Jenex Corporation, The -- s. 144
Headnote
Section 144 of the Securities Act (Ontario) -- application for partial revocation of cease trade order -- issuer cease traded due to failure to file with the Commission audited annual financial statements -- issuer has applied for partial revocation of the cease trade order to permit the issuer to proceed with a private placement with accredited investors (as such term is defined in National Instrument 45-106 Prospectus and Registration Requirements) resident in Ontario -- issuer will use proceeds from private placement to prepare and file continuous disclosure documents, pay related fees and fund operations -- partial revocation granted subject to conditions.
Statutes Cited
Securities Act, R.S.O. 1990, c. S.5, as am., ss. 127, 144.
Note to Readers: This is a partial revocation of the Cease Trade Order issued against The Jenex Corporation on December 24, 2009. It was inadvertently entered into the CTO Database as a revocation and is hereby being correctly entered as an amendment.
IN THE MATTER OF
THE SECURITIES ACT,
R.S.O. 1990, c. S.5, AS AMENDED
(the Act)
AND
IN THE MATTER OF
THE JENEX CORPORATION
ORDER
(Section 144 of the Act)
WHEREAS the securities of The Jenex Corporation (the Applicant) are subject to a temporary cease trade order made by the Director dated December 14, 2009 pursuant to paragraph 2 of subsection 127(1) and subsection 127(5) of the Act and a further cease trade order issued by the Director on December 24, 2009 pursuant to subsection 127(1) of the Act (together, the Cease Trade Order) directing that trading in securities of the Applicant cease until further order by the Director;
AND WHEREAS additional cease trade orders were issued by the British Columbia Securities Commission on December 7, 2009 and by the Alberta Securities Commission on December 4, 2009 (the Additional Orders);
AND WHEREAS notwithstanding the Additional Orders, the Applicant has applied only to the Ontario Securities Commission (the Commission) pursuant to section 144 of the Act (the Application) for a partial revocation of the Cease Trade Order;
AND WHEREAS the Applicant has represented to the Commission that:
1. The Applicant is an Alberta corporation. Its head office is located at 55 University Avenue, Suite M002, Toronto, Ontario, M5J 2H7.
2. The Applicant's authorized share capital consists of an unlimited number of common shares and an unlimited number of preference shares. As of the date hereof, there are: (i) 66,777,431 common shares; and (ii) no preference shares outstanding.
3. The Applicant is a reporting issuer in British Columbia, Alberta and Ontario.
4. The Applicant's common shares are not currently listed or quoted on any exchange or market in Canada or elsewhere. The Applicant's common shares were formerly listed on the TSX Venture Exchange (the TSXV).
5. The Applicant's common shares were delisted from the TSXV effective at the close of market on December 4, 2009. The delisting was imposed due to the failure by the Applicant to meet the continued listing requirements of the TSXV.
6. To date, the Applicant has not generated sufficient revenues to offset its research and development costs and, accordingly, has not generated positive cash flows or an operating profit.
7. The Cease Trade Order was issued on December 14, 2009 due to the default of the Applicant to file annual audited financial statements for its financial year ended July 31, 2009 (the 2009 Financials) within the prescribed deadline.
8. The Applicant's failure to file the 2009 Financials and subsequent continuous disclosure materials was a result of financial distress. The Applicant does not currently have the human and financial resources in order to prepare its continuous disclosure materials.
9. Subsequent to the issuance of the Cease Trade Order, the Applicant filed the 2009 Financials, the related Management's Discussion and Analysis (MD&A) and Certifications of Annual Filings as well as interim financial statements for and related MD&A and Certifications of Interim Filings for the three months ended October 31, 2009, the six months ended January 31, 2010 and the nine months ended April 30, 2010. The Applicant has not filed any continuous disclosure materials since then.
10. Except for the Cease Trade Order, the Applicant is not in default of any requirements of the Act or the rules and regulations made pursuant thereto, other than the Applicant's failure to file the following documents:
(a) audited annual financial statements for the years ended July 31, 2010 through 2012 inclusive;
(b) interim financial statements for the interim periods beginning on October 31, 2010 and ending on January 31, 2013;
(c) MD&A relating to the financial statements referred to in (a) and (b) above; and
(d) certificates required to be filed in respect of the financial statements referred to in paragraphs (a) and (b) above under National Instrument 52-109 Certification of Disclosure in Issuers' Annual and Interim Filings
(collectively, the Required Documents).
11. The Applicant proposes to raise up to $250,500 on a private placement basis (the Private Placement) in order to: (i) pay amounts required to prepare and file its continuous disclosure documents and related filing fees to bring it into compliance with its obligations as a reporting issuer, and the associated fees of professional advisors; and (ii) pay outstanding accounts and fund continuing operations, as described more fully in paragraph 12 below. The Private Placement will be conducted on a prospectus exempt basis with subscribers who are accredited investors (as such term is defined in National Instrument 45-106 Prospectus and Registration Exemptions) resident in Ontario only.
12. The net proceeds of the Private Placement are estimated to be applied as follows:
Description
Cost
Penalties and fees for past late filings of continuous disclosure documents
$25,000
Legal, accounting and audit fees
$85,000
Application for revocation of the cease trade orders applicable to the Applicant
$25,000
NEX maintenance fees -- TSXV
$20,000
Outstanding accounts and other maintenance-related costs
$95,500
________________
Total Financing Required
$250,500
13. The Applicant believes that the proceeds of the Private Placement will be sufficient to bring its continuous disclosure obligations up to date and to pay all related outstanding fees. In the event that a minimum of $150,000 is not raised, all funds raised in the Private Placement will be returned by the Applicant to investors. The Applicant will use the proceeds of the Private Placement first to pay for the costs associated with bringing its continuous disclosure record up to date. Any remaining amounts will be used to pay for other costs as outlined in representation 12 above.
14. As the Private Placement will involve trades in securities of the Applicant (including, for greater certainty, acts in furtherance of trades in securities of the Applicant), the Private Placement cannot be completed without a variation of the Cease Trade Order.
15. The Private Placement will be completed in accordance with all applicable laws.
16. Prior to the completion of the Private Placement, investors in the Private Placement:
(a) will receive a copy of the Cease Trade Order;
(b) will receive a copy of this Order; and
(c) will receive a written notice from the Applicant, and will provide written acknowledgement to the Applicant, that all of the Applicant's securities, including the common shares to be issued in connection with the Private Placement, will remain subject to the Cease Trade Order until it is revoked and that the granting of this Order does not guarantee the issuance of a full revocation order in the future.
17. Following completion of the Private Placement and filing of the Required Documents, the Applicant will apply to the Commission for a full revocation of the Cease Trade Order also will also apply to the British Columbia Securities Commission and the Alberta Securities Commission for full revocations of the Additional Orders.
18. The Applicant is not considering, nor is it involved in any discussion relating to, a reverse take-over, amalgamation, merger or other form of combination or transaction similar to the foregoing.
19. The Applicant has not previously been the subject of a cease trade order other than those referred to in this Order.
AND WHEREAS considering the Application and the recommendation of the staff of the Commission;
AND WHEREAS the Director being satisfied that 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 partially revoked solely to permit trades in securities of the Applicant in connection with the Private Placement as described in paragraph 12 and all other acts in furtherance of the Private Placement that may be considered to fall within the definition of "trade" within the meaning of the Act, provided that:
(a) prior to the completion of the Private Placement, investors in the Private Placement:
(i) receive a copy of the Cease Trade Order;
(ii) receive a copy of this Order; and
(iii) receive a written notice from the Applicant, and provide a signed and dated acknowledgement to the Applicant, clearly stating that all of the Applicant's securities, including the common shares to be issued in connection with the Private Placement, will remain subject to the Cease Trade Order until it is revoked, and that the granting of this Order does not guarantee the issuance of a full revocation order in the future;
(b) the Applicant will provide the signed and dated written acknowledgments referred to in paragraph (a)(iii) above to staff of the Commission; and
(c) the Order will terminate on the earlier of the closing of the Private Placement and 60 days from the date hereof.
DATED at Toronto on this 22nd day of March, 2013.