Securities Law & Instruments
National Policy 11-203 Process For Exemptive Relief Applications in Multiple Jurisdictions -- exemption granted from continuous disclosure filing requirements and certification requirements -- filer unable to rely on exemption for credit support issuers in applicable securities legislation as it is unable to file the required consolidating summary financial information concurrently with the filing of the parent credit supporter's interim financial statements for the first interim period following the plan of arrangement -- relief granted for one interim period on condition that the filer is in compliance with the other requirements and conditions of section 13.4 of National Instrument 51-102 Continuous Disclosure Obligations and that the consolidating financial information is filed on or before August 28, 2012.
Applicable Legislative Provisions
National Instrument 51-102 Continuous Disclosure Obligations.
National Instrument 52-109 Certification of Disclosure in Issuers' Annual and Interim Filings.
Citation: Flint Energy Services Ltd. , Re, 2012 ABASC 337
July 31, 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
FLINT ENERGY SERVICES LTD.
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 requirements of:
(a) National Instrument 51-102 Continuous Disclosure Obligations (NI 51-102); and
(b) National Instrument 52-109 Certification of Disclosure in Issuers' Annual and Interim Filings (NI 52-109),
provided that certain requirements are met (collectively, 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 section 4.7(1) of Multilateral Instrument 11-102 Passport Systems (MI 11-102) is intended to be relied upon in British Columbia, Saskatchewan, Manitoba, Québec, Newfoundland and Labrador, Nova Scotia, Prince Edward Island 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.
Terms defined in National Instrument 14-101 Definitions, MI 11-102 and NI 51-102 have the same meanings 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 existing under the Business Corporations Act (Alberta) (ABCA). The Filer's head office is located in Calgary, Alberta.
2. The Filer is a reporting issuer in each Province of Canada and is not in default of any requirement of securities legislation in any such Province.
3. The authorized capital of the Filer consists of an unlimited number of common shares, of which 100 common shares have been issued, and an unlimited number of preferred shares, issuable in series, of which no preferred shares have been issued.
4. The Filer's financial year end is the Friday closest to December 31.
5. On June 8, 2011, the Filer issued by way of private placement an aggregate principal amount of $175,000,000 7.50% senior unsecured notes due June 15, 2019 (the Notes) to subscribers in various Provinces of Canada and in the United States. The Notes were issued under an indenture among the Filer, Computershare Trust Company of Canada and certain of the Filer's subsidiaries as guarantors of the obligations of the Filer, dated June 8, 2011.
6. On May 14, 2012, URS Corporation (URS) indirectly acquired all of the issued and outstanding common shares of the Filer pursuant to a court-approved plan of arrangement under the ABCA involving the Filer, URS Canada Holdings Ltd. (CanCo), a wholly-owned subsidiary of URS, and the shareholders, optionholders and other equity-based compensation holders of the Filer (the Transaction). Upon completion of the Transaction, the Filer became a wholly-owned subsidiary of URS.
7. On May 15, 2012, the Filer vertically amalgamated with CanCo and continued under the name of "Flint Energy Services Ltd".
8. On May 17, 2012, the common shares of the Filer which previously traded under the symbol "FES" were de-listed from the Toronto Stock Exchange. The Filer's securities are not currently listed, traded or quoted for trading on any "marketplace" in Canada (as defined in National Instrument 21-101 Marketplace Operation), and as a result, the Filer remains a reporting issuer and is a venture issuer within the meaning ascribed to such term under NI 51-102.
9. The Notes currently remain outstanding after completion of the Transaction.
10. URS is a corporation existing under the laws of the State of Delaware.
11. URS's common stock is listed on the New York Stock Exchange.
12. URS files its financial statements in accordance, and is in compliance, with the standards imposed by the US Securities Exchange Commission (SEC) under the United States Securities Act of 1933, the United States Securities Exchange Act of 1934 (the US Exchange Act) and the United States Sarbanes-Oxley Act of 2002, each as amended.
13. URS is an "SEC issuer" within the meaning ascribed to such term under NI 51-102.
14. URS is a large accelerated filer pursuant to Rule 12b-2 of the US Exchange Act which requires URS to file its Form 10-Q quarterly reports within 40 days after the quarter end.
15. URS's financial year end is the Friday closest to December 31.
16. Immediately following the completion of the Transaction, URS and certain of its subsidiaries (the Guarantor Subsidiaries) provided a full and unconditional guarantee of the Filer's obligations under the Notes (the Guarantees).
17. As URS and the Guarantor Subsidiaries provided the Guarantees in respect of the Notes, the Filer has opted to avail itself of the Credit Support Exemption set forth in section 13.4 of NI 51-102 to allow the Filer to file on SEDAR the interim and annual financial statements and other disclosure documents of URS, its parent corporation.
18. In order to rely upon the credit support exemption, pursuant to section 13.4(2.1)(c) of NI 51-102, when the Filer files URS's interim or annual consolidated financial statements on SEDAR, the Filer must also concurrently file consolidating summary financial information which includes a separate column for each of the following: (i) URS, (ii) the Filer, (iii) each of the Guarantor Subsidiaries on a combined basis; (iv) each subsidiary of URS, other than the Guarantor Subsidiaries, on a combined basis; (v) consolidating adjustments, and (vi) total consolidated amounts (the Consolidating Summary Financial Information).
19. URS intends to file its interim financial statements (Form 10-Q) for the period ended June 29, 2012 (the URS Interim Financials) with the SEC on or about August 7, 2012. The URS Interim Financials will then be filed by the Filer on SEDAR as soon as practicable thereafter pursuant to section 13.4(2.1)(a) of NI 51-102.
20. URS has historically prepared consolidated financial statements but has not been required to prepare separate financial statements for each of its subsidiaries. In order to prepare the Consolidating Summary Financial Information, the Filer requires financial information at the legal entity level for each URS subsidiary. URS has over 500 legal entities and affiliates in jurisdictions all over the world as well as multiple accounting systems. A significant number of adjustments will be required: allocating to the subsidiaries entries previously recorded at the consolidated parent level only; recording equity earnings of subsidiaries to each of their respective legal entities and adjusting certain eliminations among and between guarantors and non-guarantors. The adjustments will require URS to go through the historical financial information, prepare the necessary calculations and perform manual reviews in order to prepare the Consolidating Summary Financial Information in the manner required pursuant to section 13.4(2.1)(c) of NI 51-102.
21. The Transaction was only recently completed on May 14, 2012 and has resulted in the combination of two large companies, each with a significant number of business divisions, subsidiaries and employees.
22. As a venture issuer, the Filer would not be required to file its interim financial statements for the period ended June 29, 2012 until August 28, 2012.
23. The Filer seeks an extension of time to file the Consolidating Summary Financial Information required to be filed with the URS Interim Financials pursuant to section 13.4(2.1)(c) of NI 51-102. Accordingly, the Filer is requesting the Exemption Sought for the interim period ended June 29, 2012.
24. URS and the Filer anticipate that they will be able to meet all the conditions in subsection 13.4(2.1) of NI 51-102 to be able to rely on the exemption provided in section 13.4 of NI 51-102 for interim and annual periods ended after June 29, 2012.
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) the Filer is in compliance with the requirements and conditions of section 13.4 of NI 51-102, other than the requirement in subsection 13.4(2.1)(c);
(b) the Filer files, in electronic format, in respect of the period covered by the URS Interim Financials, consolidating summary financial information on or before August 28, 2012 for the parent credit supporter presented with a separate column for each of the following:
(i) the parent credit supporter;
(ii) the credit support issuer;
(iii) each subsidiary credit supporter on a combined basis;
(iv) any other subsidiaries of the parent credit supporter on a combined basis;
(v) consolidating adjustments; and
(vi) the total consolidated amounts; and
(c) the Filer can only rely on the Exemption Sought for the Filer's interim period ended June 29, 2012.