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  Staff Interpretation Letter 2003-45
Identification Number 1012
Rule 4350(a):  NASDAQ shall have the ability to provide exemptions from Listing Rule 4350 to a Foreign Private Issuer when provisions of this Rule are contrary to a law, rule or regulation of any public authority exercising jurisdiction over such issuer or contrary to generally accepted business practices in the issuer’s country of domicile.
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.
Relevant Facts:  An English company that lists ADRs on NASDAQ requests an exemption from Listing Rule 4350(g) in connection with the solicitation and the distribution of proxies to the company’s foreign shareholders for an upcoming annual general meeting.  The company stated that such a distribution of annual proxies was contrary to the laws, regulations, and practices of its home country and was also not required by its home country stock exchange.  As such, the company requests an exemption from NASDAQ’s proxy solicitation requirement based on Listing Rule 4350(a).
Issue:  Is the company eligible for an exemption from NASDAQ’s proxy solicitation rule?
Determination:  Yes.  In determining generally accepted business requirement in a foreign issuer’s country of domicile, NASDAQ may look to the home country marketplace.  The company's home country counsel represented that the laws, rules, and regulations of the United Kingdom do not require the company to distribute annual proxies to foreign shareholders prior to its annual shareholder meetings, and that the requirements of the UK Listing Authority and the London Stock Exchange, the primary market for the company's securities, also do not impose such a requirement.  Based on these representations, NASDAQ granted the requested exemption to Listing Rule 4350(g).
Publication Date*: 7/31/2012 Mailto Link Identification Number: 1012
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