Securities Law & Instruments

Headnote

National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- The Filer wants an exemption from the acquisition restrictions in section 93.1 of the Securities Act (Ontario) in connection with acquisitions of securities of the target by an affiliate of the filer under an equity financing to be conducted by the target so that the filer can maintain its current proportionate ownership position in the target.

Applicable Legislative Provisions

Securities Act, R.S.O. 1990, c. S.5, as am., ss. 93.1, 104.

Citation: Vitol Anker International B.V., Re, 2013 ABASC 93

March 6, 2013

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 VITOL ANKER INTERNATIONAL B.V. (the Filer) AND STERLING RESOURCES LTD. (Sterling)

DECISION

Background

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 each of the Jurisdictions (the Legislation) exempting the Filer and its affiliates from the restriction on acquisitions of securities of an issuer once an intention to make a take-over bid for the issuer is announced, to enable the Filer or its affiliates to participate, proportionate to their current share ownership, in an offering (the Financing) of common shares (Common Shares) of Sterling announced on February 19, 2013 (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 System (MI 11-102) is intended to be relied upon in British Columbia, Saskatchewan, Manitoba, Québec, Nova Scotia, New Brunswick, Newfoundland and Labrador, Prince Edward Island, Yukon, Northwest Territories and Nunavut; and

(c) this 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 or MI 11-102 have the same meaning in this decision unless otherwise defined herein.

Representations

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

1. The Filer is a private corporation incorporated under the laws of the Netherlands.

2. Vitol Energy (Bermuda) Ltd. (Vitol Bermuda) currently owns 31,645,042 Common Shares representing approximately 14.05% of the issued and outstanding Common Shares. The Filer and Vitol Bermuda are affiliates of each other because both are directly or indirectly wholly-owned subsidiaries of Vitol Holding B.V. The Filer, Vitol Bermuda and any of their affiliates are herein referred to as the Vitol Group.

3. Sterling is a corporation incorporated under the Business Corporations Act (Alberta).

4. Sterling is a reporting issuer in British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Nova Scotia, New Brunswick, Newfoundland and Labrador and Prince Edward Island. The Common Shares are listed on the TSX Venture Exchange.

5. On February 12, 2013, the Filer announced its intention to make an offer for all of the Common Shares not already owned by the Vitol Group (the Offer) at a price of $0.85 per Common Share.

6. On February 19, 2013, Sterling announced the Financing. The Financing consists of the issuance of an additional 73,333,333 Common Shares to a syndicate of underwriters on a bought-deal basis at a price of $0.75 per Common Share. Under the terms of the Financing, 20,000,000 Common Shares will be offered in Canada by way of short-form prospectus (the Prospectus) and in certain jurisdictions outside Canada on a private placement basis. In addition, 53,333,334 Common Shares will be distributed in Canada on a private placement basis pursuant to applicable exemptions from prospectus requirements (the Private Placement).

7. Sterling has also granted to the underwriters an over-allotment option to acquire up to an additional 3,000,000 Common Shares for a period of 30 days from the date of the Prospectus with respect to the Prospectus portion of the Financing and an underwriter's option, exercisable not less than two business days before the closing of the Private Placement portion of the Financing, to acquire up to an additional 8,000,000 Common Shares at a price of $0.75 per Common Share.

8. The Private Placement is scheduled to close on March 8, 2013 and the Prospectus offering is scheduled to close on March 11, 2013, or in each case on such other date as Sterling and the underwriters agree.

9. The Vitol Group would like to participate in the Financing to purchase up to, but not exceeding, the number of Common Shares that would result in the Vitol Group maintaining its current percentage share ownership position in Sterling.

10. The Filer having announced its intention to make the Offer, the Vitol Group is restricted from acquiring Common Shares outside of the formal bid.

Decision

Each of the Decision Makers is satisfied that the decision meets the test contained 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.

For the Commission:

"Glenda Campbell, QC"
Vice-Chair
 
"Stephen Murison"
Vice-Chair