Securities Law & Instruments

Headnote

National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Application for exemptive relief to permit issuer and underwriter, acting as agent, to make "at-the-market" prospectus distributions (ATM distributions) to purchasers through facilities of Toronto Stock Exchange (TSX) -- issuer proposing to enter into equity distribution agreement with agent relating to ATM distributions through TSX -- ATM distributions to be made pursuant to shelf prospectus procedures in Part 9 of NI 44-102 Shelf Distributions -- issuer will issue a press release and file agreement on SEDAR -- issuer has filed and received a receipt for a short form base shelf prospectus and will file in connection with ATM distribution a prospectus supplement describing terms of equity distribution agreement -- prospectus qualifies distribution of securities by issuer to purchasers who purchase securities from the issuer pursuant to an ATM distribution -- application for relief from prospectus delivery requirement in subsection 71(1) of the Securities Act (Ontario) (the Act) and relief from certain prospectus form requirements (including requirements which prescribe language describing purchasers' statutory rights) -- delivery of prospectus not practicable in circumstances of an ATM distribution as agent will generally be unaware of identity of purchasers -- ATM distribution model premised on concept of "constructive delivery" (access equals delivery) of prospectus to purchasers as a result of filing of prospectus on SEDAR -- relief from prospectus delivery requirement has effect of removing two-day right of withdrawal in subsection 71(2) of the Act and remedies of rescission or damages for non-delivery of the prospectus in 133 of the Act -- remedies a purchaser of securities may have against issuer or agent for rescission or damages if prospectus contains a misrepresentation remain unaffected by non-delivery of prospectus and the MRRS decision -- relief granted on certain terms and conditions including:

    • issuer may issue and sell securities in an amount not to exceed 10% of aggregate market value of outstanding securities in accordance with restrictions contained in Part 9 of NI 44-102;

    • number of securities sold on TSX pursuant to ATM distribution on any trading day may not exceed 25 per cent of the trading volume of the securities on the TSX on that day;

    • prospectus certificate language modified to ensure that, at the time of each sale of securities pursuant to an ATM distribution, prospectus will contain full, true and plain disclosure of all material facts relating to the issuer and securities being distributed;

    • agent is registered as an investment dealer in all jurisdictions and will sign prospectus certificate;

    • issuer will file on SEDAR a report disclosing number and average price of securities distributed over TSX by issuer pursuant to the prospectus filed in connection with ATM distribution as well as gross proceeds, commission and net proceeds within seven calendar days after end of month with respect to sales during prior month;

    • issuer will also disclose number and average price of securities sold under the ATM distribution as well as gross proceeds, commission and net proceeds in the ordinary course in its annual and interim financial statements and MD&A filed on SEDAR;

    • prospectus will contain language clearly describing impact of decision on purchasers' statutory rights; and

    • decision will terminate on the lapse date of the shelf prospectus.

Applicable Ontario Statutory Provisions

Securities Act, R.S.O. 1990, c. S.5, as am., ss. 71(1), 71(2), 133, 147.

Applicable Ontario Rules

National Instrument 44-101 Short Form Prospectus Distributions, Part 8; and Item 20 of Form 44-101F1.

National Instrument 44-102 Shelf Distributions, Part 9; and s. 1.1 of Appendix A.

Citation: Fort Chicago Energy Partners L.P and Canaccord Capital Corporation, Re, 2009 ABASC 179

May 8, 2009

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

FORT CHICAGO ENERGY PARTNERS L.P

(the Issuer)

AND

CANACCORD CAPITAL CORPORATION

(the Agent and, together with the Issuer, the Filers)

 

DECISION

Background

The securities regulatory authority or regulator in each of the Jurisdictions (the Decision Maker) has received an application from the Filers for a decision under the securities legislation of the Jurisdictions (the Legislation) that:

(a) the requirement that a dealer, not acting as agent of the purchaser, who receives an order or subscription for a security offered in a distribution to which the prospectus requirement applies send or deliver to the purchaser or its agent the latest prospectus (including the applicable prospectus supplement(s) in the case of a base shelf prospectus) and any amendment to the prospectus (the Delivery Requirement) does not apply to the Agent or any other Toronto Stock Exchange (TSX) participating organization acting as selling agent for the Agent (each such other organization, a Selling Agent) in connection with any at-the-market distributions (ATM Distributions) within the meaning of National Instrument 44-102 Shelf Distributions (NI 44-102) made by the Issuer pursuant to the terms and conditions of an equity distribution agreement (the Equity Distribution Agreement) among the Issuer, certain of its subsidiaries and the Agent;

(b) the requirements (collectively, the Form Requirements) that (i) a forward-looking issuer certificate included in a prospectus supplement be in a form specified in Appendix A to NI 44-102 and (ii) a statement concerning purchasers' statutory rights of withdrawal and remedies for rescission or damages be included in a short form prospectus in substantially the form prescribed in Item 20 of Form 44-101F1 Short Form Prospectus (such prescribed statement, the Statement of Purchasers' Rights) do not apply to the prospectus supplement of the Issuer to be filed in respect of the sale of Class A limited partnership units (Units) pursuant to ATM Distributions under the Equity Distribution Agreement (the Prospectus Supplement), provided that the alternative form of certificate and disclosure regarding a purchaser's statutory rights described below are included in the Prospectus Supplement; and

(c) that the application and this decision (together, the Confidential Material) be kept confidential and not be made public until the earliest of (i) the date on which the Issuer and the Agent enter into the Equity Distribution Agreement, (ii) the date on which the Filers advise the Decision Makers that there is no longer any need for the Confidential Material to remain confidential, or (iii) the date that is 90 days after the date of this decision.

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 Filers have provided notice that section 4.7(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in British Columbia, Saskatchewan, Manitoba, Québec, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland and Labrador; and

(c) the decision is the decision of the principal regulator and evidences the decision of the securities regulatory authority or regulator in Ontario.

Interpretation

Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this decision, unless otherwise defined in this decision.

Representations

This decision is based on the following facts represented by the Filers:

Fort Chicago Energy Partners L.P.

1. The Issuer is a limited partnership established under the laws of Alberta that owns and operates energy infrastructure assets across North America. The head office of the Issuer (and that of its general partner, Fort Chicago Energy Management Ltd.) is located in Calgary, Alberta.

2. The Issuer is currently a reporting issuer or the equivalent under the securities legislation of each of the provinces of Canada and is not in default of its obligations as a reporting issuer under such legislation.

3. The Units are listed on the TSX.

4. The Issuer has previously filed and received a receipt under the Legislation for a short form base shelf prospectus dated May 2, 2008 providing for the distribution from time to time of Units, Class B limited partnership units, unsecured debt securities and subscription receipts in an aggregate initial offering price of up to $1,500,000,000 (the Shelf Prospectus). The Shelf Prospectus remains in effect and constitutes an "unallocated shelf" within the meaning of Part 3 of NI 44-102.

5. The Shelf Prospectus includes a forward-looking issuer certificate of the Issuer in the form prescribed by method 1 as set forth in section 1.1 of Appendix A to NI 44-102. The Shelf Prospectus also includes a Statement of Purchasers' Rights in the prescribed form.

Canaccord Capital Corporation

6. The Agent is a corporation incorporated under the laws of the Province of British Columbia with its head office in Vancouver, British Columbia.

7. The Agent is registered as an investment dealer under the securities legislation of each of the provinces and territories of Canada, is a member of the Investment Industry Regulatory Organization of Canada, and is a participating organization of the TSX.

Proposed ATM Distribution Arrangement

8. Subject to mutual agreement on terms and conditions, the Issuer proposes to enter into the Equity Distribution Agreement with the Agent providing for periodic sale of Units by the Issuer through the Agent, as agent, pursuant to ATM Distributions under the shelf procedures prescribed by Part 9 of NI 44-102.

9. Prior to making any ATM Distributions, the Issuer will have filed the Prospectus Supplement to qualify the sale of Units under the Equity Distribution Agreement in each of the provinces of Canada, which will describe the Equity Distribution Agreement and otherwise supplement the disclosure in the Shelf Prospectus.

10. If the Equity Distribution Agreement is entered into, the Issuer will issue a news release to announce the same and will file a copy of the agreement on SEDAR. The news release will indicate that the Shelf Prospectus and the Prospectus Supplement have been filed on SEDAR, and will specify where and how purchasers may obtain copies. A copy of the news release will also be posted on the Issuer's website. The news release will serve as the news release contemplated by section 3.2 of NI 44-102 for an expected distribution of equity securities under an unallocated shelf.

11. The Equity Distribution Agreement will limit the number of Units that the Issuer may issue and sell pursuant to any ATM Distribution thereunder to an amount not to exceed 10% of the aggregate market value of the outstanding Units calculated in accordance with section 9.2 of NI 44-102.

12. The Agent will, in turn, sell Units through methods constituting an ATM Distribution, including sales made on the TSX through the Agent, as agent, directly or through a Selling Agent.

13. The Agent will act as the sole agent on behalf of the Issuer in connection with the sale of Units on the TSX pursuant to the Equity Distribution Agreement, and will be the only person or company paid an agency fee or commission by the Issuer in connection with such sales. The Agent will sign an underwriter's certificate in the Prospectus Supplement.

14. The Agent will effect ATM Distributions on the TSX, either itself or through a Selling Agent. If sales are effected through a Selling Agent, the Selling Agent will be paid a customary seller's commission for effecting the trades. A purchaser's rights and remedies under the Legislation against the Agent, as underwriter of an ATM Distribution through the TSX, will not be affected by a decision to effect the sale directly or through a Selling Agent.

15. The number of Units sold on the TSX pursuant to an ATM Distribution on any trading day will not exceed 25% of the trading volume of the Units on the TSX on that day.

16. The Equity Distribution Agreement will provide that, at the time of each sale of Units pursuant to an ATM Distribution, the Issuer will represent to the Agent that the Shelf Prospectus, as supplemented by the Prospectus Supplement and any subsequent amendment or supplement to the Shelf Prospectus or the Prospectus Supplement (together, the Prospectus), contains full, true and plain disclosure of all material facts relating to the Issuer and the Units being distributed. The Issuer will therefore be unable to proceed with sales pursuant to an ATM Distribution when it is in possession of undisclosed information that would constitute a material fact or a material change in respect of the Units.

17. If after the Issuer delivers a notice to the Agent directing the Agent to sell Units on the Issuer's behalf pursuant to the Equity Distribution Agreement (a Sell Notice), the sale of the Units specified in the Sell Notice, taking into consideration prior sales, would constitute a material fact or material change, the Issuer would be required to suspend sales under the Equity Distribution Agreement until either (i) it had filed a material change report or amended the Prospectus, or (ii) circumstances had changed so that the sales would no longer constitute a material fact or material change.

18. In determining whether the sale of the number of Units specified in a Sell Notice would constitute a material fact or material change, the Issuer will take into account a number of factors, including, without limitation (i) the parameters of the Sell Notice, including the number of Units proposed to be sold and any price or timing restrictions that the Issuer may impose with respect to the particular ATM Distribution, (ii) the percentage of outstanding Units that the number of Units proposed to be sold pursuant to the Sell Notice represents, (iii) trading volume and volatility of the Units, (iv) recent developments in the business, affairs and capital structure of the Issuer, and (v) prevailing market conditions generally.

19. The Agent will monitor closely the market's reaction to trades made on the TSX pursuant to an ATM Distribution in order to evaluate the likely market impact of future trades. The Agent has experience and expertise in managing sell orders to limit downward pressure on trading prices. If the Agent has concerns as to whether a particular sell order placed by the Issuer may have a significant effect on the market price of the Units, the Agent will recommend against effecting the trade at that time. It is in the interest of both the Issuer and the Agent to minimize the market impact of sales under an ATM Distribution.

20. The Agent's certificate to be signed by the Agent and included in the Prospectus Supplement will be in the form specified in section 2.2 of Appendix B to NI 44-102.

Disclosure of Units Sold

21. For each month during which Units are distributed on the TSX by the Issuer pursuant to ATM Distributions under the Prospectus, the Issuer will file on SEDAR a report disclosing the number and average price of Units so distributed during that month, as well as total gross proceeds, commission and net proceeds, within seven calendar days after the end of such month.

22. The Issuer will also disclose the number and average price of Units sold pursuant to ATM Distributions under the Prospectus, as well as total gross proceeds, commission and net proceeds, in the ordinary course in its annual and interim financial statements and MD&A filed on SEDAR.

Prospectus Delivery Requirement

23. Pursuant to the Delivery Requirement, a dealer effecting a trade of Units on the TSX on behalf of the Issuer as part of an ATM Distribution is required to deliver a copy of the prospectus (including the applicable prospectus supplement(s) in the case of a base shelf prospectus) to the purchaser within prescribed time limits.

24. The delivery of a prospectus is not practicable in the circumstances of an ATM Distribution on the TSX as the dealer effecting the trade will not know the purchaser's identity.

25. A purchaser of securities offered by a prospectus during the period of distribution is deemed to have relied on a misrepresentation in the prospectus if it was a misrepresentation at the time of purchase.

Withdrawal Right

26. Pursuant to the Legislation, an agreement to purchase securities offered in a subscription to which the prospectus requirement applies is not binding on the purchaser if the dealer receives, not later than the prescribed time following receipt by the purchaser of the latest prospectus or any amendment to the prospectus, notice in writing that the purchaser does not intend to be bound by the agreement of purchase (the Withdrawal Right).

27. The Withdrawal Right is not workable in the context of an ATM Distribution because a prospectus will not be delivered to a purchaser of Units thereunder.

Right of Action for Non-Delivery

28. Pursuant to the Legislation, a purchaser of a security to whom a prospectus was required to be sent or delivered in compliance with the Delivery Requirement, but was not so sent or delivered, has a right of action for rescission or damages against the dealer who did not comply with the Delivery Requirement (the Right of Action for Non-Delivery).

29. The Right of Action for Non-Delivery is not workable in the context of an ATM Distribution because a prospectus will not be delivered to a purchaser of Units thereunder.

Prospectus Form Requirements

30. Exemptive Relief from the Form Requirements for the Issuer's forward-looking certificate in the Prospectus Supplement is required to reflect that no pricing supplement will be filed subsequent to the Prospectus Supplement. Accordingly, the form of certificate prescribed by the Form Requirements will be deleted and the following substituted therefor:

This short form prospectus, as supplemented by the foregoing, together with the documents incorporated in this prospectus by reference as of the date of a particular distribution of securities offered by this prospectus, will, as of that date, constitute full, true and plain disclosure of all material facts relating to the securities offered by this prospectus, as required by the securities legislation of each of the provinces of Canada.

31. The modified forward-looking issuer certificate will, for purposes of any distribution of Units pursuant to an ATM Distribution under the Prospectus Supplement, supersede and replace the forward-looking issuer certificate contained in the Shelf Prospectus.

32. Exemptive Relief from the Form Requirements for the Statement of Purchasers' Rights in the Prospectus Supplement is required to reflect the relief from the Delivery Requirement. Accordingly, the language of the Statement of Purchasers' Rights prescribed by the Form Requirements will be deleted and the following substituted therefor:

Securities legislation in certain of the provinces of Canada provides purchasers with the right to withdraw from an agreement to purchase securities and with remedies for rescission or, in some jurisdictions, revision of the price, or damages if the prospectus, prospectus supplements relating to securities purchased by a purchaser and any amendment are not delivered to the purchaser, provided that the remedies are exercised by the purchaser within the time limit prescribed by securities legislation. However, purchasers of securities under an at-the-market distribution by the Issuer will not have any right to withdraw from an agreement to purchase the securities, and will not have remedies for rescission or, in some jurisdictions, revision of the price, or damages for non-delivery, because the prospectus, prospectus supplements relating to securities purchased by a purchaser and any amendment will not be delivered as permitted under a decision dated •, 2009.

Securities legislation also provides purchasers with remedies for rescission or, in some jurisdictions, revision of the price, or damages if the prospectus, prospectus supplements relating to securities purchased by a purchaser and any amendment contain a misrepresentation, provided that the remedies are exercised by the purchaser within the time limit prescribed by the securities legislation of the purchaser's jurisdiction. Any remedies under securities legislation that a purchaser of securities under an at-the-market distribution by the Issuer may have against the Issuer or the Agent for rescission or, in some jurisdictions, revision of the price, or damages if the prospectus, prospectus supplements relating to securities purchased by a purchaser and any amendment contain a misrepresentation remain unaffected by the non-delivery and the decision referred to above.

Purchasers should refer to the applicable provisions of the securities legislation of their respective jurisdictions and the decision referred to above for the particulars of their rights or consult with a legal adviser.

33. The modified disclosure of purchasers' rights will, for purposes of any distribution of Units pursuant to an ATM Distribution under the Prospectus Supplement, supersede and replace the Statement of Purchasers' Rights contained in the Shelf Prospectus.

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:

(a) provided that the representations in sections 10, 12, 13, 14 and 15 are complied with, the Delivery Requirement under the Legislation of each Jurisdiction does not apply to the Agent or any Selling Agent and, as a result, the Withdrawal Right and the Right of Action for Non-Delivery will not apply to any ATM Distributions;

(b) provided that the disclosure described in sections 21, 30 and 32 is made, the Form Requirements do not apply under the Legislation of each Jurisdiction to the prospectus of the Issuer filed in connection with any ATM Distributions;

(c) the Confidential Material will be kept confidential and not be made public until the earliest of (i) the date on which the Issuer and the Agent enter into the Equity Distribution Agreement, (ii) the date on which the Filers advise the Decision Makers that there is no longer any need for the Confidential Material to remain confidential, or (iii) the date that is 90 days after the date of this decision; and

(d) this decision will terminate on the lapse date of the Shelf Prospectus under the Legislation of each Jurisdiction.

"Glenda A. Campbell, QC"
Alberta Securities Commission
 
"Stephen R. Murison"
Alberta Securities Commission