Ontario Commission des 22nd Floor 22e étage Securities valeurs mobilières 20 Queen Street West 20, rue queen ouest Commission de l’Ontario Toronto ON M5H 3S8 Toronto ON M5H 3S8
February 5th, 2024
IN THE MATTER OF THE SECURITIES LEGISLATION OF ONTARIO (the "Jurisdiction")
AND
IN THE MATTER OF THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS IN MULTIPLE JURISDICTIONS
AND
IN THE MATTER OF BOREALIS FOODS INC. ("New Borealis")
DECISION
Background
The principal regulator in the Jurisdiction (the "Decision Maker") has received an application (the "Application") from Borealis Foods Inc. ("Borealis" or the "Filer") on behalf of New Borealis in connection with the proposed Business Combination (as defined below) between Borealis and Oxus Acquisition Corp. ("Oxus"), for a decision under section 74(1) of the Securities Act (Ontario) (the "Act") that the prospectus requirement set forth in section 53 of the Act does not apply to the first trade of New Borealis Shares (as defined below) held by Canadian Owners (as defined below) for a trade made: (i) through an exchange, or a market, outside of Canada; or (ii) to a person or company outside of Canada (collectively, the "Resale Relief").
The Decision Maker has also received a request from the Filer for a decision that the Application and this decision (together, the "Confidential Material") be kept confidential and not be made public until the earliest of: (i) the date on which the Business Combination (as defined herein) is completed; (ii) the date on which the Filer advises that there is no longer any need for the Confidential Material to remain confidential; or (iii) the date that is 90 days after the date of this decision (the "Confidentiality Relief").
Under National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions (for a dual application):
(a) the Ontario Securities Commission (the "Commission") is the principal regulator for this Application; and
(b) the Filer has provided notice that section 4.7(1) of Multilateral Instrument 11-102 Passport System ("MI 11-102") is intended to be relied upon in Alberta, British Columbia, Saskatchewan, Manitoba, Québec, New Brunswick, Nova Scotia, Prince Edward Island, and Newfoundland and Labrador, (the "Passport Jurisdictions").
Interpretation
Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this decision, unless otherwise defined.
Representations
This decision is based on the following facts represented by the Filer:
Oxus
Oxus is a blank check company incorporated as a Cayman Islands exempted company. Oxus was created for the purpose of effecting a merger, share exchange, asset acquisition, share purchase, reorganization, or similar business combination with one or more businesses or entities.
The principal executive office of Oxus is located at at Harbour Place, P.O. Box 472, 103 South Church Street, Grand Cayman KY1-1106, Cayman Islands. Its sponsor is Oxus Capital PTE. LTD, a corporation incorporated in Singapore and the controlling shareholder of the sponsor, Mr. Kenges Rakishev, is a citizen of Kazakhstan.
Oxus is a registrant with the United States Securities and Exchange Commission (the "SEC") and Oxus is subject to the requirements of the Securities Exchange Act of 1934 of the United States (the "U.S. Securities Act") and the rules and regulations of the Nasdaq Capital Market (the "Nasdaq"). Oxus is in compliance with the requirements of the U.S. Securities Act and is in good standing with the rules of the Nasdaq.
Oxus is not a reporting issuer in any jurisdiction of Canada and has no intention of becoming a reporting issuer in any jurisdiction of Canada. Oxus is not in default of securities legislation in any jurisdiction.
Neither the sponsor of Oxus nor any of its directors or executive officers are residents of or spend a significant amount of time in Canada. To the knowledge of the parties, Oxus does not have any Canadian shareholders.
Pursuant to Oxus's amended and restated memorandum and articles of association, a holder of Oxus's public shares (an "Oxus public shareholder") may request that Oxus redeem all or a portion of such public shares for cash if the Business Combination (as defined below) is consummated.
If the Business Combination is consummated, and if an Oxus public shareholder exercises redemption rights, Oxus will redeem such public shares for a per-share price, payable in cash, equal to the pro rata portion of the trust account established at the consummation of Oxus's initial public offering. The redemption will take place immediately after consummation of the Business Combination. Given the recent market trends in similar de-SPAC transactions, the parties anticipate that all, or close to all, of such public shares will be redeemed in connection with the completion of the Business Combination.
Borealis
Borealis is a Canadian federal corporation that operates a manufacturing and distribution business primarily through subsidiaries domiciled in the United States. Borealis is not a reporting issuer in Canada and is not in default of securities legislation in any jurisdiction.
Borealis's manufacturing activities are carried out entirely in the United States through U.S.-domiciled subsidiaries. Borealis does not have significant operations in Canada, as detailed further below.
Borealis has a registered office in Ontario (the "Ontario office"). While Borealis is formed in Canada, it does not have a traditional head office environment, as there is no central location from which all of the executive officers of Borealis operate. There are fewer than 10 employees of Borealis who work from Canada, of the more than 300 total employees.
The founder and Chief Executive Officer (the "CEO") of Borealis is a U.S. citizen who is resident in Canada. He is one of two directors of Borealis; the other is a citizen of Switzerland. The CEO travels often to the United States for operational purposes. He spends the majority of his time in Canada on video-conference calls with people outside of Canada (primarily in the United States). He would spend almost all of his time in the United States were it not for technology that facilitates such remote work.
In addition to the CEO, two other officers of Borealis reside in and work out of the Ontario office. The other employees