Application by an issuer for a revocation of a cease trade order issued by the Commission -- cease trade order issued because the issuer failed to file certain continuous disclosure materials required by Ontario securities law -- defaults subsequently remedied by bringing continuous disclosure filings up-to-date -- cease trade order revoked.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., s. 144.
National Policy 11-207 Failure-to-File Cease Trade Orders and Revocations in Multiple Jurisdictions.
May 21, 2021
Under the securities legislation of Ontario (the Legislation)
1. BitRush Corp. (the "Issuer") is subject to a failure-to-file cease trade order (the "FFCTO") issued by the Ontario Securities Commission (the "Principal Regulator") dated December 2, 2016.
2. The Issuer has applied to the Principal Regulator under National Policy 11-207 Failure-to-File Cease Trade Orders and Revocations in Multiple Jurisdictions ("NP 11-207") for an order revoking the FFCTO.
Terms defined in National Instrument 14-101 Definitions or in NP 11-207 have the same meaning if used in this order, unless otherwise defined.
3. This decision is based on the following facts represented by the Issuer.
a. The Issuer is a corporation amalgamated under the law of the Province of Ontario effective on January 21, 1999.
b. The Issuer's head office and registered office is located at 77 King Street West, Suite 2905, Toronto, Ontario M5K 1H1, Canada.
c. The Issuer is a reporting issuer in the provinces of Ontario and British Columbia.
d. The Issuer's authorized capital consists of an unlimited number of (i) common shares ("Common Shares"), of which 89,809,234 Common Shares are currently issued and outstanding, and (ii) Class A non-voting Preferred Shares and Class A non-voting, non-cumulative Preferred Shares, none of which are issued and outstanding.
e. The Common Shares are listed for trading on the Canadian Securities Exchange under the trading symbol "BRH", but trading in the Common Shares has remained suspended since December 2, 2016 upon and as a result of the issuance of the FFCTO.
f. The FFCTO was issued due to the failure of the Issuer to file its certification of the financial information filings for the period ended September 30, 2016 as required by National Instrument 52-109 -- Certification of Disclosure in Issuer's Annual and Interim Filings ("NI 52-109").
g. Since the issuance of the FFCTO, the Issuer also failed to file, within the timeframe stipulated by applicable legislation:
(i) audited annual financial statements for each of the years ended December 31, 2016, 2017, 2018 and 2019 and the related management's discussion and analysis;
(ii) unaudited financial statements for each of the quarterly periods ended March 31, June 30 and September 31, 2017, 2018, 2019 and 2020 and the related management's discussion and analysis; and
(iii) all certifications by the Chief Executive Officer and the Chief Financial Officer of the Issuer with respect to the Issuer's annual and quarterly filings noted above as required by NI 52-109.
h. The Issuer has now filed with the Principal Regulator its audited financial statements for each of the years ended December 31, 2016, 2017, 2018, 2019 and 2020, the related management's discussion and analysis, together with the required certifications.
i. The Issuer is: (i) up-to-date with all of its continuous disclosure obligations; (ii) not in default of any of its obligations under the FCCTO; and (iii) not in default of any requirements under the Legislation or the rules and regulations made pursuant to the Legislation.
j. The Issuer suffered financial distress as a result of the actions and conduct of the Issuer's former Chief Executive Officer (the "former CEO") which conduct the Ontario Superior Court of Justice (the "SCJ") found to be in breach of the former CEO's fiduciary duties and to have caused the affairs of the Issuer to be conducted in a manner that was oppressive and prejudicial to, and unfairly disregarded, the Issuer and its shareholders, as further set out in the order of the SCJ dated June 29, 2018 (the "SCJ Order"). As a result of the costs of the court action (the "Legal Action") brought by the Issuer against the former CEO and others, the Issuer lacked the funds necessary to prepare, file, or deliver any outstanding and/or subsequent financial statements and other related continuous disclosure documents required by applicable securities legislation.
k. The Issuer applied for and was granted a partial revocation of the FFCTO on April 29, 2019 which permitted the Issuer to complete the Private Placement, the Mandated Issuances and the Shares-for-Debt Issuances (as such terms are defined below).
l. In accordance with such partial revocation of the FFCTO, the Issuer completed (i) a private placement to raise funds for the principal purpose of seeking a full revocation of the FFCTO (the "Private Placement") resulting in the issuance of 2,889,260 units (each, a "Unit") comprising one (1) Common Share and one Common Share purchase warrant, for a subscription price equal to $0.05 per Unit, for gross proceeds of $144,463 to arm's length investors; (ii) the issuance of 10,356,910 Common Shares to certain parties as mandated by the SCJ Order (the "Mandated Issuances"); and (iii) the issuance of 18,500,000 Common Shares in exchange for, and in full satisfaction of, $925,000 of debts owed by the Issuer to certain parties, representing an exchange price of $0.05 per share (the "Shares-for-Debt Issuances").
m. The Issuer is not considering, nor is it involved in any discussions relating to a reverse take-over, merger, amalgamation or other form of combination or transaction similar to any of the foregoing.
n. The Issuer has given the Principal Regulator a written undertaking that
1. the Issuer will hold an annual meeting of shareholders within three months after the date on which the Cease Trade Order is revoked; and
2. the Issuer will not complete
(i) a restructuring transaction involving, directly or indirectly, an existing or proposed, material underlying business which is not located in Canada;
(ii) a reverse takeover with a reverse takeover acquirer that has a direct or indirect, existing or proposed, material underlying business which is not located in Canada; or
(iii) a significant acquisition involving, directly or indirectly, an existing or proposed, material underlying business which is not located in Canada; unless
(iv) the Issuer files a preliminary prospectus and a final prospectus with the Ontario Securities Commission and obtains receipts for the preliminary prospectus and the final prospectus from the Director under the Securities Act (Ontario);
(v) the Issuer files or delivers with the preliminary prospectus and the final prospectus the documents required by Part 9 of National Instrument 41-101 General Prospectus Requirements ("NI 41-101") including a completed personal information form and authorization in the form set out in Appendix A of NI 41-101 for each current and incoming director, executive officer and promoter of the Issuer; and
(vi) the preliminary prospectus and final prospectus contain the information required by applicable securities legislation, including the information required for a probable restructuring transaction, reverse takeover or significant acquisition (as applicable).
o. The Issuer has paid all outstanding activity, participation and late filing fees that are required to be paid.
p. The Issuer's profile on the System for Electronic Document Analysis and Retrieval (SEDAR) and the System for Electronic Disclosure by Insiders are up-to-date.
q. Since the issuance of the FFCTO, there have been no material changes in the business, operations or affairs of the Issuer which have not been disclosed by news release and/or material change report and filed on SEDAR.
r. Upon the revocation of the FFCTO, the Issuer will issue a news release announcing the revocation of the FFCTO and concurrently file the news release and a material change report on SEDAR, describing the undertaking referenced in 3(n) and outlining the Issuer's future plans.
4. The Principal Regulator is satisfied that the order to revoke the FFCTO meets the test set out in the Legislation for the Principal Regulator to make the decision.
5. The decision of the Principal Regulator under the Legislation is that the FFCTO is revoked.