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NASAA CORPORATE FINANCE SECTION July 2011. Proposed BX Venture Market.

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NASAA CORPORATE FINANCE SECTION

July 2011

Confidential

proposed bx venture market
Proposed BX Venture Market
  • The SEC has approved a proposal by NASDAQ OMX Group to create a new listing venue on the former Boston Stock Exchange, which will have more flexible quantitative listing standards, but require companies to comply with many of the qualitative requirements for listing on other securities exchanges.
  • Launch is expected in the fourth quarter
  • This market will provide a well-regulated listing alternative for smaller companies that otherwise would transfer to, or remain on, the largely unregulated Pink Sheets or OTCBB, where there are no listing requirements, no public interest review, limited liquidity, and limited transparency.
  • The listing standards for the BX Venture Market are higher than the listing standards for European junior markets, including AIM.

Confidential

overview listing qualifications
Overview: Listing Qualifications
  • Companies must satisfy quantitative and qualitative requirements in order to be approved for listing on BX.
  • Quantitative requirements for initial listing for companies who have not been previously listed on an exchange include a minimum price of $1, $2M in market value of listed securities and $1M in equity, as well as shareholder, float and market maker requirements.
  • Qualitative listing requirements are very similar to NASDAQ's and NYSE's requirements. In addition, as part of its initial review process, Staff will make random, regular referrals to an outside investigative firm of selected applicant companies.
  • A company will be prohibited from listing if any executive officer, director or control person was involved in any event that occurred during the prior five years that is required to be disclosed under Item 401(f)(2) – (8) of Regulation S-K, including criminal convictions and pending charges, violations of securities laws, and court or administrative actions barring or limiting the individual from certain security related activities.
    • BX Staff will also have the discretionary authority to deny listing to any otherwise qualified security when necessary to preserve and strengthen the quality of and public confidence in its market. Staff will utilize outside investigators, accountants and law firms, as needed, to aid in applying this authority.
  • BX Venture Market will use the same technology used today to effectively regulate Nasdaq companies.

Confidential

proposed bx venture market listing standards
Proposed BX Venture Market Listing Standards

* These requirements are applicable only if the company was not previously Exchange listed

Confidential

regulatory history and criminal background reviews
Regulatory History and Criminal Background Reviews
  • A company will be prohibited from listing if any executive officer, director or control person was involved in certain prior misconduct. In addition, Staff will exercise broad discretionary authority to deny initial or continued inclusion based on other factors to protect investors and the public interest.
  • Staff will routinely conduct background reviews of all officers, directors and significant shareholders (i.e., shareholders that hold shares greater than or equal to 5%) to identify any potential public interest issues.
  • In addition, Staff will retain outside firms (including investigative, accounting and law firms) to assist in its initial and continued listing review of a BX company on a random basis, as well as under specific circumstances that may warrant additional scrutiny. For example:
  • If Staff became aware of regulatory issues with respect to an applicant that did not otherwise trigger an automatic bar to listing
  • If Staff became aware of unsubstantiated media accounts reporting criminal activities by the company or its officers, directors or substantial shareholders
  • If researching a regulatory history that may have occurred in jurisdictions outside of the United States, where the availability of information and language barriers could make such research by Staff impractical.
  • If a listed company combines or reverse-merges with a non-listed entity, resulting in a “change of control” transaction.

Confidential

proposed bx venture market1
Proposed BX Venture Market
  • Securities will be considered penny stocks under Exchange Act Rule 3a51-1, unless they qualify for an exemption from the definition of a penny stock.
  • Securities will not be “covered securities” and no “blue sky” exemption would be available under Section 18 of the Securities Act of 1933.
  • Securities will not be eligible for listing on BX if they satisfy the quantitative requirements for initial listing on NASDAQ. This will assure that qualified companies do not seek to “race to the bottom” and list based on the somewhat more lenient qualitative requirements on BX.
  • Companies will be prohibited from advertising that they are “NASDAQ-listed”.

Confidential

initial listing process
Initial Listing Process
  • Analysts perform a comprehensive review of applicants to determine if they satisfy all qualitative and quantitative standards for listing.
  • As part of the application review process, Staff will routinely review the following:
    • Listing Application
    • Annual and Quarterly SEC Filings, including financial statements (e.g., comparison to listing standards, audit opinion)
    • Auditor Registration with Public Company Accounting Oversight Board (“PCAOB”)
    • Corporate Governance
    • Background reviews of company officers, directors, principal shareholders and key advisors (e.g., investment bankers, lawyers, accountants)
    • Government Investigations
    • Unusual Litigation
    • Shareholder Lists
    • Related Party Transactions
    • Defaults

Confidential

continued listing process
Continued Listing Process
  • Each BX listed companies will be assigned to an analyst responsible for reviewing all documents filed with the SEC and identifying compliance concerns.
  • Staff uses a prioritization process to help facilitate the timely review of those filings containing more time sensitive items that may impact an issuer’s compliance status, such as bankruptcy or disclosure of material impairment.
  • Staff uses a proprietary web-based system, ExACT, to monitor issuer compliance. System enhancements to improve existing and/or add new functionality occur at least quarterly.
  • ExACT receives a nightly data feed of periodic reports filed with the SEC and FDIC.
  • ExACT evaluates financial and market data nightly to determine each company’s compliance with continued listing standards.
  • Alerts or “Hot Lists” are generated daily to help analysts prioritize filing reviews and process compliance concerns in a timely manner.
  • In an effort to increase transparency, BX will post a daily list of non-compliant companies on the BX Listing Center web-site and transmit a “financial status indicator” to vendors. This indicator, which is displayed on the workstation and the BX Listing Center web-site, conveys the compliance status of a BX listed issuer.

Confidential

slide10

Technology Enhances Our Initial and Continued Listing Process

  • ExACT is our proprietary compliance monitoring system and improves Staff’s ability to review issuer filings and identify potential regulatory issues in a timely manner by:
  • - Receiving a nightly feed of SEC and FDIC filings.
  • - Generating Alerts or “Hot Lists” to help analysts prioritize filing reviews and process compliance concerns in a timely manner.
  • - Evaluating financial and market data nightly to determine each company’s compliance with listing standards.
  • ExACT is the same advanced technology we use today to effectively monitor NASDAQ companies.

Confidential

bx venture surveillance
BX Venture - Surveillance
  • Rules enforced by System design
    • Continuous Two-Sided Quoting/Quoting at the Open
    • Basic validation of every incoming order for proper message formatting

Confidential

bx venture surveillance1
BX Venture - Surveillance

Division Of Regulatory Responsibilities

  • MarketWatch
    • Conduct real time surveillance of equities and options markets
    • Review Companies’ Material Disclosures
    • Halt securities
    • Coordinate and execute IPO release process
    • Conduct clearly erroneous adjudications
    • Liaison between Listed Companies and FINRA
    • Referral of potential rule violations to FINRA
  • FINRA
    • Conducts T + 1 Regulation
      • FINRA conducts surveillance, incorporating the BX data into their current surveillance patterns
      • Regulatory Services Agreement similar to RSA for BX governs services
      • 17d2 agreement covers joint FINRA/BX members. FINRA handles examinations, investigations and enforcement

Confidential

bx venture surveillance2
BX Venture - Surveillance

MarketWatch Regulatory Responsibilities

Mission:

Conduct real-time market oversight for compliance with BX Venture

Company disclosure obligations and BX market participant trading obligations

Objectives:

  • Protect the integrity of the marketplace
  • Implement fair and independent regulatory decision making
  • Refer potential violations to FINRA and appropriate regulatory authorities
  • Provide technology resource and liaison function with internal business units and FINRA
  • Oversee FINRA’s operations

Confidential

smarts surveillance application
SMARTS Surveillance Application
  • SMARTS, the premier regulatory technology surveillance application, will be implemented for BX Venture. SMARTS has a wide variety of realtime surveillance algorithms that will provide MarketWatch with the ability to perform heightened surveillance of this listing venture.
    • SPREAD
      • Main tool for analysis of trading patterns
      • Used for time periods ranging from seconds to months
      • Color markings for type of trade (initiator, odd lot, manual)
      • Flexible filtering: member, trader, client reference, capacity, size, price, trade type. Includes qick filtering for top x members/traders/clients on each side
    • Market Replay
      • Order book snapshot, can be replayed step by step
      • Same filtering as Spread

Confidential

bx venture real time security based surveillance
BX VentureReal-time Security Based Surveillance
  • More than 20 surveillance patterns will be run for the following categories:
  • Insider Trading – utilizes corporate announcements and patterns of behavior and prices to identify potential violations.
  • Spoofing and Layering – identifies patterns and specific instances of order manipulation to lure counterparties into favorable trades.
  • Price and Volume Movements – patterns alert on unusual price and/or volume spikes (and related market share increases) by both participant and security.
  • Order Anomalies – Disproportionally large orders, aggressive orders and high order entry rates create surveillance alerts.
  • Marking the Close – identifies patterns and specific instances of aberrant closing price fluctuation by participant and security.
  • Price Driving – Identifies participants responsible for large price spikes with little trading interest.
bx venture disclosure
BX Venture – Disclosure

BX Venture Listed Company Disclosure Requirement

A BX Venture-listed Company shall make prompt disclosure to the public through any Regulation FD compliant method (or combination of methods) of disclosure of any material information that would reasonably be expected to affect the value of its securities or influence investors’ decisions

Disclosure Notification

Prior notice of certain material news announcements to MarketWatch at least 10 minutes before dissemination via Reg FD compliant method(s). Submit material news via the Electronic Disclosure submission system – WWW.BXVenture.net (electronic submission is required except in emergency situations).

Regulation FD Compliant Disclosure Methods Include:

  • Broadly disseminated press release
  • Furnishing to or filing an 8-K or 6-K with the SEC
  • Conference Calls*
  • Press Conferences*
  • Webcasts*
  • Company Web Sites (SEC Guidance issued Aug. 2008)

*So long as the public is provided adequate notice (generally by press release) and granted access

Confidential

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QUESTIONS

Confidential