Tony G Co-Investment Holdings Ltd.
Headnote
National Policy 11-207 Failure-to-File Cease Trade Orders and Revocations in Multiple Jurisdictions -- Application by an issuer for a revocation of a cease trade order issued by the Commission -- cease trade order issued because the issuer failed to file certain continuous disclosure materials required by Ontario securities law -- defaults subsequently remedied by bringing continuous disclosure filings up-to-date.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c.S.5, as am., s. 144.
National Policy 11-207 Failure-to-File Cease Trade Orders and Revocations in Multiple Jurisdictions.
TONY G CO-INVESTMENT HOLDINGS LTD.
REVOCATION ORDER
Under the securities legislation of Ontario
(the Legislation)
Background
1. Tony G Co-Investment Holdings Ltd. (the Issuer) is subject to a failure-to-file cease trade order (the FFCTO) issued by the Ontario Securities Commission (the Principal Regulator) on June 6, 2022.
2. The Issuer has applied to the Principal Regulator under National Policy 11-207 Failure-to-File Cease Trade Orders and Revocations in Multiple Jurisdictions (NP 11-207) for an order revoking the FFCTO.
Interpretation
3. Terms defined in National Instrument 14-101 Definitions or in NP 11-207 have the same meaning if used in this order, unless otherwise defined.
Representations
4. This decision is based on the following facts represented by the Issuer:
a. The Issuer is a corporation amalgamated under the laws of the Province of Ontario effective on October 26, 1988.
b. The Issuer's head office and registered office is located at 5800 Ambler Drive, Suite 210, Mississauga, Ontario L4W 4J4, Canada.
c. The Issuer is a reporting issuer in the provinces of Ontario, British Columbia, Alberta, and Nova Scotia (the Reporting Jurisdictions).
d. The Issuer's authorized share capital consists of an unlimited number of common shares (Common Shares), of which 7,133,398 Common Shares are currently issued and outstanding.
e. The Common Shares are listed for trading on the Canadian Securities Exchange (CSE) under the trading symbol "TONY", but trading in the Common Shares has remained suspended since June 6, 2022 upon and as a result of the issuance of the FFCTO.
f. The FFCTO was issued by the Principal Regulator due to the failure of the Issuer to file the following continuous disclosure materials (collectively, the Required Annual Filings) within the timeframe stipulated by the applicable legislation:
i. audited annual financial statements for the year ended January 31, 2022 as required by National Instrument 51-102 Continuous Disclosure Obligations (NI 51-102);
ii. management's discussion and analysis relating to the audited annual financial statements for the year ended January 31, 2022 as required by NI 51-102; and
iii. certification of the foregoing filings as required by National Instrument 52-109 Certification of Disclosure in Issuers' Annual and Interim Filings (NI 52-109).
g. Subsequent to the issuance of the FFCTO, the Issuer also failed to file the following continuous disclosure materials (collectively, the Additional Required Filings) within the timeframe stipulated by applicable legislation:
i. interim financial reports for the interim periods ended April 30, 2022, October 31, 2022 and April 30, 2023 as required by NI 51-102;
ii. related interim management's discussion and analysis for the interim periods ended April 30, 2022, October 31, 2022 and April 30, 2023 as required by NI 51-102;
iii. audited annual financial statements for the year ended January 31, 2023 as required by NI 51-102;
iv. management's discussion and analysis relating to the audited annual financial statements for the year ended January 31, 2023 as required by NI 51-102;
v. certification of the foregoing filings as required by NI 52-109; and
vi. statement of executive compensation for the year ended January 31, 2022 in accordance with Form 51-102F6V Statement of Executive Compensation -- Venture Issuers as required by NI 51-102.
h. On July 17, 2023, to correct deficiencies noted by staff of the Principal Regulator, the Issuer refiled its management's discussion and analysis and related certifications for: (i) the year ended January 31, 2022; (ii) the three months ended April 30, 2022; and (iii) the six months ended July 31, 2022.
i. The Issuer has now filed all outstanding continuous disclosure documents with the Principal Regulator, including the Required Annual Filings and the Additional Required Filings.
j. The Issuer is: (i) up-to-date with all of its continuous disclosure obligations; (ii) not in default of any requirements under applicable securities legislation or the rules and regulations made pursuant thereto in any of the Reporting Jurisdictions, except for the existence of the FFCTO; and (iii) not in default of any of its obligations under the FFCTO;
k. The Required Annual Filings and the Additional Required Filings were not initially filed within the time stipulated by applicable securities legislation due to ongoing financial hardship. The Issuer lacked the funds necessary to prepare, file, or deliver the Required Annual Filings or the Additional Required Filings.
l. The Issuer is not considering, nor is it involved in any discussions relating to a reverse take-over, merger, amalgamation or other form of combination or transaction similar to any of the foregoing.
m. The Issuer has given the Principal Regulator a written undertaking that:
1. the Issuer will hold an annual meeting of shareholders within three months after the date on which the FFCTO is revoked; and
2. the Issuer will not complete
i. a restructuring transaction involving, directly or indirectly, an existing or proposed, material underlying business which is not located in Canada;
ii. a reverse takeover with a reverse takeover acquirer that has a direct or indirect, existing or proposed, material underlying business which is not located in Canada; or
iii. a significant acquisition involving, directly or indirectly, an existing or proposed, material underlying business which is not located in Canada; unless
(a) the Issuer files a preliminary prospectus and a final prospectus with the Ontario Securities Commission and obtains receipts for the preliminary prospectus and the final prospectus from the Director under the Securities Act (Ontario);
(b) the Issuer files or delivers with the preliminary prospectus and the final prospectus the documents required by Part 9 of National Instrument 41-101 General Prospectus Requirements (NI 41-101) including a completed personal information form and authorization in the form set out in Appendix A of NI 41-101 for each current and incoming director, executive officer and promoter of the Issuer; and
(c) the preliminary prospectus and final prospectus contain the information required by applicable securities legislation, including the information required for a probable restructuring transaction, reverse takeover or significant acquisition (as applicable).
n. The Issuer has paid all outstanding activity, participation and late filing fees that are required to be paid and has filed all forms associated with such payments.
o. The Issuer's profile on the System for Electronic Document Analysis and Retrieval (SEDAR) and the System for Electronic Disclosure by Insiders (SEDI) are up-to-date.
p. Since the issuance of the FFCTO, there have been no material changes in the business, operations or affairs of the Issuer which have not been disclosed by news release and/or material change report and filed on SEDAR.
q. Upon the revocation of the FFCTO, the Issuer will issue a news release announcing the revocation of the FFCTO and concurrently file the news release and a material change report on SEDAR, describing the undertaking referenced in 3(m) and outlining the Issuer's future plans.
Order
5. The Principal Regulator is satisfied that the order to revoke the FFCTO meets the test set out in the Legislation for the Principal Regulator to make the decision.
6. The decision of the Principal Regulator under the Legislation is that the FFCTO is revoked.
DATED at Toronto, this 18 day of July, 2023.
"David Surat"
Manager, Corporate Finance
Ontario Securities Commission
OSC File #: 2022/0432