B&A Fertilizers Limited – s. 144
Headnote
Section 144 -- Application for revocation of cease trade order -- issuer subject to cease trade order as a result of failure to file financial statements -- issuer has made a separate application to not be a reporting issuer in all of the jurisdictions in which it is currently a reporting issuer -- full revocation granted effective as of the date the issuer is determined to not be a reporting issuer.
Applicable Legislative Provisions
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 B&A FERTILIZERS LIMITED (the Filer)
ORDER (Section 144 of the Act)
WHEREAS the securities of the Filer are subject to a cease trade order dated May 5, 2016 issued by the Director of the Ontario Securities Commission (the Commission) pursuant to paragraph 2 of subsection 127(1) and subsection 127(4.1) of the Act (the Cease Trade Order) ordering that the trading in the securities of the Filer cease until further ordered by the Director;
AND WHEREAS the Cease Trade Order was made on the basis that the Filer was in default of certain filing requirements under Ontario securities laws as described in the Cease Trade Order;
AND WHEREAS the Filer has applied to the Commission for an order pursuant to section 144 of the Act for a full revocation of the Cease Trade Order;
AND UPON the Filer having represented that:
1. The Filer is a corporation amalgamated under the BVI Business Companies Act, 2004 (the BVI Act) as evidenced by a certificate of merger dated March 13, 2013 issued by the Registrar of Corporate Affairs of the British Virgin Islands pursuant to which Rio Verde Minerals Development Corp. (Rio Verde) and B&A Fertilizers Limited were amalgamated to form the Filer (the Merger). The Filer is the corporation resulting from the Merger and is the successor in law to Rio Verde.
2. The Filer's head office is located at Rua Clodomiro Amazonas, n. 249, 120 andar, Itaim Bibi, São Paolo, Brazil.
3. The Filer is a mining company engaged in the exploration and development of fertilizer projects in Brazil.
4. The Filer is a reporting issuer only in Ontario and not in any other jurisdiction of Canada.
5. The Cease Trade Order was issued due to the failure of the Filer to file its audited annual financial statements, related management's discussion and analysis (MD&A) and certifications for the year ended December 31, 2015 (the Annual Filings). The last filings made by the Filer on the System for Electronic Document Analysis and Retrieval (SEDAR) were the Annual Filings filed on July 22, 2016.
6. The Filer is not in default of securities legislation, except for the failure to file:
(a) its audited annual financial statements and annual MD&A for the year ended December 31, 2016, and the related certification of filings of the Chief Executive Officer and Chief Financial Officer (the Certification) required under Multilateral Instrument 52-109 Certification of Disclosure in Issuers' Annual and Interim Filings; and
(b) its interim financial statements and interim MD&A for the interim periods ended March 31, 2016, June 30, 2016, September 30, 2016, March 31, 2017, June 30, 2017 and September 30, 2017, and the related Certifications.
7. The authorized capital of the Filer consists of an unlimited number of ordinary shares. The sole shareholder of the Filer is B&A Mineracão S.A. (B&A Mineração).
8. Prior to the Merger, Rio Verde's authorized capital consisted of an unlimited number of ordinary shares without par value (the Ordinary Shares). The Ordinary Shares were listed on the Toronto Stock Exchange under the symbol "RVD".
9. Prior to the Merger, Rio Verde also had a total of 17,461,538 ordinary share purchase warrants (the Warrants) outstanding. The Warrants were issued pursuant to and governed by the terms of a warrant indenture between Rio Verde and Olympia Transfer Services Inc. made as of July 29, 2011. Each outstanding Warrant entitled the holder to purchase one Ordinary Share at a price of Cdn.$0.85 until July 28, 2016.
10. In addition, Rio Verde had a total of 1,079,000 broker warrants (the Broker Warrants) outstanding. Each Broker Warrant entitled the holder to acquire one unit of Rio Verde at a price of Cdn.$0.65 until July 28, 2016, with each unit being comprised of one Ordinary Share and one ordinary share purchase warrant having identical terms as the Warrants described above.
11. The Merger was implemented pursuant to a plan of merger under section 170 of the BVI Act. Pursuant to the Merger, each outstanding Ordinary Share, other than Ordinary Shares held by B&A Mineração, was cancelled and exchanged for one redeemable preferred share of the surviving company (a Redeemable Share). The Redeemable Shares entitled the shareholders to cash consideration of Cdn $0.40 per Redeemable Share.
12. Following the Merger, B&A Mineração beneficially owned and exercised control and direction over 100% of the issued and outstanding Ordinary Shares. The Ordinary Shares were subsequently delisted from the Toronto Stock Exchange on March 25, 2013.
13. Following the Merger, the Warrants and Broker Warrants remained outstanding as securities of the Filer. The Warrants and Broker Warrants expired in accordance with their respective terms on July 28, 2016. As a result, the outstanding securities of the Filer, including debt securities, are now beneficially owned directly or indirectly, by fewer than 15 security holders in Ontario and fewer than 51 security holders worldwide; specifically, the Ordinary Shares are held by a single shareholder resident in Brazil, and there are no other securities of the Filer outstanding.
14. No securities of the Filer are traded on a marketplace as defined in National Instrument 21-101 Marketplace Operations or any other facility for bringing together buyers and sellers of securities where trading data is publicly reported.
15. The Filer has applied for, and expects to be granted concurrently with this order, an order that the Filer has ceased to be a reporting issuer in Ontario. If that order is granted, the Filer will not be a reporting issuer in any jurisdiction in Canada.
16. The Filer has paid all outstanding participation fees and filing fees owing to the Commission.
AND UPON considering the Application and the recommendation of the staff of the Commission;
AND UPON the Director being satisfied to do so would not be prejudicial to the public interest;
IT IS ORDERED pursuant to section 144 of the Act that the Cease Trade Order is revoked as of the date on which the Filer ceases to be a reporting issuer under the Act.
DATED this 6th day of April, 2018.