Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Permit a Longer Period of Time for Companies To Regain Compliance With the Bid Price and Market Value of Publicly Held Shares Continued Listing Requirements by Tolling the Compliance Periods Through and Including June 30, 2020, 22777-22780 [2020-08592]
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Federal Register / Vol. 85, No. 79 / Thursday, April 23, 2020 / Notices
A proposed rule change filed
pursuant to Rule 19b–4(f)(6) under the
Act 10 normally does not become
operative for 30 days after the date of its
filing. However, Rule 19b–4(f)(6)(iii) 11
permits the Commission to designate a
shorter time if such action is consistent
with the protection of investors and the
public interest. The Exchange has asked
the Commission to waive the 30-day
operative delay so that investors may
continue to trade nonstandard
expiration options listed by the
Exchange as part of the pilot program on
an uninterrupted basis. The
Commission believes that waiving the
30-day operative delay is consistent
with the protection of investors and the
public interest as it will allow the pilot
program to continue uninterrupted,
thereby avoiding investor confusion that
could result from a temporary
interruption in the pilot program.
Accordingly, the Commission hereby
waives the operative delay and
designates the proposed rule change
operative upon filing.12
At any time within 60 days of the
filing of the proposed rule change, the
Commission summarily may
temporarily suspend such rule change if
it appears to the Commission that such
action is necessary or appropriate in the
public interest, for the protection of
investors, or otherwise in furtherance of
the purposes of the Act. If the
Commission takes such action, the
Commission shall institute proceedings
to determine whether the proposed rule
change 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 (https://www.sec.gov/
rules/sro.shtml); or
• Send an email to rule-comments@
sec.gov. Please include File Number SR–
ISE–2020–17 on the subject line.
Commission, 100 F Street NE,
Washington, DC 20549–1090.
SECURITIES AND EXCHANGE
COMMISSION
All submissions should refer to File
Number SR–ISE–2020–17. 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 (https://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–ISE–2020–17, and should
be submitted on or before May 14, 2020.
[Release No. 34–88685; File No. SR–
NASDAQ–2020–021]
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.13
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020–08595 Filed 4–22–20; 8:45 am]
BILLING CODE 8011–01–P
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April 17, 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 April 16,
2020, 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 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.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Exchange proposes to permit a
longer period of time for companies to
regain compliance with the bid price
and market value of publicly held
shares continued listing requirements
by tolling the compliance periods
through and including June 30, 2020.
Nasdaq has filed this proposal under
Exchange Act Rule 19b–4(f)(6) 3 and
requests that the Commission waive the
30-day operative delay period contained
in Exchange Act Rule 19b–4(f)(6)(iii).4
The text of the proposed rule change
is available on the Exchange’s website at
https://nasdaq.cchwallstreet.com, at the
principal office of the Exchange, and at
the Commission’s Public Reference
Room.
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
10 17
VerDate Sep<11>2014
Self-Regulatory Organizations; The
Nasdaq Stock Market LLC; Notice of
Filing and Immediate Effectiveness of
Proposed Rule Change To Permit a
Longer Period of Time for Companies
To Regain Compliance With the Bid
Price and Market Value of Publicly
Held Shares Continued Listing
Requirements by Tolling the
Compliance Periods Through and
Including June 30, 2020
II. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
Paper Comments
• Send paper comments in triplicate
to Secretary, Securities and Exchange
CFR 240.19b–4(f)(6).
CFR 240.19b–4(f)(6)(iii).
12 For purposes only of waiving the 30-day
operative delay, the Commission also has
considered the proposed rule’s impact on
efficiency, competition, and capital formation. See
15 U.S.C. 78c(f).
22777
1 15
U.S.C. 78s(b)(1).
CFR 240.19b–4.
3 17 CFR 240.19b–4(f)(6).
4 17 CFR 240.19b–4(f)(6)(iii).
2 17
13 17
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Federal Register / Vol. 85, No. 79 / Thursday, April 23, 2020 / Notices
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
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1. Purpose
Given current market conditions,
Nasdaq proposes to provide issuers of
common stock, preferred stock,
secondary classes of common stock,
shares or certificates of beneficial
interest of trusts, limited partnership
interests, American Depositary Receipts,
subscription receipts, and their
equivalents temporary relief from the
continued listing bid price 5 and market
value of publicly held shares 6
requirements (collectively, the ‘‘Pricebased Requirements’’). The proposed
relief will allow companies that are out
of compliance with the Price-based
Requirements additional time to regain
compliance.
In December 2019, COVID–19 began
to spread and disrupt company
operations and supply chains and
impact consumers and investors,
resulting in a dramatic slowdown in
production and spending. By March 11,
2020, the World Health Organization
characterized COVID–19 as a
pandemic.7 To slow the spread of the
disease, federal and state officials
implemented social-distancing
measures, placed significant limitations
on large gatherings, limited travel, and
closed non-essential businesses.
One unavoidable consequence of the
actions being taken to reduce the spread
of COVID–19 is a reduction, or complete
interruption, in revenue for many
companies. For example, many
communities have mandated that all
restaurants and entertainment facilities
close for a period of time. Similarly,
companies in the travel sector have seen
5 Nasdaq’s continued listing requirements relating
to bid price are set forth in Rules 5450(a)(1),
5460(a)(3), 5550(a)(2), and 5555(a)(1) and the
related compliance periods are set forth in Rule
5810(c)(3)(A).
6 Nasdaq’s continued listing requirements relating
to market value of publicly held shares are set forth
in Rules 5450(b)(1)(C), 5450(b)(2)(C), 5450(b)(3)(C),
5460(a)(2), 5550(a)(5), and 5555(a)(4), and the
related compliance period is set forth in Rule
5810(c)(3)(D).
7 See WHO Director-General’s Opening Remarks
at the Media Briefing on COVID–19 (March 11,
2020) available at https://www.who.int/dg/
speeches/detail/who-director-general-s-openingremarks-at-the-media-briefing-on-covid-19-11march-2020.
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significant declines in bookings, even
where they are allowed to continue to
operate. Thus, these businesses will
have little or no revenue to offset
normal operating expenses and any
increased costs associated with the
crisis, which can depress their stock
prices until more certainty around the
end of these protective measures is
available.
These necessary measures also have
affected equity markets, which have
seen significant declines.8 In response,
governments around the world have
acted swiftly and decisively to provide
relief to regulated entities and are
undertaking efforts to stabilize the
economy and assist affected companies
and their employees.9 The Commission,
in particular, has recognized the
importance of functioning markets in
this environment 10 and has granted
issuers and broker-dealers relief and
extensions from existing deadlines, in
order to allow these entities, as well as
the Commission itself, to focus on
fighting the deadly virus and preserving
functioning capital markets.11
8 In the United States, Level 1 market wide circuit
breaker halts were triggered on March 9, March 12,
March 16, and March 18, 2020. See also Phil
Mackintosh, Putting the Recent Volatility in
Perspective, available at https://www.nasdaq.com/
articles/putting-the-recent-volatility-in-perspective2020-03-05 (‘‘Analysts showed that we saw the
fastest ‘correction’ in history (down 10% from a
high), occurring in a matter of days. In the last week
of February, the Dow fell 12.36% with notional
trading of $3.6 trillion.’’)
9 See, e.g., the list of actions undertaken by the
Board of Governors of the Federal Reserve System
at https://www.federalreserve.gov/covid-19.htm. See
also Families First Coronavirus Response Act,
Public Law 116–127 and Coronavirus Aid, Relief,
and Economic Security Act, Public Law 116–136.
10 See, e.g., Chairman Jay Clayton, The Deep and
Essential Connections Among Markets, Businesses,
and Workers and the Importance of Maintaining
those Connections in our Fight Against COVID–19
(March 24, 2020) available at https://www.sec.gov/
news/public-statement/statement-clayton-covid-192020-03-24 (‘‘The Securities and Exchange
Commission and other financial regulators are
focused on two overriding and interrelated issues.
First, we are facing an unprecedented national
challenge—a health and safety crisis that requires
all Americans, for the sake of all Americans, to
significantly change their daily behavior and, for
many, to make difficult personal sacrifices. Second,
the recognition that the continuing, orderly
operation of our markets is an essential component
of our national response to, and recovery from,
COVID–19. The interrelationship between these
issues cannot be overstated. Our health care,
pharmaceutical, manufacturing, transportation,
telecommunications and many other private-sector
industries are critical to our collective response to
COVID–19. The thousands of firms and
entrepreneurs in these industries—and the millions
of employees and contractors—that are working
around the clock to fight COVID–19 depend on
continued access to payments and credit.’’).
11 See SEC Coronavirus (COVID–19) Response
available at https://www.sec.gov/sec-coronaviruscovid-19-response, which is being updated
regularly with additional actions taken by the
Commission. As of April 14, 2020, the Commission
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Nasdaq is seeing an increase in the
number of companies whose securities
are becoming non-compliant with the
Price-based Requirements amidst the
current market uncertainty 12 and
believes that relief is appropriate for the
same reasons that the Commission has
granted relief to its requirements. The
decline in general investor confidence
has resulted in depressed pricing for
companies that otherwise remain
suitable for continued listing. Similarly,
Nasdaq believes that it is difficult for
companies that are already noncompliant with these requirements to
take action to regain compliance. For
example, large daily market moves 13
make it difficult for a company to
predict what ratio may be required for
a reverse stock split that will enable the
company to achieve and maintain
response includes (but is not limited to): Providing
conditional relief for certain publicly traded
company filing and proxy delivery obligations
(March 4 and 25, 2020); granting relief to reporting
deadlines and in-person meeting requirements for
investment companies (March 13, 2020); extending
the industry compliance period for Consolidated
Audit Trail reporting due to the fact that
‘‘disruptions as a result of COVID–19 have placed
new stresses and competing priorities on the
infrastructure and staff required to implement the
Consolidated Audit Trail’’ (March 16, 2020);
extending filing deadlines for certain reports
required under Regulation A and Regulation
Crowdfunding (March 26, 2020); and providing
temporary relief for Business Development
Companies investing in small and medium-sized
businesses (April 8, 2020). See also Chairman Jay
Clayton, Proposed Amendments to Modernize and
Enhance Financial Disclosures; Other Ongoing
Disclosure Modernization Initiatives; Impact of the
Coronavirus; Environmental and Climate-Related
Disclosure (Jan. 30, 2020) available at https://
www.sec.gov/news/public-statement/clayton-mda2020-01-30 (‘‘Yesterday, I asked the staff to monitor
and, to the extent necessary or appropriate, provide
guidance and other assistance to issuers and other
market participants regarding disclosures related to
the current and potential effects of the coronavirus.
We recognize that such effects may be difficult to
assess or predict with meaningful precision both
generally and as an industry- or issuer-specific
basis. This is an uncertain issue where actual effects
will depend on many factors beyond the control
and knowledge of issuers.’’).
12 For example, as of April 13, 2020, there were
154 securities that were already deficient with the
$1 price requirement. However, an additional 262
securities had closing bid prices below $1 for less
than 30 days, and another 117 securities had
closing bid prices between $1 and $1.50. On March
1, 2019, there were 119 securities that were
deficient with the bid price requirement. Similarly,
as of April 13, 2020, there were seven securities that
were deficient with the applicable market value of
publicly held shares requirement, but another 22
securities below the applicable requirement for less
than 30 days. Only two securities were cited for
non-compliance with this requirement during the
period from January 1 through April 13, 2019.
13 From March 13 to March 27, the S&P 500 index
had four days with gains in excess of 6%, including
two days with gains of more than 9% each, and also
had five days with losses in excess of 2.9%,
including daily losses of 5.2% and 12%. See
https://www.cnbc.com/2020/03/28/crazy-volatilityforces-wall-street-strategists-to-suspend-sp-500targets.html.
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compliance with the bid price
requirement. Similarly, it could be
harmful to existing shareholders for a
company to sell securities at an
artificially low price, solely to regain
compliance with the market value of
publicly held shares requirement.
Moreover, the need to develop and
implement actions to address potential
or actual non-compliance can draw
management and board attention away
from the more immediate needs of their
employees and customers, as well as the
communities where they operate.
Accordingly, Nasdaq proposes to give
companies that are out of compliance
with the Price-based Requirements
additional time to regain compliance by
tolling the compliance periods through
and including June 30, 2020. Under this
proposal, companies would be given
additional time to regain compliance
because the compliance periods for the
Price-based Requirements would be
tolled through and including June 30,
2020. However, throughout the tolling
period, Nasdaq would continue to
monitor these requirements and
companies would continue to be
notified about new instances of noncompliance with the Price-based
Requirements in accordance with
existing Nasdaq rules.14 Companies that
are notified about non-compliance are
required by Nasdaq rules to make a
public announcement disclosing receipt
of the notification by filing a Form 8–
K, where required by SEC rules, or by
issuing a press release.15 Starting on
July 1, 2020, companies would receive
the balance of any pending compliance
period in effect at the start of the tolling
period to come back into compliance
with the applicable requirement.16
Similarly, companies that were in the
Hearings process would return to that
process at the same stage they were in
14 See Rule 5810 (providing that the Nasdaq
Listing Qualifications Department will immediately
notify a company when it determines that the
company does not meet a listing standard set forth
in the Rule 5000 Series, and describing the types
of notifications).
15 See Rule 5810(b). Nasdaq also identifies
companies in a compliance period or in the
Hearings process as not satisfying the continued
listing standards at https://
listingcenter.nasdaq.com/
NonCompliantCompanyList.aspx. During the
tolling period, Nasdaq will continue to maintain
that list of non-complaint companies and will add
to the list companies that become non-compliant
(including with the Price-based Requirements).
16 For example, if a company is 120 days into its
first 180-day compliance period for a bid price
deficiency when the tolling period starts and the
company does not regain compliance before June
30, 2020, the company would have an additional 60
days, starting on July 1, 2020, to regain compliance.
The company may be eligible for a second 180-day
compliance period if it satisfies the conditions for
eligibility at the conclusion of the first compliance
period.
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when the tolling period began. If the
company had received a temporary
exception from the Hearings Panel
before the tolling began, the company
would receive the balance of the
exception period beginning on July 1,
2020. A company in the Hearings
process would nonetheless be delisted
and not get the benefit of the tolling
period if the company has had an oral
or written hearing before a Hearings
Panel and the Panel has reached a
determination to delist, even if the
Hearings Panel has not issued the
written decision required by Rule
5815(d)(1) and Rule 5840(c) prior to the
proposed rule change taking effect.
Companies that are newly identified as
non-compliant during the tolling period
would have 180 days to regain
compliance, beginning on July 1,
2020.17 Nasdaq will continue to monitor
securities to determine if they regain
compliance with the Price-based
Requirements during the tolling period.
Nasdaq believes that this temporary
tolling of the compliance periods for the
Price-based Requirements will permit
companies to focus on running their
businesses and the immediate health
crisis caused by the COVID–19
pandemic, including its impact on their
employees, customers, and
communities, rather than satisfying
Nasdaq’s listing requirements.
Moreover, this temporary tolling of the
compliance periods would allow
investments in these lower-priced
securities without fear that the company
will be delisted in the very near term.
2. Statutory Basis
The Exchange believes that its
proposal is consistent with Section 6(b)
of the Act,18 in general, and furthers the
objectives of Section 6(b)(5) of the Act,19
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. As a
result of uncertainty related to the
ongoing spread of the COVID–19 virus,
the prices of securities listed on U.S.
exchanges are experiencing large daily
market moves, including rapid and
significant declines. The proposed rule
change is designed to reduce
uncertainty by providing additional
time for companies deficient in the
17 See Rules 5810(c)(3)(A) and 5810(c)(3)(D)
describing the compliance periods available to a
company that fails to meet the continued listing
requirements for bid price and market value of
publicly held shares, respectively.
18 15 U.S.C. 78f(b).
19 15 U.S.C. 78f(b)(5).
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22779
Price-based Requirements to regain
compliance with these standards during
the current highly unusual market
conditions, thereby protecting investors,
facilitating transactions in securities,
and removing an impediment to a free
and open market. Notwithstanding the
tolling of the compliance periods,
important investor protections will
remain and investors will be able to
identify companies that are noncompliant with the requirements on
Nasdaq’s website. In addition,
companies that become newly noncompliant with the Price-based
Requirements will have to notify
investors by issuing a Form 8–K, where
required by SEC rules, or a press release.
The proposed relief would apply in a
non-discriminatory manner and all
companies listed on the Exchange that
are or fall below the Price-based
Requirements would be eligible to take
advantage of it.
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. All
companies listed on the Exchange that
are or fall below the Price-based
requirements while the compliance
periods are tolled would benefit from
the proposed rule change. In addition,
the proposed rule change is not
designed to have any effect on
intermarket competition but instead
seeks to address concerns Nasdaq has
observed surrounding the application of
the Price-based Requirements to
companies listed on Nasdaq. Other
exchanges can craft relief based on their
own rules and observations.
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
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Federal Register / Vol. 85, No. 79 / Thursday, April 23, 2020 / Notices
19(b)(3)(A) of the Act 20 and Rule 19b–
4(f)(6) thereunder.21
A proposed rule change filed under
Rule 19b–4(f)(6) 22 normally does not
become operative for 30 days after the
date of the filing. However, pursuant to
Rule 19b–4(f)(6)(iii),23 the Commission
may designate a shorter time if such
action is consistent with the protection
of investors and the public interest. The
Exchange has asked the Commission to
waive the 30-day operative delay so that
the proposed rule change may become
operative immediately upon filing. The
Exchange stated that the proposed rule
change is designed to respond to the
unprecedented uncertainty and
resulting market declines related to the
global spread of the COVID–19 virus.
Specifically, the Exchange stated that
the proposed rule change is designed to
reduce uncertainty for certain
companies and their shareholders by
providing additional time for companies
deficient in the Price-based
Requirements to regain compliance with
these standards during the current
highly unusual market conditions.
Nasdaq also stated that investors will
still be able to identify companies that
are non-compliant with the
requirements on Nasdaq’s website. In
addition, Nasdaq noted that it will
continue to notify companies about new
instances of non-compliance and any
newly non-compliant companies will
have to notify investors by issuing a
Form 8–K, where required by SEC rules,
or a press release.
The Commission notes that while the
proposal provides additional time for
companies to comply with the Pricebased Requirements, new companies
that are deficient with these standards
during the tolling period will still
continue to be notified by Nasdaq of the
deficiency as they currently would be
under normal circumstances with no
tolling period, and would continue to be
required to comply with the
requirements of Nasdaq Rule 5810(b) to
make a public announcement of the
notification by filing a Form 8–K, where
required by SEC rules, or by issuing a
press release. In addition to requiring
public announcement of a notification
of a deficiency, companies so notified
under Nasdaq Rule 5810(b) would also
20 15
U.S.C. 78s(b)(3)(A).
CFR 240.19b–4(f)(6). In addition, Rule 19b–
4(f)(6)(iii) requires a self-regulatory organization to
give the Commission written notice of its intent to
file the proposed rule change, along with a brief
description and text of 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.
22 17 CFR 240.19b–4(f)(6).
23 17 CFR 240.19b–4(f)(6)(iii).
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be required to disclose the rule upon
which the deficiency is based and to
describe each specific basis and concern
identified by Nasdaq by which the
company does not meet the listing
standard. In addition, Nasdaq will
continue to maintain and update the list
of companies that are non-compliant
with the Price-based Requirements (as
well as other deficiencies), including
companies newly identified during the
tolling period, so that shareholders and
the public will have access to such
information as they normally would
without the tolling period. The
Commission notes that the additional
time to comply with the standards is
meant to address the current unusual
market conditions while continuing to
ensure that shareholders and the public
have relevant and accurate information
concerning a company’s deficiency with
the Price-based Requirements. The
Commission also notes that the proposal
is a temporary measure designed to
respond to current, unusual market
conditions. For these reasons, the
Commission believes that waiver of the
30-day operative delay is consistent
with the protection of investors and the
public interest. Accordingly, the
Commission hereby waives the 30-day
operative delay and designates the
proposal operative upon filing.24
At any time within 60 days of the
filing of such proposed rule change, the
Commission summarily may
temporarily suspend such rule change if
it appears to the Commission that such
action is necessary or appropriate in the
public interest, for the protection of
investors, or otherwise in furtherance of
the purposes of the Act. If the
Commission takes such action, the
Commission shall institute proceedings
under Section 19(b)(2)(B) 25 of the Act to
determine whether the proposed rule
change 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 (https://www.sec.gov/
rules/sro.shtml); or
24 For purposes only of waiving the 30-day
operative delay, the Commission has considered the
proposed rule change’s impact on efficiency,
competition, and capital formation. See 15 U.S.C.
78c(f).
25 15 U.S.C. 78s(b)(2)(B).
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• Send an email to rule-comments@
sec.gov. Please include File Number SR–
NASDAQ–2020–021 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–2020–021. 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 (https://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–2020–021 and
should be submitted on or before May
14, 2020.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.26
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020–08592 Filed 4–22–20; 8:45 am]
BILLING CODE 8011–01–P
26 17
E:\FR\FM\23APN1.SGM
CFR 200.30–3(a)(12).
23APN1
]]>Agencies
[Federal Register Volume 85, Number 79 (Thursday, April 23, 2020)]
[Notices]
[Pages 22777-22780]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08592]
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SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-88685; File No. SR-NASDAQ-2020-021]
Self-Regulatory Organizations; The Nasdaq Stock Market LLC;
Notice of Filing and Immediate Effectiveness of Proposed Rule Change To
Permit a Longer Period of Time for Companies To Regain Compliance With
the Bid Price and Market Value of Publicly Held Shares Continued
Listing Requirements by Tolling the Compliance Periods Through and
Including June 30, 2020
April 17, 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 April 16, 2020, 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 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 permit a longer period of time for
companies to regain compliance with the bid price and market value of
publicly held shares continued listing requirements by tolling the
compliance periods through and including June 30, 2020. Nasdaq has
filed this proposal under Exchange Act Rule 19b-4(f)(6) \3\ and
requests that the Commission waive the 30-day operative delay period
contained in Exchange Act Rule 19b-4(f)(6)(iii).\4\
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\3\ 17 CFR 240.19b-4(f)(6).
\4\ 17 CFR 240.19b-4(f)(6)(iii).
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The text of the proposed rule change is available on the Exchange's
website at https://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
[[Page 22778]]
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
Given current market conditions, Nasdaq proposes to provide issuers
of common stock, preferred stock, secondary classes of common stock,
shares or certificates of beneficial interest of trusts, limited
partnership interests, American Depositary Receipts, subscription
receipts, and their equivalents temporary relief from the continued
listing bid price \5\ and market value of publicly held shares \6\
requirements (collectively, the ``Price-based Requirements''). The
proposed relief will allow companies that are out of compliance with
the Price-based Requirements additional time to regain compliance.
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\5\ Nasdaq's continued listing requirements relating to bid
price are set forth in Rules 5450(a)(1), 5460(a)(3), 5550(a)(2), and
5555(a)(1) and the related compliance periods are set forth in Rule
5810(c)(3)(A).
\6\ Nasdaq's continued listing requirements relating to market
value of publicly held shares are set forth in Rules 5450(b)(1)(C),
5450(b)(2)(C), 5450(b)(3)(C), 5460(a)(2), 5550(a)(5), and
5555(a)(4), and the related compliance period is set forth in Rule
5810(c)(3)(D).
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In December 2019, COVID-19 began to spread and disrupt company
operations and supply chains and impact consumers and investors,
resulting in a dramatic slowdown in production and spending. By March
11, 2020, the World Health Organization characterized COVID-19 as a
pandemic.\7\ To slow the spread of the disease, federal and state
officials implemented social-distancing measures, placed significant
limitations on large gatherings, limited travel, and closed non-
essential businesses.
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\7\ See WHO Director-General's Opening Remarks at the Media
Briefing on COVID-19 (March 11, 2020) available at https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid-19-11-march-2020.
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One unavoidable consequence of the actions being taken to reduce
the spread of COVID-19 is a reduction, or complete interruption, in
revenue for many companies. For example, many communities have mandated
that all restaurants and entertainment facilities close for a period of
time. Similarly, companies in the travel sector have seen significant
declines in bookings, even where they are allowed to continue to
operate. Thus, these businesses will have little or no revenue to
offset normal operating expenses and any increased costs associated
with the crisis, which can depress their stock prices until more
certainty around the end of these protective measures is available.
These necessary measures also have affected equity markets, which
have seen significant declines.\8\ In response, governments around the
world have acted swiftly and decisively to provide relief to regulated
entities and are undertaking efforts to stabilize the economy and
assist affected companies and their employees.\9\ The Commission, in
particular, has recognized the importance of functioning markets in
this environment \10\ and has granted issuers and broker-dealers relief
and extensions from existing deadlines, in order to allow these
entities, as well as the Commission itself, to focus on fighting the
deadly virus and preserving functioning capital markets.\11\
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\8\ In the United States, Level 1 market wide circuit breaker
halts were triggered on March 9, March 12, March 16, and March 18,
2020. See also Phil Mackintosh, Putting the Recent Volatility in
Perspective, available at https://www.nasdaq.com/articles/putting-the-recent-volatility-in-perspective-2020-03-05 (``Analysts showed
that we saw the fastest `correction' in history (down 10% from a
high), occurring in a matter of days. In the last week of February,
the Dow fell 12.36% with notional trading of $3.6 trillion.'')
\9\ See, e.g., the list of actions undertaken by the Board of
Governors of the Federal Reserve System at https://www.federalreserve.gov/covid-19.htm. See also Families First
Coronavirus Response Act, Public Law 116-127 and Coronavirus Aid,
Relief, and Economic Security Act, Public Law 116-136.
\10\ See, e.g., Chairman Jay Clayton, The Deep and Essential
Connections Among Markets, Businesses, and Workers and the
Importance of Maintaining those Connections in our Fight Against
COVID-19 (March 24, 2020) available at https://www.sec.gov/news/public-statement/statement-clayton-covid-19-2020-03-24 (``The
Securities and Exchange Commission and other financial regulators
are focused on two overriding and interrelated issues. First, we are
facing an unprecedented national challenge--a health and safety
crisis that requires all Americans, for the sake of all Americans,
to significantly change their daily behavior and, for many, to make
difficult personal sacrifices. Second, the recognition that the
continuing, orderly operation of our markets is an essential
component of our national response to, and recovery from, COVID-19.
The interrelationship between these issues cannot be overstated. Our
health care, pharmaceutical, manufacturing, transportation,
telecommunications and many other private-sector industries are
critical to our collective response to COVID-19. The thousands of
firms and entrepreneurs in these industries--and the millions of
employees and contractors--that are working around the clock to
fight COVID-19 depend on continued access to payments and
credit.'').
\11\ See SEC Coronavirus (COVID-19) Response available at
https://www.sec.gov/sec-coronavirus-covid-19-response, which is
being updated regularly with additional actions taken by the
Commission. As of April 14, 2020, the Commission response includes
(but is not limited to): Providing conditional relief for certain
publicly traded company filing and proxy delivery obligations (March
4 and 25, 2020); granting relief to reporting deadlines and in-
person meeting requirements for investment companies (March 13,
2020); extending the industry compliance period for Consolidated
Audit Trail reporting due to the fact that ``disruptions as a result
of COVID-19 have placed new stresses and competing priorities on the
infrastructure and staff required to implement the Consolidated
Audit Trail'' (March 16, 2020); extending filing deadlines for
certain reports required under Regulation A and Regulation
Crowdfunding (March 26, 2020); and providing temporary relief for
Business Development Companies investing in small and medium-sized
businesses (April 8, 2020). See also Chairman Jay Clayton, Proposed
Amendments to Modernize and Enhance Financial Disclosures; Other
Ongoing Disclosure Modernization Initiatives; Impact of the
Coronavirus; Environmental and Climate-Related Disclosure (Jan. 30,
2020) available at https://www.sec.gov/news/public-statement/clayton-mda-2020-01-30 (``Yesterday, I asked the staff to monitor
and, to the extent necessary or appropriate, provide guidance and
other assistance to issuers and other market participants regarding
disclosures related to the current and potential effects of the
coronavirus. We recognize that such effects may be difficult to
assess or predict with meaningful precision both generally and as an
industry- or issuer-specific basis. This is an uncertain issue where
actual effects will depend on many factors beyond the control and
knowledge of issuers.'').
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Nasdaq is seeing an increase in the number of companies whose
securities are becoming non-compliant with the Price-based Requirements
amidst the current market uncertainty \12\ and believes that relief is
appropriate for the same reasons that the Commission has granted relief
to its requirements. The decline in general investor confidence has
resulted in depressed pricing for companies that otherwise remain
suitable for continued listing. Similarly, Nasdaq believes that it is
difficult for companies that are already non-compliant with these
requirements to take action to regain compliance. For example, large
daily market moves \13\ make it difficult for a company to predict what
ratio may be required for a reverse stock split that will enable the
company to achieve and maintain
[[Page 22779]]
compliance with the bid price requirement. Similarly, it could be
harmful to existing shareholders for a company to sell securities at an
artificially low price, solely to regain compliance with the market
value of publicly held shares requirement. Moreover, the need to
develop and implement actions to address potential or actual non-
compliance can draw management and board attention away from the more
immediate needs of their employees and customers, as well as the
communities where they operate.
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\12\ For example, as of April 13, 2020, there were 154
securities that were already deficient with the $1 price
requirement. However, an additional 262 securities had closing bid
prices below $1 for less than 30 days, and another 117 securities
had closing bid prices between $1 and $1.50. On March 1, 2019, there
were 119 securities that were deficient with the bid price
requirement. Similarly, as of April 13, 2020, there were seven
securities that were deficient with the applicable market value of
publicly held shares requirement, but another 22 securities below
the applicable requirement for less than 30 days. Only two
securities were cited for non-compliance with this requirement
during the period from January 1 through April 13, 2019.
\13\ From March 13 to March 27, the S&P 500 index had four days
with gains in excess of 6%, including two days with gains of more
than 9% each, and also had five days with losses in excess of 2.9%,
including daily losses of 5.2% and 12%. See https://www.cnbc.com/2020/03/28/crazy-volatility-forces-wall-street-strategists-to-suspend-sp-500-targets.html.
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Accordingly, Nasdaq proposes to give companies that are out of
compliance with the Price-based Requirements additional time to regain
compliance by tolling the compliance periods through and including June
30, 2020. Under this proposal, companies would be given additional time
to regain compliance because the compliance periods for the Price-based
Requirements would be tolled through and including June 30, 2020.
However, throughout the tolling period, Nasdaq would continue to
monitor these requirements and companies would continue to be notified
about new instances of non-compliance with the Price-based Requirements
in accordance with existing Nasdaq rules.\14\ Companies that are
notified about non-compliance are required by Nasdaq rules to make a
public announcement disclosing receipt of the notification by filing a
Form 8-K, where required by SEC rules, or by issuing a press
release.\15\ Starting on July 1, 2020, companies would receive the
balance of any pending compliance period in effect at the start of the
tolling period to come back into compliance with the applicable
requirement.\16\ Similarly, companies that were in the Hearings process
would return to that process at the same stage they were in when the
tolling period began. If the company had received a temporary exception
from the Hearings Panel before the tolling began, the company would
receive the balance of the exception period beginning on July 1, 2020.
A company in the Hearings process would nonetheless be delisted and not
get the benefit of the tolling period if the company has had an oral or
written hearing before a Hearings Panel and the Panel has reached a
determination to delist, even if the Hearings Panel has not issued the
written decision required by Rule 5815(d)(1) and Rule 5840(c) prior to
the proposed rule change taking effect. Companies that are newly
identified as non-compliant during the tolling period would have 180
days to regain compliance, beginning on July 1, 2020.\17\ Nasdaq will
continue to monitor securities to determine if they regain compliance
with the Price-based Requirements during the tolling period.
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\14\ See Rule 5810 (providing that the Nasdaq Listing
Qualifications Department will immediately notify a company when it
determines that the company does not meet a listing standard set
forth in the Rule 5000 Series, and describing the types of
notifications).
\15\ See Rule 5810(b). Nasdaq also identifies companies in a
compliance period or in the Hearings process as not satisfying the
continued listing standards at https://listingcenter.nasdaq.com/NonCompliantCompanyList.aspx. During the tolling period, Nasdaq will
continue to maintain that list of non-complaint companies and will
add to the list companies that become non-compliant (including with
the Price-based Requirements).
\16\ For example, if a company is 120 days into its first 180-
day compliance period for a bid price deficiency when the tolling
period starts and the company does not regain compliance before June
30, 2020, the company would have an additional 60 days, starting on
July 1, 2020, to regain compliance. The company may be eligible for
a second 180-day compliance period if it satisfies the conditions
for eligibility at the conclusion of the first compliance period.
\17\ See Rules 5810(c)(3)(A) and 5810(c)(3)(D) describing the
compliance periods available to a company that fails to meet the
continued listing requirements for bid price and market value of
publicly held shares, respectively.
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Nasdaq believes that this temporary tolling of the compliance
periods for the Price-based Requirements will permit companies to focus
on running their businesses and the immediate health crisis caused by
the COVID-19 pandemic, including its impact on their employees,
customers, and communities, rather than satisfying Nasdaq's listing
requirements. Moreover, this temporary tolling of the compliance
periods would allow investments in these lower-priced securities
without fear that the company will be delisted in the very near term.
2. Statutory Basis
The Exchange believes that its proposal is consistent with Section
6(b) of the Act,\18\ in general, and furthers the objectives of Section
6(b)(5) of the Act,\19\ 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. As a result of uncertainty related to the ongoing spread of
the COVID-19 virus, the prices of securities listed on U.S. exchanges
are experiencing large daily market moves, including rapid and
significant declines. The proposed rule change is designed to reduce
uncertainty by providing additional time for companies deficient in the
Price-based Requirements to regain compliance with these standards
during the current highly unusual market conditions, thereby protecting
investors, facilitating transactions in securities, and removing an
impediment to a free and open market. Notwithstanding the tolling of
the compliance periods, important investor protections will remain and
investors will be able to identify companies that are non-compliant
with the requirements on Nasdaq's website. In addition, companies that
become newly non-compliant with the Price-based Requirements will have
to notify investors by issuing a Form 8-K, where required by SEC rules,
or a press release. The proposed relief would apply in a non-
discriminatory manner and all companies listed on the Exchange that are
or fall below the Price-based Requirements would be eligible to take
advantage of it.
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\18\ 15 U.S.C. 78f(b).
\19\ 15 U.S.C. 78f(b)(5).
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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. All companies listed on the
Exchange that are or fall below the Price-based requirements while the
compliance periods are tolled would benefit from the proposed rule
change. In addition, the proposed rule change is not designed to have
any effect on intermarket competition but instead seeks to address
concerns Nasdaq has observed surrounding the application of the Price-
based Requirements to companies listed on Nasdaq. Other exchanges can
craft relief based on their own rules and observations.
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
[[Page 22780]]
19(b)(3)(A) of the Act \20\ and Rule 19b-4(f)(6) thereunder.\21\
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\20\ 15 U.S.C. 78s(b)(3)(A).
\21\ 17 CFR 240.19b-4(f)(6). In addition, Rule 19b-4(f)(6)(iii)
requires a self-regulatory organization to give the Commission
written notice of its intent to file the proposed rule change, along
with a brief description and text of 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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A proposed rule change filed under Rule 19b-4(f)(6) \22\ normally
does not become operative for 30 days after the date of the filing.
However, pursuant to Rule 19b-4(f)(6)(iii),\23\ the Commission may
designate a shorter time if such action is consistent with the
protection of investors and the public interest. The Exchange has asked
the Commission to waive the 30-day operative delay so that the proposed
rule change may become operative immediately upon filing. The Exchange
stated that the proposed rule change is designed to respond to the
unprecedented uncertainty and resulting market declines related to the
global spread of the COVID-19 virus. Specifically, the Exchange stated
that the proposed rule change is designed to reduce uncertainty for
certain companies and their shareholders by providing additional time
for companies deficient in the Price-based Requirements to regain
compliance with these standards during the current highly unusual
market conditions. Nasdaq also stated that investors will still be able
to identify companies that are non-compliant with the requirements on
Nasdaq's website. In addition, Nasdaq noted that it will continue to
notify companies about new instances of non-compliance and any newly
non-compliant companies will have to notify investors by issuing a Form
8-K, where required by SEC rules, or a press release.
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\22\ 17 CFR 240.19b-4(f)(6).
\23\ 17 CFR 240.19b-4(f)(6)(iii).
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The Commission notes that while the proposal provides additional
time for companies to comply with the Price-based Requirements, new
companies that are deficient with these standards during the tolling
period will still continue to be notified by Nasdaq of the deficiency
as they currently would be under normal circumstances with no tolling
period, and would continue to be required to comply with the
requirements of Nasdaq Rule 5810(b) to make a public announcement of
the notification by filing a Form 8-K, where required by SEC rules, or
by issuing a press release. In addition to requiring public
announcement of a notification of a deficiency, companies so notified
under Nasdaq Rule 5810(b) would also be required to disclose the rule
upon which the deficiency is based and to describe each specific basis
and concern identified by Nasdaq by which the company does not meet the
listing standard. In addition, Nasdaq will continue to maintain and
update the list of companies that are non-compliant with the Price-
based Requirements (as well as other deficiencies), including companies
newly identified during the tolling period, so that shareholders and
the public will have access to such information as they normally would
without the tolling period. The Commission notes that the additional
time to comply with the standards is meant to address the current
unusual market conditions while continuing to ensure that shareholders
and the public have relevant and accurate information concerning a
company's deficiency with the Price-based Requirements. The Commission
also notes that the proposal is a temporary measure designed to respond
to current, unusual market conditions. For these reasons, the
Commission believes that waiver of the 30-day operative delay is
consistent with the protection of investors and the public interest.
Accordingly, the Commission hereby waives the 30-day operative delay
and designates the proposal operative upon filing.\24\
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\24\ For purposes only of waiving the 30-day operative delay,
the Commission has considered the proposed rule change's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
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At any time within 60 days of the filing of such proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings under
Section 19(b)(2)(B) \25\ of the Act to determine whether the proposed
rule change should be approved or disapproved.
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\25\ 15 U.S.C. 78s(b)(2)(B).
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IV. Solicitation of Comments
Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:
Electronic Comments
Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or
Send an email to [email protected]. Please include
File Number SR-NASDAQ-2020-021 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-2020-021. 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 (https://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-2020-021 and should be submitted
on or before May 14, 2020.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\26\
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\26\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-08592 Filed 4-22-20; 8:45 am]
BILLING CODE 8011-01-P
