How to IPO on the OTCQX

Posted by on August 11, 2016

The OTC Markets recently amended the requirements related to its corporate governance eligibility criteria for U.S. companies applying to the OTCQX in conjunction with an initial public offering. The amendment will allow a phase-in period to satisfy full compliance with the corporate governance requirements. The corporate governance amendments apply to U.S. and U.S. Premier applicants only and not international applicants.

Effective January 1, 2016, to list on OTCQX, U.S. companies are required to (i) have a minimum of 2 independent board members; (ii) have an audit committee comprised of a majority of independent directors; and (iii) conduct an annual shareholders meeting and submit annual financial reports to shareholders at least 15 calendar days prior to such meeting.

The new amendments which went into effect June 13, 2016, allow for a phase-in for compliance with these requirements for companies making application to the OTCQX in connection with its initial public offering and initial Form 211 application to FINRA. In particular: (i) at least one member of the board of directors and the audit committee must be independent at the time of the OTCQX application; and (ii) at least 2 members of the board of directors and a majority of the members of the audit committee must be independent at the later of 90 days after the company begins trading on the OTCQX or the company’s next shareholder meeting. Moreover, the company’s next shareholder meeting must be held within one year of the company joining OTCQX.

In the next few Lawcasts I will give a complete summary of the OTCQX listing requirements as in effect in August 2016 including both the January 2016 and June 2016 amendments. The OTCQX divides its listing criteria between U.S. companies and international companies, though they are very similar. The OTCQX has two tiers of quotation for U.S. companies: (i) OTCQX U.S. Premier which companies are also eligible to quote on a national exchange; and (ii) OTCQX U.S.; and two tiers for international companies: (i) OTCQX International Premier; and (ii) OTCQX International. Quotation is available for American Depository Receipts (ADR’s) or foreign ordinary securities of companies traded on a Qualifying Foreign Stock Exchange, and an expedited application process is available for such companies. The OTCQX also has specific listing criteria and rules for banks. OTC Markets also has the discretionary authority to allow quotation to substantially capitalized acquisition entities that are analogous to SPAC’s.