Trillium Therapeutics Inc.
Headnote
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Application for exemptive relief from the filing deadline under subsection 4.3(4) of NI 51-102 in respect of the issuer's restated interim financial reports prepared in accordance with U.S. GAAP for the interim periods since its most recently completed financial year for which annual financial statements have been filed -- pursuant to paragraph 4.3(4)(d) of NI 51-102, the issuer is required to file its restated interim financial reports and the accompanying MD&A on or before the filing deadline for its audited annual financial statements for the year ended December 31, 2020 -- the issuer has encountered unanticipated delays in its work plan and the required restated interim financial reports will not be finalized when its annual financial statements are filed -- relief granted subject to conditions set out in decision document, including that the Issuer files its restated interim financial reports and related MD&A on or before 45 days following the filing deadline.
Applicable Legislative Provisions
National Instrument 51-102 Continuous Disclosure Obligations, s. 4.3(4)(d) and Part 13.
March 17, 2021
IN THE MATTER OF THE SECURITIES LEGISLATION OF ONTARIO (the Jurisdiction) AND IN THE MATTER OF THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS IN MULTIPLE JURISDICTIONS AND IN THE MATTER OF TRILLIUM THERAPEUTICS INC. (the Filer)
DECISION
Background
The principal regulator in the Jurisdiction has received an application from the Filer for a decision under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) granting relief from the requirement to file the Restated Interim Financial Reports (as defined herein) on or before the deadline set out in paragraph 4.2(a) of National Instrument 51-102 Continuous Disclosure Obligations (NI 51-102) and in accordance with paragraph 4.3(4)(d) of NI 51-102, provided that the Filer files the Restated Interim Financial Reports and related MD&A on or before the earlier of (i) 45 days from the date the Filer files its Annual Financial Statements (as defined herein) and (ii) May 17, 2021 (the Exemption Sought).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
(a) the Ontario Securities Commission is the principal regulator for this application; and
(b) the Filer has provided notice that subsection 4.7(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in British Columbia, Alberta, Manitoba and Nova Scotia.
Interpretation
Terms defined in National Instrument 14-101 Definitions, MI 11-102 and NI 51-102 have the same meaning if used in this decision, unless otherwise defined.
Representations
This decision is based on the following facts represented by the Filer:
1. The Filer is a corporation existing under the Business Corporations Act (British Columbia). The head office of the Filer is in Mississauga, Ontario.
2. The common shares (Common Shares) of the Filer are listed on the Toronto Stock Exchange and the Nasdaq Capital Market, under the symbol "TRIL".
3. The Filer is a reporting issuer in the provinces of British Columbia, Alberta, Manitoba, Ontario and Nova Scotia.
4. The Filer is subject to reporting obligations under the 1934 Act, and files continuous disclosure documents with the SEC.
5. As part of the Filer's obligations under the 1934 Act, the Filer was required by the SEC, at the end of every second fiscal quarter, to test whether it continued to qualify as a foreign private issuer as defined in Rule 405 of Regulation C under the 1933 Act and Rule 3b-4 under the 1934 Act.
6. As of June 30, 2020, the Filer determined that it no longer met the criteria for qualification as a foreign private issuer because (a) more than 50% of the outstanding Common Shares of the Filer were held by residents of the United States, and (b) the majority of the Filer's directors are resident in the United States.
7. Effective January 1, 2021, the Filer is subject to the reporting requirements applicable to U.S. domestic registrants.
8. In accordance with Section 6120.4 of the SEC's Division of Corporation Finance Financial Reporting Manual, as of January 1, 2021, the Filer is required, to prepare its annual financial statements in accordance with U.S. GAAP.
9. Pursuant to subsection 4.3(4) of NI 51-102, the Filer is required to file restated interim financial reports prepared in accordance with U.S. GAAP for the interim periods since its most recently completed financial year for which annual financial statements have been filed (the Restated Interim Financial Reports) on or before the deadline for the Filer to file its audited annual financial statements for the year ended December 31, 2020 (the Annual Financial Statements). Pursuant to set paragraph 4.2(a) of NI 51-102, the deadline (the Deadline) for the Filer to file the Annual Financial Statements is the earlier of (i) April 1, 2021, being the 90th day after the end of its most recently completed financial year, and (ii) the date of filing, in a foreign jurisdiction, the Annual Financial Statements.
10. The Filer is expected to file its annual report on Form 10-K for the year ended December 31, 2020 (the Annual Report) on or about March 18, 2021 in accordance with the requirements of the SEC.
11. Although the Filer has transitioned its staff to work remotely since March 2020, the remote working environment and recent personnel changes have caused unanticipated delays in the Filer's work plan related to preparing the Restated Interim Financial Reports in accordance with U.S. GAAP.
12. The COVID-19 pandemic has also resulted in unanticipated time sensitive business matters which have diverted the attention of management from preparing the Restated Interim Financial Statements. These include, among other items that will be noted in the Annual Report: (i) delays in receiving supplies for the Filer's product candidates from its contract manufacturing organizations; and (ii) delays and challenges in enrolling and retaining patients in the Filer's clinical trials.
13. The Filer is not in default of securities legislation in any jurisdiction of Canada.
Decision
The principal regulator is satisfied that the decision meets the test set out in the Legislation for the principal regulator to make the decision.
The decision of the principal regulator under the Legislation is that the Exemption Sought is granted, subject to all of the following conditions:
(a) on or before the earlier of (i) 45 days from the date the Filer files its Annual Financial Statements and (ii) May 17, 2021, the Filer files the Restated Interim Financial Reports and related MD&A, for the interim periods since December 31, 2019;
(b) the Filer issues and files on SEDAR, as soon as reasonably practicable, and in any event, no later than the date the Issuer files its Annual Financial Statements, a news release that discloses:
a. it is relying on this exemption;
b. that its management and other insiders are subject to an insider trading black-out policy that reflects the principles in section 9 of National Policy 11-207 Failure-to-File Cease Trade Orders and Revocations in Multiple Jurisdictions; and
c. the anticipated date by which the Restated Interim Financial Reports and related MD&A are expected to be filed; and
(c) the Filer does not file a preliminary prospectus or a final prospectus for an offering of securities until it has filed all documents for which it is relying on this exemption.