National Policy 11-206 Process for Cease to be a Reporting Issuer Applications -- Securities Act s. 1(10)(a)(ii) -- Cease to be a reporting issuer in Ontario -- The securities of the issuer are beneficially owned by more than 50 persons and are not traded through any exchange or market -- Following an arrangement, all of the issuer's common shares were acquired by another company; all of the issuer's other outstanding securities are either exercisable for securities of the acquirer or redeemable based on the value of the shares of the acquirer; the acquirer is a reporting issuer and in compliance with its continuous disclosure obligations; security holders were provided with relevant material information to make voting decisions on the arrangement; the issuer disclosed its intention to cease to be a reporting issuer; securities of the issuer are not traded through any exchange or market.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., s. 1(10)(a)(ii).
August 4, 2020
IN THE MATTER OF THE SECURITIES LEGISLATION OF BRITISH COLUMBIA AND ONTARIO (the Jurisdictions) AND IN THE MATTER OF THE PROCESS FOR CEASE TO BE A REPORTING ISSUER APPLICATIONS AND IN THE MATTER OF FRANKLY INC. (the Filer)
The securities regulatory authority or regulator in each of the Jurisdictions (Decision Maker) has received an application from the Filer for an order under the securities legislation of the Jurisdictions (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 dual application):
(a) the British Columbia Securities Commission 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, and
(c) this order is the order of the principal regulator and evidences the decision of the securities regulatory authority or regulator in Ontario.
Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this order, unless otherwise defined.
This order is based on the following facts represented by the Filer:
1. the Filer is a company continued pursuant to the Business Corporations Act (British Columbia) (the BCBCA) on July 11, 2016; the Filer's head office is located at 33 Whitehall Street, 8th Floor, New York, New York, 10004, USA and its registered office is located at 2900-550 Burrard Street, Vancouver, British Columbia, V6C 0A3, Canada;
2. the Filer was an SEC issuer (as that term is defined under National Instrument 51-102 Continuous Disclosure Obligations (NI 51-102)) from August 2017 until its securities were deregistered with the SEC on April 1, 2019, from which time the Filer no longer qualified as an SEC issuer under Canadian securities laws; under National Instrument 52-107 Acceptable Accounting Principles and Auditing Standards (NI 52-107), as an SEC issuer, the Filer was permitted to prepare its financial statements in accordance with U.S. GAAP and have them audited in accordance with U.S. PCAOB GAAS, and to file its management's discussion and analysis in accordance with requirements applicable to SEC issuers;
3. on May 8, 2020 (Effective Date), Torque Esports Corp. (formerly Millennial Esports Corp.) (Torque) acquired all of the issued and outstanding common shares of the Filer (Filer Shares), pursuant to an arrangement under the BCBCA (the Arrangement);
4. Torque is a corporation existing under the laws of the Business Corporations Act (Ontario); the authorized share capital of Torque consists of an unlimited number of common shares (Torque Shares) and an unlimited number of preference shares; the Torque Shares are listed on the TSX Venture Exchange (TSXV) under the symbol "GAME";
5. the Filer distributed meeting materials to the holders of record of the Filer Shares in connection with a special meeting of Filer shareholders to consider the Arrangement (Special Meeting), which occurred on April 23, 2020, and which meeting materials included a management information circular, notice of special meeting, and the interim order of the British Columbia Supreme Court dated March 25, 2020 in respect of the Arrangement and the Special Meeting; at the Special Meeting, the Arrangement was approved by the requisite majorities of the holders of Filer Shares;
6. prior to the Effective Date, the Filer had the following issued and outstanding securities: (i) Filer Shares; (ii) options to acquire Filer Shares (Legacy Options); (iii) restricted stock units to acquire Filer Shares (Legacy RSUs); and (iv) common share purchase warrants to acquire Filer Shares (Filer Warrants);
7. pursuant to the terms of the Arrangement, on the Effective Date, all of the issued and outstanding Filer Shares were exchanged for common shares in the capital of Torque (each such share, a Torque Share), on a one-for-one basis (the Exchange Ratio); in addition, the outstanding Legacy Options were exchanged for replacement options to acquire Torque Shares, and the outstanding Legacy RSUs were exchanged for replacement restricted stock units to acquire Torque Shares, in each case, on the same terms and conditions as the Legacy Options and Legacy RSUs, and on the basis of the Exchange Ratio;
8. under the terms of the Arrangement, Torque agreed, from the Effective Date until the respective date(s) and time(s) of expiry of the Filer Warrants (in accordance with their respective terms), that Torque will assume all of the covenants and obligations of the Filer under the Filer Warrants such that each Filer Warrant will entitle the holder to receive Torque Shares in accordance with the Exchange Ratio, and the Filer Warrants will otherwise be valid and binding obligations of Torque;
9. the Filer is not required to remain a reporting issuer pursuant to the terms of the Filer Warrants; the terms of the Filer Warrants contain adjustment provisions addressing, amongst others, a corporate merger, amalgamation, arrangement or business combination, including the Arrangement, and provide for the payment of Torque Shares in lieu of Filer Shares subsequent to such an event; as a result, no consents or approvals are required from the holders of Filer Warrants;
10. Torque is a reporting issuer in British Columbia, Alberta and Ontario and is subject to continuous disclosure requirements; Torque's continuous disclosure is relevant to holders of Filer Warrants as such holders are entitled to receive Torque Shares upon exercise of such securities;
11. Torque is not in default of its obligations as a reporting issuer under securities legislation in any jurisdiction;
12. the Filer is applying for the Order Sought that it be deemed to have ceased to be a reporting issuer in all of the jurisdictions in which it is currently a reporting issuer;
13. the Filer Shares were listed on the TSXV under the symbol "TLK" until they were delisted following the completion of the Arrangement at the close of business on May 14, 2020; 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;
14. the Filer has relied on and, except as noted in the following paragraph, has complied with the requirements of the exemptions for market participants impacted by the COVID-19 pandemic in accordance with BC Instrument 51-515 -- Temporary Exemption from Certain Corporate Finance Requirements (BCI 51-515) and corresponding exemptions in the other jurisdictions in which the Filer is a reporting issuer, in respect of the filing of its (i) audited annual consolidated financial statements and accompanying management's discussion and analysis and related CEO and CFO certificates for the fiscal year ended December 31, 2019 (the 2019 Annual Filings) which were required to be filed on or before April 29, 2020, and which were required under BCI 51-515 to be filed by June 13, 2020 (the Extended Annual Filings Deadline); and (ii) interim financial report and accompanying management's discussion and analysis and related CEO and CFO certificates for the period ended March 31, 2020 (the Interim Filings) which were required to be filed on or before June 1, 2020, and which were required under BCI 51-515 to be filed by July 16, 2020 (the Extended Interim Filings Deadline);
15. the Filer is not in default of securities legislation in any jurisdiction, except for the following: (i) the Filer's annual financial statements for the year ended December 31, 2018 and the interim financial reports for the periods ended March 31, 2019, June 30, 2019 and September 30, 2019 were prepared in accordance with U.S. GAAP (as defined under NI 52-107), rather than Canadian GAAP applicable to publicly accountable enterprises as required in section 3.2 of NI 52-107; (ii) the corresponding management's discussion and analysis for the year ended December 31, 2018 and the interim periods ended March 31, 2019, June 30, 2019 and September 30, 2019 were prepared in accordance with Item 303 of Regulation S-K under the 1934 Act, rather than in accordance with Form 51-102F1 of NI 51-102; (iii) the annual financial statements for the year ended December 31, 2018 were audited in accordance with U.S. PCAOB GAAS (as defined in NI 52-107), rather than in accordance with Canadian GAAS as required by section 3.3. of NI 52-107; (iv) the Filer did not file its 2019 Annual Filings on or before the Extended Annual Filings Deadline; and (v) the Filer did not file its Interim Filings on or before the Extended Interim Filings Deadline;
16. the Filer is not eligible to use the simplified procedure in NP 11-206 Process for Cease to be a Reporting Issuer Applications because the Filer is in default of securities legislation, and the outstanding securities of the Filer (specifically the Filer Warrants) are not beneficially owned, directly or indirectly, by fewer than 15 securityholders in each of the jurisdictions of Canada and fewer than 51 securityholders in total worldwide;
17. the Filer has no intention to seek public financing by way of an offering of securities;
18. the Filer is not an OTC reporting issuer under Multilateral Instrument 51-105 Issuers Quoted in the U.S. Over-the-Counter Markets; and
19. upon the granting of the Order Sought, the Filer will not be a reporting issuer or the equivalent in any jurisdiction in Canada.
Each of the Decision Makers is satisfied that the order meets the test set out in the Legislation for the Decision Maker to make the order.
The decision of the Decision Makers under the Legislation is that the Order Sought is granted.
Director, Corporate Finance
British Columbia Securities Commission