Subsection 1(10) of the Securities Act -- Application by a reporting issuer for an order that it is not a reporting issuer -- based on diligent enquiry, residents of Canada (i) do not directly or indirectly beneficially own more than 2% of each class or series of outstanding securities of the reporting issuer worldwide, and (ii) do not directly or indirectly comprise more than 2% of the total number of shareholders of the reporting issuer worldwide -- Issuer is subject to Australian securities law and requirements of the NASDAQ Stockholm -- Issuer has undertaken that it will concurrently deliver to its Canadian securityholders all disclosure material it is required under Swedish securities laws and exchange requirements to deliver to Swedish resident securityholders -- Issuer has provided notice through a press release that it has submitted an application to cease to be a reporting issuer in Ontario.
Applicable Legislative Provisions
Securities Act (Ontario), s. 1(10)(a)(ii).
February 20, 2015
IN THE MATTER OF THE SECURITIES ACT, R.S.O. 1990, CHAPTER S.5, AS AMENDED (THE "ACT") AND IN THE MATTER OF LUNDIN PETROLEUM AB (THE "FILER")
UPON the Director having received an application from the Filer for an order under subparagraph 1(10)(a)(ii) of the Act that the Filer is not a reporting issuer in Ontario (the "Requested Order");
AND UPON considering the application and the recommendation of the staff of the Ontario Securities Commission (the "Commission");
AND UPON the Filer representing to the Commission as follows:
1. The Filer is a company incorporated under the Swedish Companies Act (2005:551) with company registration number 556610-8055.
2. The Filer's head and registered office is located at Hovslagargatan 5, Stockholm, Sweden, 111 48. The Company maintains no office and has no employees in Canada.
3. The Filer is a Swedish oil and gas exploration and production company with a portfolio of assets primarily located in Europe and South East Asia.
4. The Filer's issued capital is 311,070,330 shares with a quota value of SEK 0.01 each (each, a "Share"). All Shares carry the same voting rights and the same rights to a share of the Filer's assets and net result. The Filer has no other securities outstanding other than the Shares. The Filer had no debt obligations other than ordinary course trade payables and external bank credit facilities.
5. The Shares have been listed on the NASDAQ Stockholm (the "Nasdaq Stockholm") since August 2001.
6. On March 24, 2011, the Shares were listed on the Toronto Stock Exchange (the "TSX") and the Filer became a reporting issuer in Ontario.
7. The Filer's securities have only been listed on the Nasdaq Stockholm and the TSX.
8. The Filer is not a reporting issuer in any other jurisdiction in Canada other than Ontario.
9. The Filer had discussions with the TSX regarding a voluntary delisting of its Shares from the TSX and the TSX delisted the Shares at the close of trading on November 14, 2014.
10. None of the Filer's securities are listed, traded or quoted on a marketplace in Canada as defined in National Instrument 21-101 -- Marketplace Operation and the Filer does not intend to have its securities listed, traded or quoted on such a marketplace in Canada.
11. The Filer is subject to all applicable corporate requirements of a company formed in Sweden and the applicable securities laws and rules of the Nasdaq Stockholm. The Filer is not in default of any requirements of Swedish law or the rules or requirements of the Nasdaq Stockholm applicable to it.
12. The Filer is not in default of any of its obligations under the Act as a reporting issuer.
13. The Filer is unable to rely on the simplified procedure set out in CSA Staff Notice 12-307 in order to apply for the Requested Order because the Filer's securities are traded on the Nasdaq Stockholm and it has more than 50 securityholders in total worldwide.
14. To the knowledge of the Filer, residents of Canada do not directly or indirectly beneficially own more than 2% of each class or series of outstanding securities of the Filer worldwide. The due diligence conducted by the Filer in support of the foregoing representation is as follows:
(a) Using a record date of October 28, 2014, the Filer caused Broadridge Financial Solutions, Inc. ("Broadridge") to conduct a search (the "Broadridge Search") to confirm the residency of the beneficial holders of the shares held through intermediaries who are clients of Broadridge ("Broadridge Intermediaries"). The search found that 649 shareholders beneficially own an aggregate of 648,756 Shares, broken down by province as follows:
(i) Alberta -- 63 securityholders holding 47,156 Shares;
(ii) British Columbia -- 152 securityholders holding 345,105 Shares;
(iii) Manitoba -- 10 securityholders holding 14,488 Shares;
(iv) New Brunswick -- 1 securityholder holding 200 Shares;
(v) Newfoundland -- 1 securityholder holding 33 Shares;
(vi) Northwest Territories -- 1 securityholder holding 72 Shares;
(vii) Nova Scotia -- 1 securityholder holding 2 Shares;
(viii) Ontario -- 401 securityholders holding 235,085 Shares;
(ix) Prince Edward Island -- 1 securityholder holding 6 Shares;
(x) Quebec -- 14 securityholders holding 6,172 Shares;
(xi) Saskatchewan -- 3 securityholders holding 400 Shares; and
(xii) Yukon -- 0 securityholders holding 0 Shares.
(b) An additional search of the Swedish share registers (the "Registered Shareholder List") by Euroclear Sweden ("Euroclear"), the Swedish Securities Register Center, indicated there were 16 registered shareholders with a Canadian address holding 2,226,556 Shares as of October 31, 2014. These figures include the holdings of the Canadian Depositary for Securities ("CDS"), which totalled 2,178,039 Shares, four Canadian-resident nominees (the "Canadian Nominees"), which totalled an aggregate 40,860 Shares, and 11 Canadian-resident individuals, which totalled an aggregate 7,657 Shares.
(c) According to Broadridge, three of the Canadian Nominees are clients of Broadridge and would have had their beneficial holdings accounted for in the Broadridge Search. The fourth Canadian Nominee confirmed that it held 746 Shares for the benefit of three Canadian residents.
(d) The Registered Shareholder List indicated that there were five international-resident nominees (the "International Nominees") that were affiliated with Canadian brokers, dealers or intermediaries. According to Broadridge, all of the International Nominees are clients of Broadridge and would have had their beneficial holdings accounted for in the Broadridge Search.
(e) Based on the information provided by Broadridge, Euroclear and the fourth Canadian Nominee referenced in paragraph 14(c), the Filer estimates that there are 663 beneficial shareholders with a Canadian address holding 657,159 Shares. This estimate assumes that all of the CDS holdings were reflected in the Broadridge search of beneficial shareholders referenced in paragraph 14(a).
(f) As of October 31, 2014, there were 311,070,330 Shares issued and outstanding. Based on the information provided by Broadridge and Euroclear and the Filer's estimates referenced in paragraph 14(e), Canadian residents beneficially owned no more than 657,159 Shares, representing 0.22% of the total outstanding Shares. Even if it is assumed that none of the Shares held beneficially through Broadridge Intermediaries were registered with CDS, Canadian residents would still directly or indirectly beneficially own no more than 0.91% of the total outstanding Shares.
15. To the knowledge of the Filer, residents of Canada do not directly or indirectly comprise more than 2% of the total number of shareholders of the Filer worldwide. The due diligence conducted by the Filer in support of the foregoing representation is as follows:
(a) According to the Swedish share registers, as of October 31, 2014, there were 46,502 registered holders. Based on the Filer's estimates referenced in paragraph 14(e), there were 663 beneficial shareholders with a Canadian address. Assuming that none of the other registered holders of Shares beneficially held Shares for other persons, residents of Canada do not directly or indirectly comprise more than 1.43% of the total number of shareholders of the Filer.
16. In the past 12 months, the Filer has not taken steps to create a market in Canada for the Shares and, in particular, never offered securities to the public in Ontario or in any other jurisdiction in Canada by way of a prospectus offering. The Filer only attracted a de minimis number of Canadian investors and the daily average volume of trading of the Shares in the 12 months prior to delisting from the TSX was approximately 1,375 shares, which accounted for approximately 0.11% of the Filer's worldwide daily trading volumes. In contrast, the average daily volume on the Nasdaq Stockholm for the same period represented approximately 1,276,665 shares. The Filer has no plans to seek a public offering of its securities in Canada or an offering pursuant to an exemption from the prospectus requirements of Canadian securities laws.
17. The Filer has not issued securities in Canada pursuant to a prospectus or an exemption from the prospectus requirements, other than pursuant to an exemption from the prospectus requirement in connection with the issuance of Shares pursuant to a plan of arrangement with a Canadian reporting issuer in 2006.
18. The Filer files continuous disclosure reports under Swedish securities laws and follows the exchange requirements of the Nasdaq Stockholm. All such continuous disclosure documents of the Filer are publicly available to all of the Filer's securityholders on the Filer's website at www.lundin-petroleum.com.
19. The Filer qualifies as a "Designated Foreign Issuer" under National Instrument 71-102 -- Continuous Disclosure and Other Exemptions Relating to Foreign Issuers ("NI 71-102") and has relied on and complied with the exemptions from Canadian disclosure requirements afforded to Designated Foreign Issuers under Part 5 of NI 71-102.
20. The Filer has provided advance notice to Canadian-resident securityholders in a press release dated January 7, 2015 that it has applied to the Commission for a decision that it is not a reporting issuer in Ontario, and if that decision is made, the Filer will no longer be a reporting issuer in any jurisdiction in Canada.
21. The Filer has provided an undertaking that it will concurrently deliver to its Canadian securityholders all disclosure it would be required under Swedish securities laws or exchange requirements to deliver to Swedish-resident securityholders.
22. The Filer will not be a reporting issuer or the equivalent in any jurisdiction in Canada immediately following a decision from the Commission granting the relief requested.
AND UPON the Commission being satisfied that it would not be prejudicial to the public interest;
IT IS HEREBY ORDERED pursuant to subparagraph 1(10)(a)(ii) of the Act that, for the purposes of Ontario securities law, the Filer is not a reporting issuer.
DATED this 20th day of February, 2015.