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  Listing Council Decision 2008-4
Identification Number 609
Rule 4450(b)(3):  An issuer must have a market value of publicly held shares of $15 million.
Issue:  At the time of the Panel's decision, the company's market value of publicly held shares was below $15 million.  The company did not provide a plan of compliance.
Determination:  The decision of the Panel to delist the company’s securities was appropriate at the time it was rendered.
In reaching its determination, the Listing Council applied a facts and circumstances analysis.  NASDAQ’s Hearings process is designed to allow both NASDAQ-listed companies and prospective NASDAQ companies a means by which they can appeal a Staff determination.  For listed companies in jeopardy of delisting, the Hearings process affords these companies an automatic stay of delisting until a Panel issues a decision on the company’s case. Companies are given the opportunity to provide a Panel with a written submission detailing the specific grounds for its contention that the Staff’s determination was in error.  In cases in which a company is deficient in NASDAQ’s continued listing standards, the submission should also provide a definitive plan for achieving compliance with NASDAQ standards within the near term, as well as maintaining compliance long term.
In the instant case, the company provided neither the Panel nor the Listing Council with a definitive plan to regain compliance with NASDAQ’s listing standards.  Instead, the company provided a plan of merger.  By its design, the plan of merger would not result in the company regaining compliance with the NASDAQ listing standards, but rather would result in the delisting of the company’s shares upon the consummation of the merger.  By the company’s own admission, the Plan provided to the Panel was not a plan of compliance.  The purpose of a plan of compliance is to provide the Panel and Listing Council with information sufficient to determine whether the deficient company has a reasonable chance to regain compliance with NASDAQ’s listing standards within the time afforded to the adjudicator under NASDAQ rules.  The Panel correctly concluded that the plan provided to it was not a compliance plan and insufficient to determine whether the company would regain compliance within the discretion available to the Panel.
Based on the foregoing, the Listing Council affirms the decision of the Panel to suspend the company’s securities.
Publication Date*: 7/31/2012 Mailto Link Identification Number: 609
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