PHX Energy Services Corp.

Decision

Headnote

National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Exemption granted to a successor issuer from the requirement to deliver personal information forms for individuals for whom its predecessor issuer previously delivered personal information forms.

Applicable Legislative Provisions

National Instrument 44-101 Short Form Prospectus Distributions.

May 10, 2011

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

PHX ENERGY SERVICES CORP.

(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 the requirement under Subsection 4.1(b) of National Instrument 44-101 Short Form Prospectus Distributions (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) for each director and executive officer of the Filer at the time of filing a preliminary short form prospectus, for whom Phoenix Technology Income Fund (the Fund) had 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 Exemption Sought).

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 and New Brunswick; and

(c) this 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 herein.

Representations

This decision is based on the following facts represented by the Filer:

The Fund and the Arrangement

1. The Fund was a trust established under the laws of the Province of Alberta pursuant a trust indenture, as amended and restated as of May 10, 2005, and as further amended on December 31, 2010 in connection with a Plan of Arrangement under Section 193 of the Business Corporations Act (Alberta), which resulted in the reorganization of the Fund (an income trust) into a new publicly traded oil and gas services corporation named "PHX Energy Services Corp." (the Arrangement).

2. Pursuant to the Arrangement, the Fund was dissolved, the Filer acquired all of the assets of the Fund and the Filer assumed all of the liabilities of the Fund.

3. The Arrangement did not involve the acquisition of any additional assets or the disposition of any existing operating assets.

4. The Fund was a reporting issuer or the equivalent under the securities legislation of each of the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Québec and New Brunswick. The Fund was dissolved in connection with the Arrangement and therefore ceased to be a reporting issuer in each of these Provinces.

5. The trust units of the Fund were listed on the Toronto Stock Exchange (the TSX) under the symbol "PHX.UN" and were delisted from the TSX at the close of business on January 5, 2011.

6. Prior to completion of the Arrangement, to the knowledge of the Filer, the Fund was not in default of applicable securities legislation in any of the Provinces of Canada.

The Filer

7. The Filer is a corporation incorporated under the laws of the Province of Alberta. The principal office of the Filer is located in Calgary, Alberta.

8. The Filer is a reporting issuer or the equivalent under the securities legislation of each of the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Québec and New Brunswick, and to its knowledge, is not in default of applicable securities legislation in any of the Provinces of Canada.

9. The common shares of the Filer are listed and posted for trading on the TSX under the symbol "PHX".

10. The Fund has previously delivered the documents described in clauses 4.1(b)(i)(E) through (G) of NI 44-101 (the Fund PIFs) for each individual who was acting in the capacity of director or executive officer of Phoenix Technology Services Inc., the former administrator of the Fund.

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 the Exemption Sought is granted, provided that:

(a) each individual:

(i) for whom the Fund has previously delivered a Fund PIF; and

(ii) who is a director or executive officer of the Filer at the time of a prospectus filing by the Filer;

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

(b) at any time of the Filer's 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;

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

(d) this decision 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.