Nasdaq Listing Deficiencies And Delisting– Part 2

As 2022 and 2023 have continued to be extremely tough years for the capital markets many small cap companies find themselves failing to maintain the minimum continued listing requirements. I’ve recently written about those continued listing requirements, see HERE, and Nasdaq’s proposed rule changes for reverse split notifications as companies struggle to maintain the $1.00 minimum bid price requirement, see HERE.

These blogs provide a perfect segue for a deep dive into the Nasdaq deficiency notice and delisting process. In this first blog in the series, I provided an overview of deficiencies, deficiency notices, cure periods and compliance plans – see HERE. In this Part 2, I will review the hearing panel process followed by appeals and ultimately delisting.

Review of Deficiency Determinations by Hearing Panel

As noted in Part 1 of this series, Nasdaq deficiency notifications are one of four types:

Staff delisting determinations, which are notifications of deficiencies that, unless appealed, subject the Company to immediate suspension and delisting;
Notifications of deficiencies for which a company may submit a plan of compliance for staff review;
Notifications of deficiencies for which a company is entitled to an automatic cure or compliance period (generally 180 days); and
Public Reprimand Letters – which are not available for late periodic filings or the failure to timely hold a shareholder meeting.

When a company receives either a Delisting Determination or Public Reprimand Letter, it may request a review by a Hearing Panel in an oral or written hearing. Notifications of deficiencies allowing for a plan of compliance or with an automatic cure period, are not entitled to a Hearing Panel review until when/if they ripen into either a Delisting Determination or Public Reprimand Letter.

Procedures for Requesting a Hearing

A request for a hearing must be submitted in writing within seven calendar days of receiving a Delisting Determination or Public Reprimand Letter. A hearing fee of $20,000 must be paid within 15 days of the initial receipt of the Delisting Determination or Public Reprimand Letter.

Subject to the following special rules, the request for a hearing will stay the delisting action pending a written Hearing Panel decision:

Delisting Determination for failure to file SEC reports – the delisting action will only be stayed for 15 calendar days from the deadline to request a hearing (22 days total) unless the company specifically requests a further stay which is granted by the Hearing Panel. Notification of an additional stay will be communicated to the company no later than 15 calendar days following the deadline to request a hearing. If an additional stay is not granted, the securities will be immediately suspended.
No stay of suspension of trading will be granted where a Delisting Determination is a result of: (a) a company filing for bankruptcy or comparable foreign laws or who announces its board of directors has approved a plan of liquidation; or (b) a Nasdaq Global Markets listed SPAC that fails to meet the continued listing requirements or completes a transaction upon which the combined entities fail to meet the listing requirements.

If no hearing is requested within the seven calendar day time limit the company will be deemed to have waived the right to request a review of the Delisting Determination or Public Reprimand Letter and will be subject to immediate suspension and delisting.

Hearings are generally scheduled within 45 days of the request though that time varies depending on how busy the hearing department is. Moreover, Nasdaq must give at least ten days written advance notice of a hearing and deadlines for written submissions.

Contents of Request for Hearings and Submissions

All hearing requests should include an explanation as to why the requested relief is appropriate, including details regarding the company’s specific circumstances, including the likelihood that the company will regain compliance within any exception period that could subsequently be granted (such as by filing late SEC reports), the company’s past compliance history, the reasons for the deficiency, corporate events that may occur within the exception period, the company’s general financial status, and the company’s disclosures to the market.

In addition to the information in the initial hearing request, a company must provide a written submission. In addition to the information listed above, the company must include all legal arguments upon which it intends to rely. It is important that the legal arguments are complete as no new legal arguments will be allowed either in writing or in the hearing presentation. The submission may also include a plan of compliance, public documents or any other information in support of its position. A company may also supplement the submission with additional information, including in response to Nasdaq comments, provided however, no additional information may be submitted later than two business days prior to the hearing.

Presentation at Hearing

At an oral hearing, a company can make a presentation including testimony by officers, directors, accountants, counsel, investment bankers, or other persons, to make its case. However, no legal arguments that were not already raised in the pre-hearing submission will be allowed. In addition, the ability to introduce material facts and information that was not already included in the pre-hearing written submission is limited. That is, only information that the Hearing Panel solicits or for which the company can argue did not exist at the time of the original submission or for which such other exceptional or unusual circumstances apply will be allowed.

Exceptional or unusual circumstances would include material information that was not earlier discoverable by the Company despite all reasonable measures having been taken. The Hearing Panel has three business days to respond to a request to present new information.

Hearings are presided over by at least two panel members and are generally scheduled for one hour, so it is very important that the company fully prepares beforehand.

Hearing Panel’s Discretion

A Hearing Panel has the authority to: (i) grant an exception to the continued listing requirements for up to 180 days from the date of the Delisting Determination; (ii) suspend and delist the company’s securities; (iii) issue a Public Reprimand Letter where the deficiency is corporate governance or notification related (considering whether the violation was inadvertent, materially adversely affected shareholders’ interests, has been cured, whether the company reasonably relied on an independent advisor and a pattern of violations); (iv) find the company in compliance with the listing standards; (v) grant additional time to file late SEC reports for a period not to exceed 360 days from the report due date; or (vi) grant up to an additional 360 days to hold an annual meeting.

Hearing Panel Procedures

Following a hearing, the Hearing Panel will issue a written decision that may be appealed within 15 calendar days. The decision may also be reviewed by the Listing Council within 45 calendar days. If the decision is to delist and is not appealed, Nasdaq will begin the process right away including by filing a Form 25.

A Hearing Panel decision must be unanimous. If a unanimous decision cannot be reached, the company will be granted a second hearing in front of a new panel of three. The company can decide whether the hearing will be written or oral, in person or by telephone. The company can submit any documents or other written material in support of its request for review, including information not available at the time of the initial hearing. There is no fee for the new hearing. The second hearing decision only requires a majority vote of the Panel.

A company may also request that a Hearing Panel reconsider its decision if it can show that there was a mistake of material fact. The reconsideration must be requested within seven calendar days. However, a reconsideration request will not stay a delisting or suspension of trading unless the Hearing Panel specifically grants such a stay. A reconsidered decision must be rendered within 15 calendar days of the date of the original panel decision.

A Hearing Panel may also decide to put a company under monitoring for up to one year after regaining compliance where it deems the company a risk for future or continued violations. If a company is under a monitoring order and fails to maintain the listing standards, it will be immediately delisted. That is, it will not be allowed a cure period or to submit a plan of compliance. For a review of deficiencies that generally allow for cure periods or plans of compliance, see HERE.

In some cases, a monitoring order is mandatory. In particular, if a company is granted an exception (i.e. additional time) by the Hearings Panel for the failure to (i) maintain stockholders equity; (ii) timely file periodic reports; (iii) maintain the minimum bid price, a mandatory one year monitoring period will be imposed from the date of regaining compliance. If during that period, the company fails to maintain the particular listing standard for which it was granted additional time, it will be delisted without being given a cure period, extra time or the ability to submit a plan of compliance.

If a company that is being monitored receives a Delisting Determination, it may request a Hearing Panel review of that determination with the same procedures as any hearing.

Gayatri GuptaMarch 25, 2024

Nasdaq Compliance

The Nasdaq Stock Market features three tiers of listed companies, namely: (1) The Nasdaq Global Select Market, (2) The Nasdaq Global Market, and (3) The Nasdaq Capital Market. These tiers are characterized by progressively stringent listing requirements, with the Nasdaq Global Select Market setting the highest standards for initial listings and the Nasdaq Capital Market serving as the entry-level tier, particularly suitable for most small-cap issuers.

To list securities on Nasdaq, a company must fulfill minimum listing requirements, encompassing defined criteria related to financial performance, liquidity, and corporate governance. Nasdaq retains extensive discretion in the listing process and reserves the right to reject an application, even if the technical prerequisites are satisfied, if it deems such denial essential to safeguard the interests of investors and the public.

After securing a listing on Nasdaq, a company is obligated to adhere to ongoing listing standards. To initiate the listing process, a company seeking inclusion on Nasdaq must diligently complete and submit a comprehensive listing application to Nasdaq. This application should include specific documents and information as outlined by Nasdaq's requirements.

Typically, the application process spans a duration of four to six weeks. Once the application is submitted, a Nasdaq analyst is designated as the primary liaison with the company. Within two to three weeks of submission, the company can expect to receive an initial comment letter. The comment and review process persists until a decision is reached on the approval or denial of the application. Similar to filing with the SEC, a meticulously prepared Nasdaq application tends to attract fewer comments and facilitates a more streamlined process. Generally, the company's securities counsel assumes a leading role, serving as the primary contact for preparing the application and engaging in communication with Nasdaq.

Similarly to the SEC review process, Nasdaq conducts a thorough examination of publicly accessible information pertaining to a company. This encompasses, but is not limited to, SEC filings, the company's website, management communications and speeches, as well as press releases. The iterative nature of the review process typically doesn't necessitate a formal protocol, and communication is commonly facilitated through email correspondence and phone calls.

Listing Criteria For Nasdaq
For a company to list its securities on Nasdaq, it must satisfy the following criteria:

Specific Initial Requirements:
- Quantitative Standards: Meeting defined thresholds for both quantitative and qualitative factors.
- Qualitative Standards: Fulfilling certain qualitative benchmarks.
Continuing Requirements:
- Quantitative Criteria: Adhering to ongoing quantitative benchmarks.
- Qualitative Criteria: Maintaining specified qualitative standards.

The initial quantitative thresholds are typically set at a higher level than those required for continued listing. This distinction aims to ensure that companies achieve a sufficient level of maturity before being listed. Additionally, Nasdaq imposes rigorous corporate governance standards that listed companies must adhere to throughout their tenure on the exchange.

Before formally submitting a comprehensive listing application, a company has the option to pursue a preliminary listing eligibility review. In this stage, the Listing Qualifications Staff conducts a thorough examination of the company's public filings to assess its compliance with numerical listing requirements. Additionally, the team evaluates the company's adherence to corporate governance requirements outlined in the Marketplace Rules ("Rules"). This preliminary review provides valuable insights into the company's eligibility for listing on Nasdaq before committing to the full application process.

Upon completion of the preliminary review, the Listing Qualifications Staff will make an assessment regarding whether the company meets the numerical listing criteria. Additionally, any corporate governance or regulatory concerns raised during this phase will be considered to determine their impact on the listing approval. It's important to note that while the preliminary review provides insights, final approval necessitates the submission of a formal listing application. This application undergoes a thorough examination by the NASDAQ Listing Qualifications Staff. Furthermore, the final approval process involves satisfactory compliance with specific qualitative reviews. This includes an examination of the regulatory history of the company's officers, directors, and significant shareholders. Meeting these criteria is integral to obtaining the final approval for listing on Nasdaq.

Financial And Liquidity Requirements

    Requirements

    Equity Standard
    Market Value of Listed Standard
    Net Income Standard

    Listing Rules

    5505(a)
and
5505(b)(1)
    5505(a)
and
5505(b)(2)
    5505(a)
and
5505(b)(3)
    
    Stockholders Equity

    	$5 million
    	$4 million
    	$4 million
    
    The market value of publicly held shares

    $15 million
    $15 million
    $
      5 million
    
    Operating History

    	Two years
    N/A
    N/A
    
    The market value of listed securities

    N/A
    $50 million
    N/A
    
    Net income from continuing operations (in the latest fiscal
a year or in two of the last three
fiscal years)

    N/A
    N/A
    $750,000
    
    Publicly held shares

    	1 million
    	1 million
    	1 million
    
    Bid Price

    	$4
    	$4
    	$4)
    
    Closing Price

    	$3
    	$2
    	$43
    
    Corporate Governance

    Yes
    Yes
    Yes
    
    Total Shareholders

    300
    300
    300

Corporate Governance Requirements

Across all three tiers of the Nasdaq Stock Market, corporate governance requirements remain largely consistent. The categories encompassing corporate governance standards include:

Distribution of Annual or Interim Reports
Independent Directors
Audit Committee
Compensation Committee
Nomination of Directors
Code of Conduct
Annual Meetings
Solicitation of Proxies
Quorum
Conflict of Interest
Shareholder Approval
Voting Rights

These governance elements play a crucial role in ensuring transparency, accountability, and ethical conduct within listed companies, irrespective of the specific tier within the Nasdaq Stock Market.

Companies seeking listing on Nasdaq must adhere to specific corporate governance standards, including the following:

Compensation Committee with Independent Directors:
- The company is required to establish a compensation committee comprised of independent directors.
- The committee must consist of at least two members.
- Rule 5605(d)(2)(A) introduces an additional independence test for compensation committee members.
Responsibility for Executive Compensation:
- The compensation committee is tasked with determining or recommending to the entire board the compensation of the chief executive officer (CEO) and all other executive officers.

These standards are designed to ensure a level of independence and scrutiny in the decision-making processes related to executive compensation within the company.

The Application And Documents

The Nasdaq application package encompasses several key components:

Symbol Reservation Form:
- Used to request the reservation of a specific trading symbol for the company.
Listing Application:
- Requires supplemental documents and details about the company's financials, operations, and other pertinent information.
Listing Agreement:
- A formal agreement outlining the terms and conditions of the listing on Nasdaq.
Corporate Governance Certification:
- A certification affirming the company's commitment to meeting Nasdaq's corporate governance standards.
Initial Application Fee:
- Payable via check or wire transfer, this fee is a prerequisite for initiating the listing process.
Logo Submission Form:
- Used for submitting the company's logo for use in Nasdaq's materials.

These application forms are completed through the Nasdaq website listing center, utilizing the online platform to facilitate the submission of supplemental and supporting documents. It is advisable to thoroughly review all required paperwork in advance, ensuring that the necessary information is readily available before initiating the application process.

Symbol Reservation Form

The symbol reservation form is a concise, one-page electronic form where applicants input information for Nasdaq's consideration. Nasdaq symbols, limited to 1-5 characters, adhere to guidelines established by the Intermarket Symbols Reservation Authority (ISRA). The ISRA system is designed to organize symbols efficiently, prevent duplication, and reduce programming and operational complexities. The ISRA operates within the framework of the NMS Symbology Plan, a plan utilized by Nasdaq.

Key details about the symbol reservation process:

Symbol Choices:
- The form allows applicants to propose three symbol choices in order of preference.
- While Nasdaq generally honors the first choice if available, it retains the authority to assign, rescind, or reassign a trading symbol at its discretion.
ISRA and Nasdaq Authority:
- The ISRA and Nasdaq have overarching authority in managing the assignment of symbols.
Additional Information:
- The form captures essential details about the issuer and the planned public offering.
- Information may include the name of the attorney, lead underwriter (if applicable), CEO and CFO names, yearly revenues, company website, and the sector in which the company operates.

Completion of this symbol reservation form initiates the process of securing a trading symbol on Nasdaq, and it's essential to provide accurate and comprehensive information to facilitate this stage of the listing application.

The Application

The Nasdaq listing application process is comprehensive and varies based on the circumstances surrounding the listing sought. There are twelve distinct listing applications catering to different situations, including changes of control, switches from other exchanges or markets, spin-offs, and initial public offerings (IPOs). Each application, spanning approximately seven pages, collects detailed information about the company, covering areas such as address, contact and billing details, securities attorney and auditor information, transfer agent particulars, and the company's officers and directors. Specific information on the company's securities, including type, par value, and cusip number, is also required.

Furthermore, the application mandates disclosure of legal proceedings involving the company, its officers or directors, or significant shareholders over the past ten years. This encompasses inquiries, investigations, lawsuits, litigation, arbitrations, and other legal and administrative proceedings. Documents supporting the backup and final disposition of these matters must be provided.

Regarding private offerings within the prior six months, including bridge financings, shelf registrations, and Regulation S offerings, the company is required to disclose such activities. Additionally, the application delves into the company's background, posing questions to ensure compliance with seasoning rules.

While Nasdaq retains the right to request relevant supporting documents, specific documents are mandatory based on the application type. For an uplisting from an existing U.S. market, the application must include letters from three market makers confirming their commitment to making a market in the subject securities. Other required documents include a listing agreement, a logo submission form, a corporate governance certification form, regulatory correspondence over the past 12 months, and shareholder confirmation documents. Nasdaq often seeks confirmation from the company's transfer agent regarding the eligibility of the security for the direct registration program (DRS).

During the review of an up listing application, Nasdaq may request additional information, such as a Broadridge share range analysis and NOBO list, a certified shareholder list, details about mitigating any going concerns or opinions, income statement and/or balance sheet projections for the next 12 months, and confirmation of Sarbanes Oxley Section 302 and 906 certifications by the company, among other inquiries related to compliance and financial matters.

The Listing Agreement

The Listing Agreement is a concise document, spanning two pages, serving as a formal affirmation of the company's commitment to adhere to all rules and regulations set forth by the Nasdaq Stock Market. It includes provisions for indemnifying and holding Nasdaq harmless from liability. Notable points in the agreement include:

Compliance Assurance:
- The company explicitly agrees to comply with all rules and regulations stipulated by the Nasdaq Stock Market.
Indemnification Clause:
- The company indemnifies Nasdaq, meaning it undertakes to compensate or reimburse Nasdaq for any losses or damages incurred. This includes harm resulting from third-party trademark infringement claims related to the company's symbol and logo, as well as Nasdaq's use of the same.
Disclaimer of Warranty and Liability:
- The agreement contains a disclaimer of warranty and liability against Nasdaq for trading issues, with the exception of those resulting from gross negligence or willful misconduct.

This agreement establishes a clear framework for the relationship between the listed company and Nasdaq, emphasizing the company's commitment to regulatory compliance while providing indemnification for certain specified matters and delineating the scope of Nasdaq's liability.

Corporate Governance Certification Form

The corporate governance certification form certifies compliance with the governance requirements related to an audit committee, director nomination process, compensation committee, board composition, executive sessions, quorum, and codes of conduct. Where an exemption applies, the form requires specification of the exemption terms. The document specifies the different rules and exceptions in a check-the-box format.

Logo Submission Form

The logo submission form contains the guidelines for the logo and affirms Nasdaq’s rights to use the same. Nasdaq uses company logos in its marketing materials, on the MarketSite Video Wall and Tower, and websites.

Fees

Entry fees are based upon the aggregate number of shares to be listed at the time of initial listing, regardless of class, with a maximum cap of $75,000. Fees are assessed on the entry date in The Nasdaq Capital Market, except for $5,000, representing a non-refundable application fee. This fee must be submitted with the company’s application.

Nasdaq does not charge application or entry fees for any securities transferred from a national securities exchange.

Benefits Of Trading On An Exchange

There are many benefits to trading on an exchange instead of the OTC Markets. The most significant benefits to a business are the ability to attract analyst coverage and institutional investors and the corresponding increase in liquidity that comes with both. Stocks that trade on Nasdaq tend to have a lower bid/offer spread — again encouraging trading volume and liquidity. Exchange-traded securities are exempt from the penny stock definition, allowing more market maker and broker-dealer participation. As further explained below, a broker-dealer cannot recommend a penny stock transaction to its retail clients. Therefore, no analysts, financial advisors, or institutional investors make recommendations for purchases of penny stocks.

As an aside, this is one of the reasons that OTC Markets created the OTCQX market tier, which does not list penny stocks. It is also why the small-cap industry is pushing for a supported valid venture exchange (for further reading.

In today’s world, depositing stock and/or trade-in non-exchange traded securities is increasingly difficult. Despite the congressional efforts and SEC rulemaking in support of small-cap capital formation (for example, the JOBS Act, including the emerging growth company regulations, new Regulation A+ and Title III Crowdfunding and the new FAST Act), through enforcement and investigative proceedings, both the SEC and FINRA continue to apply pressure on broker-dealers, clearing firms and transfer agents to reduce the secondary trading and free flow of penny stocks. For more information on difficulties in depositing stocks.

Further On Penny Stocks

NASDAQ and NYSE MKT traded securities are exempted from the definition of a “penny stock” due to the initial and ongoing listing standards. Penny stock rules focus on broker-dealers’ activity in effectuating trades in penny stocks. The Securities Enforcement Remedies and Penny Stock Reform Act of 1990 (the “Penny Stock Act”) prohibits broker-dealers from effecting transactions in penny stocks unless they comply with the requirements of Section 15(h) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The rules promulgated thereunder, particularly Exchange Act rules 15g-1 through 15g-100 (the “penny stock rules”).

Section 15(h) of the Exchange Act provides that no broker or dealer may effectuate a customer’s purchase or sale of any penny stock unless such broker or dealer.

Approves the customer for the specific penny stock transaction and receives a written agreement to the transaction from the customer.
Furnishes the customer a risk disclosure document describing the risks of investing in penny stocks.
Discloses to the customer the current market quotation, if any, for the penny stock, including the bid and ask prices and the number of shares that apply to such bid and ask prices.
Discloses to the customer the amount of compensation the firm and its broker will receive for the trade.

In addition, after executing the sale, a broker-dealer must send its customer monthly account statements showing the market value of each penny stock held in the customer’s account.

Moreover, brokers and dealers subject to the penny stock rules are subject to additional disclosure requirements outlined in Rules 15g-2 through 15g-9. For my information on penny stocks and the rules affecting broker-dealer activity.

Securities Lawyer Blog

Nasdaq Listing Deficiencies And Delisting– Part 2

Listing Criteria For NasdaqFor a company to list its securities on Nasdaq, it must satisfy the following criteria:

Licensed in District of Columbia, State of Colorado, US District Court for the District of Columbia, US District Court for the District of Colorado, with pro hac vice Admission for the State of Maryland and Virginia.

Listing Criteria For Nasdaq
For a company to list its securities on Nasdaq, it must satisfy the following criteria: