Temporary Order: In the Matter of TBS New Media Ltd., et al.

IN THE MATTER OF THE SECURITIES ACT,
R.S.O. 1990, c. S.5 AS AMENDED

- AND -

TBS NEW MEDIA LTD., TBS NEW MEDIA PLC, CNF FOOD CORP., CNF CANDY
CORP., ARI JONATHAN FIRESTONE and MARK GREEN

TEMPORARY ORDER
Subsections 127(7) & 127(8)

 

 

    WHEREAS on June 29, 2010, the Ontario Securities Commission (the "Commission") issued a temporary order (the “Temporary Order”) pursuant to subsections 127(1) and 127(5) of the Securities Act, R.S.O. 1990, c. S.5, as amended (the "Act") ordering the following:

 

 

1. that all trading in the securities of TBS New Media Ltd. (“TBS”), TBS New Media PLC (“TBS PLC”), CNF Food Corp. (“CNF Food”) and CNF Candy Corp. (“CNF Candy”) shall cease;
2. that TBS, TBS PLC, CNF Food, CNF Candy, Ari Jonathan Firestone (“Firestone”) and Mark Green (“Green”), collectively the “Respondents”, cease trading in all securities; and
3. that any exemptions contained in Ontario securities law do not apply to TBS, TBS PLC,CNF Food, CNF Candy, Firestone and Green;

    AND WHEREAS on June 29, 2010, the Commission ordered that the Temporary Order shall expire on the 15th day after its making unless extended by order of the Commission;

    AND WHEREAS on July 5, 2010, the Commission issued a notice of hearing to consider, among other things, the extension of the Temporary Order, to be held on July 12, 2010 at 10:00 a.m. (the “Notice of Hearing”);

    AND WHEREAS the Notice of Hearing set out that the hearing (the “Hearing”) is to consider, amongst other things, whether in the opinion of the Commission it is in the public interest, pursuant to subsections 127(7) and (8) of the Act, to extend the Temporary Order until the conclusion of the Hearing, or until such further time as considered necessary by the Commission;

    AND WHEREAS on July 12, 2010, a hearing was held before the Commission which counsel for Staff of the Commission (“Staff”) attended, counsel attended on behalf of TBS, TBS PLC, CNF Food, CNF Candy and Firestone, but no one attended on behalf of Green;

    AND WHEREAS on July 12, 2010, Staff provided the Commission with the Affidavit of Dale Victoria Grybauskas, sworn on July 9, 2010, describing the attempts of Staff to serve the Respondents with copies of the Temporary Order, the Notice of Hearing, and the Affidavit of Stephen Carpenter;

    AND WHEREAS on July 12, 2010, the Commission was satisfied that Staff had properly served or attempted to serve the Respondents with copies of the Temporary Order, the Notice of Hearing and the Affidavit of Stephen Carpenter;

    AND WHEREAS on July 12, 2010, the Commission considered the evidence and submissions before it and the Commission was of the opinion that satisfactory information has not been provided to it by the Respondents and the Commission was of the opinion that it was in the public interest to extend the Temporary Order, subject to an amendment of the Temporary Order for the benefit of Firestone;

    AND WHEREAS Staff did not object to amending the Temporary Order, as submitted by counsel for Firestone;

    AND WHEREAS on July 12, 2010, the Commission ordered that the Temporary Order be amended by including a paragraph as follows: Notwithstanding the provisions of this Order, Firestone is permitted to trade, solely through a registered dealer or, as appropriate, a registered dealer in a foreign jurisdiction (which dealer must be given a copy of this order) in (a) any "exchange-traded security" or "foreign exchange-traded security" within the meaning of National Instrument 21-101 provided that he does not own beneficially or exercise control or direction over more than 5 percent of the voting or equity securities of the issuer(s) of any such securities; or (b) any security issued by a mutual fund that is a reporting issuer; and provided that Firestone provides Staff with the particulars of the accounts in which such trading is to occur (as soon as practicable before any trading in such accounts occurs) including the name of the registered dealer through which the trading will occur and the account numbers, and Firestone shall instruct the registered dealer to provide copies of all trade confirmation notices with respect to trading in the accounts directly to Staff at the same time that such notices are provided to him;

    AND WHEREAS pursuant to subsections 127 (7) and (8) of the Act the Commission ordered that the Temporary Order, as amended by the July 12 order, be extended to September 9, 2010;

    AND WHEREAS on September 3, 2010, the Office of the Secretary issued a notice of hearing accompanied by a Statement of Allegations setting the matter down to be heard on September 8, 2010 at 10:00 a.m.;

    AND WHEREAS on September 8, 2010, a hearing was held before the Commission which counsel for Staff attended, counsel attended on behalf of TBS, TBS PLC, CNF Food, CNF Candy and Firestone, but no one attended on behalf of Green;

    AND WHEREAS at the hearing on September 8, 2010, a pre-hearing in this matter was set down for October 21, 2010;

    AND WHEREAS on September 8, 2010, counsel for TBS, TBS PLC, CNF Food, CNF Candy and Firestone consented to an extension of the Temporary Order to October 22, 2010;

    AND WHEREAS on September 8, 2010, the Commission extended the Temporary Order, as amended by the July 12, 2010 Order, to October 22, 2010 and an order was issued by the Commission on September 10, 2010;

    AND WHEREAS on October 21, 2010, a hearing was held before the Commission which counsel for Staff attended, but no one attended on behalf of any of the Respondents;

    AND WHEREAS on October 21, 2010, Staff informed the Commission that counsel for TBS, TBS PLC, CNF Food, CNF Candy and Firestone consented to a further extension of the Temporary Order, via email dated October 19, 2010;

    AND WHEREAS by order dated October 22, 2010, the Commission extended the Temporary Order, as amended by the July 12, 2010 Order, to December 7, 2010;

    AND WHEREAS on December 6, 2010, a hearing was held before the Commission which counsel for Staff attended, but no one attended on behalf of any of the Respondents;

    AND WHEREAS on December 6, 2010, Staff informed the Commission that counsel for TBS, TBS PLC, CNF Food, CNF Candy and Firestone consented to a further extension of the Temporary Order;

    AND WHEREAS by order dated December 6, 2010, the Commission extended the Temporary Order, as amended by the July 12, 2010 Order, to February 9, 2011;

    AND WHEREAS on February 8, 2011, a hearing was held before the Commission which counsel for Staff attended, but no one attended on behalf of any of the respondents.

    AND WHEREAS on February 8, 2011, Staff informed the Commission that counsel for TBS, TBS PLC, CNF Food, CNF Candy and Firestone consented to a further extension of the Temporary Order, as amended by the July 12, 2010 order;

    AND WHEREAS by order dated February 8, 2011, the Commission extended the Temporary Order, as amended by the July 12, 2010 Order to March 14, 2011;

    AND WHEREAS on March 11, 2011, a hearing was held before the Commission which counsel for Staff attended, but no one attended on behalf of any of the respondents.

    AND WHEREAS on March 11, 2011, Staff informed the Commission that counsel for TBS, TBS PLC, CNF Food, CNF Candy and Firestone consented to a further extension of the Temporary Order, as amended by the July 12, 2010 order;

    AND WHEREAS the Commission ordered that the Temporary Order, as amended by the July 12, 2010 Order, be extended to May 18, 2011 and that the Hearing be adjourned to May 17, 2011 at 10:00 a.m.;

    AND WHEREAS on May 18, 2011, a hearing was held before the Commission which counsel for Staff attended, but no one attended on behalf of any of the respondents;

    AND WHEREAS the Commission was satisfied that counsel for TBS, TBS PLC, CNF Food, CNF Candy and Firestone was properly served with notice of the hearing;

    AND WHEREAS Staff requested that the Temporary Order, as amended by the July 12, 2010 Order, be extended and that a prehearing be scheduled;

    AND WHEREAS the Commission is of the opinion that it is in the public interest to make this order;

    AND WHEREAS the Commission ordered that the Temporary Order, as amended by the July 12, 2010 Order, be extended to July 12, 2011 and that the Hearing be adjourned to July 11, 2011 at 11:30 a.m.;

    AND WHEREAS on July 11, 2011, counsel for Staff and counsel for Firestone, TBS, TBS PLC, CNF Candy and CNF Food attended before the Commission and requested that the matter be put over for one month to continue settlement discussions;

    AND WHEREAS no one appeared on behalf of Green;

    AND WHEREAS on July 11, 2011, the Commission ordered that the Temporary Order, as amended by the July 12, 2010 Order, be extended to August 18, 2011 and that the Hearing be adjourned to August 17, 2011 at 10:00 a.m.;

    AND WHEREAS on August 17, 2011, counsel for Staff attended before the Commission and no one appeared on behalf of the Respondents;

    AND WHEREAS counsel for Staff advised the Commission that counsel for Staff and counsel for Firestone, TBS, TBS PLC, CNF Candy and CNF Food were requesting that the matter be put over for an additional six weeks to continue settlement discussions;

    AND WHEREAS on August 17, 2011 the Commission ordered that the Temporary Order, as amended by the July 12, 2010 Order, be extended to September 29, 2011 and that the Hearing be adjourned to September 28, 2011 at 10:00 a.m.;

    AND WHEREAS on September 27, 2011, the Commission approved a settlement agreement between Staff of the Commission (“Staff”) and Firestone, TBS New Media, TBS PLC, CNF Food and CNF Candy;

    AND WHEREAS on September 27, 2011, Staff filed a Notice of Withdrawal with respect to Mark Green;

    AND WHEREAS on September 27, 2011, Staff advised the Commission that Staff would not be seeking to extend the Temporary Order as against Green;

    IT IS ORDERED THAT that the hearing date scheduled for September 28, 2011 to consider an extension of the Temporary Order is vacated.

Dated at Toronto this 27^th day of September, 2011