Decision and Reasons: In the Matter of Belteco Holdings Inc. et al.
IN THE MATTER OF THE SECURITIES ACT
R.S.O. 1990 C.S.5, AS AMENDED
AND
IN THE MATTER OF
BELTECO HOLDINGS INC.,
TORVALON CORPORATION, GARY SALTER,
ELAINE SALTER, PETER ARTHUR MITCHELL,
RODIKA FLORIKA, GLEN ERIKSON,
CHRISTINE ERIKSON, KAI HOESSLIN, HARCOURT WILSHIRE,
921159 ONTARIO INC. and 918211 ONTARIO INC.
HEARING:
July 6, 7, 8, 9, 13, 15, 16, 20, 22, 23, 27, 29, 30; August 4, 5, 6, 7, 10, 13, 14;
September 4, 1998
PANEL:
John F. Howard, Q.C. Chair
G. Patrick H. Vernon, Q.C. Commissioner
APPEARANCES:
Lawrence Ritchie, Esq. and
Nancy Roberts OSC Special Counsel
Darryl T. Mann, Esq. for Peter Arthur Mitchell
Allan Sternberg, Esq. for Glen Erikson and Christine Erikson
DECISION AND REASONS
(September 30, 1998)
TABLE OF CONTENTS
I INTRODUCTION
A. The Allegations
(i) Allegations Against the Salter Group
(ii) Allegation Against Erikson
(iii) Allegations Against Mitchell
B. Brief History of the Proceeding
C. The Mandate of the Commission
II THE WITNESSES
III BELTECO - FROM OBLIVION TO CLEAN SHELL REPORTING ISSUER
1988 to December 1990
A. Belteco - the Clean Shell is Transferred
IV ISSUANCE OF BELTECO SHARES FROM TREASURY
A. The Moon Balancer and Continuous Feed Squirt Gun
B. Fifty-One Per Cent of the Baptist Journal
C. The Golden Age Film Rights
D. Subscriptions of Elaine Salter and Albertine Madeiros
E. New Testament Bible Readings on Audio Tape
F. Stock Options at $0.10 to Christine Erikson, John Bennett and
Harcourt Wilshire - February and March 1991
G. Private Placement - December 23, 1991
H. Stock Options - April 30, 1992
I. Summary
V TORVALON - CLEANING UP A REPORTING ISSUER IN DEFAULT
A. Acquisition of Control - June 1991
B. Issuance of 4,122,000 Shares - 9 July 1991
(i) 1,522,000 Shares to 921159 For Debt
(ii) 100,000 Shares to Christine Erikson
(iii) 2,500,000 Shares to Kent Toys Inc.
C. Issuance of 1,000,000 Shares to Stall Universal Inc.
D. Issuance of 900,000 Shares Under Options
E. Additional Submissions
F. Summary of Shares of Torvalon Corp. Acquired and Issued From Treasury as at June 1991 to July 1991
VI BELTECO - ANALYSIS OF SALE OF SHARES ISSUED FROM TREASURY TO DEALERS
VII TORVALON - ANALYSIS OF SALE OF SHARES ISSUED FROM TREASURY TO DEALERS TO 31 DECEMBER 1991
VIII CONCLUSION
IX APPENDIX
I INTRODUCTION
These proceedings began by a Notice of Hearing dated 15 December 1993. At that time, there were twenty Respondents, including two broker/dealer firms and six individuals associated with those firms. By 1 March 1996 the number of Respondents had been reduced to the twelve Respondents named in the style of cause above. At that time, by an Order of 1 March 1996, the Notice of Hearing was amended to delete the named broker/dealers and the individuals associated with them and the Statement of Allegations was also amended to delete the allegations made against those former Respondents.
It is not necessary to recount in detail the reason for these changes. Suffice it to say that they were the result of decisions not to proceed on the part of Staff and, in one case, dismissal by the Commission as against some Respondents when counsel sought an adjournment which was opposed.
On 21 March 1997 an Order was made pursuant to a Settlement Agreement of 14 March 1997 imposing certain sanctions on the Respondents Gary Salter, Elaine Salter, Rodika Florika ("Florika"), 921159 Ontario Inc. ("921159"), and 918211 Ontario Inc. ("918211") (Reported (1997) 20 O.S.C.B. 1575). In the Order approving the settlement and imposing sanctions on the settling parties, they are referred to collectively as the "Salter Group". In the Amended Notice of Hearing and Statement of Allegations which set out the allegations which are the subject of this proceeding, the Salter Group is identified as including the five Respondents who settled on 21 March 1997 as well as the Respondents Christine Erikson, Kai Hoesslin ("Hoesslin") and Harcourt Wilshire ("Wilshire"). In order to understand the allegations against the remaining Respondents, it is necessary to set out the allegations in detail. In doing so, we will refer to the Respondents who have settled as the Salter Group and identify the remaining Respondents alleged to be part of that group by name.
A. The Allegations
In the Amended Statement of Allegations by way of identifying the parties it is alleged that:
(i) Glen Erikson ("Erikson") was at all material times a solicitor practising law in the Province of Ontario, and the first director of 921159 and 918211. At all material times, Erikson was the corporate solicitor for Belteco Holdings Inc. ("Belteco") and Torvalon Corporation ("Torvalon");
(ii) Christine Erikson is the wife of Erikson and was, at all material times, an officer and shareholder of Torvalon and Belteco;
(iii) Hoesslin and Wilshire were, at all material times, business associates of Gary Salter.
(iv) The respondent Peter Arthur Mitchell ("Mitchell") is, and was at all material times, registered with the Commission as a sales person at the firm of Levesque Securities Inc. ("Levesque"), a securities dealer;
(v) Belteco is a reporting issuer whose common shares were at all material times traded over-the-counter and were quoted on the Canadian Dealing Network Inc. ("CDN"), formerly the Canadian Over-the-Counter Automated Trading System; and
(vi) Torvalon is a reporting issuer whose common shares were at all material times traded over-the-counter and were quoted on CDN.
By the Amended Notice of Hearing, the Commission announced that it proposed to hold a hearing to consider whether by reason of the allegations set out in the Amended Statement of Allegations made by Staff of the Enforcement Branch of the Commission ("Staff") that the conduct of the Respondents was not in the public interest and:
(a) whether pursuant to section 27 of the Securities Act, R.S.O. 1990, c.S.5, as amended (the "Act"), it is in the public interest to order that the registration of Mitchell should be suspended, cancelled, restricted or be made subject to conditions, or whether Mitchell should be reprimanded;
(b) whether pursuant to section 128 of the Act, it is in the public interest to order, subject to such terms and conditions as the Commission may impose, that any or all of the exemptions contained in sections 35, 72, 73 and 93 of the Act no longer apply to Belteco Holdings Inc., Torvalon, the Salter Group, Erikson, Christine Erikson, Hoesslin, Wilshire and Mitchell; and
(c) such further and other order as the Commission considers appropriate.
The allegations in the Amended Statement of Allegations after identifying the parties make allegations against the Salter Group as there identified and separate allegations against Mitchell. In setting out the allegations here, we will, except in the heading, again refer to the Respondents who have settled as the Salter Group and identify the remaining Respondents alleged to be part of that group by name.
(i) Allegations Against the Salter Group
1. During 1991 and 1992, the Salter Group, Christine Erikson, Hoesslin, Wilshire and other nominees of Gary Salter acquired control of Belteco and Torvalon and engaged in distributions of the common shares of Belteco and Torvalon without filing a prospectus and obtaining a receipt therefore, in circumstances where the prospectus exemptions under the Act were unavailable or where reliance upon such exemptions constituted abuse of the exemptions contrary to the purpose and objects of the Act.
2. Further, in connection with the acquisitions and dispositions described in paragraph 1 above, the Salter Group, Christine Erikson, Hoesslin, and Wilshire or one or more of them failed to file, or filed inaccurate reports contrary to sections 101, 107, 108 and 109 of the Act regarding the securities of Belteco and Torvalon.
3. Further, Belteco, Torvalon, the Salter Group, Christine Erikson, Hoesslin and Wilshire engaged in trading, and conduct relating to trading, involving the securities of Belteco and Torvalon which was abusive of the capital markets and contrary to the public interest. This conduct included, among other things, that which is described in paragraphs 1 and 2 above, as well as the issuance and filing of misleading, exaggerated and promotional press releases relating to the affairs of Belteco and Torvalon, and the failure to issue and file press releases relating to the affairs of Belteco and Torvalon in accordance with section 75 of the Act.
(ii) Allegations Against Erikson
4. During the relevant period, Erikson engaged in conduct which was abusive of the capital markets, and contrary to the public interest by authorizing, permitting, acquiescing in, facilitating or participating in the conduct described in paragraphs 1, 2 and 3 above of the Allegations Against the Salter Group.
(iii) Allegations Against Mitchell
5. During the relevant period, Mitchell, while a salesperson registered with the Commission:
(a) conducted trades in the securities of Belteco and Torvalon in client accounts, which trades were executed without prior authorization by clients;
(b) failed to maintain accurate books and records necessary to properly record business transactions and financial affairs contrary to section 113 of Regulation 1015, R.R.O. 1990 under the Act (the "Regulation");
(c) conducted discretionary trades for clients in the securities of Belteco and Torvalon, which trades were contrary to section 221 of the Regulations; and
(d) conducted his trading activities in the manner contrary to the public interest in that he knew, or ought to have known, of the trading activity described in paragraph 1 above, and permitted, acquiesced in, or facilitated the same.
In typical wishful thinking, and no doubt out of an abundance of caution, the Amended Statement of Allegations also refers to "such further and other allegations as Staff may advise and the Commission may permit". Notwithstanding that nearly five years have elapsed since the original Notice of Hearing, Staff has not thought up or advanced any "other allegations" and if they had done so we would not have been inclined to permit them having regard to the extended and tortuous path which this proceeding has taken.
Since it clearly would not ordinarily be in the public interest for allegations of this nature made in December 1993 to be left until July 1998 for hearing on the merits of the allegation, we believe that a short history of the path taken should be set out here.
B. Brief History of the Proceeding
Shortly after the commencement of these proceedings, they became caught up in an attack on the jurisdiction of the Commission in other proceedings which were based upon allegations founded on policies of the Commission as opposed to rules made formally by the Commission. The decisions of the Commission made in this regard were the subject of lengthy appeals in the courts and this led to a delay in this proceeding because, as it was constituted, it could have involved similar issues. Indeed some of the preliminary motions which we had to deal with as set out below which we characterized as the "rule making" motions did raise issues which were then on appeal in other proceedings.
When those matters had eventually been resolved, an initial date for hearing in this proceeding was set for July 1996 and extended to August 1996 when certain preliminary objections were raised as to jurisdiction and apprehension of bias. These objections having been dismissed, the matter was then scheduled to proceed on the merits before this panel on 6 March 1997 when further motions were made seeking a stay based on the lengthy delay and, in the alternative, for further and better productions and particulars. After two days of argument on these motions, our decision of 10 March 1997 (1997 20 O.S.C.B. 1333) dismissed the motions, but during the argument it became clear that further preliminary motions were contemplated.
Accordingly, we directed that all preliminary motions were to be filed and argument presented beginning 2 April 1997. We sat fourteen days in April and two days in May while another panel of the Commission sat for one day in April to deal with a preliminary motion on the admissibility of certain evidence which it was thought would be better dealt with by another panel. As a result, we delivered decisions dated 7 April 1997 (1997-20 O.S.C.B. 1835), 24 April 1997 (1997-20 O.S.C.B. 2401) and 26 May 1997 (1997-20 O.S.C.B. 2921) either dismissing the attacks made on the jurisdiction of the Commission or deciding that they failed because they raised matters which were not suitable for decision by way of preliminary motion. In these decisions, we gave leave to renew the latter type of motions during the hearing on the merits when the full facts would be available.
Two matters so reserved were the applicability of the limitation sections of the Act which sets time limits for the commencement of proceedings and a further motion to dismiss made on behalf of Erikson on the basis of what was then summarized as "systemic bias" on the part of Staff and personal bias against Erikson. After our final decision on all of the preliminary motions of 26 May 1997, appeals were launched to the Divisional Court and they, having failed, leave was then sought to appeal to the Court of Appeal. That leave was ultimately denied, but not until after more than a year had passed since our decision of 26 May 1997.
All appeals having finally been determined, this hearing on the merits of the allegations began on 6 July 1998.
We sat to hear the evidence of twenty-two witnesses on eighteen days in July and August and a further two days of argument in August as well as one additional day of argument on 4 September 1998.
In the hearing on the merits, and indeed through all the preliminary motions which came before this panel as set out above, Belteco, Torvalon, Hoesslin and Wilshire did not appear and were not represented. At the outset of this hearing, it was agreed by all counsel that the hearing should, at this stage, deal only with the merits of the allegations of fact. We indicated that should we find the allegations established on the evidence and deserving of censure, we would set a further date to hear argument (and evidence, if required) on the question of the limitation period and what order, if any, should be made having regard to our findings of the facts.
It should be noted that while the question of the limitation period was specifically reserved, Mr. Sternberg abandoned, during argument, the allegations of systemic bias and personal bias which were made on behalf of Erikson during the preliminary motions. Although in support of that motion, Erikson had filed a lengthy affidavit during the preliminary motions, neither Erikson nor Christine Erikson gave any other evidence during this phase of the proceedings or during preliminary motions. We invited submissions as to whether or not this fact should be given any weight during our consideration of the evidence which was adduced. While we will set out our conclusions on this matter shortly, we state here that while we draw no inference from the failure to give evidence nor from the abandonment of the motions referred to, we do believe that we are entitled to rely on those portions of the affidavit filed by Erikson which deal with the nature and extent of his practice as a solicitor and any other relevant matters of fact which are set out in the affidavit filed.
One further matter should be noted here. During the evidence, Mr. Mann and Mr. Sternberg objected to evidence led by Staff of facts which occurred prior to 1991. They argued that the allegations are clearly limited to conduct during 1991 and 1992. We permitted the evidence to be led over the objections on the basis that it was necessary background information in order to understand the allegations with respect to conduct in 1991 and 1992.
We note that the identification of Erikson in the Amended Statement of Allegations alleges that he was the first director of 921159 which was incorporated on 28 November 1990 and of which Gary Salter was, at all material times, an officer and sole shareholder. It is also alleged that Erikson was the first director of 918211 which was incorporated on 8 November 1990 and of which Elaine Salter was, through most of the relevant period, an officer and sole shareholder. These facts could lead to a conclusion that the allegations against Erikson extend into 1990 and they are clearly established by the evidence. We do not so extend the allegations. In addition, it is alleged that, at all material times, Erikson was a solicitor practising law in the Province of Ontario. While there was evidence to support this allegation, to the extent that it may be necessary to prove that allegation in a formal sense we rely upon the Erikson affidavit filed.
Nevertheless, during argument, we indicated to counsel that we would ignore submissions made by Staff advancing violations of the Act or abusive practices prior to January 1, 1991, but that we would rely upon evidence of facts and conduct prior to 1991 in order to come to a conclusion as to what the Respondents knew or ought to have known as at January 1, 1991 and we have done so in the reasons which follow.
C. The Mandate of the Commission
Because the allegations refer to the purpose and objects of the Act, we consider it useful to outline briefly those purposes and objects of the Act which are particularly applicable to the proceeding before us prior to dealing with the specific facts in this proceeding.
The Act is designed to provide protection to investors from unfair, improper or fraudulent practices and, as well, to foster fair and efficient capital markets and, to foster confidence in capital markets. The Commission is charged with the administration of the Act. Under the Act, the Commission is authorized to make certain orders if, in its opinion, it is in the public interest to do so. In brief, having regard to the purpose of the Act and its mandate, it is the task of the Commission to protect the public interest and administer the provisions of the Act so as to ensure the integrity of capital markets in Ontario.
The regulatory regime imposed by the Act requires that public companies which wish to raise capital in the market become reporting issuers and as such are required to make public disclosure regarding their enterprises so that prospective investors have available to them full information as to the opportunities and risks involved before investing in the securities of such companies. Inevitably, the regulatory regime imposed under the Act involves delay and expense to reporting issuers principally by requiring the filing and obtaining a receipt for a prospectus, if securities are to be distributed to the public.
The Act provides exemptions from prospectus requirements where, for example, knowledgeable and sophisticated investors are providing capital to an enterprise. The general objective of the available exemptions is to enhance the efficiency of capital markets by permitting those seeking initial capital to do so at a reasonable cost. It is the Commission's mandate, however, to ensure that the use of exemptions is not abused so that the integrity of the capital markets is maintained.
Over the years, participants in the investment community and those lawyers whose practice becomes specialized in securities law, have recognized that the expense involved can be reduced if a moribund reporting issuer is reactivated and those exemptions applicable to sophisticated investors are used to raise new capital. Perhaps inevitably, some promoters of such enterprises not only seek to avoid expense and delay, but also to avoid any careful scrutiny of the risks involved by prospective public investors. In doing so, procedures are adopted which may mean that not only is the necessary information not made known to prospective investors but, indeed, that such information is not readily available even if a prospective investor seeks to become knowledgeable.
These procedures are well known to the promoters of speculative ventures. During these proceedings in argument (though not in evidence) such procedures were described as involving three stages, namely, the build-up, the marketing, and the blow off. The result is that public money can be invested in the securities of speculative ventures with no real opportunity for investors to obtain the necessary information even if it is desired, but perhaps more importantly, investors become involved financially by purchasing shares in the market although the amounts invested do not reach the venture to supply the funds necessary to support the development of the speculative project being undertaken.
A brief description of the three phases may be appropriate. During the build-up, assets are transferred to the enterprise for shares. These shares are issued to the promoter of the enterprise or associates of the promoter at a nominal price and are free to be traded. During the marketing, some of these shares are transferred to dealers in the market place as principals, at an increased price. The dealer then encourages participation in the venture by selling shares to members of the public at a further increased price. The blow off occurs when prices in the public market increase because of the activity generated. As the price of shares continues to rise in the market place the original promoters transfer additional shares to the dealers involved during the blow-off phase at increased prices. Ultimately through lack of funds in the primary venture and decreased participation by the dealers in the market place, the price of the shares in the hands of the public decreases substantially and often turns out to be nominal.
These procedures have often been employed in mining ventures when the assets transferred into the enterprise are very speculative mining claims which are referred to in the vernacular as "moose pasture". The result has been that on occasion members of the public have been sold securities with no real opportunity to assess whether the assets transferred are prospective mining claims or barren wasteland and with no real possibility of assessing whether the capital funds actually reaching the enterprise are sufficient to enable it to do the work necessary to determine the real value of the claims transferred.
While there is no analysis in the proceeding before us of the reality of the possible success of the commercial ventures which were the assets transferred to reporting issuers in this case, it is clear, at least on an ex post facto view of what occurred, that the enterprises were highly speculative or, at the very least, grossly under capitalized to offer any real prospect of success. In the circumstances, it is tempting to describe the assets which were transferred to the enterprises for shares which later ended up in the hands of the public purportedly under the exemptions provided by the Act as "commercial moose pasture".
There can be no doubt, however, that on the whole of the evidence before us, there was, in this case, a carefully prepared scheme which was designed to profit the participants whether or not the speculative ventures proved to be successful. Moreover, the scheme was designed to take advantage of every possible exemption available under the Act to reduce expense while at the same time providing practically no information on the public record as to the likelihood of success. The main case against the Respondents is based upon the submission that in furthering the scheme many violations of the requirements of the Act occurred principally in relying on exemptions which were not available in the circumstances of this case.
It was submitted by counsel on behalf of the Staff that, even if there were no violations of those sections of the Act designed to protect the integrity of the market and provide information to prospective investors, the Respondents remaining in the case, knowingly participated in a series of transactions which were designed to create a number of tradeable shares which the participants would transfer to two broker dealers at prices which would afford the participants a substantial profit while knowing that the shares would then be in turn sold to members of the public at prices which returned a profit to the broker dealers. Neither the prices to the broker dealers nor the prices which the broker dealers sold shares to members of the public reflected in any way the real or prospective value of the securities. This, it is argued, was abusive of the market even in the absence of technical violations of the Act.
As will appear from what follows, we are satisfied that there were violations of important requirements of the Act which deserves censure. Even if we are wrong in this, however, we also hold that by knowingly participating in a scheme which was clearly designed to place securities in the hand of investors at prices which did not reflect their real value, the respondents have participated in a process which was abusive of the market which also should lead to censure.
II THE WITNESSES
As indicated, we heard extensive evidence from twenty-two witnesses and the record in this case suffers under the weight of 156 exhibits, many of which contain a great many documents in up to four volumes. Eleven witnesses who were involved in the investigation or in some of the share transactions were called by Staff. These included four persons who participated in the investigation of this matter, the sometime accountant for Belteco, Derek Barbour ("Barbour"), an officer of the transfer agent, and two officers from Levesque. One hand-writing expert was called by counsel on behalf of the Eriksons, and counsel appearing on behalf of Mitchell called Mr. Mitchell and his assistant, Paulette Brangman. At this stage, we do not propose to review the evidence of these witnesses, but we do think it important to review in detail the evidence we have concerning the actions of the people who were directors of Belteco or Torvalon in the period under review.
Three of these (Wayne Whymark, Lawrence Piecha, and Maria Piecha) were directors of Belteco in 1990 only but they did give evidence. Virginia Bailey and Daniel Bailey were directors of Torvalon prior to June 1991. They only signed resolutions prepared by Erikson to accommodate Mrs. Bailey's father who was President of Torvalon at the time.
Of the ten people who were directors of Belteco or Torvalon in 1991 and thereafter, only four gave evidence. These were: Lincoln Torrance ("Torrance") who was a director of Belteco from 26 November 1990 to May 1991; Albertine Madeiros ("Madeiros") who was a director of Belteco from 15 May 1991 and was secretary of Belteco from 24 January 1991 to 4 September 1991. She was also secretary-treasurer of Torvalon from 26 June 1991; Peter Rooney ("Rooney") who was a director of Torvalon from 26 June 1991, and Flavio Arconti ("Arconti") who was a director of Belteco from 4 September 1991.
The six remaining persons who were directors of Belteco or Torvalon in 1991 and thereafter did not give evidence. They are: the respondent Erikson who was a director and president of Belteco from 28 June 1990 to 23 January 1991; the respondent Christine Erikson who was a director of Belteco from 9 August 1990 to 14 May 1991 and assistant secretary of Torvalon from 26 June 1991 to 23 July 1991; the former respondent Elaine Salter who was a director of Belteco from December 1990 to 4 September 1991; John Bennett ("Bennett") who was a director and president of Belteco from 4 September 1991 and a director and president of Torvalon from 26 June 1991; Robert Petry ("Petry") who was a director of Belteco from 15 May 1991 and a director of Torvalon from 4 July 1991; and, finally, Harry Hans Jedig ("Jedig") who was a director of Torvalon until the 26 June 1991.
Other than Wayne Whymark, Lawrence Piecha, Maria Piecha, Torrance, Virginia Bailey, Daniel Bailey, and Erikson, all of the directors named above received issues of treasury shares either in their own name or in the name of private corporations in which they were the sole shareholder and director. In addition, the former respondent, Florika, and the respondents Hoesslin and Wilshire, received issues of treasury shares and none of these three gave evidence. The former respondent, Gary Salter, was issued shares of Torvalon in the corporate name 921159 of which he was the sole shareholder, director, and president. Gary Salter gave no evidence.
Elizabeth J. Kirkwood ("Kirkwood") who did give evidence received treasury shares of Belteco in the name of the corporation W.M. & J.M. Holdings Inc. ("W.M. & J.M.") of which he was the sole director and shareholder.
While the evidence is far from complete, we are satisfied having carefully reviewed the evidence of Torrance, Madeiros, Arconti, Rooney, and Kirkwood, that they became involved in the corporate transactions of Belteco and Torvalon as nominees of Gary Salter, or in the case of Torrance, as a nominee of Erikson, who was at the time acting for Salter in the acquisition of control of Belteco. This evidence, together with the documentary evidence, makes it clear and we find that all of the director's participation in corporate transactions of Belteco and Torvalon in the period under review took place by the signing of resolutions, prepared by Erikson or under his direction, by those who were directors at the time. There were never any meetings of directors face-to-face to consider the merits of the actions being taken, the assets being acquired, the nominal value of the shares being issued, the option price attached to options being issued, or the price per share for shares being issued as a result of subscriptions. In our view, while this manner of proceeding may be technically available under the relevant corporation legislation, it is totally improper for directors of public corporations whose securities are being sold in the market.
Some effort was made in cross-examination and in argument to establish that Torrance, Madeiros, Rooney, Kirkwood, and even Arconti were acting independently as individuals and not as pure nominees of Gary Salter or as participants in a scheme. While we do not believe that Rooney and Kirkwood were as innocent of what was going on as they would have had us believe, we have concluded on the evidence to be reviewed later, that either they were acting as pure nominees of Gary Salter or they were part of a control block with Gary Salter acting in concert.
We accept the evidence of Madeiros that in her capacity as a director and officer of Belteco and as an officer of Torvalon, she was acting as a pure accommodation party at the request of Gary Salter or through him at the request of Erikson. In our view, this is also true with respect to the trading in shares which were issued to her or to the actions of corporations of which she was the sole director and officer. We reached the same conclusion with respect to Arconti although there is no evidence that any trading took place in the shares made available to him under an option during the period covered by the evidence.
Most, if not all, of the proceeds of the sales of shares to the two broker dealers by these parties appears to have been paid out to corporations about which we have virtually no information. If an attempt was made to trace these proceeds, it must have been unsuccessful as we have little or no evidence. A submission was made by Staff that Mitchell and Levesque distributed proceeds from the accounts without having proper directions from the apparent owners of the accounts. While the paper records in the evidence is not complete in every respect on this issue, we are not prepared to make a finding that payments were made without the authorization of the apparent owners of the accounts.
Nevertheless, having heard the evidence of Madeiros, Rooney, and Kirkwood, we accept their evidence that they did not themselves receive the benefit of any of the payments made out of the accounts at Levesque which were apparently in their name or in the name of corporations which they controlled.
All of the directors and officers of Belteco and Torvalon who gave evidence testified that they did not at any time exercise independent judgment but merely signed corporate resolutions as requested. Based upon this evidence and our review of the specific transactions later in this decision and in particular our analysis of the sale of treasury shares issued to them, we do not believe it matters whether they were acting as pure nominees of Gary Salter because if they were not acting as pure nominees, they were clearly acting with him as part of a control group of the two public corporations involved. Whatever their degree of participation in the scheme which unfolded, all of them acted carelessly and without due regard to the obligations of a person who accepts an appointment as a director or as an officer of a public corporation.
III BELTECO - FROM OBLIVION TO CLEAN SHELL REPORTING ISSUER, 1988 to December 1990
As explained above, in view of the submission with respect to the period of time covered by the Notice of Hearing, we review the events in this period of time in order to address the question of what the Respondents knew or ought to have known in 1991 and 1992 having regard to their activities prior to 1991. We do not record or review the submissions made by Staff regarding violations of the Act which occurred during the period prior to 1991.
In 1988 Wayne Whymark ("Whymark") began looking for the owner of mining claims which he and some associates were interested in pursuing. He learned that they appeared to be owned by Belteco Kirkland Lake Mining Ltd. ("Belteco Kirkland") which appeared to be an inactive corporation. Eventually he learned the name of an officer and made contact with that man's widow when he learned that taxes had apparently been paid by the Estate to keep the mining claims in good standing and that the Estate owned 25,000 shares in Belteco Kirkland. He also learned that Belteco Kirkland had been dissolved for failure to comply with the Corporations Tax Act on April 4, 1989.
Whymark originally planned to purchase the shares owned by the Estate and take control of the corporation. To this end he retained Erikson to assist in the transaction. Agreements were prepared by Erikson for this purpose in September 1989. In these agreements, it was contemplated that Whymark would become a promoter of Belteco Kirkland.
It was found, however, not only that Belteco Kirkland had been dissolved, but also that prior to its dissolution, the Commission had issued a cease trade order on August 13, 1979 which was still in effect.
Steps were taken to cure the dissolution of Belteco Kirkland in the name of the widow as a shareholder and this was accomplished by 26 April 1990. More complicated steps were still required to re-establish Belteco Kirkland as a reporting issuer and to lift the cease trade order. Whymark and his associates were not interested in the corporation as such but only in the mining claims in its name. As a result of his experience in the securities law field, Erikson knew that a "clean" reporting issuer had a value of its own.
On Erikson's suggestion, in order to save Whymark legal fees and expenses, the right to purchase the 25,000 shares for $11,000.00 then held by Whymark was assigned as of 24 April 1990 to Krater Minerals Inc. ("Krater Minerals") a corporation controlled by Christine Erikson. This assignment was conditional upon Belteco Kirkland being revived and the cease trade order being lifted.
In material prepared by Erikson, it is indicated that Whymark had become president and a director of Belteco Kirkland as of 9 January 1990 although it is clear that this was done by back dating so that he could sign the annual filing required of a reporting issuer under the Act (Form 28). This filing is dated 14 January 1990. A blank resignation and an undated resolution said to "roll the board to Christine et al." appointed Erikson a director and president and Lawrence Piecha (Christine Erikson's brother) a director and secretary-treasurer of Belteco Kirkland were signed in blank and later dated 28 June 1990.
Whymark testified that during the whole of his term as a director and officer of Belteco Kirkland, he was a nominee director only and took no part in any decisions made. He considered his function to be limited to signing documents and facilitating the transfer of the company to Erikson or whoever was purchasing control of the corporation through him so that he and his associates could purchase the mining claims in which they were interested.
In June 1990, Erikson incorporated a numbered company, 901436 Ontario Inc., in the name of an associate of Whymark and as of 29 June 1990 that company agreed to purchase the mining claims from Belteco Kirkland for $11,000.00 on a date to be fixed.
Early in July 1990, Erikson, as president and a director of Belteco Kirkland, began to take the steps necessary to re-establish Belteco Kirkland with the Commission. By this time, Christine Erikson's brother, Lawrence Piecha was a director and her mother, Maria Piecha was the third director.
Although Christine Erikson's company, Krater Minerals owned some 25,000 shares of Belteco Kirkland, there were another 1,089,000 shares in other hands. Accordingly, if control of the corporation was to be secured, there would have to be a substantial capital reorganization.
An annual and special general meeting was called for July 27, 1990 for the purpose, inter alia, of approving audited financial statements for fiscal years ended December 31, 1987, 1988 and 1989; to approve the sale of the mining claims; and to reorganize the capital principally by consolidated the outstanding common shares on the basis of ten preconsolidated shares for one post consolidated share. The material relating to this meeting was filed at the Commission on July 6, 1990.
Subsequent to the annual and special general meeting and on the basis that the Director of the Commission was satisfied that Belteco Kirkland had by then complied with the requirements of Part VII of the Act and had remedied past defaults, the cease trade orders of 16 and 30 August 1979 were revoked on 24 August 1990.
As of 21 September 1990, purportedly pursuant to a resolution passed by the shareholders, Articles of Amendment were issued, inter alia, changing the corporate name of Belteco Kirkland to Belteco Holdings Inc. The Articles also consolidated the common shares on a four for one basis. (There is no explanation in the record as to how the change from ten to one in the notice calling the meeting to four to one in the Articles was authorized.) As a result, this meant that Krater Minerals owned 6,250 shares and there were 272,250 shares in other hands.
On 17 September 1990, the directors of Belteco (Erikson, Lawrence Piecha and Maria Piecha) passed a resolution which recited that the corporation was indebted to Erikson & Associates in the amount of $11,464.95 and to Gyro Capital Inc. in the amount of $11,500.00 which debts had been assigned to 774226 Ontario Inc. ("774226"). This numbered company was said to have "taken a lead in reorganizing and reactivating" Belteco. The resolution provided that 439,299 shares with a paid up value of $0.05 each be issued in payment of the debt. Insider trading reports filed at the time indicated that 774226 was controlled by Christine Erikson and that on 21 November 1990 the 439,299 shares were transferred to another corporation controlled by her, namely, Krater Minerals at the same price of $0.05. If all shares had been consolidated on the four to one basis, this would mean that 278,500 shares were owned by others and that Krater Minerals with the 6,250 shares resulting from the consolidation of 25,000 shares and the 439,299 shares added would now own 62% of the outstanding shares.
Some time later it was discovered, apparently in the process of appointing a transfer agent or, perhaps in the process of getting ready to transfer the shares into the market as described below, that since the Articles consolidating common shares had not become effective until 21 September 1990, the 439,299 shares issued at $0.05 on 17 September to satisfy debts of $22,964.95 would have become only 109,824 shares some four days after they had been issued. Perhaps more importantly, these shares would only represent 39.4% of the outstanding common shares or even adding the 6,250 shares would be 48.4% instead of the 62% expected.
Accordingly, on 14 December 1990, a resolution was passed amending the resolution of 17 September to make it effective as of 21 September 1990 and authorizing a direction to be issued to the transfer agent to issue 439,299 shares to Krater Minerals. As of 26 November 1990 Lawrence Piecha resigned as an officer and director of Belteco and was replaced by Torrance as a director and by Christine Erikson (who had been a director since 9 August 1990) as secretary-treasurer. According to Torrance, he accepted the appointment as a director at the request of Erikson. He said that no directors meetings were ever held; he just signed resolutions at Erikson's request, took no part in any decisions and relied on Erikson who he assumed controlled the corporation.
A. Belteco - the Clean Shell is Transferred
On 21 December 1990, the 439,299 common shares of Belteco held by Krater Minerals were sold to 916567 Ontario Inc. ("916567"), a company incorporated 29 October 1990 by Erikson, he being the original shareholder, director and president. It is not clear on the record when Erikson ceased to act in these capacities, but by 21 December 1990, Gary Salter's nominee, Madeiros was said to be the authorized signing officer of the purchaser. In the purchase agreement, it was recited that the purchaser "seeks to become the promoter" of Belteco.
The purchase price was $85,000.00. A deposit of $10,000.00 cash to be held by Erikson & Associates in trust for Krater Minerals and to be retained if the full purchase price was not paid and a promissory note for $75,000.00 payable on the earlier of 1 February 1991 and receipt of the first proceeds of resale of some or of all shares being purchased. While the promissory note was signed by Madeiros as president of the purchaser, a separate deed of guarantee signed personally by Gary Salter guaranteed the performance by the purchaser under the agreement and promissory note.
On the same day, Elaine Salter was appointed a director of the purchaser and two press releases were issued by 916567 announcing the appointment of Elaine Salter and the purchase of the shares and stating that 916567 while acquiring more than 10% of the outstanding shares of Belteco was "not acting jointly or in concert with any person who has acquired or owns any shares of the company"... nor did the purchaser ... "or any person with who it is acting jointly or in concert have control or direction over any other Belteco shares". While this may have been technically true at the time (except for the remaining 6,250 shares which were still at Krater Minerals, so far as the record shows) the rest of the press release made it clear that this situation was not to continue indefinitely. It read:
"The undersigned intends to activate and promote the company as a company having interest in media, entertainment and novelty merchandising. Shares of the company may in future be issued to the undersigned or persons acting jointly or in concert in connection with agreements for the sale of assets or the assignment of business opportunities to the corporation."
Even so, while the press releases of 21 December 1990 may have been technically true as of that date, in view of the developments to be set out later, it is harder, if not impossible to accept, that the statements were still true as of 21 January 1991 when a copy of the press releases of 21 December was delivered to the Commission with a letter of 916567 purportedly reporting under section 100 of the Act (now section 101), and stating that:
"The offeror seeks to activate and promote Belteco Holdings Inc. as a company having interest in media, entertainment, novelty merchandising. The offeror may in future acquire further shares of Belteco Holdings Inc. as a promoter of that reporting issuer or in connection with agreements for the sale of assets or the assignment of business opportunities to the reporting issuer."
It should be noted that while this report purported to report an event in 1990 it was filed in 1991 and it is therefore within the time period mentioned in the Notice of Hearing. As will appear below, a number of events had occurred by 21 January 1991 in the acquisition of business opportunities by Belteco.
One further event occurred in 1990 which needs to be described.
On 27 December 1990, the shareholders of 916567 were changed to substitute new nominees of Gary Salter as follows:
Erikson's one common share and an additional 74 common shares were issued from treasury for $1.00 each to Jepead Holdings Ltd. ("Jepead"). As indicated above, Jepead was controlled by Salter's nominee, Peter Rooney.
75 shares were issued from treasury for $1.00 each to W.M. & J.M. for $1.00. W.M. & J.M. was controlled by Salter's nominee, Elizabeth Kirkwood.
50 shares were issued from treasury for $1.00 each to 918211.
Jepead and W.M. & J.M. now each owned 37.5% of 916567 and 918211 now owned 25% of 916567 and thus their proportionate share of 439,299 shares of Belteco. The documents show that Elaine Salter was the sole owner of 918211, but on the evidence before us, she was acting as a nominee of and/or took all business steps on the direction of Gary Salter.
If these corporations were not alter egos of Gary Salter, it is passing strange that for $199.00 contributed to the share capital of 916567, these corporations acquired their respective percentage interest in 916567 which owned control of Belteco which it had just purchased for $85,000.00 to be paid to Krater Minerals. No doubt 916567 owed or would owe its "organizer" the dollars to be paid for a control of Belteco if, as and when it was in fact paid but the fact is that at 1 January 1991, the ownership of Belteco was as follows:
Shareholders other than Salter Group 272,250 37.93%
Krater Minerals 6,250 0.87%
916567 (Note) 439,299 (Note) 61.20%
717,799 100.00%
916567 in turn was nominally owned:
918211 (Elaine Salter) 25% (representing 109,825 shares in Belteco)
Jepead (Rooney) 37.5% (representing 164,737 shares in Belteco)
W.M. & J.M. (Kirkwood) 37.5% (representing 164,737 shares in Belteco)
(representing 439,299 shares in Belteco)
The manner in which the Belteco shares represented by the proportionate interest in 916567 came into the hands of the shareholders of 916567 to be marketed is interesting.
A certificate for the 439,299 shares of Belteco was issued to Krater on 7 January 1991 as Certificate 0001000. This certificate was surrendered on 24 May 1991 and new certificates were issued that day not to 916567 but rather to Jepead, W.M. & J.M. and 918211. There is no explanation on the record as to how this transaction occurred.
The new certificates were issued as follows: Certificate 0001120 for 109,825 shares was issued to 918211 and was delivered to its account at Levesque on 10 June 1991; Certificate 000121 for 164,737 shares was issues to Jepead and was delivered to its account at Levesque on 13 June 1991, and; Certificate 0001122 for 164,737 shares was issued to W.M. and J.M. and was delivered to its account at Levesque on 28 June 1991.
It is clear, however, that these shareholdings at 1 January 1991 put control of Belteco into nominees of Gary Salter and was carefully designed to enhance the distribution of the Belteco shares. The number of shares represented by the respective percentage interest in 916567 and the sale of these shares into the market are particularly interesting when the marketing of the shares is reviewed below.
IV ISSUANCE OF BELTECO SHARES FROM TREASURY
A. The Moon Balancer and Continuous Feed Squirt Gun
On 17 January 1991, the directors of Belteco (Christine Erikson, Elaine Salter and Torrance) resolved to enter into an agreement with W.N.D. Inc. ("WND") to acquire the rights to two toys called the Moon Balancer toy and the Continuous Feed Squirt Gun. (As a matter of curiosity, the squirt gun had continuous feed because it was designed to be attached to a garden hose.) The price was to be satisfied by the issuance of 350,000 shares of Belteco. The resolution stated that the paid up value of the shares was to be $0.05 each or a total of $17,500.00. The shares were to be held in escrow by Erikson to be released at the rate of one share for each $1.00 of pre-tax profit derived from the exploitation of the toys. The escrow agreement reflected an address for WND in Kent, Ohio.
Although efforts were made, no record could be found of a corporation named WND in Kent, Ohio. Records were found of a California corporation of the same name which was suspended 1 July 1982 and an Illinois corporation of the same name which was dissolved 1 July 1984.
On 22 January 1991, a press release was issued by Belteco from the address of Erikson's office and filed with the Commission announcing the acquisition of the rights described. While the press release reflected the escrow agreement and the fact that on 10 January 1994, Belteco was required either to release all escrow shares or return all rights to the toys to WND against the surrender of escrowed shares for cancellation, no value was placed on the shares issued for the rights acquired.
In a note to the 31 December 1990 financial statements of Belteco regarding events subsequent to the year end, it is stated that the shares were issued at a nominal value of $0.05 per share. By the 31 December 1991 financial statements, a note indicated (without explanation) that the shares were then valued "for accounting purposes" at $0.12 each or $42,000.00.
On 1 February 1991, the transfer agent of Belteco was directed to issue a certificate for 350,000 shares to WND, the address given to the transfer agent was Erikson's office.
No prospectus was filed prior to the issuance of these shares to WND. An insider trading report was filed in the name of Robert Petry dated 17 May 1991 reporting the acquisition of 350,000 shares of Belteco being held by WND "which is controlled by the undersigned". This form indicates that Petry was filing as a director of Belteco and that he had become so on 15 May 1991. In fact, WND held 350,000 shares or 32.78% of the total issued capital of 1,067,799 shares of Belteco as at 17 January 1991, although no certificate was authorized until 1 February 1991.
It is submitted by Staff that this treasury issue being a distribution as defined in Section (1)(1) of the Act was made in violation of the Act since no prospectus was filed as required by Section 53 of the Act and no statutory exemption was available. Erikson as president and a director of Belteco at the time was fully aware of and participated in this transaction.
It should be noted here that Mr. Sternberg made a general submission that the case before us is not about irregularities in filings unless it be concluded that the failure to make statutory filings was part of a scheme. Mr. Sternberg further argued that in considering failures to file we should consider whether there was such a pattern of failure that a pattern of deception was evident rather than a good faith attempt to comply with the Act. We will deal with these general submissions later.
In this case, while a material change report as required of WND by Section 101 was not filed, Mr. Sternberg argues that Regulation 14(c) which exempts trades to a promoter of the issuer relieves against the requirement of a prospectus for this distribution of treasury shares.
In our view, the promoter exemption is not applicable since WND and its apparent principal, Petry, had not as at 17 January 1991 taken any part in the reorganization of the business of Belteco.
On this first acquisition of business assets for treasury shares, it is clear that a prospectus was required. This is part of the fundamental protection under the Act. Mr. Erikson as a solicitor knowledgeable in securities law and as the president and a director of Belteco at the time ought to have ensured compliance. The press release which was filed was woefully lacking in the information required in the circumstances.
B. Fifty-One Per Cent of the Baptist Journal
On 12 February 1991, the Commission received a communication purporting to be a report by Belteco under Section 74(2) of the Act signed by Madeiros as secretary but clearly prepared in Erikson's office. In the document it is stated that a material change occurred on 22 January 1991 and that a press release annexed was published at Toronto on 22 January 1991.
The lack of care with which matters were being dealt with is indicated by the fact that the press release annexed was in fact dated 25 January 1991 and an additional copy of the press release was received by the Commission on 30 January 1991. It appears on the record that the transaction, in fact, occurred 24 January 1991.
The report indicates that Belteco has acquired Pearl Entertainment Inc. ("Pearl") for 750,000 common shares issued from treasury. It incorporates the press release by reference.
The press release indicates that Pearl had a 51% interest in the Baptist Journal and that of the 750,000 common shares issued from treasury, 250,000 were issued in escrow. It is stated that the terms of the escrow are that the shares may only be released on or before 24 January 1994 at the rate of one share for each $0.50 of net profit earned by Pearl and that any escrow shares not released by 24 January 1994 are to be cancelled. It is also stated that 750,000 common shares were issued to Elaine Salter and to Madeiros. No value is attributed to the common shares in the report or the press release.
As to the business acquired, it is stated that the Baptist Journal is:
"A publisher which intends to shortly commence publishing periodicals of particular interest to American Baptists. The periodicals, it is expected, will be marketed with endorsement from the religious organizations involved. It is expected that the Baptist Journal will receive an official recognition from the American National Baptist Convention and will commence publication in May 1991."
The origins and the development of the acquisition of this business enterprise are interesting. It is clear from the record that all of the transactions were done by nominees of Gary Salter and that Erikson, acted both as solicitor and participated in the transactions throughout although he resigned as president and director of Belteco the day before the final agreements were executed. This transaction originated in June 1990 by way of an agreement between Elaine Salter and Aldrich & Associates and ended up in an agreement in principle in December 1990 between Belteco and Pearl in which Erikson & Associates were to be responsible for a due diligence review. There is no explanation as to how Elaine Salter and Madeiros became the owners of Pearl.
The parallel between the incorporation and development of 916567, 918211, Jepead and W.M. & J.M. which initially acquired control of Belteco and that of the acquisition of Pearl is striking. In addition, the similarity of the terms upon which this "business opportunity" was acquired by Belteco and those of the acquisition from WND and a later acquisition of film rights are striking except that, in the case of this acquisition from Pearl, nominees of Gary Salter ended up with a substantial number of shares which were not subject to escrow. Elaine Salter received 260,650 and Madeiros received 239,350 shares which were not subject to any escrow. Single share certificates were issued by the transfer agent for these shares on 4 February 1991 and delivered to Erikson's office (E. Salter, Certificate 1004; A. Madeiros, Certificate 1006). At the same time, separate certificates were delivered for shares to be held in escrow (E. Salter, 130,325, Certificate 1003; A. Madeiros, 119,675, Certificate 1005).
It is submitted by Staff that this treasury issue being a distribution was made in violation of the Act since no prospectus was filed and no statutory exemption was available and that Erikson having acted as solicitor and participated in the transactions was fully aware of the transactions. It is also submitted that reliance on the exemption under Section 72(1)(j) of the Act for a take over bid should be denied since to permit it would be abusive.
It is submitted by Staff that Madeiros was a pure nominee of Gary Salter and that while she and Elaine Salter were the nominal owners of Pearl, they were really acting for Gary Salter as part of the Salter control group. That being so, a report under Section 101(2) of the Act indicating that the control groups holdings had increased by more than 2% should have been filed.
In argument, Mr. Sternberg submitted on behalf of Erikson that the exemption under Section 72(1)(j) applied, that a press release and material change report were filed by Belteco and that insider trading reports were filed by Madeiros and Elaine Salter. While conceding that a Section 101 report should have been filed, he defended this omission as a mere oversight which in view of the reports that were filed should not be regarded as an attempt to mislead.
While the exemption might be technically available, the failure to file a section 101(2) report identifying the recipients of shares as part of a control group is serious. We will deal with the submission that to permit reliance upon the exemption would be permitting abuse of the Act later.
C. The Golden Age Film Rights
The submission made by Staff fixed this acquisition as occurring on 17 January 1991, but on our review of the documents we have concluded that it is more likely to have occurred on 31 January 1991.
On 31 January 1991, the directors of Belteco (Elaine Salter, Christine Erikson, and Torrance) resolved to enter into an agreement with Crystal Group Inc. ("Crystal") under which Crystal's rights under an agreement of 17 January 1991 with Golden Age Films Inc. (of which Belteco is said to have actual knowledge) were assigned to Belteco. The price was to be satisfied by the issuance of 750,000 shares. The resolution states the paid up value of the shares to be $0.05 for a total of $37,500.00. The shares were to be held in escrow by Erikson to be released at the rate of one share per $1.00 of pre-tax profit derived from the exploitation of the rights. The escrow agreement was exactly similar to the escrow agreement with respect to the shares issued to WND to the extent that in the provision with respect to the return of ownership if securities remained in escrow in January 1994, references is made to returning ownership "of the Schedule B toys". Not surprisingly there is no Schedule B nor were there any toys involved. Neither the draft agreement nor the draft escrow agreement in the record show an address for Crystal.
Again, although efforts were made, no record could be found of a corporation by that name. The evidence of Madeiros and Barbour, however, indicates that it was a company at least operated, if not owned, by Brett Salter, Gary Salter's son.
On 1 February 1991, the transfer agent of Belteco was directed to issue 750,000 shares to Crystal. The address given was Erikson's office. Certificate 1002 was delivered to Erikson's office 4 February 1991.
No prospectus was filed prior to the issuance of these shares to Crystal. Although Crystal filed an insider trading report, no report was filed under Section 101 and no material change report or press release was filed by Belteco.
In a note to the December 31, 1990 financial statements of Belteco, it is stated that the shares were issued at a nominal value of $0.05 per share. By the December 31, 1991 financial statements, it is indicated (without explanation) that the shares are "valued for accounting purposes" at $0.12 each or $90,000.00.
The 750,000 shares issued to Crystal represented 29.21% of the issued capital of Belteco as at 31 January 1991.
It is submitted, by Staff, that this treasury issue, being a distribution, was made in violation of the Act which required an exemption from the prospectus requirements of the Act and that no exemption was available. In addition, the Staff submits that Crystal was a company associated with Gary Salter and that no mention having been made in the public disclosure relating to the acquisition of the participation by association of Gary Salter or Brett Salter's involvement in the company, reliance on any exemption even, if available, would be abusive. It is also submitted that Erikson, in his various capacities, was fully aware of and participated in the transaction. It is further submitted that no report was filed with respect to the transaction as required by Section 1.01(2) of the Act.
It was submitted on behalf of Erikson that while no exemption of prospectus requirements was available, the failure by Crystal to file the Section 101 report and by Belteco to file the press release and material change report should be regarded as an oversight with no intent to mislead.
We observe that while there is no very reliable evidence as to the ownership of Crystal, a prospectus at this stage of the development of the "business opportunities" being acquired by Belteco would have identified on the public record the identity of those making up the control group of Belteco.
D. Subscriptions of Elaine Salter and Albertine Madeiros
By a written subscription dated 1 February 1991, Elaine Salter and Madeiros subscribed for 200,000 shares of Belteco each at a price of $0.05 per share. The shares were authorized to be issued by directors resolution (Elaine Salter, Christine Erikson, and Torrance) dated the same day. A direction to the transfer agent dated 7 March 1991 signed by Madeiros and Christine Erikson instructed the delivery of 20 share certificates of 10,000 shares each to Elaine Salter and Madeiros at the office of Erikson. The share certificates were sent by letter of transmittal dated 19 March and Erikson acknowledged receipt on 20 March 1991. The certificates for Elaine Salter are numbered 1039 to 1058 and for Madeiros from 1059 to 1078.
None of the subscription, the resolution of directors or the insider trading reports filed by Elaine Salter and Madeiros identify them as "promoters". Elaine Salter's insider trading report identifies her relationship with Belteco as being a director and a security holder who beneficially owns or exercises control over, directly or indirectly, more than 10% of the shares. Madeiros' insider trading report only identifies her as a senior officer of Belteco.
No press release appears to have been issued with respect to these issues, although in notes of the financial statements of 31 December 1990 and 31 December 1991 it is indicated that the shares in question were issued to promoters without identifying the persons involved.
Whatever the role of Elaine Salter was as a member of the Salter Group, Madeiros testified directly that although the signature on the subscription was hers, it was just one of many papers that she had signed when they were put in front of her by either Gary Salter or Erikson. She testified that she did not pay for any shares nor did she receive any consideration for shares which may have been issued in her name and later sold.
It is submitted by Staff that these issues were trades in securities of Belteco that had not been previously issued and therefore, being a distribution, a prospectus was required unless an exemption was available. If it is sought to rely upon the exemption for promoters under Section 72(1)(j) of the Act and subsection 14(c) of the Regulation, it is clear that Albertine Madeiros, on the evidence, was not in fact a promoter. In addition, we accept her evidence that she never made any payment for the shares issued in her name as a result of this transaction.
It is further submitted that Erikson must have had full knowledge of the transactions, having in all likelihood prepared the relevant documentation and having received the share certificates issued to Elaine Salter and Madeiros. Madeiros testified that whenever she and Elaine Salter signed documents, this was always done at Erikson's office.
Further it is submitted that, at the time the issuance of these shares was authorized, 200,000 shares represented 6.7% of the outstanding shares of Belteco and, together with the shares authorized to be issued on 24 January, Elaine Salter held 19.9% of the outstanding shares and Madeiros held 18.8% of the outstanding shares. On the evidence, it is submitted, that even if they were not nominees of Gary Salter, Elaine Salter and Madeiros were members of a control group and since more than 2% of the outstanding shares were added to their holdings, a report was required under section 101(2) of the Act and a corresponding press release was required. No such documents were filed.
It is submitted on behalf of Erikson that notwithstanding the identification of the recipients as promoters in the financial statements, no prospectus was required since the shares were issued to employees and the exemption under Section 72(1)(n) of the Act is applicable. It was conceded that no Section 101 reports were filed which again should be regarded as an oversight.
We have no doubt that Madeiros and Elaine Salter were not employees of Belteco or Pearl in the spirit in which that term is used in Section 72(1)(n) and observe that the combination of no press release and oversight was keeping the identity of substantial shareholders from the public record.
E. New Testament Bible Readings on Audio Tape
By resolution dated 12 February 1991, the directors of Belteco (Elaine Salter, Christine Erikson and Torrance) approved an agreement between the corporation and Florika and Hoesslin whereby for the issue of 1,000,000 shares valued at $0.05, Belteco acquired 100% of the equity in a corporation named Audio Publications Inc., by acquiring all the shares of 906851 Ontario Inc. ("906851").
906851 was incorporated 2 August 1990. On 1 September 1990 Florika subscribed for 360,000 shares (60%) for $6.00 and Hoesslin subscribed for 240,000 shares (40%) for $4.00 making a total paid up capital of $10.00.
On the evidence, Florika was Salter's daughter-in-law and Hoesslin was a pilot who was giving Salter's son Brett flying lessons. Neither apparently had any business experience.
It is clear that Gary Salter was involved at the inception of these transactions.
The asset said to be owned by 906851, was a 100% interest in a Nevada corporation called Audio Publications Inc. ("Audio Publications"). According to the documents filed, Audio Publications, acting through Gary Salter, was incorporated on 6 November 1990 in Nevada and had acquired from a California corporation Tape Specialties Inc. ("TSI") the rights to produce and market a program consisting of 24 hours of readings from the New Testament by James Earl Jones recorded on magnetic tape. Audio Publications acquired these rights for a deposit of $7,500.00 and an agreement to pay $57,580.00 by 31 January 1991. In the incorporating documents for Audio Publications in Nevada, as of 1 November 1990, the Respondent, Wilshire of Long Beach, California, is shown to be the sole director and president, secretary and treasurer of the corporation. Notwithstanding the fact that Gary Salter signed the agreement with TSI on 6 November 1990 on behalf of Audio Publications, on that same day Wilshire was appointed sole director, president and secretary, 100 shares of Audio Publications were issue to him for $1.00 which were immediately transferred to 906851.
In return for the outstanding shares of 906851, Belteco authorized the issuance of 1,000,000 shares from Treasury at a value of $0.05 per share or a total value of $50,000.00. 600,000 of these shares were authorized to be issued to Florika and 400,000 were authorized to be issued to Hoesslin. Half of the shares issued to each of Florika and Hoesslin were to be held in escrow under agreements similar in every respect to the escrow agreements referred to above which accompanied the issuance of 17 January to WND and 24 January to Elaine Salter and Madeiros. Two certificates for 300,000 shares each were issued to Florika (Certificates 1010 and 1011); two Certificates for 200,000 shares each were issued to Hoesslin (Certificates 1008 and 1009).
The 600,000 shares issued to Florika amount to 15.1% of the outstanding shares after the issue and the 400,000 shares issued to Hoesslin amounted to 10.1% of the outstanding shares after the issue. It is submitted on behalf of the Staff that these trades being in securities that had not been previously issued amounted to a distribution and therefore required a prospectus and that no exemption was available. If reliance is based on Section 72(1)(j) of the Act being a trade in a security of an issuer that is exchanged by the issue with the security holders of another issuer pursuant to a takeover bid made by that company, it is submitted that reliance on that exemption would be abusive in the circumstances.
It is further submitted on behalf of Staff that Florika and Hoesslin, on the evidence, were clearly acting as nominees for Gary Salter and, in addition, that the proceeds of the sale of the Belteco shares out of Hoesslin's account at Levesque were received by 901139 Ontario Inc. ("901139"), a company for which Gary Salter had signing authority for its bank account and was apparently its sole shareholder. Further it is submitted that the proceeds of the sale of the Florika shares were received, at least in part, by Gary Salter or corporations associated with him in that proceeds were transferred through the accounts of Friedberg & Co. Ltd. ("Friedberg") and ended up in the hands of Elaine Salter and 921159, a company controlled by Gary Salter and 901139. There is, of course, clear evidence that Gary Salter was associated with the acquisition of the rights involved by Audio Publications and there is no public disclosure of this involvement in the press release announcing the transaction.
It is further submitted that Glen Erikson had full knowledge of the transaction in that he was the escrow agent for the shares. The Florika and Hoesslin shares were delivered to his address and that address also appeared on the insider trading reports of Florika and Hoesslin.
It is further submitted that even if Florika and Hoesslin were not nominees for Gary Salter, and acting in their own right, they were clearly part of a group acting in concert which was a control group and the acquisition increased that control group's holdings by more than 2%. Accordingly, a Section 101(2) and a corresponding press release ought to have been filed and no such documents were filed.
It was submitted on behalf of Erikson that the Section 72(1)(j) exemption is applicable. It was further submitted that the failure of Florida, Hoesslin and Belteco to file reports under Section 101 should be regarded as the result of oversight.
We have no doubt that in this transaction Florika and Hoesslin were acting as nominees of Gary Salter who was solely responsible for acquiring this "business opportunity" for Belteco and their names were used to keep his name out of the consideration being paid.
F. Stock Options at $0.10 to Christine Erikson, John Bennett and
Harcourt Wilshire - February and March 1991
According to a copy of a resolution of the directors of Belteco (Christine Erikson, Elaine Salter and Torrance) dated February 1991 (no day is given) stock options were approved for Bennett, Wilshire and Christine Erikson in the amounts of 100,000, 100,000 and 75,000 shares of Belteco respectively, at a price of $0.10, pursuant to a form of Employer (sic) Stock Purchase Agreement annexed and dated as of 12 February 1991. The Stock Option Agreements themselves were all dated as of 12 February 1991 and signed on behalf of Belteco by Madeiros.
Under the terms of the resolution, Bennett, Wilshire and Christine Erikson are said to be full or part-time employees of Pearl.
In an insider trader report dated 18 February 1991, Christine Erikson gave her relationship with Belteco as a director and senior officer and reported the acquisition of 75,000 shares at $0.10 per share as a purchase carried out in the market, "excluding the exercise of an option" rather than the exercise of an option. This was not a correct description of the acquisition.
On 25 February, five certificates (Certificates 1012 to 1016) for 15,000 shares each were issued from treasury to Christine Erikson by the transfer agent giving an address at Erikson's office. A direction to the transfer agent dated 7 March 1991, authorized the issuance of 10 certificates for 10,000 shares each in the name of Bennett and Wilshire giving addresses as the office of Glen Erikson. The share certificates (Certificate 1019 to 1028 in the name of Bennett and Certificates 1029 to 1038 in the name of Wilshire) were sent with a letter of transmittal dated 19 March 1991 and receipt was acknowledged by Erikson on 20 March 1991.
At the time Christine Erikson was issued 75,000 shares from treasury, these amounted to 1.9% of the shares issued. At the time the 100,000 shares were issued to Bennett and Wilshire, 100,000 shares represented 2.4% of the total issued and outstanding shares.
The first insider trading report filed by Bennett as a director and senior officer of Belteco was filed on 5 September 1991, the day after he became a director and president. It was not until 12 May 1992 that Bennett reported the acquisition of an additional option for 200,000 shares granted 30 April 1992. It should be noted that while certificates under section 139 of the Act identifying all insider trader reports filed with the Commission by named parties reporting trades in Belteco, Wilshire's name does not appear in the certificate so it is not known whether Wilshire filed an insider trading report.
It is submitted by Staff that all of the shares issued pursuant to these options were issued to members of a group acting in concert who controlled Belteco and that group, by March 18, 1991, held at least 2,815,299 shares representing 66.35% of the issued and outstanding shares of Belteco.
Again, it is submitted by Staff that these trades, being in securities that had not been previously issued, a prospectus was required unless an exemption is found. It is submitted that the exemption in subsection 72(1)(n) of the Act for the issuance of securities to employees or employees of an affiliate is not available.
As to Christine Erikson, there is no evidence that she was ever an employee of Pearl and although she was a director of Belteco at the time, there is similarly no evidence that she was ever employed by Belteco although for a period of time she carried the title of secretary-treasurer.
The shares received as a result of these transactions were all quickly resold despite the fact that notice was not filed with the Commission of any exempt trade pursuant to section 72(5). Indeed 30,000 of the shares issued to Christine Erikson as a result of the exercise of her option were deposited in an account at Levesque on 26 February 1991 in the name of 921159, a corporation controlled by Gary Salter and were sold from that account. The proceeds from the shares deposited by Wilshire at Levesque were received by International Securities Inc., a Bahamian company, with some association to Gary Salter as he was billed for the incorporation of that corporation. The proceeds from the shares Bennett received as a result of his exercise of the option were paid by a cheque issued to Erikson & Associates in Trust in April 1991.
In these circumstances, it is submitted that either the exemption is not available or that to rely upon the circumstances would be abusive.
It is further submitted that Glen Erikson was fully aware of and participated in the transactions, having prepared the agreements, received the share certificates and prepared insider trading reports giving as his office the address on the insider trading report filed by Christine Erikson.
It is submitted on behalf of the Eriksons that the exemption permitted by Section 72(1)(n) of the Act is applicable since the recipients of these options are recited in the resolution granting them to be "full or part-time employees" of Pearl, an affiliate of Belteco. It was conceded, however, that no notice of exercise was filed as required by Blanket Ruling then in effect, but now replaced by Regulation 1015:69(2).
This breach was described as a problem, but not a big problem. No mention was made in argument of the fact that the insider trading report of Christine Erikson described the acquisition as a purchase carried out in the market.
We find that there were violations of the Act and the Regulation in these transactions and reserve our comments on the size of the problem until all alleged violations have been considered.
G. Private Placement - December 23, 1991
Pursuant to a directors resolution of 17 December 1991, (Bennett, R. Petry and Arconti) a private placement was authorized under an agreement attached, signed by Bennett on behalf of Belteco and by Elaine Salter on behalf of 918211. Under the agreement, 232,342 units were authorized to be issued to 918211. The units comprised of one common share and one warrant to purchase a common share by 13 December 1993 at a $1.50. The units were to be issued for a total consideration of $250,000.00 or $1.076 per unit. Under the agreement, the shares were to be subject to an eighteen month hold to 7 June 1993 and the consideration of $250,000.00 was to be paid by 31 December 1991.
A report dated 7 January 1992 of this private placement was filed specifically referring to section 71(1)(d) of the Act (now 72(1)(d)) reporting a distribution to a principal acquiring at a cost of not less than $97,000 was filed. A material change report referring to Section 74(2) of the Act also dated 7 January 1992 was also filed. A press release regarding this transaction dated 23 December 1991 did not disclose that the purchaser was 918211, a corporation controlled by Elaine Salter.
The transfer agent was directed to issue the shares concerned on 7 January 1992 and deliver them to Erikson & Associates. The shares were delivered on 9 January 1992 and forwarded by Erikson & Associates to Elaine Salter by letter dated 20 January 1992. One certificate (#1463) was issued in the name of 918211 which was directed to bear the legend "These Shares May Not Be Sold or Transferred Until June 17, 1993".
The Staff submissions seem to concede that while the transaction required a prospectus an exemption under section 72(1)(d) of the Act and section 27 of the Regulation, was probably available.
However, it was submitted that the use of the exemption in the circumstances would be abusive. In this connection, it is submitted that while the press release indicated that the issuer is to provide "funds to be applied directly to debt reduction", it does not report what debts are to be paid nor does it disclose the name of the recipient to be repaid nor the fact that 918211 was part of a control group.
As to Erikson's participation, it is clear from the record that he was fully aware of the circumstances and probably participated in the preparation of both the report and the press release.
No submission was made on behalf of Erikson on this transaction, but none of these shares reached the market as it had collapsed before the shares became tradeable.
H. Stock Options - April 30, 1992
Pursuant to directors resolution of 17 January 1992 (Bennett, Petry and Arconti), the issuance of stock options of 200,000 shares each to Bennett and Elaine Salter and 23,000 shares to Petry and Arconti at $0.70 per share was authorized. Pursuant to a direction signed by Bennett and Arconti dated 7 April 1992, 200,000 shares each were directed to be issued to Bennett and Elaine Salter and 23,000 shares to Petry. The resolutions and agreements relating to the stock options recited that Bennett and Petry were directors and Elaine Salter was an employee of Belteco. The option to Arconti was apparently never exercised.
Staff submits that this trade in securities not previously issued required a prospectus and while it might otherwise be exempt under Section 72(1)(n) of the Act, the use of such an exemption in the circumstances would be abusive in that all directors appear to have acted only as signatory to documents placed in front of them and ,the issuance of such a large number of securities without full public disclosure, was part of an abusive scheme. In fact as appears from the review of evidence in Part II above, Arconti was a young man of twenty years of age with no business experience serving as a mere nominee director and signing whatever was placed in front of him. Further, the issue of shares to Bennett and Elaine Salter amounted to 4.1% each of the issued and outstanding shares, and the cumulative total of shares issued to Elaine Salter and her company 918211 by this time amounted to 832,342 shares or 17% of the issued and outstanding shares. It is further submitted that Erikson must have been fully aware of this transaction.
It is submitted on behalf of Erikson that here there was compliance with the requirements of the Act and the Blanket Ruling then in effect.
I. Summary
Table A, which is annexed as part of the Appendix to this decision, summarizes the shares issued from Belteco treasury as at 1 January 1991 and in the period to 30 April 1992.
In summary, it will be observed that the directors of Belteco issued 3,524,400 treasury shares during the first three months of 1991; of these, 1,674,400 were fully tradeable and 1,850,000 were to be held in escrow. Including the 445,549 held at 1 January 1991, this meant that 2,119,949 fully tradeable shares were in the hands of Gary Salter and his nominees. Of these, 400,000 shares were said to have been issued for a total cash consideration to Belteco of $47,500 and the balance were issued at a valuation of five cents to pay debt or to acquire what, at best, were speculative business rights or licenses with no track record of success. Indeed, the total revenue earned by Belteco during the whole of 1991 was $17,805. There was no trading in Belteco shares in the relevant period until March 1991 when the summary of trading in Ex. 88, Vol. 11, Tab 17, shows 4,000 shares were traded at $0.27. In fact, these 4,000 shares were shares issued to Christine Erikson and were sold from Gary Salter's account at Levesque in the name of 921159 in two transactions of 2,000 shares each on 15 and 18 March.
As will appear from the full analysis of trading which follows in Part VI, a total of 2,054,000 shares were sold from the accounts of Salter nominees at Levesque by 15 July 1991.
From the foregoing review, it will be apparent that we conclude that there were a number of violations of the requirements of the Act which apply to the distribution of treasury shares of reporting issuers. These requirements are imposed in order to protect the public interest by providing information on the public record which is vital to those who may subsequently be offered these shares in the market. It is true that some of the violations are more serious than others, but where a carefully thought out scheme such as the one which is apparent here, we believe that exact compliance with the Act should be strictly enforced. We reject the submissions that violations should be ignored as mere oversight.
V TORVALON - CLEANING UP A REPORTING ISSUER IN DEFAULT
Control of the reporting issuer Torvalon was acquired by Gary Salter and his associates in June of 1991. (We note here that while the Respondent is named as Torvalon Corporation in these proceedings, it would appear that the actual name of the corporation is Torvalon Corp.)
The evidence of the events which lead to this acquisition begins as early as October 1988 and will be reviewed briefly in order to understand the knowledge which at least some of the participants had at the time of the acquisition in June of 1991.
In argument Staff made a number of submissions directed towards a finding that serious violations of the Act occurred prior to 1991. In addition, it was submitted that in this period of time, none of the exemptions which might be available should be accorded since the whole scheme demonstrated substantial abuses of the capital market. We have no doubt that these submissions are correct, but we base no part of our decision on the events prior to 1991. As indicated, we rely on them solely in considering what the participants knew or ought to have known, at the time of the acquisition of control of Torvalon.
Torvalon became a reporting issuer in October 1988 after a reverse takeover of an Ontario private company named Torvalon Inc. by a public corporation named Chambers Acceptance Corp. Torvalon Inc.'s business was carried on through a wholly owned subsidiary, Torvalon Inc. (U.S.) located in Los Angeles. The business was to provide design, construction and kitchen remodelling services. Two days after the reverse takeover, Chambers Acceptance Corp. changed its name to Torvalon. Erikson was the corporate solicitor for the Torvalon companies throughout these transactions.
The business of Torvalon was managed by Jedig who, with members of his family and associates, controlled the company. The Board of Directors consisted of his daughters and his son-in-law, all of whom gave evidence that they merely acted as nominees for Jedig.
If the creation of a reporting issuer in Ontario was meant to raise funds to support the business enterprises in California, it was apparently not a success since on 4 December 1989, the Commission issued a temporary cease trade order against Torvalon for failure to file various required financial statements. This temporary cease trade order expired but on 6 July 1990 a new temporary cease trade order was made for failure to comply with continuous disclosure requirements and that cease trade order was extended on 20 July 1990.
By the fall of 1990, the controlling shareholders of Torvalon desired to sell and on the evidence of one of the nominee directors, this fact was known to Erikson because when this nominee director attempted to resign in December of 1990, Erikson informed him that a sale of the company was pending and he was discouraged from resigning by Erikson because that might postpone or delay the transaction.
During 1990, the number of shareholders in the control group of Torvalon was deliberately reduced from at least eight to five by the transfer of shares notwithstanding the existence of the cease trade order and then later in 1991 to three by a further transfer of shares.
During the fall of 1990, six companies were incorporated in Ontario by Erikson. In five of these companies, Erikson was not only the incorporator but the only director and president, while in the sixth corporation, Gary Salter was the sole director and president. The precise role of these corporations in the acquisition which occurred in June 1991 will be dealt with later. It is sufficient to say, at this time, that five of them were, on the face of the documents filed, owned and operated by persons who, in fact, were either pure nominees of Gary Salter or associates of his in the scheme which was being developed. The sixth corporation, 921159, owned by Gary Salter did not participate directly in the acquisition but within two weeks after the acquisition it had been issued 1,522,000 shares of Torvalon at a nominal value of $0.05 each in payment of a debt owed to that corporation by Torvalon in the amount of $76,100. The debt was, at least in part, incurred by Gary Salter or 921159 advancing funds to Torvalon in order to cure its defaults as a reporting issuer. Part of this debt was in fact the result of an assignment to the corporation of a debt owed by Torvalon to Erikson & Associates.
It will appear from what follows that what occurred beginning at least in the fall of 1990 and up until early June 1991, was a carefully orchestrated scheme to revive a public corporation which was a reporting issuer, to eliminate its few remaining assets and all of its liabilities while in the process acquiring or creating common shares to be sold in the market place to pay for the shares acquired as well as the expenses of cleaning up the balance sheet of a public corporation and re-establishing its good standing under the Act.
On the evidence, Erikson acted as the solicitor for both the sellers and the purchasers. He acted as corporate solicitor for Torvalon prior to the sale of control and he certainly acted for Gary Salter and his nominees in the creation of the purchasers and in the purchase.
A. Acquisition of Control - June 1991
Under a purchase agreement dated 10 June 1991, 4,868,145 shares of Torvalon were acquired from three named sellers by corporations which were clearly either nominees of Gary Salter or acting in concert with Gary Salter. The shares acquired represented 87% of the outstanding shares of Torvalon. Since it is submitted by Staff that the actual number of sellers was artificially reduced so as to come within the exemption provided by Section 93(1)(c) of the Act for "private acquisitions", it is necessary to examine the facts with respect to the sellers' share holdings. It will be useful to examine the real identity of the purchasers so as to follow the acquired shares into the marketplace.
The seller, Amalgamated Plat-au Resources Inc., ("Amalgamated Plat-au") acquired some of the shares being sold under an amalgamation which occurred on 30 November 1990 between Plat-au Resources Inc., 787679 Ontario Inc., Healix Capital Corp., and Ayriane Holdings Inc. so that four holders became one. The record shows that the four amalgamating corporations held 33.1%, 10.1%, 10.5%, and 8.9% of the outstanding shares of Torvalon respectively. The second selling shareholder was Lode Star Capital Inc., about whose holdings the record does not disclose any consolidation. The third selling shareholder was Jedig. According to the record, Jedig acquired shares by way of gifts from three family members on 17 May 1991, the very day the cease trade order was revoked. Accordingly the shares of nine shareholders were consolidated into the hands of three shareholders to come within the statutory exemption which limits the number of selling shareholders to five.
It is also appropriate to point out here that for the purposes of Section 93(1)(c), it is provided by Section 93(2)(b) that where an offeror knows or ought to know that the seller of the security has acquired the securities in order that the offeror might make use of the exemption provided by 93(1)(c) then each company from whom the securities were acquired shall be included in determining the number of persons from whom the securities have been acquired. It is clear that Erikson knew or ought to have known that shares were being acquired from more than five shareholders as he participated in the transaction throughout for both the sellers and the buyers.
Under the purchase agreement, the transaction was to close 14 June 1991 but it is probable that it actually closed on 25 June 1991 because one of the documents annexed to the signed agreement was a covenant signed by Gary Salter personally dated 25 June 1991 and that is the date of the press release purporting to announce the acquisition.
Under the agreement, the sellers warrant that Torvalon has no employees, has no significant assets, will have no cash on closing, and no liabilities except $26,000 owed to Erikson & Associates, $18,000 owed to Yale & Partners, and $3,500 owed to National Trust, for a total of $47,500. The agreement also cites that it has a subsidiary named Torvalon Inc. The purchase price provided for payment of $25,000 in cash on closing and a promissory note for $115,000 payable on the 19 July 1991. The total purchase price indicates a price per share of $0.0287.
The financial statements of Torvalon as at 30 June 1991 disclose that in fact Torvalon had no significant assets, a deficit of $71,561, and had outstanding a demand note payable to 921159 in the amount of $76,100. It is also noted that on 9 July 1991, the note payable was converted to common shares. The note was payable to 921159, a corporation owned and controlled by Gary Salter.
Perhaps the most astonishing provision in the agreement was that while all shares acquired should be held in escrow by Erikson & Associates until the promissory note was paid, provision is expressly made for the issue of 100,000 shares pursuant to a stock option outside the escrow. This right is supported by a personal covenant signed by Gary Salter who covenants that he will deliver on 9 August 1991 common shares equal to the number of employee stock options exercised under this right if the purchasers have not paid the promissory note on or before 19 July 1991. Ever more astonishing, there is no restriction in the agreement against the issue of additional shares.
It will be clear from what follows that it was always the intention of the purchasers that the purchase price should be paid from the proceeds of shares sold by the purchasers in the market. By the date for payment of the promissory note on 19 July 1991, a total of 5,122,000 new shares had been issued representing 51.6% of the total new authorized capital. Of these new shares, 2,622,000 were free to be traded in the market.
The apparent purchasers were HOJ Holdings Ltd. ("HOJ"), and Inculo Holdings Ltd. ("Inculo"). HOJ was incorporated by Erikson 26 October 1990, but by the date of the purchase, Bennett was the sole director and shareholder. Inculo was incorporated by Erikson 29 October 1990, but by the date of the purchase, Madeiros was the sole director and shareholder. Another agreement dated 10 June 1991, makes it clear that HOJ acquired the shares in trust for three other corporations, namely: for Texas B.J. Holdings Ltd. ("Texas B.J."), a corporation nominally controlled by Bennett as to 1,333,334 shares; for 918211 nominally owned and controlled by Elaine Salter and for 916574 Ontario Inc. ("916574"), a corporation nominally controlled by Rooney as to 1,333,333 shares each. The remaining 868,145 shares were acquired directly by Inculo, a corporation nominally owned and controlled by Madeiros. On the evidence, we hold that either the apparent owners of these purchasing corporations were acting as pure nominees of Gary Salter or, in the alternative, were acting in concert with him.
The shares were authorized to be issued 25 June 1991 and certificates were actually issued 9 July 1991.
On the facts of this acquisition, the Staff submits that a takeover bid as defined in Section 81(1) of the Act occurred for which no exemption was available under Section 93 of the Act because it was known or ought to have been known that there were more than five sellers. One of the consolidations having occurred 17 May 1991 comes within the time frame of the statement of allegations. In the alternative, it is submitted that the transaction and the public disclosure which followed it were designed to hide the identity of the true purchaser and there is therefore a violation of Section 101 of the Act because the report of the acquisition was inaccurate and incomplete. It is further argued that in the circumstances, reliance on any exemption would be abusive.
As to Erikson's involvement, it is submitted that he acted as the corporate solicitor for both vendors and purchasers, that he incorporated all of the corporate entities that purportedly acquired the shares and served as the sole director and officer of each of the corporations at all relevant times. In addition, Erikson billed Elaine Salter for the incorporation of HOJ, 916574, Texas B.J., and Inculo, and on the evidence of Madeiros, took instructions regarding Inculo from someone other than Madeiros, and therefore had knowledge of all the material and relevant facts.
In the circumstances, he must also have known that the report on the acquisition was both inaccurate and incomplete.
It is submitted on behalf of Erikson that all requirements for filings were completed and that the take-over bid was exempt from prospectus requirements under Sections 72(1)(j) and (k).
We have no doubt that the real number of sellers was artificially reduced so that the prospectus requirements of the Act could be avoided. This fact was clearly known to Erikson and consequently no prospectus exemption was applicable because he knew that the nominal sellers were acting as nominees or agents for others having a beneficial interest in the securities being sold. There was a clear breach of the Act. A prospectus was required. Furthermore, the Section 101 filing was inaccurate and incomplete as it did not disclose the true identify of the purchasers.
B. Issuance of 4,122,000 Shares - 9 July 1991
Within fourteen days after the acquisition of control, the issuance of 4,122,000 had been authorized by the directors of Torvalon and the transfer agent had been directed to issue certificates for these shares. The particulars of the three transactions involved are set out below.
(i) 1,522,000 Shares to 921159 For Debt
By resolution dated 26 June 1991, the day after closing the acquisition of 87% of the outstanding shares of Torvalon, the directors (Jedig, Madeiros, Bennett, and Rooney) authorized issuance of 1,522,000 shares to 921159 for a nominal value of $0.05. The shares were issued in satisfaction of Torvalon's liability to "Gary Salter's corporation 921159" reciting that it had "provided funds to sustain the corporation" and had an assignment of the liabilities of Torvalon to Erikson & Associates, the transfer agent, and the auditors referred to above in the amount of $47,500 and reciting a total debt of $76,100.
No press release was issued and filed with the Commission regarding this transaction, however, in a form 23 dated 25 February 1992 and filed with the Commission on 26 February 1992, some eight months later, it was stated that 921159 held 1,535,370 shares and proposed to distribute 1,000,000 shares by public sales at Toronto commencing 4 March 1992. It was also stated that 921159 had acquired the securities under section 14(c) of the Regulation, being an exempt distribution to a promoter of Torvalon.
On 9 July 1991, the transfer agent was directed to issue the shares to 921159 in one certificate - C923. The share certificate is at Exhibit 78, Tab 7, endorsed in blank to be transferred only "as per attached instructions" from Levesque. Exhibit 78, Tab 1, establishes that this certificate was surrendered to the transfer agent 13 January 1992 when new certificates were issued to Levesque as follows: 2 x 30,000; 2 x 50,000; 13 x 100,000; 1 x 60,000, and; 1 x 2,000. (The certificates are numbered sequentially from 1011 to 1029.) We have been unable to trace the sale of these shares since the accounts at Levesque in the record end with the accounts of December 1991.
It is argued by Staff that this distribution from treasury required a prospectus and that the exemption in 14(c) of the Regulation is not available because even if 921159 was in fact the promoter of Torvalon, reliance on an exemption would be abusive in the circumstances. It would be abusive because Gary Salter, his nominees and those with whom he was acting in concert, exercised direction and control over Torvalon which was never publicly disclosed during the relevant period. No press releases were filed. No Section 101 report was filed. The Insider Trading Report which was filed by 921159 does not disclose that Gary Salter was the sole beneficial owner, merely that he was President of 921159. The disclosure which did occur in February 1992 was far too late to be adequate disclosure.
It is further submitted that at all relevant times, Erikson was fully aware of the extent of Gary Salter's exercise of direction and control over Torvalon and therefore that a Section 101(2) Report was required in that the acquisition added more than 2% to the shares held by the control group. In fact, as of the date the issuance that was authorized, Salter's direct holdings through 921159 amounted to 21.1% of the outstanding Torvalon shares.
On behalf of Erikson, it is submitted that the only breach which occurred was the failure to file a Section 101 report which should be regarded as an oversight. The result of this oversight was that there was no information on the public record that a promoter had acquired 21% of the outstanding shares of Torvalon for debt owed by Torvalon during its rejuvenation and that the promoter was a member of a control group holding 89% of the outstanding shares.
(ii) 100,000 Shares to Christine Erikson
By a directors' resolution of 26 June 1991 (Bennett, Rooney, Madeiros), Christine Erikson was allotted employee stock options to purchase 100,000 common shares on or before 15 July 1991 at $0.05 each. Christine Erikson had become the Assistant Secretary-Treasurer of Torvalon on 26 June 1991 and would resign 23 July 1991 within weeks of the exercise of this option. The option was exercised the day it was issued and on 9 July 1991, a direction was issued to the transfer agent to issue five share certificates for 20,000 shares each to Christine Erikson (Certificates 917-921).
The evidence is that Christine Erikson played no active role at Torvalon and Barbour who was Torvalon's accountant testified that she was not an employee because she never received any income.
It is submitted by Staff that this being a distribution from treasury, a prospectus was required unless an exemption is available. If the exemption sought to be relied upon is Section 72(1)(n) of the Act, it is only available if it is a trade with an employee who is not induced to purchase by expectation of employment or continued employment. It is submitted that the exemption is not available to senior officers unless they are also employees and in any event the blanket ruling under Section 73 of the Act expanding the exemption to non-employee directors and officers requires that the issuer must file with the Commission a letter indicating, inter alia, reliance on the exemption. No such letter was filed.
It is further submitted by Staff that the evidence demonstrates that Christine Erikson was either part of the scheme designed to increase the public float of Torvalon and inflate the price of its shares or was acting as a nominee of Gary Salter. It was noted that although Christine Erikson did not have an account at Levesque, 60,000 of the shares issued pursuant to this transaction were cancelled and reissued to Levesque. As well, the remaining 40,000 shares were cancelled and reissued to one of the broker dealers. Accordingly, it is submitted, reliance on the exemption would be abusive in the circumstances.
Finally, Staff submits that Christine Erikson being part of a control group, the issuance ought to have been included in the Section 101 Report as well as a corresponding press release. No such documents were filed.
It is submitted on behalf of Christine Erikson that she was an employee and thus Section 72(1)(n) was effective and that she was an officer and thus the exemption under Section 73 was available though it is conceded that no letter was filed with the Commission indicating reliance on that exemption. Finally it was submitted that no Section 101 report was required as Christine Erikson did not (individually or in conjunction with others) control more than 10% of the shares of Torvalon.
Whether "employee" exemptions are available to persons who are senior officers for less than a month and perform no services in that capacity need not be decided because it is clear that Christine Erikson was, in our view, either a pure nominee of Gary Salter or a member of a control group established by him and acting in concert. Therefore, there was a failure to file a report required by Section 101 of the Act.
(iii) 2,500,000 Shares to Kent Toys Inc.
On 4 July 1991, the directors (Madeiros, Bennett, Rooney) resolved to enter into a license agreement with Kent Toys Inc. ("Kent Toys") dated the same date and resolved that 2,500,000 shares be issued to Kent Toys in a paid-out value of $0.05 each, a total value of $125,000. By the same resolution, Petry was appointed a director of Torvalon. The agreement of 4 July 1991 referred to in this resolution is not in the record.
In a press release dated the same day, it was said that Torvalon had acquired a licence to all rights to graphic characters known as "Moodie" and "Taste Buddy" from Kent Toys and at the same time, all rights to the U.S. trademark for a game called "Lottery". The press release went on to say that the Moodie character had been licensed in the past to Daiwa Securities of Tokyo and had been test marketed by Kellogg's in connection with their Rice Crispies brand of breakfast cereal.
The press release also stated that 2,500,000 common shares had been issued in consideration of a ten-year renewable license although no nominal value for the shares was stated. It was said that the shares were "subject to resale restrictions for 2 years", and that to maintain the license, Torvalon was to pay a 5% royalty and was "to have raised $250,000 U.S. within 6 months to further develop the license rights".
By a direction of 9 July 1991, one share certificate in the amount of 2,500,000 shares was directed to be issued to Kent Toys on 9 July 1991 (Certificate C922). The evidence is that no restriction on resale was endorsed on the certificate which was issued and directed to be sent to Kent Toys in Kent, Ohio.
On 24 July 1991, a Material Change Report under Section 74(2) of the Act was filed at the Commission reporting the material change of 4 July 1991 and attaching a copy of the press release. In this document, it is stated that "the acquisition of the Moodie and Taste Buddy licences will allow management to redirect the reporting issuers efforts away from the kitchen cupboard business towards the toy and novelty business".
It might be noted here that the financial statements as at 30 June 1991 record that any connection with the "kitchen cupboard business" had been terminated as at 25 June 1991 when the shares of the wholly-owned subsidiary which was in that business had been transferred, effective 22 July 1991, for a total consideration of $10.00 U.S. One might also think that the press release could be more forthcoming if it had said when and for how long the license to Daiwa was in effect and what the results were of the test marketing referred to. Certainly, ex post facto, the acquisition was not a brilliant stroke of business since no revenue was recorded by Torvalon in the financial year ended 30 June 1992 while its expenses totalled $235,142.
It is submitted by Staff that a prospectus was required and that the effect of Section 72(1)(l) and Section 28 of the Regulation only permits an exemption where the value of the assets purchased is not less than $150,000. A prospectus was acquired for this first acquisition of a "business opportunity" by the new Torvalon and no prospectus was filed.
No submissions are made against Erikson with respect to this transaction except that he "was apparently the escrow agent for the shares issued in escrow pursuant to the transaction" but since the agreement is not before us, we make no finding in connection with this submission.
C. Issuance of 1,000,000 Shares to Stall Universal Inc.
By resolution dated 16 July 1991, the directors (Bennett, Madeiros, Rooney, and Petry) authorized the President "to execute the agreement with Stall Universal Inc. to acquire 949032 Ontario Inc." ("949032"). Under the same resolution, 1,000,000 common shares of Torvalon were allotted and issued to Stall Universal Inc. ("Stall Universal") for the shares of 949032 at a paid-up value of $0.10 each. The directors delegated to Bennett "the decision as to whether or not the valuation report respecting the Moodie inventory and toy assets of 949032 is acceptable to the corporation".
The agreement referred to is not on the record, nor are there any particulars of any kind regarding Stall Universal. We infer, however, that Stall Universal was somehow connected to Petry and that the transaction was initiated between Petry and Gary Salter because, the inventory acquired consisted of toys and novelty items exploiting the Moodie copyright which had been licensed on 4 July 1991 from Kent Toys and the valuation report referred to was sent by Petry to Gary Salter as early as 29 April 1991 when that license was being negotiated.
Moreover, 949032 was incorporated by Erikson & Associates on 8 July 1991 and Erikson served as its first director. No explanation was offered as to how 949032 came to own the inventory nor as to how Stall Universal came to own 949032.
A press release dated 19 July 1991 and a continuous disclosure report dated 20 August 1991 was filed with the Commission on 23 August 1991. The press release and the report refer to the fact that 949032 owned an inventory of toys, decals, and other novelty items exploiting the "Moodie" copyright recently licensed from Kent Toys and states that the inventory is the subject of a valuation report "indicating that the manufacturing cost of same is over $300,000 U.S." and that it was acquired for 1,000,000 common shares issued from treasury. No paid-up value for the shares is indicated in the press release or the report.
The resolution of the directors indicates a value of $100,000. This is consistent with the notes to the financial statements of Torvalon as at 30 June 1991 where it is stated that the company issued 1,000,000 common shares from treasury with a paid-up value of $100,000 for all outstanding shares of 949032. By the time of the financial statements as at 30 June 1992, however, it is stated that the purchase of 949032 was acquired by the issuance of 1,000,000 shares for a valuation of $364,208. It is also stated that inventory is valued at the lower of cost and net realizable value.
The latter statement is hard to accept since no revenue was recorded by Torvalon in 1992 and therefore no value was realized in nearly a year of "exploitation". It is stated in the 1992 financial statements that the agreement with respect to this acquisition was dated 15 July 1991 and that the common shares are valued at $364,208 Cdn. "in accordance with the valuation report obtained respecting the inventory held" by 949032.
While under the resolution, the valuation report must have been satisfactory to Bennett, it was submitted by Staff that it was insufficient to establish the value of the assets acquired for the issuance of the shares and it is further submitted that the actual valuation should be the value placed on the shares issued at the time they were issued, namely, $100,000. It is submitted that on its face the valuation is unsatisfactory in that it was performed by an accountant based on inventory sheets provided to him by Petry. There is no indication that the valuator actually viewed the inventory; further some of the inventory was valued on the basis of the suggested retail value and dealer value from the "the Moodie's catalogue"; certain items were valued in accordance with information provided by Petry, and; some items were valued by estimating what similar products would cost to produce.
We are satisfied on the evidence before us that a valuation of $100,000 as indicated by the paid up value placed on the shares issued in exchange for the shares of the corporation said to own the inventory is the most realistic value to be attributed to the assets acquired.
It is submitted by Staff that the issuance being from treasury is a distribution requiring a prospectus unless an exemption is found and that under Sections 72(1)(l), and 72(1)(j), and Section 28 of the Regulation, no exemption is available where the value of the assets acquired is less than $150,000. Thus, a prospectus was required and not filed.
It is further submitted that Erikson was fully knowledgeable concerning the transaction. He incorporated 949032 on 8 July 1991 and was its first director. He prepared the press releases and the Notice of Continuous Disclosure. He also forwarded the direction to issue the shares to the transfer agent and ten share certificates for $100,000 shares each in the name of Stall Universal were delivered to him by the transfer agent on 16 July 1991 (Certificates 00924 to 00933).
It is submitted on behalf of Erikson that while no insider report or Section 101 report were filed by Petry, this should be regarded as an oversight since a press release and a material change report were filed by Torvalon. In addition, it was submitted that the exemption for a promoter acquiring 10% or more of the outstanding shares excuses the absence of a prospectus.
It is not clear to us how Petry or Kent Toys instantly became a promoter of Torvalon on the completion of this agreement and we hold that a prospectus was required. In our view, if exemptions are to be relied upon when business opportunities are acquired by a reporting issuer, the provision of the Act and Regulations must be strictly complied with.
D. Issuance of 900,000 Shares Under Options
The board of directors (Madeiros, Bennett, Rooney, and Petry) by resolution dated 15 July 1991 resolved that Christine Erikson be granted a further option to acquire 100,000 common shares from treasury at $0.05 each. According to Insider Trading Reports, she exercised that option the next day, 16 July 1991. Five certificates for 20,000 shares each were issued in her name on the same day (Certificates 215 to 219). On 23 July 1991, she resigned as an officer of Torvalon.
By resolution dated 9 July 1991, the directors (Madeiros, Bennett, Rooney, and Petry) had reserved 800,000 common shares for stock options under a Stock Option Plan said to have been approved at a shareholders meeting of 30 June 1989 in favour of directors, officers, employees, and consultants of the corporation. The resolution granted options for 200,000 shares each to Bennett, Madeiros, Petry, and Kellie Bailey. The first three are identified as directors and Kellie Bailey as an employee. The options granted were exercisable at $0.10 per share until 9 July 1992. Bennett, Madeiros, Petry, and Kellie Bailey exercised their options on 16 July 1991 when each were issued ten certificates for 20,000 shares: Madeiros, Certificates 220 to 229; Petry, Certificates 230 to 239; Bennett, Certificates 240 to 249; K. Bailey, Certificates 250 to 259.
By a letter to the Commission dated 9 July 1991, Erikson & Associates reported the granting of the options for 200,000 shares each to Madeiros, Petry, Bennett, and Bailey, totalling 800,000 "directors and employees stock options exercisable at $0.10 per share until July 9, 1992". No report was filed of the option granted to Christine Erikson.
At the time of the exercise of the options on 16 July 1991, Bennett and Madeiros were officers and directors of Torvalon, Petry was a director, and Christine Erikson was Assistant Secretary-Treasurer but would resign 23 July 1991.
It is submitted by Staff that Christine Erikson never played any role in Torvalon's operations other than to serve as a figure head and to sign documents from time to time. It is also submitted by Staff that Madeiros was a pure nominee director and acted in that capacity as a nominee for Gary Salter.
The shares being issued from treasury required a prospectus unless an exemption was available under Section 72(1)(n) of the Act allowing issuance of securities to employees or employees of an affiliate. It is submitted that the exemption is not available or, alternatively, reliance on the exemption would be abusive in the circumstances since all of them, particularly Christine Erikson, were mere nominees and not officers or employees in any real sense.
It is further submitted that Erikson was thoroughly involved in and knowledgeable of these transactions and that while a letter was filed regarding the options granted to Bennett, Madeiros, Petry, and Bailey, no mention was made of the earlier option nor this option granted to Christine Erikson. For this reason, it is submitted that Erikson knew or ought to have known that the 900,000 shares issued on 16 July 1991 were issued to persons who were either nominees of Gary Salter or members of the Salter control block and since this constituted an additional issue of more than 2% of the outstanding shares, a Section 101(2) Report was required as well as a press release. No such documents were filed.
It is submitted on behalf of the Eriksons that while no notification was given to the Commission of the exercise of options by an employee, this should be regarded as an oversight and that no Section 101 report was required since Christine Erikson did not (individually or in conjunction with others) control more than 10% of the shares of Torvalon. We have already rejected the latter submission.
It was also submitted that no Section 101 reports were required of Madeiros and Bailey and that the failure of Bennett and Petry to file such reports should be regarded as an oversight. For reasons expressed elsewhere, we are of the view that, at least Madeiros and Bennett, were members of a control group acting in concert and their failure to file Section 101 reports was a breach of the Act.
E. Additional Submission
A submission was made by Staff that a transaction made in September 1991 by Gary Salter through 921159 disposing of 200,000 Torvalon shares directly to a broker dealer purportedly as a result of securities pledged as collateral for a debt was a trade by a control person and accordingly a prospectus was required unless an exemption could be found and that the exemption provided by Section 72(1)(e) was unavailable because the purpose of providing the collateral could in no way be said to be made for a debt made in good faith.
There is some force in this argument since the pledge agreement was dated 24 April 1991, long before 921159 owned any shares of Torvalon and, in addition, the debt in question amounted to $52,500 while the market price of Torvalon shares in September 1991 traded at a low of $0.90 per share and a high of $1.65 per share and so the public sale of these shares would give proceeds ranging from $180,000 to $330,000.
We need make no findings with respect to this submission, but record it here to demonstrate the length to which some of the participants in the scheme which was developed would go in order to trade shares in the market.
F. Summary of Shares of Torvalon Corp. Acquired and Issued From Treasury as at June 1991 to July 1991
We have summarized the share acquisition and issue of shares of Torvalon in Table B in the Appendix to this decision.
As noted above, 4,868,145 shares, 87% of the outstanding shares, were acquired 25 June 1991 from the Jedig group by Inculo (Madeiros), Texas B.J. (Bennett), 918211 (E. Salter), and 916574 (Rooney) for $0.0287 per share in the form of a $25,000 cash payment and a promissory note for $115,000 payable 19 July 1991. The shares were to be held in escrow until the note was paid.
By 16 July 1991, certificates for an additional 5,822,000 shares had been issued as follows: 1,522,000 at $0.05 to 921159 (G. Salter) for debt; 200,000 at $0.05 acquired by Christine Erikson on options granted 26 June and 9 July; 2,500,000 at $0.05 which carried resale restrictions for two years to Kent Toys (R. Petry) for a license to certain toys; 1,000,000 to Stall Universal at $0.10 for all the shares of 949032 said to own an inventory of toys (on the date these shares were authorized and issued there had been no transactions in the market in Torvalon shares, but a bid price of $0.20 and ask price of $0.40 is reflected in the record); and 200,000 shares at $0.10 had been acquired by each of Bennett, Madeiros, K. Bailey, and Petry on options granted 9 July.
Cash received by Torvalon for the shares issued totalled $70,000.
As a result of these issues, in less than one month outstanding shares increased from 5,594,295 to 11,416,295 - more than 100%. While Kent Toys and Stall Universal held 3,500,000 of the new issue, the Salter Group now held an additional 2,322,000 shares or a total of 63% of the outstanding shares.
As will appear from the analysis of trading in Part VII, by the year end 1991, 3,525,000 shares were sold from the accounts at Levesque in the names of corporations who were either Salter nominees or members of a control group. The first sale on the record from these shares was a sale of 925,000 at $0.25 made on 18 July for settlement 25 July for total proceeds to 918211 (E. Salter), net of commission, of $222,000.
Again, as in the case of Belteco, there were a number of violations of the requirements of the Act which apply to the distribution of treasury shares of a reporting issuer. For the reasons expressed earlier, we believe that exact compliance with the Act should be strictly enforced in the circumstances of this case.
VI BELTECO - ANALYSIS OF SALE OF SHARES ISSUED FROM TREASURY TO DEALERS
In Ex. 88, T.12, the Trading Analysis in Belteco shares between the accounts at Levesque and the two dealers is set out using the dates appearing in Insider Trading Reports. Following the conclusion of the arguments, we did a further analysis based on the settlement dates for each of the relevant transactions, as shown in the copies of Levesque monthly statements contained in Exhibit 88 for each of the parties. This analysis is shown in Table C of the Appendix to this decision.
There are a number of glaring facts which this analysis disclose.
Firstly, of the 2,069,299 shares issued from treasury and delivered to accounts at Levesque, 2,054,000 shares were transferred to two dealer accounts at Levesque as to 1,027,000 shares each (Columns 8, 12 and 13).
Second, the large differences between recorded dates of sales (Column 5) and the settlement dates (Column 6) as well as the identity of the dates of settlement and payment out of proceeds (Column 11) make it very clear that either the parties involved were acting in concert as a group in accordance with a carefully articulated plan or all of this trading was done on the instructions of one person or done by those nominally involved as pure nominees in accordance with instructions of one person.
Third, the persons involved either personally or through private corporations (Jepead (P. Rooney); W.M. & J.M. (E. Kirkwood) and 918211 (E. Salter)) either received or directed the payment out of net proceeds of $969,873 over the nominal cost of the shares issued from treasury in the period from January to 23 December 1991. It should be noted that in this analysis, we have only accounted for 2,069,299 of the 2,114,299 shares issued from treasury free of escrow in the period under review. The discrepancy of 45,000 shares is explained because only 30,000 of the 75,000 shares issued to Christine Erikson on 18 February 1991 were delivered to the account of 921159 (G. Salter) on 4 March 1991; 4,000 of these shares were transferred as to 2,000 to each of the dealers as the first trade in the over the counter market in March. In addition, 11,000 shares were transferred to a dealer to make up part of a 600,000 share trade split equally between the dealers by seven trades made in early May, all to close on 7 June 1991. There is no explanation on the record as to what happened to the other 45,000 shares issued to Christine Erikson.
From this analysis and the testimony of those who gave evidence, we conclude that Christine Erikson, Bennett, Madeiros, Wilshire, Hoesslin, Rooney, and Kirkwood, were either acting as pure nominees of Gary Salter or acting in concert with him in a deliberate scheme to sell shares in Belteco at ever increasing prices not justified by any business development while taking every possible step to keep important information as to the risky nature of the enterprise from the public record. In doing so, several breaches of the requirements of the Act occurred as set out above.
In addition from this analysis, we conclude (notwithstanding the able argument of Mr. Mann that we should be careful not to exercise hindsight and impose on Mitchell knowledge gained after an ex post facto detailed review of the record) that it would have been impossible for a sales representative of Mr. Mitchell's experience not to have concluded that he was representing a group acting on direction of one person or else acting in concert. This is particularly true when he knew that all of the persons directing the accounts for which he was responsible were referred to him by one person, Gary Salter. Having come to such a conclusion, he should have, at the very least, made extensive inquiries as to the propriety of the trading taking place. He failed to do so.
There was some direct evidence that the trades to the dealers were pre-arranged and Mitchell himself admitted that on at least some of the trades the seller advised him that the dealers "would likely buy the stock if (he) gave them a call". If this did not ring a loud bell for Mitchell, the fact that the shares being sold ended up divided virtually equally between the two dealer accounts at Levesque should have caused a great gong to ring.
As a result, whether he conducted trades without authorization of clients, failed to maintain accurate records or conducted discretionary trades improperly as alleged, in our view he did acquiesce in and facilitate the distribution of the shares of Belteco and Torvalon in circumstances where a prospectus was required by the Act and none of the exemptions were available. It was submitted that had he made inquiries, he would not have received truthful answers. In our view, however, the pattern of trading of which he became aware would have demonstrated the falsity of such answers.
While Mitchell was only an accommodation party to the trading which took place, we believe that his actions or failure to act are deserving of censure.
Some appreciation of the impact of the scheme in this case upon members of the public who purchased shares from the two broker dealers involved can be gained by a review of the prices and trading volumes in the shares of Belteco on CDN which are set out in Exhibit 88, Tab 17 compared to the trades by the participants as shown in Table C.
The trading opened in March 1991 when 4,000 shares acquired at $0.10 per share by Christine Erikson were sold by Gary Salter at $0.27. By the 7 June 1991, a total of 954,000 shares acquired at a nominal cost of $0.05 to $0.10 had been transferred as to one half each to the two broker dealers at prices ranging between $0.25 and $0.31.
Prices for the shares in the market reached a high of $1.00 per share in May and closed that month at $1.00. Prices then increased steadily from June to October reaching a high of $2.00 per share in July and closing at the end of October at $1.70 per share. In June and July, the broker dealers had acquired another 1,200,000 shares which had cost the participants between $0.05 and $.010 a share for prices ranging from $0.70 to $1.00 per share. After October 1991, the prices for the shares in the market declined precipitously to close at $0.80 per share by the end of December 1991.
Thereafter the price of shares were maintained in the market place at about $0.70 to the end of May 1992 and thereafter prices again plunged precipitously on very low volumes to close at $0.03 per share on 31 December 1992.
According to our analysis, the participants realized net proceeds on the transfer of shares of Belteco to the broker dealers of $969,873.
VII TORVALON - ANALYSIS OF SALE OF SHARES ISSUED FROM TREASURY TO DEALERS TO 31 DECEMBER 1991
As is the case in the Belteco trading analysis, Ex.89, T8, summarizes the trading in Torvalon shares using the dates appearing in the Insider Trading Reports. Again in this case, we have made a further analysis based on the settlement dates for each of the relevant transactions as shown in the copies of Levesque monthly statements contained in Exhibit 89. This analysis is shown in Table D.
The analysis is more difficult because Gary Salter and 916574 (Rooney) carried out substantial trading in the market in addition to the transfer of shares directly to the two dealer accounts at Levesque. In Table C, we have summarized only the trades in shares issued from treasury between members of the Salter group and the two dealers chronologically by settlement dates.
In addition, the Levesque accounts in Ex.89, end with the accounts for December 1991 so that although 5,969,767 freely tradeable shares were acquired or issued from treasury by the end of 1991, only 3,525,000 shares were transferred to the dealer accounts by that time. A substantial number of shares were still in the hands of members of the Salter group at 31 December 1991.
The analysis in Table C, however, also lead us to the conclusion that 918211 (E. Salter), 916574 (P. Rooney), Texas B.J. (J. Bennett), and Inculo (A. Madeiros), were either acting as pure nominees of Gary Salter or acting in concert with him in a deliberate scheme to sell shares in Torvalon at ever increasing prices not justified by any business development while taking every possible step to keep important information as to the risky nature of the enterprise from the public record. In doing so, several breaches of the requirements of the Act occurred as set out above.
The analysis in Table D reveals:
Firstly, of the 10,690,145 shares acquired or issued from treasury by 16 July 1991 (Table B above), 3,572,225 shares had been delivered to accounts at Levesque by 13 November 1991. Of these, 3,525,000 shares had been transferred to the accounts of the two dealers at Levesque in nearly identical numbers at ever increasing prices (Columns 4, 8, 12, and 13).
Second, the striking gap between recorded dates of sale (column 5) and the settlement dates (Column 6) make it clear that either the parties involved were acting in concert as a group in accordance with a carefully articulated plan or all of this trading was done on the instructions of one person or done by those involved as pure nominees in accordance with the instructions of one person.
Third, the persons involved either personally or through private corporations (918211 (E. Salter); 916574 (P. Rooney); Gary Salter and 921159 (Gary Salter); Texas B.J. (J. Bennett); and Inculo (A. Madeiros)) received or directed the payment out of net proceeds of $2,052,490 over the nominal cost of the shares acquired or issued from treasury over the period from 25 January to 16 July 1991. It should be noted that there is no information on the record as to the disposition of certificates for 100,000 shares issued to Christine Erikson 9 July and certificates for 100,000 issued to her 16 July. Gary Salter did, however, deliver 100,000 shares, 17 July and 100,000 shares 25 July to his personal account at Levesque as distinct from his account for 921159 (G. Salter). After a great deal of trading in this account the balance of 109,170 shares was transferred to another account at Levesque's in the name of Gary Salter in trust for 921159 (Gary Salter) on 27 September 1991.
Again from this analysis, we conclude that it would have been impossible for a sales representative of Mr. Mitchell's experience not to have concluded that he was representing a group acting on the direction of one person or else acting in concert. Having come to such a conclusion, he should have, at the very least, made extensive inquiries as to the propriety of the trading taking place. He failed to do so. For the same reasons expressed in Part VI, we believe that Mitchell's conduct in the trading of Torvalon shares is deserving of censure.
Again, some appreciation for the impact of this scheme on members of the public who purchased shares from the two broker dealers involved can be gained by a review of the prices and trading volume of Torvalon shares in the market as summarized in Exhibit 89, Tab 11, compared to the trades by the participants as shown in Table D.
The prices for Torvalon shares in the market place rose from $0.10 to a high of $0.75 in July 1991. During July, 918211 (E. Salter) transferred 925,000 shares acquired at a nominal cost of $0.0287 to the two broker dealers at $0.25 per share.
During the period to the end of December 1991, a further 2,400,000 shares acquired at nominal cost between $0.0287 and $0.10 per share were transferred to the broker dealers at prices ranging from a low of $0.50 to a high of $1.45 per share.
The prices for Torvalon shares reached a high of $1.95 in May of 1992 and continued trading in substantial volumes ranging in price from $0.50 to $1.85 per share, closing at $1.35 per share in August 1992.
Volumes plunged thereafter at rapidly declining prices to close at $0.05 per share at the end of December 1992.
According to our analysis, the participants realized net proceeds on the transfer of shares of Torvalon to the broker dealers of $2,052,490.
VIII CONCLUSION
In the course of preparing the reasons for our decision, we have had to review and analyze the facts and evidence in minute detail including a careful integration of information set out in various exhibits and in the process we have recast much of the material in a form different from that presented to us by counsel. The result of this analysis is set out in Parts VI and VII and summarized in Tabular form in the Appendix.. Having done this, we consider that counsel should be given an opportunity to comment on our factual analysis. We considered issuing the accompanying Appendix in draft form and requesting counsel to re-attend to address us on any matters relating to the factual analysis or presentation. We decided against doing so but when counsel re-attend to address us on the consequences of our decision we are prepared to hear any reasonable representations arising from our analysis or presentation of the facts.
We noted earlier that Erikson's counsel after the evidence was completed stated that he was not pursuing and was withdrawing the systemic bias motion and the Erikson personal bias motion. We accept that position but in doing so we record that the motion has hung over the whole of these proceedings up until August 1998 and throughout we treated it with great care. We note again that Erikson's affidavit filed in support of that motion is still on the public record. We wish to record that no evidence that we heard or that appears from the exhibits gives any credence to the allegations of bias put forward by Erikson. We trust that this finding will give Staff of the Commission a renewed degree of confidence in their ongoing work of administrating the Act and regulations.
In coming to the conclusions we have set out, we have been mindful of the many statements to which we were referred that we should act on nothing short of clear and convincing proof based upon cogent evidence accepted by the tribunal where potential disciplinary matters or where matters of personal reputation are involved.
We have already set out our conclusions regarding the part which Mitchell played in the matters before us.
As a result of our review of the voluminous documentary evidence and our consideration of the evidence, we have concluded that Christine Erikson was either a pure nominee or a member of a control group and that Erikson knowingly acquiesced in and facilitated the distribution of the common shares of Belteco and Torvalon where violations of the prospectus and reporting requirements of the Act occurred. The result has been a serious abuse of the capital market contrary to the public interest. We believe their conduct deserves censure.
Finally, if we are wrong in our findings that important violations of the Act and the Regulations have occurred, we find that on all the evidence before us what occurred in this case was manipulative, deceptive and unconscionably abusive of the capital markets and we would exercise our discretion under Section 127 of the Act in the absence of any breach of the Act to find that the public interest was involved, that what occurred was contrary to the public interest and thus sufficient to receive submissions as to what, if any, Order should be made within those permitted under Section 127. In this regard we rely on Re CTC Dealer Holdings et al. and Ontario Securities Commission et al. (1957) 59 OR (2d) 79 (DivCt) affirming (1997) 10 0SCB 857.
As we indicated at the conclusion of argument, we will reconvene the hearing at 10:00 am Wednesday, 21 October 1998 to receive submissions as to the consequences which should follow these conclusions and if desired further submissions on the applicability of the limitation period provisions of the Act.
September, 30th 1998.
"J. F. Howard" "G. P. H. Vernon"
IX APPENDIX TO DECISION AND REASONS 30 SEPTEMBER 1998
Table A Belteco - Summary of Shares Issued From Treasury at January 1, 1991 to April 30, 1992
Table B Torvalon - Summary of Shares Acquired and Issued From Treasury at June 1991 to July 1991
Table C Belteco - Analysis of Sale of Shares Issued From Treasury - Chronologically by Settlement Date
Table D Torvalon - Analysis of Sale of Shares Issued From Treasury - Chronologically by Settlement Date to 31 December 1991
TABLE A
BELTECO
SUMMARY OF SHARES ISSUED FROM TREASURY
AT JANUARY 1, 1991 TO APRIL 30, 1992
|
Ref. |
Date |
Issued To |
For |
@ | Market | Clear | Escrow | % | Total | |
| as at Jan 1, 1991 | Others
Krater 916567 (A. Madeiros) 918211 (E.Salter) 25% Jepead (Rooney) 37.5% WM&JM (Kirkwood 37.5% |
272,250
6,250 439,299 |
$22,964.95 | n/a
n/a $0.05 |
n/a | 272,250
6,250 439,299 |
37.9
0.9 61.2 |
717,799 | ||
| Ex. 119
T. 6 |
Jan. 17 | WND (Petry) | 350,000 | Toys | $0.05 | n/a | 350,000 | 38.8 | 1,067,799 | |
| Ex. 119
T. 8 |
Jan. 24 | E. Salter
A. Madeiros |
390,375
359,025 |
The Baptist Journal | $0.05 | n/a | 260,650
239,350 |
130,325
119,675 |
41.3 | 1,817,799 |
| Ex. 119
T. 7 |
Jan. 31 | Crystal | 750,000 | Golden Age Film Rights | $0.05 | n/a | 750,000 | 29.2 | 2,567,199 | |
| Ex. 119
T. 9 |
Feb. 1 | E. Salter
A. Madeiros but cumulative E. Salter A. Madeiros |
200,000
200,000 |
Subscription | $0.05 | n/a | 200,000
200,000 (460,650) (439,350) |
(130,325)
(119,675) |
6.7
6.7 (19.9) (18.8) |
2,967,799 |
| Ex. 119
T. 10 |
Feb. 12 | R. Florika
K. Hoesslin |
600,000
400,000 |
Bible Tapes
100% - 906851 |
$0.05 | n/a | 300,000
200,000 |
300,000
200,000 |
15.1
10.1 |
3,967,199 |
| Ex. 119
T. 11 |
Feb. 18
Mar. 7 |
C. Erikson
J. Bennett H. Wilshire |
75,000
100,000 100,000 |
Options | $0.10 | n/a | 75,000
100,000 100,000 |
1.9
2.4 2.4 |
4,042,199
4,242,199 |
|
| Ex. 119
T. 12 |
Dec. 23 | 918211 (E. Salter) | 232,342
shares 232,342 warrants |
Private
Placement $250,000 |
$1.076
(Agg.) |
O 1.00
H 1.70 L 0.80 C 0.80 |
232,342
no transfer to June 17/93 |
5.2
|
4,474,541 | |
| Ex. 119
T. 13 |
1992
Apr. 30 |
J. Bennett
E. Salter R. Petry |
200,000
200,000 23,000 |
Options | $0.70 | $0.70 | 200,000
200,000 23,000 |
4.1
4.1 0.5 |
4,897,541 |
TABLE C
BELTECO
Analysis of Sale of Shares Issued From Treasury to Dealers
Chronologically by Settlement Date
| Line | 1
Seller |
2
Issued |
3
Cost |
4
Certificate to Levesque |
5
Sale Date |
6
Settlement Date |
7
Price |
8
No. of Shares |
9
Proceeds |
10
Commis-sion |
11
Pay Date |
12
Dealer A |
13
Dealer B |
14
Reference |
15
Net Proceeds > Apparent Cost |
| 1
2 |
921159 (G.Salter) | To C. Erikson
30,000, 18 Feb |
$0.10
$0.10 |
4 Mar
4 Mar |
13 Mar
18 Mar |
22 Mar
25 Mar |
$0.27
$0.27 |
2,000
2,000 |
490
490 |
50
50 |
2,000 | 2,000 | Ex88,T2 | 290
290 |
|
| 3
4 |
John Bennett
Albertine Madeiros |
100,000, 18 Feb
239,350, 24 Jan |
$0.10
$0.05 |
27 Mar
27 Mar |
2 Apr
3 Apr |
9 Apr
9 Apr |
$0.31
$0.31 |
100,000
25,000 |
30,000
7,500 |
1,000
250 |
9 Apr
9 Apr |
62,500 | 62,500 | Ex88, T3
Ex88, T4 |
20,000
6,250 |
| 5 | Albertine Madeiros | 200,000, 1 Feb | $0.05 | 2 May | 9 Apr | 1 May | $0.31 | 125,000 | 37,500 | 1,250 | 1 May | 62,500 | 62,500 | Ex88, T4 | 31,250 |
| 6
7 8 9 10 11 12 |
Albertine Madeiros
921159 (G.Salter) Rodika Florika |
Lines 4&5
Line 1 300,000, 12 Feb |
$0.05
$0.05 $0.05 $0.10 $0.05 $0.05 $0.05 |
Lines 4&5
Line 1 |
3 May
3 May 3 May 3 May 6 May 6 May 6 May |
7 June
7 June 7 June 7 June 7 June 7 June 7 June |
$0.25
$0.26 $0.31 $0.31 $0.25 $0.26 $0.31 |
100,000
100,000 89,000 11,000 100,000 100,000 100,000 |
75,700
3,300 79,000 |
2,890
110 3,000 |
7 June
7 June 7 June |
300,000 | 300,000 | Ex88, T2
Ex88, T5 |
61,200
2,750 64,000 |
| 13 | Elaine Salter | 260,650, 24 Jan | $0.05 | 7 May | 11 June | 18 June | $0.70 | 100,000 | 69,000 | 1,000 | 18 June | Ex88, T6 | 64,000 | ||
| 14 | 918211 (E.Salter) | 109,825, 24 May | $0.05 | 10 June | 23 June | 25 June | $0.70 | 109,825 | 75,779.25 | 1,098 | 25 June | Ex88, T6 | 70,258 | ||
| 15
16 17 18 19 20 21 |
Elaine Salter
Harcourt Wilshire Kai Hoesslin Elaine Salter Jepead (P.Rooney) Albertine Madeiros WM&JM (E.Kirkwood) |
Line 13
200,000, 1 Feb 100,000, 7 Mar 200,000, 12 Feb Lines 13&11 164,737, 24 May Lines 4&5 164,737, 24 May |
$0.05
$0.10 $0.05 $0.05 $0.05 $0.05 $0.05 |
22 May
10 June 23 May 7&22 May 28 June Lines 4&5 13 June |
11 June
11 June 11 June 26 June 26 June 26 June 28 June |
15 July
15 July 15 July 15 July 15 July 15 July 15 July |
$0.70
$0.70 $0.70 $1.00 $1.00 $1.00 $1.00 |
290,175
100,000 200,000 70,250 164,700 350 164,700 |
200,220
69,000
(US59,968.71)
138,000 69,547.50 163.053 350 163,053
|
2,902
1,000 2,000 703 1,647 0 1,647 |
15 July
15 July 15 July 15 July 15 July 15 July 15 July |
600,000 | 600,000 | Ex88, T6
Ex88, T7 Ex88, T8 Ex88, T6 Ex88, T10 Ex88, T4 Ex88, T9 |
185,711
59,000 128,000 66,035 105,253 333 105,253 |
| 2,069,299 | 2,054,000 | $20,496 | 1,027,000 | 1,027,000 | $969,873 |
TABLE B
TORVALON CORP.
AT JUNE 1991 TO JULY 1991
|
Date Authorized 1991 |
Date Certificates
Issued 1991
|
Issued To |
Number of Shares |
For |
@ |
Market at Authorize d Date |
Clear |
Escrow |
Per cent |
Total Authorized |
|
June 25 Acquisition |
July 9 |
Inculo (Madeiros)
Texas BJ (Bennett) 918211 (E.Salter) 916574 (Rooney) Others held |
868,145 1,333,334 1,333,333 1,333,333 726,150 |
$25,000 Cash
Promissory Note $115,000 payable July 19 |
$0.0287 |
Nil |
When Promissory Note paid |
15.5 23.8 23.8 23.8 13.1 |
5,594,295 | |
|
June 26 June 26 |
July 9 July 9 |
921159 (G.Salter)
C. Erikson |
1,522,000 100,000 |
Debt $76,100
Option - $5,000 |
$0.05 $0.05 |
Nil |
21.1 1.4 |
7,216,295 | ||
|
July 4 |
July 9 |
Kent Toys (R.Petry) | 2,500,000 | License for Toys $125,000 |
$0.05 |
Nil |
Resale restrictions 2 years |
25.7 |
9,716,295 | |
|
July 15 |
July 16 |
C. Erikson | 100,000 | Option |
$0.05 |
Nil |
1.0 |
9,816,295 | ||
|
July 16 |
July 16 |
Stall Universal | 1,000,000 | 949032 for inventory |
$0.10 |
Bid 20 Ask 40 |
9.2 |
10,816,295 | ||
|
July 9 |
July 16 |
Bennett
Madeiros Petry |
200,000 200,000 200,000 |
Options |
$0.10 $0.10 $0.10 |
Nil |
1.8 1.8 1.8 |
11,416,295 |
TABLE D
TORVALON CORP.
Analysis of Sale of Shares Issued From Treasury to Dealers
Chronologically by Settlement Date to 31 December 1991
| Line | 1
Seller |
2
Issued |
3
Cost |
4
Certificate to Levesque |
5
Sale Date |
6
Settlement Date |
7
Price |
8
No. of Shares |
9
Proceeds |
10
Commis-sion |
11
Pay Date |
12
Dealer A |
13
Dealer B |
14
Reference |
15
Net Proceeds Treasury Shares > Apparent Cost |
| 1 | 918211
(E. Salter) |
1,333,333
25 June |
.0287 | 733,500
17 July 500,000 25 July |
18 July | 25 July | .25 | 925,000 | 222,000 | 9,250 | 25 July
223,000 |
475,000 | 450,000 | Ex.89, T3 | $193,452 |
| 2 | 916574
(P. Rooney) |
1,333,333
25 June |
.0287 | 549,000
17 July 200,000 21 Aug 300,000 21 Aug |
7 Aug
7 Aug |
23 Aug
5 Sept |
.50
.50 |
500,000
500,000 |
245,000
245,000 |
5,000
5,000 |
23 Aug
99,080 5 Sept 95,000 |
500,000 | 500,000 | Ex.89, T4 | $230,650
$230,650 |
| 3 | Gary Salter | 1,522,000
921159 (Salter) 26 June |
.05 | 100,000
17 July 100,000 25 July |
28 Aug | 5 Sept | 1.02 | 20,000 | 20,100 | 300 | 5,000 | 15,000 | Ex.89, T2 | $10,100 | |
| 4 | 916574
(P. Rooney) |
Line 2 | .0287 | Line 2 | 4 Sept | 25 Sept | 1.02 | 180,000 | 180,900 | 2,700 | 25 Sept
169,958 |
90,000 | 90,000 | Ex.89, T4 | $175,734 |
| 5 | 918211
(E. Salter) |
Line 1
99,725 ? |
308,333
@.0287 ? |
Line 1+
99,725 20 Sept |
19 Sept | 7 Oct | .90 | 400,000 | 354,000 | 6,000 | 7 Oct
333,072 |
400,000 | Ex.89, T3 | 308,333 Shares
$264,026 91,667 Shares ? |
|
| 6 | Texas B.J.
(J. Bennett) |
1,333,334
25 June |
.0287
.10 |
690,000
18 July 100,000 22 Aug |
23 Oct
31 Oct |
28 Oct
7 Nov |
1.08
1.20 |
400,000
90,000 |
426,000
106,650 |
6,000
1,350 |
28 Oct
426,000 7 Nov 106,650 |
400,000
90,000 |
Ex.89, T5 | $414,520
$104,067 |
|
| 7 | 916574
(P. Rooney) |
Lines 2&4 | .0287
.0287 |
Line 2
Line 2 |
31 Oct
1 Nov |
8 Nov
8 Nov |
1.20
1.20 |
10,000
100,000 |
11,850
118,500 |
150
1,500 |
8 Nov
112,500 |
10,000 | 100,000 | Ex.89, T4 | $11,563
$115,630 |
| 8 | Inculo
(A. Madeiros) |
868,145
25 June |
.0287 | 13 Nov
200,000 |
18 Nov | 9 Dec | 1.25 | 200,000 | 247,000 | 3,000 | 2 Dec
122,000 9 Dec 124,745 |
100,000 | 100,000 | Ex.89, T5 | $241,260 |
| 9 | 916574
(P. Rooney) |
Line 2 | .0287
? 156,667 |
Line 2 | 11 Dec
11 Dec |
18 Dec
13 Jan/92 |
1.45
1.45 |
100,000
100,000 |
143,500
143,500 |
1,500
1,500 |
US111,062 | 100,000 | 100,000 | Ex.89, T4 | 43,333 Shares
$160,838 156,667 Shares ? |
| 3,572,225 | 3,525,000 | $43,250 | 1,770,000 | 1,755,000 | 3,525,000 Shares
|