form8k_nasdaq.htm

0000720851-07-000053.txt : 20071025 0000720851-07-000053.hdr.sgml : 20071025 20071025171423 ACCESSION NUMBER: 0000720851-07-000053 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20071023 ITEM INFORMATION: Other Events ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20071025 DATE AS OF CHANGE: 20071025 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NESTOR INC CENTRAL INDEX KEY: 0000720851 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 133163744 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-12965 FILM NUMBER: 071191513 BUSINESS ADDRESS: STREET 1: 42 ORIENTAL STREET STREET 2: THIRD FLOOR CITY: PROVIDENCE STATE: RI ZIP: 02908 BUSINESS PHONE: 4012745658 MAIL ADDRESS: STREET 1: 42 ORIENTAL STREET STREET 2: THIRD FLOOR CITY: PROVIDENCE STATE: RI ZIP: 02908 8-K 1 form8k_nasdaq.htm FORM 8K NASDAQ form8k_nasdaq.htm

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): October 23, 2007

NESTOR, INC.

(Exact name of registrant as specified in its charter)

Delaware

(State or other jurisdiction of incorporation)

0-12965	13-3163744
(Commission File Number)	(IRS Employer Identification Number)

42 Oriental Street; Third Floor, Providence, Rhode Island

(Address of principal executive offices)

(401) 274-5658

(Registrant’s telephone number, including area code)

Not Applicable

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 8.01. Other Events

Nestor, Inc. (the “Company”) announced today that it received notice from the Nasdaq Stock Market (“Nasdaq”) that the Company had qualified for an additional 180 days to meet Nasdaq’s continued listing requirements. On April 23, 2007, Nasdaq had notified the Company that the bid price of the Company’s common stock had closed at less than $1.00 per share for more than 30 consecutive business days. As a result, the Company did not comply with Marketplace Rule 4310(c)(4) (the “Rule”). In accordance with Marketplace Rule 4310(c)(8)(D), the Company had 180 calendar days, or until October 22, 2007, to regain compliance with the Rule. As of October 22, 2007, the Company had not achieved compliance with the Rule.

In the notice received by the Company on October 23, 2007, Nasdaq advised the Company that because the Company met all initial inclusion criteria for the Nasdaq Capital Market set forth in Marketplace Rule 4310(c) (except for bid price), the Company will now be provided an additional 180 calendar day compliance period, or until April 21, 2008, to regain listing compliance. This 180 day extension is in accordance with Marketplace Rule 4310(c)(8)(D). If, at anytime before April 21, 2008, the bid price of the Company’s common stock closes at $1.00 per share or more for a minimum of 10 consecutive business days, Nasdaq will provide written notification that it complies with the Rule.

If the Company cannot demonstrate compliance with the Rule by April 21, 2008, Nasdaq will provide written notification that the Company’s securities will be delisted from the Nasdaq Capital Market. At that time, the Company may appeal Staff’s determination to a Listing Qualification Panel (the “Panel”). Please note that if the Company appeals it will be asked to provide a plan to regain compliance to the Panel, and that historically Panels have generally viewed a near-term reverse stock split as the only definitive plan acceptable to resolve a bid price deficiency. A delisting of the Company’s stock for more than five consecutive days or for more than an aggregate of 10 days in any 365-day period would constitute an event of default under the terms of the Company’s 7% Senior Secured Convertible Notes dated May 25, 2006. A default under the 7% Notes would in turn be a default under the Company’s 5% Senior Convertible Notes due October 31, 2007.

Because the Company can effect a reverse stock split to cure its non-compliance with the Rule, the Company does not believe that delisting is likely.

Item 9.01. Financial Statements and Exhibits

(d)

Exhibits

Exhibit No. Description

99.1 NASDAQ correspondence dated October 23, 2007

99.2 Press Release dated October 25, 2007 regarding private placement.

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

		NESTOR, INC.


	By:	/s/ Brian R. Haskell
		Brian R. Haskell
		Vice President and General Counsel




Date:October 25, 2007

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EX-99.1 2 exhibit99_1.htm NASDAQ CORRESPONDENCE exhibit99_1.htm

NASDAQ®

The Nasdaq Stock Market

9600 Blackwell Road

Rockville, MD 20850

By Electronic Delivery to: bhaskell@nestor.com

October 23, 2007

Mr. Brian Haskell

Vice President, General Counsel and Secretary

Nestor, Inc

42 Oriental Street

Providence, RI 02908

Re: Nestor, Inc. (the “Company”)

NASDAQ Symbol: NEST

Dear Mr. Haskell:

On April 23, 2007, Staff notified the Company that the bid price of its common stock had closed at less than $1.00 per share over the previous 30 consecutive business days, and, as a result, did not comply with Marketplace Rule 4310(c)(4) (the “Rule”). Therefore, in accordance with Marketplace Rule 4310(c)(8)(D), the Company was provided 180 calendar days, or until October 22, 2007, to regain compliance with the Rule.

The Company has not regained compliance with the Rule. However, Staff notes that on October 22, 2007, the Company met all initial inclusion criteria for the Capital Market set forth in Marketplace Rule 4310(c) (except for bid price).¹ Therefore, in accordance with Marketplace Rule 4310(c)(8)(D), the Company will now be provided an additional 180 calendar day compliance period, or until April 21, 2008, to regain compliance.² If, at anytime before April 21, 2008, the bid price of the Company’s common stock closes at $1.00 per share or more for a minimum of 10 consecutive business days, Staff will provide written notification that it complies with the Rule.³

¹ The Company is subject to all initial inclusion criteria for the Capital Market (except bid price) that were in effect as of April 23, 2007, the date of Staff’s initial notification.

² The 180 day period relates exclusively to the bid price deficiency. The Company may be delisted during the 180 day period for failure to maintain compliance with any other listing requirements for which it is currently on notice or which occurs during this period.

³ Marketplace Rule 4310(c)(8)(E) states that, “Nasdaq may, in its discretion, require an issuer to maintain a bid price of at least $1.00 per share for a period in excess of ten consecutive business days, but generally no more than 20 consecutive business days, before determining that the issuer has demonstrated an ability to maintain long-term compliance. In determining whether to monitor bid price beyond tem business days, Nasdaq will consider the following four factors: (i) margin of compliance (the amount by which the price is above the $1.00 minimum standard); (ii) trading volume (a lack of trading volume may indicate a lack of bona fide market interest in the security at the posted bid price); (iii) the market maker montage (the number of market makers quoting at or above $1.00 and the size of their quotes); and, (iv) the trend of the stock price (is it up or down).”

Mr. Brian Haskell

October 23, 2007

Page 2

If compliance with the Rule cannot be demonstrated by April 21, 2008, Staff will provide written notification that the Company’s securities will be delisted. At that time, the Company may appeal Staff’s determination to a Listing Qualification Panel (the “Panel”). Please note that if the Company appeals it will be asked to provide a plan to regain compliance to the Panel, and that historically Panels have generally viewed a near-term reverse stock split as the only definitive plan acceptable to resolve a bid price deficiency.⁴

In addition, an indicator will be broadcast over Nasdaq’s market data dissemination network noting the Company’s non-compliance. The indicator will be displayed with quotation information related to the Company’s securities on Nasdaq.com, NasdaqTrader.com and by other third-party providers of market data information. Also, a list of all non-compliant Nasdaq companies and the reason(s) for such non-compliance is posted on our website at www.nasdaq.com. The Company will be included in this list commencing five business days from the date of this letter.

The Company should consult with counsel regarding disclosure obligations surrounding this letter under the federal securities laws. If you have any questions, please do not hesitate to contact me at (301) 978-8039.

Sincerely,

/s/ Brie Charles

Brie Charles

Lead Analyst

Nasdaq Listing Qualifications

⁴ Panels do not typically consider a plan that relies on the market reaction to news as a definitive plan.