SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
SECURITIES EXCHANGE ACT OF 1934
Rel. No. 34-37919A \ November 6, 1996
Admin. Proc. File No. 3-8868
_________________________________________________
:
In the Matter of the Application of :
:
PRAIRIE PACIFIC ENERGY CORPORATION :
Suite 302 :
1168 Hamilton Street :
Vancouver, British Columbia :
Canada V6B 2S2 :
:
For Review of Action Taken by the :
:
NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC. :
_________________________________________________:
OPINION OF THE COMMISSION
REGISTERED SECURITIES ASSOCIATION -- REMOVAL OF SECURITY
FROM THE NASDAQ SMALLCAP MARKET
Failure to Satisfy Requirements for Continued Inclusion
Where registered securities association removed a security
from its automated quotation system because the security
failed to maintain the required minimum bid price, held,
review proceeding dismissed.
APPEARANCES:
Ray A. Mantle, of Piper & Marbury, for Prairie Pacific
Energy Corporation.
T. Grant Callery and Shirley H. Weiss, for the National
Association of Securities Dealers, Inc.
Appeal filed: October 18, 1995
Last brief received: February 1, 1996
I.
Prairie Pacific Energy Corporation ("Prairie" or the
"Company") appeals the decision of the National Association of
Securities Dealers, Inc. ("NASD") to remove the Company's
securities from the Nasdaq SmallCap Market ("Nasdaq SmallCap").
The NASD found that those securities failed to maintain the
==========================================START OF PAGE 2======
required minimum bid price. -[1]- Our findings are based on
an independent review of the record.
II.
Prairie is a Canadian corporation engaged in oil and gas
exploration and production in Canada and the United States. The
Company's shares were included on Nasdaq SmallCap beginning in
1981.
By letter dated December 20, 1994, the NASD informed Prairie
that, based upon review of both price data from the previous ten
consecutive trading days and "the latest information" filed by
the Company, the NASD had concluded that Prairie's shares had
failed to maintain a $1 minimum bid price. The letter also
informed Prairie that the Company did not qualify for a waiver of
the minimum bid price requirement because it had not maintained a
public float market value of $1 million, and $2 million in
capital and surplus (the "Alternative Listing Criteria"). The
NASD gave Prairie ninety days in which to demonstrate the
eligibility of its shares for continued inclusion. -[2]-
The letter specified that Prairie could do this in one of two
ways: by demonstrating that its shares could maintain at least a
$1 bid price for ten consecutive trading days, or by satisfying
the Alternative Listing Criteria for ten consecutive trading
days.
During the following ninety days, the bid price for
Prairie's shares remained below $1. Consequently, on March 21,
1995, the NASD informed Prairie that its shares would be removed
---------FOOTNOTES----------
-[1]- The NASD recently revised and renumbered its Rules
of Practice; no substantive changes were made to
the particular rules at issue here. For continued
inclusion of a security on Nasdaq SmallCap,
Section 1(c)(4) of Part II of Schedule D to the
NASD's By-Laws [new Rule 4310(c)(4)] requires that
the security maintain a minimum bid price of $1.
This requirement is waived if the issuer maintains
a public float market value of $1 million and $2
million in capital and surplus.
-[2]- Section 1(c)(8)(b) of Part II of Schedule D to the
NASD's By-Laws [new Rule 4310(c)(8)(B)] provides
that, once the NASD determines that an issuer's
securities have failed to maintain the minimum bid
price required for continued inclusion, the NASD
must notify the issuer promptly and give the
issuer 90 calendar days in which to "achieve
compliance with the applicable continued inclusion
standard."
==========================================START OF PAGE 3======
from Nasdaq SmallCap on April 3, 1995. The NASD told Prairie
that the Company could avoid removal of its shares only if it
applied for, and the NASD granted, a temporary exception to the
minimum bid price requirement. -[3]-
Prairie thereafter advised the NASD that a March 29, 1995
purchase and sale agreement between the Company and Briggs Farms
Incorporated ("Briggs") would generate sufficient capital to
bring Prairie into compliance with the Alternative Listing
Criteria. -[4]- The Nasdaq Listing Qualifications Committee
(the "Qualifications Committee") accordingly agreed to consider
the Company's plan for compliance with the Alternative Listing
Criteria. At a hearing on May 2, 1995, Prairie's auditors
testified that the expected gain on the sale to Briggs had been
calculated consistent with Canadian accounting principles. The
auditors further testified that, if calculated consistent with
United States Generally Accepted Accounting Principles ("U.S.
GAAP"), the gain might not be sufficient to raise the Company's
capital and surplus to the level required by the Alternative
Listing Criteria.
During the hearing, the Qualifications Committee indicated
that it would need certain documentation in order to determine
whether Prairie had satisfied the Alternative Listing Criteria.
Accordingly, on May 10, 1995, the Qualifications Committee
granted Prairie a temporary exception through May 31, 1995. The
temporary exception instructed Prairie to obtain, by May 15, a
letter from an international accounting firm stating that the
firm could provide an audit opinion by the May 31 deadline. The
temporary exception further specified that the audit opinion
should be based upon Prairie's balance sheet and statement of
operations as of March 31, 1995, which would reflect the gain
realized on the Briggs transaction. The temporary exception also
required Prairie to file certain documentation with this
Commission and the NASD -- including an audited balance sheet and
statement of operations with a U.S. GAAP reconciliation --
---------FOOTNOTES----------
-[3]- Section 3(d) of Part II of Schedule D to the
NASD's By-Laws [new Rule 4330(d)] permits the NASD
to grant exceptions to certain inclusion
requirements "where [the NASD] deems it
appropriate."
-[4]- The agreement provided that Prairie would sell
Briggs more than 5,700,000 shares of Inspan Investments
Limited, a Canadian oil and gas development
company, as well as Prairie's interest in an oil
and gas processing facility. Upon consummation of
the sale, Prairie intended to lease back the
processing facility from Briggs at an initial cost
of $17,500 per month.
==========================================START OF PAGE 4======
evidencing the Company's compliance with the requirements for
continued inclusion of its shares on Nasdaq SmallCap.
By letter dated May 17, 1995, Prairie advised the NASD
regarding its efforts to secure the required audit opinion.
Prairie's letter also requested that the NASD "note that since
the May 2nd hearing, the bid price of the [Company's] stock ha[d]
achieved the $1 level." Prairie subsequently learned from its
accounting firm that the gain realized on the Briggs transaction,
if calculated consistent with U.S. GAAP, would not raise the
Company's capital and surplus to the level required for continued
inclusion of its shares on Nasdaq SmallCap. Following this news,
the Company abandoned its efforts to demonstrate compliance with
the Alternative Listing Criteria.
By letter dated June 2, 1995, sent by facsimile
transmission, Prairie notified the NASD that one of its market
makers had been offered 15,000 shares of what the Company
described as "restricted" Prairie stock -[5]- by another
broker-dealer. -[6]- The letter cautioned that "the actions
of [the broker-dealer] in offering these securities may disrupt
the normal market conditions" and expressed concern that such
disruption could affect adversely the bid price for Prairie's
shares.
On June 7, 1995, the Qualifications Committee reviewed
Prairie's submission regarding its compliance with the listing
requirements. The Qualifications Committee determined that the
Briggs transaction had not brought Prairie into compliance with
the Alternative Listing Criteria. The Qualifications Committee
then reviewed the bid price for the Company's shares, which again
had fallen below $1. The Qualifications Committee concluded that
the May rise in the shares' bid price had been temporary. It
further found that, during the fifteen trading days that the
shares' bid price was $1, Prairie's shares did not trade on
twelve of those days. Nevertheless, the Qualifications Committee
gave Prairie until June 28, 1995 to demonstrate that (1) its
---------FOOTNOTES----------
-[5]- Prairie asserts that, at sometime prior to late
1993, 500,000 shares of Prairie stock were placed
in escrow in anticipation of a private placement
and that those shares improperly were released
from escrow without the Company's
authorization.
-[6]- Prairie subsequently told the NASD that the market
maker actually had purchased 2,000 so-called
"restricted" shares from the broker-dealer on June
2, 1995 and that the offer of 15,000 "restricted"
shares was not made until June 5, 1995.
==========================================START OF PAGE 5======
shares could maintain, for ten consecutive trading days, a
minimum bid price of at least $1, with daily trading at that
price or (2) the Company could comply with the Alternative
Listing Criteria for ten consecutive trading days. -[7]-
Prairie thereafter failed to demonstrate compliance with the
Qualifications Committee's order. The bid price for Prairie's
shares remained below $1 from June 7, 1995 through July 14, 1995,
and the Company had made no further attempt to satisfy the
Alternative Listing Criteria. Accordingly, Prairie's shares were
removed from Nasdaq SmallCap effective July 17, 1995. This
decision was affirmed by the Nasdaq Hearing Review Committee (the
"Review Committee") on September 22, 1995.
III.
Prairie seeks reversal of the NASD's action and an order
directing the NASD again to include the Company's shares on
Nasdaq SmallCap. In general, on review of action of this nature,
we determine whether the specific grounds on which the NASD's
action is based exist in fact, whether such action is in
accordance with applicable NASD rules, and whether those rules
are, and were applied, consistent with the purposes of the
federal securities laws. -[8]-
We find that the NASD acted properly in removing Prairie's
shares from Nasdaq SmallCap, thus warranting dismissal of this
appeal proceeding. The NASD had notified Prairie that the bid
price for the Company's shares was below the $1 level required
for continued inclusion. Thereafter, the NASD twice monitored
---------FOOTNOTES----------
-[7]- During this second monitoring period, Prairie
objected by letter to the Qualifications
Committee's decision to condition its shares'
continued inclusion on daily trading of those
shares. The letter asserted that the market for
Prairie's shares had been disrupted, as evidenced
by a decline in both the shares' bid price and
trading volume, and that the disruption had
occurred after one of the Company's market makers
pulled its bid so as to avoid involvement with the
broker-dealer selling "restricted" Prairie stock.
The letter contended that the NASD, having failed
to discipline this broker-dealer for its
misconduct, could not rely on the effects of that
misconduct -- namely, the low bid price and
trading volume of Prairie's shares --to justify
the shares' removal from Nasdaq SmallCap.
-[8]- Section 19(f) of the Securities Exchange Act of
1934 (the "Exchange Act"), 15 U.S.C. 78s(f).
==========================================START OF PAGE 6======
the bid price of Prairie's shares to determine whether the
Company had regained compliance with the minimum bid price
requirement. At all times during both monitoring periods,
however, the shares' bid price remained below $1. Moreover,
while the bid price temporarily rose to $1 for fifteen
consecutive days between the monitoring periods, Prairie's shares
did not trade on twelve of those days. Following this temporary
rise, the shares' bid price again fell to below $1. -[9]-
Prairie's shares thus failed to meet the minimum bid price
requirement. Prairie was not eligible for a waiver of that
requirement because the Company had failed to demonstrate
compliance with the Alternative Listing Criteria. Accordingly,
the NASD removed Prairie's shares from Nasdaq SmallCap because
the Company was unable to satisfy the stated requirements for
continued inclusion. -[10]-
Prairie nonetheless claims that the NASD imposed upon the
Company inclusion criteria not contained in the NASD's By-Laws
and that the NASD abused its discretion in doing so. -[11]-
---------FOOTNOTES----------
-[9]- We reject Prairie's claims that this temporary
rise in its shares' bid price was sufficient to
satisfy the minimum bid price requirement and that
any subsequent attempt by the NASD to remove the
Company's shares required a new 90-day notice
period. See supra note 2.
-[10]- As the Review Committee summarized, "The Company
failed to achieve [a] $1 bid, and its shares were
delisted from Nasdaq SmallCap."
-[11]- While we do not view the NASD's actions here as
imposing additional criteria not specified in the
NASD's By-Laws, we note that the NASD has broad
discretionary authority to determine whether a
particular security should continue to be included
on the Nasdaq Stock Market ("Nasdaq"). Section 1
of Part II of Schedule D to the NASD's By-Laws
[new Rule 4300]. In addition to applying stated
qualification requirements, the NASD may impose
additional or more stringent criteria for the
continued inclusion of a security if the NASD
believes that such inclusion may be inadvisable or
unwarranted. Id. The By-Laws thus reflect the
broad nature of the NASD's mandate to maintain
Nasdaq market quality and protect investors, as
well as the impossibility of enumerating every
factor that could make continued inclusion of a
security inadvisable or unwarranted.
(continued...)
==========================================START OF PAGE 7======
We conclude that the NASD did not abuse its discretion when, upon
consideration of Prairie's continuing failure to comply with the
minimum bid price requirement, the NASD advised Prairie in June
1995 that its shares would remain on Nasdaq SmallCap only if the
Company could demonstrate that their bid price had been
determined through some level of trading. The Company's shares
previously had been thinly-traded, and their bid price had
remained below $1 from at least mid-December 1994 until mid-May
1995. Although the shares' bid price reached $1 on May 12, 1995
and remained at that level for fifteen days, the shares did not
trade on twelve of those days. Moreover, Prairie's counsel had
informed the NASD on June 2, 1995 that an offer of so-called
"restricted" Prairie stock could disrupt the market for the
Company's Nasdaq-listed shares. Taken together, these
circumstances raised legitimate NASD concerns about the degree of
market interest in and the liquidity of Prairie's shares --
factors that could affect adversely both prospective future
investors and the quality of Nasdaq SmallCap. Accordingly, the
NASD appropriately required the Company to dispel those concerns.
-[12]-
In any event, as we already have noted, the NASD's decision to
remove Prairie's shares from Nasdaq SmallCap ultimately was based
solely upon the failure to maintain the required minimum bid
price.
We further conclude that the NASD did not deny Prairie due
process. Once the bid price for Prairie's shares fell below the
required minimum, the NASD gave the Company three opportunities
---------FOOTNOTES----------
-[11]-(...continued)
The NASD's authority to make a broad-based inquiry into a
security's fitness for continued inclusion is especially
important given the expectations of investors and the
imprimatur of a Nasdaq listing. The Commission long has
recognized that prospective investors should be able to
assume that Nasdaq-listed securities meet the market's
standards. Gunther International Ltd., Exchange Act Release
No. 37073 (April 5, 1996), 61 SEC Docket 2081, 2087 and
cases therein cited. In addition, Nasdaq-listed securities
often qualify for margin loans and are exempt from certain
penny stock rules as well as many state securities laws.
Exchange Act Release No. 34151 (June 3, 1994), 59 Fed. Reg.
29,843, 29,845-46.
-[12]- Cf. Rule 499.10, New York Stock Exchange Guide,
2499 (Exchange may consider "abnormally low
selling price or volume of trading" in determining
the suitability of a security for continued
inclusion).
==========================================START OF PAGE 8======
to regain compliance -- two more than the By-Laws require.
-[13]- Each time, the NASD gave Prairie specific notice of
what the Company had to demonstrate so that its securities could
continue to be included on Nasdaq SmallCap, as well as the time
frame within which the Company had to make the required showing.
Prairie further contends that its inability to maintain a $1
bid price is due in part to the NASD's failure to maintain an
orderly market for the Company's shares. -[14]- On this
basis, Prairie asserts that the NASD should be estopped from
removing the Company's shares from Nasdaq SmallCap. However,
Prairie cannot avoid removal of its shares by pointing to alleged
shortcomings in the NASD's regulatory activities. -[15]-
The material issue is Prairie's inability, for whatever reason,
to meet the standards required of Nasdaq-listed companies.
---------FOOTNOTES----------
-[13]- See supra note 2. See also Biorelease
Corporation, Exchange Act Release No. 35575 (April 6, 1995),
59 SEC Docket 84, 92 (NASD did not act
arbitrarily in removing shares of issuer
where, among other things, issuer was
given series of opportunities to resolve
non-compliance with Nasdaq SmallCap
requirements for continued inclusion).
-[14]- Prairie makes three claims in this regard. First,
Prairie claims that the NASD failed, despite the
Company's entreaties, to take action against the
broker-dealer that allegedly sold "restricted"
Prairie stock. See supra notes
5-6 and accompanying text. Second, Prairie claims that low
trading volume occurred at the $1 bid price because "the bid
price [wa]s too low and needed to be higher to induce
sellers." Prairie asserts that the NASD should have looked
into whether the Company's market makers had acted in
accordance with Part VI of Schedule D to the NASD's By-Laws
when setting that bid price. We note that Prairie did not
raise this argument before the NASD. Finally, Prairie
claims that the NASD should have investigated what the
Company asserts was a discrepancy between the price for
Prairie's shares on Nasdaq SmallCap and their price on the
Alberta Stock Exchange.
-[15]- Cf. Richard R. Perkins, 51 S.E.C. 380, 384 n.20
(1993) (in disciplinary context, regulatory
authority's failure to take early action against a
securities law violator neither operates as
estoppel of later action against that wrongdoer
nor cures the violation) and cases therein cited.
==========================================START OF PAGE 9======
In a submission to the Review Committee challenging the
removal of its shares, Prairie argued that its management "has
sought to build shareholder value in the Company, in the
expectation that the market would respond accordingly." Allowing
Prairie's shares to remain on Nasdaq SmallCap might well benefit
the Company and its existing shareholders. However, we have made
clear that the NASD's primary consideration in determining
whether to remove a security must be the interests of prospective
investors. -[16]- In any event, Prairie's shares are
traded on the Alberta Stock Exchange, and the Company also may
trade its shares on the OTC Bulletin Board.
---------FOOTNOTES----------
-[16]- DHB Capital Group, Inc., Exchange Act Release No.
37069 (April 5, 1996), 61 SEC Docket 2049, 2056
and cases therein cited.
==========================================START OF PAGE 10======
IV.
We find that a sufficient factual basis existed to remove
Prairie's securities from Nasdaq SmallCap, that the NASD acted
fairly and in accordance with its rules and that those rules are,
and were applied, consistent with the purposes of the federal
securities laws. Accordingly, we have determined to dismiss this
review proceeding.
An appropriate order will issue. 17/
By the Commission (Chairman LEVITT and Commissioners WALLMAN
and HUNT); Commissioner JOHNSON not participating.
Jonathan G. Katz
Secretary
17/ All of the contentions advanced by the parties have been
considered. The contentions are rejected or sustained to
the extent that they are inconsistent or in accord with the
views expressed herein.
UNITED STATES OF AMERICA
before the
SECURITIES AND EXCHANGE COMMISSION
SECURITIES EXCHANGE ACT OF 1934
Rel. No. 34-37919A \ November 6, 1996
Admin. Proc. File No. 3-8868
_________________________________________________
:
In the Matter of the Application of :
:
PRAIRIE PACIFIC ENERGY CORPORATION :
Suite 302 :
1168 Hamilton Street :
Vancouver, British Columbia :
Canada V6B 2S2 :
:
For Review of Action Taken by the :
:
NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC. :
_________________________________________________:
ORDER DISMISSING REVIEW PROCEEDING
On the basis of the Commission's opinion issued this day,
it is
ORDERED that the application for review filed by Prairie
Pacific Energy Corporation be, and it hereby is, dismissed.
By the Commission.
Jonathan G. Katz
Secretary