Multilateral Instrument 11-102 Passport System and National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions.
National Instrument 44-101 Short Form Prospectus Distributions, s. 8.1 and National Instrument 44-102 Shelf Distributions s. 11.1(1) -- Qualification -- An issuer that does not meet the eligibility criteria in section 2.2 or 2.3 of NI 44-101 or because it does not have securities listed on an exchange in Canada wants to use the short form prospectus system; the issuer is a reporting issuer in Canada; the issuer's shares are listed on NASDAQ and are not listed on a Canadian exchange; the issuer is subject to the reporting requirements of the United States Securities Exchange Act of 1934.
Applicable Legislative Provisions
National Instrument 44-101 Short Form Prospectus Distributions, ss. 2.2(e), 8.1(1).
National Instrument 44-102 Shelf Distributions, ss. 2.2(1), 2.2(2), 2.2(3)(b)(iii), 11.1(1).
December 2, 2015
IN THE MATTER OF THE SECURITIES LEGISLATION OF BRITISH COLUMBIA AND ONTARIO (THE JURISDICTIONS) AND IN THE MATTER OF THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS IN MULTIPLE JURISDICTIONS AND IN THE MATTER OF XENON PHARMACEUTICALS INC. (THE FILER)
1 The securities regulatory authority or regulator in each of the Jurisdictions (Decision Makers) has received an application from the Filer for a decision under the securities legislation of the Jurisdiction (the Legislation) that:
(a) the qualification criteria in subsection 2.2(e) of National Instrument 44-101 Short Form Prospectus Distributions (NI 44-101) and subsections 2.2(1), 2.2(2) and 2.2(3)(b)(iii) of National Instrument 44-102 Shelf Distributions that the equity securities of the Filer be listed and posted for trading on a short form eligible exchange (as defined in NI 44-101) does not apply to the Filer (the Qualification Relief); and
(b) the application and this decision be held in confidence by the Decision Maker (the Confidentiality Relief).
Under the Process for Exemptive Relieve Applications in Multiple Jurisdictions (for a dual application):
(a) the British Columbia Securities Commission is the principal regulator for this application;
(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 Alberta; and
(c) this decision is the decision of the principal regulator and evidences the decision of the securities regulatory authority or regulator in Ontario.
2 Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this decision, unless otherwise defined.
3 This decision is based on the following facts represented by the Filer:
1. the Filer is a corporation existing under the Canada Business Corporations Act and its head office is located in British Columbia;
2. the Filer is a clinical-stage biopharmaceutical company that is developing a pipeline of differentiated therapeutics for orphan indications to commercialize on its own or in partnership with global pharmaceutical companies;
3. the Filer is, and has been for the last 12 months, a reporting issuer in each of the Jurisdictions and is not in default of the securities legislation in any of the Jurisdictions;
4. the Filer is subject to the reporting requirements of the Securities Exchange Act of 1934, as amended, of the United States and is not in default of any requirement of applicable securities laws of the United States;
5. the Filer's authorized capital consists of an unlimited number of common shares and an unlimited number of preferred shares, as of November 26, 2015, 14,378,846 common shares and no preferred shares were issued and outstanding;
6. the common shares of the Filer are quoted for trading on the NASDAQ Stock Market (NASDAQ) under the symbol "XENE", but are not listed and posted for trading on any stock exchange in Canada;
7. a short form eligible exchange is defined in NI 44-101 as the Toronto Stock Exchange, Tier 1 and Tier 2 of the TSX Venture Exchange, Aequitas NEO Exchange Inc., or the Canadian Securities Exchange;
8. the Filer satisfies the basic qualification criteria in section 2.2 of NI 44-101, other than having its securities listed and posted for trading on a short form eligible exchange; and
9. prior to the Filer filing a notice declaring its intention to be qualified to file a short form prospectus under NI 44-101, the Filer will make no public announcement of its intention to file a short form prospectus in Canada.
4 Each of the Decision Makers is satisfied that the decision meets the test set out in the Legislation for the Decision Maker to make the decision.
The decision of the Decision Makers under the Legislation is that:
(a) the Qualification Relief is granted provided that:
(i) the Filer complies with all applicable requirements, procedures and qualification criteria of NI 44-101, other than the requirement in subsection 2.2(e) of NI 44-101 that the Filer's equity securities be listed and posted for trading on a short form eligible exchange; and
(ii) the common shares of the Filer are listed and posted for trading on NASDAQ on the date of filing by the Filer of a final short form prospectus pursuant to NI 44-101; and
(b) the Confidentiality Relief is granted until the earlier of the date:
(i) the Filer files a notice declaring its intention to be qualified to file a short form prospectus in Canada under NI 44-101;
(ii) the Filer advises the principal regulator that there is no longer any need for the application and this decision to remain confidential; and
(iii) that is 30 days from the date of this decision.