipts must be a Nasdaq-listed company 
that is not currently non-compliant with any applicable continued 
listing standard and must continue to be listed on the Exchange 
throughout the time the Subscription Receipts are traded on the 
Exchange. The proposed rules also provide that whenever Nasdaq halts 
trading in a security of a listed company pending dissemination of 
material news or implements any other required regulatory trading halt, 
Nasdaq will also halt trading in any listed Subscription Receipt that 
is exchangeable by its terms into the common stock of such company.
    Nasdaq believes that these additional requirements should protect 
investors and the public interest, consistent with Section 6(b)(5) of 
the Act, by assuring that information with respect to the listed 
company issuing the Subscription Receipts is publicly available and 
that the issuing company is meeting all continued listing standards, 
including corporate governance requirements, of the Exchange. In 
addition, these requirements should help assure that the Exchange has a 
listing relationship with, and direct access to information from, the 
issuer of the Subscription Receipts. Among other things, this direct 
relationship the Exchange has with the listed company issuing the 
Subscription Receipts will help to ensure that the Exchange will 
receive information in a timely manner to halt trading in the 
Subscription Receipts when there is a material news, or other 
regulatory, trading halt imposed on the common stock, and other 
securities, of the listed company.
    There are additional protections for investors in the proposed 
standards. These include that all the proceeds of the Subscription 
Receipts offering must be designated solely for use in connection with 
the consummation of a Specified Acquisition pursuant to a definitive 
acquisition agreement, the material terms of which would be subject to 
disclosure. Additionally, the proceeds of the Subscription Receipts 
offering must also be held in an interest-bearing custody account by an 
independent custodian and holders will promptly redeem the Subscription 
Receipts for cash, equal to the holder's proportionate share of the 
funds in the custody account plus any interest earned, at any time the 
Specified Acquisition is terminated or if the Specified Acquisition 
does not close within twelve months from the date of issuance of the 
Subscription Receipts (or such earlier time as specified in the 
operative agreements). If the Specified Acquisition is consummated, the 
holders of the Subscription Receipts will receive the shares of common 
stock for which their Subscription Receipts are exchangeable. Finally, 
the listing standards specifically state and remind issuers that the 
sale of Subscription Receipts and the issuance of the common stock of 
the issuer in exchange for the Subscription Receipts must both be 
registered under the Securities Act of 1933. This is important because 
shareholders, at the time they purchase a Subscription Receipt, are 
making an investment decision to also purchase the common stock of the 
merged listed company should the Specified Acquisition be consummated 
within twelve months or such shorter specified time period. Therefore, 
it is important to have registration and disclosure under the 
Securities Act of both the Subscription Receipt and the related common 
stock. Based on the above, Nasdaq believes that specifically setting 
forth the Securities Act registration requirements in its rules for 
listing Subscription Receipts is consistent with the requirements of 
Section 6(b)(5) of the Act to further investor protection and the 
public interest.
    The Exchange will also monitor activity in Subscription Receipts to 
identify and deter any potential improper trading activity in such 
securities and will adopt surveillance procedures, and make any 
enhancements necessary, to enable it to monitor Subscription Receipts 
alongside the common equity securities into which they are convertible. 
Since the Subscription Receipts are related to, and represent an 
interest in, the common stock of the post-acquisition listed company, 
this surveillance should help to monitor the trading activity in both 
the issuer's listed common stock and the Subscription Receipts. Nasdaq 
believes that these safeguards and standards should help to ensure that 
the listing, and continued listing, of any Subscription Receipts will 
be consistent with investor protection, the public

[[Page 42544]]

interest, and the maintenance of fair and orderly markets.
    For the above reasons, Nasdaq believes that the proposed initial 
and continued listing standards are consistent with the Act.
    Nasdaq also believes that the proposed fee set forth in Rule 5920 
is consistent with Section 6(b)(4) and 6(b)(5) of the Act in that it is 
designed to provide for the equitable allocation of reasonable dues, 
fees, and other charges and is not designed to permit unfair 
discrimination among its members and issuers and other persons using 
its facilities. Subscription Receipts are designed to be used for the 
limited purpose of raising capital for an announced merger transaction 
and by their terms must be redeemed within 12 months if the transaction 
does not close. While other securities listed on Nasdaq can have short 
terms, no other security that can be listed on Nasdaq is required, as a 
condition for listing, to have a term of twelve months from issuance or 
less. As such, Nasdaq believes it is not unfairly discriminatory under 
Section 6(b)(5) of the Act as between issuers listing other types of 
securities, to charge a fee that differs from its fee for other equity 
securities, which generally have longer terms or no fixed term, and 
that it is equitable and reasonable under Section 6(b)(4) of the Act to 
charge a single $25,000 fee, which includes a $5,000 application fee, 
for the listing of these securities during their lifetime. This fee is 
also not unfairly discriminatory because the same fee will apply to all 
issuers seeking to list Subscription Receipts. Further, Nasdaq operates 
in a competitive environment and its fees are constrained by 
competition in the marketplace. Other venues currently list 
Subscription Receipts and if a company believes that Nasdaq's fee is 
unreasonable it can decide either not to list the Subscription Receipts 
or to list them on an alternative venue.

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 that is not necessary or appropriate 
in furtherance of the purposes of the Act. The purpose of the proposed 
rule is to enhance competition by providing issuers and investors with 
an additional type of listed security that is not currently available 
on Nasdaq, but that is available on another domestic listing exchange. 
As such, the Exchange does not believe the proposed rule change imposes 
any burden on competition but instead will enhance competition.

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

    Because the foregoing 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)(iii) of the Act \13\ and 
subparagraph (f)(6) of Rule 19b-4 thereunder.\14\
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    \13\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \14\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6) 
requires a self-regulatory organization to give the Commission 
written notice of its intent to file the proposed rule change at 
least five business days prior to the date of filing of the proposed 
rule change, or such shorter time as designated by the Commission. 
The Exchange has satisfied this requirement.
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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: (i) 
Necessary or appropriate in the public interest; (ii) for the 
protection of investors; or (iii) otherwise in furtherance of the 
purposes of the Act. If the Commission takes such action, the 
Commission shall institute proceedings to determine whether the 
proposed rule should be approved or 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-2018-059 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-2018-059. 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-2018-059, and should be submitted 
on or before September 12, 2018.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\15\
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    \15\ 17 CFR 200.30-3(a)(12).
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Eduardo A. Aleman,
Assistant Secretary.
[FR Doc. 2018-18058 Filed 8-21-18; 8:45 am]
 BILLING CODE 8011-01-P