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1- 8 of 8
Search Results for:
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Ordering of Search Results
When searching across multiple libraries:
FAQs will appear in alphabetical order by category and sub-category
Listing Council Decisions will appear in reverse chronological order by year.
Staff Interpretations will appear in reverse chronological order by year
When searching using keywords:
Results are returned in order of term frequency (i.e., the number of times the keywords appear in the material).
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Libraries:
Listing Council Decisions
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Filters:
All Years; Annual Shareholder Meeting/Proxy Solicitation;
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Identification Number
1872
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Public Holders and Shareholder Meeting
Rule 5505(a)(3): a company must have at least 300 Round Lot Holders to list on the Capital Market.
Rule 5620(a): Each Company 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 Company's fiscal year-end, unless such Company is a limited partnership that meets the requirements of Rule 5615(a)(4)(D).
Issue: At issue is whether the Listing Council should grant the Company, which is a SPAC, an exception where it is noncompliant with Nasdaq Listing Rule 5505(a)(3) and Rule 5620(a).
Determination: Affirm the decision of the Panel to suspend the Company’s securities, grant the Company an exception until May 27, 2024, to complete a business combination and demonstrate compliance with the Exchange’s initial listing standards, and remand matter to the Panel.
The Panel exhausted its ability to provide the Company with an additional extension of time. As such, the Listing Council found that the Panel’s determination to delist the Company’s securities from the Exchange was appropriate. The Listing Council was cognizant that the Panel may have provided the Company more time if available under the rules. The Listing Council determined to exercise its discretionary authority under Rule 5820(d)(1) to grant the Company an exception until May 27, 2024, to complete a business combination and demonstrate compliance with the Exchange’s initial listing standards.
While the Listing Council shared Staff’s concerns about missed deadlines as well as uncertainties with the timing and ultimate success of the Company’s plan, the Listing Council believed that the steps that the Company made towards satisfying the closing conditions to complete the Business Combination and meet the Exchange’s initial listing standards, warranted a limited exception. The Listing Council did not believe it was appropriate to remove the suspension of trading given that the Company was indisputably out of compliance and absent closing of the Business Combination, had not demonstrated a plan to come into compliance. In granting the extension, the Listing Council considered various factors, including but not limited to, the merger agreement and limited closing conditions outstanding, the Company’s representations that they had secured the necessary funding for closing and obtained the necessary approvals and tax rulings required for closing, and the Company’s plan to meet the Exchange’s initial listing requirements.
The Listing Council instructed the Panel to delist the Company should it fail to complete the Business Combination and demonstrate compliance with the Exchange’s initial listing standards by May 27, 2024.
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Publication Date*:
5/22/2024
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Identification Number:
1872
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Identification Number
626
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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 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 internal 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 company appealed the Panel’s decision, and 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 4350(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 initiated an inquiry into stock options issues of its own accord. After the board of directors was informed of evidence indicating backdating issues, the board of directors appointed an independent committee, which began an investigation, with the help of outside consultants, to determine the depth and breadth of the problem.
· The company timely notified the investing public of its independent investigation.
· The company adopted remedial measures and internal controls recommended by the committee.
· The company has been proactive in keeping investors informed by providing unaudited quarterly financial information.
· There was no evidence of intent to defraud by senior management at the company.
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 Global 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.
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Publication Date*:
7/31/2012
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Identification Number:
626
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Identification Number
629
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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 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 due to an internal 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. After the board of directors was informed of evidence indicating backdating issues, the board of directors appointed a committee of independent directors, which began an 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 statements and cautioned investors not to rely on previously filed financial information.
- The company has either adopted, or committed to adopt, a range of remedial measures recommended by the independent committee, including changes to procedures for options grants.
- The company has been proactive in keeping investors informed by providing unaudited quarterly and year end financial information.
- Certain officers involved in the backdating have resigned from the company.
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 Global 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 before it, the Listing Council finds no reason not to conclude that the company has been pro-active in trying to regain its status as a good corporate citizen, thereby warranting an extension of time to demonstrate compliance. As such, pursuant to 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 has not yet solicited proxies for or held its annual meeting. 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 regard to this deficiency.
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Publication Date*:
7/31/2012
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Identification Number:
629
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Identification Number
631
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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 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.).
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Publication Date*:
7/31/2012
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Identification Number:
631
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Identification Number
621
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Rule 4350(g): Each issuer shall solicit proxies and provide statements for all meetings of shareholders and shall provide copies of such proxy solicitation to NASDAQ.
Rule 4350(e): Each issuer shall hold an annual meeting of shareholders and shall provide notice of such meeting to NASDAQ. Issue: Eight months after the end of its fiscal year, the company still had not filed a definitive proxy statement with the Securities and Exchange Commission or set a definitive shareholder meeting date.
Determination: The company was properly delisted for failure to comply with the proxy solicitation and annual meeting requirements.
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Rule 4350(i)(1)(D)(ii): Each issuer shall require shareholder approval …prior to the issuance of designated securities… in connection with a transaction other than a public offering involving: … (ii) the sale, issuance or potential issuance by the company of common stock (or securities convertible into or exercisable [for] common stock) equal to 20% or more of the common stock or 20% or more of the voting power outstanding before the issuance for less than the greater of book or market value of the stock.
Issue: The company violated Listing Rule 4350(i)(1)(D)(ii) by issuing greater than 20% of the pre-transaction total shares outstanding at a discount to the market price. The offering, which was scheduled to close in two tranches, consisted of up to 20,000,000 shares of common stock at $0.75 per share, together with the potential issuance of another 10,000,000 shares of common stock resulting from the exercise of warrants at $1.00 per share. As such, the aggregate potential issuance would be 30,000,000 shares, or 99% of the 30,095,328 total shares outstanding on a pre-transaction basis. The first tranche consisted of approximately 2,650,000 shares of common stock, together with 1,325,000 associated warrants, with the balance of the securities to be issued only upon receiving shareholder approval. After the closing of the first tranche, but before closing the second tranche, the company’s securities were delisted from The NASDAQ Stock Market. Before closing the second tranche and also before obtaining shareholder approval, the transaction was restructured to reduce the offering price of the common stock to $0.40 per share and the warrant exercise price to $0.50 per share. At the second closing, the company issued 25,374,999 additional shares of common stock and warrants exercisable for 12,687,502 shares of common stock, for an aggregate potential issuance of 38,062,501 shares of common stock. The company was aware, that even though it was delisted, it was still subject to NASDAQ’s shareholder approval rules.
Determination: The Listing Council determined, as a separate ground, that the company’s securities should not be relisted, based on the company’s failure to comply with the shareholder approval requirement. The Listing Council noted that the company was aware that even though it had been delisted, it was still subject to all of NASDAQ’s corporate governance rules, while appealing its Panel decision. As such, the issuance of securities in the second tranche of the offering required shareholder approval because the company issued greater than 20% of the pre-transaction total common shares outstanding at a discount to the market price.
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Publication Date*:
7/31/2012
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Identification Number:
621
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Identification Number
651
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Rules 4300 and 4330(a)(3): NASDAQ may exercise its discretion in applying additional or more stringent criteria for initial or continued inclusion or suspend or terminate the inclusion of an otherwise qualified security if NASDAQ deems it necessary to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, or to protect investors and the public interest.
Issue: A director of the company, who was also the president of the company’s subsidiary, and a consultant to the company were indicted for conspiracy to commit commercial bribery and securities fraud. The currency used to commit the fraud was the company’s securities, which were issued pursuant to a consulting agreement approved by the company’s board of directors. Further, the current president and chief executive officer and the vice president and chief operating officer of the company were two of the board members that approved the issuance of securities.
Determination: The company was properly delisted in order to preserve and strengthen the quality and integrity of, and public confidence in, The NASDAQ Stock Market, and in order to protect prospective investors and the public interest. The nature of the allegations, which included conspiracy to commit commercial bribery and securities fraud, pose serious threats to the investing public, investor confidence in The NASDAQ Stock Market and the integrity of The NASDAQ Stock Market. Specifically, the Listing Council found that these facts, coupled with the board’s approval of the consulting agreement and subsequent issuance of securities without performing any due diligence, appears to indicate that the company lacks adequate internal controls. The Listing Council continued to be concerned that the company’s current president and chief executive officer and the vice president and chief operating officer continue to hold management and board positions within the company and yet were two of the board members who approved the consulting contract without discharging their due diligence obligation.
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Rule 4350(g): Each issuer shall solicit proxies and provide statements for all meetings of shareholders and shall provide copies of such proxy solicitation to NASDAQ.
Rule 4350(e): Each issuer shall hold an annual meeting of shareholders and shall provide notice of such meeting to NASDAQ.
Issue: The company solicited proxies and held its fiscal year 2002 annual meeting in February 2004.
Determination: The company was properly delisted for failure to comply with the proxy solicitation and annual meeting
requirements. Although the company solicited proxies and held a meeting in February 2004, those actions did not cure the company’s obligation to solicit proxies or hold its fiscal year 2002 annual meeting in 2003.
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Publication Date*:
7/31/2012
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Identification Number:
651
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Identification Number
665
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Rule 4310(c)(14): The issuer shall file with NASDAQ all reports and other documents required to be filed with the Securities and Exchange Commission ("SEC"). Annual reports filed must contain audited financial statements.
Issue: The company had not filed its Form 10-K or the past two Forms 10-Q and did not provide an estimated date for filing these SEC reports.
Determination: The company was properly delisted for failure to comply with the filing requirement. 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 NASDAQ 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, however, investors did not have access to accurate financial information regarding the company for more than one year. Furthermore, in the absence of accurate and reliable financial statements, Staff was unable to determine if the company was in compliance with all of the NASDAQ continued listing requirements.
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Rule 4310(c)(4): $1 minimum bid price requirement for continued listing on the SmallCap Market.
Issue: The bid price of the company’s common stock was below $1 for approximately 21 months. The company planned to effect a 1-for-4 reverse stock split after its annual meeting.
Determination: The company was properly delisted for failure to comply with the minimum bid price requirement. Even if the company effected its planned 1-for-4 reverse stock split, its share price would still be below $1.
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Rule 4350(g): Issuers are required to solicit proxies and provide proxy statements for all meetings of shareholders.
Issue: Although the company recently filed a definitive proxy statement with the SEC, it previously had not filed a proxy statement, or solicited proxies, since its securities were listed on NASDAQ in 2000.
Determination: The company was properly delisted for failure to comply with the proxy solicitation requirements.
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Rule 4310(c)(7): $1,000,000 market value of publicly held shares requirement for continued listing.
Issue: Based on information in the company’s information statement and its most recent stock price, its market value of publicly held shares was less than $1,000,000. The company believed its stock was undervalued.
Determination: The company was properly delisted for failure to comply with the market value of publicly held shares requirement.
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Publication Date*:
7/31/2012
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Identification Number:
665
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Identification Number
688
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Rule 4310(c)(2): $2,000,000 net tangible assets/$2,500,000 shareholders’ equity requirement, or its alternatives, for continued listing on the SmallCap Market.
Issue: The company no longer satisfied the net tangible assets/shareholders’ equity requirement. The company provided projections and stated it would be in compliance after certain reorganization transactions were consummated.
Determination: The company was properly delisted for failure to comply with the net tangible assets/ shareholders’ equity requirement. Even assuming that the company’s projections were accurate, the company would soon fall below the net tangible assets/shareholders’ equity requirement based on the company’s history of losses.
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Rule 4310(c)(7): 500,000-share public float requirement for continued listing.
Issue: The company’s proxy statement reflected that the company had less than 500,000 shares in the public float. The company stated it had in excess of 500,000 shares in the public float, assuming conversion of its preferred stock.
Determination: The company was properly delisted for failure to comply with the public float requirements. The public float requirement is based solely on shares issued and outstanding.
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Rules 4350(c) and 4350(d)(2): Independent director and audit committee composition requirements.
Issue: One of the three members of the audit committee beneficially owned approximately 90% of the company.
Determination: The company was properly delisted for failure to demonstrate compliance with the independent director and audit committee composition requirements. A director, who has the ability to directly or indirectly control the company through 90% ownership, is an affiliate of the company, as referred to in Listing Rule 4200(a)(14)(A), and accordingly, he is not independent. The company did not disclose in its proxy statement a basis for an exception to the audit committee composition requirements, pursuant to Rule 4350(d)(2)(B).
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Rules 4350(g) and 4350(e): Annual meeting and proxy solicitation requirements.
Issue: The company did not hold an annual shareholder meeting or mail proxy statements for 2½ years, while it was resolving a takeover contest and related litigation.
Determination: The company was properly delisted for failure to comply with the annual shareholder meeting and proxy solicitation requirements. An unresolved takeover contest and related litigation is an insufficient reason to violate the proxy solicitation and annual meeting requirements.
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Rule 4350(h): Requirement for independent review of related party transactions for conflicts of interest.
Issue: The company, the chief executive officer, a director and a shareholder group led by the director entered into related party transactions and, as majority shareholders, approved the transactions. The company provided minutes of meeting, reflecting the existence of a special committee of directors.
Determination: The company was properly delisted for failure to demonstrate that the company’s audit committee or a comparable body of the board of directors reviewed the transactions for conflicts of interest. The minutes did not reflect that the audit committee or an independent committee reviewed the transactions for conflicts of interests. The minutes did not state whether the special committee reviewed the transactions for conflicts of interests or which directors were on the special committee.
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Rule 4351: Voting rights requirement.
Issue: The company issued convertible preferred shares to investors at a discount to the market price on the date the investors and the company entered into a stock purchase agreement. The company’s majority shareholders approved the transaction. The preferred shareholders had the right to vote their shares on an as-converted basis at the company’s annual shareholder meeting. To determine whether a voting rights violation exists, the preferred shareholders’ voting rights are compared to their relative contribution based on the company’s market value at the time of issuance of the preferred shares. The company stated that for purposes of the voting rights rule, the time of issuance of the preferred stock should be the date the letter of intent was signed, not the date the shares were issued.
Determination: The company was properly delisted for failure to comply with the voting rights requirements. In determining whether a voting rights violation exists, the execution date of a non-binding agreement cannot be the basis for determining the value of the securities because the value is not definitive if the agreement is unenforceable and the terms can be changed. The company created a new class of securities that vote at a higher rate than the existing common shareholders, and shareholders cannot otherwise agree to permit a voting rights violation by the company through approval of the transaction.
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Publication Date*:
7/31/2012
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Identification Number:
688
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