Securities Law & Instruments


Headnote

National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – National Policy 11-206 Process for Cease to be a Reporting Issuer Applications – issuer deemed to no longer be a reporting issuer under applicable securities legislation – issuer is in the process of winding up – issuer will distribute to its shareholders all of its remaining assets, including shares of another entity that it holds – issuer has ceased all commercial activity and will be dissolved after the liquidation process is complete – shareholders voted to approve the liquidation resolution and the application to cease reporting – issuer has more than 50 securityholders worldwide and more than 15 securityholders in Canada.

Applicable Legislative Provisions

Securities Act, R.S.O. 1990, c. S.5, as am., s. 1(10)(a)(ii).

July 14, 2017

IN THE MATTER OF
THE SECURITIES LEGISLATION OF
ONTARIO
(the Jurisdiction)

AND

IN THE MATTER OF
THE PROCESS FOR CEASE TO BE
A REPORTING ISSUER APPLICATIONS

AND

IN THE MATTER OF
NESSCAP ENERGY INC.
(the Filer)

ORDER

Background

The principal regulator in the Jurisdiction has received an application from the Filer for an order under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) that the Filer has ceased to be a reporting issuer in all jurisdictions of Canada in which it is a reporting issuer (the Order Sought).

Under the Process for Cease to be a Reporting Issuer Applications (for a passport application):

(a)           the Ontario Securities Commission is the principal regulator for this application, and

(b)           the Filer has provided notice that subsection 4C.5(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in British Columbia and Alberta (collectively with Ontario, the Jurisdictions).

Interpretation

Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this order, unless otherwise defined.

Representations

This order is based on the following facts represented by the Filer:

1.             The Filer is a corporation governed by the Business Corporations Act (Ontario) (the OBCA) with its registered and head office located at 40 King Street West, Suite 5800, Toronto, Ontario, M5H 3S1;

2.             The Filer is a reporting issuer in the Provinces of Ontario, British Columbia and Alberta;

3.             The authorized capital of the Filer consists of an unlimited number of common shares (the Shares) and 18,304,341 Series 1 Preferred Shares of which 574,666,542 Shares and no Series 1 Preferred Shares are issued and outstanding;

4.             The Shares are held by approximately 132 beneficial holders (shareholders) and 18 registered shareholders, including approximately 117 Canadian shareholders holding approximately 1% of the Shares outstanding and approximately 33 non-Canadian beneficial shareholders holding approximately 99% of the Shares outstanding;

5.             Two non-Canadian shareholders, I2BF Holdings Ltd. and Arbat Capital Group Ltd., own or control approximately 80% of the Shares;

6.             On April 28, 2017, the Filer completed the sale of substantially all of its assets to Maxwell Technologies, Inc. (Maxwell), a US based NASDAQ issuer, by way of plan of arrangement under the provisions of the OBCA (the Asset Sale);

7.             In exchange for the Filer’s assets Maxwell has issued to the Filer shares in the capital of Maxwell with a value of US$23,175,000 (the Consideration Shares);

8.             The Filer has no active business or commercial operations and its assets consist of cash and the Consideration Shares;

9.             At a special meeting of shareholders of the Filer held on April 24, 2017 (the Meeting), holders of 100% of the Shares represented at the Meeting, representing 92.95% of all issued and outstanding Shares, voted in favour of resolutions to (i) approve the Asset Sale, (ii) delist the Shares from the TSX Venture Exchange and (iii) voluntarily dissolve the Filer and distribute all remaining assets to the shareholders at times and in amounts at the discretion of the Board of directors of the Filer;

10.          The Filer obtained a final order for the Asset Sale from the Ontario Superior Court of Justice (Commercial List) on April 27, 2017;

11.          Effective at the close of trading on May 2, 2017, the Shares were delisted from trading on the TSX Venture Exchange; 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, and the Filer does not intend to have any of its securities listed, traded or quoted on such marketplace in Canada or any other jurisdiction;

12.          The Filer must secure a clearance certificate from the Canada Revenue Agency before it can dissolve, and anticipates obtaining this certificate by August 31, 2017;

13.          The Filer will satisfy all of its liabilities and distribute all of its assets to its shareholders at times and in amounts at the discretion of the Board of directors of the Filer, and will dissolve in accordance with the terms for a voluntary dissolution under the OBCA;

14.          The management information circular of the Filer dated March 24, 2017 provided to shareholders of the Filer in connection with the Meeting included disclosure of the Filer’s intention to submit an application to applicable securities regulatory authorities in Canada for an order deeming the Filer to no longer be a reporting issuer for the purposes of applicable securities legislation;

15.          The Filer has no intention to seek public financing by way of offering of securities;

16.          All issued and outstanding securities of the Filer will be cancelled upon the dissolution of the Filer;

17.          The Filer has issued a news release on April 28, 2017 advising shareholders:

(a)           that it has applied to cease to be a reporting issuer; and

(b)           of the anticipated timeframe of its dissolution and final distribution to shareholders;

18.          The Filer has provided an undertaking to the securities regulatory authority or regulator in each of the Jurisdictions that:

(a)           as soon as practicable following the decision that the Filer is no longer a reporting issuer, it will issue a news release advising shareholders:

(i)            that it has ceased to be a reporting issuer; and

(ii)           of the anticipated date of its dissolution and final distribution to shareholders;

(b)           if the Filer has not dissolved on or before December 31, 2017, it will, on or about that date, issue a news release regarding the status of its liquidation and anticipated timing of its dissolution;

(c)           if the Filer has not dissolved by March 31, 2018, on or about that date and thereafter on a quarterly basis until it dissolves, issue a news release on the status of its liquidation and anticipated timing of its dissolution;

(d)           the Filer will notify the Jurisdictions at any time before its dissolution if it:

(i)            commences an active business or any commercial operations;

(ii)           proposes to undertake a public or private offering of securities in any jurisdiction; or

(iii)          files an application to revive the Filer under the Business Corporations Act (Ontario);

(e) as soon as practicable after the time of dissolution, the Filer will issue a news release confirming the dissolution;

19.          At the Filer’s request CDS Clearing and Depository Services Inc. (CDS) has placed restrictions on the Shares so that no transfers among participants may occur;

20.          The Filer is not eligible to use the simplified procedure in National Policy 11-206 Process for Cease to be a Reporting Issuer Applications (NP 11-206) or BC Instrument 11-502 Voluntary Surrender of Reporting Issuer Status as it has more than 51 security holders worldwide;

21.          The Filer will not be a reporting issuer or the equivalent in any jurisdiction immediately following the granting of the Order Sought; and

22.          The Filer is not in default of securities legislation in any jurisdiction.

Order

The principal regulator is satisfied that the order meets the test set out in the Legislation for the principal regulator to make the order.

The decision of the principal regulator under the Legislation is that the Order Sought is granted.

“Grant Vingoe”
Ontario Securities Commission

“Frances Kordyback”
Ontario Securities Commission