Mutual Reliance Review System for ExemptiveRelief Applications - Decision declaring corporation to be nolonger a reporting issuer following the acquisition of all ofits outstanding securities by another issuer.
Applicable Ontario Statutory Provisions
Securities Act, R.S.O. 1990, c. S.5, as am.,s. 83.
IN THE MATTER OF
THE SECURITIES LEGISLATIONOF
QUÉBEC, ONTARIO ANDALBERTA
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEWSYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
IN THE MATTER OF
HELIX HEARING CARE OF AMERICACORP.
MRRS DECISION DOCUMENT
WHEREAS the local securities regulatoryauthority or regulator (the "Decision Maker")in each of Québec, Ontario and Alberta (the "Jurisdictions")has received an application from Helix Hearing Care of AmericaCorp. ("Helix") for a decision pursuant tothe securities legislation of the Jurisdictions (the "Legislation")that Helix be deemed to have ceased to be a reporting issuerunder the Legislation;
AND WHEREAS pursuant to the Mutual RelianceReview System for Exemptive Relief Applications (the "System")the Commission des valeurs mobilières du Québecis the principal regulator for this application;
AND WHEREAS Helix has represented tothe Decision Makers that:
1. Helix was incorporated under the BusinessCorporations Act (Alberta) on August 26, 1996. On July9, 1999, Helix's Articles of Incorporation (the "Articles")were amended to allow the continuance of Helix under the CanadaBusiness Corporations Act. The Articles of Helix were againamended on November 30, 2000, to allow for the amalgamationof Helix and its subsidiary, Regional Hearing Consultants,Inc.
2. Helix's head office is located at 7100,Jean-Talon East, Suite 610, Montreal, Quebec, H1M 3S3.
3. The authorized capital of Helix consistsof an unlimited number of common shares without par value(the "Helix Common Shares"), an unlimitednumber of first preferred shares and an unlimited number ofsecond preferred shares (collectively, the "HelixPreferred Shares"). As of May 20, 2002, there werean aggregate 46,161,190 Helix Common Shares issued and outstandingand up to a maximum of 11,317,017 Helix Common Shares maybe issued to holders of convertible securities that are exercisableinto Helix Common Shares (the "Helix Convertible Securities").
4. The convertibles debentures were paid infull. The Helix Common Shares were delisted from the TSX onJuly 15, 2002 and no securities of Helix are listed or quotedon any exchange or market.
5. On July 11, 2002 pursuant to the mergeragreement dated July 27, 2001 between HEARx Ltd (HEARx, nowknown as HearUSA Inc.) and Helix, as amended and restatedon November 6, 2001 HEARx Canada Inc. ("Exchangeco"),an indirect wholly owned subsidiary of HEARx, acquired allof the issued and outstanding shares of Helix (the "Transaction")in exchange of exchangeable shares of Exchangeco (the "ExchangeableShares") or HEARx Common Stock, at the election ofthe holder.
6. Exchangeco was currently a closed companywithin the meaning of that term under the Securities Act(Québec) (the "Act"). Prior to the completionof the Transaction, the articles of Exchangeco were amendedto remove the closed company restrictions of Exchangeco. Uponcompletion of the Transaction and the listing of the ExchangeableShares on the TSX, Exchangeco became a reporting issuer underthe Act. Exchangeco also became a reporting issuer under thesecurities legislation of Alberta and Ontario as a resultof the Transaction.
7. As a result of the foregoing, upon thecompletion of the Arrangement, all of the issued and outstandingHelix Common Shares are held directly by HEARx or indirectlyby HEARx through Exchangeco or HEARx Acquisition ULC ("Callco").
8. Helix is not in default of any of the requirementsof the Legislation of the Jurisdictions.
9. Other than the Helix Common Shares, thereare no other securities of Helix, including debt securities,outstanding; and
10. Helix does not intend to seek public financingby way of an offering of its securities.
AND WHEREAS pursuant to the System, thisMRRS Decision Document evidences the decision of each DecisionMaker (collectively, the "Decision");
AND WHEREAS each of the Decision Makersis satisfied that the test contained in the Legislation, whichprovides the Decision Maker with the jurisdiction to make theDecision, has been met;
THE DECISION of the Decision Makers pursuantto the Legislation is that Helix be deemed to have ceased tobe a reporting issuer under the Legislation.
August 22, 2002.