NYSE Continues To Struggle With Direct Listing Rule Changes

by Laura Anthony, Esq. on September 18, 2020 in Uncategorized

Late last year, around the same time that the SEC approved Nasdaq rule changes related to direct listings on the Nasdaq Global Market and Nasdaq Capital Market (see HERE), the SEC rejected proposed amendments by the NYSE big board which would allow a company to issue new shares and directly raise capital in conjunction with a direct listing process.  Nasdaq had previously updated its direct listing rules for listing on the Market Global Select Market (see HERE).

The NYSE did not give up and in August of this year, after two more proposed amendments, the SEC finally approved new NYSE direct listing rules that allow companies to sell newly issued primary shares on its own behalf into the opening trade in a direct listing process.  However, after receiving a notice of intent to petition to prevent the rule change, the SEC has stayed the approval until further notice.  Still pushing forward, on September 4, the NYSE filed a motion with the SEC requesting that the stay be lifted and allowing the rule change to proceed.  The NYSE argued that the objection to the rule change lacks merit and that the arguments raised were already fully vetted in the lengthy rule approval process.

Shortly after the August rule change approval, software unicorn Palantir Technologies filed an S-1 with the SEC to go public via direct listing on the NYSE.  Although Palantir does not intend to sell securities under the new rule, but rather only filed for re-sale of existing shareholders’ equities, the much anticipated public transaction continues to be delayed.  However, it is likely that the delay is not related to the stalled rule change, but rather normal market conditions.

Not wanting the NYSE to have a competitive edge, Nasdaq has filed a similar proposal with the SEC to allow for companies to sell shares directly in conjunction with direct listings onto the Exchange.  I suspect that a ruling on that request will be delayed until the NYSE issue has been resolved.

Direct Listings in General

Traditionally, in a direct listing process, a company completes one or more private offerings of its securities, thus raising money up front, and then files a registration statement with the SEC to register the shares purchased by the private investors.  Although a company can use a placement agent/broker-dealer to assist in the private offering, it is not necessary.  A company would also not necessarily need a banker in the resale direct listing process.  A benefit to the company is that it has received funds much earlier, rather than after a registration statement has cleared the SEC.  For more on direct listings, including a summary of the easier process on OTC Markets, see HERE.

Most private offerings are conducted under Rule 506 of Regulation D and are limited to accredited investors only or very few unaccredited investors.  As a reminder, Rule 506(b) allows offers and sales to an unlimited number of accredited investors and up to 35 unaccredited investors—provided, however, that if any unaccredited investors are included in the offering, certain delineated disclosures, including an audited balance sheet and financial statements, are provided to potential investors. Rule 506(b) prohibits the use of any general solicitation or advertising in association with the offering. Rule 506(c) requires that all sales be strictly made to accredited investors and adds a burden of verifying such accredited status to the issuing company.  Rule 506(c) allows for general solicitation and advertising of the offering.  For more on Rule 506, see HERE.

Early investors take a greater risk because there is no established secondary market or clear exit from the investment.  Even where an investment is made in close proximity to an intended going public transaction, due to the higher risk, the private offering investors generally are able to buy shares at a lower valuation than the intended IPO price.  The pre-IPO discount varies but can be as much as 20% to 30%.

Accordingly, in a direct listing process, accredited investors are generally the only investors that can participate in the pre-IPO discounted offering round.  Main Street investors will not be able to participate until the company is public and trading.  Although this raises debate in the marketplace – a debate which has resulted in increased offering options for non-accredited investors such as Regulation A – the fact remains that the early investors take on greater risk and, as such, need to be able to financially withstand that risk.  For more on the accredited investor definition including the SEC’s recent amendments, see HERE.

The private offering, or private offerings, can occur over time.  Prior to a public offering, most companies have completed multiple rounds of private offerings, starting with seed investors and usually through at least a series A and B round.  Furthermore, most companies have offered options or direct equity participation to its officers, directors and employees in its early stages.  In a direct listing, a company can register all these shareholdings for resale in the initial public market.

In a direct listing there is a chance for an initial dip in trading price, as without an IPO and accompanying underwriters, there will be no price stabilization agreements.  Usually price stabilization and after-market support is achieved by using an overallotment or greenshoe option.  An overallotment option – often referred to as a greenshoe option because of the first company that used it, Green Shoe Manufacturing – is where an underwriter is able to sell additional securities if demand warrants same, thus having a covered short position.  A covered short position is one in which a seller sells securities it does not yet own, but does have access to.

A typical overallotment option is 15% of the offering.  In essence, the underwriter can sell additional securities into the market and then buy them from the company at the registered price, exercising its overallotment option.  This helps stabilize an offering price in two ways.  First, if the offering is a big success, more orders can be filled.  Second, if the offering price drops and the underwriter has oversold the offering, it can cover its short position by buying directly into the market, which buying helps stabilize the price (buying pressure tends to increase and stabilize a price, whereas selling pressure tends to decrease a price).

The new NYSE rule (and Nasdaq proposal) will change the direct listing process to allow a company to sell shares directly into the trading market and thus complete a capital raise at the same time as its going public transaction.  In essence, this direct listing hybrid is an IPO without an underwriter.

Direct Listing with Company Share Sales

A company that seeks to list on the NYSE must meet all of the minimum initial listing requirements, including specified financial, liquidity and corporate governance criteria, a minimum of 400 round lot shareholders, 1.1 million publicly held outstanding shares and a $4.00 share price. Direct listings are subject to all initial listing requirements applicable to equity securities and as such, in a direct listing process, the rules must specify how the exchange will calculate compliance with the initial listing standards including related to the price of a security, including the bid price, market capitalization, the market value of listed securities and the market value of publicly held shares.

In order to qualify for the NYSE big board in a direct listing process, a company must have a minimum of $100 million aggregate market value of publicly held shares.  In contrast, in an IPO, a company is only required to have a market value of publicly held shares of $40 million.  The reason for the much higher standard in a direct listing process is a concern related to the liquidity and market support in an opening auction process without attached underwriters.

As indicated, the NYSE rule change allows a company to sell shares directly into the market, without an underwriter, as part of a direct listing process.  In order to accomplish this, the NYSE created a new process dubbed an Issuer Direct Offering (IDO).  To get the process across the finish line, the last amendment (i) deleted a provision that would provide additional time for companies completing a direct listing to meet the initial listing distribution standards; (ii) added specific provisions related to the concurrent selling security holder and IDO process; (iii) added provisions related to participation in the direct listing auction when completing an IDO; and (iv) removed references to direct listing auctions in the rule related to Exchange-Facilitated Auctions.

The material aspects of the final NYSE rule change (i) modifies the provisions relating to direct listings to permit a primary offering in connection with a direct listing and to specify how a direct listing qualifies for initial listing if it includes both sales of securities by the company and possible sales by selling shareholders; (ii) modifies the definition of “direct listing”; and (iii) adds a definition of “Issuer Direct Offering (IDO)” and describes how it participates in a direct listing auction.

To clarify the difference between an IDO and selling security holder process, the NYSE has defined a shareholder-resale process as a “Selling Shareholder Direct Floor Listing.”  A pure Selling Shareholder Direct Floor Listing occurs where a company is listing without a related underwritten offering upon effectiveness of a registration statement registering only the resale of shares sold by the company in earlier private placements.

The Selling Shareholder Direct Floor Listing process retains the existing standards for direct listing and how the NYSE determines company eligibility including the market value of publicly held shares.  In particular, a company can meet the $100 million market value of publicly held shares requirement using the lesser of (i) an independent third-party valuation; and (ii) the most recent trading price of the company’s common stock in a trading system for unregistered securities that is operated by a national securities exchange or a registered broker-dealer (“Private Placement Market”).  In order to satisfy the $100 million valuation, the NYSE requires that the independent valuation comes in at a market value of at least $250 million.  In addition, the NYSE will only consider the Private Placement Market price if the equity trades on a consistent basis with a sustained history of several months, in excess of the market value requirement.  Shares held by directors, officers or 10% or greater shareholders are excluded from the calculation.

An IDO listing is one in which a company that has not previously had its common equity securities registered under the Exchange Act, lists its common equity securities on the NYSE at the time of effectiveness of a registration statement pursuant to which the company would sell shares itself in the opening auction on the first day of trading on the Exchange in addition to, or instead of, facilitating sales by selling shareholders.  This process is being called a “Primary Direct Floor Listing.”  In a Primary Direct Floor Listing, a company can meet the $100 million market value of publicly held shares listing requirement if it sells at least $100 million in market value of shares in the NYSE’s opening auction on the first day of trading.  Alternatively, where a company will sell less than $100 million of shares in the opening auction, the NYSE will determine that the company has met its market value of publicly held shares requirement if the aggregate market value of the shares the company will sell in the opening auction on the first day of trading and the shares that are publicly held immediately prior to the listing is at least $250 million.  In that case the market value is calculated using a price per share equal to the lowest price of the price range established by the company in its registration statement.

In order to facilitate the direct sales by the company, the NYSE has created a new type of buy-sell order called an “Issuer Direct Offering Order (IDO Order)” which would be a limit order to sell that is to be traded only in a Direct Listing Auction for a Primary Direct Floor Listing.  An IDO Order is subject to the following: (i) only one IDO Order may be entered on behalf of the company and only by one member organization; (ii) the limit price of the IDO Order must be equal to the lowest price of the price range in the effective registration statement; (iii) the IDO Order must be for the quantity of shares offered by the company as disclosed in the effective registration statement prospectus; (iv) an IDO Order may not be cancelled or modified; and (v) an IDO Order must be executed in full in the Direct Listing Auction.

A designated market maker effectuates the Direct Listing Auction manually and is responsible for setting the price (which involves many factors including working with the valuation financial advisor and the price set in the registration statement).  The Direct Listing Auction and thus Primary Direct Floor Listing would not be completed if (i) the price is below the minimum or above the highest price in the range in the effective registration statement or (ii) there is not enough interest to fill both the IDO Order and all better priced sell orders in full.  In other words, a Primary Direct Floor Listing can fail at the finish line.  To provide a little help in this regard, the NYSE has provided that an IDO Order that is equal to the auction price, will receive priority over other buy (sell) orders.

The NYSE has also added provisions regarding the interaction with a company’s valuation or other financial advisors and the designated market maker to ensure compliance with all federal securities laws and regulations, including Regulation M.  To provide an additional level of investor protection, and to satisfy the SEC, the NYSE retained FINRA to monitor compliance with Regulation M and other anti-manipulation provisions of the federal securities laws and NYSE rules. Finally, the NYSE made several changes to align definitions and rule cross-references with the new provisions and direct listing process.

In passing the rule, the SEC noted that after its several modifications, they were satisfied that the final rule helped ensure that the listed companies would have a sufficient public float, investor base, and trading interest to provide the depth and liquidity necessary to promote fair and orderly markets.