Headnote
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – Application for an order than the issuer 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., ss. 1(10)
December 17, 2008
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 PBS COALS LIMITED
(the Filer)
Decision
Background
The securities regulatory authority or regulator in each of the Jurisdictions (the Decision Maker) has received an application (the Application) from the Filer for a decision under the securities legislation of the Jurisdictions (the Legislation) that the Filer is not a reporting issuer (the Exemptive Relief Sought).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a coordinated review application):
(a) the Ontario Securities Commission is the principal regulator for this application; and
(b) this decision is the decision of the principal regulator and evidences the decision of each other Decision Maker.
Interpretation
Terms defined in National Instrument 14-101 Definitions 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:
The Filer was formed under the Canada Business Corporations Act (the CBCA).
The registered office of the Filer is 40 King Street West, Toronto, Ontario.
The Filer became a reporting issuer under the Legislation on September 28, 2007.
7027940 Canada Limited (the Offeror) made an offer to acquire all of the issued and outstanding shares (the Shares) of the Filer.
As at the expiry time of the Offeror’s offer to acquire the Shares (the Offer), approximately 99% of the Shares were deposited under the Offer and not withdrawn.
On November 3, 2008, all of the Shares deposited under the Offer were taken up and accepted for payment by the Offeror and on November 5, 2008, the Offeror provided the depositary with the funds necessary to make such payment. The remaining approximately 1% of outstanding Shares were acquired by the Offeror on November 10, 2008 pursuant to the compulsory acquisition provisions of the CBCA.
The Offeror became the sole beneficial holder of all of the Shares on November 10, 2008. The Filer has no securities outstanding other than the Shares held by the Offeror.
The Shares were delisted from the Toronto Stock Exchange effective as at the close of business on November 14, 2008.
The Filer is not in default of any of its obligations under the Legislation as a reporting issuer, other than its obligation to file and deliver on or before November 14, 2008 (the Filing Deadline) interim financial statements and management’s discussion and analysis as required under National Instrument 51-102 Continuous Disclosure Obligations and the related certificates as required under Multilateral Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings.
As the Offeror became the sole beneficial holder of all of the Shares prior to the Filing Deadline, the Filer has not prepared or filed such interim financial statements, management’s discussion and analysis or related certificates.
The outstanding securities of the Filer, including debt securities, are beneficially owned, directly or indirectly, by fewer than 15 security holders in each of the jurisdictions in Canada and less than 51 security holders in total in Canada.
No securities of the Filer are traded on a marketplace as defined in National Instrument 21-101 Marketplace Operation.
The Filer has no current intention to seek public financing by way of an offering of securities.
On November 25, 2008, the Filer filed a Voluntary Surrender of Reporting Issuer Status notice (the Notice) with the British Columbia Securities Commission (BCSC), pursuant to British Columbia Instrument 11- 502 Voluntary Surrender of Reporting Issuer Status. On December 5, 2008, the Filer received notice from the BCSC that the Notice was accepted and that non-reporting status was effective on December 6, 2008.
The Filer, upon the grant of the Exemptive Relief Sought, will no longer be a reporting issuer in any jurisdiction in Canada.
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 Exemptive Relief Sought is granted.
“Margot C. Howard” “Mary Condon”
Commissioner Commissioner