Application by an issuer for a revocation of a cease trade order -- 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.
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
IN THE MATTER OF
TILTING CAPITAL CORP.
(FORMERLY IGNITION POINT
WHEREAS the securities of Tilting Capital Corp. (the "Applicant") are subject to a temporary cease trade order made by the Director dated February 4, 2009 under paragraph 2 and paragraph 2.1 of subsection 127(1) and subsection 127(5) of the Act and a further cease trade order made by the Director dated February 17, 2009 under paragraph 2 and paragraph 2.1 of subsection 127(1) 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 originally formed on August 1, 1996 through an amalgamation pursuant to the Company Act (British Columbia) of several predecessor corporations. The Applicant was continued under the Canada Business Corporations Act ("CBCA") on April 24, 2001.
2. The Applicant's registered office and mailing address is located at Suite 900, 555 Burrard Street, Vancouver, British Columbia, V7X 1M8.
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 4,985,548 Common Shares issued and outstanding. Other than the Common Shares, the Applicant has no securities, including debt securities, outstanding.
5. The Cease Trade Order was issued as a result of the Applicant's failure to file audited annual financial statements for the year ended September 30, 2008. Subsequently, the Applicant failed to file its interim financial statements and related management's discussion and analysis and officer's certificates for the three months ended December 31, 2008, the six months ended March 31, 2009, and the nine months ended June 30, 2009 (collectively, the "Interim Filings"). The Applicant's failure to file these documents was due to a lack of working capital.
6. The Applicant is also subject to cease trade orders issued by the British Columbia Securities Commission on February 2, 2009 and the Alberta Securities Commission dated May 12, 2009. The Applicant has concurrently filed applications with each of the British Columbia Securities Commission and the Alberta Securities Commission for a full revocation of their cease trade orders.
7. Prior to the Cease Trade Order, the Applicant was a broadband communications company. The Applicant's partially owned operating subsidiary was TeraSpan Networks Inc. ("TeraSpan").
8. On January 30, 2009, the Applicant received notice of the commencement of foreclosure action by the holders of its secured convertible debentures. The Applicant had been in default of its interest payment obligations under the debentures since May 2008. The foreclosure action resulted in the seizure by the secured creditors of the Applicant's shareholdings in TeraSpan and the extinguishment of the debt owed to those creditors. All of the directors and officers of the Applicant resigned immediately prior to January 30, 2009.
9. On February 3, 2009, the TSX Venture Exchange ("TSXV") suspended trading of the Common Shares for failure to meet certain Tier Maintenance Requirements. On July 6, 2009 the Common Shares were accepted for listing on the NEX board of the TSXV. In order to qualify for the NEX board, the Applicant must, among other conditions, be a reporting issuer in good standing with all relevant securities regulatory authorities and under corporate law. The Applicant intends to apply for reinstatement of trading on the NEX Board of the TSXV as soon as the Cease Trade Order is revoked. The Applicant has no securities, including debt securities that are currently listed or quoted on any exchange or market in Canada or elsewhere.
10. An extraordinary general meeting of the shareholders of the Applicant was held on June 23, 2009. The Applicant's shareholders were asked to approve, among other items, (i) the election of N. Ross Wilmot, Kurt Lahey and Kenneth Taylor as directors, (ii) a stock consolidation on a basis of one new Common Share for every three old Common Shares (the "Stock Consolidation"), and (iii) a change of name from "Ignition Point Technologies Corp." to "Tilting Capital Corp." These resolutions were passed by the shareholders of the Applicant.
11. The June 23, 2009 meeting was a special shareholders meeting and did not constitute an annual meeting under the CBCA. The Applicant is in default of the annual meeting requirements under the CBCA as it has not held an annual shareholders meeting since March 2008.
12. The Cease Trade Order was partially revoked by an order of the Director dated August 13, 2009 solely to permit the Stock Consolidation and the issuance of Common Shares pursuant to a private placement to raise gross proceeds of $75,000 (the "Private Placement"). At such time the Applicant represented that it intended to use the proceeds from the Private Placement to bring its continuous disclosure record up to date and to apply to the Commission and to the other securities regulatory authorities where cease trade orders are in effect for a full revocation of the Cease Trade Order and those orders.
13. The Applicant completed the Stock Consolidation and Private Placement and on November 27, 2009 filed on the System for Electronic Document Analysis and Retrieval ("SEDAR") the audited annual financial statements for the years ended September 30, 2008 and September 30, 2009 and related management's discussion and analysis and officer's certificates.
14. The Applicant has not filed 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 and elect not to require the Applicant to file these documents, and the Commission so agreed.
15. Except for the failure to file the Interim Filings, the Applicant is not in default of any of its obligations as a reporting issuer under the Act.
16. The Applicant has paid all required outstanding participation fees, filing fees and late fees to the Commission.
17. The Applicant's SEDAR and SEDI profiles are up-to-date.
18. The Applicant has undertaken to hold an annual meeting of shareholders within three months after the date of this order.
19. Upon the issuance of this order, the Applicant will issue and file a news release and a material change report on SEDAR that announces the revocation of the Cease Trade Order and outlines the Applicant's future plans.
20. Once the Applicant is back in good standing with the TSXV it plans to seek out new business opportunities.
AND UPON considering the application and the recommendation of the staff of the Commission;
AND UPON 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 at Toronto this 2nd day of December, 2009.