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  Listing Council Decision 2003-20
Identification Number 660
Rule 4310(c)(14): The issuer shall file with NASDAQ all reports and other documents required to be filed with the Securities and Exchange Commission ("SEC"). Annual reports filed must contain audited financial statements.
Issue: The company failed to file its Form 10-K for its fiscal year end or its first and second quarter Forms 10-Q because it was in the process of restating its prior financial statements. In connection with the restatement, the company was also performing an internal investigation. As a result of the restatements, the company’s financial statements and audit report for the previous fiscal year could not be relied upon. At the time of the Listing Council’s decision, the company had been out of compliance with the filing requirement for six months and had still not made the necessary filings.
Determination: The company was properly delisted for failure to comply with the filing requirement. The Listing Council takes seriously the requirement to file accurate and reliable financial statements and the concomitant purpose to provide investors with current information regarding the company. Investors in securities listed on NASDAQ are entitled to assume that issuers of those securities will promptly and accurately comply with their reporting obligations under the Securities Exchange Act of 1934. In this case, however, investors did not have access to accurate financial information regarding the company for the previous fiscal year and the subsequent interim periods. Furthermore, in the absence of accurate and reliable financial statements, Staff was unable to determine if the company was in compliance with all of the NASDAQ continued listing requirements. With respect to the company’s request to be allowed to relist under continued listing criteria after it makes its periodic filings and restatements, the Listing Council notes that under Listing Rule 4330(e), a security that has been terminated from NASDAQ must meet the initial listing requirements before re-inclusion. Because the Panel appropriately delisted the company’s securities, the initial listing requirements are the correct standard for a review of the company’s listing qualifications at such time the company seeks to be.
Publication Date*: 7/31/2012 Mailto Link Identification Number: 660
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