Yesterday, the U.S. Court of Appeals for the Fifth Circuit vacated the SEC’s approval of Nasdaq’s board diversity disclosure rules. While the SEC has not yet indicated if it will appeal, Nasdaq has begun notifying listed companies that it does not intend to seek further review and as a result, companies will no longer be required to follow Nasdaq’s board diversity disclosure rules.

By Brandon Friedman and Howard Berkenblit

The Nasdaq Stock Market is temporarily providing an exception from shareholder approval requirements for certain common stock issuances, permitting companies to raise capital quickly to continue running their businesses. The exception is effective immediately and valid for transactions entered into through June 30, 2020 (and completed within 30 days).

The exception applies to shareholder approvals for the issuance of common stock (or securities convertible or exercisable into common stock) in connection with an issuance of 20% or more of pre-transaction shares outstanding at a price less than the minimum price, as defined by Nasdaq rules.

However, reliance on the exception must be publicly announced and the exception is limited to situations where the need for the transaction is due to circumstances related to COVID-19. In addition, the exception only applies to circumstances where the delay in securing shareholder approval would have a material adverse impact on the company’s ability to maintain operations under its pre-COVID-19 business plan, result in workforce reductions, adversely impact the company’s ability to undertake new initiatives in response to COVID-19, or seriously jeopardize the financial viability of the business.

https://www.sec.gov/rules/sro/nasdaq/2020/34-88805.pdf

By Amiti Rothstein and Howard Berkenblit

Effective April 16, 2020, in response to the COVID-19 pandemic, and the resulting related market conditions, Nasdaq is providing temporary relief from the continued listing bid price (i.e., the minimum bid price of a company’s listed stock) and market value of publicly held shares (i.e., stockholders’ equity) listing requirements by tolling compliance through June 30, 2020 (the “Tolling Period”) (see http://img.n.nasdaq.com/Web/GIS/%7B1b62f703-d510-4903-aab1-fd7993d5b2de%7D_SR-NASDAQ-2020-021.pdf).

During the Tolling Period, although Nasdaq won’t be starting the timeline for meeting compliance standards in accordance with its listing rules, Nasdaq will continue to monitor the bid price and market value of publicly held shares requirements and companies would continue to be notified about new instances of noncompliance in accordance with the current rules. The temporary relief provided by the Tolling Period is applicable for any company not currently in compliance with the minimum bid price and/or market value of publicly held shares requirements and not solely for companies who have failed to meet these requirements after the declaration of COVID-19 being a pandemic.

Immediately after the Tolling Period, starting on July 1, 2020, companies will receive the balance of any pending compliance period or hearings panel exception to regain compliance with the applicable requirement. Nasdaq has stated that it will continue to monitor securities to determine if they regain compliance during the relief period.

An Sullivan team represented Hospitality Properties Trust (Nasdaq: HPT) in its underwritten public offerings of $400 million of 4.95% unsecured senior notes due February 15, 2027 and $200 million of 4.50% unsecured senior notes due June 15, 2023, the latter of which consisted of a re-opening of an outstanding series of HPT’s notes. HPT expects to use the net proceeds from these offerings to repay amounts outstanding under its unsecured revolving credit facility, for general business purposes and possibly to redeem some or all of its outstanding 7.125% series D cumulative redeemable preferred shares of beneficial interest.

The offering press release can be viewed here and the prospectus related to the offerings can be found here.

The S&W team included Howard Berkenblit, Bill Curry, and Jeff Morlend,  as well as Ameek Ponda and Brian Hammell on tax matters.

Sullivan is a leading corporate law firm advising clients ranging from Fortune 500 companies to emerging businesses. With more than 175 lawyers in Boston, London, New York and Washington, D.C., the firm offers services in a wide range of areas, including corporate finance, banking, trade finance, securities and mutual funds, litigation, mergers and acquisitions, intellectual property, tax, real estate and REITs, private equity and venture capital, bankruptcy, environment and natural resources, climate change, renewable energy and water resources, regulatory law, and employment and benefits. For more information please visit www.sullivanlaw.com.