NP 11-203 -- exemption from qualification requirements to permit applicant to file a prospectus in the form of a short form prospectus -- applicant does not have a current AIF and therefore cannot comply with s. 2.2(d) of National Instrument 44-101 Short Form Prospectus Distributions -- applicant is "successor issuer" but cannot rely on exemption in s 2.7(2) because applicant did not have to prepare an information circular in connection with restructuring transaction - applicant has filed a filing statement in the form of TSXV Form 3D2 -- Filing statement complies in all material respects includes the disclosure in connection with the Filer and the RTO that would be included in an information circular prepared in accordance with Item 14.5 of Form 51-102F5 Information Circular .
Applicable Legislative Provisions
National Instrument 44-101 Short Form Prospectus Distributions, ss. 2.2, 2.7, 8.1.
September 29, 2009
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF
APPLICATIONS IN MULTIPLE JURISDICTIONS
IN THE MATTER OF
ALANGE ENERGY CORP.
The principal regulator in the Jurisdiction has received an application (the "Application") from the Filer for a decision under the securities legislation of the Jurisdiction (the "Legislation") that:
1. the Filer be exempted from the qualification requirement in paragraph 2.2(d)(ii) of National Instrument 44-101 -- Short Form Prospectus Distributions ("NI 44-101") in respect of any prospectus filed by the Filer prior to April 30, 2010 (the "Exemptive Relief Sought"); and
2. the Application and this decision document be held in confidence by the principal regulator, subject to certain conditions.
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application),
(a) the Ontario Securities Commission is the principal regulator for the 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 British Columbia, Alberta, Saskatchewan, Manitoba, Nova Scotia, Newfoundland, New Brunswick, Prince Edward Island, Yukon, Northwest Territories and Nunavut.
Terms defined in National Instrument 14-101 Definitions have the same meaning if used in this decision, unless otherwise defined.
This decision is based on the following facts represented by the Filer.
1. The Filer is incorporated under the laws of British Columbia, and its head office is located in Toronto, Ontario.
2. The Filer's common shares are listed on the TSX Venture Exchange (the "TSXV") and the Filer is a reporting issuer in Alberta and British Columbia.
3. On July 13, 2009, the Filer completed a reverse takeover by way of three-cornered amalgamation (the "RTO") pursuant to which it acquired all of the shares of Alange, Corp. ("Old Alange"), a private company incorporated under the laws of Panama.
4. The financial year-end of the Filer prior to the completion of the RTO was June 30 and following the completion of the RTO, the Filer changed its financial year-end to December 31. The Filer expects to file audited annual financial statements for such year-end on or prior to April 30, 2010.
5. On completion of the RTO the Filer changed its name from Cierra Pacific Ventures Ltd. to Alange Energy Corp.
6. In connection with the RTO and in compliance with TSXV Policy 5.2, the Filer filed on July 10, 2009 on SEDAR a filing statement dated July 8, 2009 (the "Filing Statement") including the disclosure prescribed by TSXV Form 3D2 -- Information Required in a Filing Statement for a Reverse Takeover or Change of Business ("Form 3D2").
7. As required by Form 3D2, the Filing Statement appended audited financial statements of Old Alange for the financial year ended December 31, 2008 and pro forma condensed consolidated statements of the Resulting Issuer (as such term is defined in Form 3D2).
8. The Filer did not file an information circular as prescribed by Form 3D1 -- Information Required in an Information Circular for a Reverse Takeover or Change of Business ("Form 3D1") because, pursuant to TSXV Policy 5.2, the consent of the Filer's shareholders was not required in order to complete the RTO.
9. The Filer is not in default of securities legislation in any jurisdiction.
10. The Filer wishes to be qualified to file a short form prospectus pursuant to NI 44-101.
11. As a venture issuer under National Instrument 51-102 -- Continuous Disclosure Obligations ("NI 51-102"), the Filer is not required to file an annual information form ("AIF") and has never filed an AIF.
12. The Filer is a "successor issuer" as that term is defined in and NI 44-101.
13. An exemption from paragraph 2.2(d) of NI 44-101 is provided under subsection 2.7(2) of NI 44-101 to permit a successor issuer that does not have a current AIF to qualify to file a prospectus in the form of a short form prospectus, subject to certain conditions; in particular, the condition in paragraph 2.7(2)(b) that an information circular relating to the restructuring transaction that resulted in the successor issuer was filed by the successor issuer or an issuer that was a party to the restructuring transaction, and such information circular (i) complied with applicable securities legislation, and (ii) included disclosure in accordance with Item 14.2 or 14.5 of Form 51-102F5 for the successor issuer.
14. The Filer is unable to rely on the exemption in subsection 2.7(2) because the Filer did not prepare and file an information circular relating to the RTO, and therefore cannot satisfy the condition in paragraph 2.7(2)(b).
15. The Filer's Filing Statement in all material respects includes the disclosure in connection with the Filer and the RTO that would be included in an information circular prepared in accordance with Item 14.5 of Form 51-102F5 -- Information Circular.
16. But for the Filer not having prepared an information circular relating to the Filer and the RTO, the Filer would be able to rely on the exemption in subsection 2.7(2) of NI 44-101 to be qualified to file a prospectus in the form of a short form prospectus pursuant to the qualification criteria in section 2.2 of NI 44-101.
17. On September 15, 2009, the Filer filed on SEDAR a notice pursuant to section 2.8 of NI 44-101 declaring its intention to be qualified to file a short form prospectus.
The principal regulator is satisfied that the decision meets the test set out in the Legislation for the principal regulator to make the decision.
The decision of the principal regulator under the Legislation is that
1. the Exemptive Relief Sought is granted provided that the Filer incorporates by reference the Filing Statement in any short form prospectus filed prior to April 30, 2010, pursuant to NI 44-101; and
2. the Application and this decision shall be held in confidence by the principal regulator until the earlier of (i) the date that a preliminary short form prospectus has been filed by the Filer and (ii) the date that is 90 days after the date of this decision document.