SECURITIES AND EXCHANGE COMMISSION
Self-Regulatory Organizations; Order Granting Application to Strike From Listing and Registration; The Pacific Exchange, Inc. (Z-Seven Fund, Inc., Common Stock, $1.00 par value) File No. 1-08664
February 18, 2005
The Pacific Exchange, Inc. ("Exchange"), on behalf of its subsidiary, PCX Equities, Inc. ("PCXE"), has 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, $1.00 par value ("Security"), of Z-Seven Fund, Inc. ("Company") from listing and registration on the Exchange.
PCXE Rule 5.5 states that, as a matter of policy, when a listed company fails to meet any of the listing maintenance requirements and has more than one class of securities listed, PCXE will give consideration to delisting all such classes. However, PCXE may continue the listing of one class of securities regardless of its decision to delist another class. The securities of a company will be subject to suspension and/or withdrawal from listing and registration as a listed issue if PCXE finds that a listed company fails to meet the maintenance requirements or fails to comply with Exchange's listing policies or agreements.
In applying these policies, PCXE will consider delisting the common stock of a company designated under Tier II, if the following requirements of PCXE Rule 5.5(h) are not met: (i) publicly held shares of at least 300,000 and a market value of at least $500,000; (ii) 250 public beneficial holders; (iii) total net tangible assets of at least $500,000, or net worth of at least $2,000,000; and (iv) share bid price of at least $1.00. As set forth in Rule 5.5(h), PCXE may waive such requirements upon consideration of market conditions, the issuer's capitalization, the number of outstanding and publicly held shares, and any other factors PCXE deems appropriate.
PCXE Rule 5.5(l) provides that PCXE may consider suspending or delisting securities of a company when the issuer fails to comply with the Exchange's listing policies or agreements as evidenced by the Company's failure to schedule annual meetings and file the proxy statements for such meetings.3
PCXE stated in its application that the Company's Security does not qualify for continued listing because the Company failed to schedule annual meetings and did not file the appropriate proxy statements for such meetings. PCXE had made several attempts to contact the Company to advise them of this issue and received no response. PCXE therefore determined that the Company was not in compliance with PCXE's disclosure requirements regarding such notices and with the terms of its listing agreement with the Exchange.4
In reviewing the eligibility of the Security for continued listing, PCXE has complied with its delisting policies and procedures as follows.
On December 31, 2004, the Exchange announced the suspension of trading in the Company's Security effective at the opening of business on January 3, 2005. The Company was advised by letter dated December 31, 2004, of its failure to comply with PCXE's disclosure requirements and with the terms of its listing agreement with the Exchange. This letter offered the Company an opportunity to submit any further information for PCXE's review by January 20, 2005 and briefly explained the initial delisting procedures. On January 20, 2005, PCXE reviewed the Company's non-compliance with PCXE's Rules 5.3(i)(1)(i)(B) and 5.5(l)(1) and determined to delist the Security.
By letter dated January 21, 2005, PCXE formally advised the Company of PCXE's decision to delist the Security and offered the Company an opportunity to submit an appeal, within five business days from the date of receipt of such letter, and request a hearing to present their case for continued listing. Because the Company waived its right to a hearing by allowing time to elapse, the Exchange proceeded with the delisting and filed this application with the Commission for the removal of the Security from listing and registration on the Exchange.
The Commission, having considered the facts stated in the 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 February 22, 2005.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.5
Jonathan G. Katz
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