Application by securityholder for a variation of a cease trade order issued by the Commission -- cease trade order issued because the issuer had failed to file certain continuous disclosure materials required by Ontario securities law -- variation will permit applicants to trade certain securities of the issuer if the trade is a trade to or an acquisition by certain institutional investors provided that the institutional investor receives a copy of the cease trade order, as varied and the institutional investor provides written acknowledgement to the applicants that the securities remain subject to the cease trade order in accordance with its terms following such trade or acquisition.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., s. 144.
IN THE MATTER OF
THE SECURITIES ACT,
R.S.O. 1990, c. S.5, AS AMENDED
IN THE MATTER OF
CRYSTALLEX INTERNATIONAL CORPORATION
WEST FACE CAPITAL INC.
WEST FACE LONG TERM OPPORTUNITIES GLOBAL MASTER FUND L.P.,
WEST FACE LONG TERM OPPORTUNITIES MASTER FUND L.P., AND
WEST FACE LONG TERM OPPORTUNITIES (USA) LIMITED PARTNERSHIP
(THE “FUNDS” AND, TOGETHER WITH WEST FACE, THE “APPLICANTS”)
(Section 144(1) of the Act)
WHEREAS the Ontario Securities Commission (the "Commission") issued an order on April 13, 2012, under paragraph 2 of subsection 127(1) and subsection 127(5) of the Act, ordering that trading in the securities of Crystallex, whether direct or indirect, cease temporarily;
AND WHEREAS the Commission issued a further order dated April 25, 2012, pursuant to paragraph 2 of subsection 127(1) ordering that trading in the securities of Crystallex, whether direct or indirect, shall cease until revoked by a further order (the "Cease Trade Order");
AND WHEREAS the Applicants have made an application to the Commission pursuant to section 144(1) of the Act to vary the Cease Trade Order;
AND WHEREAS the Applicants have represented to the Commission that:
1. Cease trade orders with respect to the securities of Crystallex have also been issued by the British Columbia Securities Commission on or about April 16, 2012 (as amended on or about April 18, 2012), the Autorité des marchés financiers of Quebec on or about May 8, 2012 and the Manitoba Securities Commission on or about July 9, 2012.
2. None of Crystallex's securities are currently listed or traded on any recognized exchange in Canada.
3. Crystallex is the subject of a Court-supervised restructuring under the Companies' Creditors Arrangement Act (Canada) and a proceeding under the U.S. Bankruptcy Code.
4. On December 20, 2013, notice that the Applicants have applied for this Order was provided to the Monitor under the Companies' Creditors Arrangement Act proceeding. As of the date of this Order, the Applicants have not received any objection to this Order from the Monitor.
5. Certain information regarding the proceedings involving Crystallex has been filed on SEDAR by Crystallex, including the December 31, 2012 audited annual financial statements and related management's discussion and analysis.
6. To the Applicants' knowledge, Crystallex's securities are not subject to cease trade orders in the United States or in other jurisdictions outside of Canada.
7. The head office of West Face is located in Toronto, Ontario.
8. West Face is registered as a portfolio manager, exempt market dealer and investment fund manager in Ontario, Alberta, and British Columbia and as an exempt market dealer and investment fund manager in Manitoba and Quebec.
9. West Face Long Term Opportunities Global Master Fund L.P. and West Face Long Term Opportunities Master Fund L.P. are Cayman Islands exempted limited partnerships that are advised by West Face.
10. West Face Long Term Opportunities (USA) Limited Partnership is a Delaware, U.S.A. limited partnership that is advised by West Face.
11. The Funds collectively hold $2,676,000 principal amount of senior unsecured notes of Crystallex with a coupon rate of 9.375% and 1,933,750 common share purchase warrants of Crystallex (the "Subject Securities"), all of which were acquired prior to the Cease Trade Order.
12. The Applicants are not insiders or control persons of Crystallex and are not in any way affiliated with Crystallex.
13. West Face expects that the Subject Securities may have value to certain investors interested in investing in securities of issuers in bankruptcy or restructuring proceedings.
14. The Applicants are seeking a variation of the Cease Trade Order under section 144(1) of the Act permitting the Applicants to trade the Subject Securities on a limited basis.
AND UPON the Commission being satisfied that it is not prejudicial to the public interest to vary the Cease Trade Order under section 144(1) of the Act;
IT IS ORDERED that, pursuant to section 144(1) of the Act, the Cease Trade Order be varied by including the following section:
"Despite this Order, West Face Capital Inc., West Face Long Term Opportunities Global Master Fund L.P., West Face Long Term Opportunities Master Fund L.P. and West Face Long Term Opportunities (USA) Limited Partnership (the "Sellers"), each of which is not, and was not as at the date of this Order, an insider or control person of Crystallex International Corporation, may trade senior unsecured notes of Crystallex International Corporation with a coupon rate of 9.375% and common share purchase warrants of Crystallex (the "Subject Securities") acquired before the date of this Order, if the trade is a trade to or an acquisition by a person or company who is:
(a) registered under the securities legislation of a jurisdiction of Canada as an adviser, investment dealer, mutual fund dealer or exempt market dealer;
(b) an entity organized in a foreign jurisdiction that is analogous to an entity referred to in paragraph (a);
(c) acting on behalf of a managed account managed by the person or company, if the person or company is registered or authorized to carry on business as an adviser or the equivalent under the securities legislation of a jurisdiction of Canada or a foreign jurisdiction; or
(d) an investment fund if one or both of the following apply:
(i) the fund is managed by a person or company registered as an investment fund manager under the securities legislation of a jurisdiction of Canada;
(ii) the fund is advised by a person or company authorized to act as an adviser under the securities legislation of a jurisdiction of Canada;
provided that, prior to such trade or acquisition, such person or company:
(e) receives a copy of this Order; and
(f) provides a written acknowledgement to the Sellers that the Subject Securities remain subject to the this Order in accordance with its terms following such trade or acquisition."
DATED this 30th day of December 2013.