Rocky's Corner:

[jckrdu]

As an ad-hoc devil's advocate I ask: What do they gain by this (except than more negative posts on Icell)? The difference is only 2%, and we'll have a new number next month anyway. Did anyone look at that factsheet other than Rocky? I didn't.

I agree with Rocky. ACTC cracks open that document, makes a bunch of updates (multiple times).... and then forgets or overlooks updating the OS number? Why do I want to read that updated document if ACTC is cherry picking the information they update?

It's either sloppiness or a willfull attempt to conceal information. My guess is that its just sloppiness..... but the impact of that sloppiness is that it generates mis-trust.... especially when you combine it with the fact that they've gaged the transfer agent.

[catchall]

As an ad-hoc devil's advocate I ask: What do they gain by this (except than more negative posts on Icell)? The difference is only 2%, and we'll have a new number next month anyway. Did anyone look at that factsheet other than Rocky? I didn't.

I look at the fact sheet regularly. It is on an official company site of information.
The truth and all the facts will clarify what they gain.(now?) To engender trust from the ignorant masses it is not necessary to tell the truth. Those here who want complete honest information may not be content with less than the truth. IMO that is the category of the aronson lawsuit ( because in all of GRs wisdom and skills they were unable to reach a negotiated settlement thus it sits in gortons' court) Someone felt they were mislead and due more. The SEC complaint shows clearly to me that shareholders were left as bagholders for 1/10 value through the issuance of those recurring steaming piles of shares that bought back debt for 1/10 the shares value at delivery.
Those who are current bagholders or potential grand slam hitters are too close to the smoke of the fire to see a clear sky. At least I was when I kept using (AMD{legally blind} vision). I wish long shareholders great luck in getting out from under the lowest share price value in over a year. A path out is through the clear accurate complete thorough inclusive information the company eventually has the willingness to let out.
Yet the company probably can only work with what they have and how do they say it? ~~~apple polish it for the teacher/receiver?~~~~~~
I follow the company information closely and believe in the science potential of ES cells and am not interested in buying the lowest share price that is offered in this going around. but I may be fortunate and have a chance at a first or second or third test. I do not expect that either. I just sleep better with the directional train going my way.

The question was what do they have to gain? [now]? {{{now ~~when momentum is against them is how I interpret the question}}}

[rocky301]

I was asked by a few investors to see if I could find out how long a Nasdaq approval
is good for, below is my finding. This response would quell the idea we can receive "approval"
and sit on the listing approval for weeks or months for a pps rise or anything else...thanks

Question:

I have a question and hope you can answer or refer me to someone who can.

A company currently trading on the OTC: Bulletin Board makes an initial application to the Nasdaq dependent on a reverse split to meet price requirement. The Nasdaq APPROVES the application.

My Question: How long is the above approval good for? days, weeks, months or must the move be made right away? Thank you for any help you can provide..

Response:

Thank you for inquiry.

Generally we wouldn't approve an application dependent on a reverse split but would require the company to complete the split prior to approval. If a company completes a reverse stock split to meet a listing requirement they are generally required to maintain the price post split for a minimum of five trading days before they can be approved.

Please note that in certain circumstances companies are required to comply with the price requirement for considerably longer periods prior to approval.

Once approved the applicant is expected to list promptly.

William Slattery, CFA
The NASDAQ OMX Group

[rocky301]

An example of "normal" filing/PR progression in the Nasdaq approval process:

PR
On November 25, 2009, China Biologic Products, Inc. (the "Company"), received approval to list its securities on The NASDAQ Global Market ("NASDAQ") under the Company's current symbol, "CBPO." The Company will begin trading on NASDAQ or about December 2, 2009.

SEC Filing Registering under Section 12(b)..mandatory(see below)
8-A12B Registration of securities [Section 12(b)] 2009-12-01

CERTNAS: SEC Filing..Certification by the National Association of Securities Dealers Automated Quotation approving securities for listing....2009-12-01

(info on registration)
__________________________________________________ ______________________

Is Registration under the Securities Exchange Act of 1934 required before a security can be admitted to trading on The NASDAQ Stock Market?

Yes. A security approved for listing by NASDAQ must be registered under Section 12(b) of the Securities Exchange Act of 1934 before it can be listed on The NASDAQ Stock Market. Exchange Act registration is required even though the applicant may have previously registered all or part of the securities under the Securities Act of 1933. A security which has already been registered under Section 12(g) of the Exchange Act, or has recently been the subject of a public offering registered under the Securities Act, can usually be registered under Section 12(b) by using SEC Form 8-A. If an applicant does not have a class of securities registered under the Exchange Act Section 12(g), SEC Form 10 may be required.
Listing On Nasdaq - Listing Process

[Bogeyfree]

I was asked by a few investors to see if I could find out how long a Nasdaq approval
is good for, below is my finding. This response would quell the idea we can receive "approval"
and sit on the listing approval for weeks or months for a pps rise or anything else...thanks

Question:

I have a question and hope you can answer or refer me to someone who can.

A company currently trading on the OTC: Bulletin Board makes an initial application to the Nasdaq dependent on a reverse split to meet price requirement. The Nasdaq APPROVES the application.

My Question: How long is the above approval good for? days, weeks, months or must the move be made right away? Thank you for any help you can provide..

Response:

Thank you for inquiry.

Generally we wouldn't approve an application dependent on a reverse split but would require the company to complete the split prior to approval. If a company completes a reverse stock split to meet a listing requirement they are generally required to maintain the price post split for a minimum of five trading days before they can be approved.

Please note that in certain circumstances companies are required to comply with the price requirement for considerably longer periods prior to approval.

Once approved the applicant is expected to list promptly.

William Slattery, CFA
The NASDAQ OMX Group

Rocky,

So if I am reading this correctly and since ACTC already has the approval to do the RS, they would need to do the following:

1) submit their Nasdaq up list application
2) move forward with the RS
3) hold that price for at least 5 days (assuming they can time when the approval will be granted)
4) then get approved to uplist

Do I have that right?

If so is concomitant really doable or just a nice buzz word?

All IMHO

Bogeyfree

[rocky301]

Rocky,

So if I am reading this correctly and since ACTC already has the approval to do the RS, they would need to do the following:

1) submit their Nasdaq up list application
2) move forward with the RS
3) hold that price for at least 5 days (assuming they can time when the approval will be granted)
4) then get approved to uplist

Do I have that right?

If so is concomitant really doable or just a nice buzz word?

All IMHO

Bogeyfree

Bogey,

Generally, doesn't mean set in stone to me. I will do more checking as time permits.

"Generally we wouldn't approve an application dependent on a reverse split"

I am assuming his response was based on Nasdaq info below..


Can a seasoned issuer effect a reverse stock split to meet the minimum bid price requirement for initial listing?

A seasoned issuer may complete a reverse stock split to comply with NASDAQ's minimum bid price requirement for initial listing. Generally, when this happens, NASDAQ will require that the issuer continue to meet the bid price requirement for a minimum of five consecutive trading days after the split takes place. This means that on each of the five days the issuer must at some point during normal trading hours have a bid price which is at or above the applicable initial listing criteria.

Please note that NASDAQ may, in its discretion, also require an issuer to maintain the required minimum bid price for a period in excess of five consecutive business days, but generally no more than ten consecutive business days, before determining that the issuer has demonstrated compliance. In determining whether to require a longer waiting period, NASDAQ will consider the following four factors:

Margin of compliance (the amount by which the price is above the minimum standard);
Trading volume (a lack of trading volume may indicate a lack of bona fide market interest in the security at the posted bid price);
Where applicable, the market maker montage (the number of market makers quoting at or above the minimum required bid and the size of their quotes); and,
The trend of the stock price (is it up or down?).
https://listingcenter.nasdaqomx.com/...QsInitial.html

[Joseph Exline]

Beginning to sound like we will need a real Position of Strength not these little whisps of smoke that come and go as needed by management.Given these latest findings,it is starting to sound like we will need a substantial JV to insure once approved we will still remain eligible for the uplist.

What a tangled web BC has woven.

A wise man once said, "Don't worry about a thing,Nothing's gonna be alright!"

[billhouston]

"A wise man once said, "Don't worry about a thing,Nothing's gonna be alright!"..."

PRICELESS...

[rocky301]

mail question,

"is their a site we can access to see if ACT has made Nasdaq application?"

I was quite sure the answer was NO but checked anyway.

"The application process is confidential so we would not be in a position to disclose this information."

William Slattery, CFA
The NASDAQ OMX Group

[Bogeyfree]

mail question,

"is their a site we can access to see if ACT has made Nasdaq application?"

I was quite sure the answer was NO but checked anyway.

"The application process is confidential so we would not be in a position to disclose this information."

William Slattery, CFA
The NASDAQ OMX Group

Rocky,

This was talked about before but I don't think we ever got first hand confirmation from the Nasdaq, can a company who has a current SEC lawsuit filed against them be granted uplist approval or does the Nasdaq require these issues be settled before any approval?

I thought I'd ask since it looks like you have a nice direct pipeline going over there at the Nasdaq.

I'd love to get this resolved once and for all as it would also help me with Rabin's last comment, something about getting the last few boxes checked for the application.

Thanks in advanced for your help.

All IMHO

Bogeyfree

[rocky301]

Rocky,

This was talked about before but I don't think we ever got first hand confirmation from the Nasdaq, can a company who has a current SEC lawsuit filed against them be granted uplist approval or does the Nasdaq require these issues be settled before any approval?

I thought I'd ask since it looks like you have a nice direct pipeline going over there at the Nasdaq.

I'd love to get this resolved once and for all as it would also help me with Rabin's last comment, something about getting the last few boxes checked for the application.

Thanks in advanced for your help.

All IMHO

Bogeyfree

Bogey,

they cannot and will not respond to specific companies or specific lawsuit issues. I was referred
to this section of listing application quite a while back...thanks

Regulatory Proceedings/Litigation

1. With respect to the company, its predecessors and its subsidiaries, provide a detailed description of all inquiries, investigations, lawsuits, litigation, arbitration, hearings, or any other legal or administrative proceedings commenced within the past ten years:

a) that are or were initiated or conducted by any regulatory, civil or criminal agency (including but not limited to the SEC, FINRA, PCAOB, state securities regulators, Commodities Futures Trading Commission, Department of Justice, state bar associations, state boards of accountancy, or any foreign regulatory, civil or criminal authority); or

b) in which claims material to the company are or were asserted under federal and/or state securities, tax or bankruptcy laws; or

c) in which claims material to the company are or were asserted otherwise alleging fraud, deceit or misrepresentation. To the extent that such items have been disclosed in the company’s SEC filings, the applicant may refer to and/or submit copies of the relevant SEC’s filings in which such matters were disclosed in lieu of providing a detailed description.
In connection with all proceedings that have been concluded, please provide documentation, which reflects the final disposition of each proceeding. The company should update Staff promptly of any and all material developments related to the matters identified in the response to these questions and should supplement its response if additional matters arise while its application is pending.

[rocky301]

Once application is submitted,

Listing Timeline

While it generally takes four to six weeks to process a listing application, this time frame is variable
and may be shortened considerably, if the application raises no issues and the company responds
quickly to Staff comments.

Week 1. Company submits application for listing and NASDAQ Listing Qualifications Staff begins its
review.

Weeks 2-3. Staff completes its preliminary review and prepares comment letter.

Weeks 3-4. Company addresses any issues raised by Staff.

Weeks 5-6. Staff completes their review and company is approved for listing.
https://listingcenter.nasdaqomx.com/...itialguide.pdf

[rocky301]

NASDAQ Corporate Governance Requirements
slide 10-12 here, I posted what I thought might bring a smile to some here..
https://listingcenter.nasdaqomx.com/...itialguide.pdf


Compensation of Executive Officers

Independent directors must determine the compensation of
the chief executive officer and other executive officers.

Shareholder Approval REQUIRED

The company is required to obtain shareholder approval of
certain issuances of securities, including:

• Acquisitions where the issuance equals 20% or more
of the pre-transaction outstanding shares, or 5% or
more of the pre-transaction outstanding shares when
a related party has a 5% or greater interest in the
acquisition target

• Issuances resulting in a change of control

• Equity compensation

• Private placements where the issuance equals 20% or
more of the pre-transaction outstanding shares at a
price less than the greater of book or market value.

[catchall]

Rocky,

This was talked about before but I don't think we ever got first hand confirmation from the Nasdaq, can a company who has a current SEC lawsuit filed against them be granted uplist approval or does the Nasdaq require these issues be settled before any approval?

I thought I'd ask since it looks like you have a nice direct pipeline going over there at the Nasdaq.

I'd love to get this resolved once and for all as it would also help me with Rabin's last comment, something about getting the last few boxes checked for the application.

Thanks in advanced for your help.

All IMHO

Bogeyfree

In addition to the above question it seems good questions for the uplist with a company with ongoing litigation that deserves cogitation are not limited to:
+once on the exchange following an RS which creates higher individual share value is there any protection these shares have to being naked shorted? ( this is not toxic financing but oddly similar)
+is there reason to expect financially savy traders to buy the litigated against company vs selling it down because the litigation (potential results) may weaken it?
+how does smart money respond to weakness in the near term does it support it or prey upon it?

facebook came to market and took a 40% haircut from the gitgo.

[Actc_fan]

I agree with Rocky. ACTC cracks open that document, makes a bunch of updates (multiple times).... and then forgets or overlooks updating the OS number? Why do I want to read that updated document if ACTC is cherry picking the information they update?

It's either sloppiness or a willfull attempt to conceal information. My guess is that its just sloppiness..... but the impact of that sloppiness is that it generates mis-trust.... especially when you combine it with the fact that they've gaged the transfer agent.

My vote is sloppiness all around. The second page still highlights Casey's IRB approval..

[Actc_fan]

NASDAQ Corporate Governance Requirements
slide 10-12 here, I posted what I thought might bring a smile to some here..
https://listingcenter.nasdaqomx.com/...itialguide.pdf


Compensation of Executive Officers

Independent directors must determine the compensation of
the chief executive officer and other executive officers.

Shareholder Approval REQUIRED

The company is required to obtain shareholder approval of
certain issuances of securities, including:

• Acquisitions where the issuance equals 20% or more
of the pre-transaction outstanding shares, or 5% or
more of the pre-transaction outstanding shares when
a related party has a 5% or greater interest in the
acquisition target

• Issuances resulting in a change of control

• Equity compensation

• Private placements where the issuance equals 20% or
more of the pre-transaction outstanding shares at a
price less than the greater of book or market value.

Excellent. I'll be hoping to see a change in commitees in the next 10Q.

[stemboat]

NASDAQ Corporate Governance Requirements
slide 10-12 here, I posted what I thought might bring a smile to some here..
https://listingcenter.nasdaqomx.com/...itialguide.pdf


Compensation of Executive Officers

Independent directors must determine the compensation of
the chief executive officer and other executive officers.

Shareholder Approval REQUIRED

The company is required to obtain shareholder approval of
certain issuances of securities, including:

• Acquisitions where the issuance equals 20% or more
of the pre-transaction outstanding shares, or 5% or
more of the pre-transaction outstanding shares when
a related party has a 5% or greater interest in the
acquisition target

• Issuances resulting in a change of control

• Equity compensation

• Private placements where the issuance equals 20% or
more of the pre-transaction outstanding shares at a
price less than the greater of book or market value.

Thank you Rocky. Bring on NASDAQ as soon as possible.

[rocky301]

Excellent. I'll be hoping to see a change in commitees in the next 10Q.

Actc,

ACT has 3 independent directors on Comp committee so I don't envision any changes for a couple years.

__________________________________________________ _____________________________________
A company's board of directors consists of a majority of independent directors. May the whole board serve as a compensation committee?

No. Listing Rule 5605(d) requires executive officer compensation decisions to be made by independent directors. Under the rule, this can be done either by a majority of the independent directors, or by a committee comprised solely of independent directors. If the company chooses to rely on a vote of a majority of the independent directors, the independent directors must meet alone to make these decisions, such as during the executive sessions of independent directors. (Initial Posting: September 2, 2009)

How many directors are required to serve on a compensation committee?

NASDAQ rules do not specify how many directors must serve on a compensation committee. However, for a company to be eligible to appoint a non-independent director under the "exceptional and limited circumstance" provision of Listing Rule 5605(d)(3), the compensation committee must consist of at least three directors. (Initial Posting: September 2, 2009)

Does ratification of executive compensation satisfy the requirements of Rule 5605(d)?
No. Rule 5605(d) requires that independent directors "determine" executive compensation. As such, subsequent ratification by the independent directors after the compensation has already been determined does not satisfy the rule. (Initial Posting: March 7, 2012)

Must a company obtain approval from NASDAQ in order to utilize the "exceptional and limited circumstances" according to Listing Rule 5605(d)(3)?

No, a company may choose to rely on the exception without obtaining NASDAQ's approval. A company that relies on this exception must disclose either on or through the company's website or in the proxy statement for the next annual meeting subsequent to such determination (or, if the company does not file a proxy, in its Form 10-K or 20-F), the nature of the relationship and the reasons for the determination. In addition, the company must provide any disclosure required by Instruction 1 to Item 407(a) of Regulation S-K regarding its reliance on this exception. A member appointed under this exception may not serve longer than two years. (Initial Posting: July 30, 2010)

[rocky301]

posted on main board but wanted it here for easier access in future...thanks

To all,

With regard to the above and whether or not ACT and Oxford would be competing for the "first approved"
Orphan Approval for Stargardt, I fired off an e-mail to Office of Orphan Products Development Food and Drug
Administration. I will post any response I receive...thanks

Hello,

I have a question on (2) companies that both have Orphan designations for Stargardts Disease.
Both companies now in Phase 1/2 clinical trials. Cell Therapy verses Gene Therapy

Advanced Cell Technology...Cell Therapy

Oxford Biomedica...Gene Therapy

Here is my question. Would the above two companies be competing for "first-approved" therapy? OR
are they completely different via the "active moiety" definition(below) and both could possibly be approved
using different therapies? Any help certainly appreciated on this issue as the following paragraph
shows the importance of "first approved"...thank you very much


USA
•A guaranteed 7-year monopoly on drug sales for the first company to obtain FDA marketing approval of a particular drug. This applies only to the approved use of the drug. Another application for a different use could also be approved by the FDA, and the company would have exclusive marketing rights for the drug for that use as well.

Once a product has been approved for marketing for a specific orphan indication, subsequent drugs with the same active moiety may be prevented from receiving orphan drug benefits or approval for the same indication (if the period of orphan exclusivity on the first-approved drug has not expired) unless they can be demonstrated to be clinically superior to the first-approved drug.

FDA active moeity definition:
http://www.fitzpatrickcella.com/DB6E...ment220.ppt#24

Here is the response from Office of Orphan Products Development to above question I posed, (my bolding)
thanks


Good afternoon,

Orphan drug designation is granted for a drug or biologic for the treatment, diagnosis, or prevention of a rare disease or condition. If a company has received orphan drug designation for treatment of a disease or condition and receives marketing approval for the designated drug for the designated disease or condition and it is the first company to obtain marketing approval for that drug for that indication, then the company receives 7 years of marketing exclusivity meaning that the FDA will not approve a subsequent sponsor's marketing application for the same drug for the same indication for 7 years. In a case where two companies have different drugs or bioligics that are being developed for the same disease or condition, approval of a cell therapy (for instance) would not block approval of a gene therapy or visa versa. They could both be awarded 7 years of marketing exclusivity upon FDA approval assuming that they were the first company to get their drug (or biologic) approved for the designated indication.

I hope that this has answered your question. Please do not hesitate to contact me if you have further questions.

Henry Startzman III, M.D.
Office of Orphan Products Development

[catchall]

Has anything new happened on this front in the last week? Any new responses with the legal stuff?

Bogey,

they cannot and will not respond to specific companies or specific lawsuit issues. I was referred
to this section of listing application quite a while back...thanks

Regulatory Proceedings/Litigation

1. With respect to the company, its predecessors and its subsidiaries, provide a detailed description of all inquiries, investigations, lawsuits, litigation, arbitration, hearings, or any other legal or administrative proceedings commenced within the past ten years:

a) that are or were initiated or conducted by any regulatory, civil or criminal agency (including but not limited to the SEC, FINRA, PCAOB, state securities regulators, Commodities Futures Trading Commission, Department of Justice, state bar associations, state boards of accountancy, or any foreign regulatory, civil or criminal authority); or

b) in which claims material to the company are or were asserted under federal and/or state securities, tax or bankruptcy laws; or

c) in which claims material to the company are or were asserted otherwise alleging fraud, deceit or misrepresentation. To the extent that such items have been disclosed in the company’s SEC filings, the applicant may refer to and/or submit copies of the relevant SEC’s filings in which such matters were disclosed in lieu of providing a detailed description.
In connection with all proceedings that have been concluded, please provide documentation, which reflects the final disposition of each proceeding. The company should update Staff promptly of any and all material developments related to the matters identified in the response to these questions and should supplement its response if additional matters arise while its application is pending.