U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 40-F
Check One
| ☒ | Registration Statement Pursuant to Section 12 of the Securities Exchange Act of 1934 |
| ☐ | Annual Report Pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 |
| For the fiscal year ended: _____________ | | Commission File Number: _________ |
Fire & Flower Holdings Corp.
(Exact name of registrant as specified in its charter)
(Translation of registrant’s name into English (if applicable))
(Province or other jurisdiction of incorporation or organization)
(Primary Standard Industrial Classification Code Number (if applicable))
(I.R.S. Employer Identification Number (if applicable))
| 130 King Street West, Suite 2500, Toronto, Ontario M5X 1C8 Canada (780) 540-7518 |
(Address and telephone number of registrant’s principal executive offices)
| CT Corporation System, 28 Liberty Street, New York, NY 10005, Telephone: (212) 894-8940 |
(Name, address (including zip code) and telephone number (including area code of agent
for service in the United States)
Securities registered or to be registered pursuant to Section 12(b) of the Act.
| Common Shares, no par value | | The Nasdaq Stock Market LLC |
| Title of each class | | Name of each exchange on which registered |
Securities registered or to be registered pursuant to Section 12(g) of the Act.
None
(Title of Class)
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act.
None
(Title of Class)
For annual reports, indicate by check mark the information filed with this Form:
| | ☐ | Annual information form | ☐ | Audited annual financial statements |
Indicate the number of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered by the annual report: N/A
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 of 15(d) of the Exchange Act during the preceding 12 months (or for such shorter period that the registrant was required to file such reports) and (2) has been subject to such filing requirements for the past 90 days.
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 12b-2 of the Exchange Act.
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by checkmark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
☐
EXPLANATORY NOTE
Fire & Flower Holdings Corp. (the “Company”) is a Canadian issuer eligible to file its registration statement pursuant to Section 12 of the Securities Exchange Act of 1934, on Form 40-F pursuant to the multi-jurisdictional disclosure system of the Exchange Act. The Company is a “foreign private issuer” as defined in Rule 3b-4 under the Exchange Act. Equity securities of the Company are accordingly exempt from Sections 14(a), 14(b), 14(c), 14(f) and 16 of the Exchange Act pursuant to Rule 3a12-3 thereunder.
FORWARD LOOKING STATEMENTS
The Exhibits incorporated by reference into this Registration Statement contain forward-looking statements. All statements, other than statements of historical fact, incorporated by reference are forward-looking information. Generally, forward-looking information can be identified by the use of words and phrases such as “plans”, “expects”, “is expected”, “budget”, “scheduled”, “estimates”, “forecasts”, “intends”, “anticipates”, or “believes” or similar expressions or variations (including negative and grammatical variations) of such words and phrases, or statements that certain actions, events or results “may”, “could”, “would”, “might” or “will” be taken, occur or be achieved. There can be no assurance that such forward-looking information will prove to be accurate, and actual results and future events could differ materially from those anticipated in such forward-looking information. The registrant’s forward-looking statements contained in the Exhibits incorporated by reference into this Registration Statement are made as of the respective dates set forth in such Exhibits and on assumptions the registrant believed are reasonable as of such date. These assumptions include, but are not limited to: market acceptance and approvals. Forward-looking information is subject to known and unknown risks, uncertainties and other factors that may cause the actual results, level of activity, performance or achievements of the registrant to be materially different from those expressed or implied by such forward-looking information. Such risks and other factors may include, but are not limited to: general business, economic, competitive, political and social uncertainties; general capital market conditions and market prices for securities; delay or failure to receive board or regulatory approvals; the actual results of future operations; competition; changes in legislation affecting the registrant; the timing and availability of external financing on acceptable terms; and lack of qualified, skilled labor or loss of key individuals. A description of additional assumptions used to develop such forward-looking information and a description of additional risk factors that may cause actual results to differ materially from forward-looking information can be found in the registrant’s disclosure documents, such as the registrant’s annual information form filed on April 30, 2021 on the SEDAR website at www.sedar.com, attached hereto as Exhibit 99.141. Although the registrant has attempted to identify important factors that could cause actual results to differ materially from those contained in forward-looking information, there may be other factors that cause results not to be as anticipated, estimated or intended. Readers are cautioned that the foregoing list of factors is not exhaustive. Readers are further cautioned not to place undue reliance on forward-looking information as there can be no assurance that the plans, intentions or expectations upon which they are placed will occur. Forward-looking information contained in the Exhibits incorporated by reference are expressly qualified by this cautionary statement. The forward-looking information contained in the Exhibits incorporated by reference represents the expectations of the registrant as of the date of such Exhibit and, accordingly, is subject to change after such date. However, the registrant expressly disclaims any intention or obligation to update or revise any forward-looking information, whether as a result of new information, future events or otherwise, except as expressly required by applicable securities law.
DIFFERENCES IN UNITED STATES AND CANADIAN REPORTING PRACTICES
The registrant is permitted, under a multijurisdictional disclosure system adopted by the United States, to prepare this report in accordance with Canadian disclosure requirements, which are different from those of the United States. The registrant prepares its financial statements, which are filed with this report on Form 40-F in accordance with International Financial Reporting Standards as issued by the International Accounting Standards Board, and the audit is subject to Canadian auditing and auditor independence standards.
PRINCIPAL DOCUMENTS
In accordance with General Instruction B.(1) of Form 40-F, the registrant hereby incorporates by reference Exhibits 99.1 through 99.196, inclusive, as set forth in the Exhibit Index attached hereto.
In accordance with General Instruction D.(9) of Form 40-F, the registrant has filed the written consent of the independent accountants named in the foregoing Exhibit as Exhibit 99.195 and 99.196 as set forth in the Exhibit Index attached hereto.
TAX MATTERS
Purchasing, holding, or disposing of securities of the registrant may have tax consequences under the laws of the United States and Canada that are not described in this registration statement on Form 40-F.
DESCRIPTION OF COMMON SHARES
The required disclosure is included under the heading “Description of the Securities” in the registrant’s annual information form for the year ended January 30, 2021, attached hereto as Exhibit 99.141.
NASDAQ CORPORATE GOVERNANCE
A foreign private issuer that follows home country practices in lieu of certain provisions of the Nasdaq Stock Market Rules must disclose the ways in which its corporate governance practices differ from those followed by domestic companies. As required by Nasdaq Rule 5615(a)(3), the registrant will disclose on its website, as of the listing date, each requirement of the Nasdaq Stock Market Rules that it does not follow and describe the home country practice followed in lieu of such requirements.
CURRENCY
Unless otherwise indicated, all dollar amounts in this Registration Statement on Form 40-F are in Canadian dollars. The exchange rate of Canadian dollars into United States dollars, on January 17, 2022, based upon the daily exchange rate as quoted by the Bank of Canada was U.S.$1.00 = Cdn$ 1.2520.
UNDERTAKING
The Company undertakes to make available, in person or by telephone, representatives to respond to inquiries made by the Commission staff, and to furnish promptly, when requested to do so by the Commission staff, information relating to the securities registered pursuant to Form 40-F; the securities in relation to which the obligation to file an annual report on Form 40-F arises; or transactions in said securities.
CONSENT TO SERVICE OF PROCESS
The registrant has concurrently filed a Form F-X in connection with the class of securities to which this Registration Statement relates.
Any change to the name or address of the registrant’s agent for service shall be communicated promptly to the Commission by amendment to the Form F-X referencing the file number of the registrant.
SIGNATURES
Pursuant to the requirements of the Exchange Act, the registrant certifies that it meets all of the requirements for filing on Form 40-F and has duly caused this Form 40-F to be signed on its behalf by the undersigned, thereto duly authorized.
| | FIRE & FLOWER HOLDINGS CORP. |
| | | |
| | By: | /s/ Trevor Fencott |
| | | Trevor Fencott |
| | | Chief Executive Officer |
Dated: January 18, 2022
EXHIBITS
The following documents are filed as exhibits to this Form 40-F:
| 99.1 | | News Release - dated February 4, 2020 |
| 99.2 | | News Release - dated February 11, 2020 |
| 99.3 | | Material change report - dated February 20, 2020 |
| 99.4 | | Trust indenture - dated February 20, 2020 |
| 99.5 | | News release - dated March 2, 2020 |
| 99.6 | | News release - dated March 4, 2020 |
| 99.7 | | News release - dated March 18, 2020 |
| 99.8 | | News release - dated March 24, 2020 |
| 99.9 | | News release - dated April 6, 2020 |
| 99.10 | | News release - dated April 8, 2020 |
| 99.11 | | News release - dated April 13, 2020 |
| 99.12 | | News release - dated April 14, 2020 |
| 99.13 | | News release - dated April 15, 2020 |
| 99.14 | | Notice of the meeting and record date - dated April 16, 2020 |
| 99.15 | | News release - dated April 21, 2020 |
| 99.16 | | Press release (French) - dated April 28, 2020 |
| 99.17 | | Press release (English) - dated April 28, 2020 |
| 99.18 | | Early warning report (French) - dated April 28, 2020 |
| 99.19 | | Early warning report (English) - dated April 28, 2020 |
| 99.20 | | News release - dated April 28, 2020 |
| 99.21 | | Credit agreement - dated April 29, 2020 |
| 99.22 | | Trust indenture - dated April 29, 2020 |
| 99.23 | | Subscription receipt agreement - dated April 29, 2020 |
| 99.24 | | Annual information form for the year ended February 1, 2020 |
| 99.25 | | Ontario Form 13-502F1 (participation fee) for the year ended February 1, 2020 |
| 99.26 | | Audited annual financial statements for the years ended February 1, 2020 and February 2, 2019 |
| 99.27 | | Alberta Form 13-501F1 (participation fee) for the year ended February 1, 2020 |
| 99.28 | | Management’s discussion and analysis for the year ended February 1, 2020 |
| 99.29 | | Certification of CFO in respect of the annual filings for the year ended February 1, 2020 |
| 99.30 | | Certification of CEO in respect of the annual filings for the year ended February 1, 2020 |
| 99.31 | | News release - dated April 30, 2020 |
| 99.32 | | News release - dated May 1, 2020 |
| 99.33 | | Material change report - dated May 1, 2020 |
| 99.34 | | Certification of CFO in respect of the refiled annual filings for the year ended February 1, 2020 |
| 99.35 | | Certification of CEO in respect of the refiled annual filings for the year ended February 1, 2020 |
| 99.36 | | Refiled management’s discussion and analysis for the year ended February 1, 2020 |
| 99.37 | | Material change report - dated May 5, 2020 |
| 99.38 | | News release - dated May 11, 2020 |
| 99.39 | | Report of exempt distribution excluding Schedule 1 of 45-106F1 dated May 11, 2020 |
| 99.40 | | Virtual annual general and special meeting user guide dated May 20, 2020 |
| 99.41 | | Notice of meeting - dated May 20, 2020 |
| 99.42 | | Management information circular - dated May 20, 2020 |
| 99.43 | | Form of proxy - dated May 20, 2020 |
| 99.44 | | News release - dated June 8, 2020 |
| 99.45 | | News release - dated June 9, 2020 |
| 99.46 | | News release - dated June 15, 2020 |
| 99.47 | | Interim financial statements for the thirteen weeks ended May 2, 2020 and May 4, 2019 |
| 99.48 | | Management’s discussion and analysis for the thirteen weeks ended May 2, 2020 |
| 99.49 | | Certification of CFO in respect of the interim filings for the thirteen weeks ended May 2, 2020 |
| 99.50 | | Certification of CEO in respect of the interim filings for the thirteen weeks ended May 2, 2020 |
| 99.51 | | News release - dated June 16, 2020 |
| 99.52 | | Report of voting results - dated June 16, 2020 |
| 99.53 | | News release - dated June 26, 2020 |
| 99.54 | | News release - dated July 6, 2020 |
| 99.55 | | News release - dated July 23, 2020 |
| 99.56 | | News release - dated July 23, 2020 |
| 99.57 | | Notice of the meeting and record date for special meeting - dated July 24, 2020 |
| 99.58 | | Amendment agreement - dated July 31, 2020 |
| 99.59 | | Trust indenture - dated July 31, 2020 |
| 99.60 | | Material change report - dated August 5, 2020 |
| 99.61 | | News release - dated August 11, 2020 |
| 99.62 | | Abridgement certificate - dated August 19, 2020 |
| 99.63 | | Notice of meeting - dated August 19, 2020 |
| 99.64 | | Management information circular - dated August 19, 2020 |
| 99.65 | | Form of proxy - dated August 19, 2020 |
| 99.66 | | News release - dated August 25, 2020 |
| 99.67 | | News release - dated August 27, 2020 |
| 99.68 | | News release - dated September 4, 2020 |
| 99.69 | | Interim financial statements for the thirteen and twenty-six weeks ended August 1, 2020 and August 3, 2019 |
| 99.70 | | Management’s discussion and analysis for the thirteen and twenty-six weeks ended August 1, 2020 |
| 99.71 | | Certification of CFO in respect of the interim filings for the thirteen and twenty-six weeks ended August 1, 2020 |
| 99.72 | | Certification of CEO in respect of the interim filings for the thirteen and twenty-six weeks ended August 1, 2020 |
| 99.73 | | News release - dated September 15, 2020 |
| 99.74 | | News release - dated September 15, 2020 |
| 99.75 | | Press release (French) - dated September 18, 2020 |
| 99.76 | | Press release (English) - dated September 18, 2020 |
| 99.77 | | Early warning report (French) - dated September 18, 2020 |
| 99.78 | | Early warning report (English) - dated September 18, 2020 |
| 99.79 | | News release - dated September 23, 2020 |
| 99.80 | | Amended and restated investor rights agreement - dated September 24, 2020 |
| 99.81 | | News release - dated October 14, 2020 |
| 99.82 | | News release - dated October 15, 2020 |
| 99.83 | | News release - dated November 2, 2020 |
| 99.84 | | News release - dated November 6, 2020 |
| 99.85 | | Share purchase agreement - dated November 11, 2020 |
| 99.86 | | Material change report - dated November 11, 2020 |
| 99.87 | | Report of exempt distribution - dated November 11, 2020 |
| 99.88 | | Preliminary short form prospectus - dated November 19, 2020 |
| 99.89 | | Qualification certificate - dated November 19, 2020 |
| 99.90 | | Decision document (preliminary) dated November 19, 2020 |
| 99.91 | | News release - dated November 23, 2020 |
| 99.92 | | Amendment to final short form prospectus - dated November 24, 2020 |
| 99.93 | | Undertaking re short form prospectus - dated November 24, 2020 |
| 99.94 | | Final short form prospectus - dated November 24, 2020 |
| 99.95 | | Undertaking re short form prospectus - dated November 24, 2020 |
| 99.96 | | Decision document (final) - dated November 25, 2020 |
| 99.97 | | Decision document (amendment to final) - dated November 25, 2020 |
| 99.98 | | News release - dated November 30, 2020 |
| 99.99 | | News release - dated December 2, 2020 |
| 99.100 | | Agency agreement - dated December 2, 2020 |
| 99.101 | | Prospectus (non-pricing) supplement (ATM) - dated December 2, 2020 |
| 99.102 | | News release - dated December 3, 2020 |
| 99.103 | | Early warning report - dated December 4, 2020 |
| 99.104 | | News release - dated December 8, 2020 |
| 99.105 | | News release - dated December 15, 2020 |
| 99.106 | | Interim financial statements for the thirteen and thirty-nine weeks ended October 31, 2020 and November 2, 2019 |
| 99.107 | | Management’s discussion and analysis for the thirteen and thirty-nine weeks ended October 31, 2020 |
| 99.108 | | Certification of CFO in respect of the interim filings for the thirteen and thirty-nine weeks ended October 31, 2020 |
| 99.109 | | Certification of CEO in respect of the interim filings for the thirteen and thirty-nine weeks ended October 31, 2020 |
| 99.110 | | Material change report - dated December 16, 2020 |
| 99.111 | | News release - dated December 21, 2020 |
| 99.112 | | Press release (French) - dated December 21, 2020 |
| 99.113 | | Press release (English) - dated December 21, 2020 |
| 99.114 | | Early warning report (French) - dated December 21, 2020 |
| 99.115 | | Early warning report (English) - dated December 21, 2020 |
| 99.116 | | News release - dated January 18, 2021 |
| 99.117 | | News release - dated January 25, 2021 |
| 99.118 | | News release - dated February 1, 2021 |
| 99.119 | | News release - dated February 10, 2021 |
| 99.120 | | News release - dated February 16, 2021 |
| 99.121 | | News release - dated February 22, 2021 |
| 99.122 | | News release - dated March 2, 2021 |
| 99.123 | | Purchase option agreement - dated March 4, 2021 |
| 99.124 | | Intellectual property and trademark license agree1ment - dated March 4, 2021 |
| 99.125 | | Material change report - dated March 4, 2021 |
| 99.126 | | Trust indenture - dated March 4, 2021 |
| 99.127 | | News release - dated March 10, 2021 |
| 99.128 | | Notice of the meeting and record date - dated March 16, 2021 |
| 99.129 | | Notice of the meeting and record date - dated March 23, 2021 |
| 99.130 | | Notice of the meeting and record date - dated April 1, 2021 |
| 99.131 | | Notice of the meeting and record date - dated April 5, 2021 |
| 99.132 | | News release - dated April 19, 2021 |
| 99.133 | | News release - dated April 20, 2021 |
| 99.134 | | News release - dated April 21, 2021 |
| 99.135 | | News release - dated April 27, 2021 |
| 99.136 | | Audited annual financial statements for the years ended January 30, 2021 and February 1, 2020 |
| 99.137 | | Management’s discussion and analysis for the year ended January 30, 2021 |
| 99.138 | | Ontario Form 13-502F1 (participation fee) for the year ended January 30, 2021 |
| 99.139 | | Alberta Form 13-501F1 (participation fee) for the year ended January 30, 2021 |
| 99.140 | | News release - dated April 29, 2021 |
| 99.141 | | Annual information form for the year ended January 30, 2021 |
| 99.142 | | Certification of CFO in respect of the annual filings for the year ended January 30, 2021 |
| 99.143 | | Certification of CEO in respect of the annual filings for the year ended January 30, 2021 |
| 99.144 | | News release - dated May 3, 2021 |
| 99.145 | | Notice of annual general and special meeting - dated May 7, 2021 |
| 99.146 | | Notice of annual general and special meeting - dated May 7, 2021 |
| 99.147 | | Management information circular - dated May 7, 2021 |
| 99.148 | | Form of proxy - dated May 7, 2021 |
| 99.149 | | News release - dated May 18, 2021 |
| 99.150 | | News release - dated May 21, 2021 |
| 99.151 | | News release - dated June 1, 2021 |
| 99.152 | | News release - dated June 7, 2021 |
| 99.153 | | Report of voting results - dated June 9, 2021 |
| 99.154 | | News release - dated June 9, 2021 |
| 99.155 | | Interim financial statements for the thirteen weeks ended May 1, 2021 and May 2, 2020 |
| 99.156 | | Management’s discussion and analysis for the thirteen weeks ended May 1, 2021 |
| 99.157 | | Certification of CFO in respect of the interim filings for the thirteen weeks ended May 1, 2021 |
| 99.158 | | Certification of CEO in respect of the interim filings for the thirteen weeks ended May 1, 2021 |
| 99.159 | | News release - dated June 15, 2021 |
| 99.160 | | News release - dated June 23, 2021 |
| 99.161 | | News release - dated June 28, 2021 |
| 99.162 | | News release - dated July 2, 2021 |
| 99.163 | | Press release (French) - dated July 2, 2021 |
| 99.164 | | Press release (English) - dated July 2, 2021 |
| 99.165 | | Early warning report (French) - dated July 2, 2021 |
| 99.166 | | Early warning report (English) - dated July 2, 2021 |
| 99.167 | | News release - dated August 4, 2021 |
| 99.168 | | News release - dated August 26, 2021 |
| 99.169 | | News release - dated September 8, 2021 |
| 99.170 | | Interim financial statements for the thirteen and twenty-six weeks ended July 31, 2021 and August 1, 2020 |
| 99.171 | | Management’s discussion and analysis for the thirteen and twenty-six weeks ended July 31, 2021 |
| 99.172 | | Certification of CFO in respect of the interim filings for the thirteen and twenty-six weeks ended July 31, 2021 |
| 99.173 | | Certification of CEO in respect of the interim filings for the thirteen and twenty-six weeks ended July 31, 2021 |
| 99.174 | | News release - dated September 14, 2021 |
| 99.175 | | News release - dated September 15, 2021 |
| 99.176 | | News release - dated October 5, 2021 |
| 99.177 | | News release - dated October 25, 2021 |
| 99.178 | | News release - dated October 28, 2021 |
| 99.179 | | News release - dated November 04, 2021 |
| 99.180 | | News release - dated November 29, 2021 |
| 99.181 | | Articles of amendment - dated November 29, 2021 |
| 99.182 | | News release - dated December 02, 2021 |
| 99.183 | | Material change report - dated December 03, 2021 |
| 99.184 | | News release - dated December 8, 2021 |
| 99.185 | | News release - dated December 9, 2021 |
| 99.186 | | News release - dated December 13, 2021 |
| 99.187 | | Interim financial statements for the thirteen and thirty-nine weeks ended October 30, 2021 and October 31, 2020 |
| 99.188 | | Management’s discussion and analysis for the thirteen and thirty-nine weeks ended October 30, 2021 |
| 99.189 | | Certification of CFO in respect of the interim filings for the thirteen and thirty-nine weeks ended October 30, 2021 |
| 99.190 | | Certification of CEO in respect of the interim filings for the thirteen and thirty-nine weeks ended October 30, 2021 |
| 99.191 | | News release - dated December 14, 2021 |
| 99.192 | | Loan Agreement – dated December 16, 2021 |
| 99.193 | | Material Change Report – dated December 16, 2021 |
| 99.194 | | News release - dated January 12, 2022 |
| 99.195 | | Consent of PricewaterhouseCoopers LLP |
| 99.196 | | Consent of McGovern Hurley LLP |
