Ontario Commission des 22nd Floor 22e étage
Securities valeurs mobilières 20 Queen Street West 20, rue queen ouest
Commission de l’Ontario Toronto ON M5H 3S8 Toronto ON M5H 3S8
December 16, 2022
IN THE MATTER OF THE SECURITIES LEGISLATION OF ONTARIO (the Jurisdiction) AND IN THE MATTER OF THE PROCESS FOR CEASE TO BE A REPORTING ISSUER APPLICATIONS AND IN THE MATTER OF JUST ENERGY GROUP INC. (the Filer) ORDER
Background
The principal regulator in the Jurisdiction has received an application from the Filer for an order under the securities legislation of the Jurisdiction (the Legislation) that the Filer has ceased to be a reporting issuer in all jurisdictions of Canada in which it is a reporting issuer (the Order Sought) to take effect as of the Effective Date (as defined below).
Under the Process for Cease to be a Reporting Issuer Applications (for a passport application):
(a) the Ontario Securities Commission is the principal regulator for this application, and
(b) the Filer has provided notice that subsection 4C.5(1) of Multilateral Instrument 11- 102 Passport System (MI 11-102) is intended to be relied upon in all of the provinces and territories of Canada (other than Ontario).
Interpretation
Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this order, unless otherwise defined.
Representations
This order is based on the following facts represented by the Filer:
The Filer was formed under, and is governed by, the Canada Business Corporations Act (CBCA).
The Filer’s head and registered offices in Canada are located in Mississauga, Ontario and Toronto, Ontario, respectively.
The Filer is a reporting issuer in each of the provinces and territories of Canada and is not in default of its obligations as a reporting issuer under the securities legislation in any such jurisdiction.
The Filer’s outstanding securities currently consist of: (i) 48,078,637 common shares (Common Shares); (ii) 650,000 options (Options) issued to certain members of management in accordance with the terms and conditions under the Filer’s 2020 Equity Compensation Plan (the Equity Plan); (iii) 229,842 deferred share units (DSUs), each in accordance with the terms and conditions of the Equity Plan; and (iv) $13,179,000 principal amount of 7.0% subordinated notes (Notes) due September 15, 2026, pursuant to a note indenture dated September 28, 2020 (the Note Indenture).
The Filer has no securities issued and outstanding other than the Common Shares, Options, DSUs and Notes.
The Filer’s capital structure also includes indebtedness under a USD $205.9 million senior unsecured 10.25% term loan facility (the Term Loan) maturing on March 31, 2024.
The Common Shares have been delisted from the NEX board of the TSX Venture Exchange and removed from the OTC Pink Markets. The ticker symbol for the Common Shares assigned by the Financial Industry Regulatory Authority in the United States for use on the over-the-counter markets in the United States has been deleted.
The Filer has obtained a list of non-objecting beneficial owners of the Common Shares as of February 24, 2022. Based on this list, the Filer has identified a total of 9,683 Canadian holders of Common Shares holding 7,929,241 Common Shares in the aggregate and 65 non-Canadian holders of Common Shares holding 23,173 Common Shares in the aggregate. Accordingly, Canadian holders represented approximately 99.3% of the 9,748 non-objecting beneficial owners of the Common Shares worldwide as of February 24, 2022 and held approximately 99.7% of the 7,952,414 Common Shares held by non-objecting beneficial owners worldwide as of that date.
The Notes were issued on a private placement basis pursuant to a plan of arrangement of the Filer under the CBCA completed in September 2020. The Notes are not and have never been listed or traded on any recognized stock exchange in Canada. Based on a Broadridge search completed in June 2022, there are approximately 1,102 holders of Notes in Canada and no holders of Notes outside of Canada.
The agent for the Term Loan has confirmed that the Term Loan is held by a total of 14 beneficial holders, with the Purchaser (as defined below) entities comprising five of those holders. Of the 14 beneficial holders, five have addresses in Canada.
On March 9, 2021, the Filer and certain of its subsidiaries (collectively, the Just Energy Entities) applied for and received creditor protection pursuant to an initial order, as amended and restated on March 19, 2021 and further amended and restated on May 26, 2021, under the Companies’ Creditors Arrangement Act (Canada) (CCAA) from the Ontario Superior Court of Justice (Commercial List) (the Court). The initial order appointed FTI Consulting Canada Inc. (the Monitor) as the monitor in the CCAA proceedings. The Monitor is an officer of the court, and its role is to oversee the business of the Filer and be an impartial observer of the restructuring of the Filer’s business pursuant to the CCAA proceedings.
On August 4, 2022, the Filer entered into a stalking horse transaction agreement (as amended, the Transaction Agreement) with LVS III SPE XV LP, TOCU XVII LLC, HVS XVI LLC, OC II LVS XIV LP, OC III LFE I LP and CBHT Energy I LLC (collectively, the Purchaser) and concurrently announced a proposed sale and investment solicitation process (SISP) that was intended to facilitate the Filer’s exit from the CCAA proceedings as a going concern. The SISP and its implementation were overseen by the Monitor.
On August 18, 2022, the Just Energy Entities obtained approval from the Court for the SISP. Under the SISP, parties had until October 13, 2022 to submit a “Qualified Bid” as defined in the SISP. The Filer did not receive any other Qualified Bids. Therefore, in accordance with the SISP, the Purchaser was deemed to be the successful bidder under the SISP.
On October 17, 2022, the Filer served a motion for a reverse vesting order (Reverse Vesting Order) which would, inter alia, approve the Transaction Agreement and the transactions contemplated thereby.
The Transaction Agreement and the Reverse Vesting Order contemplate completion of the following transactions (collectively, the Transaction) to occur on the closing date (the Effective Date), inter alia:
(a) all of the issued and outstanding common shares of Just Energy (U.S.) Corp. (JEUS), an entity organized under the laws of Delaware and currently a subsidiary of the Filer, will be cancelled for no consideration;
(b) all Excluded Assets and Excluded Liabilities (as such terms are defined in the Transaction Agreement, and which Excluded Liabilities will include the Term Loan and the Notes) of the Just Energy Entities will be assigned to, and vested in, entities organized by the Filer in Canada and the United States named 14487893 Canada Inc. and 11368, LLC, respectively (the Residual Companies), which Residual Companies will not have any equity interests outstanding following the Effective Date;
(c) the Purchaser will acquire all of the newly issued common stock of JEUS, following which JEUS will acquire newly issued Common Shares of the Filer;
(d) all of the currently existing equity interests of the Filer (including all of the Common Shares, Options and DSUs, other than the Common Shares that JEUS will acquire) will be cancelled, terminated or redeemed for no consideration pursuant to articles of reorganization to be filed by the Filer and the Reverse Vesting Order, as applicable); and
(e) JEUS will issue new preferred shares to one Purchaser entity in settlement of a filing claims owing to such entity under certain independent system operator services agreements.
On the Effective Date, JEUS will adopt a management incentive plan (the “MIP”), pursuant to which shares of JEUS will be reserved for issuance to directors, officers, employees and consultants of JEUS and its subsidiaries. The grantee(s) of awards thereunder will (if the Order Sought is granted) be aware of the fact that neither the Filer nor JEUS is a reporting issuer in Canada. The Filer expects that there will be approximately nine persons receiving grants under the MIP as of the Effective Date.
Following the Effective Date, the Filer will be a wholly-owned subsidiary of JEUS and the Purchaser will own all of the issued and outstanding shares of JEUS.
The Transaction does not include any recoveries for the Just Energy Entities’ unsecured creditors, which include holders of Notes and the Term Loan. The Filer’s press release announcing the entering into of the Transaction Agreement disclosed that no amounts will be available for distribution to the Just Energy Entities’ general unsecured creditors. Additionally, the Filer’s press release announcing the conclusion of the SISP and application for the Reverse Vesting Order disclosed that the Filer will apply to Canadian securities administrators to cease to be a reporting issuer. The Note Indenture provides that the Notes are subordinated to repayment of all senior indebtedness, which will include the Term Loan and other amounts owed by Just Energy Entities none of which are being repaid under the Transaction. Following the Effective Date, the Residual Companies will not carry on any operations and will, in due course, be wound up under applicable legislation.
On November 3, 2022 the Court granted the Reverse Vesting Order.
Implementation of the Transaction is subject to various conditions precedent set out in the Transaction Agreement, including that the Filer and the other Just Energy Entities will have ceased to be a reporting issuer under any Canadian securities laws, and that no Just Energy Entity will become a reporting issuer under any Canadian securities laws as a result of completion of the Transaction.
Assuming satisfaction or waiver of these conditions within the expected time frames, the Filer anticipates that the Effective Date for the Transaction will be December 16, 2022.
Prior to the Effective Date, the Filer is a registered company subject to periodic and other reporting obligations under the Securities Exchange Act of 1934, as amended (the Exchange Act). On the Effective Date, in connection with closing the Transaction, the Filer intends to file a Form 15 with the Securities and Exchange Commission, which upon its filing will suspend the Filer’s periodic reporting obligations under the Exchange Act as of the date of such filing (after which time the Filer will no longer be required to file annual reports or quarterly reports containing financial statements of the Filer or current reports disclosing material Filer events).
Assuming the Order Sought is granted:
(a) the Common Shares to be issued in connection with the Transaction will not be qualified for distribution to the public under any applicable Canadian securities laws; and
(b) the Common Shares will be distributed pursuant to the exemption from the prospectus requirement in section 2.8 National Instrument 45-106 Prospectus Exemptions and such securities will be subject to the resale restrictions specified in subsection 2.5(2) of National Instrument 45-102 Resale of Securities and carry the legend set forth in subsection 2.5(2)3.(ii) of that instrument.
As a result of the Transaction, under the definition of “reporting issuer” in the securities legislation of each of the provinces and territories of Canada, JEUS would otherwise become a reporting issuer by operation of law and would be subject to the continuous disclosure requirements under the securities legislation of those jurisdictions and, under the definition of “reporting issuer” in the securities legislation of Québec, 14487893 Canada Inc., being the Residual Company to which the Notes are transferred, would otherwise become a reporting issuer by operation of law and would be subject to the continuous disclosure requirements under the securities legislation of Québec.
If the Order Sought is granted, the Filer would not be a reporting issuer immediately before the Effective Date and, as a result, JEUS and 14487893 Canada Inc. would not become a reporting issuer by operation of law.
Accordingly, if the Order Sought is granted: (i) the Filer will cease to be a reporting issuer in all provinces and territories of Canada; and (ii) except as noted in the following paragraph, will not become a reporting issuer in any province or territory as a consequence of the completion of the Transaction.
The Filer has no current intention to seek financing by way of public offering of securities in Canada or to distribute securities to the public in Canada.
The Filer will promptly issue a news release upon the occurrence of the Effective Date. The news release will specify that the Filer is no longer a reporting issuer as of the effective time on the Effective Date.
The Filer acknowledges that, in granting the Order Sought, the principal regulator is not expressing any opinion or approval as to the terms of the Transaction.
Order
The principal regulator is satisfied that the order meets the test set out in the Legislation for the principal regulator to make the order.
The decision of the principal regulator under the Legislation is that the Order Sought is granted immediately before the time at which the Transaction becomes effective on the Effective Date, provided that the Transaction shall have become effective not later than January 31, 2023.
“Lina Creta”
_________________________ Lina Creta
Manager, Corporate Finance
Ontario Securities Commission
OSC File #: 2022/0504