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Jenex Corporation – s. 144
Headnote
Application by an issuer for a revocation of a cease trade order issued by the Commission -- cease trade order issued because the issuer had failed to file certain continuous disclosure materials required by Ontario securities law -- defaults subsequently remedied by bringing continuous disclosure filings up-to-date -- Issuer has provided an undertaking to the Commission that it will not complete (a) a restructuring transaction involving, directly or indirectly, an existing or proposed, material underlying business which is not located in Canada, (b) a reverse takeover with a reverse takeover acquirer that has a direct or indirect, existing or proposed, material underlying business which is not located in Canada, or (c) a significant acquisition involving, directly or indirectly, an existing or proposed, material underlying business which is not located in Canada, unless the issuer files a preliminary prospectus and a final prospectus with the Ontario Securities Commission and obtains receipts for the preliminary prospectus and the final prospectus from the Director under the Act -- cease trade order revoked.
Statutes Cited
Securities Act, R.S.O. 1990, c. S.5, as am., ss. 127, 144.
IN THE MATTER OF
THE SECURITIES ACT,
R.S.O. 1990, C. S.5, AS AMENDED
(the “Act”)
AND
IN THE MATTER OF
THE JENEX CORPORATION
ORDER
(Section 144 of the Act)
WHEREAS the securities of The Jenex Corporation (the "Applicant") are subject to a temporary cease trade order dated December 14, 2009 and a further cease trade order dated December 24, 2009 issued by the Director of the Ontario Securities Commission (the "Commission") pursuant to paragraph 2 and paragraph 2.1 of subsection 127(1) of the Act (together the "Cease Trade Order") directing that trading in securities of the Applicant cease until further order by the Director;
AND WHEREAS the Cease Trade Order was made on the basis that the Applicant was in default of certain filing requirements under Ontario securities law as described in the Cease Trade Order;
AND WHEREAS additional cease trade orders were issued by the British Columbia Securities Commission on December 7, 2009 (the "British Columbia Cease Trade Order") and by the Alberta Securities Commission on December 4, 2009 (the "Alberta Cease Trade Order");
AND WHEREAS the Commission issued a partial revocation of the Cease Trade Order on March 22, 2013 solely to permit trades and securities of the Applicant in connection with a private placement and all other acts in furtherance of that private placement (the "Partial Revocation");
AND WHEREAS the Applicant has applied to the Commission pursuant to section 144 of the Act for a full revocation of the Cease Trade Order (the "Application");
AND WHEREAS the Applicant has represented to the Commission that:
1. The Applicant was incorporated under the Business Corporations Act (Alberta). Its head office is located at 55 University Avenue, Suite M002, Toronto, Ontario, M5J 2H7.
2. The Applicant's authorized share capital consists of an unlimited number of common shares an unlimited number of preference shares. As of the date hereof, there are: (i) 76,777,437 common shares; and (ii) no preference shares outstanding. The Applicant has (A) $750,000 principal amount of secured debentures, and (B) 5,000,003 common share purchase warrants exercisable at $0.10 per share until May 21, 2014. The Applicant has no other securities, including debt securities, issued and outstanding.
3. The Applicant is a reporting issuer in Alberta, British Columbia and Ontario (the "Reporting Jurisdictions").
4. The Applicant's common shares are not currently listed or quoted on any exchange or market in Canada or elsewhere. The Applicant's common shares were formerly listed on the TSX Venture Exchange (the "TSXV").
5. The Applicant's common shares were delisted from the TSXV effective at the close of market on December 4, 2009 and transferred to the NEX board, where they are currently suspended. The delisting and transfer was imposed due to the failure by the Applicant to meet the continued listing requirements of the TSXV.
6. To date, the Applicant has not generated sufficient revenues to offset its research and development costs and, accordingly, has not generated positive cash flows or an operating profit.
7. The Cease Trade Order was issued on December 14, 2009 due to the Applicant's failure to file its annual audited financial statements, the related management's discussion and analysis ("MD&A") and certificates required to be filed under National Instrument 52-109 Certification of Disclosure in Issuers' Annual and Interim Filings ("NI 52-109") for the year ended July 31, 2009.
8. The Applicant has concurrently applied to the Alberta Securities Commission and the British Columbia Securities Commission for orders for revocation of the Alberta Cease Trade Order and the British Columbia Cease Trade Order respectively.
9. Subsequent to the issuance of the Cease Trade Order, the Applicant filed the following continuous disclosure materials with the Reporting Jurisdictions:
(a) the annual audited financial statements, MD&A and NI 52-109 certificates for the year ended July 31, 2009;
(b) the interim unaudited financial statements, MD&A and NI 52-109 certificates for the three months ended October 31, 2009;
(c) the interim unaudited financial statements, MD&A and NI 52-109 certificates for the six months ended January 31, 2010;
(d) the interim financial statements, MD&A and NI 52-109 certificates for the nine months ended April 30, 2010;
(e) the audited annual financial statements, MD&A and NI 52-109 certificates for the year ended July 31, 2012;
(f) the interim financial statements, MD&A and NI 52-109 certificates for the three months ended October 31, 2012;
(g) the interim financial statements, MD&A and NI 52-109 certificates for the six months ended January 31, 2013;
(h) interim financial statements, MD&A and NI 52-109 certificates for the nine months ended April 30, 2013;
(i) the annual audited financial statements, MD&A and NI 52-109 certificates for the year ended July 31, 2013;
(j) the interim unaudited financial statements, MD&A and NI 52-109 certificates for the three months ended October 31, 2013;.
10. The Applicant has not filed:
(a) annual audited financial statements, corresponding MD&A, and NI 52-109 certificates for the periods ending July 31, 2010, and July 31, 2011; and
(b) interim unaudited financial statements, corresponding MD&A, and NI 52-109 certificates for the periods ending: October 31, 2010, January 31, 2011, April 30, 2011, October 31, 2011, January 30, 2012, and April 30, 2012
(the "Outstanding Filings").
11. The Applicant has requested that the Commission exercise its discretion in accordance with subsection 3.1(2) 3.1(3) of National Policy 12-202 Revocation of a Compliance-related Cease Trade Order and elect not to require the Applicant to file the Outstanding Filings.
12. Except for the failure to file the Outstanding Filings, the Applicant (i) is up-to-date with all of its other continuous disclosure obligations; (ii) is not in default of any of its obligations under the Cease Trade Order; and (iii) is not in default of any requirements under the Act or the rules and regulations made pursuant thereto.
13. The Applicant raised $150,000.00 on a private placement basis (the "Private Placement") under the Partial Revocation on May 21, 2013.
14. The Applicant has undertaken and agreed to hold an annual meeting of shareholders within three months of the date hereof.
15. The Applicant has paid all outstanding participation fees, filing fees and late fees owing to the Commission.
16. The Applicant's SEDAR and SEDI profiles are up to date.
17. Upon issuance of Order, the Applicant will issue a news release and file a material change report on SEDAR to announce the revocation of the Cease Trade Order and to outline the Applicant's future plans.
18. The Applicant is not considering, nor is it involved in any discussion relating to, a reverse take-over, amalgamation, merger or other form of combination or transaction similar to the foregoing.
19. The Applicant has given the Commission a written undertaking that it will not complete any transaction that would result in a reverse take-over with a reverse takeover acquirer that has a material underlying business which is not located in Canada without providing the Commission with notice of such transaction by filing and obtaining a receipt for a prospectus.
20. The Applicant has not previously been the subject of a cease trade order other than those referred to in this Order.
AND UPON considering the application and the recommendation of the staff of the Commission; and
AND WHEREAS the Director is satisfied that to do so would not be prejudicial to the public interest to revoke the Ontario Cease Trade Order;
IT IS ORDERED, pursuant to section 144 of the Act, that the Cease Trade Order is revoked.
DATED at Toronto on this 20th day of January, 2014.
"Sonny Randhawa"
Manager, Corporate Finance
Ontario Securities Commission