SECURITIES AND EXCHANGE COMMISSION
Self-Regulatory Organizations; Order Granting Application to Strike from Listing and Registration on the American Stock Exchange LLC (Interactive Brand Development, Inc., Common Stock, $.001 par value) File No. 1-31992
March 8, 2005
On February 28, 2005, the American Stock Exchange LLC ("Amex" or "Exchange") filed an application with the Securities and Exchange Commission ("Commission"), pursuant to Section 12(d) of the Securities Exchange Act of 1934 ("Act")1 and Rule 12d2-2(c) thereunder,2 to strike the common stock, $.001 par value ("Security"), of Interactive Brand Development, Inc., ("Company") from listing and registration on Amex.
Amex listing standards provide, among other things, that Amex may consider removing the security of an issuer from listing and registration when: (i) the financial condition and/or operating results of the issuer appear to be unsatisfactory; (ii) the issuer has failed to comply with its listing agreements with the Exchange; or (iii) any other event shall occur or any condition shall exist which makes further dealings on the Exchange unwarranted.
In applying these standards, Amex considers delisting the securities of a company which is not in compliance with the following Amex listing standards: (i) the requirement that a listed company being effectively acquired by an unlisted company as a result of a plan of acquisition, merger, or consolidation, meet the Exchange's original listing standards set forth in Sections 101 and 102 of the Amex Company Guide ("Company Guide"), (Section 341 of the Company Guide); (ii) the requirement that an appropriate review of all related party transactions on an ongoing basis and utilization of a listed company's audit committee or a comparable body of its board of directors review potential conflict of interest situations where appropriate (Section 120 of the Company Guide); (iii) the requirement that prohibits a listed company from issuing shares of its securities in excess of those authorized for listing until the Exchange has approved an additional listing application with respect to such shares (Sections 131, 301, and 331 of the Company Guide); (iv) the requirement that a listed company furnish such information concerning the company as the Exchange may reasonably require (Section 132(e) of the Company Guide); (v) the requirement that a listed company obtain shareholder approval with respect to the establishment of (or material amendment to) a stock option or purchase plan or other equity compensation arrangement pursuant to which options or stock may be acquired by officers, directors, employees, or consultants regardless of whether or not such authorization is required by law or by the company's charter (Section 711 of the Company Guide); and (vi) the requirement that a listed company obtain shareholder approval as a prerequisite to approval of applications to list additional shares to be issued as sole or partial consideration for, among others, an acquisition of the stock of another company where the present or potential issuance of common stock, or securities convertible into common stock, could result in an increase in outstanding common shares of 20% or more (Section 712 of the Company Guide).
In addition, the Exchange will normally consider suspending dealings in, or removing from the list, a security of a listed company that: (i) is financially impaired (Section 1003(a)(iv) of the Company Guide); (ii) fails to comply with its listing or other agreements with the
Exchange (Section 1003(d) of the Company Guide); (iii) if it or its management engage in operations which, in the opinion of the Exchange, are contrary to the public interest (Section 1003(f)(iii) of the Company Guide); or (iv) has failed to file information, documents, and reports with the Commission (or other appropriate regulatory agency) on a timely basis (Section 1101 of the Company Guide).
Amex stated in its application filed with the Commission that the Security no longer qualifies for continued listing and registration, for the reasons listed below.
First, the Company entered into a series of transactions with Penthouse Media Group, Inc. and other affiliated entities, the net effect of which was that it was effectively acquired by an unlisted company, and thus subject to the Exchange's initial listing standards. The Company does not satisfy the applicable initial listing standards. Second, the Company issued shares of its common stock to related parties without subjecting the transactions to appropriate review and oversight by the Company's Audit Committee or a comparable body of the Board of Directors. Third, the Company issued shares of its common stock in various transactions without first obtaining the requisite shareholder approval, and/or filing an application for the listing of such shares and/or receiving notification from the Exchange that the shares were approved for listing. Fourth, the Company provided incomplete, inaccurate, conflicting, and/or misleading information in response to Exchange staff requests for additional information. Fifth, the Company is financially impaired in that it had a working capital deficiency of approximately $37,000 as of September 30, 2004, and is effectively using its common stock as "currency" in a manner that is highly dilutive to its existing shareholders. Furthermore, certain assets, including, but not limited to, the Company's auction content inventory, may be overstated on its balance sheet, and the Company may therefore be forced to record an impairment, "write down," or other charge to its assets. Sixth, the Company's lack of internal controls - including the Company's: (1) selective disclosure of material non-public information; (2) trading in its securities by insiders while in the position of material non-public information; and (3) engaging in transactions that are not in the economic interest of its shareholders, as well as the fact that a significant shareholder of the Company is the subject of a pending Commission regulatory matter - are contrary to the public interest. Seventh, the company made inaccurate representations in its Commission filings. Finally, the Company's actions as set forth in this paragraph constitute a material and blatant disregard of the Exchange's continued listing standards and are in violation of its listing agreements with the Exchange.
By letter dated January 10, 2005, Amex advised the Company that it was not in compliance with the Exchange's continued listing standards and, that pursuant to Section 1009(a) of the Company Guide, the Exchange determined that it was necessary for the protection of investors to truncate the continued listing evaluation and follow-up procedures as set forth in Section 1009 of the Company Guide. The Exchange's letter further advised the Company of the Exchange's intention to proceed with the filing of an application with the Commission to strike the Security from listing and registration on the Exchange and of the Company's right to appeal such determination.
By correspondence dated January 18, 2005, the Company appealed the Exchange's determination and requested an oral hearing before the Exchange's Listing Qualifications Panel. The Company subsequently withdrew its appeal by letter dated February 9, 2005.
The Commission, having considered the facts stated in Amex's application and having due regard for the public interest and protection of investors, orders that the application be, and it hereby is, granted, effective at the opening of business on March 9, 2005.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.3
Jonathan G. Katz
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