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Resource Equity Ltd. - s. 4(b) of the Regulation
Headnote
Consent given to an offering corporation under the Business Corporations Act (Ontario) to continue under the Delaware General Corporation Law.
Statutes Cited
Business Corporations Act, R.S.O. 1990, c. B.16, as am., s. 181.
Delaware General Corporation Law, s. 388, as am.
Securities Act, R.S.O. 1990, c. S.5, as am.
Regulations Cited
Regulation made under the Business Corporations Act, Ont. Reg. 289/00, as am., s. 4(b).
IN THE MATTER OF
THE REGULATION MADE UNDER
THE BUSINESS CORPORATIONS ACT,
R.S.O. 1990, c. B.16, AS AMENDED (THE OBCA)
R.R.O 1990, ONTARIO REGULATION 289/00
(THE REGULATION)
AND
IN THE MATTER OF
RESOURCE EQUITY LTD.
CONSENT
(Subsection 4(b) of the Regulation)
UPON the application of Resource Equity Ltd. (the Applicant) to the Ontario Securities Commission (the Commission) requesting consent (the Request) from the Commission for the Applicant to continue in another jurisdiction, as required by subsection 4(b) of the Regulation;
AND UPON considering the Request and the recommendation of the Staff of the Commission;
AND UPON the Applicant having represented to the Commission that:
1. The Applicant was incorporated under the Business Corporations Act (Alberta) on August 27, 1984 and continued into the Province of Ontario under the OBCA on November 8, 2001. Its head office is located at Three Bentall Centre, Suite 3123, 595 Burrard Street, Vancouver, British Columbia, V7X 1J1 OR 31 Adelaide Street East, PO Box 219, Toronto, Ontario, M5C 2J1.
2. The authorized share capital of the Applicant consists of an unlimited number of common shares without par value and an unlimited number of preferred shares without par value. As at September 29, 2006, there were 2,344,000 common shares (the Shares) issued and outstanding and no preferred shares were issued and outstanding.
3. All of the issued and outstanding Shares of the Applicant are listed for trading on the TSX Venture Exchange under the symbol "REQ".
4. The Applicant intends to apply (the Application for Continuance) to the Director under the OBCA for authorization to continue (the Continuance) under the Delaware General Corporation Law (DGCL). Pursuant to subsection 4(b) of the Regulation, where a corporation is an offering corporation, its Application for Continuance must be accompanied by a consent from the Commission.
5. The Applicant is an offering corporation under the OBCA and is a reporting issuer under the Securities Act, R.S.O. 1990, c. S.5, as amended (the Act). The Applicant is also a reporting issuer or its equivalent under the securities legislation of the provinces of British Columbia and Alberta (the Legislation).
6. The Applicant intends to remain a reporting issuer under the Act and the Legislation after the Continuance.
7. The Applicant is not in default of any of the provisions of the Act or the regulations or rules made thereunder and is not in default under the Legislation of any other jurisdiction where it is a reporting issuer or its equivalent.
8. The Applicant is not a party to any proceeding or, to the best of its knowledge, information and belief, any pending proceeding under the Act.
9. The Applicant's shareholders authorized the continuance of the Applicant as a corporation under the DGCL by special resolution at the annual and special meeting of shareholders held on September 29, 2006 (the Meeting). The special resolution authorizing the Continuance was approved at the Meeting by 100% of the votes cast.
10. The management information circular of the Applicant dated August 31, 2006, provided to all the shareholders of the Applicant in connection with the Meeting, included a summary of the differences between the DGCL and the OBCA and advised shareholders of their dissent rights in connection with the continuance pursuant to Section 185 of the OBCA.
11. The material rights, duties and obligations of a corporation governed by the DGCL are substantially similar to those of a corporation governed by the OBCA.
12. As the Applicant does not intend to maintain a corporate office in Canada subsequent to the Continuance, the Applicant has provided an undertaking (the Undertaking) to the Commission that it will complete and file an "Issuer Form of Submission to Jurisdiction and Appointment of Agent for Service of Process" in the form of Schedule "A" thereto (the Submission to Jurisdiction Form) with the Commission through the System for Electronic Document Analysis and Retrieval (SEDAR) promptly following the effective date of the Continuance. The Undertaking also provides that the Applicant will maintain and update the information contained in the Submission to Jurisdiction Form, or furnish a new Submission to Jurisdiction Form, in accordance with the provisions contained therein. The form of Undertaking provided to the Commission is attached as Appendix "A".
AND UPON the Commission being satisfied that to do so would not be prejudicial to the public interest;
THE COMMISSION HEREBY CONSENTS to the continuance of the Applicant as a corporation under the DGCL.
DATED October 17, 2006.
"David L. Knight"
Commissioner
Ontario Securities Commission
"Harold P. Hands"
Commissioner
Ontario Securities Commission
APPENDIX "A"
UNDERTAKING
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To:
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Ontario Securities Commission (the "Commission")
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RE:
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Resource Equity Ltd. (the "Applicant") - Application dated September 29, 2006 for a Consent to continuance to Delaware (the "Continuance") pursuant to clause 4(b) of Ontario Regulation 289/00 made under the Business Corporations Act, R.S.O. 1990, c. B. 16
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The Applicant hereby undertakes that it will complete and file an "Issuer Form of Submission to Jurisdiction and Appointment of Agent for Service of Process" in the form of Schedule "A" hereto (the "Submission to Jurisdiction Form") with the Commission through the System for Electronic Document Analysis and Retrieval (SEDAR) promptly following the effective date of the Continuance.
The Applicant hereby further undertakes that it will maintain and update the information contained in the Submission to Jurisdiction Form, or furnish a new Submission to Jurisdiction Form, in accordance with the provisions contained therein.
Dated: _________________________
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RESOURCE EQUITY LTD.
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_________________________
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Name:
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Title:
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SCHEDULE "A"
ISSUER FORM OF SUBMISSION TO
JURISDICTION AND APPOINTMENT OF
AGENT FOR SERVICE OF PROCESS
1. Name of issuer (the "Issuer"):
________________________
2. Jurisdiction of incorporation, or equivalent, of Issuer:
_________________________
3. Address of principal place of business of Issuer:
________________________
4. Description of securities (the "Securities"):
_________________________
5. Name of agent for service of process (the "Agent"):
_________________________
6. Address for service of process of Agent in Canada (which address may be anywhere in Canada):
_________________________
7. The Issuer designates and appoints the Agent at the address of the Agent stated above as its agent upon whom may be served with a notice, pleading, subpoena, summons or other process in an action, investigation or administrative, criminal, quasi-criminal, penal or other proceeding (the "Proceeding") arising out of, relating to or concerning the obligations of the Issuer as a reporting issuer and irrevocably waives any right to raise as a defence in any such Proceeding an alleged lack of jurisdiction to bring such Proceeding.
8. The Issuer irrevocably and unconditionally submits to the non-exclusive jurisdiction of:
(a) the judicial, quasi-judicial and administrative tribunals of each of the provinces and territories of Canada in which the Securities have been distributed; and
(b) any administrative proceeding in any such province or territory,
in any Proceeding arising out of or related to or concerning the obligations of the Issuer as a reporting issuer.
9. Until six years after it has ceased to be a reporting issuer in any Canadian province or territory, the Issuer shall file a new Submission to Jurisdiction and Appointment of Agent for Service of Process in this form or as otherwise prescribed by securities law at least 30 days before termination, for any reason, of this Submission to Jurisdiction and Appointment of Agent for Service of Process.
10. Until six years after it has ceased to be a reporting issuer in any Canadian province or territory, the Issuer shall file an amended Submission to Jurisdiction and Appointment of Agent for Service of Process at least 30 days before a change in the name or address of the Agent.
11. This Submission to Jurisdiction and Appointment of Agent for Service of Process shall be governed by and construed in accordance with the laws of [insert province or territory of above address of Agent].
AGENT
The undersigned accepts the appointment as agent for service of process of [insert name of Issuer] under the terms and conditions of the preceding Submission to Jurisdiction and Appointment of Agent for Service of Process.