UNITED
STATES
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 |
OR
| x |
ANNUAL REPORT PURSUANT TO SECTION 13(a)
OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31,
2021
Commission File Number 001-40469
AcuityAds Holdings
Inc.
(Exact name
of Registrant as specified in its charter)
Ontario, Canada
(Province or other jurisdiction of incorporation
or organization)
7372
(Primary Standard Industrial Classification
Code Number (if applicable))
Not Applicable
(I.R.S. Employer Identification Number (if
applicable))
70 University Ave., Suite 1200
Toronto, Ontario, Canada
M5J 2M4 |
(416) 218-9888
(Address and telephone number of Registrant’s
principal executive offices)
CT Corporation System
28 Liberty St.
New York, NY 10005
(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:
| Title
of each class |
Trading
Symbol(s) |
Name
of each exchange on which
registered |
| Common
Shares |
ATY |
The
Nasdaq Stock Market LLC |
Securities registered or to be registered pursuant
to Section 12(g) of the Act:
Not Applicable
(Title of Class)
Securities for which there is a reporting obligation
pursuant to Section 15(d) of the Act:
Not Applicable
(Title of Class)
For annual reports, indicate by check mark
the information filed with this Form:
| x
Annual information form |
|
x
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.
60,733,803 Common Shares outstanding as
of December 31, 2021
Indicate by check mark whether the registrant (1) has
filed all reports required to be filed by Section 13 or 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.
x Yes
¨ No
Indicate
by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted 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 such files).
¨ Yes
¨ No
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 12b-2 of the Exchange Act.
x Emerging
growth company
If an emerging growth company
that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark 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. ¨
† The term “new or revised financial
accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification
after April 5, 2012.
Indicate by check mark whether the registrant
has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial
reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that
prepared or issued its audit report. ¨
Principal
documents
The following documents have
been filed as part of this Annual Report:
| 1. | Annual Information Form for the
year ended December 31, 2021 (the “2021 AIF”) (filed as Exhibit 99.1
hereto); |
| 2. | Audited Consolidated Financial Statements
for the years ended December 31, 2021 and 2020, including the Report of Independent
Registered Public Accounting Firm with respect thereto (the “Audited Annual Financial
Statements”) (filed as Exhibit 99.2 hereto); and |
| 3. | Management’s Discussion and Analysis
of Financial Condition and Results of Operations for the three and twelve months ended December 31,
2021 (the “2021 MD&A”) (filed as Exhibit 99.3 hereto). |
DISCLOSURE
CONTROLS AND PROCEDURES
The required disclosure is included
in Exhibits 99.5, 99.6 and 99.7 to this Annual Report, and is incorporated herein by reference.
| B. | Evaluation of Disclosure Controls
and Procedures |
As of the
end of the Registrant’s year ended December 31, 2021, an internal evaluation was conducted under the supervision of and with
the participation of the Registrant’s management, including the Chief Executive Officer and the Chief Financial Officer, of the
effectiveness of the design and operation of the Registrant’s “disclosure controls and procedures” as defined in Rule 13a-15(e) under
U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”). Based on that evaluation, the Chief Executive Officer
and the Chief Financial Officer concluded that the design and operation of the Registrant’s disclosure controls and procedures
were effective in ensuring that the information required to be disclosed in the reports that the Registrant files with or submits to
the U.S. Securities and Exchange Commission (the “Commission”) is recorded, processed, summarized and reported, within the
required time periods.
It should
be noted that while the Chief Executive Officer and the Chief Financial Officer believe that the Registrant’s disclosure controls
and procedures provide a reasonable level of assurance that they are effective, they do not expect that the Registrant’s disclosure
controls and procedures will prevent all errors and fraud. A control system, no matter how well conceived or operated, can provide only
reasonable, not absolute, assurance that the objectives of the control system are met.
| C. | Management’s Annual Report on
Internal Control over Financial Reporting |
This Annual Report does not include
a report of management’s assessment regarding internal control over financial reporting due to a transition period established
by rules of the Commission for newly public companies.
| D. | Attestation Report of the Independent
Registered Public Accounting Firm |
This Annual Report does not include
an attestation report of the Registrant’s Independent Registered Public Accounting Firm regarding the Registrant’s internal
control over financial reporting due to a transition period established by rules of the Commission for newly public companies.
| E. | Changes in Internal Control over Financial
Reporting |
During the period covered by this Annual
Report, there was no change in the Registrant’s internal control over financial reporting that has materially affected, or is reasonably
likely to materially affect, its internal control over financial reporting.
IDENTIFICATION
OF THE AUDIT COMMITTEE
The Board of Directors (the
“Board”) of AcuityAds Holdings Inc. (“AcuityAds” or the “Company”) has a separately-designated standing
audit committee established in accordance with section 3(a)(58)(A) of the Exchange Act. The members of the Audit Committee are Igal
Mayer, Roger Dent, Sheldon Pollack, Yishay Waxman and Corey Ferengul.
AUDIT
COMMITTEE FINANCIAL EXPERT
The Board has determined
that it has at least one “audit committee financial expert” (as such term is defined in paragraph 8(b) of General Instruction
B to Form 40-F) serving on its Audit Committee. Igal Mayer has been determined to be such audit committee financial expert and was
“independent” as such term is defined under the Canadian Securities Administrators’ National Instrument 52-110 (Audit
Committees) and the standards of the Commission and the Nasdaq Stock Market (“Nasdaq”) relating to the independence of audit
committee members.
The Board’s designation
of Igal Mayer as an audit committee financial expert does not impose on him any duties, obligations or liability that are greater than
the duties, obligations and liability imposed on him as a member of the Audit Committee and Board in the absence of such designation
or identification. In addition, the designation of Igal Mayer as an audit committee financial expert does not affect the duties, obligations
or liability of any other member of the Audit Committee or Board. See also “Audit Committee” in the 2021 AIF, filed
as Exhibit 99.1 to this Annual Report, and incorporated herein by reference.
DIFFERENCES IN NASDAQ
AND CANADIAN CORPORATE GOVERNANCE REQUIREMENTS
AcuityAds
is a foreign private issuer and its Common Shares are listed on the Nasdaq Capital Market.
Nasdaq
Rule 5615(a)(3) permits a foreign private issuer to follow its home country practice in lieu of the requirements of the Rule 5600
Series, the requirement to distribute annual and interim reports set forth in Rule 5250(d), and the Direct Registration Program
requirement set forth in Rules 5210(c) and 5255; provided, however, that such a company shall comply with the Notification
of Material Noncompliance requirement (Rule 5625), the Voting Rights requirement (Rule 5640), have an audit committee that
satisfies Rule 5605(c)(3), and ensure that such audit committee’s members meet the independence requirement in Rule 5605(c)(2)(A)(ii).
AcuityAds
does not follow Rule 5605(d)(1), which requires companies to adopt a formal written compensation committee charter and have a compensation
committee review and reassess the adequacy of the charter on an annual basis. In lieu of following Rule 5605(d)(1), AcuityAds follows
the rules of the Toronto Stock Exchange.
AcuityAds
does not follow Rule 5605(e)(2), which requires companies to adopt a formal written charter or board resolution, as applicable,
addressing the director nomination process and such related matters as may be required under the federal securities laws. In lieu of
following Rule 5605(e)(2), AcuityAds follows the rules of the Toronto Stock Exchange.
AcuityAds
does not follow Rule 5620(c) (shareholder quorum) but instead follows its home country practice. The Nasdaq minimum quorum
requirement under Rule 5620(c) for a shareholder meeting is 33-1/3% of the outstanding shares of common stock. In addition,
a registrant listed on Nasdaq is required to state its quorum requirement in its by-laws. AcuityAds’ quorurm requirement is set
forth in its by-laws. A quorum for a meeting of AcuityAds’ shareholders is at least two persons who hold, or represent by proxy,
in the aggregate at least 10% of the issued and outstanding Common Shares as of the applicable record date.
CODE
OF CONDUCT
AcuityAds has adopted a “code
of ethics” (as that term is defined in Form 40-F), entitled the AcuityAds Code of Conduct that applies to all directors, officers,
employees and representatives of AcuityAds and its subsidiaries (the “AcuityAds Code”). A copy of the AcuityAds Code is posted
on AcuityAds’ website at https://www.acuityads.com/corporate-governance. Copies may be obtained, free of charge, by contacting
AcuityAds in writing at 70 University Ave., Suite 1200, Toronto, Ontario, Canada M5J 2M4, by telephone at (416) 218-9888 or on AcuityAds’
website at www.acuityads.com.
In the past fiscal year,
AcuityAds has not granted any waiver, including an implicit waiver, from any provision of its Code of Ethics. AcuityAds intends to post
any amendments to and waivers from the AcuityAds Code on its website as identified above.
NOTICES
PURSUANT TO REGULATION BTR
Not applicable.
PRINCIPAL
ACCOUNTANT FEES AND SERVICES
The required disclosure is
included under the heading “Audit Committee—External Auditor Fees” in the 2021 AIF, filed as Exhibit 99.1
to this Annual Report, and incorporated herein by reference.
AUDIT COMMITTEE’S PRE-APPROVAL POLICIES AND PROCEDURES
The required disclosure is
included under the heading “Audit Committee—Pre-Approval Policies and Procedures” in the 2021 AIF, filed as
Exhibit 99.1 to this Annual Report, and incorporated herein by reference.
OFF-BALANCE
SHEET ARRANGEMENTS
The required disclosure is
included under the heading “Off-Balance Sheet Arrangements” of the 2021 MD&A, filed as Exhibit 99.3 to this
Annual Report, and incorporated herein by reference.
DISCLOSURE
OF CONTRACTUAL OBLIGATIONS
The required disclosure is
included under the headings “Liquidity & Capital Resources—Cash Requirements” and “Contractual
Obligations” of the 2021 MD&A, filed as Exhibit 99.3 to this Annual Report, and incorporated herein by reference.
MINE
SAFETY DISCLOSURE
Not applicable.
DISCLOSURE
REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS
Not applicable.
WEBSITE INFORMATION
Notwithstanding any reference
to AcuityAds’ website or other websites in this Annual Report or in the documents attached as exhibits hereto, the information
contained in AcuityAds’ website or any other website referred to in this Annual Report or in the documents attached as exhibits
hereto, or referred to in AcuityAds’ website, is not a part of this Annual Report and, therefore, is not filed with the SEC.
UNDERTAKING AND CONSENT TO SERVICE OF PROCESS
AcuityAds 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.
AcuityAds has previously
filed an Appointment of Agent for Service of Process and Undertaking on Form F-X with respect to the class of securities in relation
to which the obligation to file the Form 40-F arises. Any change to the name or address of AcuityAds’ agent for service of
process shall be communicated promptly to the Commission by amendment to the Form F-X referencing the file number of AcuityAds.
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 annual report to be signed on its behalf by the undersigned, thereto duly authorized.
| |
ACUITYADS
HOLDINGS, INC. |
| |
|
| |
By: |
/s/ Elliot Muchnik |
| |
Name:
Title: |
Elliot Muchnik
Chief Financial Officer |
Date: March 10, 2022
EXHIBIT INDEX
* To be filed by amendment
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