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  Listing Council Decision 2005-5
Identification Number 614
Rule 4310(c)(14): The issuer shall file with NASDAQ three (3) copies of all reports and other documents filed or required to be filed with the Commission. This requirement is considered fulfilled for purposes of this paragraph if the issuer files the report or document with the Commission through the Electronic Data Gathering, Analysis, and Retrieval system. An issuer that is not required to file reports with the Commission shall file with NASDAQ three (3) copies of reports required to be filed with the appropriate regulatory authority. All required reports shall be filed with NASDAQ on or before the date they are required to be filed with the Commission or appropriate regulatory authority. Annual reports filed with NASDAQ shall contain audited financial statements.
Rule 4300*: NASDAQ, in addition to applying the enumerated criteria set forth in the Listing Rule 4300 and 4400 Series, will exercise broad discretionary authority over the continued inclusion of securities in NASDAQ in order to maintain the quality of and public confidence in its market. Under such broad discretion, NASDAQ may apply additional or more stringent criteria for the continued inclusion of particular securities or suspend or terminate the inclusion of particular securities based on any event, condition, or circumstance which exists or occurs that makes continued inclusion of the securities in NASDAQ inadvisable or unwarranted in the opinion of NASDAQ, even though the securities meet all enumerated criteria for continued inclusion in NASDAQ.
Issue: The Panel gave the company an extension to file its delinquent Form 10-Q for the quarter ended September 30, 2004. Pursuant to Listing Rule 4300, the Panel also exercised its discretionary authority and applied additional and more stringent criteria, whereby the Panel provided for a monitoring period of the company, which required the company to timely file all periodic reports ending on or before December 31, 2005. The company did not file the Form 10-Q within the original extension period and subsequently received additional extensions. The company also did not timely file its Form 10-K for the fiscal year ended December 31, 2004. The Listing Council called the Panel's decision to determine if the additional extensions were appropriate.
Determination: The Panel's decision was reversed because, after citing Rule 4300 and applying additional and more stringent criteria, the Panel did not hold the company to the heightened standard. When the company missed its Panel imposed deadlines, the Panel provided the company with additional time. At the time of the Listing Council's consideration, the company still had not filed its delinquent December 31, 2004 Form 10-K. Consequently, the Listing Council determined, as a policy, to limit the discretion that Panels could exercise and found that exceptions granted by the Panel should not be greater than 90 days from the date of issuance of the Panel's decision.
* Please note that Listing Rule 4300 was re-codified and changed in August 2005. NASDAQ also added interpretative material regarding the use of its discretionary authority. For the current version of the rule, see Marketplace Listing Rule 4300 and IM-4300.
Publication Date*: 7/31/2012 Mailto Link Identification Number: 614
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