Securities Law & Instruments


Headnote

Applicant deemed to have ceased to be offering its securities to the public under the Business Corporations Act (Ontario).

Applicable Legislative Provisions

Business Corporations Act, R.S.O. 1990, c. B.16, as am., s. 1(6).

IN THE MATTER OF
THE BUSINESS CORPORATIONS ACT (ONTARIO),
R.S.O. 1990, C. B.16, AS AMENDED
(the OBCA)

AND

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

ORDER
(Subsection 1(6) of the OBCA)

                UPON the application of the Applicant to the Ontario Securities Commission (the Commission) for an order pursuant to subsection 1(6) of the OBCA to be deemed to have ceased to be offering its securities to the public;

                AND UPON the Applicant representing to the Commission that:

1.             The Applicant is an “offering corporation” as defined in the OBCA, with its registered and head office located at 40 King Street West, Suite 5800, Toronto, Ontario, M5H 3S1;

2.             The authorized capital of the Applicant 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;

3.             The Applicant has no debt securities 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 Applicant 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 Applicant’s assets Maxwell has issued to the Applicant shares in the capital of Maxwell with a value of US$23,175,000 (the Consideration Shares);

8.             The Applicant 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 Applicant 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 Applicant and distribute all remaining assets to the shareholders at times and in amounts at the discretion of the Board of directors of the Applicant;

10.          The Applicant 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;

12.          The Applicant 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 Applicant 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 Applicant, and will dissolve in accordance with the terms for a voluntary dissolution under the OBCA;

14.          The Applicant has no intention to seek public financing by way of offering of securities;

15.          All issued and outstanding securities of the Applicant will be cancelled upon the dissolution of the Applicant;

16.          On July 14, 2017, the Applicant was granted an order that it is not a reporting issuer in Ontario pursuant to subclause 1(10)(a)(ii) of the Securities Act (Ontario), and is not a reporting issuer or the equivalent in any other jurisdiction of Canada in accordance with the procedures set out in National Policy 11-206 Process for Cease to be a Reporting Issuer Applications; and

17.          In connection with the order that the Applicant is not a reporting issuer, the Applicant provided an undertaking to the securities regulatory authority or regulator in each of Ontario, British Columbia and Alberta (the Jurisdictions) that:

(a)           as soon as practicable following the decision that the Applicant 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 Applicant 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 Applicant 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 Applicant 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 Applicant under the Business Corporations Act (Ontario);

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

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

                IT IS HEREBY ORDERED by the Commission pursuant to subsection 1(6) of the OBCA that the Applicant be deemed to have ceased to be offering its securities to the public for the purpose of the OBCA.

                DATED at Toronto on this 14th day of July, 2017.

“Mark Sandler”
Ontario Securities Commission

“Frances Kordyback”
Ontario Securities Commission