Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing of Proposed Rule Change To Create a New, Non-Trading Limited Membership Class and Impose Related Requirements for Principal Underwriting Activity, 49508-49512 [2023-16110]

Download as PDF 49508 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Notices FOR FURTHER INFORMATION CONTACT: Sean C. Robinson, 202–268–8405. SUPPLEMENTARY INFORMATION: The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on July 25, 2023, it filed with the Postal Regulatory Commission a USPS Request to Add Priority Mail & USPS Ground Advantage® Contract 8 to Competitive Product List. Documents are available at www.prc.gov, Docket Nos. MC2023–197, CP2023–201. Sean C. Robinson, Attorney, Corporate and Postal Business Law. [FR Doc. 2023–16173 Filed 7–28–23; 8:45 am] BILLING CODE 7710–12–P publication of the notice for this proposed rule change is July 27, 2023. The Commission is extending this 45day time period. The Commission finds it appropriate to designate a longer period within which to take action on the proposed rule change so that it has sufficient time to consider the proposed rule change. Accordingly, the Commission, pursuant to section 19(b)(2) of the Act,5 designates September 10, 2023 as the date by which the Commission shall either approve or disapprove, or institute proceedings to determine whether to disapprove, the proposed rule change (File No. SR–NYSEARCA– 2023–37). For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.6 J. Matthew DeLesDernier, Deputy Secretary. SECURITIES AND EXCHANGE COMMISSION [Release No. 34–97972; File No. SR– NYSEARCA–2023–37] [FR Doc. 2023–16125 Filed 7–28–23; 8:45 am] BILLING CODE 8011–01–P Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Designation of a Longer Period for Commission Action on a Proposed Rule Change To List and Trade Shares of the COtwo Advisors Physical European Carbon Allowance Trust Under NYSE Arca Rule 8.201–E ddrumheller on DSK120RN23PROD with NOTICES1 July 25, 2023. On May 23, 2023, NYSE Arca, Inc. filed with the Securities and Exchange Commission (‘‘Commission’’), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 a proposed rule change to list and trade shares of the COtwo Advisors Physical European Carbon Allowance Trust. The proposed rule change was published for comment in the Federal Register on June 12, 2023.3 The Commission has received no comments on the proposed rule change. Section 19(b)(2) of the Act 4 provides that within 45 days of the publication of notice of the filing of a proposed rule change, or within such longer period up to 90 days as the Commission may designate if it finds such longer period to be appropriate and publishes its reasons for so finding, or as to which the self-regulatory organization consents, the Commission shall either approve the proposed rule change, disapprove the proposed rule change, or institute proceedings to determine whether the proposed rule change should be disapproved. The 45th day after SECURITIES AND EXCHANGE COMMISSION [Release No. 34–97985; File No. SR– NASDAQ–2023–022] Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing of Proposed Rule Change To Create a New, Non-Trading Limited Membership Class and Impose Related Requirements for Principal Underwriting Activity July 25, 2023. 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 July 12, 2023, The Nasdaq Stock Market LLC (‘‘Nasdaq’’ or ‘‘Exchange’’) filed with the Securities and Exchange Commission (‘‘Commission’’) the proposed rule change as described in Items I, II, and III, below, which Items have been prepared by the Exchange. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons. I. Self-Regulatory Organization’s Statement of the Terms of Substance of the Proposed Rule Change The Exchange proposes to create a new, non-trading limited membership class and impose related requirements for principal underwriting activity, as described further below. The text of the 1 15 U.S.C. 78s(b)(1). CFR 240.19b–4. 3 See Securities Exchange Act Release No. 97653 (June 6, 2023), 88 FR 38110. 4 15 U.S.C. 78s(b)(2). 2 17 VerDate Sep<11>2014 18:11 Jul 28, 2023 Jkt 259001 PO 00000 5 Id. 6 17 CFR 200.30–3(a)(31). U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. 1 15 Frm 00075 Fmt 4703 Sfmt 4703 proposed rule change is available on the Exchange’s website at https:// listingcenter.nasdaq.com/rulebook/ nasdaq/rules, at the principal office of the Exchange, and at the Commission’s Public Reference Room. II. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization’s Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose The purpose of the proposed rule change is to amend the Exchange’s Rules to create a new, limited membership class for those underwriters seeking only to perform underwriting activity as the principal underwriter on the Exchange 3 (and not seeking access to trade via the Nasdaq Market Center) and require a company applying for initial listing in connection with a transaction involving an underwriter to have a principal underwriter 4 that is a member or limited member of Nasdaq. Specifically, the Exchange proposes to amend its General Rules to: (i) add a definition of ‘‘Limited Underwriting Member’’ to General 1, Section 1; (ii) add a new, limited underwriting 3 ‘‘Principal underwriter’’ will have the same definition used in Rule 405 promulgated under the Securities Act of 1933 (‘‘Securities Act’’): an underwriter in privity of contract with the issuer of the securities as to which he is underwriter. Such definition provides that the term ‘‘issuer’’ in the definition of ‘‘principal underwriter’’ has the meaning given in Sections 2(4) and 2(11) of the Securities Act. 17 CFR 230.405. 4 The Exchange proposes to apply the requirements herein to a principal underwriter (defined as an underwriter in privity of contract with the issuer of the securities as to which he is underwriter) because the definition of principal underwriter points to the lead underwriter, who is generally responsible for organizing the offering, including tasks such as determining allocation of shares and the offering price, in conjunction with the issuer. Although offerings may require more than one underwriter, or a group of underwriters known as an underwriting syndicate, the Exchange proposes to focus on the lead underwriters given the substantial role they typically play in the offering process. E:\FR\FM\31JYN1.SGM 31JYN1 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Notices membership to General 3, Section 1031; and (iii) provide an exemption from registration for certain investment banking representatives associated solely with Limited Underwriting Members in General 4, Section 1230, as described below. Finally, the Exchange proposes to amend Equity 7, Section 10 to exempt Limited Underwriting Members from being assessed a trading rights fee. In addition, the Exchange proposes to amend Rule 5210 of the Listing Rules to impose a requirement that each Company applying for initial listing in connection with a transaction involving an underwriter have a principal underwriter that is a Member or Limited Underwriting Member. ddrumheller on DSK120RN23PROD with NOTICES1 Background In the fall of 2022, Nasdaq observed instances of unusually high price spikes immediately following the pricing of certain initial public offerings (IPOs) on the Exchange and other national securities exchanges, mostly with respect to small-cap companies whose offerings were less than $25 million. In many instances, the IPO securities that were the subject of these extreme price spikes then experienced equally dramatic price declines to a level at or below the offering price. These extreme price spikes may occur in the opening trade on an exchange, or in continuous trading on the day of, or days immediately following, the listing. Underwriters play a critical role as gatekeepers to the capital markets in connection with the trading of newly issued securities. Unusual price volatility following IPOs of certain small-cap issuers highlights the essential role underwriters play. Nasdaq relies on underwriters to select the selling syndicate and ensure that the shares are placed in a way that is reasonably designed to allow liquid trading, consistent with Nasdaq’s listing requirements, and the successful introduction of the company to the marketplace. In a recent Equity Regulatory Alert,5 Nasdaq highlighted the important role of underwriters as gatekeepers in the IPO process and the applicability of market rules and the federal securities laws. The Financial Industry Regulatory Authority (FINRA) and the New York Stock Exchange (NYSE) published similar alerts at the same time.6 In Nasdaq’s Equity 5 https://www.nasdaqtrader.com/ MicroNews.aspx?id=ERA2022-9. 6 https://www.nyse.com/publicdocs/nyse/ markets/nyse/rule-interpretations/2022/NYSER_ Reg_Memo_-_Regulatory_Scrutiny_in_Connection_ with_IPOs_(2022.11.17_final).pdf; https:// www.finra.org/rules-guidance/notices/22-25. VerDate Sep<11>2014 18:11 Jul 28, 2023 Jkt 259001 Regulatory Alert, the Exchange also noted: Nasdaq members, as well as the members of other self-regulatory organizations, that underwrite IPOs, and that play other roles in the offering process, should expect a heightened focus when an IPO experiences unusual price movements. Nasdaq Regulation will continue to investigate to determine whether such members have complied with applicable rules designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, and to protect investors and the public interest. Areas of focus will include suspected manipulation and, beyond manipulation, whether the members are complying with their obligation to observe high standards of commercial honor and just and equitable principles of trade pursuant to Nasdaq Rule General 9, Section 1(a). That rule sets forth a standard intended to encompass a wide variety of conduct that may operate as an injustice to investors or other participants in the marketplace.7 Notwithstanding the important role of underwriters, Nasdaq does not currently require underwriters of companies that are going public on the Exchange to be Members of the Exchange. As such, Nasdaq does not have authority to require responses to investigative inquiries or to enforce its Rules directly against non-member underwriters.8 Nasdaq proposes creating a new, limited membership class and requiring underwriters involved in Nasdaq-listed IPOs to be Members or Limited Underwriting Members in order to serve as a principal underwriter of an IPO on the Exchange. By creating a new, limited membership class, Nasdaq would provide those firms seeking only to perform principal underwriting activity on the Exchange (and not seeking access to trade via the Nasdaq Market Center) the option of selecting a membership that is less burdensome note 5. does, however, have broad discretionary authority over the initial and continued listing of securities in Nasdaq in order to maintain the quality of and public confidence in its market, to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, and to protect investors and the public interest. The Exchange may request information from companies that are going public on the Exchange. The Exchange may also request information from nonMember underwriters, but they are not required to respond to these requests. As described further below, this proposal would provide the Exchange with authority to directly obtain information from Limited Underwriting Members, whether pre or post-IPO. PO 00000 7 Supra 8 Nasdaq Frm 00076 Fmt 4703 Sfmt 4703 49509 (i.e., to become a Limited Underwriting Member rather than a Member).9 Proposed Changes to Listing Rules The proposed rule change primarily impacts membership rules and other non-listing rules, which would apply to the underwriters themselves. However, as part of the proposal, Nasdaq would impose a new requirement in its Listing Rules at 5210(l), requiring each Company applying for initial listing in connection with a transaction involving an underwriter to have a principal underwriter that is a Member or Limited Underwriting Member of Nasdaq. In proposed Rule 5210(l), the Exchange would also specify that ‘‘principal underwriter’’ shall have the same definition used in Rule 405 promulgated under the Securities Act.10 The rule would cross reference the definition of ‘‘Limited Underwriting Member,’’ which is proposed to be added at General 1, Section 1, and would define Limited Underwriting Member to mean a broker or dealer admitted to limited underwriting membership in Nasdaq. Proposed Changes to General Rules Within its General Rules, the Exchange proposes to amend General 1 (General Provisions), General 3 (Membership and Access), and General 4 (Registration Requirements). The Exchange proposes to add the definition of ‘‘Limited Underwriting Member’’ to General 1, Section 1 (Definitions). As noted above, the Exchange proposes to define Limited Underwriting Member to mean a broker or dealer admitted to limited underwriting membership in Nasdaq. The Exchange proposes to add the new category of membership to General 3, Section 1031, within which the Exchange proposes to include information about persons eligible to become Limited Underwriting Members, Limited Underwriting Member access to the Exchange, and rules applicable to Limited Underwriting Members. The Exchange would specify in General 3, Section 1031(a), that (i) any registered broker or dealer shall be eligible for limited underwriting membership in the Exchange, except such registered brokers or dealers as are excluded under paragraph (b) of Rule 1002; 11 and (ii) any person shall be 9 A revised Membership Application is attached [sic] as Exhibit 3, in which Nasdaq proposes to add a category for Limited Underwriting Members and clarify that Limited Underwriting Members are not subject to the requirement to provide an NSCC account number. 10 Supra note 3. 11 In relevant part, General 3, Section 1002(b) provides that, subject to certain exceptions, no E:\FR\FM\31JYN1.SGM Continued 31JYN1 49510 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Notices ddrumheller on DSK120RN23PROD with NOTICES1 eligible to become an Associated Person of a Limited Underwriting Member, except such persons as are excluded under paragraph (b) of Rule 1002.12 Proposed Rule 1031(a) is consistent with the existing rules for persons eligible to become Members and Associated Persons in General 3, Rule 1002(a). The Exchange proposes to state, in General 3, Section 1031(b) that (i) a limited underwriting membership provides no rights to transact on the Exchange and (ii) a limited underwriting membership is solely to allow a firm that is not otherwise a Member to serve as a principal underwriter for a Company seeking to list on the Exchange, pursuant to Rule 5210(l). Nasdaq proposes applying a limited ruleset to this newly proposed limited membership class.13 Specifically, the Exchange proposes to apply only the following rules to Limited Underwriting Members: General 1 (General Provisions); General 2 (Organization and Administration), with the exception of Sections 6(a) and 22; General 3 (Membership and Access); General 4 (Registration Requirements); General 5 (Discipline), with the exception of Rules 8211 and 9557; General 9 (Regulation), Sections 1 and 20; and Equity 7, Section 10 (Pricing Schedule, Membership Fees). The Exchange would specify the aforementioned rules applicable to this new membership class in General 3, Section 1031(c)(1). With the proposal, the Exchange aims to apply only those rules it deems appropriate to a firm serving as a principal underwriter, registered broker or dealer shall be admitted to membership, and no Member shall be continued in membership, if such broker, dealer, or Member fails or ceases to satisfy the qualification requirements established by the Rules, or if such broker, dealer, or Member is or becomes subject to a statutory disqualification, or if such broker, dealer, or Member fails to file such forms as may be required in accordance with such process as the Exchange may prescribe. 12 In relevant part, General 3, Section 1002(b) provides that, subject to such exceptions as may be explicitly provided elsewhere in the Rules, no person shall become associated with a Member, continue to be associated with a Member, or transfer association to another Member, if such person fails or ceases to satisfy the qualification requirements established by the Rules, or if such person is or becomes subject to a statutory disqualification; and no broker or dealer shall be admitted to membership, and no Member shall be continued in membership, if any person associated with it is ineligible to be an Associated Person under this subsection. 13 Members of the Exchange, unlike Limited Underwriting Members, are subject to all of the Exchange’s Rules (which includes the limited ruleset applicable to the newly proposed limited membership class). VerDate Sep<11>2014 18:11 Jul 28, 2023 Jkt 259001 including those rules it deems critical to such firms. The Exchange proposes to apply General 1 to Limited Underwriting Members because General 1 provides defined terms that would be applicable to Limited Underwriting Members and, as explained above, the proposed rule change would also add a definition (‘‘Limited Underwriting Member’’) to General 1. The Exchange proposes to apply General 2 (with the exception of Sections 6(a) and 22) to Limited Underwriting Members because General 2 relates to organization and administration including requirements surrounding fees, limitations on affiliations, and a requirement for an executive representative, among other obligations. The Exchange proposes to specifically exclude General 2, Sections 6(a) and Section 22. General 2, Section 6(a) states that General Equity and Options Rules and Equity Rules shall apply to all members and persons associated with a member, which is not accurate in the case of Limited Underwriting Members. General 2, Section 22 relates to Sponsored Participants and client access to the Nasdaq Market Center via a Member, which is not applicable to underwriting activity. The Exchange also proposes to subject Limited Underwriting Members to General 3 because General 3 contains membership rules, including an obligation to follow specified procedures for applying to be a member, making changes to membership, or terminating membership. As described herein, the proposed rule change would also add additional details regarding the limited underwriting membership to General 3, Rule 1031. The Exchange proposes to apply General 4 to Limited Underwriting Members, which includes registration requirements that are applicable to Limited Underwriting Members. The proposal would also add an exemption within General 4, as described below. The Exchange believes it is critical to subject Limited Underwriting Members to General 5 (with the exception of Rules 8211 and 9557), which contains the Exchange’s disciplinary rules.14 Notably, General 5, Rule 8210 provides the Exchange with authority to require 14 General 5, Rule 8001 provides that the Exchange and FINRA are parties to the FINRA Regulatory Contract (often referred to as a Regulatory Services Agreement (‘‘RSA’’)) pursuant to which FINRA has agreed to perform certain functions described in the Exchange’s Rules on behalf of the Exchange. The Exchange does not anticipate that the proposed rule change would have any material impact on the current RSA. PO 00000 Frm 00077 Fmt 4703 Sfmt 4703 information from Exchange Members. The Exchange proposes to specifically exclude General 5, Rule 8211 and Rule 9557. Rule 8211 relates to members submission of trade data. Rule 9557 relates to procedures for regulating activities under General 9, Sections 40 and 41, which incorporate FINRA Rules 4110 and 4120, which relate to FINRA carrying or clearing members. Therefore, Rule 8211 and Rule 9557 are not relevant to underwriting activity. The Exchange also believes it is important to subject Limited Underwriting Members to General 9, Section 1 which includes general standards by which Members must abide. Specifically, of importance, General 9, Section 1(a) requires Members to observe just and equitable principles of trade. General 9, Section 20 requires Members to establish and maintain a system to supervise the activities of each registered representative and associated person that is reasonably designed to achieve compliance with applicable securities laws and regulations and with applicable Nasdaq rules. The Exchange believes it is important to apply this provision on supervision as it would provide the Exchange with authority to assess whether a Limited Underwriting Member has an adequate supervisory system and written supervisory procedures in place. Finally, the Exchange proposes to include Equity 7, Section 10 to Limited Underwriting Members because this section includes the membership and application fees applicable to Limited Underwriting Members. The Exchange proposes to avoid applying all those Exchange rules not specified in proposed General 3, Section 1031(c)(1) to Limited Underwriting Members in an effort to impose minimal burden on Limited Underwriting Members, while still allowing the Exchange to have regulatory authority over such members. Furthermore, the Exchange believes that the Exchange’s rules that Limited Underwriting Members would not be subject to under the proposal primarily relate to trading activity and are, therefore, not relevant to the activities of Limited Underwriting Members. The Exchange proposes to include language in General 3, Section 1031(c)(1) providing that, for purposes of interpreting and applying the rules to Limited Underwriting Members, references to ‘‘Member,’’ ‘‘Members,’’ or ‘‘membership’’ shall be functionally equivalent to ‘‘Limited Underwriting Member,’’ ‘‘Limited Underwriting Members,’’ or ‘‘limited underwriting membership’’ respectively. The Exchange also proposes to include a E:\FR\FM\31JYN1.SGM 31JYN1 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Notices requirement, in General 3, Section 1031(c)(2), that Limited Underwriting Members and their Associated Persons shall at all times be members of FINRA.15 Finally, the Exchange proposes to exempt persons associated solely with a Limited Underwriting Member whose functions are related solely and exclusively to underwriting and who are registered with FINRA as an Investment Banking Representative 16 from the requirement to register with the Exchange. The Exchange proposes to add such exemption to General 4, Section 1230(4). Proposed Change to Equity Rules The Exchange proposes to exempt Limited Underwriting Members from the trading rights fee of $1,250 per month that is normally charged to Members because such Limited Underwriting Members would not be eligible to trade on the Exchange. Accordingly, the Exchange proposes to add language to Equity 7, Section 10(a) to specify that Limited Underwriting Members would not be charged the monthly trading rights fee. Limited Underwriting Members would be subject to a $2,000 application fee (per Equity 7, Section 10(b)) and a $3,000 yearly membership fee (per Equity 7, Section 10(a)). ddrumheller on DSK120RN23PROD with NOTICES1 Implementation The Exchange would designate the proposed changes to be operative 60 days after publication of the Commission’s approval order of SR– NASDAQ–2023–022 in the Federal Register. This delay will allow time for firms involved with upcoming IPOs to 15 Limited Underwriting Members would, therefore, be eligible to waive-in to Exchange membership, as provided for in General 3, Section 1013(b). Prospective Limited Underwriting Members would need to submit a membership application (see supra note 9) in which they would select ‘‘Waive-In Membership’’ for the application type and ‘‘Limited Underwriting Member of NQX’’ for the nature of intended activity. For ‘‘waive-in’’ applicants, the Exchange relies substantially upon FINRA’s determination to approve the applicant for FINRA membership when the Exchange evaluates the applicant for Exchange membership. 16 In FINRA Rule 1220(b)(5), FINRA describes the requirement for representatives to register as an ‘‘Investment Banking Representative’’ if his or her activities in the investment banking or securities business of a member involve: (i) advising on or facilitating debt or equity securities offerings through a private placement or a public offering, including but not limited to origination, underwriting, marketing, structuring, syndication, and pricing of such securities and managing the allocation and stabilization activities of such offerings, or (ii) advising on or facilitating mergers and acquisitions, tender offers, financial restructurings, asset sales, divestitures or other corporate reorganizations or business combination transactions, including but not limited to rendering a fairness, solvency or similar opinion. VerDate Sep<11>2014 18:11 Jul 28, 2023 Jkt 259001 become Limited Underwriting Members, if they choose, and for companies planning IPOs to select alternative underwriters if their current firm is not, and does not intend to become, a Member or Limited Underwriting Member. 2. Statutory Basis The Exchange believes that its proposal is consistent with Section 6(b) of the Act,17 in general, and furthers the objectives of Section 6(b)(5) of the Act,18 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, by strengthening Nasdaq’s ability to carry out its oversight responsibilities. It is also consistent with Section 6(b)(7) of the Act in that it provides for a fair procedure for prohibiting or limiting any person with respect to access to services offered by the Exchange or a Member thereof.19 As discussed above, the proposal would create a new, limited membership class for those firms seeking only to perform activity as the principal underwriter of an IPO on the Exchange (and not seeking access to trade via the Nasdaq Market Center) and require a company applying for initial listing in connection with a transaction involving an underwriter to have a principal underwriter that is a member or limited member of Nasdaq. The Exchange would apply specified rules to Limited Underwriting Members, as explained above. Such rules include general provisions and standards, membership and access rules, organization and administration rules, registration requirements, disciplinary rules, and certain fees. Creating this new membership class and subjecting principal underwriters to such specified rules supports fair and orderly markets, which protects investors and the public interest, consistent with Section 6(b)(5) of the Act. Notably, the proposal would subject Limited Underwriting Members to Nasdaq’s disciplinary rules, which provides Nasdaq authority to require information from such underwriters (per General 5, Rule 8210), as well as other general rules, including the requirement to observe just and equitable principles of trade (per General 9, Section 1(a)) and the requirement to establish and maintain a system to supervise the activities of registered representatives and associated persons (per General 9, PO 00000 17 15 U.S.C. 78f(b). U.S.C. 78f(b)(5). 19 15 U.S.C. 78f(b)(7). Fmt 4703 Section 20). Nasdaq believes that imposing these Nasdaq rules, as well as the other rules included in proposed Rule 1031(c)(1), on principal underwriters will strengthen Nasdaq’s ability to carry out its oversight responsibilities and deter potential violative conduct, such as fraud or manipulation, thereby protecting investors and the public interest. 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. The proposed changes to the Listing Rules will apply equally to all similarly situated companies applying for initial listing in connection with a transaction involving an underwriter on the Exchange. Likewise, the proposed changes to the General and Equity Rules, including to the membership rules, will apply equally to all similarly situated Applicants and Members and they will confer no relative advantage or disadvantage upon any category of Exchange Applicant or Member. Although the Exchange proposes to subject Limited Underwriting Members to a limited set of rules, the limited underwriting membership does not confer the same benefits as a standard Exchange membership. Namely, a Limited Underwriting Member would not be permitted to transact on the Nasdaq Market Center. Therefore, applying a limited ruleset to Limited Underwriting Members is justified. All Limited Underwriting Members would be subject to the same specified rules, as noted above. Moreover, the Exchange does not expect that its proposal will have an adverse impact on competition among exchanges for members. The Exchange believes the proposed rule changes, overall, will strengthen the Exchange’s ability to carry out its role and responsibilities as a self-regulatory organization and deter potential violative conduct. As such, 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. 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. 18 15 Frm 00078 49511 Sfmt 4703 E:\FR\FM\31JYN1.SGM 31JYN1 49512 Federal Register / Vol. 88, No. 145 / Monday, July 31, 2023 / Notices III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action Within 45 days of the date of publication of this notice in the Federal Register or within such longer period (i) as the Commission may designate up to 90 days of such date if it finds such longer period to be appropriate and publishes its reasons for so finding or (ii) as to which the Exchange consents, the Commission shall: (a) by order approve or disapprove such proposed rule change, or (b) institute proceedings to determine whether the proposed rule change should be disapproved. BILLING CODE 8011–01–P 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– NASDAQ–2023–022 on the subject line. ddrumheller on DSK120RN23PROD 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–NASDAQ–2023–022. 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 a.m. and 3 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the 18:11 Jul 28, 2023 Jkt 259001 For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.20 J. Matthew DeLesDernier, Deputy Secretary. [FR Doc. 2023–16110 Filed 7–28–23; 8:45 am] IV. Solicitation of Comments VerDate Sep<11>2014 Exchange. Do not include personal identifiable information in submissions; you should submit only information that you wish to make available publicly. We may redact in part or withhold entirely from publication submitted material that is obscene or subject to copyright protection. All submissions should refer to file number SR–NASDAQ–2023–022 and should be submitted on or before August 21, 2023. SECURITIES AND EXCHANGE COMMISSION [SEC File No. 270–148, OMB Control No. 3235–0133] Proposed Collection; Comment Request; Extension: Rule 17a–19 and Form X–17A–19 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 (‘‘PRA’’) (44 U.S.C. 3501 et seq.), the Securities and Exchange Commission (‘‘Commission’’) is soliciting comments on the existing collection of information provided for in Rule 17a–19 (17 CFR 240.17a–19) and Form X–17A–19 under the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.). The Commission plans to submit this existing collection of information to the Office of Management and Budget (‘‘OMB’’) for extension and approval. Rule 17a–19 requires every national securities exchange and registered national securities association to file a Form X–17A–19 with the Commission and the Securities Investor Protection Corporation (‘‘SIPC’’) within 5 business days of the initiation, suspension, or termination of any member and, when terminating the membership interest of any member, to notify that member of its obligation to file financial reports as required by Exchange Act Rule 17a–5(b) (17 CFR 240.17a–5(b)). There are currently a total of 25 national securities exchanges and registered national securities associations that are potential respondents under the rule. Commission staff anticipates that the national securities exchanges and PO 00000 20 17 CFR 200.30–3(a)(12). Frm 00079 Fmt 4703 Sfmt 4703 registered national securities associations collectively will make 420 total filings annually pursuant to Rule 17a–19 and that each filing will take approximately 15 minutes. The total reporting burden is estimated to be approximately 105 total annual hours. Written comments are invited on: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission’s estimates of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted by September 29, 2023. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number. Please direct your written comments to: David Bottom, Director/Chief Information Officer, Securities and Exchange Commission, c/o John Pezzullo, 100 F Street NE, Washington, DC 20549, or send an email to: PRA_ Mailbox@sec.gov. Dated: July 25, 2023. J. Matthew DeLesDernier, Deputy Secretary. [FR Doc. 2023–16101 Filed 7–28–23; 8:45 am] BILLING CODE 8011–01–P SECURITIES AND EXCHANGE COMMISSION Sunshine Act Meetings 2:00 p.m. on Thursday, August 3, 2023. PLACE: The meeting will be held via remote means and/or at the Commission’s headquarters, 100 F Street NE, Washington, DC 20549. STATUS: This meeting will be closed to the public. MATTERS TO BE CONSIDERED: Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the closed meeting. Certain staff members who have an interest in the matters also may be present. In the event that the time, date, or location of this meeting changes, an announcement of the change, along with TIME AND DATE: E:\FR\FM\31JYN1.SGM 31JYN1

Agencies

[Federal Register Volume 88, Number 145 (Monday, July 31, 2023)]
[Notices]
[Pages 49508-49512]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16110]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-97985; File No. SR-NASDAQ-2023-022]


Self-Regulatory Organizations; The Nasdaq Stock Market LLC; 
Notice of Filing of Proposed Rule Change To Create a New, Non-Trading 
Limited Membership Class and Impose Related Requirements for Principal 
Underwriting Activity

July 25, 2023.
    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 July 12, 2023, The Nasdaq Stock Market LLC (``Nasdaq'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``Commission'') the proposed rule change as described in Items I, II, 
and III, below, which Items have been prepared by the Exchange. The 
Commission is publishing this notice to solicit comments on the 
proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to create a new, non-trading limited 
membership class and impose related requirements for principal 
underwriting activity, as described further below. The text of the 
proposed rule change is available on the Exchange's website at https://listingcenter.nasdaq.com/rulebook/nasdaq/rules, at the principal office 
of the Exchange, and at the Commission's Public Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements 
concerning the purpose of and basis for the proposed rule change and 
discussed any comments it received on the proposed rule change. The 
text of these statements may be examined at the places specified in 
Item IV below. The Exchange has prepared summaries, set forth in 
sections A, B, and C below, of the most significant aspects of such 
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and 
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The purpose of the proposed rule change is to amend the Exchange's 
Rules to create a new, limited membership class for those underwriters 
seeking only to perform underwriting activity as the principal 
underwriter on the Exchange \3\ (and not seeking access to trade via 
the Nasdaq Market Center) and require a company applying for initial 
listing in connection with a transaction involving an underwriter to 
have a principal underwriter \4\ that is a member or limited member of 
Nasdaq.
---------------------------------------------------------------------------

    \3\ ``Principal underwriter'' will have the same definition used 
in Rule 405 promulgated under the Securities Act of 1933 
(``Securities Act''): an underwriter in privity of contract with the 
issuer of the securities as to which he is underwriter. Such 
definition provides that the term ``issuer'' in the definition of 
``principal underwriter'' has the meaning given in Sections 2(4) and 
2(11) of the Securities Act. 17 CFR 230.405.
    \4\ The Exchange proposes to apply the requirements herein to a 
principal underwriter (defined as an underwriter in privity of 
contract with the issuer of the securities as to which he is 
underwriter) because the definition of principal underwriter points 
to the lead underwriter, who is generally responsible for organizing 
the offering, including tasks such as determining allocation of 
shares and the offering price, in conjunction with the issuer. 
Although offerings may require more than one underwriter, or a group 
of underwriters known as an underwriting syndicate, the Exchange 
proposes to focus on the lead underwriters given the substantial 
role they typically play in the offering process.
---------------------------------------------------------------------------

    Specifically, the Exchange proposes to amend its General Rules to: 
(i) add a definition of ``Limited Underwriting Member'' to General 1, 
Section 1; (ii) add a new, limited underwriting

[[Page 49509]]

membership to General 3, Section 1031; and (iii) provide an exemption 
from registration for certain investment banking representatives 
associated solely with Limited Underwriting Members in General 4, 
Section 1230, as described below. Finally, the Exchange proposes to 
amend Equity 7, Section 10 to exempt Limited Underwriting Members from 
being assessed a trading rights fee. In addition, the Exchange proposes 
to amend Rule 5210 of the Listing Rules to impose a requirement that 
each Company applying for initial listing in connection with a 
transaction involving an underwriter have a principal underwriter that 
is a Member or Limited Underwriting Member.
Background
    In the fall of 2022, Nasdaq observed instances of unusually high 
price spikes immediately following the pricing of certain initial 
public offerings (IPOs) on the Exchange and other national securities 
exchanges, mostly with respect to small-cap companies whose offerings 
were less than $25 million. In many instances, the IPO securities that 
were the subject of these extreme price spikes then experienced equally 
dramatic price declines to a level at or below the offering price. 
These extreme price spikes may occur in the opening trade on an 
exchange, or in continuous trading on the day of, or days immediately 
following, the listing.
    Underwriters play a critical role as gatekeepers to the capital 
markets in connection with the trading of newly issued securities. 
Unusual price volatility following IPOs of certain small-cap issuers 
highlights the essential role underwriters play. Nasdaq relies on 
underwriters to select the selling syndicate and ensure that the shares 
are placed in a way that is reasonably designed to allow liquid 
trading, consistent with Nasdaq's listing requirements, and the 
successful introduction of the company to the marketplace. In a recent 
Equity Regulatory Alert,\5\ Nasdaq highlighted the important role of 
underwriters as gatekeepers in the IPO process and the applicability of 
market rules and the federal securities laws. The Financial Industry 
Regulatory Authority (FINRA) and the New York Stock Exchange (NYSE) 
published similar alerts at the same time.\6\ In Nasdaq's Equity 
Regulatory Alert, the Exchange also noted:
---------------------------------------------------------------------------

    \5\ https://www.nasdaqtrader.com/MicroNews.aspx?id=ERA2022-9.
    \6\ https://www.nyse.com/publicdocs/nyse/markets/nyse/rule-interpretations/2022/NYSER_Reg_Memo_-_Regulatory_Scrutiny_in_Connection_with_IPOs_(2022.11.17_final).pdf; 
https://www.finra.org/rules-guidance/notices/22-25.
---------------------------------------------------------------------------

    Nasdaq members, as well as the members of other self-regulatory 
organizations, that underwrite IPOs, and that play other roles in the 
offering process, should expect a heightened focus when an IPO 
experiences unusual price movements. Nasdaq Regulation will continue to 
investigate to determine whether such members have complied with 
applicable rules designed to prevent fraudulent and manipulative acts 
and practices, to promote just and equitable principles of trade, and 
to protect investors and the public interest. Areas of focus will 
include suspected manipulation and, beyond manipulation, whether the 
members are complying with their obligation to observe high standards 
of commercial honor and just and equitable principles of trade pursuant 
to Nasdaq Rule General 9, Section 1(a). That rule sets forth a standard 
intended to encompass a wide variety of conduct that may operate as an 
injustice to investors or other participants in the marketplace.\7\
---------------------------------------------------------------------------

    \7\ Supra note 5.
---------------------------------------------------------------------------

    Notwithstanding the important role of underwriters, Nasdaq does not 
currently require underwriters of companies that are going public on 
the Exchange to be Members of the Exchange. As such, Nasdaq does not 
have authority to require responses to investigative inquiries or to 
enforce its Rules directly against non-member underwriters.\8\
---------------------------------------------------------------------------

    \8\ Nasdaq does, however, have broad discretionary authority 
over the initial and continued listing of securities in Nasdaq in 
order to maintain the quality of and public confidence in its 
market, to prevent fraudulent and manipulative acts and practices, 
to promote just and equitable principles of trade, and to protect 
investors and the public interest. The Exchange may request 
information from companies that are going public on the Exchange. 
The Exchange may also request information from non-Member 
underwriters, but they are not required to respond to these 
requests. As described further below, this proposal would provide 
the Exchange with authority to directly obtain information from 
Limited Underwriting Members, whether pre or post-IPO.
---------------------------------------------------------------------------

    Nasdaq proposes creating a new, limited membership class and 
requiring underwriters involved in Nasdaq-listed IPOs to be Members or 
Limited Underwriting Members in order to serve as a principal 
underwriter of an IPO on the Exchange. By creating a new, limited 
membership class, Nasdaq would provide those firms seeking only to 
perform principal underwriting activity on the Exchange (and not 
seeking access to trade via the Nasdaq Market Center) the option of 
selecting a membership that is less burdensome (i.e., to become a 
Limited Underwriting Member rather than a Member).\9\
---------------------------------------------------------------------------

    \9\ A revised Membership Application is attached [sic] as 
Exhibit 3, in which Nasdaq proposes to add a category for Limited 
Underwriting Members and clarify that Limited Underwriting Members 
are not subject to the requirement to provide an NSCC account 
number.
---------------------------------------------------------------------------

Proposed Changes to Listing Rules
    The proposed rule change primarily impacts membership rules and 
other non-listing rules, which would apply to the underwriters 
themselves. However, as part of the proposal, Nasdaq would impose a new 
requirement in its Listing Rules at 5210(l), requiring each Company 
applying for initial listing in connection with a transaction involving 
an underwriter to have a principal underwriter that is a Member or 
Limited Underwriting Member of Nasdaq. In proposed Rule 5210(l), the 
Exchange would also specify that ``principal underwriter'' shall have 
the same definition used in Rule 405 promulgated under the Securities 
Act.\10\ The rule would cross reference the definition of ``Limited 
Underwriting Member,'' which is proposed to be added at General 1, 
Section 1, and would define Limited Underwriting Member to mean a 
broker or dealer admitted to limited underwriting membership in Nasdaq.
---------------------------------------------------------------------------

    \10\ Supra note 3.
---------------------------------------------------------------------------

Proposed Changes to General Rules
    Within its General Rules, the Exchange proposes to amend General 1 
(General Provisions), General 3 (Membership and Access), and General 4 
(Registration Requirements).
    The Exchange proposes to add the definition of ``Limited 
Underwriting Member'' to General 1, Section 1 (Definitions). As noted 
above, the Exchange proposes to define Limited Underwriting Member to 
mean a broker or dealer admitted to limited underwriting membership in 
Nasdaq.
    The Exchange proposes to add the new category of membership to 
General 3, Section 1031, within which the Exchange proposes to include 
information about persons eligible to become Limited Underwriting 
Members, Limited Underwriting Member access to the Exchange, and rules 
applicable to Limited Underwriting Members.
    The Exchange would specify in General 3, Section 1031(a), that (i) 
any registered broker or dealer shall be eligible for limited 
underwriting membership in the Exchange, except such registered brokers 
or dealers as are excluded under paragraph (b) of Rule 1002; \11\ and 
(ii) any person shall be

[[Page 49510]]

eligible to become an Associated Person of a Limited Underwriting 
Member, except such persons as are excluded under paragraph (b) of Rule 
1002.\12\ Proposed Rule 1031(a) is consistent with the existing rules 
for persons eligible to become Members and Associated Persons in 
General 3, Rule 1002(a).
---------------------------------------------------------------------------

    \11\ In relevant part, General 3, Section 1002(b) provides that, 
subject to certain exceptions, no registered broker or dealer shall 
be admitted to membership, and no Member shall be continued in 
membership, if such broker, dealer, or Member fails or ceases to 
satisfy the qualification requirements established by the Rules, or 
if such broker, dealer, or Member is or becomes subject to a 
statutory disqualification, or if such broker, dealer, or Member 
fails to file such forms as may be required in accordance with such 
process as the Exchange may prescribe.
    \12\ In relevant part, General 3, Section 1002(b) provides that, 
subject to such exceptions as may be explicitly provided elsewhere 
in the Rules, no person shall become associated with a Member, 
continue to be associated with a Member, or transfer association to 
another Member, if such person fails or ceases to satisfy the 
qualification requirements established by the Rules, or if such 
person is or becomes subject to a statutory disqualification; and no 
broker or dealer shall be admitted to membership, and no Member 
shall be continued in membership, if any person associated with it 
is ineligible to be an Associated Person under this subsection.
---------------------------------------------------------------------------

    The Exchange proposes to state, in General 3, Section 1031(b) that 
(i) a limited underwriting membership provides no rights to transact on 
the Exchange and (ii) a limited underwriting membership is solely to 
allow a firm that is not otherwise a Member to serve as a principal 
underwriter for a Company seeking to list on the Exchange, pursuant to 
Rule 5210(l).
    Nasdaq proposes applying a limited ruleset to this newly proposed 
limited membership class.\13\ Specifically, the Exchange proposes to 
apply only the following rules to Limited Underwriting Members: General 
1 (General Provisions); General 2 (Organization and Administration), 
with the exception of Sections 6(a) and 22; General 3 (Membership and 
Access); General 4 (Registration Requirements); General 5 (Discipline), 
with the exception of Rules 8211 and 9557; General 9 (Regulation), 
Sections 1 and 20; and Equity 7, Section 10 (Pricing Schedule, 
Membership Fees). The Exchange would specify the aforementioned rules 
applicable to this new membership class in General 3, Section 
1031(c)(1). With the proposal, the Exchange aims to apply only those 
rules it deems appropriate to a firm serving as a principal 
underwriter, including those rules it deems critical to such firms.
---------------------------------------------------------------------------

    \13\ Members of the Exchange, unlike Limited Underwriting 
Members, are subject to all of the Exchange's Rules (which includes 
the limited ruleset applicable to the newly proposed limited 
membership class).
---------------------------------------------------------------------------

    The Exchange proposes to apply General 1 to Limited Underwriting 
Members because General 1 provides defined terms that would be 
applicable to Limited Underwriting Members and, as explained above, the 
proposed rule change would also add a definition (``Limited 
Underwriting Member'') to General 1.
    The Exchange proposes to apply General 2 (with the exception of 
Sections 6(a) and 22) to Limited Underwriting Members because General 2 
relates to organization and administration including requirements 
surrounding fees, limitations on affiliations, and a requirement for an 
executive representative, among other obligations. The Exchange 
proposes to specifically exclude General 2, Sections 6(a) and Section 
22. General 2, Section 6(a) states that General Equity and Options 
Rules and Equity Rules shall apply to all members and persons 
associated with a member, which is not accurate in the case of Limited 
Underwriting Members. General 2, Section 22 relates to Sponsored 
Participants and client access to the Nasdaq Market Center via a 
Member, which is not applicable to underwriting activity.
    The Exchange also proposes to subject Limited Underwriting Members 
to General 3 because General 3 contains membership rules, including an 
obligation to follow specified procedures for applying to be a member, 
making changes to membership, or terminating membership. As described 
herein, the proposed rule change would also add additional details 
regarding the limited underwriting membership to General 3, Rule 1031.
    The Exchange proposes to apply General 4 to Limited Underwriting 
Members, which includes registration requirements that are applicable 
to Limited Underwriting Members. The proposal would also add an 
exemption within General 4, as described below.
    The Exchange believes it is critical to subject Limited 
Underwriting Members to General 5 (with the exception of Rules 8211 and 
9557), which contains the Exchange's disciplinary rules.\14\ Notably, 
General 5, Rule 8210 provides the Exchange with authority to require 
information from Exchange Members. The Exchange proposes to 
specifically exclude General 5, Rule 8211 and Rule 9557. Rule 8211 
relates to members submission of trade data. Rule 9557 relates to 
procedures for regulating activities under General 9, Sections 40 and 
41, which incorporate FINRA Rules 4110 and 4120, which relate to FINRA 
carrying or clearing members. Therefore, Rule 8211 and Rule 9557 are 
not relevant to underwriting activity.
---------------------------------------------------------------------------

    \14\ General 5, Rule 8001 provides that the Exchange and FINRA 
are parties to the FINRA Regulatory Contract (often referred to as a 
Regulatory Services Agreement (``RSA'')) pursuant to which FINRA has 
agreed to perform certain functions described in the Exchange's 
Rules on behalf of the Exchange. The Exchange does not anticipate 
that the proposed rule change would have any material impact on the 
current RSA.
---------------------------------------------------------------------------

    The Exchange also believes it is important to subject Limited 
Underwriting Members to General 9, Section 1 which includes general 
standards by which Members must abide. Specifically, of importance, 
General 9, Section 1(a) requires Members to observe just and equitable 
principles of trade. General 9, Section 20 requires Members to 
establish and maintain a system to supervise the activities of each 
registered representative and associated person that is reasonably 
designed to achieve compliance with applicable securities laws and 
regulations and with applicable Nasdaq rules. The Exchange believes it 
is important to apply this provision on supervision as it would provide 
the Exchange with authority to assess whether a Limited Underwriting 
Member has an adequate supervisory system and written supervisory 
procedures in place.
    Finally, the Exchange proposes to include Equity 7, Section 10 to 
Limited Underwriting Members because this section includes the 
membership and application fees applicable to Limited Underwriting 
Members. The Exchange proposes to avoid applying all those Exchange 
rules not specified in proposed General 3, Section 1031(c)(1) to 
Limited Underwriting Members in an effort to impose minimal burden on 
Limited Underwriting Members, while still allowing the Exchange to have 
regulatory authority over such members. Furthermore, the Exchange 
believes that the Exchange's rules that Limited Underwriting Members 
would not be subject to under the proposal primarily relate to trading 
activity and are, therefore, not relevant to the activities of Limited 
Underwriting Members.
    The Exchange proposes to include language in General 3, Section 
1031(c)(1) providing that, for purposes of interpreting and applying 
the rules to Limited Underwriting Members, references to ``Member,'' 
``Members,'' or ``membership'' shall be functionally equivalent to 
``Limited Underwriting Member,'' ``Limited Underwriting Members,'' or 
``limited underwriting membership'' respectively. The Exchange also 
proposes to include a

[[Page 49511]]

requirement, in General 3, Section 1031(c)(2), that Limited 
Underwriting Members and their Associated Persons shall at all times be 
members of FINRA.\15\
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    \15\ Limited Underwriting Members would, therefore, be eligible 
to waive-in to Exchange membership, as provided for in General 3, 
Section 1013(b). Prospective Limited Underwriting Members would need 
to submit a membership application (see supra note 9) in which they 
would select ``Waive-In Membership'' for the application type and 
``Limited Underwriting Member of NQX'' for the nature of intended 
activity. For ``waive-in'' applicants, the Exchange relies 
substantially upon FINRA's determination to approve the applicant 
for FINRA membership when the Exchange evaluates the applicant for 
Exchange membership.
---------------------------------------------------------------------------

    Finally, the Exchange proposes to exempt persons associated solely 
with a Limited Underwriting Member whose functions are related solely 
and exclusively to underwriting and who are registered with FINRA as an 
Investment Banking Representative \16\ from the requirement to register 
with the Exchange. The Exchange proposes to add such exemption to 
General 4, Section 1230(4).
---------------------------------------------------------------------------

    \16\ In FINRA Rule 1220(b)(5), FINRA describes the requirement 
for representatives to register as an ``Investment Banking 
Representative'' if his or her activities in the investment banking 
or securities business of a member involve: (i) advising on or 
facilitating debt or equity securities offerings through a private 
placement or a public offering, including but not limited to 
origination, underwriting, marketing, structuring, syndication, and 
pricing of such securities and managing the allocation and 
stabilization activities of such offerings, or (ii) advising on or 
facilitating mergers and acquisitions, tender offers, financial 
restructurings, asset sales, divestitures or other corporate 
reorganizations or business combination transactions, including but 
not limited to rendering a fairness, solvency or similar opinion.
---------------------------------------------------------------------------

Proposed Change to Equity Rules
    The Exchange proposes to exempt Limited Underwriting Members from 
the trading rights fee of $1,250 per month that is normally charged to 
Members because such Limited Underwriting Members would not be eligible 
to trade on the Exchange. Accordingly, the Exchange proposes to add 
language to Equity 7, Section 10(a) to specify that Limited 
Underwriting Members would not be charged the monthly trading rights 
fee. Limited Underwriting Members would be subject to a $2,000 
application fee (per Equity 7, Section 10(b)) and a $3,000 yearly 
membership fee (per Equity 7, Section 10(a)).
Implementation
    The Exchange would designate the proposed changes to be operative 
60 days after publication of the Commission's approval order of SR-
NASDAQ-2023-022 in the Federal Register. This delay will allow time for 
firms involved with upcoming IPOs to become Limited Underwriting 
Members, if they choose, and for companies planning IPOs to select 
alternative underwriters if their current firm is not, and does not 
intend to become, a Member or Limited Underwriting Member.
2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act,\17\ in general, and furthers the objectives of Section 
6(b)(5) of the Act,\18\ 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, by strengthening Nasdaq's ability to carry out its oversight 
responsibilities. It is also consistent with Section 6(b)(7) of the Act 
in that it provides for a fair procedure for prohibiting or limiting 
any person with respect to access to services offered by the Exchange 
or a Member thereof.\19\ As discussed above, the proposal would create 
a new, limited membership class for those firms seeking only to perform 
activity as the principal underwriter of an IPO on the Exchange (and 
not seeking access to trade via the Nasdaq Market Center) and require a 
company applying for initial listing in connection with a transaction 
involving an underwriter to have a principal underwriter that is a 
member or limited member of Nasdaq. The Exchange would apply specified 
rules to Limited Underwriting Members, as explained above. Such rules 
include general provisions and standards, membership and access rules, 
organization and administration rules, registration requirements, 
disciplinary rules, and certain fees. Creating this new membership 
class and subjecting principal underwriters to such specified rules 
supports fair and orderly markets, which protects investors and the 
public interest, consistent with Section 6(b)(5) of the Act. Notably, 
the proposal would subject Limited Underwriting Members to Nasdaq's 
disciplinary rules, which provides Nasdaq authority to require 
information from such underwriters (per General 5, Rule 8210), as well 
as other general rules, including the requirement to observe just and 
equitable principles of trade (per General 9, Section 1(a)) and the 
requirement to establish and maintain a system to supervise the 
activities of registered representatives and associated persons (per 
General 9, Section 20). Nasdaq believes that imposing these Nasdaq 
rules, as well as the other rules included in proposed Rule 1031(c)(1), 
on principal underwriters will strengthen Nasdaq's ability to carry out 
its oversight responsibilities and deter potential violative conduct, 
such as fraud or manipulation, thereby protecting investors and the 
public interest.
---------------------------------------------------------------------------

    \17\ 15 U.S.C. 78f(b).
    \18\ 15 U.S.C. 78f(b)(5).
    \19\ 15 U.S.C. 78f(b)(7).
---------------------------------------------------------------------------

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. The proposed changes to the 
Listing Rules will apply equally to all similarly situated companies 
applying for initial listing in connection with a transaction involving 
an underwriter on the Exchange. Likewise, the proposed changes to the 
General and Equity Rules, including to the membership rules, will apply 
equally to all similarly situated Applicants and Members and they will 
confer no relative advantage or disadvantage upon any category of 
Exchange Applicant or Member. Although the Exchange proposes to subject 
Limited Underwriting Members to a limited set of rules, the limited 
underwriting membership does not confer the same benefits as a standard 
Exchange membership. Namely, a Limited Underwriting Member would not be 
permitted to transact on the Nasdaq Market Center. Therefore, applying 
a limited ruleset to Limited Underwriting Members is justified. All 
Limited Underwriting Members would be subject to the same specified 
rules, as noted above. Moreover, the Exchange does not expect that its 
proposal will have an adverse impact on competition among exchanges for 
members. The Exchange believes the proposed rule changes, overall, will 
strengthen the Exchange's ability to carry out its role and 
responsibilities as a self-regulatory organization and deter potential 
violative conduct. As such, 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.

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.

[[Page 49512]]

III. Date of Effectiveness of the Proposed Rule Change and Timing for 
Commission Action

    Within 45 days of the date of publication of this notice in the 
Federal Register or within such longer period (i) as the Commission may 
designate up to 90 days of such date if it finds such longer period to 
be appropriate and publishes its reasons for so finding or (ii) as to 
which the Exchange consents, the Commission shall: (a) by order approve 
or disapprove such proposed rule change, or (b) institute proceedings 
to determine whether the proposed rule change should be 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 [email protected]. Please include 
file number SR-NASDAQ-2023-022 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-2023-022. 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 
a.m. and 3 p.m. Copies of the filing also will be available for 
inspection and copying at the principal office of the Exchange. Do not 
include personal identifiable information in submissions; you should 
submit only information that you wish to make available publicly. We 
may redact in part or withhold entirely from publication submitted 
material that is obscene or subject to copyright protection. All 
submissions should refer to file number SR-NASDAQ-2023-022 and should 
be submitted on or before August 21, 2023.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\20\
---------------------------------------------------------------------------

    \20\ 17 CFR 200.30-3(a)(12).
---------------------------------------------------------------------------

J. Matthew DeLesDernier,
Deputy Secretary.
[FR Doc. 2023-16110 Filed 7-28-23; 8:45 am]
BILLING CODE 8011-01-P
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