Exhibit 2
NASDAQ
Jason S. Frankl
Counsel
VIA FACSIMILE AND OVERNIGHT COMMERICIAL COURIER
April 17, 2003
Randall Perry, Esq.
Attorney at Law
44 Union Avenue
P.O. Box 108
Rutherford, NJ 07070
RE: Synergy Brands, Inc. (Symbol: SYBR) Nasdaq Listing Qualifications Panel
Docket No. NQ 4265C-02
Response to Extension Request
Dear Mr. Perry:
By decision dated February 7, 2003, the Nasdaq Listing Qualifications Panel (the
"Panel") determined to continue the listing of Synergy Brands, Inc. (the
"Company") on The Nasdaq Small Cap Market pursuant to an exception.
Specifically, on or before March 31, 2003, the Company was required to publicly
file the Form 10-K for the fiscal year ended December 31, 2002 with the
Securities and Exchange Commission (the "SEC") and Nasdaq evidencing
shareholders' equity of at least $2,500,000. On March 31, 2003, the Company
filed that report, which reported shareholders' equity of $2,082,537.
By letter dated April 7, 2003, the Company stated that, although it did not
satisfy the terms of the Panel's exception, it would demonstrate shareholders'
equity of at least $3,000,000 as of March 31, 2003. The Company explained that
it had settled certain disputed accounts payable, but that it was unable to do
so until after December 31, 2002. In addition, the Company represented that it
had closed a $600,000 private placement during the quarter ended March 31, 2003,
which increased shareholders' equity by the same amount. Based upon those events
plus improved operating results, the Company asserted that it would report
shareholders' equity of at least $3,000,000 as of March 31,2003 and requested an
exception through May 15,2003 to allow it to file the March 31, 2003 Form 10-Q
to evidence compliance with the shareholders' equity requirement.
PANEL DECISION
The Panel observed that the Company failed to satisfy the current term of the
exception. However, the Panel acknowledged the Company's representation that it
would report shareholders' equity in excess of $2,500,000 as of March 31, 2003
due to improved operating results and events that occurred during that quarter.
Accordingly, the Panel determined to continue the listing of the Company's
securities on The Nasdaq SmallCap Market and to modify the terms of the
exception as follows:
1. On or before April 25, 2003, the Company must file an unaudited,
unreviewed March 31, 2003 balance sheet with the SEC and Nasdaq
evidencing shareholders' equity of at least $2,500,000; and
2. On or before May 15, 2003, the Company must file the Form 10-Q for
the quarter ending March 31, 2003 with the SEC and Nasdaq evidencing
shareholders' equity of at least $2,500,000. 1
All other terms and conditions of the Panel's prior decisions shall remain in
effect. 2
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1 The filing of a Notification of Late Filing on Form 12b-25 with the SEC will
not result in an automatic extension of the deadline set forth in this
exception.
2 The Panel's determination is limited to those findings expressly set forth in
this decision, which is based solely upon the facts and circumstances of this
matter and should not be interpreted as precedent.
The Company should be aware that the Nasdaq Listing and Hearing Review Council
(the "Listing Council") may, on its own motion, determine to review any Panel
decision within 45 calendar days after issuance of the written decision. If the
Listing Council determines to review this decision, it may affirm, modify,
reverse, dismiss, or remand the decision to the Panel. The Company will be
immediately notified in the event the Listing Council determines that this
matter will be called for review.
The Company may also request that the Listing Council review this decision. The
request for review must be made in writing and received within 15 days from the
date of this decision. Requests for review and a copy of the check must be in
writing and faxed to (301) 978-4028, with the original sent to:
Brigitte Lippmann, Esq.
Chief Counsel
Office of Appeals and Review
The Nasdaq Stock Market, Inc.
9600 Blackwell Road, 3rd Floor
Rockville, MD 20850.
Pursuant to Nasdaq Marketplace Rule 4840(b), the Company must submit a fee of
$4,000.00 to The Nasdaq Stock Market, Inc. to cover the cost of the review. The
Company should send only its payment with the enclosed Appeal Fee Payment Form
to:
Regular Mai13 Courier/Overnight
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The Nasdaq Stock Market, Inc. or The Nasdaq Stock Market, Inc. W0435
P.O. Box 7777-W0435 c/o Mellon Bank, Rm. 3490
Philadelphia, PA 19175-0435 701 Market Street
Philadelphia, PA 19106
Please be advised that the institution of a review, whether by way of the
Company's request or on the initiative of the Listing Council, will not operate
as a stay of this decision.
Should you have any questions, please do not hesitate to contact me at (301)
978-8076.
/s/ Jason S. Frankl
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Jason S. Frankl
Counsel
Nasdaq Listing Qualifications Hearings
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3 Please note that the P.O. Box address will not accept courier or overnight
deliveries.