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  Listing Council Decision 2005-6
Identification Number 613
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.
 
Issue: At the Panel hearing, the company represented that it would file its delinquent December 31, 2004 Form 10-K later that day, and its delinquent March 31, 2005 Form 10-Q within 45 days. The company did not file its delinquent Form 10-K as promised and did not update the Panel as to the reasons until prompted by Panel staff. The Panel delisted the company’s securities based on a filing delinquency, after the company filed its delinquent Form 10-K, because the company had not filed its Form 10-Q for the quarter ended March 31, 2005 and had not demonstrated the ability to maintain compliance with the filing requirement over the long term.
 
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. The Listing Council found that the Panel relied on the veracity of the company’s representations at the hearing that the company would file its Form 10-K later that day. The company’s acts of not filing its Form 10-K, failing to contact the Panel to correct its representations, and not informing the Panel as to the reasons for the failure to file, were significant events that the company knew, or should have known, were “material” to the Panel’s ultimate decision in this case. Given the Panel’s reliance on the company’s assurance that the Form 10-K filing would be made that day, the Listing Council found that the company should have reported these material events to the Panel immediately.
 
The Listing Council also found it reasonable, based upon all the facts and circumstances, including the company’s inability to file its Form 10-K on a timely basis, the lack of disclosure to the Panel, and recent history of delinquent filings, that the Panel questioned the company’s ability to maintain compliance with the filing requirement over the long term.
 
Publication Date*: 7/31/2012 Mailto Link Identification Number: 613
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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