Section 144 -- application for variation of cease trade order -- issuer cease traded due to failure to file with the Commission annual financial statements -- issuer has applied for a variation of the cease trade order to permit the issuer to proceed with a private placement -- potential investors to be accredited investors and to receive copy of cease trade order and partial revocation order prior to making investment decision -- partial revocation granted subject to conditions.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., ss. 127, 144.
National Instrument 45-106 Prospectus and Registration Exemptions.
IN THE MATTER OF
THE SECURITIES ACT,
R.S.O.1990, CHAPTER S.5, AS AMENDED
IN THE MATTER OF
GREAT LAKES NICKEL LIMITED
WHEREAS the securities of Great Lakes Nickel Limited (GLN) are currently subject to a cease trade order issued by the Ontario Securities Commission (the Commission) dated December 4, 2002 pursuant to paragraph 2 of subsection 127(1) and 127(5) of the Act, which order was extended by a further order of the Commission dated December 16, 2002 (collectively, the Cease Trade Order), directing that all trading in the securities of GLN cease;
AND WHEREAS Robin Lowe, an individual resident in Kitchener, Ontario (the Applicant) who currently owns approximately 7% of the common shares of GLN wishes to enter into certain transactions;
AND WHEREAS the Applicant has made an application to the Commission pursuant to section 144 of the Act (the Application) for an order partially revoking the Cease Trade Order;
AND WHEREAS the Applicant has represented to the Commission that:
1. GLN was incorporated by amalgamation under the Business Corporations Act (Ontario) on August 20, 1969.
2. GLN's registered and head office is located at 1183 King Street East, Kitchener, Ontario, N2G 2N3.
3. GLN is a reporting issuer under the securities legislation (the Legislation) of the provinces of Ontario, British Columbia, Alberta and Quebec and is not a reporting issuer or the equivalent under the securities legislation of any other jurisdiction in Canada.
4. The Cease Trade Order was issued due to the failure of GLN to file with the Commission its interim financial statements for the nine-month period ended September 30, 2002. GLN has not filed any financial statements since that date.
5. GLN is also subject to cease trade orders issued by the British Columbia Securities Commission on December 11, 2002, by the Alberta Securities Commission on February 21, 2003, and the Autorité des marches financiers on December 4, 2002, all relating to the failure of the Applicant to file its financial statements for the period ended September 30, 2002 (the Other Orders).
6. GLN is not, to the Applicant's knowledge, in default of any of the requirements of the Act, or the rules and regulations made pursuant thereto, other than the following:
(a) for the failure to file audited annual financial statements and accompanying management discussion and analysis (MD&A) for the years ended December 31, 2002 to 2009 (including the certification of disclosure required under National Instrument 52-109 -- Certification of Disclosure in Issuers' Annual and Interim Filings (the Certificates)) and interim financial statements, accompanying MD&A and Certificates for the period ended September 30, 2002, and the interim financial statements, accompanying MD&A and Certificates for the periods ended March 31, June 30 and September 30, for the years 2003 to 2009, as well as the interim financial statements, accompanying MD&A and Certificates for the interim periods ended March 31 and June 30, 2010 (collectively, the Outstanding Continuous Disclosure Documents); and
(b) GLN failed to pay annual participation fees.
7. Prior to the date hereof, GLN had not remedied the deficiencies described in paragraph 6 (a) as it did not have sufficient funds to do so. The Applicant will pay GLN's annual participation fees prior to the issuance of the full revocation order.
8. Other than a cease trade order of the Commission issued on June 12, 1998 which was revoked on June 26, 1998, the Cease Trade Order and the Other Orders, GLN has not been subject to any other cease trade order of the Commission or in any other jurisdictions.
9. According to public disclosure documents, GLN's authorized capital consists of an unlimited number of common shares (the Common Shares), of which approximately 5,641,225 Common Shares are issued and outstanding.
10. The Applicant is an individual who currently owns or exercises control directly or indirectly over approximately 7% of the Common Shares of GLN. Jacobus Hanemaayer, a current director and President of GLN, currently owns or exercises control indirectly over 2,574,001 Common Shares or approximately 45.63% of the Common Shares (the Purchased Shares).
11. The Applicant proposes to enter into a share purchase agreement with Jacobus Hanemaayer, Community Expansion Inc. (CEI) and 153078 Canada Inc. (153 Co) to acquire all of the issued and outstanding shares of 153 Co from CEI and any shares which CEI may hold in GLN (the Share Purchase Agreement). 153 Co holds approximately 45% of the Common Shares of GLN. The Share Purchase Agreement will be negotiated between the Applicant and Jacobus Hanemaayer at arm's length.
12. GLN acquired its interest in certain mining properties, mining leases, land rights and land located in the Pardee Township, Ontario in 1974 (the Pardee Property). GLN has explored the Pardee Property with respect to its nickel-copper potential. The Pardee Property is the sole asset of the GLN. A producing issuer has recently expressed interest to the Applicant and Mr. Hanemaayer with respect to acquiring the Pardee Property held by GLN.
13. GLN does not have an effective management team to negotiate with the producing issuer. The Applicant does not believe that Mr. Hanemaayer, a controlling shareholder, director and President of GLN, has the interest or the time available to bring the management team of GLN into a position to begin negotiations and to finalize a favourable agreement with the producing issuer.
14. An independent mineral consultant will be retained by the Applicant in order to determine the value (the Preliminary Opinion of Value) of the Pardee Property. As the Pardee Property is the only asset of GLN and no published market exists for any securities of GLN, the enterprise value of GLN equals the Preliminary Opinion of Value. The Applicant will not acquire the Purchased Shares for more 115 per cent of the pro-rated value (45.63%) of the Preliminary Opinion of Value.
15. The Applicant will rely on the private agreement exemption as provided by section 100.1(1) of the Act to enter into the Share Purchase Agreement. The acquisition of the Purchased Shares by the Applicant is exempt from the formal bid requirements as: (i) the acquisition of the Purchased Shares is made from not more than five persons or companies; (ii) there are more than five security holders of Common Shares of GLN and the bid has not been made generally to security holders of Common Shares; and (iii) there is no published market for the Purchased Shares and a reasonable basis exists for the determination that the value of the consideration paid for the Purchased Shares is not greater than 115 per cent of the value of the Purchased Shares.
16. The Applicant will undertake the following steps (the Steps) in connection with the Share Purchase Agreement:
(a) upon issuance of this Order, enter into the Share Purchase Agreement and complete the transactions contemplated thereby, which would include among other things, an escrow provision for the Purchased Shares which shall include a restriction on any voting rights of the Purchased Shares except for the matters contemplated in (c) below until the issuance of a full revocation of the Cease Trade Order;
(b) upon issuance of this Order, issue a press release and file a material change report announcing the Share Purchase Agreement;
(c) upon closing of the Share Purchase Agreement, the Applicant will proceed to; (i) meet with the board of directors of GLN to put forth the proposed transaction for the sale of the Pardee Property; and (ii) organize a shareholders' meeting of GLN in order for the Applicant to be elected as a director of the GLN, to approve the sale of the Pardee Property, and to begin to the preparation of the necessary filings to bring GLN into good standing and apply for a full revocation of the Cease Trade Order; and
(d) to apply for a full revocation of the Cease Trade Order in due course which application shall include the filing with the Commission annual financial statements, accompanying MD&A and Certificates for the years ended December 31, 2007 to 2009 as well as the interim statements, accompanying MD&A and Certificates for the periods ended March 31 and June 30, 2010.
17. Subject to the completion of the acquisition of the Purchased Shares, the Applicant will provide the required funds to GLN to pay for:
(a) the preparation of interim financial statements, accompanying MD&A and Certificates for the period ended March 31 and June 30, 2010;
(b) the preparation and audit of annual financial statements for the periods ended December 31, 2007 to 2009;
(c) the preparation of the required shareholder meeting materials in connection with the GLN shareholders' meeting to approve, among other things, the election of the Applicant as a director of GLN and the sale of the Pardee Property;
(d) the services of legal counsel with regard to the negotiation of the Share Purchase Agreement and the application for the Order and the final revocation order; and
(e) payment of the outstanding annual participation fees owing to the Commission in the amount of $22,137.50.
18. The Applicant reasonably believes that it will have the sufficient resources upon completion of the acquisition of the Purchased Shares to complete all of the items referred to in section 16 above.
19. As the acquisition of the Purchased Shares will involve trades in securities of GLN (including, for greater certainty, acts in furtherance of trades in securities of GLN), it cannot be competed without this partial revocation of the Cease Trade Order.
20. Concurrent with the entering into of the Share Purchase Agreement, each of the board of directors of GLN, the Applicant and Mr. Hanemaayer shall:
(a) receive a copy of the Cease Trade Order;
(b) receive a copy of this Order;
(c) receive written notice from GLN, and acknowledge, in a form acceptable to the Commission, that all of the GLN's securities, will remain subject to the Cease Trade Order following the acquisition of the Purchased Shares by the Applicant; and
(d) enter into separate agreements with GLN, and an escrow agent providing for the escrow of the Purchased Shares.
21. The Applicant has applied for a partial revocation of the Cease Trade Order so as to permit GLN, its directors, the Applicant and Mr. Hannemaayer to enter into the Steps on substantially the terms described in this Order.
22. GLN is not considering, nor is it involved in any discussion relating to a reverse take-over, merger, amalgamation or other form of combination or transaction similar to any of the foregoing.
23. The Applicant has undertaken to the Commission that, in the event GLN convenes a meeting of shareholders within twelve months of the date of this Order to consider and approve any transaction described in the previous paragraph, the Applicant will deliver to the Commission a copy of the information circular relating to such meeting not less than twenty days prior to the date of such information circular is delivered to shareholders.
24. Following the completion of the Steps, GLN intends to make a further application for a full revocation of the Cease Trade Order so as to permit trading of its securities.
25. Other than the promissory note in the principal amount of $975,823.00 held by 153 Co. (the Note) and the Common Shares, GLN has no securities outstanding, including any stock options granted to directors.
26. The Applicant undertakes to cancel the Note upon the acquisition of the Purchased Shares for the benefit of all GLN shareholders.
27. Trades in the Common Shares of GLN were previously reported on the TSX Venture Exchange. GLN has no securities, including debt securities, listed or quoted on any exchange or market.
AND WHEREAS considering the Application and the recommendation of the staff of the Commission;
AND WHEREAS the Director being satisfied that to do so would not be prejudicial to the public interest;
IT IS ORDERED, pursuant to section 144 of the Act, that the Cease Trade Order be and is hereby partially revoked solely to permit the trades or the acts in furtherance of trades as contemplated in the Steps as set out in paragraph 15.
DATED this 2nd day of November, 2010.