Settlements

BRIAN MCCLAY [Sec. 161 & Agreed Stmt.]

BCSECCOM #:
Document Type:
Sec. 161 & Agreed Stmt.
Published Date:
2000-03-24
Effective Date:
2000-03-16
Details:


IN THE MATTER OF THE SECURITIES ACT
R.S.B.C. 1996, c. 418

AND

IN THE MATTER OF BRIAN MCCLAY
(the “Insider”)


Order Under Section 161


WHEREAS an Agreed Statement of Facts and Undertaking was executed by the Insider and the Executive Director, a copy of which is attached hereto as Schedule “A”;

NOW THEREFORE the Executive Director, considering that it would be in the public interest to do so, orders, BY CONSENT, that:

1. under section 161(1)(c) of the Securities Act, R.S.B.C. 1996, c. 418 (the “Act”), the exemptions described in any of sections 44 to 47, 74, 75, 98 and 99 do not apply to the Insider for a period of 3 years; and

2. under section 161(1)(d) of the Act, the Insider resign from any position he holds as a director or officer of any reporting issuer, and is prohibited from becoming or acting as a director or officer of any reporting issuer for a period ending on the later of:

      (a) the date the Insider satisfies his obligation to pay $5,000 to the British Columbia Securities Commission;

      (b) the date the Insider completes a course of study satisfactory to the Executive Director, concerning public companies and the duties and responsibilities of directors and officers of public companies; and

      (c) three years from the date of this order.

DATED at Vancouver, British Columbia, on March 16, 2000


Steve Wilson
Executive Director


Schedule “A”
IN THE MATTER OF THE SECURITIES ACT
R.S.B.C. 1996, c. 418

AND

IN THE MATTER OF BRIAN MCCLAY
(the “Insider”)


Agreed Statement of Facts and Undertaking


The following agreement has been reached between the Insider and the Executive Director:

1. As the basis for the order and undertakings set out below, the Insider acknowledges the following facts as correct:
      1.1 the Insider was, from January 1994 to December 1998 (the “Material Period”), a director and officer of Mosquito Consolidated Gold Mines Ltd. (the “Reporting Issuer”), a reporting issuer under the Securities Act, R.S.B.C. 1996, c. 418 (“the Act”);

      1.2 the Reporting Issuer has its head office in British Columbia and, during the Material Period, its securities were listed and posted for trading on the Vancouver Stock Exchange (the “VSE”);

      1.3 the Insider, during the Material Period, filed no insider reports but made changes in his direct or indirect beneficial ownership of, or control or direction over, securities of the Reporting Issuer as follows:
          1.3.1 held or acquired 1,259,800 options, of which 400,000 were exercised on September 28, 1995, 197,300 expired on October 1, 1997;

          1.3.2 acquired 166,666 warrants, which expired unexercised on June 7, 1998;

          1.3.3 acquired 166,666 common shares from treasury; and

          1.3.4 acquired or disposed of approximately 1,351,490 common shares through the facilities of the Vancouver Stock Exchange (collectively, the “Transactions”);
              and failed to file insider reports in respect of the Transactions as required under section 87 of the Act;

      1.4 the Transactions consisted of a total of 247 transactions during 44 months of the Material Period (the “44-Month Period”);

      1.5 the Transactions represented approximately 7.65% of the trading on the VSE in shares of the Reporting Issuer in the 44-Month Period, and approximately $546,000 in value;

      1.6 in each of 18 months during the 44-Month Period, the Transactions in the month represented 10% or more of the trading in shares in the Reporting Issuer on the VSE and in each of 11months represented 15% to 28% of the trading;

      1.7 there was significant trading in shares in the Reporting Issuer during the 44-Month Period, totaling over 17 million shares;

      1.8 there was significant fluctuation in the prices at which shares in the Reporting Issuer traded on the VSE in each month during the 44 Month Period, exceeding 20% (the spread as a percentage of the low price); in 29 of those months the fluctuation was greater than or equal to 50% and in four months was 100% or more;

      1.9 a cease trade order under section 164 of the Act was issued against the Insider on January 5, 1999 (the “Cease Trade Order”) for his failure to file insider reports in respect of the Transactions; and

      1.10 the Cease Trade Order was revoked on March 30, 1999, as a result of the Insider filing insider reports in respect of the Transactions.

2. The Insider has paid the applicable late filing fees in the amount of $2,200.

3. In respect of the Insider’s failure to disclose the Transactions in compliance with section 87 of the Act, the Insider consents to an order of the Executive Director (the “Order”) that:
      3.1 under section 161(1)(c) of the Act, the exemptions described in any of sections 44 to 47, 74, 75, 98 and 99 do not apply to the Insider for a period of 3 years; and

      3.2 under section 161(1)(d) of the Act, the Insider resign from any position he holds as a director or officer of any reporting issuer, and is prohibited from becoming or acting as a director or officer of any reporting issuer for a period ending on the later of:
          3.2.1 the date the Insider satisfies his obligation described in paragraph 4 below;

          3.2.2 the date the Insider completes a course of study satisfactory to the Executive Director concerning public companies and the duties and responsibilities of directors and officers of public companies; and

          3.2.3 3 years from the date of the Order.

4. The insider undertakes to pay $5,000 to the British Columbia Securities Commission, including $2,500 as a penalty and $2,500 for costs, in accordance with the terms set out in a Promissory Note, executed by the Insider in favour of the British Columbia Securities Commission.

5. The Insider undertakes to comply with the provisions of the Act and the Securities Rules, B.C. Reg. 194/97 from the date of this agreement.

6. The Insider 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 Vancouver, British Columbia on February 20, 2000.

“Diana Donati” )
Witness Signature )
)
Diana Donati )
Witness Name (Please Print) ) “Brian McClay”
) Brian McClay
325 E 22 Street, N. Van. BC )
Address )

DATED at Vancouver, British Columbia, on March 16, 2000



Steve Wilson
Executive Director
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