National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Issuer requests relief from the requirements of National Instrument 51-101 Standards of Disclosure for Oil and Gas Activities -- Issuer has less than 10% of its securityholders resident in Canada -- Less than 10% of the issuer's issued and outstanding securities are held by resident of Canada -- Issuer exempt from requirement of NI 51-101 provided that the issuer complies with the oil and gas disclosure requirements of the SEC and NYSE.
Applicable Legislative Provisions
National Instrument 51-101 Standards of Disclosure for Oil and Gas Activities, s. 8.1.
Citation: Triangle Petroleum Corporation, Re, 2012 ABASC 526
December 14, 2012
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
ALBERTA AND ONTARIO
IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF
APPLICATIONS IN MULTIPLE JURISDICTIONS
IN THE MATTER OF
TRIANGLE PETROLEUM CORPORATION
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) that the Filer be exempted from the requirements of National Instrument 51-101 Standards of Disclosure for Oil and Gas Activities (NI 51-101).
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 section 4.7(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in the Province of British Columbia; and
(c) this decision is the decision of the principal regulator and evidences the decision of the securities regulatory authority or regulator in Ontario.
Terms defined in National Instrument 14-101 Definitions, MI 11-102 and CSA Staff Notice 51-324 -- Glossary to NI 51-101 Standards of Disclosure for Oil and Gas Activities have the same meaning if used in this decision, unless otherwise defined herein.
This decision is based on the following facts represented by the Filer:
1. The Filer is a corporation governed by the laws of the State of Delaware, with its head office in Denver, Colorado. The Alberta Securities Commission was selected as principal regulator because the registered office of the Filer's Canadian subsidiary, Elmworth Energy Corporation, is located in Calgary, Alberta.
2. The Filer is engaged in the business of exploration and production of oil and natural gas, with the significant majority of its assets and operations located outside of Canada.
3. The Filer is a reporting issuer or equivalent in the Province of British Columbia, Alberta and Ontario and is not in default of securities legislation in any of such provinces.
4. The Filer's authorized capital stock consists of 140,000,000 shares of common stock of the Filer (Common Stock). In addition, the Filer has issued a convertible promissory note with an initial principal amount of US$120,000,000 (Convertible Note and, together with shares of Common Stock, Securities).
5. Shares of the Filer's Common Stock are registered under the United States Securities Exchange Act of 1934 (1934 Act). Shares of the Filer's Common Stock are listed on the New York Stock Exchange MKT (NYSE MKT) under the symbol "TPLM".
6. The Filer is subject to and is in compliance with all requirements applicable to it imposed by the United States Securities and Exchange Commission, the United States Securities Act 1933, as amended, the 1934 Act, the United States Sarbanes-Oxley Act of 2002 and the rules of the NYSE MKT (theUS Rules).
7. The Filer prepares disclosure with respect to its oil and natural gas activities (the Oil and Gas Disclosure) in accordance with both the US Rules and pursuant to NI 51-101.
8. The Filer qualifies as an "SEC foreign issuer" under National Instrument 71-102 Continuous Disclosure and Other Exemptions Relating to Foreign Issuers (NI 71-102) and relies on and complies with the exemptions from Canadian continuous disclosure requirements afforded to SEC foreign issuers under Part 4 of NI 71-102.
9. The Filer has made a good faith investigation to confirm the residency of the holders of its outstanding securities. Based on this investigation, the Filer has concluded that residents in Canada: (a) do not directly or indirectly beneficially own more than 10% of the aggregate number of Securities; and (b) do not directly or indirectly comprise more than 10% of the aggregate number of beneficial holders of Securities.
10. None of the Securities are listed or posted for trading on any "marketplace" in Canada (as such term is defined in National Instrument 21-101 Marketplace Operation), and the Filer has no present intention to list the Securities on any stock exchange or market in Canada.
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 for so long as:
(a) residents of Canada do not directly or indirectly beneficially hold more than 10% of the aggregate number of outstanding Securities;
(b) residents of Canada do not directly or indirectly comprise more than 10% of the aggregate number of beneficial holders of Securities;
(c) residents of Canada do not directly or indirectly beneficially hold more than 10% of the aggregate outstanding number of any new class or series of securities issued by the Filer or any subsidiary thereof;
(d) residents of Canada do not directly or indirectly comprise more than 10% of the aggregate number of beneficial holders of any new class or series of securities issued by the Filer or any subsidiary thereof;
(e) the Filer is subject to and complies with the US Rules in connection with its oil and natural gas activities;
(f) the Filer issues in Canada, and files on SEDAR, a news release stating that it will provide the Oil and Gas Disclosure in accordance with the US Rules rather than in accordance with NI 51-101; and
(g) the Filer files the Oil and Gas Disclosure with the securities regulatory authority or regulator in each of the provinces of Canada as soon as practicable after the Oil and Gas Disclosure is filed pursuant to the US Rules.