Subsection 83.1(1) -- Issuer deemed to be a reporting issuer in Ontario -- Issuer already a reporting issuer in Alberta, British Columbia, Saskatchewan and Quebec -- Issuer's securities listed for trading on the TSX Venture Exchange and the American Stock Exchange -- Continuous disclosure requirements in Alberta, British Columbia, Saskatchewan and Quebec substantially the same as those in Ontario.
Securities Act, R.S.O. 1990, c. S.5, as am., s. 83.1(1).
August 16, 2005
IN THE MATTER OF
THE SECURITIES ACT
R.S.O. 1990, CHAPTER S.5, AS AMENDED (THE "ACT")
IN THE MATTER OF
BIRCH MOUNTAIN RESOURCES LTD.
UPON the application of Birch Mountain Resources Ltd. ("Birch") for an order pursuant to subsection 83.1(1) of the Act deeming Birch 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 Ontario Securities Commission (the "Commission");
AND UPON Birch representing to the Commission as follows:
1. Birch is a corporation amalgamated under the Business Corporations Act (Alberta).
2. The Corporation is a reporting issuer under the Securities Act (British Columbia) (the "BC Act"), the Securities Act (Alberta) (the "Alberta Act"), the Securities Act (Saskatchewan) (the "Saskatchewan Act") and the Securities Act (Quebec) (the "Quebec Act").
3. The Corporation's head office is located at Suite 300, 250 - 6th Avenue S.W., Calgary, Alberta, T2P 3H7. The Corporation's registered and records office is located at 1000, 400 - 3rd Avenue S.W., Calgary, Alberta, T2P 4H2.
4. The authorized share capital of the Corporation consists of an unlimited number of common shares ("Common Shares"), an unlimited number of preferred shares and an unlimited number of non-voting shares, of which 69,106,197 Common Shares are issued and outstanding as at August 12, 2005.
5. The Corporation is registered with the Securities and Exchange Commission in the United States of America under the Securities Exchange Act, 1934 (the "1934 Act") and is not exempt from the reporting requirements of the 1934 Act pursuant to Rule 12g3-2 made thereunder. The Corporation is not in default of any securities legislation in the United States or any other jurisdiction.
6. The Corporation's Common Shares are listed for trading on the TSX Venture Exchange (the "Exchange") under the symbol "BMD" and on the American Stock Exchange ("AMEX") in the United States under the symbol "BMD".
7. In accordance with National Instrument 44-101 - Short Form Prospectus Distributions, the Corporation has filed with the Alberta Securities Commission, as the principal regulator, a current Annual Information Form in the Form 20-F. In addition, the Corporation has filed on the System for Electronic Document Analysis and Retrieval ("SEDAR") with each of the provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario and Quebec the continuous disclosure record of the Corporation for the previous 12 months.
8. The Corporation is good standing under the rules, regulations and policies of the Exchange and AMEX.
9. The Corporation is in good standing and is not in default under any of the BC Act, Alberta Act, Saskatchewan Act and Quebec Act (the "Acts").
10. The materials filed by the Corporation under the Acts are available on SEDAR.
11. The continuous disclosure requirements of the Acts are substantially the same as the requirements under the Act.
12. With the exception of the trading halt and trading suspension by the Exchange on June 28, 2000 and March 5, 2001, respectively, which were revoked by the Exchange on September 29, 2000 and March 11, 2002, respectively, neither the Corporation nor any of its officers or directors, nor to the knowledge of the Corporation and its officers and directors, any of its controlling shareholders, has:
(i) been subject to any penalties or sanctions imposed by a court relating to Canadian securities legislation or by a Canadian securities regulatory authority;
(ii) entered into a settlement agreement with a Canadian securities regulatory authority; or
(iii) 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.
13. Neither the Corporation nor any of its officers or directors, nor to the knowledge of the Corporation and its officers and directors, any of its controlling shareholders, is or has been subject to:
(i) any known ongoing or concluded investigations by:
(a) a Canadian securities regulatory authority, or
(b) 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
(ii) 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.
14. None of the officers or directors of the Corporation, nor to the knowledge of the Corporation, its officers and directors, any of its controlling shareholders, 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:
(i) any cease trade or similar orders, or orders 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
(ii) 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.
AND UPON the Director being satisfied that to do so would not be prejudicial to the public interest;
IT IS HEREBY ORDERED pursuant to subsection 83.1(1) of the Act that the Corporation is deemed to be a reporting issuer for the purposes of Ontario securities law.