Ontario Securities Commission Rule 54-501 --Relief from the requirement to include certain financial informationin the joint management information circular in connection witha plan of arrangement -- subject to conditions.
OSC Rule 41-501 - General Prospectus Requirements.
OSC Rule 54-501 - Prospectus Disclosure in CertainInformation Circulars - section 3.1.
IN THE MATTER OF
THE SECURITIES ACT
R.S.O. 1990, CHAPTER S. 5,AS AMENDED (the "Act")
IN THE MATTER OF
RULE 54-501 -- PROSPECTUSDISCLOSURE IN CERTAIN
INFORMATION CIRCULARS ("Rule54-501")
IN THE MATTER OF
(Section 3.1 of Rule 54-501)
WHEREAS TomaNet Inc. ("TomaNet")applied to the Ontario Securities Commission (the "Commission")for an exemption from section 2 of Rule 54-501 to the extentthat those sections would impose the following requirementsin connection with the management information circular (the"Circular") to be delivered by TomaNet to its shareholdersin connection with a combination of the businesses of TomaNetand Imark Corporation ("Imark") pursuant to a planof arrangement (the "Arrangement") to be effectedunder the Business Corporations Act (Alberta) (the "ABCA")following completion of which Imark will be the continuing publiccompany (under a new name -- "Maxim Training Corporation"):
(a) the requirement under Rule 41-501 forthe inclusion of three year audited and interim historicalfinancial statements for TomaNet; and
(b) the requirement under Rule 41-501 forthe inclusion of the probable acquisition of TomaNet in thepro forma financial statements of Imark;
(collectively, the "Financial StatementRequirements").
AND WHEREAS TomaNet has represented tothe Commission that:
1. This application is made in connectionwith a proposed transaction (the "Transaction")involving (i) the Arrangement, (ii) the acquisitions of theKnowledgePool business division ("KnowledgePool")of Fujitsu Services Limited ("Fujitsu Services")and the product development and research and development assetsof Mosaic Technologies Corporation ("Mosaic"), and(iii) a private equity financing of Maxim Training Corporation("Maxim Training") of up to approximately $7.35million.
2. TomaNet is a corporation existing underthe laws of Alberta. TomaNet was continued under the ABCAfrom Ontario on November 19, 1993. From 2001 to March 31,2003 (the date on which TomaNet, through its wholly ownedsubsidiary Maxim Training Corp (UK) Limited ("Maxim TrainingUK"), acquired KnowledgePool), TomaNet was an inactivecompany and did not carry on any business or operations. TomaNet'sonly current operations relate to its indirect ownership ofKnowledgePool. TomaNet's head office and principal officeis located in Toronto, Ontario.
3. TomaNet is a reporting issuer in Ontario,Alberta and British Columbia. TomaNet's common shares andclass A shares were listed and principally traded on the CanadianVenture Exchange but have been delisted since May 2001.
4. As at June 18, 2003, TomaNet's share capitalconsisted of (i) an unlimited number of common shares of which11,631,567 were outstanding; (ii) an unlimited number of classA shares of which, 23,225,121 were outstanding, (iii) an unlimitednumber of class B shares, issuable in series, none of whichare outstanding, and (iv) 5,000,002 7% non-cumulative, non-votingpreference shares none of which are outstanding.
5. The most recent continuous disclosure documentsfiled by TomaNet were a press release and material changereport dated April 4, 2003, a press release and material changereport dated May 9, 2003 and a press release dated June 18,2003. Prior to this, TomaNet had not filed any continuousdisclosure documents since its annual information form datedJune 21, 2000 and management information circular dated September4, 2001.
6. A cease trade order was issued by the Commissionon May 25, 2001 for TomaNet's failure to file financial statements.The Alberta Securities Commission and British Columbia SecuritiesCommission issued similar cease trade orders on October 12,2001 and July 17, 2001, respectively.
7. Concurrently with this application, Tomanethas filed an application with the Commission, the AlbertaSecurities Commission and the British Columbia SecuritiesCommission requesting a partial revocation of the cease tradeorders to permit Tomanet to complete the Transaction.
8. Imark is a corporation amalgamated underthe Business Corporations Act (Ontario). Imark's headoffice and principal office is located in Toronto, Ontario.
9. Imark is a reporting issuer under the Act.The Imark common shares are listed on the Toronto Stock Exchange("TSX") under the symbol "IAK". The closingprice of Imark common shares on the TSX on June 6, 2003 was$0.105.
10. On June 6, 2003, the TSX suspended tradingin Imark's shares on the TSX as a result of Imark's failureto satisfy certain continued listing standards of the TSX.Imark intends to apply to the TSX Venture Exchange ("TSX-V")to have its common shares listed for trading on the TSX-Vas soon as practicable.
11. As at May 31, 2003, Imark's share capitalconsisted of (i) an unlimited number of common shares of which17,082,089 were outstanding; and (ii) an unlimited numberof Class A preferred shares, none of which are outstanding.
12. Mosaic is a corporation continued underthe Canada Business Corporations Act. Mosaic's headoffice and principal office is located in Fredericton, NewBrunswick.
13. Mosaic is a reporting issuer under thesecurities legislation of Alberta and British Columbia. TheMosaic common shares are listed on the TSX-V under the symbol"MAC". The closing price of Mosaic's common shareson the TSX-V on June 18 was $0.07.
14. From October 21, 2000 until March 31,2003, KnowledgePool was a separate business division of FujitsuServices, a UK company, which is in turn a wholly owned subsidiaryof Fujitsu Limited. KnowledgePool's head office is locatedin the United Kingdom.
15. On March 31, 2003, TomaNet, through itswholly-owned subsidiary Maxim Training UK, acquired substantiallyall of the assets of KnowledgePool for £4.0 million,£2.5 million of which was paid on closing by the issuanceof promissory notes (the "Notes") by Maxim TrainingUK and the remaining £1.5 million of which will be payableon March 31, 2004.
16. On May 8, 2003, Imark and TomaNet enteredinto an arrangement agreement pursuant to which Imark agreedto acquire all of the shares of TomaNet in exchange for sharesof Imark pursuant to the Arrangement. Contemporaneously, MaximTraining UK and Mosaic entered into an asset purchase agreement(the "Mosaic Acquisition Agreement") pursuant towhich Maxim Training UK agreed to acquire the Mosaic DevelopmentAssets from Mosaic in exchange for approximately $600,000in cash and a $1,000,000 promissory note, which will be payablein either cash or shares (the "Mosaic Asset Acquisition").Imark, TomaNet and Mosaic issued a joint press release onMay 8, 2003 announcing the Transaction and the execution ofthese agreements. Subject to satisfying all closing conditionsand obtaining all applicable regulatory approvals, it is anticipatedthat the Transaction will be completed in July 2003.
17. The Transaction is proposed to be effectedby the following steps:
(a) Maxim Training UK completed the acquisitionof KnowledgePool on March 31, 2003.
(b) Maxim Training UK completed the MosaicAsset Acquisition on June 18, 2003.
(c) The Imark common shares will be consolidatedon an approximately one-for-five basis, such that aftercompleting the Transaction, the Imark shareholders willown approximately 15.67% of the outstanding Imark commonshares.
(d) Imark will complete a proposed equityprivate placement of its common shares with a number ofprivate investors for gross aggregate proceeds of up toapproximately $7.35 million (the "Private Placement").These funds will be used to repay the Notes, to pay transactioncosts associated with the Transaction and for Imark's generalworking capital purposes following completion of the Transaction.
(e) Immediately prior to completion of theArrangement, TomaNet will issue an aggregate of 9,230,769common shares (the "TomaNet Compensation Shares")and pay an aggregate of $532,500 to certain of its directors,officers and consultants as compensation for their effortsin locating and arranging the Transaction on TomaNet's behalf.
(f) Imark will acquire all of the sharesof TomaNet pursuant to the Arrangement. In connection withthe Arrangement, Imark will issue its common shares to theholders of each class of TomaNet shares and certain TomaNetdebtholders, who will convert an aggregate of approximately$2,710,000 of indebtedness into approximately 37,604,396TomaNet common shares immediately prior to completion ofthe Arrangement (the "TomaNet Debt Conversion").As a substantive result of this transaction TomaNet willbecome a wholly-owned subsidiary of Imark.
(g) Maxim Training UK will transfer theMosaic Development Assets to Imark and will assign its remainingrights and obligations under the Mosaic Acquisition Agreementto Imark. Imark intends to then repay the promissory noteissued to Mosaic under this agreement by issuing 1,000,000Imark common shares to Mosaic.
18. Imark intends to apply to the TSX-V tolist the Imark common shares issuable pursuant to the Transactionon the TSX-V.
19. Following completion of the Transaction,TomaNet intends to apply to cease to be a reporting issuerin each jurisdiction in which it is currently a reportingissuer.
20. The Transaction will require, among otherclosing conditions:
(a) board approval of each of Imark, TomaNetand Mosaic;
(b) the approval of the shareholders ofeach of Imark and TomaNet;
(c) interim and final orders of the AlbertaCourt of Queen's Bench for the Arrangement;
(d) the revocation of the cease trade ordersin respect of TomaNet by the Commission, the Alberta SecuritiesCommission and the British Columbia Securities Commissionfor the purposes of allowing (i) the TomaNet Debt Conversion,(i) the issuance of the TomaNet Compensation Shares, and(iii) TomaNet shareholders to participate in the Transaction;
(e) relief by the Commission from the requirementto include certain historical financial disclosure in theCircular; and
(f) TSX approval of (i) the consolidationand issuance of the Imark common shares in connection withthe Transaction and (ii) the proposed change of Imark'sname.
21. In connection with the special meetingof TomaNet shareholders that will be convened to considerthe Transaction, TomaNet will deliver the Circular to itsshareholders. The Circular will contain prospectus level disclosureof the business and affairs of Imark (after giving effectto the Transaction) and a detailed description of the Transaction.
22. The Circular will contain the followingfinancial statements:
(a) Imark Financial Statements
(i) audited statements of income, retainedearnings and cash flows for the years ended December 31,2002, 2001 and 2000;
(ii) audited balance sheets as at December31, 2002 and December 31, 2001;
(iii) unaudited statements of income,retained earnings and cash flows for the three month periodended March 31, 2003 and for the three month period endedMarch 31, 2002; and
(iv) an unaudited balance sheet as ofMarch 31, 2003.
(b) KnowledgePool Financial Statements
(i) audited statements of income and cashflows for the years ended March 31, 2002, 2001 and 2000and for the nine-month periods ended December 31, 2002and December 31, 2001;
(ii) audited balance sheets as at December31, 2002, March 31, 2002 and March 31, 2001;
(iii) unaudited statements of income andcash flows for the three month period ended March 31,2003; and
(iv) an unaudited balance sheet as ofMarch 31, 2003.
(c) Pro-Forma Financial Statements
(i) a pro forma balance sheet ofMaxim Training as at December 31, 2002 and March 31, 2003to give effect to the probable acquisitions of TomaNetand KnowledgePool and completion of the Private Placement;and
(ii) pro forma income statementsof Maxim Training to give effect to the probable acquisitionsof TomaNet and KnowledgePool and completion of the PrivatePlacement for the financial year ended December 31, 2002and for the three month period ended March 31, 2003, asif the acquisitions and the Private Placement had takenplace at the beginning of the respective periods.
23. The revenues, assets and liabilities ofTomaNet (excluding KnowledgePool) for the year ended and asat December 31, 2002 represent approximately 0.01% (approximately$7000 of $43,824,000), 0.5% (approximately $139,000 of $27,302,000)and 4.8% (approximately $964,000 of $19,732,000) of the proforma revenues, assets and liabilities, respectively, of MaximTraining for the year ended and as at December 31, 2002.
24. In November 2001, Landmark Global FinancialCorporation ("Landmark") seized all of the assetsof TomaNet (including its books and records) pursuant to thepurported enforcement of a security interest in TomaNet'sassets. TomaNet has taken a number of steps, including institutinglitigation against Landmark, to recover its former assets(including such books and records) from Landmark. As a resultof its inability to access certain historical financial informationrelating to TomaNet that is currently held by Landmark, TomaNetcannot prepare audited financial statements for its 2001 and2002 fiscal years.
AND WHEREAS the Commission is satisfiedthat it would not be prejudicial to the public interest to grantthe exemptive relief requested.
THE DECISION of the Commission pursuantto Section 3.1 of Rule 54-501 is that TomaNet shall be exemptfrom Section 2 of Rule 54-501 to the extent that those sectionsimpose the Financial Statement Requirements provided that theCircular contains the financial statements referred to in representation22 above.
June 23, 2003.