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 – 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
IN THE MATTER OF
HPB INVESTMENTS INC.
WHEREAS the securities of HPB Investments Inc. (the Applicant) are subject to a temporary cease trade order (the Original Cease Trade Order) made by the Director of the Ontario Securities Commission (the Commission) dated May 23, 2002 under paragraph 2 of subsection 127(1) and subsection 127(5) of the Securities Act (Ontario) (the Act), and such order was extended by a further order made by the Director dated June 4, 2002 pursuant to subsection 127(8) of the Act (as extended, the Cease Trade Order) directing that the trading in the securities of the Applicant cease until the Cease Trade Order is revoked 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 the Applicant has made an application to the Commission pursuant to subsection 144(1) of the Act (the Application) for an order revoking of the Cease Trade Order;
AND WHEREAS the Applicant has represented to the Commission that:
1. The Applicant was formed by articles of incorporation dated April 18, 1997 in the province of Ontario under the name 1234015 Ontario Inc. On March 23, 1999, the Applicant filed articles of amendment to change its name to HPB Investments Inc.
2. The Applicant's head office is located Collins Barrow Place, 11 King Street West, Suite 700 Toronto, Ontario M5H 4C7.
3. As of the date hereof, the authorized capital of the Applicant consists of an unlimited number of common shares (the Common Shares) of which 15,780,000 are issued and outstanding. Other than the Common Shares, the Applicant has no other securities, including debt securities, issued and outstanding.
4. The Applicant became a reporting issuer in the Province of Ontario on May 17, 1999 by virtue of being quoted on the Canadian Dealing Network (the CDN) which was an over-the-counter market at that time. The Applicant is not a reporting issuer or the equivalent in any other jurisdiction in Canada.
5. Prior to the issuance of the Cease Trade Order, the Common Shares of the Applicant were traded on the CDN. No securities of the Applicant are listed or traded on any other stock exchange or market in Canada or elsewhere.
6. The Cease Trade Order was issued in Ontario as a result of the Applicant's failure to file, in accordance with applicable securities laws, audited annual financial statements for the year ended December 31, 2001 along with related management’s discussion and analysis (MD&A) within the prescribed timeframe as required under National Instrument 51-102 Continuous Disclosure Obligations (NI 51-102).
7. The Applicant subsequently failed to file other continuous disclosure documents with the Commission within the prescribed timeframe in accordance with the requirements of Ontario securities law, including the following:
(a) all audited financial statements, together with the corresponding MD&As, as required under NI 51-102 and certificates as required under National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings (NI 52-109) for the years ended December 31, 2002 to December 31, 2013;
(b) all unaudited interim financial statements, together with the corresponding MD&As, required to be filed under NI 51-102 and certificates as required under NI 52-109 for the periods ended March 31, 2002 to September 30, 2014; and
(c) a material change report and related press release in May 2002 regarding the Cease Trade Order, as required by NI 51-102.
8. Since the issuance of the Cease Trade Order, the Applicant has filed audited annual financial statements for the years ended December 31, 2011, December 31, 2012, and December 31, 2013 (collectively, the Annual Financial Statements), along with the associated MD&As, and unaudited financial statements for the three, six and nine month periods ended March 31, 2014, June 30, 2014 and September 30, 2014, again with the associated MD&As, along with the officer’s certificates as required under NI 52-109.
9. The Applicant has not filed with the Commission:
(a) the audited financial statements, together with the corresponding MD&As, as required under NI 51-102 and certificates as required under NI 52-109 for the years ended December 31, 2002 to December 31, 2010; and
(b) the unaudited interim financial statements, together with the corresponding MD&As, required to be filed under NI 51-102 and certificates as required under NI 52-109 for the periods ended March 31, 2002 to September 30, 2013.
(the Outstanding Filings)
10. Except for the failure to file (i) the Outstanding Filings, and (ii) the material change report and related press release regarding the Cease Trade Order and the application to the Commission for revocation of the Cease Trade Order as contemplated by the Undertaking (defined below), the Applicant is up-to-date with all of its other continuous disclosure obligations under the Act or the rules and regulations made pursuant thereto.
11. The Applicant has paid all outstanding participation fees, filing fees and late fees associated with those obligations owing to the Commission under OSC Rule 13-502 Fees.
12. The Applicant is not in default of any requirements under applicable securities legislation or the rules and regulations made pursuant thereto (except as they relate to the existence of the Cease Trade Order).
13. Other than the Cease Trade Order, the Applicant has not previously been subject to a cease trade order issued by any securities regulatory authority.
14. Since the imposition of the Cease Trade Order, there has been no change in the Applicant’s insiders or controlling shareholders of the Applicant.
15. Since the imposition of the Cease Trade Order, the Applicant has been dormant, there have been no material changes to the Applicant’s business or operations.
16. As of the date hereof, the Applicant's profiles on System for Electronic Document Analysis and Retrieval (SEDAR) and System for Electronic Disclosure by Insiders (SEDI) are up-to-date.
17. The Applicant has filed a completed personal information form and authorization form for each director and officer of the Applicant in the form of Appendix A of National Instrument 41-101 General Prospectus Requirements (NI 41-101) or in such other form as permitted by NI 41-101.
18. The Applicant is not considering, nor is it involved in any discussions relating to a reverse take-over, merger, amalgamation or other form of combination or transaction similar to any of the foregoing.
19. The Applicant has given the Commission a written undertaking (the Undertaking) that:
(a) the Applicant will hold an annual general and special meeting of shareholders within 3 months of the granting of this order to, among other things, approve the Annual Financial Statements; and
(b) the Applicant will not complete:
(i) a restructuring transaction involving, directly or indirectly, an existing or proposed, material underlying business which is not located in Canada;
(ii) 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
(iii) a significant acquisition involving, directly or indirectly, an existing or proposed, material underlying business which is not located in Canada,
(A) the Applicant files a preliminary prospectus and a final prospectus with the Commission and obtains receipts for the preliminary and the final prospectus from the Director under the Act;
(B) the Applicant files or delivers with the preliminary prospectus and the final prospectus the documents required by Part 9 of NI 41-101 including a completed personal information form and authorization in the form set out in Appendix A of NI 41-101 for each current and incoming director, executive officer and promoter of the Applicant, as applicable; and
(C) the preliminary prospectus and final prospectus contain the information required by applicable securities legislation, including the information required for a probable restructuring transaction, reverse takeover or significant acquisition (as applicable).
(c) Upon the issuance of this revocation order, the Applicant will issue a press release announcing the revocation of the Cease Trade Order of the Applicant and outlining the future plans of the Applicant. The Applicant will concurrently file the press release and a material change report on SEDAR.
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 Cease Trade Order;
IT IS ORDERED, pursuant to section 144 of the Act, that the Cease Trade Order is revoked.
DATED at Toronto this 31st day of December, 2014.
Manager, Corporate Finance
Ontario Securities Commission