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Libraries:
Listing Council Decisions
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Identification Number
648
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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 Securities and Exchange Commission (“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.
Issue: The company was unable to timely file its Form 10-K for the year ended December 31, 2004, due to an audit committee investigation into the company’s internal controls relating to travel and entertainment expenses. At the time of
the Panel’s decision, the company had filed its December 31, 2004 year-end Form 10-K and March 31, 2005 Form 10-Q, but had not filed its Forms 10-Q for the quarters ended June 30 and September 30, 2005. The Panel delisted the company’s securities based on
a filing delinquency.
Determination: The company was properly delisted because at the time of the Panel’s decision, the company was not current in all required public filings. As of the date of the Listing Council’s consideration of this matter, the company
had still not filed its Forms 10-Q for the quarters ended June 30 and September 30, 2005. The Listing Council takes seriously the requirement to file accurate and reliable financial statements and the concomitant purpose to provide investors with current information
regarding the company. Investors in securities listed on The NASDAQ Stock Market are entitled to assume that issuers of those securities will promptly and accurately comply with their reporting obligations under the Securities Exchange Act of 1934. In this
case, investors did not have access to accurate financial information regarding the company, for over nine months, from April 1, 2005 through the date of the Listing Council’s deliberations. The Listing Council notes that in the absence of accurate and reliable
financial statements, Staff is unable to determine if the company was in compliance with all of the National Market continued listing requirements. The Listing Council denies the company’s request for a 60-day exception to re-list its securities on the National
Market upon becoming current with its periodic reporting obligation. The Listing Council finds that it is not appropriate in this instance, given that the company had not provided accurate financial information for over nine months, and it was unclear to the
Listing Council whether the company met either the initial or continued listing requirements for the National Market.
The Listing Council also denies the company’s request that the company be allowed to re-list under the continued listing requirements on the National Market upon becoming current with its periodic reporting obligations. The Listing Council notes that Listing
Rule 4802(f)& provides, in part, that a security that has been delisted shall be required, prior to re-inclusion, to comply with the requirements for initial inclusion. As such, because the Panel appropriately delisted the company’s securities from the National
Market, the initial listing requirements provide the correct standard for a review of the company’s listing qualifications. The Listing Council finds that the company will need to file a new listing application together with all applicable initial fees with
Listing Qualifications, and the review of such application should be handled in the same manner as any new application to trade on The NASDAQ Stock Market.
* Rule 4802(f) replaced former Listing Rule 4430(e). See SR-NASD-2004-125, which became effective on August 26, 2005.
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Publication Date*:
7/31/2012
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Identification Number:
648
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