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Listing Council Decisions
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Identification Number
1115
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Filing Delinquency and Public Interest
Rule 5101: Nasdaq has broad discretionary authority over the initial and continued listing of securities in Nasdaq in order to maintain the quality of and public confidence in its market, to prevent fraudulent and manipulative acts and
practices, to promote just and equitable principles of trade, and to protect investors and the public interest.
Rule 5110(b): Nasdaq may use its discretionary authority under the Rule 5100 Series to suspend or terminate the listing of a Company that has filed for protection under any provision of the federal bankruptcy laws or comparable foreign
laws, or has announced that liquidation has been authorized by its board of directors and that it is committed to proceed, even though the Company's securities otherwise meet all enumerated criteria for continued listing on Nasdaq. In the event that Nasdaq
determines to continue the listing of such a Company during a bankruptcy reorganization, the Company shall nevertheless be required to satisfy all requirements for initial listing, including the payment of initial listing fees, upon emerging from bankruptcy
proceedings.
Rule 5250(c)(2): Each Foreign Private Issuer shall submit on a Form 6-K, an interim balance sheet and income statement as of the end of its second quarter. This information, which must be presented in English, but does not have to be reconciled
to U.S. GAAP, must be provided no later than six months following the end of the Company's second quarter. In the case of a Foreign Private Issuer that is a limited partnership, such information shall be distributed to limited partners if required by statute
or regulation in the jurisdiction in which the limited partnership is formed or doing business or by the terms of the partnership's limited partnership agreement.
Issue: At issue in this matter is whether the Company should remain listed, yet suspended from trading, notwithstanding that the Company does not comply with Rule 5250(c)(2), which requires the Company to file interim financial reports,
or Rule 5110(b) as the Company filed for protection under its home country’s bankruptcy laws. Staff also raised public interest concerns pursuant to Rules 5101 and IM-5101-1. A Panel determined to grant the Company additional time to regain compliance, but
subsequently determined to delist the Company for failing regain compliance by the conclusion of the extension.
Determination: Reverse the Panel decision to delist the Company.
It appears that the Company faced unanticipated delays in the bankruptcy process, including filing of various motions and creditor meetings, which resulted in the Company not regaining compliance within the time granted by the Panel. In its submissions
to the Listing Council, the Company states that it is diligently working to obtain all necessary approvals, complete the restructuring, emerge from bankruptcy, and immediately evidence compliance with all applicable requirements for initial listing on the
Capital Market well within the discretionary period available to the Listing Council. The Company has made some progress in this regard, reaching a milestone with the court’s approval of the creditors’ plan of settlement. In its brief to the Listing Council,
the Company represented that the final settlement with the creditors will be approved by the court within approximately 30 to 45 days after the approval of the plan. The Company also represents that, following its emergence from bankruptcy, it will begin new
operations with anticipated bookings of up to approximately $14 million. In its brief to the Listing Council, Staff notes that, because the Company’s shares are currently suspended from trading on Nasdaq and the post-merger company must meet all the requirements
for initial listing, it does not object to the Listing Council granting the Company additional time to demonstrate compliance with initial listing standards.
The Panel determined to grant the Company the full extent of time available to allow it to regain compliance. When the Company did not meet the terms of the Panel decision, the Panel appropriately moved to delist the Company. The Listing Council has discretionary
authority to grant the Company an additional extension of time to regain compliance. In light of the above, the Listing Council believes that allowing the Company to remain listed on Nasdaq yet suspended from trading presents a low risk of investor harm.
Accordingly, the Listing Council reverses the Panel decision to delist the Company and grants the Company through July 2014 to emerge from bankruptcy and evidence compliance with all requirements for initial listing on the Capital Market. Nothing in this
decision limits the Listing Council from revisiting its determination should it become aware of a change in the facts and circumstances of the matter, which, in the opinion of the Listing Council, warrant modification of its decision.
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Publication Date*:
8/5/2014
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Identification Number:
1115
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