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
IN THE MATTER OF THE SECURITIES LEGISLATION OF ONTARIO
AND
IN THE MATTER OF A REVOCATION OF A FAILURE-TO-FILE CEASE TRADE ORDER AND IN THE PROCESS FOR CEASE TO BE A REPORTING ISSUER APPLICATIONS
AND
IN THE MATTER OF
HERITAGE CANNABIS HOLDINGS CORP. (THE ISSUER)
Background
The Issuer is subject to a failure-to-file cease trade order (the FFCTO) issued by the Ontario Securities Commission (the Decision Maker) on April 8, 2024.
The Issuer has applied to the Decision Maker under National Policy 11-207 Failure-to-File Cease Trade Orders and Revocations in Multiple Jurisdictions (NP 11-207) for a full revocation of the FFCTO (FFCTO Revocation Order) pursuant to section 144 of the Securities Act (Ontario) (the Legislation) to take effect as at the Effective Date (as defined below).
The Decision Maker also received an application (Cease to be a Reporting Issuer Application) from the Issuer for an order (the Cease to be a Reporting Issuer Order) under section 1(10)(a)(ii) of the Legislation that the Issuer has ceased to be a reporting issuer in all jurisdictions of Canada in which it is a reporting issuer pursuant to section 21 of National Policy 11-206 Process for Cease to be a Reporting Issuer Applications (NP 11-206) to take effect at the Effective Date.
Under the Process for Cease to be a Reporting Issuer Applications (for a passport application):
(a) the Decision Maker is the principal regulator for this application; and
(b) the Issuer 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 British Columbia, Alberta, New Brunswick, and Nova Scotia.
Interpretation
Terms defined in National Instrument 14-101 - Definitions have the same meaning if used in this order, unless otherwise defined.
Representations
This order is based on the following facts represented by the Issuer:
The Issuer is a reporting issuer in the provinces of British Columbia, Alberta, New Brunswick, Nova Scotia, and Ontario (the Reporting Jurisdictions). The Issuer is not a reporting issuer in any other jurisdiction in Canada.
The Issuer was incorporated pursuant to the Business Corporations Act (British Columbia) on October 25, 2007, as “Trijet Mining Corp”. Effective March 8, 2013, Trijet Mining Corp. consolidated its share capital and changed its name to “Umbral Energy Corp.” On January 9, 2018, the Issuer changed its name to its present name, “Heritage Cannabis Holdings Corp.” The Issuer later continued under the Business Corporations Act (Ontario) on November 4, 2019.
The Issuer’s registered and head office is located at 4100-66 Wellington Street, Toronto, Ontario, Canada.
The Issuer focuses on the extraction and creation of cannabis extract and extract-derivative brands for adult use, and cannabis-based medical solutions.
The authorized capital of the Issuer consists of an unlimited number of common shares (the Common Shares). As of the date hereof, there are 100,000,000,000 Common Shares issued and outstanding. The Issuer has no other outstanding securities (including debt securities).
In light of ongoing financial difficulties, the Issuer and its Canadian subsidiaries filed for creditor protection under the Companies’ Creditors Arrangement Act (the CCAA) and received an order (the Initial Order) for creditor protection under the CCAA from the Ontario Superior Court of Justice (Commercial List) (the Court) on April 2, 2024 (the CCAA Proceedings).
Pursuant to the Initial Order, the Court, inter alia, appointed KPMG Inc. as monitor (in such capacity, the Monitor) of the Issuer under the CCAA Proceedings.
On April 10, 2024, the Issuer, Heritage Cannabis West Corporation (Heritage West), Heritage Cannabis East Corporation (Heritage East), BJK Holdings Ltd. (BJK) and HAB Cann Holdings Ltd. (the Purchaser) entered into the stalking horse subscription agreement. The Purchaser was an arm’s length party to the Issuer.
On April 11, 2024, the Court granted an order (the SISP Order) authorizing the Monitor to conduct, with the assistance of the Issuer, a sale and investment solicitation process (the SISP) to solicit interest in the opportunity for a sale of or investment in all or part of the Issuer’s assets and business operations.
On May 10, 2024, the Purchaser was confirmed as the successful bidder under the SISP.
On June 17, 2024, the Issuer, Heritage West, Heritage East, BJK and the Purchaser entered into an amended and restated stalking horse subscription agreement (the Amended Stalking Horse Agreement).
On June 26, 2024, the Court granted an order under the CCAA (the Approval and Reverse Vesting Order) pursuant to which, inter alia, the Court (i) approved the Amended Stalking Horse Agreement and the transactions contemplated therein (the Transaction), (ii) added 1000921087 Ontario Inc. (Residual Co.) as an applicant to the CCAA Proceedings, (iii) authorized the transfer and vesting of all of the right, title and interest of the Issuer, Heritage West, Heritage East, 333 Jarvis Realty Inc., 5450 Realty Inc., Premium 5 Ltd. and Purefarma Solutions Inc. in certain excluded assets and excluded liabilities to Residual Co., (iv) authorized and directed each of the Issuer, Heritage East and Heritage West, as applicable, to file articles of amendment, (v) authorized and directed the Issuer to issue an aggregate of 100,000,000,000 Common Shares (the Heritage Cannabis Purchased Shares) to the Purchaser, (vi) authorized and directed Heritage West to issue an aggregate of 10,000 Class I Voting Common shares (the Heritage West Purchased Shares) to the Purchaser, (vii) authorized and directed Heritage East to issue an aggregate of 10,000 Class B Common shares (the Heritage East Purchased Shares, and together with the Heritage Cannabis Purchased Shares and Heritage West Purchased Shares, the Purchased Shares) to the Purchaser and (viii) authorized the termination and cancellation of all of the equity interests of each of the Issuer (the Old Equity Interests), Heritage West and Heritage East, other than for the Purchased Shares, for no consideration.
Pursuant to the Approval and Reverse Vesting Order, having been advised of the provisions of Multilateral Instrument 61-101 Protection of Minority Security Holders in Special Transactions relating to the requirement for “minority” shareholder approval in certain circumstances, the Court ordered that no meeting of shareholders or other holders of equity interests of the Issuer was required to be held in respect of the Transaction. Furthermore, pursuant to the Transaction, there were no funds to be distributed to unsecured creditors, and as such there was no associated claims process.
The Transaction included the filing of articles of amendment of the Issuer’s articles with the Ontario Ministry of Public and Business Service Delivery on October 8, 2024 (the Amended Articles). The principal items in the Amended Articles include: inter alia, (i) restrictions to the transfer of securities, other than non-convertible debt securities of the Issuer, so that no security holder shall be entitled to transfer any such securities of the Issuer without approval of the directors or shareholders thereof; and (ii) further limit the security holders of the Issuer to no more than 50 (excluding employees or former employees of the issuer or its affiliates).
In connection with carrying out the SISP Order and obtaining the Approval and Reverse Vesting Order, the Issuer has engaged in certain acts in furtherance of trades in the securities of the Issuer, including its entry into the Amended Stalking Horse Agreement, which acts were taken at the direction of, and with the approval of, and under the supervision of, the Court. Accordingly, the Issuer received a partial revocation order from the FFCTO from the Decision Maker on August 27, 2024 in order to complete the Transaction.
The Transaction was completed on August 29, 2024 (the Effective Date).
Immediately prior to the Effective Date, the issued and outstanding capital of the Issuer consisted of approximately 101,058,739,220 Common Shares.
As of and since the Effective Date the issued and outstanding capital of the Issuer consists of 100,000,000,000 Common Shares.
As of and since the Effective Date, the Issuer has only one registered beneficial security holder, being the Purchaser.
The rights of the shareholders of the Issuer are governed by and subject to the Issuer’s share terms, which are set forth in the Amended Articles.
There is no obligation in the Approval and Reverse Vesting Order or the Amended Articles for the Issuer to maintain its status as a reporting issuer and no prohibition on ceasing to be a reporting issuer.
The holders of the Old Equity Interests ceased to have any economic interest in the Issuer upon completion of the Transaction.
The Common Shares were previously traded on the Canadian Securities Exchange (the CSE) under the symbol “CANN”. The Common Shares were suspended from trading in connection with the FFCTO. The Common Shares were delisted from the CSE effective as of the close of business on August 26, 2024.
The Common Shares were previously quoted for trading on the OTC Pink in the United States (the OTC Pink) under the symbol “HERTF”. The Common Shares were delisted from the OTC Pink at the close of business on August 28, 2024.
On the Effective Date, the Issuer disseminated a news release announcing the completion of the Transaction and filed the news release on SEDAR+. On September 5, 2024, the Issuer filed a corresponding material change report on SEDAR+.
The Monitor, for and behalf of Residual Co., and certain other affiliates of the Issuer, being 1005477 B.C. Ltd., Mainstrain Market Ltd., and Heritage Cannabis Exchange Corp., will file an assignment in bankruptcy pursuant to the Bankruptcy and Insolvency Act (Canada).
As a result of the completion of the Transaction, the only outstanding securities of the Issuer are the Heritage Cannabis Purchased Shares. The Issuer has no other outstanding securities (including debt securities).
The outstanding securities of the Issuer, including debt securities, are beneficially owned, directly or indirectly, by fewer than 15 securityholders in each of the jurisdictions of Canada and fewer than 51 securityholders in total worldwide.
No securities of the Issuer, including debt securities, are traded in Canada the United States or another county on a marketplace as defined in National Instrument 21-101 Marketplace Operation (NI 21-101) or any other facility for bringing together buyers and sellers of securities where trading data is publicly reported.
The Issuer has no current intention to seek public financing by way of an offering of securities in Canada or elsewhere or to make or maintain a market in securities of the Issuer.
The securities of the Issuer are subject to a FFCTO issued by the Decision Maker on April 8, 2024 that is applicable in certain other Reporting Jurisdictions for its failure to file the Unfiled Documents (as defined below) under applicable Canadian securities laws.
The FFCTO was issued as a result of the Issuer’s failure to file the following continuous disclosure materials as required by applicable Canadian securities laws (collectively, the Unfiled Documents):
a. interim financial statements for the period ended January 31, 2024;
b. management’s discussion and analysis related to the interim financial statements for the period ended January 31, 2024; and
c. certification of the foregoing filings as required by National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings.
- In addition to the Unfiled Documents, the Issuer has also not filed the following documents (collectively, the Subsequent Unfiled Documents):
a. interim financial statements for the six-month period ended April 30, 2024;
b. management’s discussion and analysis relating to the interim financial statements for the six-month period ended April 30, 2024;
c. interim financial statements for the nine-month period ended July 31, 2024;
d. management’s discussion and analysis relating to the interim financial statements for the nine-month period ended July 31, 2024;
e. certification of the foregoing filings as required by National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings; and
f. any other required continuous disclosure, except for certain disclosure related to the CCAA Proceedings.
The Issuer is not in default of any requirements of the FFCTO or the applicable securities legislation of any jurisdiction in Canada or the rules and regulations made pursuant thereto, other than its obligations to complete and file the Unfiled Documents and the Subsequent Unfiled Documents.
But for the fact that the Issuer is subject to the FFCTO as a result of failing to file the Unfiled Documents, the Issuer would be eligible to use the “simplified procedure” under National Policy 11-206 Process for Cease to be a Reporting Issuer Applications on the basis that:
a. it is not an OTC reporting issuer under Multilateral Instrument 51-105 Issuers Quoted in the U.S. Over-the-Counter Markets;
b. the outstanding securities of the Issuer, including debt securities, are beneficially owned, directly or indirectly, by fewer than 15 securityholders in each of the jurisdictions of Canada and fewer than 51 securityholders in total worldwide; and
c. the Issuer’s outstanding securities, including debt securities, are not traded in Canada or another country on a marketplace, as defined in NI 21-101, or any other facility for bringing together buyers and sellers of securities where trading data is publicly reported.
The Issuer is applying for an order to fully revoke the FFCTO and an order that the Issuer cease to be a reporting issuer in all of the Reporting Jurisdictions.
The Issuer acknowledges that, in granting the relief sought, the Decision Maker is not expressing any opinion or approval as to the terms of the Transaction.
Order
The Decision Maker is satisfied that the FFCTO Revocation Order and the Cease to be a Reporting Issuer Order meet the tests set out in the Legislation for the Decision Maker to make the order.
The decision of the Decision Maker under the Legislation is that the FFCTO Revocation Order and the Cease to be a Reporting Issuer Order are granted.
DATED this 9th day of December, 2024
“Lina Creta”
_______________________
Lina Creta Manager, Corporate Finance Ontario Securities Commission OSC File #: 2024/0555