Multilateral Instrument 11-102 Passport System and National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- relief from various disclosure requirements for an information circular to be sent to a Canadian target company's shareholders in connection with a proposed arrangement with a foreign entity. Foreign entity will provide disclosure in accordance with UK reporting requirements.
Relief from the requirements of National Instrument 51-101 Standards of Disclosure for Oil and Gas Activities -- issuer has less than 10% of its securityholders resident in Canada -- less than 10% of the issuer's issued and outstanding securities are held by residents of Canadian -- issuer exempt from requirements of NI 51-101 provided that the issuer complies with the oil and gas disclosure requirements of the Financial Services Authority of the United Kingdom and the ongoing requirements of the London Stock Exchange.
Applicable Legislative Provisions
National Instrument 51-101 Standards of Disclosure for Oil and Gas Activities.
National Instrument 51-102 Continuous Disclosure Obligations.
Citation: Black Marlin Energy Holdings Limited, Re, 2010 ABASC 319
July 15, 2010
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
ALBERTA AND ONTARIO
IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF
APPLICATIONS IN MULTIPLE JURISDICTIONS
IN THE MATTER OF
BLACK MARLIN ENERGY HOLDINGS LIMITED
(Black Marlin) AND AFREN PLC (Afren and,
together with Black Marlin, the Filers)
The securities regulatory authority or regulator in each of the Jurisdictions (the Decision Maker) has received an application from the Filers for a decision under the securities legislation of the Jurisdictions (the Legislation):
(a) exempting Black Marlin from the requirement to include the following disclosure in the Black Marlin Circular (as herein defined):
(i) oil and gas disclosure of Afren (the Circular Oil and Gas Relief);
(ii) interim financial statements of Afren for the three months ended March 31, 2010 (the Interim Financial Statements Relief); and
(iii) executive compensation disclosure of Afren (the Executive Compensation Relief); and
(b) exempting Afren from the continuous disclosure requirements regarding oil and gas activities contained in the Legislation, including requirements under National Instrument 51-101 Standards of Disclosure for Oil and Gas Activities (NI 51-101), as amended from time to time, as they relate to the continuous disclosure of Afren (the On-Going Oil and Gas Relief).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a dual application):
(a) the Alberta Securities Commission is the principal regulator for this application;
(b) the Filers have provided notice that section 4.7(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in British Columbia and Saskatchewan; and
(c) the decision is the decision of the principal regulator and evidences the decision of the securities regulatory authority or regulator in Ontario.
Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meanings if used in this decision, unless otherwise defined.
This decision is based on the following facts represented by Black Marlin:
1. Black Marlin is a reporting issuer, or the equivalent, in each of the Jurisdictions, and, to its knowledge, is not in default of any requirements under the Legislation.
2. The head office of Black Marlin is located in Dubai, U.A.E.
3. Black Marlin is listed on the TSX Venture Exchange under the symbol "BLM".
4. Black Marlin is an exploration and appraisal company with oil and gas assets in East Africa.
5. Afren is not currently a reporting issuer in the Jurisdictions or any Canadian jurisdiction, and, to its knowledge, is not in default of any requirements under the Legislation.
6. Afren was incorporated under the laws of England and Wales.
7. The registered and head office of Afren is located in London, United Kingdom.
8. The executive officers and directors of Afren are resident outside of Canada and the business of Afren is administered principally outside of Canada.
9. Afren is an oil and gas company with assets in West Africa.
10. Afren's ordinary shares are traded on the main market of the London Stock Exchange (LSE) under the symbol "AFR" and are listed on the Official List of the United Kingdom Listing Authority (the UKLA). Afren has no intention to list its shares on a Canadian exchange.
11. Afren is subject to the reporting requirements of the Financial Services Authority of the United Kingdom (the FSA) and the ongoing requirements of the LSE (collectively, the UK Requirements).
12. Neither Black Marlin nor Afren have any assets in Canada.
13. On June 2, 2010, Afren and Black Marlin entered into an arrangement agreement whereby Afren will acquire all of the outstanding common shares of Black Marlin in exchange for the issuance of 0.3647 Afren shares for each outstanding common share of Black Marlin, pursuant to a British Virgin Islands scheme of arrangement (the Arrangement).
14. At the date of the arrangement agreement, Afren had a market capitalization of approximately $1.3 billion and the aggregate purchase price (based on the value of the Afren shares) for all of Black Marlin's outstanding shares was approximately $106.5 million.
15. Upon completion of the Arrangement, the former Black Marlin security holders will own approximately 7.9% of the shares of the combined entity and Afren security holders will own approximately 92.1% of the shares of the combined entity.
16. Upon completion of the Arrangement, residents of Canada will not directly or indirectly beneficially own more than 10%, on a fully diluted basis, of the total number of equity securities of Afren.
17. There is no market in Canada for Afren's securities and none is expected to develop. Afren does not currently intend to list any securities on any exchange or marketplace in Canada.
18. Upon completion of the Arrangement, Afren will be a reporting issuer in the Jurisdictions.
19. Afren expects to be a "designated foreign issuer" (Designated Foreign Issuer) under National Instrument 52-107 Acceptable Accounting Principles, Auditing Standards and Reporting Currency and National Instrument 71-102 Continuous Disclosure and Exemptions Relating to Foreign Issuers (NI 71-102) upon completion of the Arrangement.
20. In connection with the Arrangement, Black Marlin will be preparing and filing, on the System for Electronic Document Analysis and Retrieval (SEDAR), and mailing to shareholders an information circular providing Black Marlin's shareholders with notice of the special meeting of Black Marlin's shareholders that will be called and held to consider the approval of the Arrangement and describing, among other things, the Arrangement and the Afren common shares to be issued as consideration for the acquisition of Black Marlin common shares (the Black Marlin Circular).
21. The Black Marlin Circular will disclose that annual reports, financial statements, proxy and other materials contemplated by NI 71-102 and currently distributed to holders of Afren's shares pursuant to the applicable laws of England and Wales will be provided, as applicable, to holders of Afren's shares resident in Canada unless Afren, at such time or times, is not a Designated Foreign Issuer in which case Afren will comply with the applicable requirements of the Legislation.
22. Pursuant to the form requirements for an information circular in the Jurisdictions, the Black Marlin Circular must include disclosure about Afren prescribed by the form of prospectus appropriate for Afren, being the requirements of NI 41-101 General Prospectus Requirements and Form 41-101F1 Information Required in a Prospectus (the Long Form Prospectus Requirements).
23. In connection with the Arrangement, Afren will be filing a prospectus complying with all applicable UK disclosure rules, which will be reviewed and approved by the UKLA (the UK Prospectus).
24. Afren and Black Marlin intend to include in the Black Marlin Circular the disclosure relating to Afren from the UK Prospectus.
25. The Long Form Prospectus Requirements require the Black Marlin Circular to contain comparative interim financial statements and management's discussion and analysis for Afren for the interim period ending March 31, 2010.
26. Pursuant to the UK Requirements, UK public companies are required to prepare interim financial statements covering a six month period. Afren's most recently prepared interim statements are for the six-month period ended June 30, 2009. Quarterly financial statements are not required by the UK Requirements and Afren has not prepared first quarter financial statements and is not in a position to include interim financial statements and management's discussion and analysis for its first quarter in the Black Marlin Circular.
27. The Long Form Prospectus Requirements provide that the Black Marlin Circular must contain the information prescribed by Form 51-101F1 Reserves data and Other Oil and Gas Information (Form 51-101F1), Form 51-101F2 Report on Reserves Data by Independent Qualified Reserves Evaluator or Auditor and Form 51-101F3 Report of Management and Directors on Oil and Gas Disclosure for Afren with an effective date of December 31, 2009.
28. Afren files with the FSA disclosure about its oil and gas activities prepared in accordance with the UK Requirements (the UK Oil and Gas Requirements).
29. Afren does not file information prescribed by Form 51-101F1, but has filed disclosure that meets the UK Oil and Gas Requirements, and will be updating that disclosure to March 31, 2010 in the UK Prospectus.
30. The disclosure about Afren's oil and gas activities in the UK Prospectus will be supported by a competent person's report prepared in accordance with the UK Requirements.
31. The Long Form Prospectus Requirements require the Black Marlin Circular to contain a Statement of Executive Compensation prepared in accordance with Form 51-102F6 Statement of Executive Compensation.
32. As an LSE listed company, Afren is required to comply with the compensation disclosure requirements set out by the FSA.
Each of the Decision Makers is satisfied that the decision meets the test set out in the Legislation for the Decision Maker to make the decision.
The decision of the Decision Makers under the Legislation is that the Circular Oil and Gas Relief, the Interim Financial Statements Relief and the Executive Compensation Relief is granted provided that:
(a) at the time the Black Marlin Circular is sent to securityholders, Afren expects that upon completion of the arrangement, it will be a Designated Foreign Issuer; and
(b) the Black Marlin Circular includes:
(i) disclosure about Afren's oil and gas activities prepared in accordance with the UK Oil and Gas Requirements;
(ii) the following financial statements of Afren:
A. audited balance sheets as at December 31, 2009 and 2008, all prepared in accordance with International Financial Reporting Standards (IFRS) and audited in accordance with International Standards on Auditing (UK and Ireland);
B. audited income statements, statements of retained earnings and cash flow statements for the years ended December 31, 2009, 2008 and 2007, all prepared in accordance with IFRS and audited in accordance with International Standards on Auditing (UK and Ireland); and
C. unaudited pro forma financial statements in respect of the combination of Afren and Black Marlin for the year ended December 31, 2009;
(iii) executive compensation disclosure of Afren that complies with the UK Requirements; and
(iv) disclosure of all material changes in the affairs of Afren between the date of Afren's 2009 annual financial statements and the date of the Black Marlin Circular.
The further decision of the Decision Makers under the Legislation is that the On-Going Oil and Gas Relief is granted provided that:
(a) residents of Canada do not directly or indirectly beneficially own more than 10%, on a fully diluted basis, of the total number of equity securities of Afren;
(b) Afren is subject to and complies with applicable UK Oil and Gas Requirements in connection with its oil and gas activities;
(c) Afren issues in Canada, and files on SEDAR, a news release stating that it will comply with the UK Requirements in connection with its oil and gas activities rather than with NI 51-101; and
(d) Afren files the disclosure required under the UK Oil and Gas Requirements with the Decision Maker as soon as practicable after such disclosure is filed pursuant to the UK Requirements.