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  Listing Council Decision 2017-5
Identification Number 1473

Filing Delinquency

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 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: May the Company remain listed notwithstanding is the fact that: (1) it was, until August 31, 2017, delinquent in filing its Quarterly Reports on Form 10-Q for the quarters ended September 30, 2016 and December 31, 2016, in violation of Nasdaq Listing Rule 5250(c); and (2) it was, until August 25, 2017, delinquent in filing its Annual Report on Form 10-K for the fiscal year ended June 30, 2016, in violation of Nasdaq Listing Rule 5250(c)?

Determination: Overrule the Hearing Panel decision to suspend and delist the Company.

The Hearing Panel in this case had previously granted the Company extensions to regain compliance with the Rule – until July 30, 2017 to file its delinquent Form 10-K and until August 31, 2017 to file its delinquent Form 10-Qs – but it revoked those extensions when the Company failed to provide the Panel, as directed, with a specific update from its auditor as to the anticipated schedule for completion of the audit. Although the Council agreed with the Panel that the Company should have been more forthcoming and specific about the status of the audit work, the Council concluded that the Company's update was not so inadequate as to warrant the Panel revoking its extensions. To the extent that the Panel was concerned that Company's status report was too vague, it could have and should have requested clarification from the Company and/or its auditor before it took the drastic step that it did. In sum, the Council concluded that the Panel acted too hastily and should have given the Company a chance to complete its work to regain compliance with the Rule.

Publication Date*: 12/6/2017 Mailto Link Identification Number: 1473
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