NYSE Amex LLC
DETERMINATION AND NOTIFICATION OF REMOVAL FROM LISTING
AND/OR REGISTRATION UNDER SECTION 12(b) OF THE
SECURITIES EXCHANGE ACT OF 1934
Attachment to Form 25
July 19, 2011
NYSE Amex LLC (the “Exchange”), pursuant to Section 12(d) of the Securities Exchange Act of 1934 and Rule 12d2-2(b) promulgated there under by the Securities and Exchange Commission (the “SEC” or the “Commission”), has determined to strike from listing and registration on the Exchange, the following:
NIVS IntelliMedia Technology Group, Inc.
Common Stock, $0.0001 Par Value
Commission File Number –001-34262
1.
The standards of the Exchange provide, among other things, that consideration may be given to the removal of a security when: (i) the financial condition and/or operating results of the issuer appear to be unsatisfactory; (ii) the issuer has failed to comply with its listing agreements with the Exchange; or (iii) any other event shall occur or any condition shall exist which makes further dealings on the Exchange unwarranted.
In applying these standards, the Exchange gives consideration to delisting the securities of a company that is not in compliance with or is subject to:
(a)
Section 1003(f)(iii) of the NYSE Amex LLC Company Guide (the “Company Guide”) which provides that a company may be suspended from dealings on the Exchange if it or its management engages in operations, which, in the opinion of the Exchange, are contrary to the public interest;
(b)
Section 1003(d) of the Company Guide which provides that a company may be suspended from dealings on the Exchange if the Company has failed to comply with its listing agreements or other agreements with the Exchange and/or SEC Requirements in any material respect;
(c)
Section 127 of the Company Guide which grants the Exchange the discretion to delist a company when, for example, the company’s independent accountants issue a disclaimer opinion on financial statements required to be audited;
(d)
Sections 134 and 1101 of the Company Guide which require listed issuers to comply with applicable SEC requirements with respect to the filing of reports and other documents through the SEC's Electronic Data Gathering Analysis and Retrieval ("EDGAR") system; and
(e)
Section 132(e) of the Company Guide which provides that a listed company may be delisted if any communication to the Exchange contains a material misrepresentation or omits material information necessary to make the communication to the Exchange not misleading.
2.
The Common Stock (the “Common Stock”) of NIVS IntelliMedia Technology Group, Inc. (the “Company” or “NIVS”) does not qualify for continued listing for the following reasons:
On March 24, 2011, the Company’s previous independent auditor, MaloneBailey, LLP (“MB”), submitted a letter informing the Company that it had resigned and that it had ceased its services as the Company’s independent auditor. In its letter, MB cited that it had found accounting fraud and irregularities in forging accounting records and bank statements during the 2010 NIVS audit. The letter also stated that MB had determined to withdraw its previous opinion dated March 24, 2010, related to MB’s audit of the Company’s 2009 financial statements.
3.
In reviewing the eligibility of the Company’s Common Stock for continued listing, the Exchange has complied with its standards and procedures as follows:
(a)
Given the resignation of MB and the allegations set forth in its resignation letter as well as the fact that MB had removed its audit opinions related to the Company’s previously issued financial statements, by letter dated April 5, 2011, Staff informed the Company that it was subject to immediate delisting proceedings based on its failure to comply with Sections 1003(f)(iii), 1003(d), 127, 134 and 1101 of the Company Guide. The Exchange’s letter also informed the Company of its limited right, in accordance with Sections 1203 and 1009(d) of the Company Guide, to request a hearing before a Listing Qualifications Panel (a “Panel”) within seven days of the Staff Determination, or by April 12, 2011.
(b)
On April 11, 2011, the Company requested, pursuant to Sections 1203 and 1009(d) of the Company Guide, an oral hearing to appeal the Staff Determination. A hearing before a Panel was scheduled for June 15, 2011.
(c)
Subsequent to the issuance of its delisting notification, based on the Staff’s determination that the Company’s written submission to the Panel contained a material misrepresentation, by letter dated May 16, 2011 the Company was notified that it was also subject to delisting proceedings based on its failure to comply with Section 132(e) of the Company Guide.
(d)
On June 15, 2011, a hearing, at which the Company was present, was conducted before the Panel. At the hearing, NIVS disputed the allegations set forth by MB in its resignation letter and requested for the Panel to grant the Company an extension of time within which to complete the audit and filing of its December 31, 2009 and 2010 financial statements and all other applicable SEC filing requirements.
(e)
By letter dated June 20, 2011, the Exchange notified the Company of the Panel’s decision to deny the Company’s appeal for continued listing of its Common Stock on the Exchange and to authorize delisting proceedings. The letter also informed the Company of its right, in accordance with Section 1205 of the Company Guide, to request that the Exchange’s Committee on Securities review the Panel’s decision within fifteen days.
(f)
The Company did not appeal the Panel’s decision to the Committee on Securities within the requisite time period and was not otherwise in compliance with the continued listing standards.
Accordingly, the Exchange, having complied with all of its procedures, is authorized to file this application in accordance with Section 12 of the Securities Exchange Act of 1934 and the rules promulgated thereunder.
4.
In the opinion of the Exchange, all of the material facts relating to the reasons for this application are contained herein.
5.
The Exchange official whose signature is set forth below is duly authorized to file this application.
6.
In accordance with the provisions of Rule 12d2-2, the Exchange has issued public notice of its final determination to remove the Company’s Common Stock from listing and/or registration by issuing a press release and posting notice onwww.nyse.com. Further, a copy of this application has been forwarded to Mr. Tianfu Li, Chairman and Chief Executive Officer of NIVS IntelliMedia Technology Group, Inc.
Janice O’Neill
Senior Vice President
Corporate Compliance Department
NYSE Amex LLC