COVID-19: NASDAQ Proposal to Permit Longer Compliance Periods with Continued Listing Requirements

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COVID-19: NASDAQ Proposal to Permit Longer Compliance Periods with Continued Listing Requirements

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Ralph V. De Martino, F. Alec Orudjev

In continuation of the comprehensive nationwide regulatory effort to mitigate adverse effects of the COVID-19 pandemic on U.S. capital markets and ensuing market volatility, the NASDAQ Stock Market has proposed listing rule changes designed to ease the compliance burden by offering temporary relief from the continued listing minimum $1.00 per share bid price (Minimum Bid Price, Listing Rule 5550(a)(2) and market value of publicly held shares (MVPHS, Listing Rule 5550(a)(5)) listing requirements through June 30, 2020.

Under this regulatory initiative, listed companies will be given additional time to regain compliance with these price-focused requirements as follows:

  • Delayed compliance timeline for new instances of non-compliance – while the NASDAQ Listing Qualifications staff will continue notifying companies that fall out of compliance with the Minimum Bid Price and MVPHS listing requirements, the compliance periods for such newly noticed companies will not commence until July 1, 2020.
  • Suspended compliance timeline for ongoing instance of non-compliance – under the terms of the relief, compliance periods for any previously notified companies will be suspended until and resume on July 1, 2020, following which, companies would receive the balance of any pending compliance period or Hearings Panel exception to come back into compliance with the applicable requirement. Companies that were in the NASDAQ Hearings process would return to that process at the same stage they were in when the tolling period began. If the company had received a temporary exception from the Hearings Panel before the tolling began, the company would receive the balance of the exception period beginning on July 1, 2020. It is noteworthy, however, that a company in the NASDAQ Hearings process would nonetheless be delisted and not get the benefit of the tolling period if the company has had an oral or written hearing before a Hearings Panel and the Panel has reached a determination to delist, even if the Hearings Panel has not issued the written decision required by Listing Rule 5815(d)(1) and Rule 5840(c) prior to the proposed rule change taking effect. Companies that are newly identified as noncompliant during the tolling period would have 180 days to regain compliance, beginning on July 1, 2020.

Under the NASDAQ continued listing requirements, in order to regain compliance with the Minimum Bid Price listing requirement, the bid price of a listed company’s shares must close at or above $1.00 per share for a minimum of 10 consecutive business days prior to the prescribed compliance date. This, in turn, can be achieved either as a result of interaction of market supply or demand, or (more frequently, in practice) following a reverse stock split of a company’s listed securities and sustained trading in above the Minimum Bid Price.

During the tolling period, the NASDAQ Listing Qualifications staff will continue to monitor listed securities for compliance during the tolling period. Finally, the NASDAQ response is expected to evolve and expand as the staff continues to assess the impact of the COVID-19 pandemic on listed companies.

A full copy of the rule can be found here.

Schiff Hardin’s Coronavirus Task Force will continue to address the significant business, legal, and economic challenges that accompany the COVID-19 pandemic. Stay tuned for additional insights on ongoing COVID-19 pandemic challenges and issues facing businesses.