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  Staff Interpretation Letter 2003-50
Identification Number 1017
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(f):  Each issuer shall provide for a quorum as specified in its by-laws for any meeting of the holders of common stock; provided, however, that in no case shall such quorum be less than 33 1/3% of the outstanding shares of the company’s common voting stock.
Relevant Facts:  A Canadian company’s by-laws provide for a quorum of the lesser of the number of shareholders or two persons present in person.  As such, the company requests an exemption from NASDAQ’s quorum requirement based on Listing Rule 4350(a).
Issue:  Is the company eligible for exemption from NASDAQ’s quorum rules?
Determination:  Yes.  The company’s home country counsel represented that the company’s quorum requirement was in compliance with the Canadian securities laws and regulations.  In determining generally accepted business practices in a Foreign Private Issuer’s country of domicile, NASDAQ may look to the rules of the home country marketplace.  The company’s home country counsel noted that the Toronto Stock Exchange did not impose any quorum requirements and that the requirements of Listing Rule 4350(f) would be contrary to generally accepted business practices in Canada.  Accordingly, based on these representations, NASDAQ granted the requested exemption to Listing Rule 4350(f).
Publication Date*: 7/31/2012 Mailto Link Identification Number: 1017
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