Danbel Industries Corporation (formerly Augusta Technologies Ltd.) -- s. 144
Headnote
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.
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
DANBEL INDUSTRIES CORPORATION
(FORMERLY AUGUSTA TECHNOLOGIES LTD.)
ORDER
(Section 144)
WHEREAS the securities of Danbel Industries Corporation (the "Applicant") are subject to a temporary cease trade order made by the Director dated May 23, 2002 under paragraph 2 of subsection 127(1) and subsection 127(5) of the Act and a further cease trade order made by the Director dated June 4, 2002 pursuant to subsection 127(8) of the Act directing that trading in the securities of the Applicant cease until the order is revoked by the Director (the "Cease Trade Order");
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 applied to the Commission for an order pursuant to Section 144 of the Act to revoke the Cease Trade Order;
AND UPON the Applicant having represented to the Commission that:
1. The Applicant was incorporated on December 19, 1996 pursuant to the Business Corporations Act (Ontario) (the "OBCA").
2. The Applicant's registered office and mailing address is located at 1 Adelaide Street East, Suite 801, Toronto, Ontario, M5C 2V9.
3. The Applicant is a reporting issuer or the equivalent under the securities legislation of the Provinces of Ontario, British Columbia and Alberta. 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 (the "Common Shares"). The Applicant currently has 6,670,499 Common Shares issued and outstanding. Other than the Common Shares, the Applicant has no securities, including convertible debt securities, outstanding.
5. A cease trade order was originally issued as a result of the Applicant's failure to file audited annual financial statements for the year ended December 31, 2000 on May 25, 2001 (the "Initial Order"). Subsequently, on June 5, 2001, the Applicant filed its audited annual financial statements for the year ended December 31, 2000 and the Initial Order was revoked on June 8, 2001.
6. Since the Applicant filed its financial statements for the nine month period ended September 30, 2004, the Applicant failed to file its continuous disclosure documents pursuant to National Instrument 51-102Continuous Disclosure Obligations, as a result, the Cease Trade Order was issued.
7. The Applicant is also subject to cease trade orders issued by the Alberta Securities Commission dated June 7, 2002 and the British Columbia Securities Commission on June 2, 2006. The Applicant has concurrently filed applications with each of the Alberta Securities Commission and the British Columbia Securities Commission for a full revocation of their cease trade orders.
8. Prior to the Cease Trade Order, the Applicant owned various lighting companies that manufactured, imported and distributed commercial, industrial and consumer lighting products. The Applicant's wholly owned subsidiaries (collectively, the "Subsidiaries") were Danbel Inc., American Lantern (1998) Inc. ("Lantern"), Danbel Security Lighting Inc. ("DSL"), JSL Lighting (2000) Corp. ("JSL") and JSL Lighting Inc, ("JSL-U.S.").
9. On August 23, 2001, the Subsidiaries went into interim receivership, and on August 31, 2001, JSL was placed into bankruptcy by the interim receiver.
10. Subsequent to September 30, 2001, it became apparent to the management of the Applicant that the Subsidiaries were insolvent and therefore the assets and liabilities relating to these entities were written off as of October 1, 2001.
11. On December 21, 2001, the court approved a transaction recommended by the interim receiver whereby 207354 Ontario Inc., a company controlled by a former senior officer of JSL, JSL-US and Danbel Inc., agreed to acquire certain assets of Danbel Inc. Included in the consideration for these assets was the assumption of any shortfall due on the bank indebtedness.
12. On January 15, 2002, Danbel Inc. was placed into bankruptcy by the interim receiver.
13. On January 20, 2001, the Applicant's Common Shares were delisted from the Toronto Stock Exchange.
14. The Applicant is in default of the annual meeting requirements under the OBCA as it has not held an annual shareholders meeting since July 20, 2001.
15. The Applicant has not filed its interim financial statements, interim MD&A and interim certificates for the periods from and including the three months ended March 31, 2005 to the nine month period ended September 30, 2009 (collectively, the "Interim Filings") as it requested that the Commission exercise its discretion in accordance with subsection 3.1(2) of National Policy 12-202 Revocation of a Compliance-Related Cease Trade Order ("NI 12-202") and elect not to require the Applicant to file these documents, and the Commission so agreed.
16. Given the inactivity of the Applicant since 2004, the Applicant has not filed continuous disclosure documents, including without limitation, annual financial statements, annual MD&A, annual certificates and annual Form 51-102 F6 -- Statement of Executive Compensation for the years ended December 31, 2004 to 2006 (collectively, the "Annual Filings") because the Applicant believes that the Annual Filings would not provide additional useful information concerning the present or future operations or financial circumstances of the Applicant as the Applicant was inactive during this period. The Annual Filings were also not sent to the shareholders of the Applicant because the Applicant was inactive and did not have the funds necessary to prepare or distribute such statements.
17. The Applicant has filed (i) audited annual financial statements, annual MD&A and annual certificates for the years ended December 31, 2007, 2008 and 2009, (ii) unaudited interim financial statements, interim MD&A and interim certificates for the three months ended March 31, 2010, (iii) unaudited interim financial statements, interim MD&A and interim certificates for the six months ended June 30, 2010, and (iii) unaudited interim financial statements, interim MD&A and interim certificates for the nine months ended September 30, 2010.
18. Except for the failure to file (i) the Interim Filings, and (ii) the Annual Filings, the Applicant is not in default of any of its obligations as a reporting issuer under the Act.
19. The Filer is up-to-date with all of its other continuous disclosure obligations and has paid any outstanding participation fees, filing fees and late fees associated with those obligations owing to the Commission in connection with the disclosure documents referred to in paragraph 17 above and has filed all of the forms associated with such payments.
20. The Applicant's SEDAR and SEDI profiles are up-to-date.
21. The Applicant has undertaken to hold an annual meeting of shareholders within three months after the date of this order.
22. The Filer has not changed its business since the date of the Cease Trade Order.
23. Effective September 15, 2010, Gabriel Nachman was appointed as a director and Chair of the Audit Committee of the Filer; Barry Polisuk and Michael Singer were appointed as directors of the Filer. Other than these appointments, the Filer has had no changes to its directors since the date of the Cease Trade Order.
24. Except for a proposed equity and/or debt financing to fund its general working capital over the next twelve months, the repayment of secured shareholder advances which were required to fund the costs associated with the revocation application, and to attempt to settle with the secured creditor for monies owing, 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.
25. Upon the issuance of this Order, the Applicant will issue a press release announcing the revocation of the Cease Trade Order of the Applicant. The Applicant will concurrently file the press release and material change report on SEDAR.
AND WHEREAS considering the application and the recommendation of the staff of the Commission;
AND WHEREAS 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 this 3rd day of March, 2011.