[Federal Register Volume 86, Number 131 (Tuesday, July 13, 2021)]
[Notices]
[Pages 36807-36810]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-14800]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-92345; File No. SR-NASDAQ-2021-055]


Self-Regulatory Organizations; The Nasdaq Stock Market LLC; 
Notice of Filing and Immediate Effectiveness of a Proposed Rule Change 
To Amend Listing Rule 5910 To Establish Entry and All-Inclusive Annual 
Listing Fees for Companies Listing Under IM-5101-2 on the Nasdaq Global 
Market

July 7, 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 June 28, 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, 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.
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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 amend Listing Rule 5910 to establish Entry 
and All-Inclusive Annual Listing Fees for companies listing under IM-
5101-2 (companies whose business plan is to complete one or more 
acquisitions) on the Nasdaq Global Market.
    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.

[[Page 36808]]

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

1. Purpose
    Historically, companies whose business plan is to complete an 
initial public offering and engage in a merger or acquisition with one 
or more unidentified companies within a specific period of time, as 
described in IM-5101-2, (``Acquisition Companies'') would choose to 
list on the Nasdaq Capital Market instead of the Nasdaq Global Market, 
primarily because it has lower fees. However, nothing in Nasdaq's rules 
prohibits an Acquisition Company from listing on the Global Market.\3\ 
More recently, certain Acquisition Companies have sought to list on the 
Nasdaq Global Market. In particular, Nasdaq notes that a recent SEC 
statement about accounting treatment by Acquisition Companies \4\ has 
resulted in some Acquisition Companies adopting different accounting 
practices and, as a result, having insufficient equity to qualify for 
initial listing on the Nasdaq Capital Market. However, these companies 
could list on the Nasdaq Global Market or on competing marketplaces, 
which permit listing without any minimum equity requirement.\5\ Nasdaq 
wishes to revise the fees for Acquisition Companies listing on the 
Nasdaq Global Market so that its fees for these companies seeking to 
list on that market tier will be competitive with other markets where 
they can list.
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    \3\ Nasdaq Listing Rule 5310(i) provides that an Acquisition 
Company is not eligible to list on the Nasdaq Global Select Market.
    \4\ Staff Statement on Accounting and Reporting Considerations 
for Warrants Issued by Special Purpose Acquisition Companies 
(SPACs), by John Coates, Acting Director of the Division of 
Corporation Finance, and Paul Munter, Acting Chief Accountant (April 
12, 2021), available at: https://www.sec.gov/news/public-statement/accounting-reporting-warrants-issued-spacs.
    \5\ Nasdaq Rule 5405(b)(3) allows a company to list on the 
Nasdaq Global Market with no equity if it has a Market Value of 
Listed Securities of $75 million and a Market Value of Unrestricted 
Publicly Held Shares of $20 million, along with satisfying price, 
publicly held shares, round lot holder and market maker 
requirements. See also Section 102.06 of the NYSE Listed Company 
Manual.
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    As described below, Nasdaq believes that this fee change is 
appropriate because Acquisition Companies listed on the Nasdaq Global 
Market (``Global Market Acquisition Companies'') receive the same 
services as Acquisition Companies listed on the Nasdaq Capital Market 
(``Capital Market Acquisition Companies''). For example, Global Market 
Acquisition Companies are not eligible to receive services from Nasdaq 
under IM-5900-7, unlike other companies listing on the Nasdaq Global 
Market but like Capital Market Acquisition Companies. Moreover, Global 
Market Acquisition Companies require fewer regulatory resources than 
other companies listing on the Nasdaq Global Market and the same 
regulatory resources as Capital Market Acquisition Companies. 
Therefore, Nasdaq proposes to adopt Entry and All-Inclusive Annual 
Listing Fees for Global Market Acquisition Companies that are identical 
to the fees currently charged Capital Market Acquisition Companies.
    As proposed, Nasdaq would amend Rule 5910(a)(1) to include the 
following entry fee schedule applicable to Global Market Acquisition 
Companies, based on the number of shares outstanding: Up to 15 million 
shares outstanding, $50,000; over 15 million shares outstanding, 
$75,000. These are the same fees charged Capital Market Acquisition 
Companies under Rule 5920(a)(1).\6\
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    \6\ Nasdaq would also add sub-paragraph numbering to Rule 
5910(a)(1) to improve readability and move language about the 
deferral of the Entry Fee applicable to Acquisition Companies to new 
Rule 5910(a)(1)(B).
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    In addition, Nasdaq would amend Rule 5910(b)(2) to include the 
following All-Inclusive Annual Fee schedule applicable to Global Market 
Acquisition Companies, based on the number of shares outstanding: Up to 
10 million shares outstanding, $44,000; between 10,000,001 and 50 
million shares outstanding, $58,000; over 50 million shares 
outstanding, $79,000. These are the same fees charged Capital Market 
Acquisition Companies under Rule 5920(b)(2)(A).
    The proposed Entry Fee and All-Inclusive Annual Fee would be lower 
than the fees applicable to other companies listing on the Nasdaq 
Global Market. However, Nasdaq notes that Acquisition Companies differ 
in some important respects from traditional operating companies and 
believes that these differences make it reasonable to adopt separate 
fee schedules for Acquisition Companies.
    An Acquisition Company, when it first lists under IM-5101-2, will 
only be listed for a brief period of time while looking to complete a 
business combination. Under IM-5101-2, an Acquisition Company must 
complete a business combination within three years, although the 
governing documents of many Acquisition Companies require the business 
combination occur in a shorter time. If the Acquisition Company does 
not complete a business combination it must return the funds held in 
trust to the company's shareholders and dissolve the company. 
Accordingly, Acquisition Companies must assess the economic value of a 
listing on the basis of a potentially very brief period of listing. 
Given the much shorter average length of an Acquisition Company's 
listing, Nasdaq believes it is reasonable to charge Acquisition 
Companies listed on the Nasdaq Global Market lower Entry Fees than 
operating companies.
    Further, upon first listing, Acquisition Companies are not eligible 
to receive services from Nasdaq under IM-5900-7, unlike other companies 
listing on the Nasdaq Global Market, and therefore Nasdaq believes that 
it is reasonable to charge Acquisition Companies that list on the 
Nasdaq Global Market lower Entry Fees than operating companies.\7\ 
While Acquisition Companies are searching for a target to complete a 
business combination Nasdaq has observed that their shares typically 
trade less frequently than comparable operating companies.\8\ 
Accordingly, they are less reliant on the Exchange's trading platform 
and need less support from the Nasdaq Market Intelligence Desk and 
require fewer regulatory resources to monitor trading. In addition, in 
Nasdaq's experience their periodic filings tend to be simpler than 
those of operating companies, they issue fewer press releases prior to 
announcing their business combination, and their prices generally 
remain stable resulting in very few deficiencies related to their price 
or market value measures, all of which also leads to their requiring 
fewer regulatory resources.\9\ Accordingly, Nasdaq believes that it is 
reasonable to charge Acquisition Companies listed on the Nasdaq Global 
Market lower All-Inclusive Annual Fees than operating companies.
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    \7\ An Acquisition Company is offered certain services under IM-
5900-8 following the public announcement that the company entered 
into a binding agreement for the business combination, however these 
services are available to Acquisition Companies listed on either the 
Nasdaq Global Market or the Nasdaq Capital Market.
    \8\ This trading pattern will generally change once the 
Acquisition Company announces its business combination target.
    \9\ While Nasdaq has experienced few deficiencies recently, 
historically some Acquisition Companies became non-compliant with 
the holder requirement. See, e.g., Nasdaq Rule 5550(a)(3) (requiring 
at least 300 Public Holders for continued listing on the Nasdaq 
Capital Market).
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    Nasdaq does not expect the financial impact of this proposal to be 
material in terms of the level of listing fees collected from issuers. 
Specifically, Nasdaq notes that without the proposed fee changes, many 
of the Acquisition Companies that do not qualify for the Nasdaq Capital 
Market would list on a market with lower listing fees instead of

[[Page 36809]]

on Nasdaq, in which case Nasdaq would not collect any fees. Moreover, 
once an Acquisition Company completes a business combination it would 
be subject to the higher fee schedule applicable to operating 
companies.\10\ Accordingly, the Exchange believes that the proposed 
rule change will not impact the Exchange's resource commitment to its 
regulatory oversight of the listing process or its regulatory programs.
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    \10\ Nasdaq notes that its All-Inclusive Annual Fee is assessed 
on January 1 of each year and neither the Acquisition Company nor 
the post-business combination entity would pay any additional fees 
in the year of the business combination (irrespective of the form or 
structure of that combination). However, the post-business 
combination would begin paying the higher Annual Fee as of January 1 
of the following year.
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2. Statutory Basis
    The Exchange believes that its proposal is consistent with Section 
6(b) of the Act,\11\ in general, and furthers the objectives of 
Sections 6(b)(4) and 6(b)(5) of the Act,\12\ in particular, in that it 
provides for the equitable allocation of reasonable dues, fees and 
other charges among members and issuers and other persons using any 
facility, and is not designed to permit unfair discrimination between 
customers, issuers, brokers, or dealers.
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    \11\ 15 U.S.C. 78f(b).
    \12\ 15 U.S.C. 78f(b)(4) and (5).
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    As a preliminary matter, Nasdaq competes for listings with other 
national securities exchanges and companies can easily choose to list 
on, or transfer to, those alternative venues. As a result, the fees 
Nasdaq can charge listed companies are constrained by the fees charged 
by its competitors and Nasdaq cannot charge prices in a manner that 
would be unreasonable, inequitable, or unfairly discriminatory.
    The proposed fees are being implemented to avoid charging a higher 
fee to an Acquisition Company that is unable to list on the Nasdaq 
Capital Market but is able to list on the Nasdaq Global Market due to 
insufficient shareholders' equity and to enable Nasdaq to compete with 
other markets that can list such Acquisition Companies. Nasdaq believes 
it is equitable under Section 6(b)(4) of the Act \13\ to charge Global 
Market Acquisition Companies the same fees as Capital Market 
Acquisition Companies given that they are treated the same regardless 
of whether they are listed on the Global or Capital Market. For 
example, as described below, neither is eligible to receive services 
upon first listing, each receive identical services from Nasdaq upon 
announcing a business combination and each uses similar regulatory 
resources.
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    \13\ 15 U.S.C. 78f(b)(4).
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    Moreover, the Exchange believes that the proposal is not unfairly 
discriminatory, because Acquisition Companies are shell companies with 
no business operations, and, while searching for a target, their shares 
trade less frequently on the Exchange than operating companies. In 
Nasdaq's experience, Acquisition Companies are less reliant on the 
Exchange's trading platform and need less support from the Nasdaq 
Market Intelligence Desk and require fewer regulatory resources to 
monitor trading. In addition, in Nasdaq's experience, their periodic 
filings tend to be simpler than those of operating companies, they 
issue fewer press releases prior to announcing their business 
combination, and their prices generally remain stable resulting in very 
few deficiencies related to their price or market value measures, all 
of which also leads to their requiring fewer regulatory resources. 
Further, Acquisition Companies are not eligible to receive services 
from Nasdaq under IM-5900-7, unlike other companies listing on the 
Nasdaq Global Market. While an Acquisition Company is offered certain 
services under IM-5900-8 following the public announcement that the 
company entered into a binding agreement for the business combination, 
these services are available to Acquisition Companies listed on either 
the Nasdaq Global Market or the Nasdaq Capital Market. Therefore, 
Nasdaq believes that it is appropriate, and not unfairly 
discriminatory, to charge lower fees to Global Market Acquisition 
Companies than are charged to operating companies listed on the Nasdaq 
Global Market.
    Finally, Nasdaq competes for listings with the New York Stock 
Exchange, which has adopted lower fees for Acquisition Companies than 
for operating companies \14\ and can list certain Acquisition Companies 
that have insufficient shareholders' equity to list on the Nasdaq 
Capital Market, but can list on the Nasdaq Global Market. Nasdaq 
believes that this competition is a non-discriminatory reason to reduce 
the fees for Acquisition Companies seeking to list on the Nasdaq Global 
Market.
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    \14\ See Section 902.11 of the NYSE Listed Company Manual, 
imposing a flat $85,000 Listing Fee for an Acquisition Company and 
providing a limit of $85,000 on annual fees payable by an 
Acquisition Company. Under NYSE Listing Rules, a SPAC can list 
without regard to the amount of its stockholders' equity.
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    For the foregoing reasons, the Exchange believes that the proposal 
is consistent with the Act.

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 new fee schedule will be available to all similarly 
situated issuers on the same basis. The Exchange does not believe that 
the proposed fees will have any meaningful effect on the competition 
among issuers listed on the Exchange.
    The Exchange operates in a highly competitive market in which 
issuers can readily choose to list new securities on other exchanges 
and transfer listings to other exchanges if they deem fee levels at 
those other venues to be more favorable. Because competitors are free 
to modify their own fees in response, and because issuers may change 
their listing venue, the Exchange does not believe its proposed fee 
change can impose any burden on intermarket competition. Nasdaq notes 
that the New York Stock Exchange is its primary competitor for listing 
Acquisition Companies and that market has already adopted a lower fee 
for Acquisition Companies than for operating companies.\15\
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    \15\ Id.
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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

    The foregoing rule change has become effective pursuant to Section 
19(b)(3)(A)(ii) of the Act.\16\
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    \16\ 15 U.S.C. 78s(b)(3)(A)(ii).
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    At any time within 60 days of the filing of the proposed rule 
change, the Commission summarily may temporarily suspend such rule 
change if it appears to the Commission that such action is: (i) 
Necessary or appropriate in the public interest; (ii) for the 
protection of investors; or (iii) otherwise in furtherance of the 
purposes of the Act. If the Commission takes such action, the 
Commission shall institute proceedings to determine whether the 
proposed rule should be approved or disapproved.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and 
arguments concerning the foregoing, including whether the proposed rule

[[Page 36810]]

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-2021-055 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-2021-055. 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-2021-055 and should be submitted 
on or before August 3, 2021.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\17\
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    \17\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-14800 Filed 7-12-21; 8:45 am]
BILLING CODE 8011-01-P


