Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard
On November 17, 2011, CDC Software Corporation (the “Company”) received a
letter dated November 17, 2011 from The NASDAQ Stock Market, Inc. (“NASDAQ”),
stating that NASDAQ staff members (the “Staff”), exercising their discretionary
authority, have determined to delist the Company’s securities based on public
interest concerns under NASDAQ Listing Rule 5101 and the Company’s failure to
timely file its Annual Report on Form 20-F for the year ended December 31, 2010,
as required by Listing Rule 5250(c). Trading in the Company’s securities has
been halted by NASDAQ since October 5, 2011.
In its determination, the Staff noted that, in view of concerns of the
Supreme Court of the State of New York referenced in a July 13, 2011 order,
which was previously disclosed by the Company in a Current Report on Form 6-K,
dated July 15, 2011, and the recommendations of a joint special committee of the
boards of directors of the Company and its parent, CDC Corporation (“CDC”),
which were referenced in a Current Report on Form 6-K, dated October 20, 2011,
and furnished to the U.S. Securities and Exchange Commission by the Company, the
false testimony and actions of Mr. Peter Yip, the Company’s Chief Executive
Officer and Vice-Chairman of the board of directors (the “Board”), has been
contrary to the conduct expected by the Staff of an officer and director of a
public company. The Staff also noted that its public interest concerns were
amplified by several factors, including its beliefs relating to Mr. Yip’s
ability to exert substantial influence over the Company, its Board and the board
of directors of CDC.
Pursuant to the NASDAQ letter, the Company has until November 25, 2011 to
request a hearing before a NASDAQ Listing Qualifications Panel (the “Panel”).
Accordingly, the Company intends to timely request a hearing at which it will
address the concerns raised by the Staff and present its plan for regaining
compliance with all applicable requirements for continued listing. However,
there can be no assurance that the Panel will grant the Company’s request for
continued listing. In connection with the hearing request, the Company will also
request that the Staff’s delisting determination be stayed at least until the
Panel issues its decision following the hearing. In the event that NASDAQ
determines not to grant the stay, it is expected that the current trading halt
would be converted to a trading suspension on or about December 12, 2011. In
such an event, the Company’s securities would become eligible for trading in the
over-the-counter market at that time. The Company will make a further
announcement regarding its trading status following the receipt of NASDAQ’s
determination on the stay request, which is expected before December 12, 2011.
The Company expects that its hearing will be scheduled to occur early next year.
The Company issued a press release on November 23, 2011, disclosing its
receipt of the November 17, 2011 NASDAQ notice. A copy of the press release is
attached as Exhibit 99.4 and incorporated herein by reference.
This Form 6-K includes “forward-looking statements” within the meaning of
the United States Private Securities Litigation Reform Act of 1995. These
forward-looking statements include statements regarding: (i) statements preceded
by, followed by or that include the words “may,” “could,” “should,” “would,”
“believe,” “anticipate,” “estimate,” “expect,” “intend,” “plan,” “projects,”
“outlook,” or similar expressions; and (ii) the Company’s intent to appeal the
Staff’s delisting determination, and any potential exception to the NASDAQ
Listing Rules that may be granted to the Company by NASDAQ, (iii) the timing of
any future hearing or determination of NASDAQ, including, but not limited to any
future trading suspension, or (iv) whether the Company’s securities may be
eligible to trade on the over-the-counter market and other statements that are
not historical fact, the achievement of which involve risks, uncertainties and
assumptions, many of which are beyond the Company’s control. These statements
are based on management's current expectations and are subject to risks and
uncertainties and changes in circumstances. There are important factors that
could cause actual results to differ materially from those anticipated in the
forward looking statements, including the possibility that NASDAQ will not grant
the Company an exception to the Listing Rules. If any such risks or
uncertainties materialize or if any of the assumptions proves incorrect, the
Company’s results could differ materially from the results expressed or implied
by the forward-looking statements contained herein. All forward-looking
statements included in this Form 6-K are based upon information available to
management as of the date of this Form 6-K, and you are cautioned not to place
undue reliance on any forward looking statements, which speak only as of the
date of this Form 6-K. The Company assumes no obligation to update or alter the
forward looking statements whether as a result of new information, future events
or otherwise. For these and other reasons, investors are cautioned not to place
undue reliance upon any forward-looking statement in this Form 6-K.
Exhibit No. Description
99.1 Press release dated October 11, 2011
Nueske’s Applewood Smoked Meats Implements Ross ERP to Help Improve
Operational Efficiency and Facilitate its Growth
99.2 Press release dated November 1, 2011
CDC Software Launches Cloud Compensation and Benefits Solution on
Microsoft Azure Platform in China
99.3 Press release dated November 9, 2011
CDC Software Partners with Avnet Technology Solutions to
Facilitate Expansion in Indian Market
99.4 Press release dated November 23, 2011
CDC Software Announces Receipt of NASDAQ Delisting Notice;
Intends to Request a Hearing