BARCELONA—Private Media Group announced today that the NASDAQ Listing Qualifications Panel has ordered the delisting of the Barcelona, Spain-based company, effective yesterday, Nov. 15. The possibility that the company might be delisted was not unexpected. NASDAQ had made the decision previously, and notified the company of its decision in letters sent in September.
A Sept. 22 Form 8-K filing by Private contained the following account:
On September 16, 2011 and September 19, 2011, the Company received letters (collectively, the “September 16 Letter”) from the Listing Qualifications Department of Nasdaq stating that based on the review of public documents and information provided by the Company, Nasdaq determined that the continued listing of the Company’s securities on Nasdaq is no longer warranted based on public interest concerns under Nasdaq Listing Rule 5101 regarding:
1. The appointment of a receiver for the Company in the Nevada Action;
2. Loans from the Company to Slingsby Enterprises Limited, an entity controlled by Berth Milton, the Company’s CEO, and the failure of the Company’s board of directors (the “Board”) to collect on these loans;
3. The failure of the Board to demand repayment from Mr. Milton of excess salary and instead allowing Mr. Milton to keep such excess salary as a “retention bonus”; and
4. The entry of an Order of Attachment against the Company by the New York State Court and related concerns about the Company’s ability to continue as a going concern.
Nasdaq also determined that the Company should be delisted for its failures to comply with the majority independent board and audit committee composition requirements set forth in Listing Rules 5605(b)(1) and 5605(c)(2), respectively, because of the recent resignation of Peter Dixinger from the Board. Nasdaq determined to utilize its discretionary authority under Listing Rule 5101 to deny the Company the cure period normally afforded by Listing Rules 5605(b)(1)(A) and 5605(c)(4).
The September 16 Letter advises the Company that trading of the Company’s common stock will be suspended at the opening of business on September 27, 2011 unless the Company requests a hearing before a Nasdaq Listing Qualifications Hearing Panel (the “Panel”) to appeal the proposed delisting. The Company has requested a hearing to appeal the staff determinations in the September 16 Letter and the September 21 Letter to the Panel pursuant to the procedures set forth in the Nasdaq Listing Rule 5800 series. The hearing on these matters has been set for October 27, 2011. However, there can be no assurance that the Panel will grant the Company’s request for continued listing.
A press release issued today by Private stated, in part, “As a result [of the delisting], the Company's common stock commenced trading on the over-the-counter market at the opening of trading on November 15, 2011. The Company does not intend to appeal the Panel's determination to the NASDAQ Listing and Hearing Review Council.
“The Company remains committed to executing the compliance plan presented to NASDAQ to correct the issues raised by NASDAQ in the delisting notice previously reported in the Company's Form 8-K filed with the Securities and Exchange Commission on September 22, 2011.”