World Energy Solutions, Inc. - MRRS Decision
Headnote
Mutual Reliance Review System for Exemptive Relief Applications -- Application by an issuer for a decision that certain portions of a material contract filed in connection with a prospectus be held in confidence for an indefinite period by the Decision Makers, to the extent permitted by law - relief granted -- the issuer did not request confidentiality during the prospectus review process as it was not aware that the confidential information was included in the material contract that was filed until after a receipt was issued - the confidential information does not contain information that would be material to an investor.
Applicable Ontario Statutory Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., s. 140(2).
January 17, 2007
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
ALBERTA, BRITISH COLUMBIA, SASKATCHEWAN,
MANITOBA, ONTARIO, QUEBEC, NOVA SCOTIA,
NEWFOUNDLAND AND LABRADOR,
NEW BRUNSWICK, PRINCE EDWARD ISLAND
(the Jurisdictions)
AND
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEW SYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
AND
IN THE MATTER OF
WORLD ENERGY SOLUTIONS, INC.
(the Filer)
MRRS DECISION DOCUMENT
Background
The local securities regulatory authority or regulator (the Decision Maker) in each of the Jurisdictions has received an application from the Filer for a decision pursuant to the securities legislation of the Jurisdictions (the Legislation) that certain information included in a material contract of the Filer be kept confidential indefinitely, to the extent permitted by law (the Requested Relief), on the basis that the information discloses intimate personal information, the disclosure of which is not necessary in the public interest.
Under the Mutual Reliance Review System for Exemptive Relief Applications (MRRS):
(a) the Ontario Securities Commission (the OSC) is the principal regulator for this application; and
(b) this MRRS decision document evidences the decision of each Decision Maker.
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 is a reporting issuer, or the equivalent, in each of the Jurisdictions that provides for a reporting issuer regime.
2. The head office of the Filer is located in Worcester, Massachusetts, USA.
3. The Filer is not in default of its obligations under the Legislation.
4. On November 8, 2006, the Filer filed a final long form prospectus dated November 8, 2006 (the Final Prospectus) with each of the Jurisdictions. The OSC was designated as principal jurisdiction for the review of the Final Prospectus. On November 9, 2006, the MRRS decision document was issued in respect of the Final Prospectus.
5. The Final Prospectus was filed with the OSC pursuant to OSC Rule 41-501 -- Prospectus Contents - Non-Financial Matters (OSC Rule 41-501). Pursuant to Subsection 13.3(1)6 of OSC Rule 41-501, and equivalent legislation in the other Jurisdictions, the Filer was required to file copies of all material contracts and pursuant to Section 13.6 of OSC Rule 41-501, the Filer is required to make such material contracts available for inspection during the course of distribution.
6. In connection with the filing of the Final Prospectus, the Filer filed an offer of employment letter with the Chief Financial Officer of the Filer, dated April 5, 2006 (the Offer of Employment Letter) as a material contract.
7. On November 10, 2006, it came to the Filer's attention that the Offer of Employment Letter as filed on November 8, 2006 contained the Social Security Number of the Chief Financial Officer (the Confidential Information). Following discussion with the OSC, the Filer re-filed a copy of the Offer of Employment Letter without the Confidential Information and undertook to make an application requesting confidentiality of such information.
8. A pre-filing application could not be made pursuant to section 15.1 of OSC Rule 41-501 as the Filer was not aware that the Confidential Information was included in the Offer of Employment Letter that was filed until after a receipt was issued in respect of the Final Prospectus and therefore this MRRS application is being made subsequent to the filing of the Final Prospectus.
9. There is no change in the material facts contained in the Offer of Employment Letter since the date of filing the Final Prospectus. The Final Prospectus contains full disclosure of all material facts concerning the Offer of Employment Letter.
10. The Filer believes that the Confidential Information is personal to the Chief Financial Officer and that avoiding disclosure of such information in the interest of the Chief Financial Officer of the Filer outweighs the desirability of adhering to the principal of disclosure. The Filer further submits that the Confidential Information would be of no value to any investment decision of the public and that such disclosure is not necessary in the public interest.
Decision
Each of the Decision Makers is satisfied that the test contained in the Legislation that provides the Decision Maker with the jurisdiction to make the decision has been met.
The decision of the Decision Makers under the Legislation is that the Requested Relief is granted.