SEC Charged Another Defendant Treusch For Aiding Hernandez And Flagg In Their Lucrative Free-Riding Scheme

The Securities and Exchange Commission (SEC) charged another Defendant Travis Treusch regarding his involvement in a multi-year "free-riding" scheme between August 2020 through January 2022 (the “Relevant Period”). The “free-riding scheme was executed by Eduardo Hernandez (“Hernandez”), Christopher Flagg (“Flagg”), Daquan Lloyd (“Lloyd”), and Corey Ortiz (“Ortiz”) between November 2018 and January 2022 at the expense of broker-dealer A (“Broker A”).

The SEC has charged Treusch for helping Hernandez and Flagg (the “Principals”) execute a sophisticated “free-riding” scheme and misappropriating “instant deposit” credits offered by Broker A and by other broker-dealers that provided similar instant credits (“Similar Brokers”) and then abandoned the accounts that received the credits.

Facts Of The SEC Charges Against Travis Treusch

1. Treusch Helps Establish Loser Accounts At Broker A

During the Relevant Period, Broker A offered a subscription service called Broker A Gold (“Gold”) to the account holders who opened trading accounts with the Broker and had a portfolio value of up to $10,000.

As per the Gold service, Broker A provided the account holders an instant deposit credit of $5,000. The instant deposit credit became available to the account holders immediately after they linked their bank accounts to their Broker A accounts and initiated a funds transfer from their linked bank accounts to their Broker A accounts.

The initiation of the funds transfer by the Broker A account holders triggered Broker A’s instant deposit credit into the account holder’s Broker A account. This allowed the account holders to trade while the transfer was pending as it took up to five business days to complete.

Furthermore, when prospects opened trading accounts with Broker A, they entered into a Customer Agreement that warranted Broker A that there were sufficient funds in the account holders’ linked bank accounts to cover the amount of the instant credit deposit offered by Broker A into their Broker A trading accounts.

The Principals solicited individuals having little trading experience (the “Recruits”) through Treusch and other Recruiters.

But first, Treusch opened a trading account at Broker A in his name to help the Principals execute the scheme. The Principals convinced Treusch that he could make “easy money” if he opened a trading account in his name at Broker A account and allowed the Principals to trade on his behalf in his Broker A trading account.

Then, the Principals directed Treusch to link his bank account to his Broker A account. Further, the Principals warned Treusch to keep no funds in his linked bank account to prevent Broker A from receiving money from the linked bank account.

Additionally, the Principals asked Treusch to provide them with his Broker A account login credentials. To do this, the Principals paid Treusch approximately $500, an amount that was a certain percentage of the profits the Principals made trading through Treusch’s trading account with Broker A.

When Treusch acted in a way as directed by the Principals, Treusch received a notice from Broker A that his trading account balance had dropped to roughly -$4,000. As a result, Broker A intended to terminate Treusch’s account.

Treusch communicated to the Principals about the notice. The Principals reassured Treusch and stated that they had discovered a “loophole” in Broker A’s systems. As a result, Broker A would eventually terminate Treusch’s trading account and everything would “blow over”.

Treusch got convinced with the Principals’s scheme. He started hiring other Recruits to open trading accounts at Broker A that Principals could use to perpetrate the scheme. Treusch further asked the Recruits he hired to link their bank accounts with their trading accounts at Broker A.

For executing the free-riding scheme, it was important for the Recruits hired by Treusch to link their bank accounts to their Broker A trading accounts to receive the instant deposit credit provided by Broker A to its Gold subscribers. Further, Treusch warned Recruits not to leave any money in their linked bank accounts.

The trading account that Treusch opened in his name and the accounts he opened via the Recruits at Broker A were called Loser Accounts. This is because these accounts were unfunded and loss-bearing. Once the Principals exhausted the instant deposit credit limit using the matched trading strategy, the Broker A trading accounts became useless as the account holders had no intention of funding their accounts.

When Broker A became aware of the insufficient funds for trading, he froze the investor accounts and eventually closed these accounts entirely.

The SEC charged a complaint against Treusch because he knew he was asking the Recruits to open Loser Accounts at Broker A since he opened one at Broker A. Furthermore, he knew the Principals intended to use the Broker A Loser Accounts as part of their trading scheme.

Thus, Treusch’s role in opening new Broker A Loser Accounts provided significant help to the Principals as it allowed them to take advantage of the instant deposit credit.

In addition to hiring Recruits to open trading accounts and linking their bank accounts with their trading accounts at Broker A, Treusch asked the Recruits to provide the login credentials of their trading accounts at Broker A. He further gave these details to the Principals.

The Principals obtained the account login information from Treusch and other Recruiters, who procured it from their Recruits, to access the trading accounts at Broker A.

Thus, Treusch and other Recruiters substantially helped Principals execute their free-riding scheme by providing them with the Recruits’ account login credentials.

After obtaining the Recruits’ trading account login credentials, the Principals gained access to the instant deposit credit of up to $5,000 on each account. Through Treusch and other Recruiters, the Principals initiated the funds transfer requests that triggered the instant deposit credit.

2. Treusch Helps Establish Winner Accounts at Other Broker-Dealers

In addition to opening Loser Accounts at Broker A, the Principals opened brokerage accounts in their names at broker-dealers other than Broker A to execute their scheme. These accounts were collectively called Winner Accounts.

To open Winner Accounts, the Principals solicited Nominees through Treusch and other Recruiters.

Nominees set up brokerage accounts in their names and gave the login credentials to the Principals so that they could directly carry out trades in the Nominees’ brokerage accounts. Using Nominees further disguised the Principals’ and Treusch’s roles in the free-riding scheme.

Treusch solicited at least two Nominees (collectively the “Treusch Nominees”) to open brokerage accounts for Hernandez to trade in. Further, Hernandez and Treusch asked each of Treusch's Nominees that Hernandez would deposit his funds into their trading accounts and use those accounts to execute profitable trades. They even stated that each Nominee would receive a percentage of the profits generated and Hernandez would receive the rest after Hernandez executed the trades. In addition, Hernandez paid Treusch a portion of the profits earned trading in the Treusch Nominee accounts.

Treusch’s Nominees had no trading experience. Further, they believed that Hernandez was a legitimate trader who would trade on their behalf using their trading accounts. As a result, both the Nominees agreed to set up accounts, provide their account login credentials, and transfer control of them to Hernandez so that he could trade in their respective accounts.

3. The Principals Engage in Matched Trading to Take Advantage of Instant Deposit Credit

The Principals began trading in the Broker A Loser Accounts within days after the Recruits’ accounts were opened and almost immediately after the instant deposit credit was available in the Loser Accounts.

Once the Principals began trading, they traded continuously until they exhausted the instant deposit credit. In most instances, the Principals began and ended trading on the same day to use the full instant deposit credit. Further, they didn’t want Broker A to know that there were insufficient funds in the linked bank accounts to fund the Broker A brokerage accounts.

Additionally, the Principals typically traded in stock options to maximize their illicit gains from the free-riding scheme.

Let’s understand how Principals generated illicit gains using stock options to carry out matched trading transactions.

Matched Trading Transaction

The Principals used highly illiquid put option contracts to maximize their earnings from the matched trading.

Illiquid options are options contracts that have very low trading activity or lack market participants willing to buy or sell them. This lack of liquidity can make it difficult for traders to enter or exit positions at desired prices.

Illiquid options typically have wider bid-ask spreads, meaning there is a significant difference between the price at which sellers are willing to sell and buyers are willing to buy.

To understand the complex trading mechanism that the Principals used to generate illicit profits, we first need to understand what are option contracts, particularly put options.

What Are Options?

An option is a derivative instrument that gives the option holder the right but not an obligation to buy or sell a specific amount of the underlying asset at a particular price (called the “Strike Price”) and within a specific period. The buyer of the option exercises his right to buy or sell the underlying asset when he earns a positive payoff by exercising his right.

Further, an investor buying an option contract needs to pay an option premium to purchase an option contract.

There are two types of option contracts: Call Option and Put Option.

Call Option

A call option is the right to buy the underlying asset at a particular strike price within a specific period.

A call option is called:

“In the Money” when its strike price is less than the spot price as it generates a positive payoff

“At the Money” when its strike price is equal to the spot price as it generates no payoff
“Out of Money” when its strike price is more than the spot price as it generates a negative payoff

The buyer of a call option gains when the call option generates a positive payoff for the buyer. Whereas, the writer (or the seller) of the call option gains to the extent of option premium when the call option buyer fails to exercise his right.

Put Option

A put option is the right to sell the underlying asset at a particular strike price at a specific future date. Such an option generates a positive payoff for the buyer when the strike price is more than the spot price, i.e., the current market price of the underlying asset.

A put option is called:

“In the Money” when its strike price is more than the spot price as it generates a positive payoff
“At the Money” when its strike price is equal to the spot price as it generates no payoff
“Out of Money” when its strike price is less than the spot price as it generates a negative payoff

The buyer of a put option gains when the put option generates a positive payoff for the buyer. The writer (or the seller) of the put option gains to the extent of option premium when the put option buyer fails to exercise his right.

Now that you know how option contracts work, let’s understand how the Principals used the matched trading strategy for highly illiquid put option contracts to generate illicit gains.

Mechanics Of Matched Trading

The Principals first selected highly illiquid put options that were deep “Out of Money”. Deep “Out of Money” options trade at low prices as they are thinly traded.
Then, the Principals ensured that the underlying assets of these put options were stocks of companies announced as merger or takeover targets. Consequently, the stocks of these companies traded in a very narrow range between the period when the merger or acquisition was announced and the deal was closed.
Next, the Principals sold these put options at highly inflated prices from the Winner Accounts they controlled to the Loser Accounts set up by the Recruits. This appeared to be an arms-length transaction, however, the Principals controlled both sides of the trade. The Principals executed these transactions by adopting the following procedure:
The Principals posted limit orders on an exchange through Winner Accounts offering to sell several contracts in a particular series of put options. A limit order is an order that allows traders to set the minimum price at which they will sell (or the maximum price for which they will buy) the options contracts.
As mentioned earlier, the put options that the Principals selected were thinly traded options and were typically “Out of Money” option contracts. Deep out-of-the-money options typically trade at very low prices because they have minimal chance of ever becoming “In the Money” or obtaining any meaningful value.
Further, the underlying securities of the put options were stocks of companies announced as merger or takeover targets. As a result, those stocks typically traded in a very narrow range between the time the deal was announced and the deal was closed.
Thus, the Principals used Winner Accounts to set the limit order at prices that were way higher than the normal market prices but within the allowed price range imposed by exchange for such option contracts. Due to options’ inflated prices, low volume, and low chance of their underlying stocks’ spot price falling enough to make these put options “In the Money”, no rational market participants would want to buy these put option contracts.
When Principals posted limit orders on an exchange through Winner Accounts offering to sell several put options contracts, at the same time, the Principals used Loser Accounts to place orders to buy the same put option series at or slightly higher than the limit price of the Winner Account’s offering to sell several contracts in a particular series of put options.
Since no market participant was willing to sell option contracts at lower prices and buy option contracts for such a high price, the exchange automatically matched the trades that the Principals placed through the Winner and Loser Accounts in a transaction. This way, the exchange filled the sell order from the Winner Account with the buy order from the Loser Account. Furthermore, the Winner Accounts received a credit for the trade.
Finally, to close these open positions, the Loser Accounts would place the order to sell the put option contracts at or near the market price. Likewise, the Winner Accounts would place the order to buy these same put option contracts at or near the market price. Since no other rational market participants would take such positions, the exchange again matched and executed the trades of the Winner Accounts and Loser Accounts.
The Principals thus profited from such a strategy in the Winner Accounts and incurred losses to the extent of the ill-gotten gains in the Loser Accounts.

4. The Principals And Treusch Deceive Broker A

The Principals and Treusch deceived and extracted money from Broker A by taking the instant deposit credit extended to the Loser Accounts at Broker A and transferring this credit to the Winner Accounts. They did this by executing matched trades between the Winner and Loser Accounts.

The Principals and Treusch intentionally deceived Broker A by soliciting and directing the Recruits to open Loser Accounts at Broker A in their names to hide the identity of the Principals and Treusch and their involvement in the trading accounts’ activity.

Further, the Principals and Treusch intentionally deceived Broker A when Treusch opened a Broker A account in his name at the Principals’ direction to conceal the Principals’ identity and involvement in Treusch’s Broker A account activity.

Charges By The Court

As per the complaint filed by the SEC on February 11, 2024, Defendant helped the Principals in violating the antifraud provisions of Section 10(b) of the Securities Exchange Act of 1934 and Rules 10b-5(a) and (c) thereunder in violation of Exchange Act 20(e).

The SEC’s complaint claimed that unless Defendant is restrained, he will continue to engage in acts or practices outlined in this Complaint or acts or practices of similar type and object.

Relief Sought By The SEC

Treusch, without admitting or denying the allegations made by the SEC's complaint, has agreed to a bifurcated judgment. This judgment entails an injunction against him from violating the charged provisions and a conduct-based injunction. The duration of the conduct-based injunction and any monetary relief will be determined by the court upon motion by the SEC. However, it's important to note that this settlement is contingent upon approval by the Court.

Important Takeaways For The Investors

Considering the SEC v. Treusch case, the investors cannot deceive Brokers by opening numerous brokerage accounts through Recruits with the intent to fraudulently obtain instant deposit credit. Also, they are not allowed to open brokerage accounts with one broker to conduct losing trades and open broker accounts with other brokers to conduct winning trades essential to executing a matched trading strategy.

In case, any investor engages in any of the above-mentioned acts, they are liable to pay civil penalties, disgorgement, and prejudgment interest.

Gayatri GuptaApril 9, 2024

Nasdaq Compliance

The Nasdaq Stock Market features three tiers of listed companies, namely: (1) The Nasdaq Global Select Market, (2) The Nasdaq Global Market, and (3) The Nasdaq Capital Market. These tiers are characterized by progressively stringent listing requirements, with the Nasdaq Global Select Market setting the highest standards for initial listings and the Nasdaq Capital Market serving as the entry-level tier, particularly suitable for most small-cap issuers.

To list securities on Nasdaq, a company must fulfill minimum listing requirements, encompassing defined criteria related to financial performance, liquidity, and corporate governance. Nasdaq retains extensive discretion in the listing process and reserves the right to reject an application, even if the technical prerequisites are satisfied, if it deems such denial essential to safeguard the interests of investors and the public.

After securing a listing on Nasdaq, a company is obligated to adhere to ongoing listing standards. To initiate the listing process, a company seeking inclusion on Nasdaq must diligently complete and submit a comprehensive listing application to Nasdaq. This application should include specific documents and information as outlined by Nasdaq's requirements.

Typically, the application process spans a duration of four to six weeks. Once the application is submitted, a Nasdaq analyst is designated as the primary liaison with the company. Within two to three weeks of submission, the company can expect to receive an initial comment letter. The comment and review process persists until a decision is reached on the approval or denial of the application. Similar to filing with the SEC, a meticulously prepared Nasdaq application tends to attract fewer comments and facilitates a more streamlined process. Generally, the company's securities counsel assumes a leading role, serving as the primary contact for preparing the application and engaging in communication with Nasdaq.

Similarly to the SEC review process, Nasdaq conducts a thorough examination of publicly accessible information pertaining to a company. This encompasses, but is not limited to, SEC filings, the company's website, management communications and speeches, as well as press releases. The iterative nature of the review process typically doesn't necessitate a formal protocol, and communication is commonly facilitated through email correspondence and phone calls.

Listing Criteria For Nasdaq
For a company to list its securities on Nasdaq, it must satisfy the following criteria:

Specific Initial Requirements:
- Quantitative Standards: Meeting defined thresholds for both quantitative and qualitative factors.
- Qualitative Standards: Fulfilling certain qualitative benchmarks.
Continuing Requirements:
- Quantitative Criteria: Adhering to ongoing quantitative benchmarks.
- Qualitative Criteria: Maintaining specified qualitative standards.

The initial quantitative thresholds are typically set at a higher level than those required for continued listing. This distinction aims to ensure that companies achieve a sufficient level of maturity before being listed. Additionally, Nasdaq imposes rigorous corporate governance standards that listed companies must adhere to throughout their tenure on the exchange.

Before formally submitting a comprehensive listing application, a company has the option to pursue a preliminary listing eligibility review. In this stage, the Listing Qualifications Staff conducts a thorough examination of the company's public filings to assess its compliance with numerical listing requirements. Additionally, the team evaluates the company's adherence to corporate governance requirements outlined in the Marketplace Rules ("Rules"). This preliminary review provides valuable insights into the company's eligibility for listing on Nasdaq before committing to the full application process.

Upon completion of the preliminary review, the Listing Qualifications Staff will make an assessment regarding whether the company meets the numerical listing criteria. Additionally, any corporate governance or regulatory concerns raised during this phase will be considered to determine their impact on the listing approval. It's important to note that while the preliminary review provides insights, final approval necessitates the submission of a formal listing application. This application undergoes a thorough examination by the NASDAQ Listing Qualifications Staff. Furthermore, the final approval process involves satisfactory compliance with specific qualitative reviews. This includes an examination of the regulatory history of the company's officers, directors, and significant shareholders. Meeting these criteria is integral to obtaining the final approval for listing on Nasdaq.

Financial And Liquidity Requirements

    Requirements

    Equity Standard
    Market Value of Listed Standard
    Net Income Standard

    Listing Rules

    5505(a)
and
5505(b)(1)
    5505(a)
and
5505(b)(2)
    5505(a)
and
5505(b)(3)
    
    Stockholders Equity

    	$5 million
    	$4 million
    	$4 million
    
    The market value of publicly held shares

    $15 million
    $15 million
    $
      5 million
    
    Operating History

    	Two years
    N/A
    N/A
    
    The market value of listed securities

    N/A
    $50 million
    N/A
    
    Net income from continuing operations (in the latest fiscal
a year or in two of the last three
fiscal years)

    N/A
    N/A
    $750,000
    
    Publicly held shares

    	1 million
    	1 million
    	1 million
    
    Bid Price

    	$4
    	$4
    	$4)
    
    Closing Price

    	$3
    	$2
    	$43
    
    Corporate Governance

    Yes
    Yes
    Yes
    
    Total Shareholders

    300
    300
    300

Requirements	Equity Standard	Market Value of Listed Standard	Net Income Standard
Listing Rules	5505(a) and 5505(b)(1)	5505(a) and 5505(b)(2)	5505(a) and 5505(b)(3)
Stockholders Equity	$5 million	$4 million	$4 million
The market value of publicly held shares	$15 million	$15 million	$ 5 million
Operating History	Two years	N/A	N/A
The market value of listed securities	N/A	$50 million	N/A
Net income from continuing operations (in the latest fiscal a year or in two of the last three fiscal years)	N/A	N/A	$750,000
Publicly held shares	1 million	1 million	1 million
Bid Price	$4	$4	$4)
Closing Price	$3	$2	$43
Corporate Governance	Yes	Yes	Yes
Total Shareholders	300	300	300

Corporate Governance Requirements

Across all three tiers of the Nasdaq Stock Market, corporate governance requirements remain largely consistent. The categories encompassing corporate governance standards include:

Distribution of Annual or Interim Reports
Independent Directors
Audit Committee
Compensation Committee
Nomination of Directors
Code of Conduct
Annual Meetings
Solicitation of Proxies
Quorum
Conflict of Interest
Shareholder Approval
Voting Rights

These governance elements play a crucial role in ensuring transparency, accountability, and ethical conduct within listed companies, irrespective of the specific tier within the Nasdaq Stock Market.

Companies seeking listing on Nasdaq must adhere to specific corporate governance standards, including the following:

Compensation Committee with Independent Directors:
- The company is required to establish a compensation committee comprised of independent directors.
- The committee must consist of at least two members.
- Rule 5605(d)(2)(A) introduces an additional independence test for compensation committee members.
Responsibility for Executive Compensation:
- The compensation committee is tasked with determining or recommending to the entire board the compensation of the chief executive officer (CEO) and all other executive officers.

These standards are designed to ensure a level of independence and scrutiny in the decision-making processes related to executive compensation within the company.

The Application And Documents

The Nasdaq application package encompasses several key components:

Symbol Reservation Form:
- Used to request the reservation of a specific trading symbol for the company.
Listing Application:
- Requires supplemental documents and details about the company's financials, operations, and other pertinent information.
Listing Agreement:
- A formal agreement outlining the terms and conditions of the listing on Nasdaq.
Corporate Governance Certification:
- A certification affirming the company's commitment to meeting Nasdaq's corporate governance standards.
Initial Application Fee:
- Payable via check or wire transfer, this fee is a prerequisite for initiating the listing process.
Logo Submission Form:
- Used for submitting the company's logo for use in Nasdaq's materials.

These application forms are completed through the Nasdaq website listing center, utilizing the online platform to facilitate the submission of supplemental and supporting documents. It is advisable to thoroughly review all required paperwork in advance, ensuring that the necessary information is readily available before initiating the application process.

Symbol Reservation Form

The symbol reservation form is a concise, one-page electronic form where applicants input information for Nasdaq's consideration. Nasdaq symbols, limited to 1-5 characters, adhere to guidelines established by the Intermarket Symbols Reservation Authority (ISRA). The ISRA system is designed to organize symbols efficiently, prevent duplication, and reduce programming and operational complexities. The ISRA operates within the framework of the NMS Symbology Plan, a plan utilized by Nasdaq.

Key details about the symbol reservation process:

Symbol Choices:
- The form allows applicants to propose three symbol choices in order of preference.
- While Nasdaq generally honors the first choice if available, it retains the authority to assign, rescind, or reassign a trading symbol at its discretion.
ISRA and Nasdaq Authority:
- The ISRA and Nasdaq have overarching authority in managing the assignment of symbols.
Additional Information:
- The form captures essential details about the issuer and the planned public offering.
- Information may include the name of the attorney, lead underwriter (if applicable), CEO and CFO names, yearly revenues, company website, and the sector in which the company operates.

Completion of this symbol reservation form initiates the process of securing a trading symbol on Nasdaq, and it's essential to provide accurate and comprehensive information to facilitate this stage of the listing application.

The Application

The Nasdaq listing application process is comprehensive and varies based on the circumstances surrounding the listing sought. There are twelve distinct listing applications catering to different situations, including changes of control, switches from other exchanges or markets, spin-offs, and initial public offerings (IPOs). Each application, spanning approximately seven pages, collects detailed information about the company, covering areas such as address, contact and billing details, securities attorney and auditor information, transfer agent particulars, and the company's officers and directors. Specific information on the company's securities, including type, par value, and cusip number, is also required.

Furthermore, the application mandates disclosure of legal proceedings involving the company, its officers or directors, or significant shareholders over the past ten years. This encompasses inquiries, investigations, lawsuits, litigation, arbitrations, and other legal and administrative proceedings. Documents supporting the backup and final disposition of these matters must be provided.

Regarding private offerings within the prior six months, including bridge financings, shelf registrations, and Regulation S offerings, the company is required to disclose such activities. Additionally, the application delves into the company's background, posing questions to ensure compliance with seasoning rules.

While Nasdaq retains the right to request relevant supporting documents, specific documents are mandatory based on the application type. For an uplisting from an existing U.S. market, the application must include letters from three market makers confirming their commitment to making a market in the subject securities. Other required documents include a listing agreement, a logo submission form, a corporate governance certification form, regulatory correspondence over the past 12 months, and shareholder confirmation documents. Nasdaq often seeks confirmation from the company's transfer agent regarding the eligibility of the security for the direct registration program (DRS).

During the review of an up listing application, Nasdaq may request additional information, such as a Broadridge share range analysis and NOBO list, a certified shareholder list, details about mitigating any going concerns or opinions, income statement and/or balance sheet projections for the next 12 months, and confirmation of Sarbanes Oxley Section 302 and 906 certifications by the company, among other inquiries related to compliance and financial matters.

The Listing Agreement

The Listing Agreement is a concise document, spanning two pages, serving as a formal affirmation of the company's commitment to adhere to all rules and regulations set forth by the Nasdaq Stock Market. It includes provisions for indemnifying and holding Nasdaq harmless from liability. Notable points in the agreement include:

Compliance Assurance:
- The company explicitly agrees to comply with all rules and regulations stipulated by the Nasdaq Stock Market.
Indemnification Clause:
- The company indemnifies Nasdaq, meaning it undertakes to compensate or reimburse Nasdaq for any losses or damages incurred. This includes harm resulting from third-party trademark infringement claims related to the company's symbol and logo, as well as Nasdaq's use of the same.
Disclaimer of Warranty and Liability:
- The agreement contains a disclaimer of warranty and liability against Nasdaq for trading issues, with the exception of those resulting from gross negligence or willful misconduct.

This agreement establishes a clear framework for the relationship between the listed company and Nasdaq, emphasizing the company's commitment to regulatory compliance while providing indemnification for certain specified matters and delineating the scope of Nasdaq's liability.

Corporate Governance Certification Form

The corporate governance certification form certifies compliance with the governance requirements related to an audit committee, director nomination process, compensation committee, board composition, executive sessions, quorum, and codes of conduct. Where an exemption applies, the form requires specification of the exemption terms. The document specifies the different rules and exceptions in a check-the-box format.

Logo Submission Form

The logo submission form contains the guidelines for the logo and affirms Nasdaq’s rights to use the same. Nasdaq uses company logos in its marketing materials, on the MarketSite Video Wall and Tower, and websites.

Fees

Entry fees are based upon the aggregate number of shares to be listed at the time of initial listing, regardless of class, with a maximum cap of $75,000. Fees are assessed on the entry date in The Nasdaq Capital Market, except for $5,000, representing a non-refundable application fee. This fee must be submitted with the company’s application.

Nasdaq does not charge application or entry fees for any securities transferred from a national securities exchange.

Benefits Of Trading On An Exchange

There are many benefits to trading on an exchange instead of the OTC Markets. The most significant benefits to a business are the ability to attract analyst coverage and institutional investors and the corresponding increase in liquidity that comes with both. Stocks that trade on Nasdaq tend to have a lower bid/offer spread — again encouraging trading volume and liquidity. Exchange-traded securities are exempt from the penny stock definition, allowing more market maker and broker-dealer participation. As further explained below, a broker-dealer cannot recommend a penny stock transaction to its retail clients. Therefore, no analysts, financial advisors, or institutional investors make recommendations for purchases of penny stocks.

As an aside, this is one of the reasons that OTC Markets created the OTCQX market tier, which does not list penny stocks. It is also why the small-cap industry is pushing for a supported valid venture exchange (for further reading.

In today’s world, depositing stock and/or trade-in non-exchange traded securities is increasingly difficult. Despite the congressional efforts and SEC rulemaking in support of small-cap capital formation (for example, the JOBS Act, including the emerging growth company regulations, new Regulation A+ and Title III Crowdfunding and the new FAST Act), through enforcement and investigative proceedings, both the SEC and FINRA continue to apply pressure on broker-dealers, clearing firms and transfer agents to reduce the secondary trading and free flow of penny stocks. For more information on difficulties in depositing stocks.

Further On Penny Stocks

NASDAQ and NYSE MKT traded securities are exempted from the definition of a “penny stock” due to the initial and ongoing listing standards. Penny stock rules focus on broker-dealers’ activity in effectuating trades in penny stocks. The Securities Enforcement Remedies and Penny Stock Reform Act of 1990 (the “Penny Stock Act”) prohibits broker-dealers from effecting transactions in penny stocks unless they comply with the requirements of Section 15(h) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The rules promulgated thereunder, particularly Exchange Act rules 15g-1 through 15g-100 (the “penny stock rules”).

Section 15(h) of the Exchange Act provides that no broker or dealer may effectuate a customer’s purchase or sale of any penny stock unless such broker or dealer.

Approves the customer for the specific penny stock transaction and receives a written agreement to the transaction from the customer.
Furnishes the customer a risk disclosure document describing the risks of investing in penny stocks.
Discloses to the customer the current market quotation, if any, for the penny stock, including the bid and ask prices and the number of shares that apply to such bid and ask prices.
Discloses to the customer the amount of compensation the firm and its broker will receive for the trade.

In addition, after executing the sale, a broker-dealer must send its customer monthly account statements showing the market value of each penny stock held in the customer’s account.

Moreover, brokers and dealers subject to the penny stock rules are subject to additional disclosure requirements outlined in Rules 15g-2 through 15g-9. For my information on penny stocks and the rules affecting broker-dealer activity.

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