Rule 4310(c)(14): The issuer shall file with NASDAQ three (3) copies of all reports and other documents filed or required to be filed with the Commission. This requirement is considered fulfilled for purposes of this paragraph if the issuer
files the report or document with the Commission through the Electronic Data Gathering, Analysis, and Retrieval system. An issuer that is not required to file reports with the Commission shall file with NASDAQ three (3) copies of reports required to be filed
with the appropriate regulatory authority. All required reports shall be filed with NASDAQ on or before the date they are required to be filed with the Commission or appropriate regulatory authority. Annual reports filed with NASDAQ shall contain audited financial
statements.
Rule 4350(e): Each issuer listing common stock or voting preferred stock, and their equivalents, shall hold an annual meeting of shareholders no later than one year after the end of the issuer's fiscal year-end.
Rule 4350(g): Each issuer shall solicit proxies and provide proxy statements for all meetings of shareholders and shall
provide copies of such proxy solicitation to NASDAQ.
Issue: The company was not able to file its delinquent periodic SEC reports due to an independent investigation of company practices relating to stock option grants to officers and directors, and related matters. Based on a Panel decision,
the company was scheduled to be suspended, pending delisting, by the Panel, because the Panel was at the limit of its discretionary authority. The Listing Council exercised its discretionary authority to call the Panel’s decision for review and stay any future
Panel determinations to suspend the company’s securities from trading, pending further action by the Listing Council.
Determination: The decision of the Panel was appropriate at the time it was rendered. The Listing Council also uses its discretionary authority to grant the company an additional 60 day extension of time to demonstrate compliance with
all Global Market continued listing requirements and remands the Listing Rule 4350(e) and (g) deficiencies to the Panel.
In reaching its determination, the Listing Council applied a facts and circumstances analysis, and found that based on its analysis, that this company should be given additional time to become compliant with NASDAQ’s filing requirement.
The Listing Council considered many factors, including, but not limited to, the following:
- The company reacted quickly and took appropriate steps once the potential problem was identified. Once the potential stock option problem was identified, management of the company began an internal review. After the Board was informed of evidence indicating
backdating issues, the Audit Committee began an independent investigation, with the help of outside consultants, to determine the depth and breadth of the problem.
- The company co-operated with regulatory authorities and timely notified the investing public of its independent investigation.
- Upon the conclusion of the independent investigation, the company promptly notified the investing public of its need to restate its
- financial statement and cautioned investors not to rely on previously filed financial information.
- The company expanded the number of directors from six to eight and then appointed two new independent directors.
- The company has either adopted, or committed to adopt, all other remedial measures recommended by the Audit Committee.
- The company continues to issue on a timely basis all required Forms 8-K and 12b-25 and has been proactive in keeping investors informed by providing unaudited quarterly and year end financial information.
The Listing Council also considered that the company was not in any other distress and that, but for the options issue, the company was ready to remedy its filing delinquency and, based upon historical financial information, appeared to have the financial
strength to continue to meet the maintenance standards of The NASDAQ Stock Market. The Listing Council understands that the restatement process has been slowed by the magnitude of the problem and the company’s dependence on outside factors to complete the
process. The Listing Council was also particularly cognizant, and considered, that the Panel had exhausted its ability to provide the company with an additional extension of time, and would have provided the company more time if available under the rules.
While the Listing Council takes seriously the requirement to file accurate and reliable financial statements and the concomitant purpose to provide investors with current information, the Listing Council balanced its analysis with the extraordinary circumstances
in which many companies find themselves. The Listing Council is sympathetic to the company in that it is not the only company that is currently ensnared in the thorny issues surrounding the potential restatement of financial statements as a result of the accounting
for stock option grants. The Listing Council has considered the extraordinary circumstances that many companies find themselves in and will undertake a facts and circumstances analysis in each case to determine if additional remedies are appropriate. Based
upon the record, the Listing Council recognized that the company has been pro-active in trying to regain its status as a good corporate citizen, and believed that such diligence should be rewarded with an extension of time to demonstrate compliance.
As such, pursuant Listing Rule 4802(b), the Listing Council finds that it is appropriate in this instance to exercise its discretionary authority and provide the company with a short extension of time to demonstrate compliance with Listing Rule 4310(c)(14).
Based on the foregoing, the Listing Council affirms the decision of the Panel to suspend the company’s securities, and grants the company an exception of 60 days to file its delinquent periodic reports and restatements. The Listing Council also takes notice
of the fact that the company has become deficient under Rules 4350(e) and 4350(g) because it did not solicit proxies for or hold its annual meeting by no later than one year after the end of the company’s fiscal year-end. As such, the Listing Council finds
that such failure to solicit proxies for and hold an annual meeting constitutes new and separate deficiencies. In order to assure that the company has an adequate opportunity to address these deficiencies, the Listing Council remands these deficiencies back
to the Panel for further review and action if the company regains compliance with the filing requirement. Staff shall instruct the company to respond to the Panel with respect to these deficiencies.
(Note: The NASDAQ board of directorsors called the Listing Council decision for review and issued a stay of delisting; however, the board of directorsors withdrew its call for review and stay, subsequently noting that the company had been non-compliant
with NASDAQ Rule 4310(c)(14) for a period of one year from the final due date of its annual report on Form 10-K.).