National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- application for an order that the issuer is not a reporting issuer.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., s. 1(10).
June 20, 2013
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
QUÉBEC, ONTARIO AND ALBERTA
IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF
IN MULTIPLE JURISDICTIONS
IN THE MATTER OF
VICTHOM LABORATORY INC.
The securities regulatory authority or regulator in each of the Jurisdictions (the Decision Maker) has received an application from the Filer for a decision under the securities legislation of the Jurisdictions (the Legislation) that the Filer is not a reporting issuer (the Exemptive Relief Sought).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a coordinated review application):
(a) the Autorité des marchés financiers is the principal regulator for the application; and
(b) the decision is the decision of the principal regulator and evidences the decision of each other Decision Maker.
Terms defined in National Instrument 14-101 -- Definitions have the same meaning if used in this decision, unless otherwise defined.
This decision is based on the following facts represented by the Filer:
1. The Filer is the entity resulting from the acquisition by Ergoresearch Inc. (the Purchaser or Ergoresearch) of all of the outstanding securities of Victhom Human Bionics Inc. (Victhom) by way of statutory plan of arrangement under the Canada Business Corporations Act pursuant to which the Purchaser and Victhom were then amalgamated into a single company being the Filer (the Arrangement).
2. The Purchaser is a direct wholly-owned subsidiary of Ergoresearch Ltd.
3. The Filer's head office is located at 2101, boul. Le Carrefour, Suite 200, Laval (QC) H7S 2J7.
4. The Arrangement was approved by the shareholders of Victhom on April 23, 2013 and the final order approving the Arrangement was granted by the Superior Court of Québec on April 24, 2013.
5. The closing of the Arrangement occurred on April 26, 2013 (the Closing Date).
6. Prior to the Arrangement, Victhom was a reporting issuer under the legislation in each of the Jurisdictions. After the Arrangement, the Filer, as the successor entity to Victhom, became a reporting issuer in each of the Jurisdictions.
7. As of the Closing Date, the number of outstanding common shares of Victhom consisted of 19,297,654 common shares (the Common Shares) and 6,479,132 series A preferred shares (the Series A Shares).
8. All of the Common Shares were acquired by the Purchaser pursuant to the Arrangement on the Closing Date. All of the previously issued options were cancelled for no consideration.
9. Under the terms of the Arrangement, 81,110 Series A Shares were redeemed by Victhom at a price of US$0.66 per share for an aggregate amount of US$53,532.60, this amount represents the required redemption proceeds to be paid to the holders of Series A Shares as per the articles of Victhom for the period ended December 31, 2012, further to the receipt of royalty payments for the year 2012. All remaining Series A Preferred Shares were acquired by the Purchaser pursuant to the Arrangement on the Closing Date.
10. The Common Shares (VHB) were delisted from the TSX Venture Exchange at close of business on April 29, 2013.
11. Ergoresearch Ltd. is now the sole shareholder of the Filer.
12. The outstanding securities of the Filer, including debt securities, are beneficially owned, directly or indirectly, by fewer than 15 securityholders in each of the jurisdictions of Canada and fewer than 51 securityholders in total worldwide.
13. No securities of the Filer, including debt securities, are traded in Canada or another country on a marketplace as defined in National Instrument 21-101 Marketplace Operation or any other facility for bringing together buyers and sellers of securities where trading data is publicly reported.
14. The Filer does not intend to seek public financing by way of an offering of its securities in Canada or to list its securities on any marketplace in Canada.
15. The Filer ceased to be a reporting issuer in British Columbia on May 31, 2013.
16. The Filer is not in default of any of its obligations under the Legislation as a reporting issuer, except for the obligation to file (i) its annual financial statements and related management's discussion and analysis for the year ended December 31, 2012, as required under National Instrument 51-102 -- Continuous Disclosure Obligations (NI 51-102) and the related certification of such documents as required under National Instrument 52-109 -- Certification of Disclosure in Issuers' Annual and Interim Filings (NI 52-109) which were due on April 30, 2013; (ii) its interim financial statements and related management's discussion and analysis for the period ended March 31, 2013, as required under NI 51-102 and the related certification of such documents as required under NI 52-109 which were due on May 30, 2013.
17. The Filer is not eligible to use the simplified procedure under CSA Staff Notice 12-307 -- Application for a Decision that an Issuer is not a Reporting Issuer because it is in default of its obligations under the Legislation as a reporting issuer.
18. The Filer is applying for a decision that it is not a reporting issuer is revoked in all of the Jurisdictions in Canada in which it is currently a reporting issuer.
19. Upon the granting of the Exemptive Relief Sought, the Filer will no longer be a reporting issuer or the equivalent in any jurisdiction of Canada.
Each of the Decision Makers is satisfied that the decision meets the test set out in the Legislation for the Decision Maker to make the decision.
The decision of the Decision Makers under the Legislation is that the Exemptive Relief Sought is granted.