Nasdaq Requires FPIs to Disclose Waivers of Code of Conduct Within Four Business Days

On September 5, 2023, Nasdaq filed a rule change with the SEC that requires a listed foreign private issuer to disclose any waivers of its code of conduct for directors or executive officers on its website, in a Form 6-K, or by distributing a press release, within four business days.

Prior to the amendments, Rule 5610 did not subject foreign private issuers to a specific deadline for disclosing such waivers. They were permitted to make the disclosures in a Form 6-K (which is required to be filed “promptly” but is generally only triggered by home country disclosure requirements) or in their next Form 20-F. 

Under the amendments, foreign private issuers have the option of website, Form 6-K or press release disclosure. If the company chooses website disclosure, it must satisfy the requirements of Item 5.05(c), which requires that the information remain available on the website for at least a 12-month period. Following the 12-month period, the company must retain the information for a period of not less than five years, and the company must furnish the SEC a copy of the retained information upon request. 

Nasdaq has also amended Rule 5610 to allow a committee of the board of directors, rather than just the board, to approve waivers of the code of conduct. 

Nasdaq’s filing declares the rule changes effective immediately, although the filing also indicates that the changes do not become operative until 30 days after the amendments were filed on August 21, 2023. Further, the SEC has the authority to suspend the rule change, if necessary, within 60 days of the rule change filing.