[Federal Register Volume 86, Number 15 (Tuesday, January 26, 2021)]
[Notices]
[Pages 7155-7158]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-01593]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-90955; File No. SR-NASDAQ-2021-002]


Self-Regulatory Organizations; The Nasdaq Stock Market LLC; 
Notice of Filing of Proposed Rule Change To Modify and Expand the 
Package of Complimentary Services Provided to Eligible Companies and 
Update the Values of Certain Complimentary Services

January 19, 2021.
    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 January 8, 2021, The Nasdaq Stock Market LLC (``Nasdaq'' or 
``Exchange'') filed with the Securities and Exchange Commission 
(``SEC'' or ``Commission'') the proposed rule change as described in 
Items I and II below, which Items have been prepared by the Exchange. 
The Commission is publishing this notice to solicit comments on the 
proposed rule change from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
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I. Self-Regulatory Organization's Statement of the Terms of Substance 
of the Proposed Rule Change

    The Exchange proposes to modify and expand the package of 
complimentary services provided to eligible companies and update the 
values of certain complimentary.
    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
    Nasdaq offers complimentary services under IM-5900-7 to companies 
listing on the Nasdaq Global and Global Select Markets in connection 
with an initial public offering in the United States, including 
American Depository Receipts (other than a company listed under IM-
5101-2), upon emerging from bankruptcy, in connection with a spin-off 
or carve-out from another company, in connection with a direct listing 
as defined in IM-5315-1 (including the listing of American Depository 
Receipts), or in conjunction with a business combination that satisfies 
the conditions in Nasdaq IM-5101-2(b) (``Eligible New Listings'') and 
to companies (other than a company listed under IM-5101-2) switching 
their listing from the New York Stock Exchange (``NYSE'') to the Global 
or Global Select Markets, or that have switched its listing from the 
NYSE and listed on Nasdaq under IM-5101-2 after the company publicly 
announced that it entered into a binding agreement for a business 
combination and that subsequently satisfies the conditions in IM-5101-
2(b) and lists on the Global or Global Select Market in conjunction 
with that business combination (``Eligible Switches'').\3\ Nasdaq 
believes that the complimentary service program offers valuable 
services to newly listing companies, designed to help ease the 
transition of becoming a public company or switching markets, and makes 
listing on Nasdaq more attractive to these companies. The services 
offered include a whistleblower hotline, investor relations website, 
disclosure services for earnings or other press releases, webcasting, 
market analytic tools, and may include market advisory tools such as 
stock surveillance (collectively the ``Service Package'').\4\
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    \3\ See Listing Rule IM-5900-7. Companies switching from a 
national securities exchange other than the NYSE are not eligible to 
receive complimentary services under IM-5900-7.
    \4\ In addition, all companies listed on Nasdaq receive other 
standard services from Nasdaq, including Nasdaq Online and the 
Market Intelligence Desk.
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    Currently, Nasdaq provides complimentary services from the Service 
Package to the Eligible New Listings based on the following tiers:
    Eligible New Listing Tier 1: An Eligible New Listing that has a 
market capitalization less than $750 million will receive the following 
complimentary services for two years: Whistleblower Hotline, Investor 
Relations website, $15,000 per year of Disclosure Services, Audio 
Webcasting and Market Analytic Tools for two users. The total retail 
value of these services is reflected in the existing rule as 
approximately $75,500 per year. In addition, one-time development fees 
of approximately $5,000 to establish the services in the first year 
will be waived.\5\
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    \5\ Listing Rule IM-5900-7(c)(1). In this proposed rule change, 
Nasdaq proposes to update the value of certain of the services and 
the approximate retail value of the package offered to each of the 
tiers of services.
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    Eligible New Listing Tier 2: An Eligible New Listing that has a 
market capitalization of $750 million or more but less than $5 billion 
will receive the following complimentary services for two years: 
Whistleblower Hotline, Investor Relations website, $20,000 per year of 
Disclosure Services, Audio Webcasting, Market Analytic Tools for two 
users and the choice of one Market Advisory Tool. The total retail 
value of these services is reflected in the existing rule as up to 
approximately $137,000 per year. In addition, one-time

[[Page 7156]]

development fees of approximately $5,000 to establish the services in 
the first year will be waived.\6\
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    \6\ Listing Rule IM-5900-7(c)(2).
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    Eligible New Listing Tier 3: An Eligible New Listing that has a 
market capitalization of $5 billion or more will receive the following 
complimentary services for two years: Whistleblower Hotline, Investor 
Relations website, $20,000 per year of Disclosure Services, Audio 
Webcasting, Market Analytic Tools for two users and the choice of two 
Market Advisory Tools. The total retail value of these services is 
reflected in the existing rule as up to approximately $181,000 per 
year. In addition, one-time development fees of approximately $5,000 to 
establish the services in the first year will be waived.\7\
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    \7\ Listing Rule IM-5900-7(c)(3).
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    Nasdaq also provides certain complimentary services from the 
Service Package to the Eligible Switches based on the following tiers:
    Eligible Switch Tier 1: An Eligible Switch that has a market 
capitalization less than $750 million will receive the following 
complimentary services for two years: Whistleblower Hotline, Investor 
Relations website, $15,000 per year of Disclosure Services, Audio 
Webcasting and Market Analytic Tools for two users. The total retail 
value of these services is reflected in the existing rule as 
approximately $75,500 per year. In addition, one-time development fees 
of approximately $5,000 to establish the services in the first year 
will be waived.\8\
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    \8\ Listing Rule IM-5900-7(d)(1).
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    Eligible Switch Tier 2: An Eligible Switch that has a market 
capitalization of $750 million or more but less than $5 billion will 
receive the following complimentary services for four years: 
Whistleblower Hotline, Investor Relations website, $20,000 per year of 
Disclosure Services, Audio Webcasting, Market Analytic Tools for three 
users and the choice of one Market Advisory Tool. The total retail 
value of these services is reflected in the existing rule as up to 
approximately $150,000 per year. In addition, one-time development fees 
of approximately $5,000 to establish the services in the first year 
will be waived.\9\
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    \9\ Listing Rule IM-5900-7(d)(2).
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    Eligible Switch Tier 3: An Eligible Switch that has a market 
capitalization of $5 billion or more will receive the following 
complimentary services for four years: Whistleblower Hotline, Investor 
Relations website, $20,000 per year of Disclosure Services, Audio 
Webcasting, Market Analytic Tools for four users and the choice of two 
Market Advisory Tools. The total retail value of these services is 
reflected in the existing rule as up to approximately $207,000 per 
year. In addition, one-time development fees of approximately $5,000 to 
establish the services in the first year will be waived.\10\
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    \10\ Listing Rule IM-5900-7(d)(3).
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    Based on Nasdaq's experience with offering the Service Package to 
the Eligible New Listings and Eligible Switches, as well as in response 
to changes in the competitive landscape, Nasdaq proposes to simplify 
the structure of the Service Package by eliminating Tier 3 for Eligible 
New Listings, extending the complimentary services period for the 
Eligible New Listings from two to three years and including Media 
Monitoring/Social Listening service, Virtual Event service, and certain 
ESG services, as described in more detail below, in the complimentary 
service package for Eligible New Listings and Eligible Switches.
    To improve transparency and ease the application of the rules, 
Nasdaq proposes to adopt Listing Rule IM 5900-7A to describe the 
current Service Package, applicable to eligible companies that list 
before the effective date of this proposed rule change. Listing Rule IM 
5900-7 is intended to be substantively identical to Listing Rule IM 
5900-7A, except as modified by this proposal (the ``New Service 
Package''). Accordingly, Listing Rule IM 5900-7 will describe the 
service package for eligible companies listing on or after the 
effective date of this SR-NASDAQ-2021-002, whereas Listing Rule IM 
5900-7A will describe the service package for eligible companies that 
listed before the effective date of this SR-NASDAQ-2021-002. To that 
end, Nasdaq proposes to update the title of Listing Rule IM-5700-7.
    Under the proposal, the New Service Package will include the Media 
Monitoring/Social Listening service. This service tracks coverage of 
company mentions, news and events across online and social media and 
has a retail value of approximately $12,000 per year. The New Service 
Package will also include a Virtual Event service. Through this service 
a company will receive access to a virtual event platform for one 
investor or capital market day presentation event. A company is 
eligible to receive this service once in the period during which the 
company is eligible to receive services from the New Service Package. 
This service has a retail value of approximately $20,400.
    Given the increased attention from shareholders and other 
stakeholders to Environmental, Social and Governance (ESG) disclosure, 
Nasdaq proposes to offer Eligible Switches and Eligible New Listings an 
ESG Core service. Through this service, companies will receive access 
to a software solution that will simplify the gathering, tracking, 
approving, managing and disclosing of ESG data, including the most 
universal and useful ESG metrics to provide insight into the 
sustainability performance of the company. This service has a retail 
value of approximately $20,000 per year. In addition, one-time 
development fees of approximately $1,000 to establish the product in 
the first year will be waived.\11\
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    \11\ The Service Package currently provides that one-time 
development fees of approximately $5,000 to establish the services 
in the first year will be waived for Eligible New Listings and 
Eligible Switches. With the additional waiver of one-time 
development fees of approximately $1,000, the New Service Package 
provides that one-time development fees of approximately $6,000 will 
be waived.
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    Nasdaq also proposes to offer Eligible New Listings and Eligible 
Switches that have a market capitalization of $750 million or more an 
ESG Education & Sector Benchmarking Services, whereby companies will 
receive access to ESG education, insight and sector benchmarks to help 
them understand the ESG landscape. The education provided will include 
insight into capital invested in ESG strategies, overview of ESG 
frameworks, insight into ESG rating providers and other ESG 
information. The sector benchmarks will provide transparency into 
aggregated ESG disclosure practices for the company's specified sector. 
This service has a retail value of approximately $30,000 per year.
    As such, under the proposal, Eligible New Listings and Eligible 
Switches that have a market capitalization less than $750 million will 
be eligible to receive the ESG Core Service. Eligible New Listings and 
Eligible Switches that have a market capitalization of $750 million or 
more will be eligible to receive the ESG Core Service and the ESG 
Education & Sector Benchmarking Service.
    The Exchange believes that offering the Media Monitoring/Social 
Listening service, the Virtual Event service, and the ESG services, as 
described above, to newly public companies will help them fulfill their 
responsibilities as public companies and provide information important 
for communicating with their investors. However, no company is required 
to use these services as a condition of listing. As is the case with 
other complimentary services, at the end of the package term, companies 
may

[[Page 7157]]

choose to renew these services or discontinue them. If a company 
chooses to discontinue the services, there would be no affect on the 
company's continued listing on the Exchange.
    Finally, Nasdaq proposes to update the values of the services 
contained in Listing Rules IM-5900-7, IM-5900-8, and proposed IM-5900-
7A to their current values. Depending on a company's market 
capitalization and whether it is an Eligible New Listing or an Eligible 
Switch, the total revised value of the services provided in the New 
Service Package ranges from $238,200 to $1,118,000, and one-time 
development fees of approximately $6,000 are waived.\12\
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    \12\ The exact values are set forth in proposed IM-5900-7, IM-
5900-8 and IM-5900-7A. Under the current rule the stated value of 
the services provided ranges from $151,000 to $828,000, and one-time 
development fees of approximately $5,000 are waived. In describing 
the total value of the services for companies that can select more 
than one market advisory tool, Nasdaq presumes that a company would 
use stock surveillance, which has an approximate retail value of 
$56,500, and global targeting, which has an approximate retail value 
of $48,000 as revised ($44,000 previously). Companies could, of 
course, select different combinations of the three services offered, 
but these other combinations would have lower total approximate 
retail values.
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    Nasdaq notes that no other company will be required to pay higher 
fees as a result of the proposed amendments and represents that 
providing this service will have no impact on the resources available 
for its regulatory programs.
    2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act,\13\ in general, and furthers the objectives of Section 
6(b)(5) of the Act,\14\ 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. It is also consistent with this provision because it is not 
designed to permit unfair discrimination between issuers. Nasdaq also 
believes that the proposed rule change is consistent with the 
provisions of Sections 6(b)(4) \15\ and 6(b)(8),\16\ in that the 
proposal is designed, among other things, to provide for the equitable 
allocation of reasonable dues, fees, and other charges among Exchange 
members and issuers and other persons using its facilities and that the 
rules of the Exchange do not impose any burden on competition not 
necessary or appropriate in furtherance of the purposes of the Exchange 
Act.
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    \13\ 15 U.S.C. 78f(b).
    \14\ 15 U.S.C. 78f(b)(5).
    \15\ 15 U.S.C. 78f(4).
    \16\ 15 U.S.C. 78f(8).
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    Nasdaq faces competition in the market for listing services,\17\ 
and competes, in part, by offering valuable services to companies. 
Nasdaq believes that it is reasonable to offer complimentary services 
to attract and retain listings as part of this competition. All 
similarly situated companies are eligible for the same package of 
services. Nasdaq previously created different tiers of services based 
on a market capitalization. Nasdaq believes that it is appropriate to 
offer different services based on a company's market capitalization 
given that larger companies generally will need more and different 
governance, communication and intelligence services.\18\
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    \17\ The Justice Department has noted the intense competitive 
environment for exchange listings. See ``NASDAQ OMX Group Inc. and 
Intercontinental Exchange Inc. Abandon Their Proposed Acquisition Of 
NYSE Euronext After Justice Department Threatens Lawsuit'' (May 16, 
2011), available at http://www.justice.gov/atr/public/press_releases/2011/271214.htm.
    \18\ Exchange Act Release No. 65963, 76 FR at 79265.
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    Nasdaq believes offering the ESG Core service and the ESG Education 
& Sector Benchmarking service which, in part, provide access to ESG 
education and promote disclosure of ESG data, including the most 
universal and useful ESG metrics to provide insight into the 
sustainability performance of companies promotes just and equitable 
principles of trade and protects investors and the public interest by 
allowing Nasdaq listed companies to enhance ESG disclosure relevant to 
shareholders investment decisions. Nasdaq believes that by making this 
service available more companies will seek to enhance their ESG 
disclosure to achieve these benefits. However, no company is required 
to use this service.
    Nasdaq believes that offering different ESG services based on a 
company's market capitalization is not unfairly discriminatory because 
larger companies generally will need more and different ESG services. 
The distinction based on market capitalization is also clear and 
transparent.
    Nasdaq believes that it is appropriate to eliminate the third tier 
for Eligible New Listings that have a market capitalization of $5 
billion or more because it simplifies the structure of the New Service 
Package by removing one level of discrimination among the Eligible New 
Listings.\19\ Nasdaq believes that the removal this tier is not 
unfairly discriminatory because all similarly situated companies are 
eligible for the same package of services.
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    \19\ Nasdaq does not propose changes to the tier structure for 
Eligible Switches.
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    Similarly, Nasdaq believes that offering Media Monitoring/Social 
Listening service and Virtual Event service, as described above, to 
newly public companies promotes just and equitable principles of trade 
and protects investors and the public interest by helping Eligible New 
Listings and Eligible Switches fulfill their responsibilities as public 
companies through enhanced stakeholder engagement. However, no company 
is required to use this service.
    Nasdaq believes that it is appropriate to offer complimentary 
services for a longer period to Eligible New Listings that list after 
approval of this proposal than the period for which such services are 
provided to companies already listed on Nasdaq. The purpose of the 
proposal is to attract future listings and this competitive purpose 
would not be served by providing the complimentary services for an 
extended period to companies that are already listed.
    In addition, the Exchange expects that companies that consider 
listing on Nasdaq after the proposal is approved will take the enhanced 
offering into account when choosing their listing market and budgeting 
for their needs that are met by the complimentary services, whereas 
existing listed companies will have made their market choice and 
undertaken their financial planning on the basis of the current 
services offering and will not in any way be harmed by the proposed 
change. Based on the above, the Exchange believes that, upon approval 
of this proposal, the complimentary services will be equitably 
allocated among issuers as required by Section 6(b)(4) of the Act and 
the proposal does not unfairly discriminate among issuers as required 
by Section 6(b)(5) of the Act.
    As a result of extending the complimentary services period for the 
Eligible New Listings from two to three years, an Eligible New Listing 
that has a market capitalization less than $750 million will receive 
the complimentary services for three years, whereas an Eligible Switch 
that has a market capitalization less than $750 million will continue 
to receive the complimentary services for two years. Nasdaq believes 
that this distinction is not unfairly discriminatory because an 
Eligible Switch that has a market capitalization less than $750 
million, generally, already received certain complimentary services 
while listed on the NYSE. In addition, the NYSE recently extended the 
period for the complimentary services provided to eligible new listings 
and eligible transfer

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companies from 24 months to 48 months.\20\ As stated above, Nasdaq 
faces competition in the market for listing services, and competes, in 
part, by offering valuable services to companies. Accordingly Nasdaq 
believes that it is reasonable to enhance complimentary services to 
attract Eligible New Listings as part of this competition.
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    \20\ Exchange Act Release No. 90466 (November 20, 2020), 85 FR 
76129 (November 27, 2020) (SR-NYSE-2020-94).
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    The Commission has previously indicated pursuant to Section 19(b) 
of the Exchange Act \21\ that updating the values of the services 
within the rule is necessary,\22\ and Nasdaq does not believe this 
update has an effect on the allocation of fees nor does it permit 
unfair discrimination, as issuers will continue to receive the same 
services, except for the additional services described above. Further, 
this update will enhance the transparency of Nasdaq's rules and the 
value of the services it offers companies, thus promoting just and 
equitable principles of trade. As such, the proposed rule change is 
consistent with the requirements of Section 6(b)(4) and (5) of the 
Exchange Act.
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    \21\ 15 U.S.C. 78s(b).
    \22\ See Exchange Act Release No. 72669 (July 24, 2014), 79 FR 
44234 (July 30, 2014) (SR-NASDAQ-2014-058) (footnote 39 and 
accompanying text: ``We would expect Nasdaq, consistent with Section 
19(b) of the Exchange Act, to periodically update the retail values 
of services offered should they change. This will help to provide 
transparency to listed companies on the value of the free services 
they receive and the actual costs associated with listing on 
Nasdaq.'').
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    Finally, Nasdaq notes that the proposed change to update the title 
in IM-5900-7 is consistent with Section 6(b)(5) of the Exchange Act 
because it will clarify the rule without making any substantive change.
    Nasdaq represents, and this proposed rule change will help ensure, 
that individual listed companies are not given specially negotiated 
packages of products or services to list, or remain listed, which the 
Commission has previously stated would raise unfair discrimination 
issues under the Exchange Act.\23\
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    \23\ See Exchange Act Release No. 79366, 81 FR 85663 at 85665 
(citing Securities Exchange Act Release No. 65127 (August 12, 2011), 
76 FR 51449, 51452 (August 18, 2011) (approving NYSE-2011-20)).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will 
impose any burden on competition not necessary or appropriate in 
furtherance of the purposes of the Act. As noted above, Nasdaq faces 
competition in the market for listing services, and competes, in part, 
by offering valuable services to companies. The proposed rule changes 
reflect that competition, but do not impose any burden on the 
competition with other exchanges. Other exchanges can also offer 
similar services to companies, thereby increasing competition to the 
benefit of those companies and their shareholders. Accordingly, Nasdaq 
does not believe the proposed rule change will impose any burden on 
competition that is not necessary or appropriate in furtherance of the 
purposes of the Exchange Act, as amended.

C. Self-Regulatory Organization's Statement on Comments on the Proposed 
Rule Change Received From Members, Participants, or Others

    No written comments were either solicited or received.

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

    Within 45 days of the date of publication of this notice in the 
Federal Register or within such longer period up to 90 days (i) as the 
Commission may designate 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 (http://www.sec.gov/rules/sro.shtml); or
     Send an email to rule-comments@sec.gov. Please include 
File Number SR-NASDAQ-2021-002 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-2021-002. This 
file number should be included on the subject line if email is used. To 
help the Commission process and review your comments more efficiently, 
please use only one method. The Commission will post all comments on 
the Commission's internet website (http://www.sec.gov/rules/sro.shtml). 
Copies of the submission, all subsequent amendments, all written 
statements with respect to the proposed rule change that are filed with 
the Commission, and all written communications relating to the proposed 
rule change between the Commission and any person, other than those 
that may be withheld from the public in accordance with the provisions 
of 5 U.S.C. 552, will be available for website viewing and printing in 
the Commission's Public Reference Room, 100 F Street NE, Washington, DC 
20549, on official business days between the hours of 10:00 a.m. and 
3:00 p.m. Copies of the filing also will be available for inspection 
and copying at the principal office of the Exchange. All comments 
received will be posted without change. Persons submitting comments are 
cautioned that we do not redact or edit personal identifying 
information from comment submissions. You should submit only 
information that you wish to make available publicly. All submissions 
should refer to File Number SR-NASDAQ-2021-002 and should be submitted 
on or before February 16, 2021.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\24\
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    \24\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-01593 Filed 1-25-21; 8:45 am]
BILLING CODE 8011-01-P


