Section 1(10)(a)(ii) of the Securities Act (Ontario) -- National Policy 11-206 Process for Cease to be a Reporting Issuer Applications -- Application by a reporting issuer for an order that it is not a reporting issuer -- The issuer's securities are traded only on a market or exchange outside of Canada -- Canadian residents own less than 2% of the issuer's securities and represent less than 2% of the issuer's total number of security holders -- The issuer does not intend to do a public offering of its securities to Canadian residents -- The issuer will not be a reporting issuer in a Canadian jurisdiction -- The issuer is subject to the reporting requirements of US securities laws, and all shareholders receive the same disclosure.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., s. 1(10)(a)(ii).
National Policy 11-206 Process for Cease to be a Reporting Issuer Applications.
January 17, 2017
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 INOVIO PHARMACEUTICALS, INC. (the Filer)
1 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) this order is the order 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 have the same meaning if used in this order, unless otherwise defined.
3 This order is based on the following facts represented by the Filer:
1. the Filer is a "reporting issuer" in the Jurisdictions;
2. the Filer's initial predecessor entity, Biotechnologies & Experimental Research, Inc., was incorporated under the laws of the State of California in 1983, and underwent corporate and name changes in subsequent years; from April 14, 1994 until voluntary delisting on March 6, 1998, shares of a predecessor entity, Genetronics Biomedical Ltd., were listed on the Vancouver Stock Exchange, and from September 2, 1997 until voluntary delisting on January 17, 2003 on the Toronto Stock Exchange; on December 8, 1998, Genetronics Biomedical Ltd. listed on the American Stock Exchange (NYSE MKT);
3. on September 4, 2014, Inovio Pharmaceuticals, Inc. provided notice to the NYSE MKT that it would voluntarily transfer the listing of its common shares, par value $0.001 per share, from the NYSE MKT to the NASDAQ; the Filer's common shares were approved for listing on the NASDAQ and began trading on the NASDAQ on September 15, 2014;
4. the Filer is subject to the reporting obligations of the Securities and Exchange Commission of the United States (SEC);
5. the Filer is not in default of any of the requirements of securities legislation in any jurisdiction in Canada, the requirements of the SEC or the NASDAQ, or any other securities or corporate legislation to which it is subject;
6. the head office of the Filer is located at 660 W. Germantown Pike, Suite 110, Plymouth Meeting, Pennsylvania, 19462;
7. the Filer is authorized to issue up to 600,000,000 common shares, and up to 10,000,000 preferred shares, of which 73,966,730 common shares and 23 preferred shares are outstanding as of September 30, 2016;
8. as of September 30, 2016, there are
(a) 6,747,961 options outstanding to purchase 6,747,961 common shares of the Filer and there are no options outstanding to purchase preferred shares of the Filer;
(b) 284,091 warrants outstanding to purchase 284,091 common shares of the Filer and 0 warrants outstanding to purchase preferred shares of the Filer;
(c) 771,335 restricted stock units of the Filer outstanding entitling the holders thereof to a maximum of 771,335 common shares of the Filer; payments to the holders of the restricted stock units can be made in the form of common shares, or cash or a combination of both, as the compensation committee for the Filer may determine;
9. no securities of the Filer, including debt securities, are traded in Canada 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;
10. in the 12 months before the date the Filer applied for the Order Sought, the Filer has not taken any steps that indicate there is a market for its securities in Canada; in particular, since delisting from the Toronto Stock Exchange in 2003, the Filer has not conducted a prospectus offering in Canada, established or maintained a listing on an exchange in Canada;
11. based upon a review of its corporate records and the websites of each of the British Columbia Securities Commission and the Ontario Securities Commission, since January 17, 2003, the only distributions of the Filer's securities in Canada have been to employees of the Filer and its affiliates under the employee prospectus exemption under section 2.24 of National Instrument 45-106 Prospectus and Registration Exemptions as part of the Filer's 2007 Omnibus Incentive Plan, as amended;
12. the Filer does not currently anticipate offering its securities in Canada at any time in the future;
13. the Filer qualifies as a "SEC foreign issuer" under National Instrument 71-102 Continuous Disclosure and Other Exemptions Relating to Foreign Issuers (NI 71-102) and has relied on and complied with the exemptions from Canadian continuous disclosure requirements under Part 4 of NI 71-102;
14. the Filer has provided an undertaking to concurrently deliver to any securityholders resident in Canada all disclosure material required by the securities laws of the United States, the SEC or the NASDAQ requirements to be delivered to securityholders resident in the United States;
15. all public documents of the Filer are available on the Filer's EDGAR profile under the filings section of the SEC website (www.sec.gov);
16. the Filer has provided advance notice to Canadian resident securityholders in a press release dated November 25, 2016, that it has applied to the Decision Makers for an order that it is not a reporting issuer in Canada and, if that order is granted, the Filer will no longer be a reporting issuer in any jurisdiction in Canada;
17. the Filer retained Computershare Trust Company of Canada (Computershare), its transfer agent, and Broadridge Financial Solutions Inc. (Broadridge) to prepare geographical analysis reports providing a breakdown of beneficial holders of securities of the Filer resident in Canada;
18. the reports provided by Computershare and Broadridge, together, each dated as of March 18, 2016, provide that there are:
(a) a total of 72,224,025 common shares outstanding worldwide;
(b) 132,292 common shares are directly or indirectly beneficially owned by residents in Canada; and
(c) a total of 47,144 shareholders of the Filer worldwide, of which 54 are residents in Canada;
19. based upon these searches conducted by Computershare and Broadridge:
(a) there are a total of 54 shareholders in Canada beneficially owning an aggregate of 132,292 common shares;
(b) there are a total of 72,224,025 common shares outstanding worldwide, of which residents in Canada directly or indirectly beneficially own 132,292 common shares; and
(c) on an aggregate basis, the Canadian shareholdings represent 0.11% of the Filer's shareholders and 0.18% of its issued and outstanding listed securities worldwide;
20. based on the Filer's review of its records and transaction reports relating to the offering of the Filer's securities since March 18, 2016, the number of shareholders in Canada and the number of common shares held by residents of Canada as of the date the Filer applied for the Order Sought are not substantially different than those figures contained in the respective reports provided by Computershare and Broadridge on March 18, 2016;
21. residents of Canada do not, directly or indirectly:
(a) beneficially own more than 2% of each class or series of outstanding securities (including debt securities) of the Filer worldwide; and
(b) comprise more than 2% of the total number of securityholders of the Filer worldwide;
22. in addition, residents of Canada beneficially own 146,125 options to purchase common shares and 8,000 restricted stock units; if fully exercised, these securities will entitle residents of Canada to beneficially own an additional 154,125 common shares; on this basis, if fully exercised, residents of Canada would beneficially own 0.39% of the outstanding common shares of the Filer;
23. the Filer is not eligible for the simplified procedure set out in National Instrument 11-206 Process for Cease to be a Reporting Issuer Applications because the Filer's outstanding securities, including debt securities, are beneficially owned, directly or indirectly, by more than 15 securityholders in each of the jurisdictions of Canada and more than 51 securityholders in total worldwide;
24. the Filer is not eligible to surrender its status as a reporting issuer in British Columbia under British Columbia Instrument 11-502 Voluntary Surrender of Reporting Issuer Status because it is not a "closely held reporting issuer" within the meaning of that instrument, because it is not a reporting issuer in British Columbia only, its outstanding securities are beneficially owned, directly or indirectly, by more than 50 persons and its securities are traded through or quoted on an exchange, namely, the NASDAQ; and
25. the Filer will not be a reporting issuer in any jurisdiction of Canada immediately following the granting of the Order Sought.
4 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.