October 16, 2021

Volume XI, Number 289

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NASDAQ Proposes New Board Diversity Listing Rules

On 1 December 2020, The Nasdaq Stock Market (Nasdaq) filed a proposal with the Securities and Exchange Commission (SEC) to adopt listing rules related to director diversity and disclosure. The proposed rules would not mandate the election of any “diverse” directors, but instead would reflect a “comply or explain” approach: listed companies generally would be required to either have two diverse directors or explain why they do not. In addition, listed companies would be required to annually disclose statistical information on the diversity of their boards of directors.

Companies already listed on Nasdaq would be required to comply with the new requirements by:

  • Disclosing board diversity statistics by the first anniversary of SEC approval of the rules.

  • Having at least one diverse director (or explaining why not) by the second anniversary of SEC approval.

  • Having at least two diverse directors (or explaining why not):

    • For a company listed on The Nasdaq Global Select Market or The Nasdaq Global Market, by the fourth anniversary of SEC approval; or

    • For a company listed on The Nasdaq Capital Market, by the fifth anniversary of SEC approval.

Each company newly listing on Nasdaq would be required to comply with all of the new requirements by the later of (a) the phase-in periods described above and (b) one year after the date of listing.

Diverse Board Representation

Proposed Rule 5605(f) would require each Nasdaq-listed company (except as described under “Exemptions” below) to either:

  • Have at least two diverse directors, including:

    • One director who self-identifies as female, without regard to her designated sex at birth, and

    • One director who self-identifies as Black or African American, Hispanic or Latinx, Asian, Native American or Alaska Native, Native Hawaiian or Pacific Islander, two or more races or ethnicities, or LGBTQ+, except that a “smaller reporting company” or foreign private issuer may comply with this requirement by electing a second director who self identifies as female;

or

  • Explain, in its proxy statement (or on its website, with a supplemental disclosure to the Nasdaq Listing Center), why the company does not meet the board diversity requirements described above—note that Nasdaq has stated it will verify that a company has provided the required explanation, but will not assess the explanation’s substance.

Board Diversity Disclosure 

Proposed Rule 5606 would require each Nasdaq-listed company (except as described under “Exemptions” below) to provide, in a proposed uniform format referred to as a Board Diversity Matrix, statistical information with respect to directors’ self-identified gender, race, and LGBTQ+ status. The information would be required to be provided for the current year and, except in the first year of disclosure, the immediately prior year.

Noncompliance 

If the SEC approves the proposed rule for diverse board representation, any Nasdaq-listed company failing to timely satisfy the “comply or explain” requirements would be notified by Nasdaq that the company needs to address the deficiency by the later of its next annual shareholder meeting and 180 days from an event that caused the deficiency. The company could cure the deficiency by either electing any additional diverse director required to comply or providing an explanation for not having the diverse board representation. A continuing failure to “comply or explain” would subject the company to delisting.

Exemptions

Nasdaq proposes to exempt the following types of companies from the requirements of the proposed rules:

  • Acquisition companies listed under IM 5101-2;

  • Management investment companies;

  • Cooperatives;

  • Asset-backed issuers and other passive issuers;

  • Limited partnerships;

  • Issuers of non-voting preferred securities, debt securities, and derivative securities; and

  • Issuers of securities listed under the Rule 5700 Series

What's Next?

Comments on the proposal may be submitted to the SEC by 1 January, 2021, and SEC approval of the proposal would occur between 10 January, 2021 and 8 August, 2021.

Nasdaq has announced it is working to provide resources to help listed companies understand the new board diversity and disclosure requirements.

Copyright 2021 K & L GatesNational Law Review, Volume X, Number 349
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About this Author

Mark Johnson Corporate Lawyer K&L Gates
Partner

Mark Johnson counsels U.S. and international companies on corporate and securities matters. His practice focuses on corporate finance, corporate governance, and mergers and acquisitions.

Mark has extensive experience representing issuers, underwriters and placement agents, and investors in financings by companies in a variety of industries, with a recent focus on information technology. His public offering experience includes initial public offerings, follow-on equity offerings and secondary offerings by principal stockholders, as well as...

617.261.3260
Bella Zaslavsky Corporate Attorney K&L Gates Boston, MA
Associate

Bella Zaslavsky is a corporate associate in the firm’s Boston office. She focuses her practice on corporate and securities law matters, mergers and acquisitions, debt and equity securities offerings, corporate governance issues and regulatory compliance matters. Bella has experience representing public and private companies in initial and secondary public offerings, private placements, and securities law compliance. She also advises emerging companies on formation, operation, venture financing and general corporate matters.

Areas of Focus 

  • Mergers and Acquisitions...
617-951-9054
Andrew Galtieri Corporate Attorney K&L Gates Boston, MA
Associate

Andrew Galtieri is an associate at the firm’s Boston office. He is a member of the corporate/M&A practice group. Andrew advises companies in a variety of transactions, including venture capital financings, debt and equity offerings and initial public offerings. He also regularly assists both public and private companies with corporate governance, securities law compliance, and general corporate matters.

Areas of Focus

  • Mergers and Acquisitions
  • Capital Markets
  • Emerging Growth and Venture Capital
617-951-9252
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