[Federal Register Volume 87, Number 133 (Wednesday, July 13, 2022)]
[Notices]
[Pages 41780-41788]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-14887]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-95220; File No. SR-NASDAQ-2022-027]


Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Order 
Instituting Proceedings To Determine Whether To Approve or Disapprove a 
Proposed Rule Change, as Modified by Amendment No. 1, To Modify Certain 
Pricing Limitations for Companies Listing in Connection With a Direct 
Listing With a Capital Raise

July 7, 2022

I. Introduction

    On March 21, 2022, The Nasdaq Stock Market LLC (``Nasdaq'' or the 
``Exchange'') filed with the Securities and Exchange Commission 
(``SEC'' or ``Commission''), pursuant to Section 19(b)(1) of the 
Securities Exchange Act of 1934 (``Exchange Act'') \1\ and Rule 19b-4 
thereunder,\2\ a proposed rule change to modify certain pricing 
limitations for companies listing in connection with a direct listing 
with a primary offering in which the company will sell shares itself in 
the opening auction on the first day of trading on the Exchange. The 
proposed rule change was published for comment in the Federal Register 
on April 8, 2022.\3\ On May 19, 2022, pursuant to Section 19(b)(2) of 
the Exchange Act,\4\ the Commission designated a longer period within 
which to either approve the proposed rule change, disapprove the 
proposed rule change, or institute proceedings to determine whether to 
disapprove the proposed rule change.\5\
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ See Securities Exchange Act Release No. 94592 (April 4, 
2022), 87 FR 20905 (April 8, 2022).
    \4\ 15 U.S.C. 78s(b)(2).
    \5\ See Securities Exchange Act Release No. 94947 (May 19, 
2022), 87 FR 31915 (May 25, 2022). The Commission designated July 7, 
2022, as the date by which it should approve, disapprove, or 
institute proceedings to determine whether to disapprove the 
proposed rule change.
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    On May 23, 2022, the Exchange filed Amendment No. 1 to the proposed 
rule change, which superseded the proposed rule change as originally 
filed. Amendment No. 1 was published for comment in the Federal 
Register on June 2, 2022.\6\ The Commission has received no comments on 
the proposal. This order institutes proceedings under Section 
19(b)(2)(B) of the Exchange Act \7\ to determine whether to approve or 
disapprove the proposed rule change, as modified by Amendment No. 1.
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    \6\ See Securities Exchange Act Release No. 94989 (May 26, 
2022), 87 FR 33558 (June 2, 2022) (``Notice'').
    \7\ 15 U.S.C. 78s(b)(2)(B).
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II. Description of the Proposal

    Nasdaq Listing Rule IM-5315-2 provides listing requirements for 
Nasdaq's Global Select Market for a company that has not previously had 
its common equity securities registered under the Exchange Act to list 
its common equity securities on the Exchange at the time of 
effectiveness of a registration statement \8\ pursuant to which the 
company will sell shares itself in the opening auction on the first day 
of trading on the Exchange (a ``Direct Listing with a Capital 
Raise'').\9\ Securities qualified for listing under Nasdaq Listing Rule 
IM-5315-2 must begin trading on the Exchange following the initial 
pricing through the mechanism outlined in Nasdaq Rule 4120(c)(9) and 
Nasdaq Rule 4753 for the opening auction, otherwise known as the Nasdaq 
Halt Cross.\10\ Currently, in the case of a Direct Listing with a 
Capital Raise, the Exchange will release the security for trading on 
the first day of listing if, among other things, the actual price 
calculated by the Nasdaq Halt Cross is at or above the lowest price and 
at or below the highest price of the price range established by the 
issuer in its effective registration statement \11\ (the ``Pricing 
Range Limitation'').
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    \8\ The reference to a registration statement refers to a 
registration statement effective under the Securities Act of 1933 
(``Securities Act'').
    \9\ A Direct Listing with a Capital Raise includes listings 
where either: (i) only the company itself is selling shares in the 
opening auction on the first day of trading; or (ii) the company is 
selling shares and selling shareholders may also sell shares in such 
opening auction. See Nasdaq Listing Rule IM-5315-2. See also 
Securities Exchange Act Release No. 91947 (May 19, 2021), 86 FR 
28169 (May 25, 2021) (order approving rules to permit a Direct 
Listing with a Capital Raise and adopting related rules concerning 
how the opening transaction for such listing will be effected) 
(``2021 Order''). The Exchange's rules provide for a company listing 
pursuant to a Direct Listing with a Capital Raise to list only on 
the Nasdaq Global Select Market.
    \10\ See Nasdaq Listing Rule IM-5315-2. ``Nasdaq Halt Cross'' 
means the process for determining the price at which Eligible 
Interest shall be executed at the open of trading for a halted 
security and for executing that Eligible Interest. See Nasdaq Rule 
4753(a)(4). ``Eligible Interest'' means any quotation or any order 
that has been entered into the system and designated with a time-in-
force that would allow the order to be in force at the time of the 
Nasdaq Halt Cross. See Nasdaq Rule 4753(a)(5). Pursuant to Nasdaq 
Rule 4120, the Exchange will halt trading in a security that is the 
subject of an initial public offering (or direct listing), and 
terminate that halt when the Exchange releases the security for 
trading upon certain conditions being met, as discussed further 
below. See Nasdaq Rule 4120(a)(7) and (c)(8).
    \11\ The Exchange states that references in the proposal to the 
price range established by the issuer in its effective registration 
statement refer to the price range disclosed in the prospectus in 
such effective registration statement. See Notice, supra note 6, 87 
FR at 33559 n.10. Throughout this order, we refer to this as the 
``disclosed price range.''

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[[Page 41781]]

    The Exchange has proposed to modify the Pricing Range Limitation to 
provide that the Exchange would release the security for trading if: 
(a) the actual price calculated by the Nasdaq Halt Cross is at or above 
the price that is 20% below the lowest price of the disclosed price 
range; or (b) the actual price calculated by the Nasdaq Halt Cross is 
at a price above the highest price of such price range. For the Nasdaq 
Halt Cross to execute at a price outside of the disclosed price range, 
the company would be required to publicly disclose and certify to the 
Exchange that the company does not expect that such price would 
materially change the company's previous disclosure in its effective 
registration statement and that its effective registration statement 
contains a sensitivity analysis explaining how the company's plans 
would change if the actual proceeds from the offering are less than or 
exceed the amount in the disclosed price range.\12\ The Exchange would 
calculate the 20% threshold below the disclosed price range based on 
the maximum offering price set forth in the registration fee table in 
the company's effective registration statement, which the Exchange 
argues is consistent with the Instruction to paragraph (a) of 
Securities Act Rule 430A.\13\ The Exchange has also proposed to make 
related conforming changes.
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    \12\ See proposed Nasdaq Rule 4120(c)(9)(B)(vii)d.2. The 
Exchange has proposed additional conditions, as discussed in more 
detail below, before the Nasdaq Halt Cross could proceed including a 
Post-Pricing Period and that the Price Volatility Constraint has 
been satisfied.
    \13\ See proposed Nasdaq Rule 4120(c)(9)(B). If the company 
provides an upper limit in its certification, that price would serve 
as the upper limit of the price range within which the Nasdaq Halt 
Cross could proceed. See proposed Nasdaq Rule 4120(c)(9)(B)(vii)d.2.
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    Currently Nasdaq Rule 4120(c)(9)(B) states that, notwithstanding 
the provisions of Nasdaq Rule 4120(c)(8)(A) and (c)(9)(A), in the case 
of a Direct Listing with a Capital Raise, for purposes of releasing 
securities for trading on the first day of listing, the Exchange, in 
consultation with the financial advisor to the issuer, will make the 
determination of whether the security is ready to trade. The Exchange 
will release the security for trading if: (i) all market orders will be 
executed in the Nasdaq Halt Cross; and (ii) the actual price calculated 
by the Nasdaq Halt Cross complies with the Pricing Range Limitation. 
The Exchange will postpone and reschedule the offering only if either 
or both of such conditions are not met.\14\ The Exchange states that if 
there is insufficient buy interest to satisfy the CDL Order \15\ and 
all other market orders or if the Pricing Range Limitation is not 
satisfied, the Nasdaq Halt Cross would not proceed and such security 
would not begin trading.\16\
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    \14\ See Nasdaq Rule 4120(c)(9)(B).
    \15\ A ``Company Direct Listing Order'' or ``CDL Order'' is a 
market order that may be entered only on behalf of the issuer and 
may be executed only in the Nasdaq Halt Cross for a Direct Listing 
with a Capital Raise. The CDL Order is entered without a price (with 
a price later set in accordance with the requirements of Nasdaq Rule 
4120(c)(9)(B)), must be for the quantity of shares offered by the 
issuer as disclosed in its effective registration statement, must be 
executed in full in the Nasdaq Halt Cross, and may not be canceled 
or modified. See Nasdaq Rule 4702(b)(16).
    \16\ See Notice, supra note 6, 87 FR at 33559. The Exchange 
represents that in such event, because the Nasdaq Halt Cross cannot 
be conducted, the Exchange would postpone and reschedule the 
offering and notify participants via a Trader Update that the Direct 
Listing with a Capital Raise scheduled for that date has been 
cancelled and any orders for that security that have been entered on 
the Exchange would be cancelled back to the entering firms. See id.
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    According to the Exchange, based on conversations it has had with 
companies and their advisors, the Exchange believes that some companies 
may be reluctant to use the existing rules for a Direct Listing with a 
Capital Raise because of concerns about the Pricing Range 
Limitation.\17\ The Exchange states it believes ``that the Pricing 
Range Limitation imposed on a Direct Listing with a Capital Raise (but 
not on a traditional IPO) increases the probability of a failed 
offering because the offering cannot proceed without some delay not 
only for the lack of investor interest, but also if investor interest 
is greater than the company and its advisors anticipated.'' \18\ 
According to the Exchange, the Exchange believes that there may be 
instances of offerings where the price determined by the Exchange's 
opening auction will exceed the highest price of the price range 
disclosed in the company's effective registration statement.\19\ The 
Exchange states that, under the existing rule, a security subject to a 
Direct Listing with a Capital Raise cannot be released for trading by 
the Exchange if the actual price calculated by the Nasdaq Halt Cross is 
above the highest price of the disclosed price range.\20\ The Exchange 
further states that, in this case, the Exchange would have to cancel or 
postpone the offering until the company amends its effective 
registration statement, and that, at a minimum, such a delay exposes 
the company to market risk of changing investor sentiment in the event 
of an adverse market event.\21\ In addition, the Exchange states that 
the determination of the public offering price of a traditional IPO is 
not subject to limitations similar to the Pricing Range Limitation for 
a Direct Listing with a Capital Raise, which, in the Exchange's view, 
could make companies reluctant to use this alternative method of going 
public despite its expected potential benefits.\22\
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    \17\ See id. The Exchange states that it believes a Direct 
Listing with a Capital Raise could maximize the chances of more 
efficient price discovery of the initial public sale of securities 
for issuers and investors, because, unlike in a traditional firm 
commitment underwritten initial public offering (``IPO'') the 
initial sale price is determined based on market interest and the 
matching of buy and sell orders in an auction open to all market 
participants. See id.
    \18\ See id. The Exchange states that if an offering cannot be 
completed due to lack of investor interest, there is likely to be a 
substantial amount of negative publicity for the company and the 
offering may be delayed or cancelled. See id.
    \19\ See id. at 33559-60.
    \20\ See id. at 33560.
    \21\ See id.
    \22\ See id.
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    The Exchange has proposed to modify the Pricing Range Limitation 
such that even if the actual price calculated by the Nasdaq Halt Cross 
is outside the disclosed price range, the Exchange would release a 
security for trading if the actual price at which the Nasdaq Halt Cross 
would occur is as much as 20% below the lowest price of the disclosed 
price range or above the highest price of the disclosed price range, 
provided all other necessary conditions are satisfied, and that the 
company has specified the quantity of shares registered, as permitted 
by Securities Act Rule 457.\23\ In such circumstances, the company's 
registration statement would be required to contain a sensitivity 
analysis explaining how the company's plans would change if the actual 
proceeds from the offering are less than or exceed the amount assumed 
in the disclosed price range, and, as stated above, the company would 
be required to certify to the Exchange that it has met this 
requirement.\24\ In addition, the company would be required to publicly 
disclose and certify to the Exchange prior to the beginning of the 
Display Only Period \25\ that the company does not expect that such 
offering price would materially change the company's previous 
disclosure in its effective registration statement.\26\ If the 
company's certification submitted to the Exchange in that regard 
includes an upside limit, the Exchange would not execute the Nasdaq 
Halt Cross if it would result in

[[Page 41782]]

an offering price above such limit.\27\ The Exchange states that the 
goal of these requirements is to have disclosure that allows investors 
to see how changes in share price ripple through critical elements of 
the disclosure.\28\
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    \23\ See id.
    \24\ See Notice, supra note 6, 87 FR at 33560.
    \25\ See Nasdaq Rule 4120(c)(7)(A) and proposed Nasdaq Rule 
4120(c)(9)(B)(iii)-(v) for a description of the ``Display Only 
Period.''
    \26\ See Notice, supra note 6, 87 FR at 33560.
    \27\ See id. The Exchange proposes to define the ``Price Range'' 
as the price range established by the issuer in its preliminary 
prospectus included in the effective registration statement. See 
proposed Nasdaq Rule 4120(c)(9)(B). In addition, the Exchange 
proposes to define the ``DLCR Price Range'' as the price range 
starting from the price that is at or above 20% below the lowest 
price of the Price Range and continuing above the highest price of 
the Price Range, with an upper limit if one is provided by the 
company in its certification. See proposed Nasdaq Rule 
4120(c)(9)(B)(vii)d.2.
    \28\ See Notice, supra note 6, 87 FR at 33560.
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    The Exchange states that it believes that its proposed approach is 
consistent with Securities Act Rule 430A and staff guidance, which, 
according to the Exchange, generally allow a company to price a public 
offering 20% outside of the disclosed price range without regard to the 
materiality of the changes to the disclosure contained in the company's 
registration statement.\29\ According to the Exchange, the Exchange 
believes such guidance also allows deviation above the price range 
beyond the 20% threshold if such change or deviation does not 
materially change the previous disclosure.\30\ The Exchange states 
that, accordingly, the Exchange believes that a company listing in 
connection with a Direct Listing with a Capital Raise can specify the 
quantity of shares registered, as permitted by Securities Act Rule 457, 
and, when an auction prices outside of the disclosed price range, use a 
Rule 424(b) prospectus, rather than a post-effective amendment, when 
either: (i) the 20% threshold noted in the instructions to Rule 430A is 
not exceeded, regardless of the materiality or non-materiality of 
resulting changes to the registration statement disclosure that would 
be contained in the Rule 424(b) prospectus, or (ii) there is a 
deviation above the price range beyond the 20% threshold noted in the 
instructions to Rule 430A if such deviation would not materially change 
the previous disclosure, in each case assuming the number of shares 
issued is not increased from the number of shares disclosed in the 
prospectus.\31\ The Exchange states that, for purposes of this rule, 
the 20% threshold would be calculated based on the maximum offering 
price set forth in the registration fee table, and that this method of 
calculation is consistent with the SEC Staff's guidance on Securities 
Act Rule 430A.\32\
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    \29\ See id. The Exchange states that Securities Act Rule 457 
permits issuers to register securities either by specifying the 
quantity of shares registered, pursuant to Rule 457(a), or the 
proposed maximum aggregate offering amount, and the Exchange 
proposes to require that companies selling shares through a Direct 
Listing with a Capital Raise will register securities by specifying 
the quantity of shares registered and not a maximum offering amount. 
See id. at 33560 n.17. The Exchange also states that the Exchange 
believes that the proposed modification of the Pricing Range 
Limitation is consistent with the protection of investors, because, 
according to the Exchange, this approach is similar to the pricing 
of an IPO where an issuer is permitted to price outside of the 
disclosed price range in accordance with the SEC Staff's guidance. 
See id. at 33563.
    \30\ See id. at 33560. The Exchange states that in a prior 
proposal that the Commission disapproved, the Exchange proposed 
different requirements based on whether the Nasdaq Halt Cross would 
occur at a price that was within 20% of the disclosed price range, 
but that the Exchange is eliminating this proposed distinction and 
instead proposing to treat uniformly all instances when the actual 
price of the Nasdaq Halt Cross would occur outside of the disclosed 
price range. See id. at 33560 n.16 (citing Securities Exchange Act 
Release No. 94311 (February 24, 2022), 87 FR 11780 (March 2, 2022)).
    \31\ See Notice, supra note 6, 87 FR at 33560.
    \32\ See id.
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    The Exchange states that the burden of complying with the 
disclosures required under federal securities laws, including providing 
any disclosure necessary to avoid any material misstatements or 
omissions, remains with the issuer.\33\ The Exchange further states 
that, in that regard, the Post-Pricing Period (as defined below), which 
is applicable in circumstances where the actual price calculated by the 
Nasdaq Halt Cross is outside of the disclosed price range, provides the 
company an opportunity, prior to the completion of the offering, to 
provide any additional disclosures that are dependent on the price of 
the offering, if any, or to determine and confirm to the Exchange that 
no additional disclosures are required under federal securities laws 
based on the actual price calculated by the Nasdaq Halt Cross.\34\
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    \33\ See id. The Commission previously stated that while 
Securities Act Rule 430A permits companies to omit specified price-
related information from the prospectus included in the registration 
statement at the time of effectiveness, and later file the omitted 
information with the Commission as specified in the rule, it neither 
prohibits a company from conducting a registered offering at prices 
beyond those that would permit a company to provide pricing 
information through a Securities Act Rule 424(b) prospectus 
supplement nor absolves any company relying on the rule from any 
liability for potentially misleading disclosure under the federal 
securities laws. See id. (citing Securities Exchange Act Release No. 
93119 (September 24, 2021), 86 FR 54262 (September 30, 2021)).
    \34\ See Notice, supra note 6, 87 FR at 33560-61.
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    The Exchange also proposes to adopt a new Price Volatility 
Constraint and disseminate information about whether the Price 
Volatility Constraint has been satisfied, which will indicate whether 
the security may be ready to trade.\35\ The Exchange states that prior 
to releasing a security for trading, the Exchange allows a ``Pre-Launch 
Period'' of indeterminate length, during which price discovery takes 
place.\36\ The ``Price Volatility Constraint'' would require that the 
Current Reference Price has not deviated by 10% or more from any 
Current Reference Price during the Pre-Launch Period within the 
previous 10 minutes.\37\ The Pre-Launch Period would continue until at 
least five minutes after the Price Volatility Constraint has been 
satisfied.\38\ The Exchange states that this change would provide 
investors with notice that the Nasdaq Halt Cross nears execution and 
allow a period of at least five minutes for investors to modify their 
orders, if needed, based on the Near Execution Price, prior to the 
execution of the Nasdaq Halt Cross and the pricing of the offering.\39\ 
The Exchange also states that to assure that the Near Execution Price 
is a meaningful benchmark for investors and that the offering price 
does not deviate substantially from the Near Execution Price, the 
Exchange proposes to require that the Nasdaq Halt Cross may execute 
only if the actual price calculated by the Nasdaq Halt Cross is no more 
than 10% below or above the Near Execution Price (the ``10% Price 
Collar''), in addition to the other existing conditions stated in 
proposed Nasdaq Rule 4120(c)(9)(B)(vii).\40\
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    \35\ See id. at 33561.
    \36\ See id.
    \37\ See id. See Nasdaq Rule 4753(a)(3) for a description of the 
``Current Reference Price.''
    \38\ See Notice, supra note 6, 87 FR at 33561.
    \39\ See id. The Exchange proposes to define ``Near Execution 
Price'' as the Current Reference Price at the time the Price 
Volatility Constraint has been satisfied, and to define the ``Near 
Execution Time'' as such time. See id.
    \40\ See id.
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    The Exchange states that an imbalance between buy and sell orders 
could sometimes cause the Current Reference Price to fall outside of 
the 10% Price Collar after the Price Volatility Constraint has been 
satisfied.\41\ According to the Exchange, such price fluctuations could 
be temporary and the Current Reference Price may return to and remain 
within the 10% Price Collar, or the price fluctuation could be lasting 
such that the Current Reference Price remains outside of the 10% Price 
Collar.\42\ The Exchange proposes to assess the Current Reference Price 
as compared to the 10% Price Collar 30 minutes after the Near Execution 
Time.\43\ If at that time the Current Reference Price is outside of the 
10% Price Collar, all requirements of the Pre-Launch Period would reset 
and

[[Page 41783]]

would need to be satisfied again.\44\ Alternatively, if at that time 
the Current Reference Price is within the 10% Price Collar, price 
formation would continue without limitations until the Exchange, in 
consultation with the financial advisor to the issuer, makes the 
determination that the security is ready to trade and the conditions in 
proposed Nasdaq Rule 4120(c)(9)(B)(vii) and (viii) are met, at which 
time the Pre-Launch Period would end.\45\
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    \41\ See id.
    \42\ See id.
    \43\ See id.
    \44\ See id. The Exchange states that once the Price Volatility 
Constraint has been satisfied anew, the Current Reference Price at 
such time would become the updated Near Execution Price and such 
time would become the Near Execution Time. See id. The Exchange 
further states that this process would continue iteratively if new 
resets are triggered, until the Nasdaq Halt Cross is executed or the 
offering is postponed. See id.
    \45\ See id.; proposed Nasdaq Rule 4120(c)(9)(B)(vii). The 
Exchange states that if at any time more than 30 minutes after the 
Near Execution Time the Current Reference Price falls outside of the 
10% Price Collar, all requirements of the Pre-Launch Period would 
reset and would need to be satisfied again. See Notice, supra note 
6, 87 FR at 33561.
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    According to the Exchange, given that there may be a Direct Listing 
with a Capital Raise that could price outside of the disclosed price 
range and that there may be no upside limit above which the Nasdaq Halt 
Cross could not proceed, the Exchange proposes to enhance transparency 
by providing readily available, real time pricing information to 
investors.\46\ To that end, the Exchange states that it would 
disseminate, free of charge, the Current Reference Price on a public 
website, such as Nasdaq.com, during the Pre-Launch Period and indicate 
whether the Current Reference Price is within the disclosed price 
range.\47\ Once the Price Volatility Constraint has been satisfied, the 
Exchange would also disseminate the Near Execution Price, the Near 
Execution Time, and the 30-minute countdown from such time.\48\ The 
Exchange states that, in this way, investors interested in 
participating in the opening auction would be informed when volatility 
has settled to a range that would allow the opening auction to take 
place, would be informed of the price range at which the auction would 
take place, and, if the price remains outside of that range for 30 
minutes, would have at least five minutes to reevaluate their 
investment decision.\49\
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    \46\ See Notice, supra note 6, 87 FR at 33561. The Exchange 
states that if the company's certification submitted to the Exchange 
includes an upside limit and the actual price calculated by the 
Nasdaq Halt Cross exceeds such limit, the Exchange will postpone and 
reschedule the offering. See id. at 33561 n.23.
    \47\ See id. at 33561.
    \48\ See id. The Exchange represents that the disclosure would 
indicate that the Near Execution Price and the Near Execution Time 
may be reset if the security is not released for trading within 30 
minutes of the Near Execution Time and the Current Reference Price 
at such time (or any time thereafter) is more than 10% below or more 
than 10% above the Near Execution Price. See id.
    \49\ See id.
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    The Exchange also proposes to prohibit market orders (other than by 
the company through its CDL Order) from the opening of a Direct Listing 
with a Capital Raise.\50\ The Exchange states that this would protect 
investors by assuring that investors only purchase shares at a price at 
or better than the price they affirmatively set, after having the 
opportunity to review the company's effective registration statement, 
including the sensitivity analysis describing how the company would use 
any additional proceeds raised.\51\ The Exchange states that, 
accordingly, an investor participating in a Direct Listing with a 
Capital Raise would make their initial investment decision prior to the 
launch of the offering by setting a price in their limit order above 
which they will not buy shares in the offering, but would also have the 
opportunity to reevaluate their initial investment decision during the 
price formation process of the Pre-Launch Period based on the Near 
Execution Price, and would have at least five minutes once the Near 
Execution Price has been set and before the offering may be priced by 
the Exchange to modify their order, if needed.\52\
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    \50\ See id.
    \51\ See id.
    \52\ See id.
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    In addition, the Exchange states that to protect investors and 
assure that they are informed about the attributes of a Direct Listing 
with a Capital Raise, the Exchange proposes to impose specific 
requirements on Nasdaq members with respect to a Direct Listing with a 
Capital Raise.\53\ These rules would require members to provide to a 
customer, before that customer places an order to be executed in the 
Nasdaq Halt Cross, a notice describing the mechanics of pricing a 
security subject to a Direct Listing with a Capital Raise in the Nasdaq 
Halt Cross, including information regarding the location of the public 
website where the Exchange would disseminate the Current Reference 
Price.\54\
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    \53\ See id. at 33562.
    \54\ See id.
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    The Exchange states that to assure that members have the necessary 
information to be provided to their customers, the Exchange proposes to 
distribute, at least one business day prior to the commencement of 
trading of a security listing in connection with a Direct Listing with 
a Capital Raise, an information circular to its members.\55\ This 
information circular would describe any special characteristics of the 
offering and the Exchange's rules that apply to the initial pricing 
through the mechanism outlined in Nasdaq Rule 4120(c)(9)(B) and Nasdaq 
Rule 4753 for the opening auction, including information about the 
notice that members must provide to their customers.\56\ This 
information circular would also describe other requirements that: (a) 
members use reasonable diligence in regard to the opening and 
maintenance of every account, to know (and retain) the essential facts 
concerning every customer, and concerning the authority of each person 
acting on behalf of such customer; (b) members in recommending 
transactions for a security subject to a Direct Listing with a Capital 
Raise have a reasonable basis to believe that (i) the recommendation is 
suitable for a customer given reasonable inquiry concerning the 
customer's investment objectives, financial situation, needs, and any 
other information known by such members, and (ii) the customer can 
evaluate the special characteristics, and is able to bear the financial 
risks, of an investment in such security; and (c) members cannot accept 
market orders to be executed in the Nasdaq Halt Cross.\57\ The Exchange 
states that these member requirements are intended to remind members of 
their obligations to ``know their customers,'' increase transparency of 
the pricing mechanisms of a Direct Listing with a Capital Raise, and 
help assure that investors have sufficient price discovery 
information.\58\
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    \55\ See id. The Exchange states that an information circular is 
an industry-wide, free service provided by the Exchange. See id. at 
33562 n.25.
    \56\ See id. at 33562.
    \57\ See id.; proposed Nasdaq Rule 4120(c)(9)(B)(i).
    \58\ See Notice, supra note 6, 87 FR at 33562.
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    The Exchange represents that in each instance of a Direct Listing 
with a Capital Raise, the Exchange's information circular would inform 
market participants that the auction could price up to 20% below the 
lowest price of the disclosed price range and would specify that price. 
The Exchange also represents that it would indicate in such circular 
whether or not there is an upside limit above which the Nasdaq Halt 
Cross could not proceed, based on the company's certification.\59\
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    \59\ See id. The Exchange states that it believes that investors 
have become familiar with the approach of pricing an IPO outside of 
the price range stated in an effective registration statement. See 
id. at 33565.
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    The Exchange states that to assure that the issuer has the ability, 
prior to the completion of the offering, to

[[Page 41784]]

provide any necessary additional disclosures that are dependent on the 
price of the offering, the Exchange proposes to introduce to the 
operation of the Nasdaq Halt Cross a brief Post-Pricing Period, in 
circumstances where the actual price calculated by the Nasdaq Halt 
Cross is outside of the disclosed price range.\60\ Specifically, in 
such circumstances, the Exchange would initiate a ``Post-Pricing 
Period'' following the calculation of the actual price.'' \61\ During 
the Post-Pricing Period, the issuer must confirm to the Exchange that 
no additional disclosures are required under the federal securities 
laws based on the actual price calculated by the Nasdaq Halt Cross. 
Further, during this period no additional orders for the security could 
be entered in the Nasdaq Halt Cross, and no existing orders could be 
modified.\62\ The Exchange states that the security would be released 
for trading immediately following the Post-Pricing Period.\63\ However, 
if the company cannot provide the required confirmation, then the 
Exchange would postpone and reschedule the offering.\64\
---------------------------------------------------------------------------

    \60\ See id. at 33562.
    \61\ See id.
    \62\ See id.
    \63\ See id.
    \64\ See id.
---------------------------------------------------------------------------

    The Exchange also proposes to clarify several provisions of 
existing rules by restating the provisions of Nasdaq Rule 4120(c)(8)(A) 
and (c)(9)(A) in a clear and direct manner in proposed Nasdaq Rule 
4120(c)(9)(B) without substantively changing the requirements.\65\ 
Specifically, the Exchange proposes to clarify the mechanics of the 
Nasdaq Halt Cross by specifying that the Exchange will initiate a 10-
minute Display Only Period only after the CDL Order has been entered 
and that the Exchange shall select price bands for purposes of applying 
the price validation test in the Nasdaq Halt Cross in connection with a 
Direct Listing with a Capital Raise.\66\ The Exchange proposes to 
clarify that the ``actual price,'' as the term is used in the rule, is 
the Current Reference Price at the time the system applies the price 
validation test.\67\
---------------------------------------------------------------------------

    \65\ See id.
    \66\ See id. The Exchange would select an upper price band and a 
lower price band with the default for an upper and lower price band 
set at zero. The Exchange represents that if a security does not 
pass the price validation test, the Exchange may select different 
price bands before recommencing the process to release the security 
for trading. See id.
    \67\ See id.
---------------------------------------------------------------------------

    Nasdaq Listing Rule IM-5315-2 provides that in determining whether 
a company listing in connection with a Direct Listing with a Capital 
Raise satisfies the Market Value of Unrestricted Publicly Held Shares 
\68\ for initial listing on the Nasdaq Global Select Market, the 
Exchange will deem such company to have met the applicable requirement 
\69\ if the amount of the company's Unrestricted Publicly Held Shares 
before the offering, along with the market value of the shares to be 
sold by the company in the Exchange's opening auction in the Direct 
Listing with a Capital Raise, is at least $110 million (or $100 
million, if the company has stockholders' equity of at least $110 
million). For this purpose, under current rules, the Market Value of 
Unrestricted Publicly Held Shares will be calculated using a price per 
share equal to the lowest price of the disclosed price range.\70\ The 
Exchange states that because the Exchange proposes to allow the opening 
auction to price up to 20% below the lowest price of the disclosed 
price range, the Exchange proposes to make a conforming change to 
Nasdaq Listing Rule IM-5315-2 to provide that the price used to 
determine such company's compliance with the required Market Value of 
Unrestricted Publicly Held Shares would be the price per share equal to 
the price that is 20% below the lowest price of the disclosed price 
range.\71\ The Exchange further states that this is the minimum price 
at which the company could sell its shares in the opening transaction 
for a Direct Listing with a Capital Raise and thus assures that the 
company will satisfy the listing requirements at any price at which the 
opening auction successfully executes.\72\
---------------------------------------------------------------------------

    \68\ See Nasdaq Listing Rule 5005(a)(23) and (45) for the 
definitions of ``Market Value'' and ``Unrestricted Publicly Held 
Shares,'' respectively.
    \69\ See Nasdaq Listing Rule 5315(f)(2).
    \70\ See Nasdaq Listing Rule IM-5315-2. The Exchange will 
determine that the company has met the applicable bid price and 
market capitalization requirements based on the same per share 
price. See id.
    \71\ See Notice, supra note 6, 87 FR at 33562.
    \72\ See id.
---------------------------------------------------------------------------

    The Exchange states that any company listing in connection with a 
Direct Listing with a Capital Raise would continue to be subject to, 
and required to meet, all other applicable initial listing 
requirements, including the requirements to have the applicable number 
of shareholders and at least 1,250,000 Unrestricted Publicly Held 
Shares outstanding at the time of initial listing, and the requirement 
to have a price per share of at least $4.00 at the time of initial 
listing.\73\ The Exchange also proposes to amend Nasdaq Listing Rule 
IM-5315-2 to specify that a company offering securities for sale in 
connection with a Direct Listing with a Capital Raise must register 
securities by specifying the quantity of shares registered, as 
permitted by Securities Act Rule 457(a), and that securities qualified 
for listing under Nasdaq Listing Rule IM-5315-2 must satisfy the 
additional requirements of Nasdaq Rule 4120(c)(9)(B).\74\
---------------------------------------------------------------------------

    \73\ See id. (citing Nasdaq Listing Rules 5315(e)(1) and (2) and 
5315(f)(1)).
    \74\ See proposed Nasdaq Listing Rule IM-5315-2.
---------------------------------------------------------------------------

    Finally, the Exchange has proposed to amend Nasdaq Rules 
4753(a)(3)(A) and 4753(b)(2) to conform the requirements for 
disseminating information and establishing the opening price through 
the Nasdaq Halt Cross in a Direct Listing with a Capital Raise to the 
proposed amendment to allow the opening auction to price as much as 20% 
below the lowest price of the disclosed price range.\75\ Specifically, 
the Exchange proposes changes to Nasdaq Rules 4753(a)(3)(A) and 
4753(b)(2) to make adjustments to the calculation of the Current 
Reference Price, which is disseminated in the Nasdaq Order Imbalance 
Indicator,\76\ and to the calculation of the price at which the Nasdaq 
Halt Cross will execute, for a Direct Listing with a Capital Raise. 
Under these rules currently, where there are multiple prices that would 
satisfy the conditions for determining the price, the fourth tie-
breaker for a Direct Listing with a Capital Raise is the price that is 
closest to the lowest price of the disclosed price range. The Exchange 
states that, to conform these rules to the proposed modification of the 
price range within which the opening auction would proceed, the 
Exchange proposes to modify the fourth tie-breaker for a Direct Listing 
with a Capital Raise to use the price closest to the price that is 20% 
below the lowest price of the disclosed price range.\77\
---------------------------------------------------------------------------

    \75\ See proposed Nasdaq Rules 4753(a)(3)(A)(iv)c. and 
4753(b)(2)(D)(iii).
    \76\ See Nasdaq Rule 4753(a)(3) for a description of the ``Order 
Imbalance Indicator.''
    \77\ See Notice, supra note 6, 87 FR at 33562-63.
---------------------------------------------------------------------------

III. Proceedings To Determine Whether To Approve or Disapprove SR-
NASDAQ-2022-027 and Grounds for Disapproval Under Consideration

    The Commission is instituting proceedings pursuant to Section 
19(b)(2)(B) of the Exchange Act to determine whether the proposal 
should be approved or disapproved.\78\ Institution of such proceedings 
is appropriate at this time in view of the legal and policy issues 
raised by the proposed rule change, as modified by Amendment No. 1, as 
discussed below. Institution of disapproval proceedings does not 
indicate that the Commission

[[Page 41785]]

has reached any conclusions with respect to any of the issues involved.
---------------------------------------------------------------------------

    \78\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

    Pursuant to Section 19(b)(2)(B) of the Exchange Act, the Commission 
is providing notice of the grounds for disapproval under consideration. 
The Commission is instituting proceedings to allow for additional 
analysis and input concerning the proposed rule change's consistency 
with the Exchange Act and, in particular, with Section 6(b)(5) \79\ of 
the Exchange Act, which requires, among other things, that the rules of 
a national securities exchange be designed to prevent fraudulent and 
manipulative acts and practices, to promote just and equitable 
principles of trade, to 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; and are not 
designed to permit unfair discrimination between customers, issuers, 
brokers, or dealers.\80\
---------------------------------------------------------------------------

    \79\ 15 U.S.C. 78f(b)(5).
    \80\ Id.
---------------------------------------------------------------------------

    The Commission has consistently recognized the importance of 
national securities exchange listing standards. Among other things, 
such listing standards help ensure that exchange-listed companies will 
have sufficient public float, investor base, and trading interest to 
provide the depth and liquidity necessary to promote fair and orderly 
markets.\81\
---------------------------------------------------------------------------

    \81\ The Commission has stated in approving national securities 
exchange listing requirements that the development and enforcement 
of adequate standards governing the listing of securities on an 
exchange is an activity of critical importance to the financial 
markets and the investing public. In addition, once a security has 
been approved for initial listing, maintenance criteria allow an 
exchange to monitor the status and trading characteristics of that 
issue to ensure that it continues to meet the exchange's standards 
for market depth and liquidity so that fair and orderly markets can 
be maintained. See, e.g., 2021 Order, supra note 9, 86 FR at 28172 
n.47; Securities Exchange Act Release Nos. 90768 (December 22, 
2020), 85 FR 85807, 85811 n.55 (December 29, 2020) (SR-NYSE-2019-67) 
(``NYSE 2020 Order''); 82627 (February 2, 2018), 83 FR 5650, 5653 
n.53 (February 8, 2018) (SR-NYSE-2017-30) (``NYSE 2018 Order''); 
81856 (October 11, 2017), 82 FR 48296, 48298 (October 17, 2017) (SR-
NYSE-2017-31); 81079 (July 5, 2017), 82 FR 32022, 32023 (July 11, 
2017) (SR-NYSE-2017-11). The Commission has stated that adequate 
listing standards, by promoting fair and orderly markets, are 
consistent with Section 6(b)(5) of the Exchange Act, in that they 
are, among other things, designed to prevent fraudulent and 
manipulative acts and practices, promote just and equitable 
principles of trade, and protect investors and the public interest. 
See, e.g., 2021 Order, supra note 9, 86 FR at 28172 n.47; NYSE 2020 
Order, 85 FR at 85811 n.55; NYSE 2018 Order, 83 FR at 5653 n.53; 
Securities Exchange Act Release Nos. 87648 (December 3, 2019), 84 FR 
67308, 67314 n.42 (December 9, 2019) (SR-NASDAQ-2019-059); 88716 
(April 21, 2020), 85 FR 23393, 23395 n.22 (April 27, 2020) (SR-
NASDAQ-2020-001).
---------------------------------------------------------------------------

    The Exchange is proposing to modify the rules concerning the 
opening transaction on the first day of trading for a Direct Listing 
with a Capital Raise so that the opening transaction is not constrained 
by the Pricing Range Limitation, which limits the price of the opening 
transaction to the price range disclosed in the issuer's effective 
registration statement. Instead, the proposal would allow the opening 
transaction to proceed, provided other requirements are satisfied, at 
or above the price that is as low as 20% below the lowest price in the 
disclosed price range; or at a price above the highest price of such 
price range.
    Specifically, under the proposal, to execute at a price outside of 
the disclosed price range, the company has to certify to Nasdaq and 
publicly disclose that the company does not expect that such price 
would materially change the company's previous disclosure in its 
effective registration statement and that the company's registration 
statement contains a sensitivity analysis explaining how the company's 
plans would change if the actual proceeds from the offering were less 
than or exceeded the amount assumed in such price range.
    In support of its proposal, the Exchange states that allowing an 
opening transaction to proceed at prices not within the disclosed price 
range is consistent with the protection of investors because it ``is 
similar to the pricing of an IPO where an issuer is permitted to price 
outside of the price range disclosed by the issuer in its effective 
registration statement.'' \82\ Nasdaq also states that various aspects 
of its proposal are designed to protect investors, including, among 
others, those intended to increase the transparency and information 
available to investors on the price discovery process during the 
opening auction, provide investors an opportunity to modify their 
orders after notice that the Nasdaq Halt Cross nears execution, and 
ensure that the offering price does not deviate substantially from the 
Near Execution Price.\83\ Nasdaq also states that allowing Direct 
Listings with a Capital Raise to price up to 20% below the lowest price 
and at a price above the highest price of the disclosed price range 
would be consistent with Chair Gensler's recent call to treat ``like 
cases alike.'' \84\
---------------------------------------------------------------------------

    \82\ See Notice, supra note 6, 87 FR at 33563.
    \83\ See generally id. at 33564-65.
    \84\ See id. at 33565.
---------------------------------------------------------------------------

    We have concerns about whether the Exchange has met its burden to 
demonstrate that its proposal to expand the conditions under which 
Direct Listings with a Capital Raise are permitted \85\ is consistent 
with the protection of investors and the public interest, and other 
relevant provisions under Section 6(b)(5) and the Exchange Act and the 
rules and regulations thereunder. Under existing Nasdaq rules that 
permit Direct Listings with a Capital Raise, such offerings are 
required to price within the price range disclosed in the issuer's 
effective registration statement. When these rules were approved in 
2021, the Commission considered that required feature and also stated 
that the related registration statements would include, among other 
disclosures, a bona fide price range.\86\ The Exchange has indicated 
that it believes that some companies may be reluctant to use the 
existing rules for a Direct Listing with a Capital Raise because of 
concerns about the Pricing Range Limitation.\87\ Permitting Direct 
Listings with a Capital Raise to price outside of the disclosed price 
range could increase the frequency of such offerings and may raise 
investor protection concerns.
---------------------------------------------------------------------------

    \85\ Under the Nasdaq rules for a Direct Listing with a Capital 
Raise approved by the Commission in May 2021, the actual price 
calculated by the Cross must be at or above the lowest price and at 
or below the highest price of the disclosed price range.
    \86\ See 2021 Order, supra note 9, 86 FR at 28174-75, 28177.
    \87\ See Notice, supra note 6, 87 FR at 33559.
---------------------------------------------------------------------------

    While the Exchange has indicated that the proposal is intended to 
treat like cases alike with respect to pricing flexibility, it has not 
addressed certain differences between listings that would occur under 
this proposed rule change and firm commitment underwritten initial 
public offerings on the Exchange that may affect investor protection, 
including the lack of a named underwriter,\88\ any challenges to

[[Page 41786]]

bringing claims under Section 11 of the Securities Act due to the 
potential assertion of tracing defenses,\89\ and how those differences 
could affect the consistency of the proposal with Section 6(b)(5) of 
the Exchange Act.\90\ It is not clear from the proposal what 
consideration, if any, the Exchange has given to addressing these 
issues, or why it believes the proposal is consistent with investor 
protection, as required by Section 6(b)(5) of the Exchange Act, in 
light of the pricing flexibility proposed by the Exchange.
---------------------------------------------------------------------------

    \88\ Section 2(a)(11) of the Securities Act defines 
``underwriter'' to mean ``any person who has purchased from an 
issuer with a view to, or offers or sells for an issuer in 
connection with, the distribution of any security, or participates, 
or has a direct or indirect participation in the direct or indirect 
underwriting of any such undertaking.'' Given this broad definition 
of ``underwriter,'' a financial advisor to an issuer engaged in a 
Direct Listing with a Capital Raise may, depending on the facts and 
circumstances including the nature and extent of the financial 
advisor's activities, be deemed a statutory ``underwriter'' with 
respect to the securities offering, with attendant underwriter 
liabilities. See 2021 Order, supra note 9, 86 FR at 28176. Whether 
or not any person would be considered a statutory underwriter would 
be evaluated based on the particular facts and circumstances, in 
light of the definition of underwriter contained in Section 
2(a)(11). In the context of a firm commitment underwritten initial 
public offering, Item 508 of Regulation S-K requires the 
underwriters to be named in the registration statement.
    \89\ Where a Securities Act registration statement, at the time 
of effectiveness, contains an untrue statement of a material fact or 
omits to state a material fact required to be stated therein or 
necessary to make the statements therein not misleading, Section 
11(a) of the Securities Act provides a cause of action to ``any 
person acquiring such security,'' unless it is proved that at the 
time of the acquisition the person knew of such untruth or omission. 
Courts have interpreted this statutory provision to permit 
aftermarket purchasers (i.e., those who acquire their securities in 
secondary market transactions rather than in the initial 
distribution from the issuer or underwriter) to recover damages 
under Section 11, but only if they can ``trace'' the acquired shares 
back to the offering covered by the false or misleading registration 
statement. See, e.g., In re Century Aluminum Co. Sec. Litig., 729 
F.3d 1104 (9th Cir. 2013). Tracing is not set forth in Section 11 
and is a judicially-developed doctrine. The Commission has 
previously stated that shareholders' ability to pursue claims 
pursuant to Section 11 of the Securities Act due to traceability 
issues are not exclusive to nor necessarily inherent in direct 
listings with a primary capital-raising component, and that this 
issue is potentially implicated any time securities that are not the 
subject of a recently effective registration statement trade in the 
same market as the shares issued pursuant to the registration 
statement. See 2021 Order, supra note 9, 86 FR at 28176. The Ninth 
Circuit has held that investors who purchase shares in a direct 
listing may bring claims pursuant to Section 11, even if they cannot 
prove that the shares they acquired were registered shares. See 
Pirani v. Slack Techs., Inc., 13 F.4th 940 (9th Cir. 2021).
    \90\ Tracing concerns may be more prevalent in direct listings 
than traditional underwritten initial public offerings. As compared 
to traditional firm commitment underwritten initial public offerings 
in which lock-up arrangements are routinely imposed, direct listings 
to date typically have not imposed lock-up arrangements. This raises 
a concern that there may be a heightened risk that investors in 
direct listings may face difficulties tracing their shares, 
potentially jeopardizing their ability to pursue Section 11 claims. 
See supra note 89. Given the limited judicial precedent addressing 
tracing requirements in the context of direct listings, and the 
typical absence of lock-up arrangements in connection with direct 
listings to date, we are considering whether the Exchange has met 
its burden of establishing that the proposal to allow a direct 
listing to proceed at a price outside of the disclosed price range 
is consistent with Section 6(b)(5) of the Exchange Act that requires 
the rules of the Exchange be designed to protect investors and the 
public interest.
---------------------------------------------------------------------------

    In a firm commitment underwritten initial public offering, issuers 
often adjust the price range disclosed in their registration statements 
prior to effectiveness in light of pricing feedback received from 
market analysts and potential investors. These revisions to the 
disclosed price range may provide valuable information to potential 
investors as to the issuer's valuation. If, under the proposal, the 
opening auction can proceed at any price above the disclosed price 
range, and up to 20% below the low end of the disclosed price range, it 
is not clear whether issuers pursuing Direct Listings with a Capital 
Raise would make similar revisions to the disclosed price range based 
on investor or market analyst sentiment, and whether the absence of any 
such corrective price signaling would detrimentally affect investors.
    In the absence of a named underwriter in a direct listing where the 
opening price is executed outside of the disclosed price range, there 
may not be an adequate assurance that a party who may meet the 
definition of underwriter will review the information disclosed in the 
registration statement and take the steps necessary to claim a ``due 
diligence'' defense. To assert such a defense, a party must establish 
that, after reasonable investigation, the party had reasonable ground 
to believe and did believe, at the time the registration statement 
became effective, that the statements therein were true and that there 
was no omission to state a material fact required to be stated therein 
or necessary to make the statements therein not misleading.\91\ 
Underwriters play a critical role in the securities offering process as 
gatekeepers to the public markets.\92\
---------------------------------------------------------------------------

    \91\ See U.S.C. 77k(b)(3).
    \92\ See Securities Act Release No. 7393 (February 20, 1997), 62 
FR 9276 (February 28, 1997) (``The due diligence efforts performed 
by underwriters, accounting professionals and others play a critical 
role in the integrity of our disclosure system.''); Securities Act 
Release No. 6335 (August 6, 1981), 46 FR 42015 (August 18, 1981) 
(``[T]he Securities Act imposes a high standard of conduct on 
specific persons, including underwriters and directors, associated 
with a registered public offering of securities. Under Section 11, 
they must make a reasonable investigation and have reasonable 
grounds to believe the disclosures in the registration statement are 
accurate.'').
---------------------------------------------------------------------------

    The Exchange's proposed expansion of its rules permitting Direct 
Listings with a Capital Raise could potentially result in increased 
regulatory arbitrage, if and to the extent that issuers and 
intermediaries, including financial advisors, are not subject to 
equivalent liability standards in the direct listings context as they 
would be in traditional firm commitment underwritten initial public 
offerings. Any ability of issuers or intermediaries to minimize 
potential liability through choosing a direct listing over other 
methods to become listed on the Exchange could be inconsistent with 
Section 6(b)(5) of the Exchange Act.
    Although financial advisors may, depending on facts and 
circumstances, be held liable as statutory underwriters, absent greater 
clarity as to a financial advisor's status as a statutory underwriter 
in listings that would occur under this proposed rule change, investors 
would have no way to know whether financial advisors named as assisting 
with the direct listing would face Section 11 liability for the 
disclosure in the registration statement. Investors also may assume 
that financial advisors would incur equivalent liability, without any 
assurance that such is the case. Some legal observers have raised 
concerns that, without clarity on whether financial advisors would be 
held liable as statutory underwriters, any due diligence may not be as 
robust as that performed by named underwriters in traditional initial 
public offerings.\93\ Less robust due diligence could result in reduced 
disclosure quality and lead investors to improperly value the 
securities offered under the proposed rules. As the proposed rules 
would permit direct listings to be conducted at prices outside of the 
disclosed price range, would investors be able to make reasonable 
pricing decisions without greater clarity as to whether financial 
advisors would face liability as statutory underwriters? Without 
increased clarity on this point, would the proposed rule change be 
inconsistent with investor protection and the public interest?
---------------------------------------------------------------------------

    \93\ See Tuch, Andrew F. and Seligman, Joel, The Further Erosion 
of Investor Protection: Expanded Exemptions, SPAC Mergers and Direct 
Listings (December 15, 2021), at 70-71, Washington University in St. 
Louis Legal Studies Research Paper No. 22-01-03, available at SSRN: 
https://ssrn.com/abstract=4020460 (questioning the extent of due 
diligence performed by financial advisors in direct listings); 
Horton, Brent J., Spotify's Direct Listing: Is It a Recipe for 
Gatekeeper Failure?, 72 SMU L. Rev. 177 (2019). In the NYSE 2020 
Order, the Commission stated that ``financial advisors to issuers in 
Primary Direct Floor Listings have incentives to engage in robust 
due diligence, given their reputational interests and potential 
liability, including as statutory underwriters under the broad 
definition of that term.'' NYSE 2020 Order, supra note 81, 85 FR at 
85815.
---------------------------------------------------------------------------

    There are a number of additional questions relating to investor 
protection and Securities Act liability that merit examination in 
connection with our consideration of whether the Exchange has met its 
burden to demonstrate its proposal is consistent with Section 6(b)(5) 
of the Exchange Act. It is not clear what role a financial advisor 
would perform, in relation to price range disclosures, in a direct 
listing where the offering can price outside of the disclosed price 
range. Would additional transparency into the functions performed by 
financial

[[Page 41787]]

advisors in a direct listing where the offering can price outside of 
the disclosed price range be necessary for investors to determine how 
much reliance to place on issuer disclosures?
    Would any tracing concerns be exacerbated, thus raising investor 
protection concerns, in the context of direct listings where the 
offering can price outside of the disclosed price range? \94\ What are 
the implications if the expansion of Direct Listings with a Capital 
Raise, as proposed by the Exchange, resulted in fewer investor 
protections in a direct listing? If under the proposal to modify the 
Pricing Range Limitation there is continued uncertainty as to whether a 
financial advisor would be liable as a statutory underwriter, is the 
liability of any other gatekeepers in the offering sufficient to 
protect investors?
---------------------------------------------------------------------------

    \94\ See notes 89 and 90, supra, and accompanying text. The 
Commission disapproved a prior proposal of Nasdaq to expand the 
direct listing price range. See Securities Exchange Act Release No. 
94311 (February 24, 2022). 87 FR 11780 (March 2, 2022) 
(``Disapproval Order''). In the Disapproval Order, the Commission 
stated that the Exchange did not respond to one commenter's 
concerns, among others, that investors in direct listings, including 
direct listings with a capital raise, are likely to continue to have 
fewer legal rights than investors in a traditional public offering 
and concerns relating to ``tracing'' share purchases for purposes of 
Section 11 claims. See Disapproval Order, 87 FR at 11785 n.82.
---------------------------------------------------------------------------

    The Commission also has concerns about the potential effect of the 
proposed rules on the usefulness of price range disclosure provided to 
investors in Securities Act registration statements.\95\ Given the 
possibility under the proposed rules that the offering might price far 
outside the disclosed price range, would issuers be less likely to 
update their disclosed price ranges, compared to firm commitment 
underwritten initial public offerings? \96\ Similarly, would disclosed 
price ranges for direct listings be less reliable as indicators of 
management's perceived valuation of the issuer? How would the ability 
to ultimately conduct the auction up to 20% below or anywhere above the 
disclosed price range affect issuer decisions as to what price range to 
disclose in the registration statement? Would this impact the 
usefulness of price range disclosure to potential investors or market 
analysts? If so, this raises concerns about the consistency of the 
proposal with investor protection and the public interest under Section 
6(b)(5) of the Exchange Act.
---------------------------------------------------------------------------

    \95\ Under the proposed rule change, to execute at a price 
outside of the disclosed price range, the company must certify to 
Nasdaq and publicly disclose that the company does not expect that 
such price would materially change the company's previous disclosure 
in its effective registration statement and that the company's 
registration statement contains a sensitivity analysis explaining 
how the company's plans would change if the actual proceeds from the 
offering were less than or exceeded the amount assumed in such price 
range.
    \96\ The Exchange has stated that its proposal to permit more 
flexibility as to pricing would allow Direct Listings with a Capital 
Raise to be treated similarly to other initial public offerings. See 
Notice, supra note 6, 87 FR at 33563, 33565.
---------------------------------------------------------------------------

    Finally, it is not clear whether the proposed changes would result 
in the Exchange using the minimum price at which the opening auction 
could occur as the per share price for purposes of evaluating whether 
the issuer satisfies the applicable market value of publicly held 
shares requirement and other applicable bid price and market 
capitalization requirements. The Exchange proposes to amend Nasdaq 
Listing Rule IM-5315-2 to provide that the Exchange would calculate the 
market value of unrestricted publicly held shares, as well as 
applicable bid price and market capitalization requirements, using a 
price per share equal to the price that is 20% below the lowest price 
of the price range disclosed by the issuer in its effective 
registration statement.\97\ The Exchange also proposes to specify in 
Nasdaq Rule 4120(c)(9)(B) that ``[t]he 20% threshold below the Price 
Range will be calculated based on the maximum offering price set forth 
in the registration fee table, consistent with the Instruction to 
paragraph (a) of Securities Act Rule 430A.'' \98\ Further, the Exchange 
states its belief that the proposed change to Nasdaq Listing Rule IM-
5315-2 for calculating the market value of unrestricted publicly held 
shares, bid price, and market capitalization conforms these rules to 
the modifications of the Pricing Range Limitation and ``is the minimum 
price at which the company could sell its shares in the Direct Listing 
with a Capital Raise transaction and so assure that the company will 
satisfy these requirements at any price at which the auction 
successfully executes.'' \99\ Is further clarification needed as to the 
precise manner of computing the 20% threshold under proposed Nasdaq 
Rule 4120(c)(9)(B) and whether that computation would lead to the same 
minimum price contemplated by the proposed revisions to Nasdaq Listing 
Rule IM-5315-2? Similarly, there are questions about whether the 
proposed change to the fourth-tie breaker in a Direct Listing with a 
Capital Raise that proposes to use ``the price that is 20% below the 
lowest price of the price range disclosed by the issuer in its 
effective statement'' to ``conform these rules to the modifications to 
the Pricing Range Limitation'' \100\ would also result in using the 
minimum price at which the opening auction could occur given the 
proposed changes described above in Nasdaq Rule 4120(c)(9)(B) for 
calculating the price that is 20% below the lowest price of the Price 
Range.
---------------------------------------------------------------------------

    \97\ See Notice, supra note 6, 87 FR at 33562.
    \98\ See id. at 33560.
    \99\ See id. at 33562.
    \100\ Id. at 33563.
---------------------------------------------------------------------------

    Under the Commission's Rules of Practice, the ``burden to 
demonstrate that a proposed rule change is consistent with the Exchange 
Act and the rules and regulations issued thereunder . . . is on the 
self-regulatory organization [`SRO'] that proposed the rule change.'' 
\101\ The description of a proposed rule change, its purpose and 
operation, its effect, and a legal analysis of its consistency with 
applicable requirements must all be sufficiently detailed and specific 
to support an affirmative Commission finding,\102\ and any failure of 
an SRO to provide this information may result in the Commission not 
having a sufficient basis to make an affirmative finding that a 
proposed rule change is consistent with the Exchange Act and the 
applicable rules and regulations.\103\
---------------------------------------------------------------------------

    \101\ Rule 700(b)(3), Commission Rules of Practice, 17 CFR 
201.700(b)(3).
    \102\ See id.
    \103\ See id.
---------------------------------------------------------------------------

    For these reasons, the Commission believes it is appropriate to 
institute proceedings pursuant to Section 19(b)(2)(B) of the Exchange 
Act \104\ to determine whether the proposal should be approved or 
disapproved.
---------------------------------------------------------------------------

    \104\ 15 U.S.C. 78s(b)(2)(B).
---------------------------------------------------------------------------

IV. Commission's Solicitation of Comments

    The Commission requests that interested persons provide written 
submissions of their views, data, and arguments with respect to the 
issues identified above, as well as any other concerns they may have 
with the proposal. In particular, the Commission invites the written 
view of interested persons concerning whether the proposal is 
consistent with Section 6(b)(5) or any other provision of the Exchange 
Act, or the rules and regulations thereunder. Although there do not 
appear to be any issues relevant to approval or disapproval that would 
be facilitated by an oral presentation of views, data, and arguments, 
the Commission will consider, pursuant to Rule 19b-4, any request for 
an opportunity to make an oral presentation.\105\
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    \105\ Section 19(b)(2) of the Exchange Act, as amended by the 
Securities Act Amendments of 1975, Public Law 94-29 (June 4, 1975), 
grants the Commission flexibility to determine what type of 
proceeding--either oral or notice and opportunity for written 
comments--is appropriate for consideration of a particular proposal 
by a self-regulatory organization. See Securities Act Amendments of 
1975, Senate Comm. on Banking, Housing & Urban Affairs, S. Rep. No. 
75, 94th Cong., 1st Sess. 30 (1975).

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[[Page 41788]]

    Interested persons are invited to submit written data, views, and 
arguments regarding whether the proposal should be approved or 
disapproved by August 3, 2022. Any person who wishes to file a rebuttal 
to any other person's submission must file that rebuttal by August 17, 
2022.
    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 [email protected]. Please include 
File Number SR-NASDAQ-2022-027 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-2022-027. 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 such 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-2022-027 and should be submitted 
on or before August 3, 2022. Rebuttal comments should be submitted by 
August 17, 2022.

    For the Commission, by the Division of Trading and Markets, 
pursuant to delegated authority.\106\
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    \106\ 17 CFR 200.30-3(a)(57).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2022-14887 Filed 7-12-22; 8:45 am]
BILLING CODE 8011-01-P


