Oncolytics Biotech Inc. - MRRS Decision
Headnote
Mutual Reliance Review System for Exemptive Relief Applications - Waiver granted pursuant to section 4.5 of NationalPolicy Statement No. 47 to enable issuer to participate in the POP System when it did not meet the
"public float" test in the last calendar month of its most recent financial year-end in respect of which its Initial AnnualInformation Form will be filed provided that it does meet the "public float" test at a date within 60 days before the filingof its preliminary short form prospectus.
Policies Cited
National Policy Statement No. 47 Prompt Offering Qualification System, ss. 4.1 and 4.5.
Instruments Cited
Proposed National Instrument 44-101 Short Form Prospectus Distributions
IN THE MATTER OF
THE SECURITIES LEGISLATION OF ALBERTA
BRITISH COLUMBIA AND ONTARIO
AND
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEW SYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
AND
IN THE MATTER OF ONCOLYTICS BIOTECH INC.
MRRS DECISION DOCUMENT
1. WHEREAS the local securities regulatory authority or regulator (the "Decision Maker") in each of Alberta,British Columbia and Ontario (the "Jurisdictions") has received an application from Oncolytics Biotech Inc. (the"Filer") for a decision pursuant to the securities legislation of each of Jurisdictions (the "Legislation") that therequirement (the "Eligibility Requirement"), under National Policy Statement No. 47 (the "POP Requirements"),that the calculation of the aggregate market value of an issuer's outstanding equity securities be based uponthe average closing prices during the last calendar month of the issuer's most recently completed financial yearshall not apply to the Filer so as to permit the Filer to participate in the prompt offering qualification system (the"POP System");
2. AND WHEREAS pursuant to the Mutual Reliance Review System for Exemptive Releif Applications (the"System"), the Executive Director of the Alberta Securities Commission is the principal regulator for thisapplication;
3. AND WHEREAS the Filer has represented to the Decision Makers that:
3.1 the Filer was incorporated on April 2, 1998 pursuant to the Business Corporations Act (Alberta);
3.2 the principal business office of the Filer is located at 301, 1211 Kensington Road N.W., Calgary,Alberta T2N 3P6. The registered office of the Filer is located at 4500 Bankers Hall East, 855 - 2ndStreet S.W., Calgary, Alberta T2P 4K7;
3.3 the Filer became a reporting issuer in the provinces of Alberta, British Columbia and Ontario onOctober 28, 1999. To the best of its knowledge, the Filer is not in default under any securitieslegislation in any of the provinces of Canada;
3.4 the Filer's financial year-end is December 31
3.5 the common shares of the Filer are listed and posted for trading on the facilities of The Toronto StockExchange (the "TSE") and have been since June 1, 2000. The Filer voluntarily delisted its commonshares from the Canadian Venture Exchange (the "CDNX") on August 24, 2000;
3.6 as at December 31, 1999 (being the Filer's most recent financial year end), the Filer had 13,669,997common shares issued and outstanding, being the only class of securities of the Filer that carry aresidual right to participate in earnings of the Filer and, upon liquidation or winding up of the Filer, inits assets;
3.7 the Filer's common shares are widely held and to the best of Filer's knowledge, based upon publicrecords, none of its common shares are required to be excluded in accordance with subclause4.1(2)(a) of NP 47 except for 6,750,000 common shares registered in the name of SYNSORB BiotechInc.;
3.8 as at December 31, 1999, the aggregate market value of the Filer's common shares wasapproximately $16,469,593 (based on an arithmetic average of the closing trading prices for the monthof December, 1999 of $2.38, as calculated in accordance with NP 47 and excluding the sharesregistered in the name of SYNSORB Biotech Inc.);
3.9 the Filer completed a private placement of 3,000,000 special warrants on February 15, 2000 resultingin the issue of an additional 3,000,000 common shares of the Filer. The Filer filed and received finalreceipts in March, 2000 from each of the Decision Makers for a prospectus in respect of thedistribution of such common shares;
3.10 based upon information available from the CDNX and TSE, since March 31, 1999, the arithmeticaverage of the monthly closing trading prices of the Filer's common shares has been consistentlyhigher than the arithmetic average which would enable the Filer to meet the market value test undersubclause 4.1(1)(c) of NP 47;
3.11 as at July 31, 2000, the Filer had 17,189,800 common shares issued and outstanding and theaggregate market value of the Filer's common shares was approximately $138,536,146 (based on anarithmetic average of the closing trading prices for the month of July, 2000 of $13.27, as calculatedin accordance with NP 47 and excluding the shares registered in the name of SYNSORB BiotechInc.);
3.12 the Filer currently would fulfil the eligibility requirements of the POP System and the Legislation toenable it to file an Initial AIF but for the fact the Filer has not been a reporting issuer for at least 12months and the aggregate market value of its common shares for the month of December, 1999 wasless than $75,000,000;
3.13 the Filer would be eligible to participate in the POP System upon the filing and acceptance of its InitialAIF under Proposed National Instrument 44-101 which would replace the current time period forcalculating an issuer's aggregate market value under NP 47 for its Initial AIF with a calculation as ofa date within sixty (60) days of filing the issuer's preliminary short form prospectus; and
3.14 the Filer intends to file an Initial AIF shortly and may wish to effect an offering prior to the end of itscurrent financial year and is of the view that in its circumstances, a short form prospectus would bethe most appropriate vehicle for such an offering;
4. AND WHEREAS under the System, this Document evidences the decision of each Decision Maker(collectively, the "Decision");
5. AND WHEREAS each of the Decision Makers is satisfied that the test contained in the Legislation that providesthe Decision Maker with the jurisdiction to make the Decision has been met;
6. THE DECISION of the Decision Makers under the Legislation is that the Eligibility Requirements shall not applyto Filer provided that:
6.1 the Filer complies with all of the filing requirements and procedures and each of the other eligibilityrequirements of NP 47;
6.2 the aggregate market value of the common shares of the Filer, calculated in accordance withsubsection 4.1(2) of NP 47, on a date within sixty (60) days before the date of the filing of the Filer'spreliminary short form prospectus is at least $75,000,000;
6.3 the eligibility certificate required to be filed in connection with the Filer's initial annual information formshall provide that the Filer satisfies the Market Capitalization Requirement in accordance with thisDecision; and
6.4 this waiver terminates on the earlier of:
6.4.1 140 days after the end of the Filer's financial year ended December 31, 2000; and
6.4.2 the date a renewal annual information form is filed by the Filer in respect of its financial yearended December 31, 2000.
DATED at Edmonton, Alberta this 30th day of October, 2000.
Agnes Lau, C.A.
Deputy Director, Capital Markets