Environmental Applied Research Technoloy House - Earth (Canada) Corporation - s. 83.1(1)
Headnote
Subsection 83.1(1) -- Issuer deemed to be a reporting issuer in Ontario -- Issuer already a reporting issuer in Québec, Alberta and British Columbia -- Issuer's securities listed for trading on the TSX Venture Exchange -- Continuous disclosure requirements in Québec, Alberta and British Columbia substantially the same as those in Ontario.
Applicable Ontario Statutory Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., s. 83.1(1).
June 21, 2005
IN THE MATTER OF
THE SECURITIES ACT
R.S.O. 1990, CHAPTER S.5, AS AMENDED (the Act)
AND
IN THE MATTER OF
ENVIRONMENTAL APPLIED RESEARCH TECHNOLOGY HOUSE
- EARTH (CANADA) CORPORATION (the Filer)
ORDER
(Section 83.1(1))
Background
The Filer has applied to the Ontario Securities Commission (the Commission) for an order under section 83.1(1) of the Act deeming the Filer to be a reporting issuer for the purposes of Ontario securities law (the Application).
Interpretation
Defined terms contained in National Instrument 14-101 Definitions have the same meaning in this decision unless they are defined in this decision.
Representations
This decision is based on the following facts represented by the Filer:
1. The Filer was continued under the Canada Business Corporations Act (CBCA) on March 25, 1993.
2. The Filer is a reporting issuer in the Province of Québec, the Province of Alberta and the Province of British Columbia. The Filer became a reporting issuer in Québec on February 6, 2004, in Alberta on November 26, 1999 and in British Columbia on May 30, 1988 (Québec, Alberta and British Columbia are collectively referred to as the Existing Jurisdictions).
3. The common shares of the Filer are traded on the TSX Venture Exchange (the Exchange) under the symbol "EAR".
4. The Filer is not in default under any of its obligations pursuant to applicable securities laws of the Existing Jurisdictions and under the rules, regulations and policies of the Exchange.
5. Other than Québec, Alberta and British Columbia, the Filer is not a reporting issuer or the equivalent under the securities legislation of any other jurisdiction in Canada.
6. The continuous disclosure requirements of the Securities Act (Québec), the Securities Act (British Columbia) and the Securities Act (Alberta) are substantially the same as the requirements under the Act.
7. The continuous disclosure materials filed by the Filer are available on the System for Electronic Document Analysis and Retrieval.
8. None of the Filer nor any of its directors, officers or shareholders holding sufficient securities of the Filer to affect materially its control, has:
a. been subject to any penalties or sanctions imposed by a court relating to Canadian securities legislation or by a Canadian securities regulatory authority,
b. entered into a settlement agreement with a Canadian securities regulatory authority; or
c. been subject to any other penalties or sanctions imposed by a court or regulatory body that would likely be considered important to a reasonable investor making an investment decision.
9. Except in respect of the press releases made by Environmental Management Solutions Inc. dated January 17, 2005, January 21, 2005 and April 22, 2005 about allegations made against Mr. Frank D'Addario regarding his conduct while he was acting as Chairman and Chief Executive Officer of Environmental Management Solutions Inc., none of the Filer nor its officers, directors or shareholders holding sufficient securities of the Filer to affect materially its control, is or has been subject to:
a. any known ongoing or concluded investigations by:
i. a Canadian securities regulatory authority, or
ii. a court or regulatory body, other than a Canadian securities regulatory authority, that would be likely to be considered important to a reasonable investor making an investment decision; or
b. any bankruptcy or insolvency proceedings, or other proceedings, arrangements or compromises with creditors, or the appointment of a receiver, receiver manager or trustee, within the 10 years before the date of the Application.
10. None of the Filer's directors, officers or shareholders holding sufficient securities of the Filer to affect materially its control is or has been, at the time of such event, a director or officer of another issuer which is or has been subject to:
a. any cease trade or similar orders, or orders that denied access to any exemptions under Ontario securities law, for a period of more than 30 consecutive days, within the 10 years before the date of the Application; and
b. any bankruptcy or insolvency proceedings, or other proceedings, arrangements or compromises with creditors, or the appointment of a receiver, receiver manager or trustee, within the 10 years before the date of the Application.
11. The Filer has provided an undertaking to the Commission to the effect that:
a. It will not propose Mr. Frank D'Addario as a nominee for re-election as a director of the Filer at its 2005 annual meeting of shareholders and that the Filer will therefore not solicit proxies, nor permit any officer of the Filer to solicit proxies, in favour of Mr. Frank D'Addario for such re-election;
b. Mr. Frank D'Addario is not, and will not, sit as a member of the Filer's Audit Committee, Human Resources and Corporate Governance Committee, Compensation Committee or any other permanent or ad hoc committee of the Board of Directors of the Filer (the Board) that may in the future be constituted by the Board;
c. Mr. Frank D'Addario is not, and will not, hold any management position with the Filer;
d. Mr. Frank D'Addario is not, and will not be, allowed to participate in, or influence, directly or indirectly, any management decision, relating to the activities of the Filer, other than decisions required to be made to fulfill his obligations as a director of the Filer for so long as he shall remain a director of the Filer; and
e. The Filer will hold its next annual shareholders' meeting within the applicable time period prescribed under the CBCA.
Decision
The Commission is satisfied that it would not be prejudicial to the public interest to make the decision.
It is hereby ordered, under section 83.1(1) of the Act, that the Filer be deemed to be a reporting issuer for the purposes of Ontario securities law.