National Policy 11-206 Process for Cease to be a Reporting Issuer Applications – application for a decision that the issuer is not a reporting issuer under applicable securities laws – issuer has de minimis market presence in Canada – issuer has debt securities outstanding – issuer has more than 51 securityholders worldwide.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., s. 1(10)(a)(ii).
National Policy 11-206 Process for Cease to be a Reporting Issuer Applications.
Citation: Re Repsol Oil & Gas Canada Inc., 2017 ABASC 155
September 29, 2017
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
ALBERTA AND ONTARIO
IN THE MATTER OF
THE PROCESS FOR CEASE TO BE
A REPORTING ISSUER APPLICATIONS
IN THE MATTER OF
REPSOL OIL & GAS CANADA INC.
The securities regulatory authority or regulator in each of the Jurisdictions (the Decision Maker) has received an application from the Filer for an order under the securities legislation of the Jurisdictions (the Legislation) that the Filer has ceased to be a reporting issuer in all jurisdictions of Canada in which it is a reporting issuer (the Order Sought).
Under National Policy 11-206 Process for Cease to be a Reporting Issuer Applications (for a dual application):
(a) the Alberta Securities Commission is the principal regulator for this application;
(b) the Filer has provided notice that sub-section 4C.5(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in British Columbia, Saskatchewan, Manitoba, On-tario, Québec, New Brunswick, Nova Scotia, Prince Edward Island, Newfound-land and Labrador, Yukon, Northwest Territories, and Nunavut; and
(c) this order is the order 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 or MI 11-102 have the same meaning if used in this decision, unless otherwise defined.
This order is based on the following facts represented by the Filer:
1. The Filer is a corporation governed by the Canada Business Corporations Act (the CBCA).
2. The Filer’s head and registered office is located in Calgary, Alberta.
3. The Filer is a reporting issuer in each of the jurisdictions of Canada and is applying for a decision that it is not a reporting issuer in each of the jurisdictions of Canada.
4. The Filer was previously named Talisman Energy Inc. and its common shares were previously listed on the Toronto and New York Stock Exchanges. On May 8, 2015, all of the issued and outstanding shares of the Filer were indirectly acquired by Repsol S.A., a Spanish oil and gas company, pursuant to an arrangement under the CBCA. Since May 8, 2015, the Filer has been an indirect, wholly-owned subsidiary of Repsol S.A. Upon completion of the acquisition by Repsol S.A., the Filer’s common and preferred shares were delisted from the Toronto Stock Exchange. The Filer’s common shares were also delisted from the New York Stock Exchange.
5. The Filer currently has outstanding US$1,008,869,000 aggregate principal amount of seven series of notes, as follows:
(a) US$50,382,000 aggregate principal amount of 7.25% debentures due 2027, which were issued on October 16, 1997;
(b) US$87,534,000 aggregate principal amount of 5.75% notes due 2035, which were issued on May 12, 2005;
(c) US$359,923,000 aggregate principal amount of 7.75% notes due 2019, which were issued on June 1, 2009;
(d) US$236,641,000 aggregate principal amount of 3.75% notes due 2021, which were issued on November 12, 2010;
(e) US$102,266,000 aggregate principal amount of 5.85% notes due 2037, which were issued on January 27, 2006;
(f) US$115,158,000 aggregate principal amount of 6.25% notes due 2038, which were issued on November 10, 2006; and
(g) US$56,965,000 aggregate principal amount of 5.50% notes due 2042, which were issued on May 18, 2012,
(collectively, the Notes).
6. All of the Filer’s shares are held by Repsol S.A. as described above. The Filer’s previously issued preferred shares have all been changed into common shares and no preferred shares are currently outstanding. The Filer’s only other outstanding securities are the Notes.
7. Repsol S.A. has now fully and unconditionally guaranteed the due and punctual payment of the principal of, premium, if any, and interest on each series of Notes, when and as the same shall become due and payable.
8. The Notes were issued by the Filer pursuant to offerings in the U.S. made under registration statements filed with the SEC utilizing the multi-jurisdictional disclosure system (the MJDS). No Notes were issued directly to Canadians.
9. The Notes are not convertible or exchangeable into any other voting or equity securities of the Filer. The Notes entitle holders to the payment of principal and interest only and do not entitle the holders to participate in the distribution of the assets of the Filer upon a liquidation or winding up.
10. The Filer has no current intention to redeem any of the Notes prior to their maturity.
11. The Notes trade in the over-the-counter market in the U.S., which is the usual means by which U.S. publicly offered and privately placed investment grade debt securities that are not listed on an exchange are traded.
12. The European Union (EU) rules and regulations on markets in financial instruments allow investment firms and other market participants to apply for the listing of financial instruments on multilateral trading facilities (MTFs) without the consent of the issuer of the instruments. In these cases, the issuer is not subject to any obligation relating to initial, ongoing or ad hoc financial disclosure with regard to those MTFs. Certain of the Notes are currently admitted for trading on an MTF in Europe which publicly reports trading data. During 2016 and the first eight months of 2017, the aggregate trading volume of Notes as reported by that MTF was approximately U.S. $200,000.
13. Except as represented by the Filer in this order, no securities of the Filer, including debt securities, are traded in Canada or another country on a marketplace as defined in National Instrument 21-101 Marketplace Operation or any other facility for bringing together buyers and sellers of securities where trading data is publicly reported.
14. All of the Notes are held in book entry only form and are registered in the name of The Depository Trust Company (DTC) or its nominee. In order to ascertain the number of beneficial holders of Notes and their geographical location, the Filer has made inquiry (the Investigation) through Broadridge Financial Solutions (Broadridge). Broadridge is an experienced provider of financial marketing information and investor communications services. Broadridge reviewed the positions of participants in the book entry only system maintained by DTC and canvassed such participants as to the beneficial holders of Notes. As a result of this process, Broadridge was able to provide data on the number of holders and their geographical location for 90% of the outstanding aggregate principal amount of Notes (which, at March 31, 2017 was $1,095,262,000). Broadridge has advised the Filer that due to inter-participant lending, the potential for some Notes to be in the midst of trade settlement, some beneficial holders electing not to be identified and approximately 1% of the aggregate principal amount of Notes being held through participants who do not subscribe to the services provided by Broadridge, identifying the number and location of the holders of 100% of the Notes is not possible. Since the results of the Investigation count holders by series of notes separately and some holders of Notes own notes of more than one series, the total number of holders is likely to be much lower than the number described below. Based on the Investigation, for the Notes for which Broadridge was able to obtain information on the beneficial ownership, as of March 31, 2017, there were:
(a) 12 holders (representing approximately 0.86% of total holders) located in Canada, holding approximately 0.16% of the aggregate principal amount of the Notes then outstanding;
(b) 1,274 holders located in the U.S., holding approximately 71% of the aggregate principal amount of the Notes then outstanding;
(c) 94 holders located outside of Canada and the U.S., holding approximately 17% of the aggregate principal amount of the Notes then outstanding; and
(d) 10 holders whose location was not identified, holding approximately 2% of the aggregate principal amount of the Notes then outstanding.
15. On July 10, 2017 the Filer completed a successful solicitation (the Consent Solicitation) of holders of Notes for their consent to make certain amendments to the indentures governing the Notes (the Amendments). Noteholders representing more than 85% of the aggregate principal amount outstanding of each series of the Notes consented to the Amendments, thereby exceeding the noteholder consent threshold of either 50% or 66⅔% required to make the Amendments. The Filer also completed a tender offer for the Notes in conjunction with the Consent Solicitation, pursuant to which the Filer purchased and cancelled $86,393,000 aggregate principal amount of the Notes.
16. As a result of the Amendments, the indentures governing the Notes (the Indentures) no longer contain an obligation on the part of the Filer to furnish to the trustees under the Indentures certain periodic disclosure of the Filer, including annual information forms and annual and quarterly financial statements. Instead, the Indentures now require the Filer to furnish the trustees or post on a public website, English translations of certain financial information of Repsol S.A., including Repsol S.A.’s annual audited consolidated financial statements and related management report, its first half-year consolidated financial statements and related management report and consolidated quarterly financial reports for the first and third quarters of each fiscal year.
17. The ordinary shares of Repsol S.A. are listed on the Spanish Stock Exchange. Repsol S.A. files its continuous disclosure documents with the Spanish securities markets authority (Comisión Nacional del Mercado de Valores) and posts them on its corporate website in accordance with applicable requirements of the EU. Such requirements are independent from those arising under the Indentures and from the Filer’s status as a reporting issuer.
18. The Filer will, for the foreseeable future following the Filer ceasing to be a reporting issuer, maintain a credit rating for the Notes by at least one designated rating organization or an affiliate thereof. It is expected that the Notes will be rated based on the guarantee by Repsol S.A. rather than by an independent assessment of the condition and performance (financial or otherwise) of the Filer.
19. The Indentures do not, and did not prior to the Consent Solicitation, require the Filer to maintain reporting issuer status in any jurisdiction.
20. As part of the Consent Solicitation, the Filer disclosed to holders of Notes that it had made an application to cease to be a reporting issuer in each jurisdiction of Canada.
21. As a result of having filed registration statements with the SEC, the Filer was a registrant under the 1934 Act and has filed continuous disclosure documents with the SEC utilizing the MJDS. However, the Filer has been relieved from its reporting obligations under the 1934 Act after having filed a Form 15 with the SEC on July 12, 2017 which de-registered all unsold securities on its previously filed registration statements.
22. The Filer is not subject to any statutory or regulatory (including stock exchange) continuous disclosure reporting obligations other than those arising from the Filer being a reporting issuer in the jurisdictions of Canada. The Filer is not subject to any continuous disclosure reporting obligations by virtue of the trading of Notes through any MTF in the EU.
23. The Filer is unable to rely on the simplified procedure set out in Section 19 of NP 11-206 because the Filer does not meet the requirement of having fewer than 51 securityholders in total worldwide.
24. The Filer is not in default under the securities legislation of any jurisdiction of Canada.
25. In the preceding 12 months the Filer has not taken any steps that indicate there is a market for its securities in Canada.
26. The Filer has no intention to distribute any securities to the public in Canada or seek financing by way of its securities in Canada.
27. The Filer, upon grant of the Order Sought, will no longer be a reporting issuer in any jurisdiction of Canada.
Each of the Decision Makers is satisfied that the order meets the test set out in the Legislation for the Decision Maker to make the order.
The decision of the Decision Makers under the Legislation is that the Order Sought is granted.