Settlements
ROBERT JOHN MCKENZIE [Sec. 161 & Settlement Agrmnt.]
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BCSECCOM #:
2001 BCSECCOM 493, 2001 BCSECCOM 494
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Document Type:
Sec. 161 & Settlement Agrmnt.
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Published Date:
2001-05-10
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Effective Date:
2001-05-08
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Details:
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2001 BCSECCOM 493
IN THE MATTER OF THE SECURITIES ACT
R.S.B.C. 1996, c. 418
AND
IN THE MATTER OF ROBERT JOHN MCKENZIE
Order under Section 161
[para 1]
1. WHEREAS a Settlement Agreement was executed by Robert John McKenzie (the "Respondent") and the Executive Director, a copy of which is attached hereto as Schedule "A" (the "Agreement");
[para 2]
2. NOW THEREFORE the Executive Director, considering that it would be in the public interest to do so, orders, BY CONSENT (the "Order"), that:
2.1 pursuant to section 161(1)(c) of the Act, the exemptions described in sections 44 to 47, 74, 75, 98 and 99 of the Act do not apply to the Respondent until the later of fifteen years from the date of the Order and the date the Order is revoked in writing by the Executive Director, in accordance with subsection 2.5 of the Order;
2.2 pursuant to section 161(1)(d) of the Act, the Respondent is prohibited from becoming or acting as a director or officer of any issuer, except for one private issuer which the Respondent intends to incorporate after the expiry of his conditional sentence for the sole purpose of conducting personal business matters, until the later of fifteen years from the date of the Order and the date the Order is revoked in writing by the Executive Director, in accordance with subsection 2.5;
2.3 pursuant to section 161(1)(d)(iii) of the Act, the Respondent is prohibited from engaging in any investor relations activities for any issuer until the later of fifteen years from the date of the Order and the date the Order is revoked in writing by the Executive Director, in accordance with subsection 2.5;
2.4 pursuant to section 161(1)(b) of the Act, the Respondent cease trading in any securities, other than under section 45(7) of the Act, until the later of fifteen years from the date of the Order and the date the Order is revoked in writing by the Executive Director, in accordance with subsection 2.5; and
2.5 the Order will be revoked in writing by the Executive Director, as soon as practicable after application by the Respondent, following the date that is the later of fifteen years from the date of the Order and the date the Respondent has provided full restitution to the Purchasers (as such term is defined in the Agreement).
[para 3]
DATED at Vancouver, British Columbia, on May 8, 2001.
Steve Wilson
Executive Director
2001 BCSECCOM 494
IN THE MATTER OF THE SECURITIES ACT
R.S.B.C. 1996, c. 418
AND
IN THE MATTER OF ROBERT JOHN McKENZIE
Settlement Agreement
[para 1]
1. The following settlement of issues has been reached between Robert John McKenzie. (the "Respondent" and the Executive Director.
Agreed Statement of Facts
[para 2]
2. As the basis for the orders and undertakings referred to below, the Respondent acknowledges the following facts as correct:
2.1 during the period of September 9, 1997 to December 31, 1997 (the "Material Period" the Respondent was a resident of British Columbia and the sole director and promoter of Hydro Pacific Technologies (US Inc. (the "Company", a company incorporated under the laws of the state of Nevada on September 9, 1997;
2.3 in order to effect the Distribution, the Respondent made a number of misrepresentations to the Purchasers, thereby perpetuating a fraud contrary to section 57(1(b of the Securities Act, R.S.B.C. 1996, c. 418 (the "Act";
2.4 the Distribution was effected without registration, without filing and obtaining a receipt for a prospectus and without an applicable exemption from the registration and prospectus requirements of the Act, contrary to sections 34(1 and 61(1 of the Act;
2.5 on November 16, 1999, Information Number 94571-02 was sworn by the RCMP under which the Respondent was charged with 11 counts of fraud, contrary to section 380(1 of the Criminal Code, R.S.C. 1985, c. C-46 (the "Criminal Code" and 11 counts of theft, contrary to section 334 of the Criminal Code (the "Criminal Proceedings", in relation to the Distribution;
2.6 on October 10, 2000 the Respondent was indicted in the Supreme Court of British Columbia on the following count:
2.6.1 that the Respondent did by deceit, falsehood or other fraudulent means defraud the Purchasers of monies of a value in excess of $5,000, contrary to section 380(1 of the Criminal Code;
2.8 prior to the outcome of the Criminal Proceedings, the Respondent entered into an Agreed Statement of Facts and Undertaking with the Executive Director of the British Columbia Securities Commission (the "Commission" dated September 2, 1999 under which the Respondent consented to an order that:
2.8.1 pursuant to section 161(1(c of the Act, the exemptions described in sections 44 to 47 [with the exception of subsection 45(7], 74,75, 98 and 99 of the Act do not apply to the Respondent;
2.8.2 pursuant to section 161(1(d of the Act, the Respondent is prohibited from engaging in investor relations; and
2.8.3 pursuant to section 161(1(d of the Act, the Respondent is prohibited from becoming or acting as a director or officer of any issuer until the outcome of the Criminal Proceedings;
2.9 on December 8, 2000, the Criminal Proceedings were concluded and the Respondent received a conditional sentence of two years less a day. The decision of Madam Justice Neilson of the Supreme Court of British Columbia imposed the following conditions on the Respondent:
2.9.1 not to buy or sell shares either directly or indirectly, except through a licensed and registered representative, for the duration of the sentence;
2.9.2 not to be a director of any company, society or organization, for the duration of the sentence;
2.9.3 not to use the name Hydro Pacific Technologies or any variant thereof, for the duration of the sentence;
2.9.4 not to promote or sell the technology which he promoted through the Company, for the duration of the sentence; and
2.9.5 partial restitution to the Purchasers in the amount of $10,000;
Mitigating Facts
[para 3]
3. The Executive Director has taken into account the following facts as factors mitigating the sanctions which would otherwise have applied in the public interest:
3.1 the conditional sentencing of the Respondent to two years less one day, as set out in paragraph 2.9 above;
3.2 the representation by the Respondent to the Executive Director that he accepts the findings of fact made by Madam Justice Neilson in connection with the Respondent's sentencing; and
3.3 the representation by the Respondent to the Executive Director that he will not appeal his sentence.
Order
[para 4]
4. The Respondent consents to an order by the Executive Director (the “Order” that:
4.1 pursuant to section 161(1(c of the Act, the exemptions described in sections 44 to 47, 74, 75, 98 and 99 of the Act do not apply to the Respondent until the later of fifteen years from the date of the Order and the date the Order is revoked in writing by the Executive Director, in accordance with subsection 4.5;
4.2 pursuant to section 161(1(d of the Act, the Respondent is prohibited from becoming or acting as a director or officer of any issuer, except for one private issuer which the Respondent intends to incorporate after the expiry of his conditional sentence for the sole purpose of conducting personal business matters, until the later of fifteen years from the date of the Order and the date the Order is revoked in writing by the Executive Director, in accordance with subsection 4.5;
4.3 pursuant to section 161(1(d(iii of the Act, the Respondent is prohibited from engaging in any investor relations activities for any issuer until the later of fifteen years from the date of the Order and the date the Order is revoked in writing by the Executive Director, in accordance with subsection 4.5;
4.4 pursuant to section 161(1(b of the Act, the Respondent cease trading in any securities, other than under section 45(7 of the Act, until the later of fifteen years from the date of the Order and the date the Order is revoked in writing by the Executive Director, in accordance with subsection 4.5; and
4.5 the Order will be revoked in writing by the Executive Director, as soon as practicable after application by the Respondent, following the date that is the later of fifteen years from the date of the Order and the date the Respondent has provided full restitution to the Purchasers.
Undertaking
[para 5]
5. The Respondent undertakes to comply with the requirements of the Act, the Securities Rules and all applicable Regulations, policies and guidelines, from the date of this agreement.
Waiver
[para 6]
6. The Respondent waives any right he may have, under the Act or otherwise, to a hearing, hearing and review, judicial review or appeal related to, in connection with, or incidental to this agreement and the Order.
DATED at Edmonton, Alberta, on April 30, 2001.
"Robert McKenzie"
Robert John Mckenzie
"Sheila M. Barr"
Witness Signature
Sheila M. Barr _____________
Witness Name (Please Print
#3-9524 114th Avenue
Address Edmonton, Alberta
Business Women________________
Occupation
DATED at Vancouver, British Columbia, on May 8, 2001.
Steve Wilson
Executive Director