NASDAQ Listing Requirements

Nasdaq Extends Direct Listings

The Nasdaq Stock Market currently has three tiers of listed companies: (1) The Nasdaq Global Select Market, (2) The Nasdaq Global Market, and (3) The Nasdaq Capital Market. Each tier has increasingly higher listing standards, with the Nasdaq Global Select Market having the highest initial listing standards and the Nasdaq Capital Markets being the entry-level tier for most micro- and small-cap issuers. For a review of the Nasdaq Capital Market listing requirements, see HERE as supplemented and amended HERE.

On December 3, 2019, the SEC approved amendments to the Nasdaq rules related to direct listings on the Nasdaq Global Market and Nasdaq Capital Market. As previously reported, on February 15, 2019, Nasdaq amended its direct listing process rules for listing on the Market Global Select Market (see HERE).

Interestingly, around the same time as the approval of the Nasdaq rule changes, the SEC rejected amendments proposed by the NYSE big board which would have allowed

February 4, 2020

Drill Down On NASDAQ Audit Committee Requirements

I’ve written several times about Nasdaq listing requirements including the general listing requirements (see HERE) and the significant listing standards changes enacted in August of this year (see HERE). This blog will drill down on audit committees which are part of the corporate governance requirements for listed companies. Nasdaq Rule 5605 delineates the requirements for a Board of Directors and committees. The Nasdaq rule complies with SEC Rule 10A-3 related to audit committees for companies listed on a national securities exchange.

SEC Rule 10A-3

SEC Rule 10A-3 requires that each national securities exchange have initial listing and ongoing qualification rules requiring each listed company to have an audit committee comprised of independent directors. Although the Nasdaq rules detail its independence requirements, the SEC rule requires that at a minimum an independent director cannot directly or indirectly accept any consulting, advisory or other compensation or be affiliated with the company or any of its subsidiaries. The prohibition against compensation

December 17, 2019

Environmental, Social And Governance– The World Of ESG

Over the past few years, the term “Environmental, Social and Governance” or “ESG” has been both first used and brought into daily use by capital market participants. Multiple publications have been written on the subject, Nasdaq has published an ESG Reporting Guide, the House Financial Services Committee has debated multiple bills that would require various ESG disclosures and the SEC top brass is vocal, and divided, on the subject. SEC Chair Jay Clayton and Commissioner Hester M. Peirce both believe that ESG matters are too abstract and undefined to result in meaningful disclosure while Commissioners Robert J. Jackson Jr. and Allison Herren Lee just issued a joint statement expressing disappointment in the recently proposed changes to Regulation S-K (see HERE) for omitting the topic of climate risk.

It is clear that ESG matters are an important factor for analysts and investors and thus for reporting companies to consider. It is also clear that companies have increasing pressure to

September 24, 2019

Nasdaq And NYSE MKT Voting Rights Rules

In a series of blogs, I detailed Nasdaq and NYSE American rules requiring listed companies to receive shareholder approval in particular instances, including prior to the issuance of certain securities. In particular, Nasdaq Rule 5635 sets forth the circumstances under which shareholder approval is required prior to an issuance of securities in connection with: (i) the acquisition of the stock or assets of another company (see HERE); (ii) equity-based compensation of officers, directors, employees or consultants (see HERE); (iii) a change of control (see HERE); and (iv) transactions other than public offerings (see HERE). NYSE American Company Guide Sections 711, 712 and 713 have substantially similar provisions.

Each of these rules necessarily interacts with the Exchanges’ rules and policies related to voting rights.

Nasdaq Rule 5640 provides that “[V]oting rights of existing Shareholders of publicly traded common stock registered under Section 12 of the Act cannot be disparately reduced or restricted through any corporate action or

August 13, 2019

NASDAQ Adopts New Listing Qualification Standards

Nasdaq has adopted new listing qualifications which were proposed in April 2019 (see HERE). The final rules were adopted with some modifications to prior proposals.

On July 5, 2019, the SEC approved a Nasdaq rule change to amend initial listing standards related to liquidity. For a review of the Nasdaq Capital Market’s current initial listing standards, see HERE and related to direct listings, see HERE. In particular, to help assure adequate liquidity for listed securities, Nasdaq revised its initial listing criteria to (i) exclude restricted securities from the Exchange’s calculations of a company’s publicly held shares, market value of publicly held shares and round lot holders; (ii) imposed a new requirement that at least 50% of a company’s round lot holders must each hold shares with a market value of at least $2,500; and (iii) adopt a new listing rule requiring a minimum average daily trading volume for OTC traded securities at the time of their listing.

July 23, 2019

Nasdaq Proposed Changes In Listing Qualifications

In April, 2019, Nasdaq filed two proposed rule changes with the SEC which would amend the initial listing qualification standards. On April 3, 2019, Nasdaq filed a proposed rule change to amend initial listing standards related to liquidity. For a review of the Nasdaq Capital Market’s current initial listing standards, see HERE and related to direct listings, see HERE. In particular, to help assure adequate liquidity for listed securities, Nasdaq proposes to revise its initial listing criteria to (i) exclude restricted securities from the Exchange’s calculations of a company’s publicly held shares, market value of publicly held shares and round lot holders; (ii) impose a new requirement that at least 50% of a company’s round lot holders must each hold shares with a market value of at least $2,500; and (iii) adopt a new listing rule requiring a minimum average daily trading volume for OTC traded securities at the time of their listing.

On April 18, 2019 Nasdaq filed

June 25, 2019

Nasdaq Direct Listing Rule Change

On April 3, 2018, Spotify made a big board splash by debuting on the NYSE without an IPO. Instead, Spotify filed a resale registration statement registering the securities already held by its existing shareholders. The process is referred to as a direct listing. As most of those shareholders had invested in Spotify in private offerings, they were rewarded with a true exit strategy and liquidity by becoming the company’s initial public float. On April 26, 2019, Slack Technologies followed suit, filing a resale Form S-1 with an anticipated direct listing on to the NYSE.

Around this time last year, I published a blog on the direct listing process focusing on the differences between a direct listing onto a national exchange and one onto OTC Markets – see HERE. As the process seems to be gaining in popularity, on February 15, 2019 Nasdaq amended its direct listing process rules. This blog is focused on the Nasdaq direct

May 28, 2019

The 20% Rule – Private Placements

Nasdaq and the NYSE American both have rules requiring listed companies to receive shareholder approval prior to issuing twenty percent (20%) or more of the outstanding securities in a transaction other than a public offering at a price less than the Minimum Price, as defined in the rule. Nasdaq Rule 5635 sets forth the circumstances under which shareholder approval is required prior to an issuance of securities in connection with: (i) the acquisition of the stock or assets of another company (see HERE); (ii) equity-based compensation of officers, directors, employees or consultants (see HERE); (iii) a change of control (see HERE); and (iv) transactions other than public offerings. NYSE American Company Guide Sections 711, 712 a 713 have substantially similar provisions.

Nasdaq and the NYSE recently amended their rules related to issuances in a private placement to provide greater flexibility and certainty for companies to determine when a shareholder vote is necessary to approve a transaction that

May 14, 2019

NASDAQ And NYSE American Shareholder Approval Requirement – Equity Based Compensation

Nasdaq and the NYSE American both have rules requiring listed companies to receive shareholder approval prior to issuing securities when a stock option or purchase plan is to be established or materially amended or other equity compensation arrangement made or materially amended, pursuant to which stock may be acquired by officers, directors, employees, or consultants. Nasdaq Rule 5635 sets forth the circumstances under which shareholder approval is required prior to an issuance of securities in connection with: (i) the acquisition of the stock or assets of another company (see HERE); (ii) equity-based compensation of officers, directors, employees or consultants; (iii) a change of control (see HERE); and (iv) transactions other than public offerings (see HERE). NYSE American Company Guide Sections 711, 712 and 713 have substantially similar provisions.

In this blog I am detailing the shareholder approval requirements related to equity-based compensation of officers, directors, employees or consultants. Other Exchange Rules interplay with the rules requiring shareholder

May 7, 2019

The 20% Rule- Acquisitions

Nasdaq and the NYSE American both have “20% Rules” requiring listed companies to receive shareholder approval prior to issuing unregistered securities in an amount of 20% or more of their outstanding common stock or voting power. Nasdaq Rule 5635 sets forth the circumstances under which shareholder approval is required prior to an issuance of securities in connection with: (i) the acquisition of the stock or assets of another company; (ii) equity-based compensation of officers, directors, employees or consultants; (iii) a change of control; and (iv) transactions other than public offerings (see HERE related to Rule 5635(d)). NYSE American Company Guide Sections 711, 712 and 713 have substantially similar provisions.

In a series of blogs I will detail these rules and related interpretative guidance. Many other Exchange Rules interplay with the 20% Rules; for example, the Exchanges generally require a Listing of Additional Securities (LAS) form submittal at least 15 days prior to the issuance of securities in the same transactions

March 26, 2019

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NASDAQ Listing Requirements

Nasdaq Extends Direct Listings

Drill Down On NASDAQ Audit Committee Requirements

Nasdaq And NYSE MKT Voting Rights Rules

Nasdaq Proposed Changes In Listing Qualifications

Nasdaq Direct Listing Rule Change

The 20% Rule – Private Placements

NASDAQ And NYSE American Shareholder Approval Requirement – Equity Based Compensation

The 20% Rule- Acquisitions

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