Mutual Reliance Review System for Exemptive Relief Applications -- Issuer deemed to have ceased to be reporting issuer under the Act.
Applicable Ontario Statutory Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., s.83.
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
ONTARIO AND QUÉBEC
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEW SYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
IN THE MATTER OF
ECHO SPRINGS WATER CORP.
MRRS DECISION DOCUMENT
WHEREAS the local securities regulatory authority or regulator (the "Decision Maker" and collectively, the "Decision Makers") in each of Alberta, Saskatchewan, Ontario and Québec, (the "Jurisdictions") has received an application from Echo Springs Water Corp. (the "Applicant"), for a decision under the securities legislation of the Jurisdictions (the "Legislation") that the Applicant be deemed to have ceased to be a reporting issuer or the equivalent in the Jurisdictions;
AND WHEREAS under the Mutual Reliance Review System for Exemptive Relief Applications (the "System"), the Ontario Securities Commission is the principal regulator for this application;
AND WHEREAS, unless otherwise defined, the terms herein have the meaning set out in National Instrument 14-101 Definitions or in Québec Commission Notice 14-101;
AND WHEREAS the Applicant has represented to the Decision Makers that:
1. The Applicant was incorporated as "Burkina Capital Corp." by Certificate of Incorporation issued pursuant to the provisions of the Canada Business Corporations Act on May 1, 1996. The Articles of the Corporation were amended by Articles of Amendment dated June 3, 1996 to remove the private Corporation restrictions. The Articles of the Corporation were further amended by Articles of Amendment dated April 12, 1998 to change the name of the Corporation to "Canada's Choice Spring Water, Inc." The Articles of the Corporation were further amended by Articles of Amendment dated March 28, 2002 to change the name of the Corporation to "Echo Springs Water Corp."
2. The head office of the Applicant is located at 260 Peter Street, Port Hope, ON L1A 3V6.
3. The Applicant is a reporting issuer in each of the Jurisdictions. The common shares of the Applicant were listed for trading on the TSX Venture Exchange, but were delisted on March 15, 2004 following the completion of the reorganization of the Applicant described below.
4. The Applicant is authorized to issue an unlimited number of common shares and an unlimited number of preferred shares.
5. On August 18, 2003, the Applicant filed for protection under the Companies Creditors Arrangement Act (Canada) (the "CCAA") and the Ontario Superior Court granted an order staying enforcement proceedings against the Applicant by its creditors to permit it to reach an agreement with various parties on a restructuring proposal.
6. On January 28, 2004, the Applicant implemented a plan of arrangement (the "Plan") under the CCAA. In accordance with the terms of the Plan, the unsecured creditors of the Corporation with proven claims were entitled to share in $250,000 (the "Settlement Fund") to be distributed within 60 days of the implementation of the Plan. Each unsecured creditor with proven claims became entitled to receive full payment for the first $500 of its claim and to share, on a proportionate basis, the balance of the Settlement Fund after deduction for the payment of the first $500 of its claim. Upon the implementation of the Plan, the securities of the Applicant were cancelled for no consideration and are of no further force and effect. As part of the reorganization, 6185771 Canada Inc., an affiliate of CJC Bottling Limited, the sponsor of the plan of reorganization, was issued 10,000,000 shares. Therefore, all of the issued and outstanding shares of the Applicant are owned by 6185771 Canada Inc.
7. The outstanding securities of the Applicant, including debt securities, are beneficially owned, directly or indirectly, by less than 15 security holders resident in any one Jurisdiction and less than 51 holders of securities, including debt securities, in total in Canada.
8. No securities of the Applicant are traded on a marketplace (as defined in National Instrument 21-101 Marketplace Operation).
9. The Applicant is in default of certain of its continuous disclosure obligations under the Legislation. Specifically, the Applicant is in default with respect to the following:
(a) Annual financial statements, annual information form and the annual report for the financial year ended September 30, 2003, which were due February 17, 2004;
(b) Interim financial statements for the quarter ended December 31, 2003;
(c) Report on securities distributed in Quebec for the financial year ended September 30, 2003;
(d) Confirmations of mailing for the interim financial statements for March 31, 2002, June 30, 2002, December 31, 2002, March 31, 2003, and June 30, 2003;
(e) Confirmations of mailing for the annual financial statements, annual report and proxy materials for the year ended September 30, 2002; and
(f) Form 13-502F1 in Ontario.
10. The Applicant will not be a reporting issuer or the equivalent in any jurisdiction in Canada immediately following the granting of the relief contained in this decision.
11. The Applicant has no intention to seek public financing by offering its securities in Canada.
AND WHEREAS under the System, this MRRS Decision Document evidences the decision of each Decision Maker (collectively, the "Decision");
AND WHEREAS each of the Decision Makers is satisfied that the test contained in the Legislation that provides the Decision Maker with the jurisdiction to make the Decision has been met;
THE DECISION of the Decision Makers under the Legislation is that the Applicant is deemed to have ceased to be a reporting issuer or the equivalent in the Jurisdictions.
September 22, 2004.
"H. Lorne Morphy"