Self-Regulatory Organizations; New York Stock Exchange LLC; Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change To Adopt Listing Standards for Subscription Warrants Issued by a Company Organized Solely for the Purpose of Identifying an Acquisition Target, 71111-71115 [2021-26970]
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Federal Register / Vol. 86, No. 237 / Tuesday, December 14, 2021 / Notices
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to distribution and voting rights among
multiple classes is equitable and will
not discriminate against any group or
class of shareholders. Applicants submit
that the proposed arrangements would
permit a Fund to facilitate the
distribution of its securities and provide
investors with a broader choice of
shareholder services. Applicants assert
that the proposed closed-end
investment company multiple class
structure does not raise the concerns
underlying section 18 of the Act to any
greater degree than open-end
investment companies’ multiple class
structures that are permitted by rule
18f–3 under the Act. Applicants state
that each Fund will comply with the
provisions of rule 18f–3 as if it were an
open-end investment company.
Asset-Based Distribution and/or Service
Fees
1. Section 17(d) of the Act and rule
17d–1 under the Act prohibit an
affiliated person of a registered
investment company, or an affiliated
person of such person, acting as
principal, from participating in or
effecting any transaction in connection
with any joint enterprise or joint
arrangement in which the investment
company participates unless the
Commission issues an order permitting
the transaction. In reviewing
applications submitted under section
17(d) and rule 17d–1, the Commission
considers whether the participation of
the investment company in a joint
enterprise or joint arrangement is
consistent with the provisions, policies
and purposes of the Act, and the extent
to which the participation is on a basis
different from or less advantageous than
that of other participants.
2. Rule 17d–3 under the Act provides
an exemption from section 17(d) and
rule 17d–1 to permit open-end
investment companies to enter into
distribution arrangements pursuant to
rule 12b–1 under the Act. Applicants
request an order under section 17(d) and
rule 17d–1 under the Act to the extent
necessary to permit the Fund to impose
asset-based distribution and/or service
fees. Applicants have agreed to comply
with rules 12b–1 and 17d–3 as if those
rules applied to closed-end investment
companies, which they believe will
resolve any concerns that might arise in
connection with a Fund financing the
distribution of its shares through assetbased distribution fees.
3. For the reasons stated above,
applicants submit that the exemptions
requested under section 6(c) are
necessary and appropriate in the public
interest and are consistent with the
protection of investors and the purposes
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fairly intended by the policy and
provisions of the Act. Applicants also
state that the Funds’ imposition of assetbased distribution and/or service fees is
consistent with the provisions, policies
and purposes of the Act and does not
involve participation on a basis different
from or less advantageous than that of
other participants.
Applicants’ Condition
Applicants agree that any order
granting the requested relief will be
subject to the following condition:
Each Fund relying on the order will
comply with the provisions of rules 6c–
10, 12b–1, 17d–3, 18f–3, 22d–1, and,
where applicable, 11a–3 under the Act,
as amended from time to time, as if
those rules applied to closed-end
management investment companies,
and will comply with the FINRA Sales
Charge Rule, as amended from time to
time, as if that rule applied to all closedend management investment
companies.
For the Commission, by the Division of
Investment Management, under delegated
authority.
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021–26968 Filed 12–13–21; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–93741; File No. SR–NYSE–
2021–45]
Self-Regulatory Organizations; New
York Stock Exchange LLC; Order
Instituting Proceedings To Determine
Whether To Approve or Disapprove a
Proposed Rule Change To Adopt
Listing Standards for Subscription
Warrants Issued by a Company
Organized Solely for the Purpose of
Identifying an Acquisition Target
December 8, 2021.
I. Introduction
On August 24, 2021, New York Stock
Exchange LLC (‘‘NYSE’’ or ‘‘Exchange’’)
filed with the Securities and Exchange
Commission (‘‘Commission’’), pursuant
to Section 19(b)(1) of the Securities
Exchange Act of 1934 (‘‘Exchange
Act’’) 1 and Rule 19b–4 thereunder,2 a
proposed rule change to adopt listing
standards for subscription warrants
issued by a company organized solely
for the purpose of identifying an
acquisition target. The proposed rule
change was published for comment in
1 15
2 17
PO 00000
U.S.C. 78s(b)(1).
CFR 240.19b–4.
Frm 00110
Fmt 4703
Sfmt 4703
71111
the Federal Register on September 10,
2021.3 On September 30, 2021, pursuant
to Section 19(b)(2) of the Exchange Act,4
the Commission designated a longer
period within which to approve the
proposed rule change, disapprove the
proposed rule change, or institute
proceedings to determine whether to
disapprove the proposed rule change.5
This order institutes proceedings
pursuant to Section 19(b)(2)(B) of the
Exchange Act 6 to determine whether to
approve or disapprove the proposed
rule change.
II. Description of the Proposed Rule
Change
The Exchange proposes to adopt new
Section 102.09 of the NYSE Listed
Company Manual (‘‘LCM’’) to permit the
listing of subscription warrants, which
would be warrants issued by a company
organized solely for the purpose of
identifying an acquisition target and
exercisable into the common stock of
such company upon entry into a
binding agreement with respect to such
acquisition.
Pursuant to proposed LCM Section
102.09(b), the Exchange proposes to list
subscription warrants subject to the
following requirements:
(i) The issuer of the subscription
warrants must be a company formed
solely for the purpose of issuing the
subscription warrants and
consummating the acquisition of one or
more operating businesses or assets with
a value (calculated at the time of entry
into the acquisition agreement) equal to
at least 80% of the aggregate exercise
price of the subscription warrants (an
‘‘Acquisition’’);
(ii) for a transaction to qualify as an
Acquisition, the resultant entity must
qualify for initial listing on the
Exchange and the acquisition agreement
must provide that the transaction will
be consummated only if the resultant
entity will be listed on the Exchange or
another national securities exchange;
(iii) at the time of initial listing, the
subscription warrants must: (A) Have an
aggregate exercise price of at least $250
million; (B) have at least 1,100,000
publicly held subscription warrants
outstanding, with an aggregate exercise
3 See Securities Exchange Act Release No. 92876
(September 3, 2021), 86 FR 50748. Comments
received on the proposal are available on the
Commission’s website at: https://www.sec.gov/
comments/sr-nyse-2021-45/srnyse202145.htm.
4 15 U.S.C. 78s(b)(2).
5 See Securities Exchange Act Release No. 93221,
86 FR 55662 (October 6, 2021). The Commission
designated December 9, 2021 as the date by which
the Commission shall approve or disapprove, or
institute proceedings to determine whether to
approve or disapprove, the proposed rule change.
6 15 U.S.C. 78s(b)(2)(B).
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price of at least $200 million; (C) have
at least 400 holders of round lots; (D)
have an exercise price per share of
common stock of at least $10.00; and (E)
expire in no more than 10 years; 7
(iv) the subscription warrants may not
be fully exercisable for common stock of
a company until after such company
enters into a binding agreement with
respect to the Acquisition and may not
limit the ability of holders to exercise
such warrants in full prior to the closing
of such Acquisition;
(v) the proceeds of the exercise of the
subscription warrants must be held in
an interest-bearing custody account
controlled by an independent custodian,
pending the closing of such Acquisition;
(vi) the shares of common stock
issued upon exercise of the subscription
warrants must promptly be redeemed by
the issuer of such subscription warrants
for cash: (A) Upon termination of the
acquisition agreement; or (B) if the
Acquisition does not close within
twelve months from the date of exercise
of the subscription warrants, or such
earlier time as is specified in the
operative agreements; 8
(vii) the sale of the subscription
warrants and the issuance of the
common stock of the issuer in exchange
for the subscription warrants must both
be registered under the Securities Act of
1933 (‘‘Securities Act’’);
(viii) the issuer of the subscription
warrants would be subject to the same
corporate governance requirements
under LCM Section 303A as an issuer of
listed common stock; and
(ix) the Acquisition must be approved
by a majority of the independent
directors of the issuer of the
subscription warrants.
The Exchange also proposes to amend
LCM Section 802.01B to set forth
continued listing criteria for
subscription warrants listed under
proposed LCM Section 102.09. The
proposed amendments would specify
that the Exchange would immediately
initiate suspension and delisting
procedures of an issuer’s subscription
warrants if:
(i) The number of publicly-held
subscription warrants is fewer than
100,000;
7 For purposes of proposed LCM Section 102.09,
public holders of subscription warrants would not
include those held by directors, officers, or their
immediate families and other concentrated holdings
of 10 percent. See proposed LCM Section 102.09(c).
8 If the shares issuable upon exercise of the
subscription warrants were redeemed, the holders
would receive cash payments equal to their
proportional share of the funds in the custody
account, including any interest earned on those
funds. See proposed LCM Section 102.09(b)(vi).
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(ii) the number of public holders of
such subscription warrants is fewer than
100; 9 or
(iii) the total market capitalization of
such subscription warrants is below $15
million over 30 consecutive trading
days.10
An issuer of subscription warrants
would not be eligible to submit a
compliance plan as outlined in LCM
Sections 802.02 and 802.03 with respect
to the above continued listing criteria
and any such security would be subject
to delisting procedures as set forth in
LCM Section 804 (Procedure for
Delisting).11
III. Proceedings To Determine Whether
To Approve or Disapprove SR–NYSE–
2021–45 and Grounds for Disapproval
Under Consideration
The Commission is instituting
proceedings pursuant to Section
19(b)(2)(B) of the Exchange Act 12 to
determine whether the proposed rule
change should be approved or
disapproved. Institution of such
proceedings is appropriate at this time
in view of the legal and policy issues
raised by the proposed rule change.
Institution of proceedings does not
indicate that the Commission has
reached any conclusions with respect to
any of the issues involved.
Pursuant to Section 19(b)(2)(B) of the
Exchange Act,13 the Commission is
providing notice of the grounds for
disapproval under consideration. The
Commission is instituting proceedings
to allow for additional analysis of the
proposed rule change’s consistency with
the Exchange Act and, in particular,
with Section 6(b)(5) of the Exchange
Act, which requires, among other
things, that the rules of a national
securities exchange be designed to
prevent fraudulent and manipulative
acts and practices, to promote just and
equitable principles of trade, to foster
cooperation and coordination with
persons engaged in regulating, clearing,
settling, processing information with
respect to, and facilitating transactions
in securities, to remove impediments to
and perfect the mechanism of a free and
open market and a national market
system, and to protect investors and the
public interest, and not be designed to
9 For purposes of proposed LCM Section 802.01B,
public holders of subscription warrants would not
include those held by directors, officers, or their
immediate families and other concentrated holdings
of 10 percent. See proposed LCM Section
802.01B(b).
10 See proposed LCM Section 802.01B(a).
11 See proposed LCM Section 802.01B(c).
12 15 U.S.C. 78s(b)(2)(B).
13 Id.
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permit unfair discrimination between
customers, issuers, brokers, or dealers.14
The Commission has consistently
recognized the importance of national
securities exchange listing standards.
Among other things, such listing
standards help ensure that exchangelisted companies will have sufficient
public float, investor base, and trading
interest to provide the depth and
liquidity necessary to promote fair and
orderly markets.15
As described above, the proposal
would allow the Exchange to list
subscription warrants, which would be
warrants issued by a company organized
solely for the purpose of identifying an
Acquisition target and exercisable into
the common stock of such company
upon entry into a binding agreement
with respect to such Acquisition. The
Exchange states that the proposed
requirements applicable to the listing of
subscription warrants would provide
adequate protections for investors and
the public interest.16 According to the
Exchange, the proposal would facilitate
the listing and trading of an additional
type of security that will enhance
competition among market
participants.17
The Commission received two
comment letters from representatives of
an issuer seeking to list subscription
14 15
U.S.C. 78f(b)(5).
Commission has stated in approving
national securities exchange listing requirements
that the development and enforcement of adequate
standards governing the listing of securities on an
exchange is an activity of critical importance to the
financial markets and the investing public. In
addition, once a security has been approved for
initial listing, maintenance criteria allow an
exchange to monitor the status and trading
characteristics of that issue to ensure that it
continues to meet the exchange’s standards for
market depth and liquidity so that fair and orderly
markets can be maintained. See, e.g., Securities
Exchange Act Release Nos. 91947 (May 19, 2021),
86 FR 28169, 28172 n.47 (May 25, 2021) (SR–
NASDAQ–2020–057) (‘‘Nasdaq 2021 Order’’); 90768
(December 22, 2020), 85 FR 85807, 85811 n.55
(December 29, 2020) (SR–NYSE–2019–67) (‘‘NYSE
2020 Order’’); 82627 (February 2, 2018), 83 FR
5650, 5653 n.53 (February 8, 2018) (SR–NYSE–
2017–30) (‘‘NYSE 2018 Order’’); 81856 (October 11,
2017), 82 FR 48296, 48298 (October 17, 2017) (SR–
NYSE–2017–31); 81079 (July 5, 2017), 82 FR 32022,
32023 (July 11, 2017) (SR–NYSE–2017–11). The
Commission has stated that adequate listing
standards, by promoting fair and orderly markets,
are consistent with Section 6(b)(5) of the Exchange
Act, in that they are, among other things, designed
to prevent fraudulent and manipulative acts and
practices, promote just and equitable principles of
trade, and protect investors and the public interest.
See, e.g., Nasdaq 2021 Order, 86 FR 28172 n.47;
NYSE 2020 Order, 85 FR 85811 n.55; NYSE 2018
Order, 83 FR 5653 n.53; Securities Exchange Act
Release Nos. 87648 (December 3, 2019), 84 FR
67308, 67314 n.42 (December 9, 2019) (SR–
NASDAQ–2019–059); 88716 (April 21, 2020), 85 FR
23393, 23395 n.22 (April 27, 2020) (SR–NASDAQ–
2020–001).
16 See Notice, supra note 3, at 50749.
17 See id.
15 The
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warrants should the Exchange’s
proposal be approved.18 These
commenters stated that the proposal
would provide an alternative to the
current listing rules for Special Purpose
Acquisition Companies (‘‘SPACs’’) 19
but that investors in subscription
warrants would be required to
contribute less upfront capital than
investors in a traditional SPAC.20 These
commenters also stated that the
proposed 10-year term for subscription
warrants would provide enhanced
negotiating leverage to an acquisition
company sponsor than that provided by
a traditional SPAC.21 One of these
commenters asserted that subscription
warrants would give investors a greater
opportunity to consider the quality of an
acquisition because they would require
investors to affirmatively ‘‘opt-in’’ to a
potential acquisition through exercise of
the warrants, as compared to the
traditional SPAC structure where the
default action is for an investor’s shares
to be converted into the combined
company unless the shareholder elects
to redeem those shares (i.e., the investor
has to ‘‘opt out’’).22 This commenter
further stated that the Exchange’s
proposed quantitative standards for
subscription warrants would require a
sponsor to have a ‘‘sufficient track
record and reputation for creating
shareholder value.’’ 23 One commenter
offered suggested modifications to the
proposed rule change, including: (1)
That the proposed subscription warrants
not be exercisable prior to the time at
which a post-effective amendment to
the company’s initial registration
statement, containing comprehensive
disclosure regarding the proposed
Acquisition, has been declared effective
by the Commission; (2) modifications to
the proposed exercise and redemption
process; (3) that the issuer be required
to consummate its Acquisition within
12 months of entering into its
Acquisition agreement; (4) that the
proposed rule change provide for a
18 See letters to Vanessa Countryman, Secretary,
Commission, from William A. Ackman, Pershing
Square Capital Management, L.P., dated September
26, 2021 (‘‘Ackman Letter’’); and Cadwalader,
Wickersham & Taft LLP, dated September 30, 2021
(‘‘CWT Letter’’).
19 The Exchange’s listing standards for SPACs are
set forth in LCM sections 102.06 and 802.01. The
Commission notes that throughout this order we
have used the term ‘‘SPAC.’’ This term has the same
meaning as ‘‘Acquisition Company,’’ which is the
term used by the Exchange in the LCM.
20 See Ackman Letter at 4–5; CWT Letter at 1–2.
21 See Ackman Letter at 5; CWT Letter at 2.
Pursuant to LCM section 102.06, a SPAC has three
years to consummate a business combination.
22 See Ackman Letter at 5. See also LCM Section
102.06, which sets forth the Exchange’s listing
requirements for SPACs.
23 See id. at 6.
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minimum number of shares that may be
purchased upon the exercise of a
subscription warrant at a fixed per share
price; and (5) that the proposed rule
change permit the issuance of an
additional class of subscription warrants
with a higher exercise price that would
remain exercisable up to five years after
the date of the Acquisition.24
The Commission also received
comments from individual investors
broadly supporting the proposed rule
change. These commenters generally
asserted that the proposed listing and
trading of subscription warrants would
allow retail investors to invest in earlystage companies without tying up
excessive capital.25 The Commission
also received some comments from
individual investors voicing concerns
that, as proposed, subscription warrants
may be susceptible to fraud and
manipulation.26 One of these
commenters stated that the valuation of
a subscription warrant would be highly
subjective due to the fact that the issuer
would not have any underlying assets or
business operations, and that the
subscription warrants would thereby
derive their value solely from the
reputation of the sponsor or speculation
of possible Acquisition targets.27 This
commenter stated that this could create
a conflict of interest if the sponsor were
permitted to sell its subscription
warrants or distribute the subscription
warrants in an inequitable manner.28
Another commenter expressed concerns
regarding the length of time a
subscription warrant may remain
outstanding, stating that it would lead to
uncertainty regarding when an
Acquisition may occur.29
The Commission has concerns about
whether the proposal is sufficiently
designed to prevent fraudulent and
manipulative acts and practices,
promote just and equitable principles of
trade, and protect investors and the
public interest, as required by Section
6(b)(5) of the Exchange Act. As
described above, the Exchange proposes
to list subscription warrants that would
be exercisable into the common stock of
24 See
CWT Letter at 3–5.
e.g., letters from Stephan Kroeber, dated
September 7, 2021; William J. Hooy, Esq., dated
September 7, 2021; Brian Hwang, dated October 18,
2021; and James Porteous, dated October 18, 2021.
26 See, e.g., letters from Nikesh Bhattarai, dated
September 6, 2021; Maksim P. Martynyuk, dated
September 7, 2021; Nicholas Jenzer, dated
September 7, 2021; and Hedgely, dated October 12,
2021.
27 See letter from Nicholas Jenzer.
28 See id. See also letter from Maksim P.
Martynyuk (expressing similar concerns regarding
sponsor conflicts).
29 See Anonymous letter received September 7,
2021.
25 See,
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71113
a company upon its entry into an
acquisition agreement with an unknown
target, on unknown terms, at any time
up to ten years from the date of
issuance. Subscription warrants could
be issued for no consideration, and the
Exchange has proposed no minimum
price per warrant.
Current Exchange rules for listed
warrants, among other things, require
that they be exercisable on specified
terms into a specified security listed on
the Exchange.30 Current Exchange rules
for listed SPACs, among other things,
require a minimum $4 initial price per
share and a substantial market value
reflecting the cash held in trust, and that
an acquisition be completed within
three years.31
The Exchange justifies its proposal
simply by stating that it ‘‘is consistent
with Section 6(b)(5) of the Act in that it
contains requirements in relation to the
listing of Subscription Warrants that
provide adequate protections for
investors and the public interest,’’ and
then listing some of the elements of the
proposal.32 The Exchange also states,
without elaboration, that its proposal ‘‘is
designed to perfect the mechanism of a
free and open market and, in general, to
protect investors and the public interest
in that it will facilitate the listing and
trading of an additional type of security
and that it will enhance competition
among market participants, to the
benefit of investors and the
marketplace.’’ 33
The Exchange does not explain how
market participants would effectively
value this novel listed security, or how
it would be expected to trade consistent
with fair and orderly markets and the
protection of investors and the public
interest. As noted above, subscription
warrants could be issued for no
consideration 34 and have negligible
30 See LCM Section 703.12. See also LCM Section
802.01D (providing that the Exchange will consider
delisting warrants if the related security is delisted).
Exchange listing standards for equity investment
tracking stocks and subscription receipts have
similar requirements. See LCM Sections 102.07 and
102.08. See also LCM Section 802.01B (providing
that the Exchange will immediately initiate
suspension and delisting procedures if the listed
equity security or securities whose value is tracked
by the equity investment tracking stock ceases or
cease to be listed on the Exchange and the equity
investment tracking stock does not qualify for
initial listing at that time under another applicable
listing standard); and LCM Section 802.01B
(providing that the Exchange will immediately
initiate suspension and delisting procedures if the
subscription receipt issuer’s related common equity
security ceases to be listed on the Exchange).
31 See LCM Section 102.06. See also LCM Section
802.01.
32 See Notice, supra note 3, at 50749.
33 See id.
34 The Exchange’s proposal also would appear to
permit subscription warrants to be issued for value.
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value. The value of a subscription
warrant, if any, would appear to derive
primarily from expectations that the
sponsor ultimately will offer holders the
ability to exercise the warrant on
attractive terms once a target company
is identified and an acquisition
agreement signed. The Exchange does
not address, among other things, the
types of market information that could
create a positive value for subscription
warrants, the reliability and availability
of such information, or whether such
information could support fair and
efficient trading of an Exchange-listed
security for a period as long as ten years.
The Exchange also does not explain
how it would effectively address the
risk the price of subscription warrants
could be manipulated, or how its
proposal otherwise would be designed
to prevent fraudulent and manipulative
acts and practices. For example, the
price of subscription warrants would
appear to be particularly susceptible to
rumors about potential acquisition
targets and the terms of potential
transactions. Because subscription
warrants may trade at a very low price,
they may permit a bad actor to
efficiently manipulate these securities
with little upfront cost. The Exchange
does not address how its proposal is
designed to prevent the risk that
subscription warrants may be
particularly susceptible to
manipulation.
Further, the Exchange does not
explain the rationale for the various
numerical standards and criteria set
forth in its proposal, or how they
together are designed to be consistent
with the Exchange Act and the rules and
regulations thereunder. For example,
the Exchange proposes that an issuer’s
subscription warrants may initially be
listed on the Exchange if there are at
least 1,100,000 publicly held warrants
outstanding, but also proposes a
continued listing standard that requires
immediate suspension and delisting
procedures if the total market
capitalization of the subscription
warrants is below $15 million over 30
consecutive trading days. This would
imply a minimum price in these
circumstances of more than $13 per
warrant. Because subscription warrants
may trade at a very low price, as
discussed above, they may become
While the proposal would require the proceeds of
the exercise of subscription warrants to be held in
an interest-bearing custody account controlled by
an independent custodian, pending the closing of
an Acquisition, it does not address the handling of
the proceeds of the issuance of the subscription
warrants themselves, or why the lack of similar
protections is consistent with Section 6(b)(5) and
other provisions of the Exchange Act.
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subject to delisting very soon after
listing, depending on the number of
warrants outstanding. The Exchange has
not addressed how such a scenario
would be consistent with the protection
of investors and the public interest and
other relevant provisions of the
Exchange Act, or how the other
numerical standards and criteria set
forth in its proposal have been designed
to work together to avoid similar
outcomes.
In addition, while the proposal states
that the sale of both the subscription
warrants and the issuance of the
common stock in exchange for the
subscription warrants must be registered
under the Securities Act, the proposal is
unclear as to the requirements relating
to Securities Act registration at the time
the warrants become eligible to be
exercised into common stock. In
particular, the proposal does not appear
to require a registration statement or, if
possible, a post-effective amendment at
the critical time when warrant holders
have to make a decision on exercising
their warrants for common stock.
Therefore, it is unclear how investors
will have the information necessary to
make an informed decision regarding
their purchase of securities, including a
discussion of the target’s business as
well as any required financial
statements. Further, and importantly,
without registration or a post-effective
amendment, investors will not
necessarily have the protections of the
private liability provisions of the
Securities Act when exercising their
warrants for the common stock. For
example, the filing of a new registration
statement or post-effective amendment
would effectively restart the Section 11
statute of limitations with a new
effective date and would permit staff
review of the filing. Without this
investors may not have a remedy
available under the Securities Act for
material misstatements. Given these
important investor protection issues,
there are questions raised about the
proposal’s consistency with the investor
protection and public interest
requirements under Section 6(b)(5) of
the Exchange Act.
Finally, it is unclear under the
Exchange’s proposal whether the
company would meet the definition of
investment company under the
Investment Company Act of 1940
(‘‘1940 Act’’). If so, the company may
need to register under the 1940 Act,
which would require a new listing rule,
proposed by the Exchange and approved
by the Commission, that contemplates
the company’s status under the 1940
Act.
PO 00000
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Fmt 4703
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Accordingly, the Commission believes
there are questions as to whether the
proposal is consistent with Section
6(b)(5) of the Exchange Act and its
requirements, among other things, that
the rules of a national securities
exchange be designed to prevent
fraudulent and manipulative acts and
practices and to protect investors and
the public interest, and not be designed
to permit unfair discrimination.
Under the Commission’s Rules of
Practice, the ‘‘burden to demonstrate
that a proposed rule change is
consistent with the Exchange Act and
the rules and regulations issued
thereunder . . . is on the self-regulatory
organization that proposed the rule
change.’’ 35 The description of a
proposed rule change, its purpose and
operation, its effect, and a legal analysis
of its consistency with applicable
requirements must all be sufficiently
detailed and specific to support an
affirmative Commission finding,36 and
any failure of a self-regulatory
organization to provide this information
may result in the Commission not
having a sufficient basis to make an
affirmative finding that a proposed rule
change is consistent with the Exchange
Act and the applicable rules and
regulations.37
For these reasons, the Commission
believes it is appropriate to institute
proceedings pursuant to Section
19(b)(2)(B) of the Exchange Act 38 to
determine whether the proposal should
be approved or disapproved.
IV. Procedure: Request for Written
Comments
The Commission requests that
interested persons provide written
submissions of their views, data, and
arguments with respect to the issues
identified above, as well as any other
concerns they may have with the
proposal. In particular, the Commission
invites the written views of interested
persons concerning whether the
proposal is consistent with Section
6(b)(5) 39 of the Exchange Act or any
other provision of the Exchange Act, or
the rules and regulations thereunder.
Although there do not appear to be any
issues relevant to approval or
disapproval that would be facilitated by
an oral presentation of views, data, and
arguments, the Commission will
consider, pursuant to Rule 19b–4 under
the Exchange Act,40 any request for an
35 17
CFR 201.700(b)(3).
id.
37 See id.
38 15 U.S.C. 78s(b)(2)(B).
39 15 U.S.C. 78f(b)(5).
40 17 CFR 240.19b–4.
36 See
E:\FR\FM\14DEN1.SGM
14DEN1
Federal Register / Vol. 86, No. 237 / Tuesday, December 14, 2021 / Notices
opportunity to make an oral
presentation.41
Interested persons are invited to
submit written data, views, and
arguments regarding whether the
proposed rule change should be
approved or disapproved by January 4,
2022. Any person who wishes to file a
rebuttal to any other person’s
submission must file that rebuttal by
January 18, 2022. The Commission asks
that commenters address the sufficiency
of the Exchange’s statements in support
of the proposal, which are set forth in
the Notice,42 in addition to any other
comments they may wish to submit
about the proposed rule change.
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–
NYSE–2021–45 on the subject line.
jspears on DSK121TN23PROD with NOTICES1
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–NYSE–2021–45. 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
39 15
40 17
U.S.C. 78f(b)(5).
CFR 240.19b–4.
VerDate Sep<11>2014
18:24 Dec 13, 2021
Jkt 256001
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–NYSE–2021–45 and should
be submitted by January 4, 2022.
Rebuttal comments should be submitted
by January 18, 2022.
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.43
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021–26970 Filed 12–13–21; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[OMB Control No. 3235–0006, SEC File No.
270–022]
Submission for OMB Review;
Comment Request, Extension: Form
13F
Upon Written Request, Copies Available
From: Securities and Exchange
Commission, Office of FOIA Services,
100 F Street NE, Washington, DC
20549–2736
Notice is hereby given that, pursuant
to the Paperwork Reduction Act of 1995
(44 U.S.C. 3501, et seq.), the Securities
and Exchange Commission (the
‘‘Commission’’) is soliciting comments
on the collection of information
summarized below. The Commission
plans to submit this existing collection
of information to the Office of
Management and Budget for extension
and approval.
Section 13(f) 1 of the Securities
Exchange Act of 1934 2 (the ‘‘Exchange
41 Section 19(b)(2) of the Exchange Act, as
amended by the Securities Act Amendments of
1975, Public Law 94–29 (June 4, 1975), grants the
Commission flexibility to determine what type of
proceeding—either oral or notice and opportunity
for written comments—is appropriate for
consideration of a particular proposal by a selfregulatory organization. See Securities Act
Amendments of 1975, Senate Comm. on Banking,
Housing & Urban Affairs, S. Rep. No. 75, 94th
Cong., 1st Sess. 30 (1975).
42 See supra note 3.
43 17 CFR 200.30–3(a)(57).
PO 00000
Frm 00114
Fmt 4703
Sfmt 4703
71115
Act’’) empowers the Commission to: (1)
Adopt rules that create a reporting and
disclosure system to collect specific
information; and (2) disseminate such
information to the public. Rule 13f–1 3
under the Exchange Act requires
institutional investment managers that
exercise investment discretion over
accounts that have in the aggregate a fair
market value of at least $100,000,000 of
certain U.S. exchange-traded equity
securities, as set forth in rule 13f–1(c),
to file quarterly reports with the
Commission on Form 13F.4
The information collection
requirements apply to institutional
investment managers that meet the $100
million reporting threshold. Section
13(f)(6)(A) of the Exchange Act defines
an ‘‘institutional investment manager’’
as any person, other than a natural
person, investing in or buying and
selling securities for its own account,
and any person exercising investment
discretion with respect to the account of
any other person. Rule 13f–1(b) under
the Exchange Act defines ‘‘investment
discretion’’ for purposes of Form 13F
reporting.
The reporting system required by
Section 13(f) of the Exchange Act is
intended, among other things, to create
in the Commission a central repository
of historical and current data about the
investment activities of institutional
investment managers, and to improve
the body of factual data available to
regulators and the public.
The currently approved burden
estimates include a total hour burden of
472,521.6 hours, with an internal cost
burden of $31,186,425.60, to comply
with Form 13F.5 Consistent with a
recent rulemaking proposal that made
adjustments to these estimates due
primarily to the Commission’s belief
that the currently approved estimates do
not appropriately reflect the information
collection costs associated with Form
13F,6 the table below reflects the revised
estimates.
3 17
CFR 240.13f–1.
CFR 249.325.
5 This estimate is based on the last time the rule’s
information collection was submitted for PRA
renewal in 2018.
6 See Electronic Submission of Applications for
Orders under the Advisers Act and the Investment
Company Act, Confidential Treatment Requests for
Filings on Form 13F, and Form ADV–NR;
Amendments to Form 13F, Investment Company
Release No. (Nov. 4, 2021).
4 17
E:\FR\FM\14DEN1.SGM
14DEN1
]]>Agencies
[Federal Register Volume 86, Number 237 (Tuesday, December 14, 2021)]
[Notices]
[Pages 71111-71115]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-26970]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34-93741; File No. SR-NYSE-2021-45]
Self-Regulatory Organizations; New York Stock Exchange LLC; Order
Instituting Proceedings To Determine Whether To Approve or Disapprove a
Proposed Rule Change To Adopt Listing Standards for Subscription
Warrants Issued by a Company Organized Solely for the Purpose of
Identifying an Acquisition Target
December 8, 2021.
I. Introduction
On August 24, 2021, New York Stock Exchange LLC (``NYSE'' or
``Exchange'') filed with the Securities and Exchange Commission
(``Commission''), pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Exchange Act'') \1\ and Rule 19b-4
thereunder,\2\ a proposed rule change to adopt listing standards for
subscription warrants issued by a company organized solely for the
purpose of identifying an acquisition target. The proposed rule change
was published for comment in the Federal Register on September 10,
2021.\3\ On September 30, 2021, pursuant to Section 19(b)(2) of the
Exchange Act,\4\ the Commission designated a longer period within which
to approve the proposed rule change, disapprove the proposed rule
change, or institute proceedings to determine whether to disapprove the
proposed rule change.\5\ This order institutes proceedings pursuant to
Section 19(b)(2)(B) of the Exchange Act \6\ to determine whether to
approve or disapprove the proposed rule change.
---------------------------------------------------------------------------
\1\ 15 U.S.C. 78s(b)(1).
\2\ 17 CFR 240.19b-4.
\3\ See Securities Exchange Act Release No. 92876 (September 3,
2021), 86 FR 50748. Comments received on the proposal are available
on the Commission's website at: https://www.sec.gov/comments/sr-nyse-2021-45/srnyse202145.htm.
\4\ 15 U.S.C. 78s(b)(2).
\5\ See Securities Exchange Act Release No. 93221, 86 FR 55662
(October 6, 2021). The Commission designated December 9, 2021 as the
date by which the Commission shall approve or disapprove, or
institute proceedings to determine whether to approve or disapprove,
the proposed rule change.
\6\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------
II. Description of the Proposed Rule Change
The Exchange proposes to adopt new Section 102.09 of the NYSE
Listed Company Manual (``LCM'') to permit the listing of subscription
warrants, which would be warrants issued by a company organized solely
for the purpose of identifying an acquisition target and exercisable
into the common stock of such company upon entry into a binding
agreement with respect to such acquisition.
Pursuant to proposed LCM Section 102.09(b), the Exchange proposes
to list subscription warrants subject to the following requirements:
(i) The issuer of the subscription warrants must be a company
formed solely for the purpose of issuing the subscription warrants and
consummating the acquisition of one or more operating businesses or
assets with a value (calculated at the time of entry into the
acquisition agreement) equal to at least 80% of the aggregate exercise
price of the subscription warrants (an ``Acquisition'');
(ii) for a transaction to qualify as an Acquisition, the resultant
entity must qualify for initial listing on the Exchange and the
acquisition agreement must provide that the transaction will be
consummated only if the resultant entity will be listed on the Exchange
or another national securities exchange;
(iii) at the time of initial listing, the subscription warrants
must: (A) Have an aggregate exercise price of at least $250 million;
(B) have at least 1,100,000 publicly held subscription warrants
outstanding, with an aggregate exercise
[[Page 71112]]
price of at least $200 million; (C) have at least 400 holders of round
lots; (D) have an exercise price per share of common stock of at least
$10.00; and (E) expire in no more than 10 years; \7\
---------------------------------------------------------------------------
\7\ For purposes of proposed LCM Section 102.09, public holders
of subscription warrants would not include those held by directors,
officers, or their immediate families and other concentrated
holdings of 10 percent. See proposed LCM Section 102.09(c).
---------------------------------------------------------------------------
(iv) the subscription warrants may not be fully exercisable for
common stock of a company until after such company enters into a
binding agreement with respect to the Acquisition and may not limit the
ability of holders to exercise such warrants in full prior to the
closing of such Acquisition;
(v) the proceeds of the exercise of the subscription warrants must
be held in an interest-bearing custody account controlled by an
independent custodian, pending the closing of such Acquisition;
(vi) the shares of common stock issued upon exercise of the
subscription warrants must promptly be redeemed by the issuer of such
subscription warrants for cash: (A) Upon termination of the acquisition
agreement; or (B) if the Acquisition does not close within twelve
months from the date of exercise of the subscription warrants, or such
earlier time as is specified in the operative agreements; \8\
---------------------------------------------------------------------------
\8\ If the shares issuable upon exercise of the subscription
warrants were redeemed, the holders would receive cash payments
equal to their proportional share of the funds in the custody
account, including any interest earned on those funds. See proposed
LCM Section 102.09(b)(vi).
---------------------------------------------------------------------------
(vii) the sale of the subscription warrants and the issuance of the
common stock of the issuer in exchange for the subscription warrants
must both be registered under the Securities Act of 1933 (``Securities
Act'');
(viii) the issuer of the subscription warrants would be subject to
the same corporate governance requirements under LCM Section 303A as an
issuer of listed common stock; and
(ix) the Acquisition must be approved by a majority of the
independent directors of the issuer of the subscription warrants.
The Exchange also proposes to amend LCM Section 802.01B to set
forth continued listing criteria for subscription warrants listed under
proposed LCM Section 102.09. The proposed amendments would specify that
the Exchange would immediately initiate suspension and delisting
procedures of an issuer's subscription warrants if:
(i) The number of publicly-held subscription warrants is fewer than
100,000;
(ii) the number of public holders of such subscription warrants is
fewer than 100; \9\ or
---------------------------------------------------------------------------
\9\ For purposes of proposed LCM Section 802.01B, public holders
of subscription warrants would not include those held by directors,
officers, or their immediate families and other concentrated
holdings of 10 percent. See proposed LCM Section 802.01B(b).
---------------------------------------------------------------------------
(iii) the total market capitalization of such subscription warrants
is below $15 million over 30 consecutive trading days.\10\
---------------------------------------------------------------------------
\10\ See proposed LCM Section 802.01B(a).
---------------------------------------------------------------------------
An issuer of subscription warrants would not be eligible to submit
a compliance plan as outlined in LCM Sections 802.02 and 802.03 with
respect to the above continued listing criteria and any such security
would be subject to delisting procedures as set forth in LCM Section
804 (Procedure for Delisting).\11\
---------------------------------------------------------------------------
\11\ See proposed LCM Section 802.01B(c).
---------------------------------------------------------------------------
III. Proceedings To Determine Whether To Approve or Disapprove SR-NYSE-
2021-45 and Grounds for Disapproval Under Consideration
The Commission is instituting proceedings pursuant to Section
19(b)(2)(B) of the Exchange Act \12\ to determine whether the proposed
rule change should be approved or disapproved. Institution of such
proceedings is appropriate at this time in view of the legal and policy
issues raised by the proposed rule change. Institution of proceedings
does not indicate that the Commission has reached any conclusions with
respect to any of the issues involved.
---------------------------------------------------------------------------
\12\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------
Pursuant to Section 19(b)(2)(B) of the Exchange Act,\13\ the
Commission is providing notice of the grounds for disapproval under
consideration. The Commission is instituting proceedings to allow for
additional analysis of the proposed rule change's consistency with the
Exchange Act and, in particular, with Section 6(b)(5) of the Exchange
Act, which requires, among other things, that the rules of a national
securities exchange be designed to prevent fraudulent and manipulative
acts and practices, to promote just and equitable principles of trade,
to foster cooperation and coordination with persons engaged in
regulating, clearing, settling, processing information with respect to,
and facilitating transactions in securities, to remove impediments to
and perfect the mechanism of a free and open market and a national
market system, and to protect investors and the public interest, and
not be designed to permit unfair discrimination between customers,
issuers, brokers, or dealers.\14\
---------------------------------------------------------------------------
\13\ Id.
\14\ 15 U.S.C. 78f(b)(5).
---------------------------------------------------------------------------
The Commission has consistently recognized the importance of
national securities exchange listing standards. Among other things,
such listing standards help ensure that exchange-listed companies will
have sufficient public float, investor base, and trading interest to
provide the depth and liquidity necessary to promote fair and orderly
markets.\15\
---------------------------------------------------------------------------
\15\ The Commission has stated in approving national securities
exchange listing requirements that the development and enforcement
of adequate standards governing the listing of securities on an
exchange is an activity of critical importance to the financial
markets and the investing public. In addition, once a security has
been approved for initial listing, maintenance criteria allow an
exchange to monitor the status and trading characteristics of that
issue to ensure that it continues to meet the exchange's standards
for market depth and liquidity so that fair and orderly markets can
be maintained. See, e.g., Securities Exchange Act Release Nos. 91947
(May 19, 2021), 86 FR 28169, 28172 n.47 (May 25, 2021) (SR-NASDAQ-
2020-057) (``Nasdaq 2021 Order''); 90768 (December 22, 2020), 85 FR
85807, 85811 n.55 (December 29, 2020) (SR-NYSE-2019-67) (``NYSE 2020
Order''); 82627 (February 2, 2018), 83 FR 5650, 5653 n.53 (February
8, 2018) (SR-NYSE-2017-30) (``NYSE 2018 Order''); 81856 (October 11,
2017), 82 FR 48296, 48298 (October 17, 2017) (SR-NYSE-2017-31);
81079 (July 5, 2017), 82 FR 32022, 32023 (July 11, 2017) (SR-NYSE-
2017-11). The Commission has stated that adequate listing standards,
by promoting fair and orderly markets, are consistent with Section
6(b)(5) of the Exchange Act, in that they are, among other things,
designed to prevent fraudulent and manipulative acts and practices,
promote just and equitable principles of trade, and protect
investors and the public interest. See, e.g., Nasdaq 2021 Order, 86
FR 28172 n.47; NYSE 2020 Order, 85 FR 85811 n.55; NYSE 2018 Order,
83 FR 5653 n.53; Securities Exchange Act Release Nos. 87648
(December 3, 2019), 84 FR 67308, 67314 n.42 (December 9, 2019) (SR-
NASDAQ-2019-059); 88716 (April 21, 2020), 85 FR 23393, 23395 n.22
(April 27, 2020) (SR-NASDAQ-2020-001).
---------------------------------------------------------------------------
As described above, the proposal would allow the Exchange to list
subscription warrants, which would be warrants issued by a company
organized solely for the purpose of identifying an Acquisition target
and exercisable into the common stock of such company upon entry into a
binding agreement with respect to such Acquisition. The Exchange states
that the proposed requirements applicable to the listing of
subscription warrants would provide adequate protections for investors
and the public interest.\16\ According to the Exchange, the proposal
would facilitate the listing and trading of an additional type of
security that will enhance competition among market participants.\17\
---------------------------------------------------------------------------
\16\ See Notice, supra note 3, at 50749.
\17\ See id.
---------------------------------------------------------------------------
The Commission received two comment letters from representatives of
an issuer seeking to list subscription
[[Page 71113]]
warrants should the Exchange's proposal be approved.\18\ These
commenters stated that the proposal would provide an alternative to the
current listing rules for Special Purpose Acquisition Companies
(``SPACs'') \19\ but that investors in subscription warrants would be
required to contribute less upfront capital than investors in a
traditional SPAC.\20\ These commenters also stated that the proposed
10-year term for subscription warrants would provide enhanced
negotiating leverage to an acquisition company sponsor than that
provided by a traditional SPAC.\21\ One of these commenters asserted
that subscription warrants would give investors a greater opportunity
to consider the quality of an acquisition because they would require
investors to affirmatively ``opt-in'' to a potential acquisition
through exercise of the warrants, as compared to the traditional SPAC
structure where the default action is for an investor's shares to be
converted into the combined company unless the shareholder elects to
redeem those shares (i.e., the investor has to ``opt out'').\22\ This
commenter further stated that the Exchange's proposed quantitative
standards for subscription warrants would require a sponsor to have a
``sufficient track record and reputation for creating shareholder
value.'' \23\ One commenter offered suggested modifications to the
proposed rule change, including: (1) That the proposed subscription
warrants not be exercisable prior to the time at which a post-effective
amendment to the company's initial registration statement, containing
comprehensive disclosure regarding the proposed Acquisition, has been
declared effective by the Commission; (2) modifications to the proposed
exercise and redemption process; (3) that the issuer be required to
consummate its Acquisition within 12 months of entering into its
Acquisition agreement; (4) that the proposed rule change provide for a
minimum number of shares that may be purchased upon the exercise of a
subscription warrant at a fixed per share price; and (5) that the
proposed rule change permit the issuance of an additional class of
subscription warrants with a higher exercise price that would remain
exercisable up to five years after the date of the Acquisition.\24\
---------------------------------------------------------------------------
\18\ See letters to Vanessa Countryman, Secretary, Commission,
from William A. Ackman, Pershing Square Capital Management, L.P.,
dated September 26, 2021 (``Ackman Letter''); and Cadwalader,
Wickersham & Taft LLP, dated September 30, 2021 (``CWT Letter'').
\19\ The Exchange's listing standards for SPACs are set forth in
LCM sections 102.06 and 802.01. The Commission notes that throughout
this order we have used the term ``SPAC.'' This term has the same
meaning as ``Acquisition Company,'' which is the term used by the
Exchange in the LCM.
\20\ See Ackman Letter at 4-5; CWT Letter at 1-2.
\21\ See Ackman Letter at 5; CWT Letter at 2. Pursuant to LCM
section 102.06, a SPAC has three years to consummate a business
combination.
\22\ See Ackman Letter at 5. See also LCM Section 102.06, which
sets forth the Exchange's listing requirements for SPACs.
\23\ See id. at 6.
\24\ See CWT Letter at 3-5.
---------------------------------------------------------------------------
The Commission also received comments from individual investors
broadly supporting the proposed rule change. These commenters generally
asserted that the proposed listing and trading of subscription warrants
would allow retail investors to invest in early-stage companies without
tying up excessive capital.\25\ The Commission also received some
comments from individual investors voicing concerns that, as proposed,
subscription warrants may be susceptible to fraud and manipulation.\26\
One of these commenters stated that the valuation of a subscription
warrant would be highly subjective due to the fact that the issuer
would not have any underlying assets or business operations, and that
the subscription warrants would thereby derive their value solely from
the reputation of the sponsor or speculation of possible Acquisition
targets.\27\ This commenter stated that this could create a conflict of
interest if the sponsor were permitted to sell its subscription
warrants or distribute the subscription warrants in an inequitable
manner.\28\ Another commenter expressed concerns regarding the length
of time a subscription warrant may remain outstanding, stating that it
would lead to uncertainty regarding when an Acquisition may occur.\29\
---------------------------------------------------------------------------
\25\ See, e.g., letters from Stephan Kroeber, dated September 7,
2021; William J. Hooy, Esq., dated September 7, 2021; Brian Hwang,
dated October 18, 2021; and James Porteous, dated October 18, 2021.
\26\ See, e.g., letters from Nikesh Bhattarai, dated September
6, 2021; Maksim P. Martynyuk, dated September 7, 2021; Nicholas
Jenzer, dated September 7, 2021; and Hedgely, dated October 12,
2021.
\27\ See letter from Nicholas Jenzer.
\28\ See id. See also letter from Maksim P. Martynyuk
(expressing similar concerns regarding sponsor conflicts).
\29\ See Anonymous letter received September 7, 2021.
---------------------------------------------------------------------------
The Commission has concerns about whether the proposal is
sufficiently designed to prevent fraudulent and manipulative acts and
practices, promote just and equitable principles of trade, and protect
investors and the public interest, as required by Section 6(b)(5) of
the Exchange Act. As described above, the Exchange proposes to list
subscription warrants that would be exercisable into the common stock
of a company upon its entry into an acquisition agreement with an
unknown target, on unknown terms, at any time up to ten years from the
date of issuance. Subscription warrants could be issued for no
consideration, and the Exchange has proposed no minimum price per
warrant.
Current Exchange rules for listed warrants, among other things,
require that they be exercisable on specified terms into a specified
security listed on the Exchange.\30\ Current Exchange rules for listed
SPACs, among other things, require a minimum $4 initial price per share
and a substantial market value reflecting the cash held in trust, and
that an acquisition be completed within three years.\31\
---------------------------------------------------------------------------
\30\ See LCM Section 703.12. See also LCM Section 802.01D
(providing that the Exchange will consider delisting warrants if the
related security is delisted). Exchange listing standards for equity
investment tracking stocks and subscription receipts have similar
requirements. See LCM Sections 102.07 and 102.08. See also LCM
Section 802.01B (providing that the Exchange will immediately
initiate suspension and delisting procedures if the listed equity
security or securities whose value is tracked by the equity
investment tracking stock ceases or cease to be listed on the
Exchange and the equity investment tracking stock does not qualify
for initial listing at that time under another applicable listing
standard); and LCM Section 802.01B (providing that the Exchange will
immediately initiate suspension and delisting procedures if the
subscription receipt issuer's related common equity security ceases
to be listed on the Exchange).
\31\ See LCM Section 102.06. See also LCM Section 802.01.
---------------------------------------------------------------------------
The Exchange justifies its proposal simply by stating that it ``is
consistent with Section 6(b)(5) of the Act in that it contains
requirements in relation to the listing of Subscription Warrants that
provide adequate protections for investors and the public interest,''
and then listing some of the elements of the proposal.\32\ The Exchange
also states, without elaboration, that its proposal ``is designed to
perfect the mechanism of a free and open market and, in general, to
protect investors and the public interest in that it will facilitate
the listing and trading of an additional type of security and that it
will enhance competition among market participants, to the benefit of
investors and the marketplace.'' \33\
---------------------------------------------------------------------------
\32\ See Notice, supra note 3, at 50749.
\33\ See id.
---------------------------------------------------------------------------
The Exchange does not explain how market participants would
effectively value this novel listed security, or how it would be
expected to trade consistent with fair and orderly markets and the
protection of investors and the public interest. As noted above,
subscription warrants could be issued for no consideration \34\ and
have negligible
[[Page 71114]]
value. The value of a subscription warrant, if any, would appear to
derive primarily from expectations that the sponsor ultimately will
offer holders the ability to exercise the warrant on attractive terms
once a target company is identified and an acquisition agreement
signed. The Exchange does not address, among other things, the types of
market information that could create a positive value for subscription
warrants, the reliability and availability of such information, or
whether such information could support fair and efficient trading of an
Exchange-listed security for a period as long as ten years.
---------------------------------------------------------------------------
\34\ The Exchange's proposal also would appear to permit
subscription warrants to be issued for value. While the proposal
would require the proceeds of the exercise of subscription warrants
to be held in an interest-bearing custody account controlled by an
independent custodian, pending the closing of an Acquisition, it
does not address the handling of the proceeds of the issuance of the
subscription warrants themselves, or why the lack of similar
protections is consistent with Section 6(b)(5) and other provisions
of the Exchange Act.
---------------------------------------------------------------------------
The Exchange also does not explain how it would effectively address
the risk the price of subscription warrants could be manipulated, or
how its proposal otherwise would be designed to prevent fraudulent and
manipulative acts and practices. For example, the price of subscription
warrants would appear to be particularly susceptible to rumors about
potential acquisition targets and the terms of potential transactions.
Because subscription warrants may trade at a very low price, they may
permit a bad actor to efficiently manipulate these securities with
little upfront cost. The Exchange does not address how its proposal is
designed to prevent the risk that subscription warrants may be
particularly susceptible to manipulation.
Further, the Exchange does not explain the rationale for the
various numerical standards and criteria set forth in its proposal, or
how they together are designed to be consistent with the Exchange Act
and the rules and regulations thereunder. For example, the Exchange
proposes that an issuer's subscription warrants may initially be listed
on the Exchange if there are at least 1,100,000 publicly held warrants
outstanding, but also proposes a continued listing standard that
requires immediate suspension and delisting procedures if the total
market capitalization of the subscription warrants is below $15 million
over 30 consecutive trading days. This would imply a minimum price in
these circumstances of more than $13 per warrant. Because subscription
warrants may trade at a very low price, as discussed above, they may
become subject to delisting very soon after listing, depending on the
number of warrants outstanding. The Exchange has not addressed how such
a scenario would be consistent with the protection of investors and the
public interest and other relevant provisions of the Exchange Act, or
how the other numerical standards and criteria set forth in its
proposal have been designed to work together to avoid similar outcomes.
In addition, while the proposal states that the sale of both the
subscription warrants and the issuance of the common stock in exchange
for the subscription warrants must be registered under the Securities
Act, the proposal is unclear as to the requirements relating to
Securities Act registration at the time the warrants become eligible to
be exercised into common stock. In particular, the proposal does not
appear to require a registration statement or, if possible, a post-
effective amendment at the critical time when warrant holders have to
make a decision on exercising their warrants for common stock.
Therefore, it is unclear how investors will have the information
necessary to make an informed decision regarding their purchase of
securities, including a discussion of the target's business as well as
any required financial statements. Further, and importantly, without
registration or a post-effective amendment, investors will not
necessarily have the protections of the private liability provisions of
the Securities Act when exercising their warrants for the common stock.
For example, the filing of a new registration statement or post-
effective amendment would effectively restart the Section 11 statute of
limitations with a new effective date and would permit staff review of
the filing. Without this investors may not have a remedy available
under the Securities Act for material misstatements. Given these
important investor protection issues, there are questions raised about
the proposal's consistency with the investor protection and public
interest requirements under Section 6(b)(5) of the Exchange Act.
Finally, it is unclear under the Exchange's proposal whether the
company would meet the definition of investment company under the
Investment Company Act of 1940 (``1940 Act''). If so, the company may
need to register under the 1940 Act, which would require a new listing
rule, proposed by the Exchange and approved by the Commission, that
contemplates the company's status under the 1940 Act.
Accordingly, the Commission believes there are questions as to
whether the proposal is consistent with Section 6(b)(5) of the Exchange
Act and its requirements, among other things, that the rules of a
national securities exchange be designed to prevent fraudulent and
manipulative acts and practices and to protect investors and the public
interest, and not be designed to permit unfair discrimination.
Under the Commission's Rules of Practice, the ``burden to
demonstrate that a proposed rule change is consistent with the Exchange
Act and the rules and regulations issued thereunder . . . is on the
self-regulatory organization that proposed the rule change.'' \35\ The
description of a proposed rule change, its purpose and operation, its
effect, and a legal analysis of its consistency with applicable
requirements must all be sufficiently detailed and specific to support
an affirmative Commission finding,\36\ and any failure of a self-
regulatory organization to provide this information may result in the
Commission not having a sufficient basis to make an affirmative finding
that a proposed rule change is consistent with the Exchange Act and the
applicable rules and regulations.\37\
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\35\ 17 CFR 201.700(b)(3).
\36\ See id.
\37\ See id.
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For these reasons, the Commission believes it is appropriate to
institute proceedings pursuant to Section 19(b)(2)(B) of the Exchange
Act \38\ to determine whether the proposal should be approved or
disapproved.
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\38\ 15 U.S.C. 78s(b)(2)(B).
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IV. Procedure: Request for Written Comments
The Commission requests that interested persons provide written
submissions of their views, data, and arguments with respect to the
issues identified above, as well as any other concerns they may have
with the proposal. In particular, the Commission invites the written
views of interested persons concerning whether the proposal is
consistent with Section 6(b)(5) \39\ of the Exchange Act or any other
provision of the Exchange Act, or the rules and regulations thereunder.
Although there do not appear to be any issues relevant to approval or
disapproval that would be facilitated by an oral presentation of views,
data, and arguments, the Commission will consider, pursuant to Rule
19b-4 under the Exchange Act,\40\ any request for an
[[Page 71115]]
opportunity to make an oral presentation.\41\
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\39\ 15 U.S.C. 78f(b)(5).
\40\ 17 CFR 240.19b-4.
\41\ Section 19(b)(2) of the Exchange Act, as amended by the
Securities Act Amendments of 1975, Public Law 94-29 (June 4, 1975),
grants the Commission flexibility to determine what type of
proceeding--either oral or notice and opportunity for written
comments--is appropriate for consideration of a particular proposal
by a self-regulatory organization. See Securities Act Amendments of
1975, Senate Comm. on Banking, Housing & Urban Affairs, S. Rep. No.
75, 94th Cong., 1st Sess. 30 (1975).
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Interested persons are invited to submit written data, views, and
arguments regarding whether the proposed rule change should be approved
or disapproved by January 4, 2022. Any person who wishes to file a
rebuttal to any other person's submission must file that rebuttal by
January 18, 2022. The Commission asks that commenters address the
sufficiency of the Exchange's statements in support of the proposal,
which are set forth in the Notice,\42\ in addition to any other
comments they may wish to submit about the proposed rule change.
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\42\ See supra note 3.
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Comments may be submitted by any of the following methods:
Electronic Comments
Use the Commission's internet comment form (https://www.sec.gov/rules/sro.shtml); or
Send an email to [email protected]. Please include
File Number SR-NYSE-2021-45 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-NYSE-2021-45. 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-NYSE-2021-45 and should be submitted by
January 4, 2022. Rebuttal comments should be submitted by January 18,
2022.
For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\43\
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\43\ 17 CFR 200.30-3(a)(57).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-26970 Filed 12-13-21; 8:45 am]
BILLING CODE 8011-01-P
