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Emerita Gold Corp. -- s. 1(11)(b)
Headnote
Subsection 1(11)(b) -- Order that the issuer is a reporting issuer for the purposes of Ontario securities law -- Issuer is already a reporting issuer in Alberta and British Columbia -- Issuer's securities listed for trading on the TSX Venture Exchange -- Continuous disclosure requirements in Alberta and British Columbia substantially the same as those in Ontario -- Issuer has a significant connection to Ontario.
Statutes Cited
Securities Act, R.S.O. 1990, c. S.5, as am., s. 1(11)(b).
IN THE MATTER OF
THE SECURITIES ACT,
R.S.O. 1990, CHAPTER S.5, AS AMENDED
("the Act")
AND
IN THE MATTER OF
EMERITA GOLD CORP.
ORDER
(Clause 1(11)(b))
UPON the application of Emerita Gold Corp. (the "Applicant") to the Ontario Securities Commission (the "Commission") for an order pursuant to paragraph 1(11)(b) of the Act deeming the Applicant to be a reporting issuer for the purposes of Ontario securities law;
AND UPON considering the application and the recommendation of the staff of the Commission;
AND UPON the Applicant having represented to the Commission as follows:
1. The Applicant was incorporated on October 30, 2009 under the Business Corporations Act (British Columbia) under the name "0865140 B.C. Ltd." On February 2, 2010, the Applicant changed its name to "Fuller Capital Corp." and on January 8, 2013, the Applicant changed its name to "Emerita Gold Corp."
2. The Applicant's registered office is at Suite 800 -- 885 West Georgia Street, Vancouver, British Columbia, V6C 3H1. The Applicant's head office is located at 65 Queen Street West, Suite 805, Toronto, Ontario, M5H 2M5.
3. The authorized share capital of the Applicant consists of an unlimited number of Common Shares, of which a total of 35,812,079 Common Shares are issued and outstanding as of July 16, 2013.
4. The Corporation's common shares (the "Common Shares") have been listed and posted for trading on the TSX Venture Exchange ("TSXV") since October 13, 2010. The Common Shares commenced trading on the TSXV under the symbol "FUL.P", and since January 11, 2013 have traded under the symbol "EMO". The Common Shares are not traded on any other stock exchange or trading or quotation system.
5. The Applicant became a reporting issuer in Alberta and British Columbia and has been a reporting issuer under the Securities Act (Alberta (the "Alberta Act") and the Securities Act (British Columbia) (the "BC Act") since about August 13, 2010.
6. The Applicant is not currently a reporting issuer or the equivalent in any jurisdiction in Canada other than Alberta and British Columbia.
7. As of the date hereof, the Applicant is not on the lists of defaulting reporting issuers maintained by the Alberta Securities Commission or the British Columbia Securities Commission. The Applicant is not in default of any requirement of the Act, the Securities Act (Alberta) or the Securities Act (British Columbia).
8. The Applicant is not in default of any of the rules, regulations or policies of the TSXV.
9. Pursuant to the policies of the TSXV, a listed issuer, which is not otherwise a reporting issuer in Ontario, must assess whether it has a "significant connection to Ontario" (as defined in the policies of the TSXV) and upon becoming aware that it has a significant connection to Ontario, the issuer must promptly make a bona fide application to the Commission to be deemed a reporting issuer in Ontario.
10. Pursuant to the policies of the TSXV, the Applicant has undertaken an assessment to determine whether or not the Applicant has a "significant connection to Ontario" as defined in the policies of the TSXV. As a result of that assessment, the Applicant has determined that the Applicant has come to have a significant connection to Ontario in that as of August 20, 2013, 21,097,330 Common Shares representing 58.9% of the Applicant's issued and outstanding Common Shares are beneficially held directly or indirectly by residents of Ontario. In addition, the Corporation's mind and management is principally located in Ontario as its head office is located in Toronto, Ontario. The majority of the Corporation's officers are located in Ontario, and two of the Corporation's five directors are located in Ontario.
11. The continuous disclosure requirements of the Alberta Act and the BC Act are substantially the same as the continuous disclosure requirements under the Act.
12. The materials filed by the Applicant under the Alberta Act and the BC Act as a reporting issuer in the Provinces of Alberta and British Columbia are available on the System for Electronic Document Analysis and Retrieval.
13. Neither the Applicant, nor any of its officers, directors or, to the knowledge of the Applicant or its officers and directors, any shareholder holding sufficient securities of the Applicant to affect materially the control of the Applicant, has:
a. been the subject of any penalties or sanctions imposed by a court relating to Canadian securities legislation or by a Canadian securities regulatory authority,
b. entered into a settlement agreement with a Canadian securities regulatory authority, or
c. been subject to any other penalties or sanctions imposed by a court or regulatory body that would be likely to be considered important to a reasonable investor making an investment decision.
14. Neither the Applicant, nor any of its officers, directors nor, to the knowledge of the Applicant and its officers and directors, any shareholder holding sufficient securities of the Applicant to affect materially the control of the Applicant, is or has been subject to:
a. any known ongoing or concluded investigations by: (i) a Canadian securities regulatory authority, or (ii) a court or regulatory body, other than a Canadian securities regulatory authority, that would be likely to be considered important to a reasonable investor making an investment decision; or
b. any bankruptcy or insolvency proceedings, or other proceedings, arrangements or compromises with creditors, or the appointment of a receiver, receiver-manager or trustee, within the preceding 10 years.
15. None of the officers or directors of the Applicant nor, to the knowledge of the Applicant and its officers and directors, any shareholder holding sufficient securities of the Applicant to affect materially the control of the Applicant, is or has been at the time of such event an officer or director of any other issuer which is or has been subject to:
a. any cease trade or similar order, or order that denied access to any exemptions under Ontario securities law, for a period of more than 30 consecutive days, within the preceding 10 years; or
b. any bankruptcy or insolvency proceedings, or other proceedings, arrangements or compromises with creditors, or the appointment of a receiver, receiver-manager or trustee, within the preceding 10 years.
16. To the knowledge of the Applicant, Mr. Stan Bharti, together with a company in which Mr. Bharti is an insider, holds 4,764,706 common shares of the Applicant, which represents 13.3% of all issued and outstanding common shares of the Applicant.
Mr. Bharti was a director of Kansai Mining Corporation ("Kansai"), a company listed on the TSX Venture Exchange. On January 29, 2008, a cease trade order was issued against Kansai and each of the directors and officers, as a result of Kansai failing to file comparative financial statements for the year ended September 30, 2007 and management's discussion and analysis for the period ended September 30, 2007. On March 5, 2008, the cease trade order was revoked.
AND UPON the Commission being satisfied that to do so would not be prejudicial to the public interest;
IT IS HEREBY ORDERED pursuant to paragraph 1(11)(b) of the Act that the Applicant be deemed to be a reporting issuer for the purposes of Ontario securities law.
DATED at Toronto, this 18th day of September, 2013.
"Kathryn Daniels"
Deputy Director, Corporate Finance
Ontario Securities Commission