DayStar Technologies Inc.
DSTI (the "Company") received notice from The Nasdaq Stock
Market on March 20, 2013, that the staff is of the view that on at
least two (2) occasions over the past five (5) months, the Company
has violated the shareholder approval requirements set forth in
Listing Rule 5635(c). The notice states that these violations form an
additional concern under Listing Rule 5101 and a separate and
additional basis for delisting the Company's securities from The
Nasdaq Stock Market.
The staff letter also raised "public interest" concerns regarding:
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i. the Company's lack of revenue to date, current and planned operating
business;
ii. the magnitude of the share issuances following the Company's reverse
stock split on April 9, 2012, under which the Company's number of total
shares outstanding ("TSO") rose from 1.56 million on May 11, 2012 to 4.3
million by January 7, 2013 and was expected to continue to grow;
iii.the lack of oversight by the Company's prior Interim Chief Executive
Officer with respect to the Company's operations, especially given that,
during his tenure as Chief Executive Officer, Mr. Lacey certified each
of the Company's periodic reports filed with the SEC as to their
accuracy and completeness, as required by the Sarbanes-Oxley Act of
2002, taken together with the staff's concerns regarding the Company's
current limited business activity, and the concern about shareholder
approval violations;
iv. the Company's ability to continue to comply with Nasdaq's listing
standards given that in its Form 10-Q for the period ended September 30,
2012, the Company reported stockholders' equity of $2,663,519, since its
inception, the Company has incurred losses, including a $3.8 million
loss for the nine months ended September 30, 2012 and losses of $3.4
million and $28.1 million for the years ended December 31, 2011 and 2010, and that the Company's CFO advised the staff that it expects to
report stockholders' equity below the minimum $2.5 million requirement
for continued listing on The Nasdaq Capital Market, as prescribed in
Listing Rule 5550(b)(1) when it files its Annual Report on Form 10-K for
the year ended December 31, 2012;
v. the history of the Company's non-compliance with the Listing Rules,
having received notifications for failure to evidence compliance on
thirteen (13) separate occasions, ten (10) of those occurring within the
past three and a half years, including minimum bid price in September
2009 and April 2011; the periodic filing obligation in November 2012;
minimum stockholders' equity in November 2010; the shareholder approval
rules with respect to equity compensation and private placements in
November 2010; annual meeting of shareholders in January 2010 and
January 2013; majority independent board of directors in November 2011;
and audit committee composition in May 2010 and November 2011;
vi. whether 200,000 shares of restricted common stock issued to Brendan
MacMillan should have required shareholder approval; and
vii.whether 185,717 shares issued to five employees as inducement compensation in November 2012, 1,034,001 shares issued to nine employees
as inducement compensation in December 2012 and 239,000 shares issued to
three individuals as compensation for consulting work in December 2012
required shareholder approval.
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The Nasdaq Hearings Panel will consider these matters in rendering a
determination regarding the Company's continued listing on The Nasdaq
Capital Market at a hearing scheduled for March 28, 2013. The Company
has worked diligently to address the concerns raised in the staff
letter, including the retention of a new management team, and at its
in person meeting with the Hearings Panel tomorrow will present its
proposed future operating plan that it believes addresses many of the
concerns raised in the staff letter.
There can be no assurance given that the Hearings Panel will grant
the Company's request for continued listing, and if it does not, the
Company's common stock will be moved to another exchange and delisted from The NASDAQ Capital Market.
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