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  Listing Council Decision 2010-1
Identification Number 606
Rule 5250(c)(1):  A company shall timely file all required periodic financial reports with the Commission through the EDGAR System or with the Other Regulatory Authority.  A company that does not file through the EDGAR System shall supply to NASDAQ two (2) copies of all reports required to be filed with the Other Regulatory Authority or email an electronic version of the report to NASDAQ at continuedlisting@nasdaqomx.com.  All required reports must be filed with NASDAQ on or before the date they are required to be filed with the Commission or Other Regulatory Authority.  Annual reports filed with NASDAQ shall contain audited financial statements.
 
Issue:  The company was not able to file its delinquent periodic SEC reports due to an internal investigation of company practices relating to revenue recognition.  The Panel granted the company an extension to file its delinquent reports, which was the full extent of the Panel’s discretionary authority.  At the expiration of the extension, the company had not regained compliance.  As a consequence, the Panel issued a decision to suspend the company’s securities.  The company appealed the Panel decision to the Listing Council.
 
Determination:  Affirmed.  The Panel was willing to grant the company an extension of time because the company had demonstrated good faith efforts to regain compliance, and the Panel was not faced with any information particular to the company that would suggest that continued listing for a brief period would harm the investing public.  In its July 20, 2009 decision, the Panel noted its concerns regarding the seriousness of the company’s revenue recognition issues, the large amount of revenues to be moved to subsequent periods and the fact that the company had no current audited financial statements on file for a significant time period.  Notwithstanding, however, the Panel determined to allow the company to remain listed while it worked to file its delinquent reports and regain compliance with NASDAQ’s listing standards.  In determining to grant the company an extension, the Panel noted that the company and its Audit Committee responded appropriately to indications of revenue recognition problems by undertaking a broad review of transactions dating back to 2004.  Further, the Panel considered the company’s representation that it had identified the problems that caused the revenue recognition issues; that the responsible individuals are no longer with the company; that those currently responsible are trained and knowledgeable about revenue recognition issues; and that current management is fully committed to a wide range of remedial measures to preclude a recurrence of the problem.  Importantly, the company informed the Panel that it expected to complete its revenue restatement and regain compliance with the filing requirement by September 30, 2009, and by no later than October 31, 2009.
 
In affirming the Panel decisions, the Council finds that granting the company the full extent of time available under the Listing Rules was reasonable and appropriate given the facts and circumstances presented by the record at the time the decision was issued.  Pursuant to Listing Rule 5815(c)(1)(F), the Panel may grant a company delinquent in filing its periodic reports an extension of up to 360 days from the due date of the first such late periodic report.  The company did not regain compliance with the Listing Rules by the expiration of the Panel extension, and as such, the Panel’s decision to suspend and delist the company’s securities was also reasonable and appropriate at the time of issuance.
 
The Listing Council notes that the company, as of the date of the Listing Council’s deliberations, had not regained compliance with the Listing Rules.  The Listing Council has no authority under the Listing Rules to grant the company a further extension of time to regain compliance, if it were so inclined.  Based on the foregoing, the Listing Council affirms the decisions of the Panel in this matter.
 
Publication Date*: 7/31/2012 Mailto Link Identification Number: 606
material_search_footer*The Publication Date reflects the date of first inclusion in the Reference Library, which was launched on July 31, 2012, or a subsequent update to the material. Material may have been previously available on a different Nasdaq web site.
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