Ontario Commission des 22nd Floor 22e étage
Securities valeurs mobilières 20 Queen Street West 20, rue queen ouest
Commission de l’Ontario Toronto ON M5H 3S8 Toronto ON M5H 3S8
April 25, 2025
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
ONTARIO (the “Jurisdiction”)
AND
IN THE MATTER OF
THE PROCESS FOR CEASE TO BE A REPORTING ISSUER APPLICATIONS
AND
IN THE MATTER OF
ANTIBE THERAPEUTICS INC.
(the “Filer”)
ORDER
BACKGROUND
The principal regulator in the Jurisdiction has received an application from the Filer for an order under the securities legislation of the Jurisdiction (the “Legislation”) that the Filer has ceased to be a reporting issuer in all jurisdictions of Canada in which it is a reporting issuer (the “Order Sought”).
Under the Process for Cease to be a Reporting Issuer Applications (for a passport application):
(a) the Ontario Securities Commission (the “OSC”) is the principal regulator for this application; and
(b) the Filer has provided notice that subsection 4C.5(1) of Multilateral Instrument 11-102 Passport System (“MI 11-102”) is intended to be relied upon in Alberta, British Columbia, Manitoba and Saskatchewan.
INTERPRETATION
Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this order, unless otherwise defined.
REPRESENTATIONS
This order is based on the following facts represented by the Filer:
The Filer was incorporated under the Business Corporations Act (Ontario) on May 5, 2009.
The Filer is a reporting issuer in each of the Provinces of Alberta, British Columbia, Manitoba, Ontario and Saskatchewan. The Filer is not a reporting issuer in any other jurisdiction in Canada.
The registered and head office of the Filer is located at 130 East Dr, Brampton, Ontario, L6T 1C1.
The Filer is subject to a failure-to-file cease trade order (“FFCTO”) issued by the OSC on July 10, 2024, and effective in each other jurisdiction in which Multilateral Instrument 11-103 Failure-to-File Cease Trade Orders in Multiple Jurisdictions applies and in each jurisdiction that has a statutory reciprocal order provision.
The FFCTO was issued as a result of the Filer’s failure to file the following continuous disclosure materials as required by applicable Canadian securities laws:
(i) audited annual financial statements for the year ended March 31, 2024;
(ii) management’s discussion and analysis relating to the audited annual financial statements for the year ended March 31, 2024;
(iii) annual information form for the year ended March 31, 2024; and
(iv) certifications of the foregoing filings as required by National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings (“NI 52-109”);
(collectively, the “Unfiled Documents”).
- In addition to the Unfiled Documents, the Filer has also not filed the following documents:
(i) interim financial statements for the three, six and nine month periods ending June 30, 2024, September 30, 2024 and December 31, 2024, respectively (the “2024 Interim Financial Statements”);
(ii) management’s discussion and analysis relating to the 2024 Interim Financial Statements;
(iii) certification of the 2024 Interim Financial Statements as required by NI 52-109; and
(iv) any other continuous disclosure documents required to be filed by applicable Canadian securities laws since the date of the FFCTO
(all such documents, together with the Unfiled Documents, the “Unfiled Continuous Disclosure Documents”).
The Filer has concurrently filed an application with the OSC under National Policy 11-207 Failure-to-File Cease Trade Orders and Revocations in Multiple Jurisdictions for an order pursuant to Section 144 of the Legislation revoking the FFCTO without requiring the Filer to file the Unfiled Continuous Disclosure Documents, to be effective on the same date as the Order Sought.
On March 28, 2024, the Filer was served with a notice of application by Nuance Pharma Limited (“Nuance”) seeking, inter alia, recognition of an unsecured arbitration award totaling approximately USD $24 million made against the Filer in favor of Nuance and the appointment of a receiver (the “Nuance Notice”). The Nuance Notice was served in connection with the license agreement dated February 9, 2021 between Nuance and the Filer (the “License Agreement”) whereby Nuance claimed fraudulent misrepresentation of the License Agreement.
As a result of the Nuance Notice, the Filer obtained creditor protection under the Companies’ Creditors Arrangement Act (Canada) (the “CCAA”) on April 9, 2024, for an initial order (the “Initial Order”) which was granted by the Superior Court of Justice (Commercial List) (the “Court”). Pursuant to the Initial Order, the Court, inter alia, granted a “stay of proceedings” against the Filer, its directors and officers until April 18, 2024, and appointed Deloitte Restructuring Inc. as monitor of the Filer under the CCAA Proceedings (the “CCAA Proceedings”).
On April 22, 2024, the Court issued an endorsement terminating the CCAA Proceedings and confirming the appointment of FTI Consulting Canada Inc., the court-appointed receiver and manager of the Filer (the “Receiver”), without security, of the Filer’s assets, undertakings and properties (the “Receivership”).
On June 24, 2024, the Court granted an order that authorized and directed the Receiver and Bloom Burton Securities Inc., as financial advisors to take such steps as they deemed necessary or advisable to carry out the sale of all or part of the Filer’s property and assets (the “Sale Process”).
On January 15, 2025, in furtherance of the Sale Process, the Filer announced that it had entered into a transaction agreement (the “Transaction Agreement”) with Taro Pharmaceutical Inc. (the “Purchaser”) whereby upon completion of the transaction contemplated by the Transaction Agreement, the Purchaser will own all of the issued and outstanding equity shares in the Filer. The Purchaser is an arm’s length party to the Filer.
On January 29, 2025, the Court granted an order under section 101 of the Courts of Justice Act (the “Approval and Reverse Vesting Order”) pursuant to which, inter alia, the Court: (i) approved the Transaction Agreement and the transactions contemplated therein (the “Transaction”); (ii) added 1001138302 Ontario Ltd. (“Residual Co”) as part of the Receivership; (iii) authorized the transfer and vesting of all of the right and title and interest of the Filer in certain excluded assets and liabilities in Residual Co; (iv) authorized the Filer to file articles of reorganization or such other instruments, as applicable; (v) authorized and directed the Filer to issue an aggregate of 100 newly issued common shares (the “Purchased Shares”) to the Purchaser; and (vi) authorized the termination and cancellation of all of the equity interests of the Filer for no consideration.
Pursuant to the Approval and Reverse Vesting Order, having been advised of Multilateral Instrument 61-101 Protection of Minority Security Holders in Special Transactions relating to the requirement for “minority” shareholder approval in certain circumstances, the Court ordered that no meeting of shareholders or other holders of equity interests of the Filer is required to complete the Transaction.
Pursuant to the Approval and Reverse Vesting Order, the Court ordered that no approval, authorization or other action by or notice to or filing with any governmental authority or regulatory body exercising jurisdiction in respect of the Filer is required to be held in respect of the Transaction.
In connection with carrying out the Sale Process and obtaining the Approval and Reverse Vesting Order, the Filer had engaged in certain acts in furtherance of trades in securities of the Filer, including its entry into the Transaction Agreement (the “Acts”), which Acts were taken with the approval of, and under the supervision of, the Court.
On March 6, 2025 the Filer received a partial revocation order of the FFCTO from the OSC to enable the Filer to complete the Transaction.
The Transaction was completed on March 17, 2025. On March 18, 2025, the Filer disseminated a news release announcing the completion of the Transaction and filed such news release as well as a material change report on the Filer’s profile on SEDAR+.
Residual Co is a wholly-owned subsidiary of the Filer. The Filer does not have any other subsidiaries. Pursuant to the Approval and Reverse Vesting Order, the Receiver, for and on behalf of Residual Co, will file an assignment in bankruptcy pursuant to the Bankruptcy and Insolvency Act (Canada).
The Common Shares previously traded on the Toronto Stock Exchange (the “TSX”) under the trading symbol “ATE”. The Common Shares were suspended from trading on the TSX in connection with the FFCTO and were delisted from the TSX on May 24, 2024.
As a result of the completion of the Transaction, the only outstanding securities of the Filer are the Purchased Shares held by the Purchaser.
The outstanding securities of the Filer, including debt securities, are beneficially owned, directly or indirectly, by fewer than 15 security holders in each of the jurisdictions of Canada and fewer than 51 security holders in total worldwide.
No securities of the Filer, including debt securities, are traded in Canada or another country on a marketplace as defined in National Instrument 21-101 Marketplace Operation or any other facility for bringing together buyers and sellers of securities where trading data is publicly reported.
There is no obligation in the Approval and Reverse Vesting Order or the articles of the Issuer for the Issuer to maintain its status as a reporting issuer and no prohibition on ceasing to be a reporting issuer.
The Filer is not an OTC reporting issuer under Multilateral Instrument 51-105 Issuers Quoted in the U.S. Over-the-Counter Markets.
The Filer has no current intention to seek financing by way of a public offering of its securities in Canada.
The Filer is not in default of any requirements of the FFCTO or the applicable securities legislation of any jurisdiction in Canada or the rules and regulations made pursuant thereto, other than the Acts and its obligations to complete and file the Unfiled Continuous Disclosure Documents.
But for the fact that the Filer is subject to the FFCTO as a result of failing to file the Unfiled Continuous Disclosure Documents, the Filer would be eligible to use the “simplified procedure” under National Policy 11-206 Process for Cease to be a Reporting Issuer Applications.
The Filer is applying for an order that the Filer has ceased to be a reporting issuer in all of the jurisdictions of Canada in which it is a reporting issuer.
Upon the granting of the Order Sought, the Filer will not be a reporting issuer in any jurisdiction in Canada.
Order
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 Order Sought is granted.
DATED this 25th day of April, 2025.
“Erin O’Donovan”
Erin O’Donovan
Manager, Corporate Finance
Ontario Securities Commission
OSC File #: 2025/0055