National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- application for an order that the filer is not a reporting issuer under applicable securities laws -- requested relief granted.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c.S.5, as am., s. 1(10)(b).
CSA Staff Notice 12-307 Applications for a Decision that an Issuer is not a Reporting Issuer.
May 20, 2011
IN THE MATTER OF
THE SECURITIES ACT,
R.S.O. 1990, c. S.5, AS AMENDED
IN THE MATTER OF
(Subclause 1(10)(a)(ii) of the Act)
UPON the application (the "Application") of Enersource Corporation (the "Filer") for an order pursuant to subclause 1(10)(a)(ii) of the Act that, for the purposes of Ontario Securities law, the Filer is not a reporting issuer in Ontario (the "Order Sought");
AND UPON considering the Application and the recommendation of staff of the Ontario Securities Commission (the "Commission");
AND UPON the Filer having represented to the Commission that:
1. The Filer is incorporated under the laws of Ontario, with its head office in Mississauga, Ontario.
2. The Filer is an electronic filer as defined under National Instrument 13-101 System for Electronic Document Analysis and Retrieval ("SEDAR").
3. The Filer is not in default of any of the requirements under the Act.
4. The authorized share capital of the Filer consists of an unlimited number of Class A shares, 1,000 Class B shares and 100 Class C shares. As of the date hereof, there are 180,555,562 Class A shares, 1,000 Class B shares and 100 Class C shares issued and outstanding (collectively, the "Outstanding Shares"). The Outstanding Shares are held by two shareholders, The Corporation of the City of Mississauga and BPC Energy Corporation (a subsidiary of OMERS), each of which are resident in Ontario.
5. Pursuant to a prospectus filed by Borealis Infrastructure Trust ("Borealis") in all provinces of Canada and dated April 25, 2001 and a prospectus supplement dated April 26, 2001, Borealis distributed to the public, bonds in the principal amount of $290,000,000 (the "Borealis-Enersource Bonds").
6. The Borealis-Enersource Bonds are direct obligations of Borealis, secured by a credit agreement with the Filer dated April 25, 2001 (the "Credit Agreement"). The funds received by Borealis from the Borealis-Enersource Bonds were advanced to the Filer under the terms of the Credit Agreement in the form of a term loan (the "Term Loan").
7. Under the Credit Agreement, the Filer contractually agreed to be subject to certain reporting issuer requirements in Ontario. The terms of the Credit Agreement specifically required the Filer to file its interim and annual financial statements on SEDAR, to file material change reports on SEDAR and to comply with the continuous and episodic disclosure requirements of applicable Canadian securities laws as if it were a reporting issuer in each province of Canada during the term of the Credit Agreement. Such reporting issuer requirements were only intended to apply during the term of the Credit Agreement.
8. The Filer, upon application for an order to the Commission, was deemed to be a reporting issuer for the purposes of the Act on March 19, 2002.
9. Pursuant to a private placement offering (the "Offering") the Filer issued on April 29, 2011 $110 million principal amount of Series A Senior Unsecured Debentures due April 29, 2021 and $210 million principal amount of Series B Senior Unsecured Debentures due April 29, 2041 (collectively, the "Debentures"). The proceeds received from the Offering were used to repay the Term Loan in full on May 2, 2011 and the Filer intends to use the balance for general corporate purposes including capital expenditures.
10. The Borealis-Enersource Bonds matured on May 3, 2011. The Filer has received confirmation from Borealis that the Borealis-Enersource Bonds have been repaid in full.
11. The Filer has received an acknowledgement and release from Borealis confirming that all amounts owing under the Credit Agreement have been paid in full and releasing the Filer from its obligations under the Credit Agreement, other than those provisions which by their terms are expressly intended to survive any termination of the Credit Agreement.
12. All purchasers of the Debentures (the "Debentureholders") in the Offering are "accredited investors" as defined in National Instrument 45-106 Prospectus and Registration Exemptions. Of these Debentureholders, 15 are resident in Ontario, 3 are resident in British Columbia, 1 is resident in Alberta, 1 is resident in Saskatchewan, 1 is resident in Manitoba and 9 are resident in Quebec.
13. Each prospective purchaser in the Offering was provided with a preliminary offering memorandum and a final offering memorandum, each of which contained a statement that the Filer currently is a reporting issuer but intends to apply to cease to be a reporting issuer.
14. Pursuant to the terms of the trust indenture governing the Debentures, the Filer is required to deliver its annual audited consolidated financial statements, consolidated interim financial statements and such other non-confidential information relating to the business of the Filer as the trustee for the Debentures (the "Trustee") may require. If such documents are not publicly available, the Trustee will, upon the request of a Debentureholder, provide a copy of such documents to the requesting Debentureholder.
15. Other than the Class A shares, the Class B shares, the Class C shares and the Debentures, the Filer has no securities outstanding.
16. The Filer meets all of the requirements to be able to apply for relief pursuant to the simplified procedure set out in CSA Staff Notice 12-307 Applications for a Decision that an Issuer is not a Reporting Issuer other than the requirement that it have fewer than 15 securityholders in Canada. The Filer has 17 securityholders in Ontario and it has fewer than 51 securityholders in total in Canada.
17. No securities of the Filer are traded on a "marketplace" as defined in National Instrument 21-101 Marketplace Operation.
18. The Filer is not in default of any of its obligations under the applicable legislation as a reporting issuer.
19. The Filer will not be a reporting issuer in any jurisdiction in Canada immediately after such relief is granted.
AND UPON the Commission being satisfied to do so would not be prejudicial to the public interest;
IT IS ORDERED pursuant to subclause 1(10)(a)(ii) of the Act that, for purposes of Ontario securities law, the Filer is not a reporting issuer.
DATED in Toronto on this 20th day of May, 2011.