Securities Law & Instruments

Headnote

National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- exemption granted to a successor issuer from the requirement to file a notice declaring its intention to be qualified to file a short form prospectus at least 10 business days prior to the filing of a preliminary short form prospectus -- disclosure regarding the predecessor issuer will effectively be the disclosure of the successor issuer -- predecessor issuer is qualified to file a short form prospectus.

Exemption granted to a successor issuer from the requirement to deliver personal information forms for individuals for whom the LP previously delivered personal information forms.

Applicable Legislative Provisions

National Instrument 44-101 Short Form Prospectus Distributions.

Citation: Veresen Inc., Re, 2010 ABASC 553

December 2, 2010

IN THE MATTER OF

THE SECURITIES LEGISLATION OF

ALBERTA AND ONTARIO

(the Jurisdictions)

AND

IN THE MATTER OF

THE PROCESS FOR EXEMPTIVE RELIEF

APPLICATIONS IN MULTIPLE JURISDICTIONS

AND

IN THE MATTER OF

VERESEN INC.

(the Filer)

DECISION

Background

The securities regulatory authority or regulator in each of the Jurisdictions (the Decision Maker) has received an application from the Filer for a decision under the securities legislation of the Jurisdictions (the Legislation) exempting the Filer from:

(a) the requirement under section 2.8 of National Instrument 44-101 Short Form Prospectus Distributions (NI 44-101) to file a notice declaring its intention to be qualified to file a short form prospectus at least 10 business days prior to the filing of its first preliminary short form prospectus (the Notice of Intention Relief); and

(b) the requirement under subsection 4.1(b) of NI 44-101 for the Filer to deliver a Personal Information Form and Authorization to Collect, Use and Disclose Personal Information (in the form attached as Appendix A to National Instrument 41-101 General Prospectus Requirements) (a PIF) for each director and executive officer of the Filer at the time of filing a preliminary short form prospectus for whom Fort Chicago Energy Partners L.P. (Fort Chicago), the sole shareholder of the Filer, has previously delivered any of the documents described in clauses 4.1(b)(i)(E) through (G) of NI 44-101 at the time of filing such preliminary short form prospectus (the PIF 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 Filer has provided notice that subsection 4.7(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in British Columbia, Saskatchewan, Manitoba, Québec, Nova Scotia, New Brunswick, Newfoundland and Labrador and Prince Edward Island; and

(c) the decision is the decision of the principal regulator and evidences the decision of the securities regulatory authority or regulator in Ontario.

Interpretation

Terms defined in National Instrument 14-101 Definitions or 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:

Fort Chicago

1. Fort Chicago is a limited partnership established under the Partnership Act (Alberta) pursuant to a limited partnership agreement dated as of October 9, 1997, as amended and restated on November 21, 1997 and May 13, 2003, and as further amended on May 25, 2005, among Fort Chicago Energy Management Ltd., the general partner of Fort Chicago, and each person who is admitted to Fort Chicago as a limited partner from time to time in accordance with the terms thereof (the Partnership Agreement).

2. The head office of Fort Chicago is located in Calgary, Alberta.

3. Fort Chicago is a reporting issuer in each of the provinces of Canada and is not in default of the requirements of securities legislation applicable to it.

4. The authorized capital of Fort Chicago consists of an unlimited number of Class A limited partnership units (Class A Units) and an unlimited number of Class B limited partnership units, issuable in series, of which as at November 25, 2010, there were 156,189,192 Class A Units issued and outstanding and no Class B limited partnership units issued and outstanding.

5. The Class A Units are listed on the Toronto Stock Exchange (the TSX).

The Filer

6. The Filer is a corporation incorporated under the Business Corporations Act (Alberta) (the ABCA).

7. The Filer's head office is located in Calgary, Alberta.

8. The Filer is a wholly-owned subsidiary of Fort Chicago.

9. The Filer is not a reporting issuer in any jurisdiction and is not in default of any of the requirements of securities legislation applicable to it.

10. The common shares of the Filer (the Common Shares) are not listed or posted for trading on any exchange or quotation and trade reporting system, however, the TSX has conditionally approved the listing of the Common Shares to be issued in connection with the Arrangement (as defined below).

The Arrangement

11. Each of Fort Chicago, Fort Chicago Energy Management Ltd. (the General Partner) and the Filer have entered into an arrangement agreement dated October 18, 2010 (the Arrangement Agreement) pursuant to which such parties have agreed to proceed with a plan of arrangement under section 193 of the ABCA (the Arrangement) involving such parties and the holders of Class A Units (Unitholders).

12. As one of the steps of the Arrangement, each Class A Unit will be exchanged for one Common Share. Immediately following the completion of the Arrangement:

(a) the Filer will own all of the issued and outstanding Class A Units;

(b) the sole business of the Filer will be the current business of Fort Chicago;

(c) the Filer will be a reporting issuer or the equivalent under the securities legislation in each of the provinces of Canada; and

(d) the Common Shares will, subject to approval by the TSX, be listed on the TSX.

13. Pursuant to the Partnership Agreement and an interim order of the Court of Queen's Bench of Alberta dated October 19, 2010, the completion of the Arrangement will be conditional upon, among other things, Unitholders passing an extraordinary resolution approving the Arrangement at a special meeting of Unitholders scheduled for November 23, 2010 (the Meeting). The passing of the extraordinary resolution will require the approval of Unitholders representing not less than 66 2/3% of the votes cast by Unitholders, other than Fort Chicago, the General Partner or any of their representative affiliates, voting in person or by proxy at the Meeting.

14. An information circular describing the Arrangement was mailed to Unitholders on October 25, 2010.

Exemptions Sought

Notice of Intention Relief

15. Fort Chicago is qualified to file a prospectus in the form of a short form prospectus pursuant to section 2.2 of NI 44-101 and is deemed to have filed a notice of intention to be qualified to file a short form prospectus under section 2.8(4) of NI 44-101.

16. The Filer anticipates that it may wish to file a preliminary short form prospectus following the completion of the Arrangement, relating to the offering or potential offering of securities of the Filer.

17. In anticipation of the filing of a preliminary short form prospectus, and assuming the Arrangement has been completed, the Filer intends to file a notice of intention to be qualified to file a short form prospectus (the Notice of Intention) following completion of the Arrangement. In the absence of the Notice of Intention Relief, the Filer will not be qualified to file a preliminary short form prospectus until 10 business days from the date upon which the Notice of Intention is filed.

18. Pursuant to the qualification criteria set forth in sections 2.2 and 2.7 of NI 44-101, following the Arrangement, the Filer will be qualified to file a short form prospectus pursuant to NI 44-101.

19. Notwithstanding section 2.2 of NI 44-101, section 2.8(1) of NI 44-101 provides that an issuer is not qualified to file a short form prospectus unless it has filed a notice declaring its intention to be qualified to file a short form prospectus at least 10 business days prior to the issuer filing its first preliminary short form prospectus.

20. The short form prospectus of the Filer will incorporate by reference the documents that would be required to be incorporated by reference under item 11 of Form 44-101F1 in a short form prospectus of the Filer.

PIF Relief

21. Fort Chicago has previously delivered the documents described in clauses 4.1(b)(i)(E) through (G) of NI 44-101 (the Fort Chicago PIFs) for each individual acting in the capacity of director or executive officer of Fort Chicago or the General Partner.

22. In the absence of the PIF Relief, the Filer would be required to deliver a PIF for each director and executive officer of the Filer for whom Fort Chicago has already delivered a PIF.

Decision

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:

(a) the Notice of Intention Relief is granted, provided that at the time the Filer files its Notice of Intention, the Filer meets the requirements of Section 2.2 of NI 44-101; and

(b) the PIF Relief is granted, provided that:

(i) each individual:

A. for whom Fort Chicago has previously delivered a Fort Chicago PIF; and

B. who is a director or executive officer of the Filer at the time of a prospectus filing by the Filer,

authorizes the Decision Makers, in respect of the prospectus filing by the Filer, to collect, use and disclose the personal information that was previously provided in the Fort Chicago PIF;

(ii) at the time of the Filer's first prospectus filing, the Filer delivers to the Decision Makers an authorization of indirect collection, use and disclosure of personal information, substantially in the form of authorization attached as Appendix A;

(iii) the Filer will, if requested by a Decision Maker, promptly deliver such further information from each individual referred to in clause (b)(i) above as the Decision Maker may require; and

(iv) the PIF Relief will terminate in any jurisdiction in which the decision is in effect on the effective date of any change to subparagraph 4.1(b)(i) of NI 44-101.

"Blaine Young"
Associate Director, Corporate Finance
Alberta Securities Commission

 

APPENDIX A

AUTHORIZATION OF INDIRECT COLLECTION, USE AND DISCLOSURE

OF PERSONAL INFORMATION

The Personal Information Forms in respect of the individuals listed in attached Schedule 1, which were filed by [Insert issuer name] (the Trust) with provincial securities regulators in Canada on [insert date] (the Trust Filings), contain personal information concerning each individual acting in the capacity of director or executive officer of the Trust (the Personal Information), as required by securities legislation in respect of a prospectus filing by the Trust. [Insert issuer name] (the Issuer) hereby confirms that each individual listed on Schedule 1:

(a) is a director or executive officer of the Issuer;

(b) has consented to the use of the Personal Information (previously provided in the Trust Filing) pertaining to that individual, in respect of an anticipated prospectus filing by the Issuer;

(c) has been notified by the Issuer

(i) that the Personal Information is being collected indirectly by the regulator under the authority granted to it by provincial securities legislation or provincial legislation relating to documents held by public bodies and the protection of personal information;

(ii) that the Personal Information is being collected and used for the purpose of enabling the regulator to administer and enforce provincial securities legislation, including those obligations that require or permit the regulator to refuse to issue a receipt for a prospectus if it appears to the regulator that the past conduct of management or promoters of the Issuer affords reasonable grounds for belief that the business of the Issuer will not be conducted with integrity and in the best interests of its security holders; and

(iii) of the contact, business address and business telephone number of the regulator in the local jurisdiction as set out in the attached Schedule 2, who can answer questions about the regulator's indirect collection of the Personal Information; and

(d) has authorized the indirect collection, use and disclosure of the Personal Information by the regulators as described in Schedule 2, in respect of a prospectus filing by the Issuer.

Date:
____________________
Name of Issuer
 
Per:
____________________
Name
Official Capacity

(Please print the name of the person signing on behalf of the Issuer)