Securities Law & Instruments

Headnote

Consent given to an offering corporation under the Business Corporations Act (Ontario) to continue under BVI Business Companies Act, 2004 (as amended).

Statutes Cited

Business Corporations Act, R.S.O. 1990, c. B.16, as am., s. 181.

Securities Act, R.S.O. 1990, c. S.5, as am.

Regulations Cited

Regulation made under the Business Corporations Act, O. Reg. 289/00, as am., s. 4(b).


IN THE MATTER OF
R.R.O 1990, REGULATION 289/00, AS AMENDED
(the “Regulation”) MADE UNDER THE
BUSINESS CORPORATIONS ACT (ONTARIO),
R.S.O. 1990, c.B.16, AS AMENDED (the “OBCA”)

AND

IN THE MATTER OF
BONTAN CORPORATION INC.

CONSENT
(Subsection 4(b) of the Regulation)



UPON the application (the "Application") of Bontan Corporation Inc. (the "Applicant") to the Ontario Securities Commission (the "Commission") requesting a consent from the Commission for the Applicant to continue in another jurisdiction (the "Continuance"), as required by subsection 4(b) of the Regulation;

AND UPON considering the Application and the recommendation of the staff of the Commission;

AND UPON the Applicant having represented to the Commission that:

1. The Applicant was incorporated under the laws of Ontario on April 9, 1973 and amalgamated on May 15, 2012.

2. The Applicant's registered office is located at 47 Avenue Road, Suite 200, Toronto, Ontario M5R 2G3.

3. The Applicant's authorized share capital consists of an unlimited number of common shares ("Common Shares") of which 176,275,790 Common Shares are issued and outstanding as at June 17, 2013. The Common Shares are quoted on the Over the Counter Bulletin Board ("OTCBB") under the trading symbol "BNTNF".

4. The Applicant intends to apply (the "Application for Continuance") to the Director under the OBCA for authorization to continue under the BVI Business Companies Act, 2004 (the "BVI Act"), pursuant to section 181 of the OBCA.

5. Pursuant to subsection 4(b) of the Regulation, where a corporation is an offering corporation under the OBCA, the Application for Continuance must be accompanied by a consent from the Commission.

6. The Applicant is an offering corporation under the OBCA and is a reporting issuer under the Securities Act (Ontario), R.S.O. 1990, c. S.5, as amended (the "Act") and is not on the list of defaulting reporting issuers. The Applicant is not a reporting issuer or the equivalent in any other jurisdiction in Canada.

7. The Applicant intends to remain a reporting issuer in the Province of Ontario.

8. The Applicant is not in default of any of the provisions of the Act or the regulations or rules made under the Act.

9. The Applicant is not a party to any proceeding or, to the best of its knowledge, information and belief, pending proceeding under the Act.

10. The Applicant's shareholders authorized the continuance of the Applicant as a corporation under the BVI Act by special resolution at a meeting of shareholders (the "Meeting") held on March 28, 2013. The special resolution authorizing the Continuance was approved at the Meeting by 99.59% of the votes cast. None of the shareholders of the Applicant exercised dissent rights pursuant to section 185 of the OBCA.

11. The management information circular dated February 21, 2013 (the "Information Circular") provided to all shareholders of the Applicant in connection with the Meeting included full disclosure of the reasons for, and the implications of, the proposed Continuance, provided specimen Memorandum of Association and Articles of Association under the BVI Act, and advised the shareholders of their dissent rights in connection with the Application for Continuance pursuant to section 185 of the OBCA.

12. The Continuance follows the acquisition by the Applicant of Portage Pharma Ltd., a private company incorporated under the BVI Act, on June 4, 2013. The Continuance is intended to reorganize the corporate operations of the Applicant and to take advantage of the favourable tax treatment accorded to companies governed by the BVI Act, particularly in light of the fact that the Applicant will have limited operations and material assets in Canada following the Continuance.

13. The BVI Act permits foreign jurisdiction corporations to continue under the laws of the British Virgin Islands.

14. The material rights, duties and obligations of a company governed by the laws of the British Virgin Islands are substantially similar to those of a corporation governed by the OBCA.

15. At present, the Applicant controls a wholly-owned private Ontario numbered company, 1843343 Ontario Inc. (the "Numbered Company"). Upon completion of the Continuance, the Numbered Company will continue to be a wholly-owned subsidiary of the Applicant based in Ontario, with one employee. There will be no other assets or operations in Canada.

16. As the Applicant does not intend to maintain a corporate office in Canada subsequent to the Continuance, the Applicant has provided an undertaking (the "Undertaking") to the Commission that it will complete and file an "Issuer Form of Submission to Jurisdiction and Appointment of Agent for Service of Process" in the form of Schedule "A" thereto (the "Submission to Jurisdiction Form") with the Commission through the System for Electronic Document Analysis and Retrieval (SEDAR) promptly following the effective date of the Continuance. The Undertaking also provides that the Applicant will maintain and update the information contained in the Submission to Jurisdiction Form, or furnish a new Submission to Jurisdiction Form, in accordance with the provisions contained therein. The form of Undertaking provided to the Commission is attached as Appendix "A".

AND UPON the Commission being satisfied that to do so would not be prejudicial to the public interest;

THE COMMISSION HEREBY CONSENTS to the continuance of the Applicant as a corporation under the BVI Act.

DATED at Toronto on this 25th day of June, 2013.

"Edward P. Kerwin"
"C. Wesley M. Scott"
_________________________
_________________________
Ontario Securities Commission
Ontario Securities Commission

 

APPENDIX "A"

UNDERTAKING

To:

Ontario Securities Commission (the "Commission")

 

RE:

Bontan Corporation Inc. (the "Applicant")

 

 

Application dated June 7, 2013 for a Consent to a Continuance under the BVI Business Companies Act, 2004 (the "Continuance") pursuant to clause 4(b) of Ontario Regulation 289/00 made under the Business Corporations Act, R.S.O. 1990, c. B.16

The Applicant hereby undertakes that it will complete and file an "Issuer Form of Submission to Jurisdiction and Appointment of Agent for Service of Process" in the form of Schedule "A" hereto (the "Submission to Jurisdiction Form") with the Commission through the System for Electronic Document Analysis and Retrieval (SEDAR) promptly following the effective date of the Continuance.

The Applicant hereby further undertakes that it will maintain and update the information contained in the Submission to Jurisdiction Form, or furnish a new Submission to Jurisdiction Form, in accordance with the provisions contained therein.

Dated: June 7, 2013.

BONTAN CORPORATION INC.

per:
"Kam Shah"
_________________________
Name: Kam Shah
Title: Secretary

 

SCHEDULE "A"

TO

APPENDIX "A"

ISSUER FORM OF SUBMISSION TO

JURISDICTION AND APPOINTMENT OF

AGENT FOR SERVICE OF PROCESS

1. Name of issuer (the "Issuer"):

_______________________________________________________

2. Jurisdiction of incorporation, or equivalent, of Issuer:

_______________________________________________________

3. Address of principal place of business of Issuer:

_______________________________________________________

4. Description of securities (the "Securities"):

_______________________________________________________

5. Name of agent for service of process (the "Agent"):

_______________________________________________________

6. Address for service of process of Agent in Canada (the address may be anywhere in Canada):

_______________________________________________________

7. The Issuer designates and appoints the Agent at the address of the Agent stated above as its agent upon whom may be served any notice, pleading, subpoena, summons or other process in any action, investigation or administrative, criminal, quasi-criminal, penal or other proceeding (the "Proceeding") arising out of, relating to or concerning the obligations of the Issuer as a reporting issuer, and irrevocably waives any right to raise as a defence in any such Proceeding any alleged lack of jurisdiction to bring such Proceeding.

8. The Issuer irrevocably and unconditionally submits to the non-exclusive jurisdiction of

(a) the judicial, quasi-judicial and administrative tribunals of each of the provinces [and territories] of Canada in which the securities are distributed under the Prospectus; and

(b) any administrative proceeding in any such province [or territory],

in any Proceeding arising out of or related to or concerning the obligations of the Issuer as a reporting issuer.

9. Until six years after it has ceased to be a reporting issuer in any Canadian province or territory, the Issuer shall file a new submission to jurisdiction and appointment of agent for service of process in this form at least 30 days before termination of this submission to jurisdiction and appointment of agent for service of process.

10. Until six years after it has ceased to be a reporting issuer in any Canadian province or territory, the Issuer shall file an amended submission to jurisdiction and appointment of agent for service of process at least 30 days before any change in the name or above address of the Agent.

11. This submission to jurisdiction and appointment of agent for service of process shall be governed by and construed in accordance with the laws of [insert province or territory of above address of Agent].

Dated: _____________________________
_______________________________________
Signature of Issuer
 
_______________________________________
Print name and title of signing officer of Issuer

AGENT

The undersigned accepts the appointment as agent for service of process of [insert name of Issuer] under the terms and conditions of the appointment of agent for service of process stated above.

Dated: _____________________________
_______________________________________
Signature of Agent
 
_______________________________________
Print name of person signing and, if Agent is not an individual, the title of the person