Provident Energy Trust et al. - MRRS Decision

le 30 septembre 2002

MRRS Decision

Headnote

Mutual Reliance Review System for ExemptiveRelief Applications - Relief from registration and prospectusrequirements for trades made in connection with a take overbid using exchangeable shares for tax reasons where statutoryexemptions are not available - Relief also granted from continuousdisclosure requirements, insider reporting requirements andtake over bid form requirements for Offeror, subject to certainconditions - Relief also granted from the requirement to deliverand provide withdrawal rights in connection with a notice ofchange filed to supplement the take over bid circular.

Statutes Cited

Securities Act, R.S.O. 1990, c. S.5, as am.ss. 74(1), 25, 53, 100(2), 100(4), 104(2)(c), 80(b)(iii) and121(2)(a)(ii).

Rules Cited

Ontario Securities Commission Rule 51-501 -AIF and MD&A.

IN THE MATTER OF

THE SECURITIES LEGISLATIONOF

ALBERTA, BRITISH COLUMBIA,SASKATCHEWAN,

MANITOBA, ONTARIO, QUÉBEC,NEW BRUNSWICK,

PRINCE EDWARD ISLAND, NOVASCOTIA AND

NEWFOUNDLAND AND LABRADOR

AND

IN THE MATTER OF

THE MUTUAL RELIANCE REVIEWSYSTEM

FOR EXEMPTIVE RELIEF APPLICATIONS

AND

IN THE MATTER OF

PROVIDENT ENERGY TRUST,

PROVIDENT ENERGY LTD.,

PROVIDENT ACQUISITIONS INC.AND

MEOTA RESOURCES CORP.

MRRS DECISION DOCUMENT

WHEREAS the local securities regulatoryauthority or regulator (the "Decision Maker") in eachof British Columbia, Alberta, Saskatchewan, Manitoba, Ontario,Québec, New Brunswick, Prince Edward Island, Nova Scotia,Newfoundland and Labrador (the "Jurisdictions") hasreceived an application from Provident Energy Trust ("PET"or the "Trust"), Provident Energy Ltd., a wholly-ownedsubsidiary of PET ("PEL") and Provident AcquisitionsInc., a wholly-owned subsidiary of PEL (the "Offeror",and collectively PET, PEL and the Offeror are referred to hereinas the "Filer"), for a decision under the securitieslegislation of the Jurisdictions (the "Legislation")that:

1. the registration requirement and the prospectusrequirement will not apply to certain trades in securitiesto be made in connection with the offer (the "Offer")to purchase all of the issued and outstanding common shares(the "Common Shares") of Meota Resources Corp. ("Meota"),including any trades in connection with the use of applicablestatutory compulsory acquisition provisions following theOffer under which the Offeror acquires Common Shares (a "SubsequentAcquisition Transaction");

2. in those Jurisdictions in which the Offerorbecomes a reporting issuer or the equivalent under the Legislation,the requirements to issue a press release and file a reportupon the occurrence of a material change, file an annual reportwhere applicable, file interim financial statements and auditedfinancial statements and deliver such statements to the securityholders of the Offeror, file an information circular or makean annual filing in lieu of filing an information circular,where applicable, file an annual information form and providemanagement's discussion and analysis of financial conditionand results of operations (the "Continuous DisclosureRequirements"), will not apply to the Offeror;

3. in those Jurisdictions in which the Offerorbecomes a reporting issuer or the equivalent under the Legislation,the requirement that insiders file reports disclosing theinsider's direct or indirect beneficial ownership of, or controlor direction over, securities and the requirement under NationalInstrument 55-102 System for Electronic Disclosure by Insidersrelating to the electronic filing of insider profiles (the"Insider Reporting Requirements"), will not applyto insiders of the Offeror;

4. the take over bid circular form requirementsof the Legislation, insofar as such form requirements requireprospectus-level disclosure with respect to the Offeror (the"Take Over Bid Circular Form Requirements") in thetake over bid circular to be mailed to the holders of CommonShares (the "Take Over Bid Circular"), will notapply to the Offeror;

5. the take over bid requirements of the Legislationregarding the delivery of a notice of change and the rightof depositing security holders to withdraw their Common Sharesat any time before the expiration of the prescribed periodfrom the date of a notice of change (the "Notice of ChangeRequirements") will not apply to depositing securityholders or to the filing of a notice of change to incorporatethe certificate of PET into the Take Over Bid Circular, asthe case may be;

AND WHEREAS under the Mutual RelianceReview System for Exemptive Relief Applications (the "System"),the British Columbia Securities Commission is the principalregulator for this application;

AND WHEREAS, unless otherwise defined,the terms herein have the meaning set out in National Instrument14-101 Definitions or in Québec Commission Notice14-101;

AND WHEREAS the Filer has representedto the Decision Makers that:

1. Meota is incorporated under the laws ofCanada and is a reporting issuer under the Legislation;

2. the authorized capital of Meota consistsof an unlimited number of Common Shares, an unlimited numberof first preferred shares issuable in series and an unlimitednumber of second preferred shares issuable in series of whichthere were 55,643,136 Common Shares issued and outstandingas of August 12, 2002;

3. the Common Shares are listed on the TorontoStock Exchange (the "TSX");

4. PET is an open-end investment trust establishedunder the laws of Alberta, is a reporting issuer or the equivalentunder the Legislation and is not in default of the requirementsof the Legislation;

5. PET is authorized to issue an unlimitednumber of transferable, redeemable trust units (the "ProvidentUnits") and an unlimited number of special voting units,of which there were 36,927,436 Provident Units outstandingas at August 12, 2002;

6. the Provident Units are listed on the TSXand the American Stock Exchange;

7. PEL is incorporated under the laws of Albertaand is a wholly-owned subsidiary of PET;

8. the Offeror is incorporated under the lawsof Alberta and is a wholly-owned subsidiary of PEL;

9. the authorized capital of the Offeror consistsof an unlimited number of common shares and prior to the closingof the Offer, will also include an unlimited number of exchangeableshares ("Exchangeable Shares") that are exchangeableat any time into Provident Units;

10. the principal rights, privileges, restrictionsand conditions attached to the Exchangeable Shares are describedin the Take Over Bid Circular mailed to the holders of theCommon Shares;

11. PET and Meota have entered into an agreement(the "Acquisition Agreement") under which PET, ora direct or indirect subsidiary of PET, agreed to make theOffer and Meota agreed to support the Offer;

12. on August 13, 2002, PET and Meota issueda joint news release announcing that they had entered intothe Acquisition Agreement whereby PET would make an offerto acquire all the outstanding Common Shares of Meota;

13. under the Offer, each holder of CommonShares may elect to receive either: (i) $4.60 in cash, (ii)0.415 of a Provident Unit, (iii) 0.415 of an ExchangeableShare, or (iv) a combination thereof, subject to a maximumaggregate cash consideration of $27,821,568 plus $0.50 foreach Common Share issued pursuant to the exercise of an optiongranted pursuant to Meota's stock option plan between August12, 2002 and the expiry time of the Offer and subject to amaximum of 6,000,000 Exchangeable Shares being issued in theaggregate;

14. each Exchangeable Share entitles the holderto receive one Provident Unit and an additional number ofProvident Units calculated based on the amount of any interveningdistributions in respect of the Provident Units;

15. PET, PEL, the Offeror, and ComputershareTrust Company of Canada (the "Trustee") will enterinto a support agreement (the "Support Agreement")and a voting and exchange trust agreement (the "Votingand Exchange Trust Agreement") in connection with theterms of the Exchangeable Shares;

16. upon completion of the Offer, PET willissue and deposit with the Trustee a special voting unit whichwill effectively provide the holders of Exchangeable Shareswith voting rights equivalent to those attached to the ProvidentUnits;

17. upon completion of the Offer and any SubsequentAcquisition Transaction, Meota will be wholly-owned by theOfferor, and all former shareholders of Meota will hold eithercash, Provident Units, Exchangeable Shares or a combinationthereof;

18. the Offer is conditional upon, among otherthings:

(a) there being validly deposited underthe Offer and not withdrawn prior to the expiry of the Offerthat number of Common Shares which represents not less than66 2/3% of the number of Common Shares outstanding (on afully diluted basis) as of the time the Offer expires; and

(b) all requisite regulatory approvals havingbeen obtained;

19. the Offeror was recently incorporatedfor the purposes of effecting the Offer and the ExchangeableShares are in substance a proxy for the Provident Units thatare designed to provide an opportunity for the holders ofCommon Shares to defer the tax consequences of disposing oftheir Common Shares under the Offer;

20. PET has agreed under the Acquisition Agreementthat it, or a wholly-owned subsidariary of it, will mail theTake Over Bid Circular to each holder of Common Shares andeach holder of options to purchase Common Shares;

21. the Take Over Bid Circular will containor incorporate by reference prospectus-level disclosure concerningthe business and operations of PET and a detailed descriptionof the rights, privileges, obligations and restrictions respectingthe Exchangeable Shares and the Provident Units;

22. the Offeror will become a reporting issuerunder the Legislation in British Columbia, Saskatchewan, Québec,Nova Scotia and Newfoundland and Labrador upon the filingof the Take Over Bid Circular and, in British Columbia, uponthe take up of, and payment for, the Common Shares, and willbe subject to the Continuous Disclosure Requirements in suchJurisdictions, and insiders of the Offeror will be subjectto the Insider Reporting Requirements in such Jurisdictions;

23. prior to completion of the Offer:

(a) the Offeror has no material assets orliabilities;

(b) all information material to the businessof PET (and relevant to persons considering an investmentin Provident Units or Exchangeable Shares) will be containedin the Take Over Bid Circular and in continuous disclosurefilings made by PET under the Legislation; and

(c) PET will be subject to Continuous DisclosureRequirements under the Legislation and the requirementsof the TSX in respect of making public disclosure of materialinformation on a timely basis;

24. following the completion of the Offer:

(a) the Offeror's principal assets willconsist primarily of the Common Shares that are purchasedby it under the Offer;

(b) the Offeror will have no material liabilitiesother than the credit arrangements with PET to fund thecash portion of the purchase price of the Common Shares;

25. by virtue of the attributes of the ExchangeableShares and the rights established for the benefit of holdersof Exchangeable Shares under the Support Agreement and theVoting and Exchange Trust Agreement, an investment in ExchangeableShares will be, in effect, an investment in Provident Units;

26. except as required by applicable law,holders of Exchangeable Shares are not entitled to vote ExchangeableShares in respect of any matters concerning the Offeror;

27. under the terms of the Voting and ExchangeTrust Agreement, holders of Exchangeable Shares will be entitledto vote, through the Trustee as trustee for the benefit ofholders of Exchangeable Shares, at any meeting of unitholdersof the Trust;

28. the Trustee will hold a special votingunit which will carry a number of votes, exercisable at anymeeting at which unitholders of the Trust are entitled tovote equal to the number of Provident Units into which theExchangeable Shares are then exchangeable;

29. the Trustee will exercise each vote attachedto the special voting unit only as directed by the relevantholder of Exchangeable Shares;

30. holders of Exchangeable Shares would notderive any material benefit from the Offeror being subjectto the Continuous Disclosure Requirements;

31. PET will agree in the Support Agreementto provide to holders of Exchangeable Shares the same documentsand information (including, but not limited to, its annualreport and all proxy solicitation materials) that it willprovide to holders of Provident Units under the Legislation,and to comply with the requirements of the Legislation andthe TSX in respect of making public disclosure of materialinformation on a timely basis;

32. the steps involved in the completion ofthe Offer, any Subsequent Acquisition Transaction, and thecreation and exercise of the exchange rights attaching tothe Exchangeable Shares, the redemption and retraction ofExchangeable Shares and certain other purchases of ExchangeableShares in connection therewith and on the liquidation, dissolutionor winding-up of the Offeror, PEL or PET involve or may involvea number of trades and distributions of securities (collectively,the "Trades");

33. the filing of the Take Over Bid Circularby the Offeror under the Legislation in British Columbia,Saskatchewan, Québec, Nova Scotia and Newfoundlandand Labrador shall constitute the filing of a securities exchangetake over bid circular under the Legislation for purposesof the definition of reporting issuer under such Legislation;

34. the Exchangeable Shares will be the economicequivalent of Provident Units and will have the attributesmore particularly described in the Take Over Bid Circular;

35. holders of Common Shares will make oneinvestment decision when deciding whether to tender theirCommon Shares to the Offer and when voting to approve anySubsequent Acquisition Transaction, and the subsequent tradesof Exchangeable Shares will arise directly out of the collectionof rights acquired by holders of Common Shares who receiveExchangeable Shares in connection with the Offer;

36. if not for income tax considerations,holders of Common Shares who elect to receive ExchangeableShares may have elected to receive Provident Units directlywithout receiving Exchangeable Shares;

37. the Exchangeable Shares will be issuedon a tax-deferred basis;

38. holders of Exchangeable Shares in essencehave a participatory interest in PET rather than in the Offerorand, therefore, certain disclosure required to be providedas a reporting issuer or the equivalent under the Legislationwould not be meaningful to the holders of Exchangeable Shares;

39. the Take Over Bid Circular discloses that,in connection with the Offer, the Filer has applied for relieffrom the Continuous Disclosure Requirements and the InsiderReporting Requirements;

40. the Take Over Bid Circular also specifiesthe disclosure requirements from which the Offeror has appliedto be exempted and identifies the disclosure that will bemade in substitution therefor if such exemptions are granted;

41. PET and the Offeror will file a noticeof change on SEDAR incorporating the certificate of PET intothe Take Over Bid Circular;

42. PET is a qualifying issuer under MultilateralInstrument 45-102 Resale of Securities ("MI 45-102");

AND WHEREAS under the System, this MRRSDecision Document evidences the decision of the Decision Makers(the "Decision");

AND WHEREAS each of the Decision Makersis satisfied that the test contained in the Legislation thatprovides the Decision Maker with the jurisdiction to make theDecision has been met;

THE DECISION of the Decision Makers underthe Legislation is that:

1. the registration requirement and prospectusrequirement will not apply to the Trades, provided:

(a) the first trade in Exchangeable Shares,except for a Trade, in a Jurisdiction shall be a distribution,or primary distribution to the public, under the Legislationof such Jurisdiction; and

(b) the first trade in Provident Units obtainedpursuant to a Trade in a Jurisdiction shall be a distribution,or primary distribution to the public, under the Legislationof such Jurisdiction unless:

(i) except in Québec, the conditionsin subsection (3) of section 2.6 of MI 45-102 are satisfied;

(ii) in Québec, PET is and hasbeen a reporting issuer in Québec for the twelvemonths immediately preceding the alienation, and

(A) no unusual effort is made to preparethe market or to create a demand for the Provident Unitsthat are the subject of the alienation,

(B) no extraordinary commission or considerationis paid in respect of the alienation, and

(C) if the seller of the Provident Unitsis an insider of PET, the seller has no reasonable groundsto believe PET is in default of any requirement of theLegislation;

2. in the Jurisdictions where the Offerorbecomes a reporting issuer under the Legislation, the ContinuousDisclosure Requirements will not apply to the Offeror, forso long as:

(a) PET is a reporting issuer in at leastone of the jurisdictions listed in Appendix B of MI 45-102and is an electronic filer under National Instrument 13-101;

(b) PET concurrently sends to all holdersof Exchangeable Shares resident in all the Jurisdictionsall disclosure material furnished to holders of ProvidentUnits under the Continuous Disclosure Requirements, including,but not limited to, copies of its annual report and allproxy solicitation materials;

(c) PET complies with the requirements ofthe TSX (or such other principal stock exchange on whichthe Provident Units are then listed) in respect of makingpublic disclosure of material information on a timely basisand forthwith issues in the Jurisdictions and files withthe Decision Makers any press release that discloses a materialchange in PET's affairs;

(d) the Offeror provides each recipientof Exchangeable Shares resident in all the Jurisdictionswith a statement that, as a consequence of this Decision,the Offeror and its insiders will be exempt from certaindisclosure requirements applicable to reporting issuersand insiders, and specifying those requirements the Offerorand its insiders have been exempted from and identifyingthe disclosure that will be made in substitution therefor;

(e) the Offeror complies with the requirementsof the Legislation to issue a press release and file a reportwith the Decision Makers upon the occurrence of a materialchange in respect of the affairs of the Offeror that isnot also a material change in the affairs of PET;

(f) PET remains the direct or indirect beneficialowner of all of the issued and outstanding voting securitiesof the Offeror;

(g) PET will include in all future mailingsof proxy solicitation materials to holders of ExchangeableShares a clear and concise insert explaining the reasonfor the mailed material being solely in relation to PETand not to the Offeror, such insert to include a referenceto the economic equivalency between the Exchangeable Sharesand Provident Units and the right to direct voting at meetingsof holders of Units; and

(h) the Offeror does not issue any securitiesto the public other than the Exchangeable Shares;

3. in the Jurisdictions where the Offerorbecomes a reporting issuer under the Legislation, the InsiderReporting Requirements will not apply to any insider of theOfferor who is not also an insider of PET;

4. the Take Over Bid Circular Form Requirementscontained in the Legislation will not apply to the Offeror,provided that:

(a) the Take Over Bid Circular containsprospectus-level disclosure in respect of PET and a completedescription of the rights, privileges, obligations and restrictionsin respect of the Exchangeable Shares; and

(b) PET files a notice of change with theDecision Makers on SEDAR incorporating the certificate ofPET into the Take Over Bid Circular; and

5. the Notice of Change Requirements willnot apply to PET or the Offeror in connection with the noticeof change filed to incorporate the certificate of PET intothe Take Over Bid Circular.

September 30, 2002.

"Brenda Leong"