Application by an issuer for a full 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 -- cease trade order revoked.
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, CHAPTER S.5, AS AMENDED (the "Act") AND IN THE MATTER OF BOOST CAPITAL CORP.
ORDER (Section 144)
WHEREAS the securities of Boost Capital Corp. (the "Applicant") are subject to a cease trade order dated August 19, 2013 issued by the Director of the Ontario Securities Commission (the "Commission") pursuant to paragraph 2 of subsection 127(1) of the Act (the "Ontario Cease Trade Order") directing that trading in securities of the Applicant cease, whether direct or indirect, until the order is revoked by the Director;
AND WHEREAS the Ontario 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 Ontario Cease Trade Order;
AND WHEREAS the Applicant has applied to the Commission pursuant to section 144 of the Act to revoke the Ontario Cease Trade Order;
AND UPON the Applicant having represented to the Commission that:
1. The Applicant was incorporated under the Business Corporations Act (Ontario) on June 9, 2011.
2. The Applicant's head office and registered and records office address is located at Brookfield Place, 181 Bay Street, Suite 4400, Toronto, Ontario M5J 2T3.
3. The Applicant is a reporting issuer in the provinces of Ontario, British Columbia and Alberta (the "Reporting Jurisdictions"). The Applicant is not a reporting issuer in any other jurisdiction in Canada.
4. The Applicant's authorized share capital consists of an unlimited number of common shares, without nominal or par value, of which 6,000,000 common shares are issued and outstanding. The Applicant has 600,000 stock options exercisable for 600,000 common shares at $0.10 per common share until February 2, 2022. The Applicant has no other securities, including debt securities, issued and outstanding.
5. The Applicant is classified as a Capital Pool Company by the TSX Venture Exchange (the "Exchange") and its common shares are listed on the Exchange under the symbol BST.P but are currently suspended from trading. The Applicant is only listed on the Exchange at this time and is not listed on any other exchange, marketplace or facility.
6. The Ontario Cease Trade Order was issued as a result of the Applicant's failure to file its audited annual financial statements, the related management's discussion and analysis (MD&A) and certification of annual filings as required by National Instrument 52-109 -- Certification of Disclosure in Issuers' Annual and Interim Filings ("NI 52-109") for the year ended March 31, 2013 (the "Annual Filings").
7. The Applicant (i) is up-to-date with all of its continuous disclosure obligations; (ii) is not in default of any of its obligations under the Ontario Cease Trade Order; and (iii) is not in default of any requirements under the Act or the rules and regulations made pursuant thereto, other than as set out in representations 8 and 9 below.
8. On May 6, 2014, the Applicant filed its management information circular (the "Circular"), dated April 28, 2014, in connection with the June 2, 2014 shareholders' meeting. In the Circular, the Applicant proposed an approval of its rolling stock option plan as required by the Exchange. Staff of the Commission have advised that this may have been an act in furtherance of a trade in contravention of the Ontario Cease Trade Order.
9. The Circular also failed to properly include the disclosure required by item 7.2(a) of Form 51-102F5 Information Circular regarding the Cease Trade Orders. However, information regarding the Cease Trade Orders is disclosed elsewhere on page 5 of the Circular.
10. The Applicant is also subject to similar cease trade orders issued by the British Columbia Securities Commission (the "BCSC") on August 7, 2013 (the "BC Cease Trade Order") and by the Alberta Securities Commission (the "ASC") on April 1, 2014 (the "Alberta Cease Trade Order", together with the Ontario Cease Trade Order and the BC Cease Trade Order, collectively, the "Cease Trade Orders"), as a result of its failure to make the Annual Filings. The Applicant has concurrently applied to the BCSC and the ASC for orders for revocation of the BC Cease Trade Order and the Alberta Cease Trade Order.
11. Since the issuance of the Ontario Cease Trade Order, the Applicant has filed the following continuous disclosure documents with the Reporting Jurisdictions on May 23, 2014:
(i) Form 13-502F1 -- Class 1 Reporting Issuer -- Participation Fee for the year ended March 31, 2013;
(ii) Annual Filings;
(iii) the unaudited interim financial statements, MD&A and NI 52-109 certificates of the Applicant for the period ended June 30, 2013;
(iv) the unaudited interim financial statements, MD&A and NI 52-109 certificates of the Applicant for the period ended September 30, 2013; and
(v) the unaudited interim financial statements, MD&A and NI 52-109 certificates of the Applicant for the period ended December 31, 2013.
12. As of the date hereof, the Applicant has paid all outstanding activity, participation and late filing fees that are required to be paid.
13. The Applicant is not in default of any requirements under applicable securities legislation or the rules and regulations made pursuant thereto in any of the Reporting Jurisdictions, except for the existence of the Cease Trade Orders.
14. Since the issuance of the Cease Trade Orders, there have been no material changes in the business, operations or affairs of the Applicant which have not been disclosed by news release and/or material change report.
15. The Applicant has filed all outstanding continuous disclosure documents that are required to be filed in the Reporting Jurisdictions.
16. The Applicant's SEDAR issuer profile and SEDI issuer profile supplement are current and accurate.
17. Upon the revocation of the Ontario Cease Trade Order, the Applicant will issue a news release and concurrently file a material change report on SEDAR announcing the revocation of the Ontario Cease Trade Order.
AND UPON considering the application and the recommendation of the staff of the Commission;
AND UPON the Director being satisfied that it 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 Ontario Cease Trade Order is revoked.
DATED at Toronto, Ontario on this 30th day of May, 2014.