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Frequently Asked Questions
  Staff Interpretation Letter 2006-23
Identification Number 833
This is in response to your correspondence regarding the potential applicability of Marketplace Listing Rule 4350(i)(1)(A) (the “Rule”) and IM-4300 to proposed equity awards (the “Awards”) to the Officers.  Your letter relates to whether: (i) the company is subject to the Rule and (ii) the Awards would affect the company’s eligibility to list on NASDAQ.
 
According to the information you provided, the company’s securities were delisted from the New York Stock Exchange and have since traded in the Pink Sheets.  The company has applied to list on NASDAQ.
 
You stated that the Compensation Committee of the company’s board of directors plans to grant the Awards upon confirmation that the Awards would not impair the company’s application to be listed on NASDAQ.
 
Following our review of the information you provided, we have concluded that the Awards would not be subject to the Rule, provided that the agreement relating to the Awards is finalized and the Awards are made prior to the company’s listing on NASDAQ.  Furthermore, granting the Awards prior to listing on NASDAQ would not impair the company’s eligibility for listing, provided that the company’s actions with respect to the Awards are consistent with the assumptions stated herein.  In that regard, the provisions of IM-4300 would not lead to a different conclusion: the agreement would be reached and the Awards made at a time when the company was not listed on NASDAQ or an exchange that imposed corporate governance requirements; over one year would have elapsed since the company’s delisting from an exchange that imposed requirements that would have been applicable; and the delisting from that exchange was unrelated to the Awards or any other shareholder approval concern.  Please note, however, that if the company lists on NASDAQ prior to granting the Awards, the Awards would require shareholder approval under the Rule.
 
 
Publication Date*: 7/31/2012 Mailto Link Identification Number: 833
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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