Mutual Reliance Review System for Exemptive Relief Applications - relief for non-officer directors of reporting issuer from insider reporting requirements with respect toacquisitions of securities under an automatic share purchase plan, subject to certainconditions including annual reporting.
Securities Act, R.S.O. 1990, c.S.5, as am., ss. 1(1), 107, 108, 121(2)(a)(ii)
Regulation made under the Securities Act, R.R.O. 1990, Reg. 1015, as am., Part VIII
National Instrument 55-101- Exemption From Certain Insider Reporting Requirements(1999), 22 OSCB 5161
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEW SYSTEM FOR EXEMPTIVE RELIEF APPLICATIONS
IN THE MATTER OF
CANADIAN IMPERIAL BANK OF COMMERCE
MRRS DECISION DOCUMENT
WHEREAS the Canadian securities regulatory authority or regulator (the "DecisionMaker") in each of British Columbia, Alberta and Ontario (the "Jurisdictions") has receivedan application from Canadian Imperial Bank of Commerce (the "Applicant") for a decisionpursuant to the securities legislation of the Jurisdictions (the "Legislation") that therequirement contained in the Legislation for an insider of a reporting issuer to file insiderreports (the "Insider Reporting Requirement") shall not apply to certain directors of theApplicant with respect to their acquisition of Common Shares (defined below) under theApplicant's non-officer director share plan (the "Plan"), subject to certain conditions;
AND WHEREAS pursuant to the Mutual Reliance Review System for ExemptiveRelief Applications (the "System"), the Ontario Securities Commission is the PrincipalRegulator for this application;
AND WHEREAS the Applicant has represented to the Decision Makers that:
1. The Applicant is a Schedule 1 Canadian chartered bank governed by the Bank Act(Canada) and is a reporting issuer in each of the provinces of Canada and is notin default of any requirements of the securities legislation of each province ofCanada. The Applicant's head office is located in Toronto, Ontario.
2. The authorized share capital of the Applicant consists of an unlimited number ofcommon shares without par value (the "Common Shares"), the aggregateconsideration of which shall not exceed $10,000 million, an unlimited number ofClass A preferred shares and Class B preferred shares without par value, issuablein series, the aggregate consideration of which shall not exceed $5,000 million foreach class. As at October 15, 1999, 402,278,479 Common Shares were issuedand outstanding.
3. The Common Shares are listed and posted for trading on the Winnipeg, Toronto,New York and London stock exchanges (the "Exchanges").
4. A director of the Applicant, who is neither an employee nor an officer of theApplicant or any subsidiary of the Applicant (an "Eligible Director"), is eligible toparticipate in the Plan.
5. Under the Plan, an Eligible Director may, at his or her option, elect to receive all ora portion of his or her annual directors' fees ("Compensation") in the form of cash,Common Shares or deferred share units ("DSUs"), or any combination thereof. ADSU represents the right to receive the equivalent value of a Common Share incash at the time of the termination of an Eligible Director.
6. Elections are made annually, prior to the commencement of the financial year of theApplicant to which the election relates. An election will remain in effect forsubsequent financial years, unless revoked in writing by the Eligible Director.Where an Eligible Director fails to make an election, and no prior election has beenmade, the Eligible Director is deemed to have elected to receive all of his or herCompensation in the form of cash.
7. Compensation is paid to directors in quarterly installments. The portion of thequarterly net Compensation payment which an Eligible Director elects to receive inthe form of Common Shares is transferred to a discount brokerage firm to purchaseCommon Shares on the Exchanges at such times as the Applicant's "insiderwindows" permit, typically, within two business days after the release of theApplicant's quarterly or annual financial results, as the case may be.
8. The Applicant currently purchases Common Shares under the Plan through thediscount brokerage firm of CIBC Investor's Edge.
9. Except for electing what portion of Compensation is to be paid in the form ofCommon Shares, an Eligible Director has no authority to determine the prices ortimes at which Common Shares are purchased on his or her behalf under the Plan.
10. The Plan is an "automatic securities purchase plan" as such term is defined inproposed National Instrument 55-101 - Exemption From Certain Insider ReportingRequirements (1999), 22 OSCB 5161. Once an Eligible Director elects what, if any,portion of his or her Compensation is to be paid in the form of Common Shares, thetiming of acquisition, the number of Common Shares acquired and the price paidfor such acquisitions are all determined by the criteria set out in the Plan.
11. Unless the order sought is granted, and failing any other exemptive relief, eachEligible Director who elects to receive Common Shares under the Plan would besubject to the Insider Reporting Requirement each time he or she acquiresCommon Shares under the Plan.
AND WHEREAS, pursuant to the System, this MRRS Decision Document evidencesthe decision of each Decision Maker (collectively, the "Decision");
AND WHEREAS each of the Decision Makers is satisfied that the test contained inthe Legislation that provides the Decision Maker with the jurisdiction to make the Decisionhas been met;
IT IS THE DECISION of the Decision Makers pursuant to the Legislation that theInsider Reporting Requirements of the Legislation shall not apply to the acquisition by anEligible Director of Common Shares pursuant to the Plan, provided that:
A. Each Eligible Director shall file, in the form prescribed for the Insider ReportingRequirements, a report disclosing all acquisitions of Common Shares under thePlan that have not been previously reported by or on behalf of the Eligible Director:
(i) if any Common Shares acquired under the Plan during a financial year of theApplicant are disposed of or transferred (other than dispositions or transfersthat do not affect an Eligible Director's beneficial ownership of such CommonShares), within the time required by the Legislation for reporting thedisposition or transfer; and
(ii) if any Common Shares acquired under the Plan during a financial year of theApplicant have not been disposed of or transferred, within 90 days of theend of the financial year of the Applicant.
B. Such exemption is not available to an Eligible Director who beneficially owns,directly or indirectly, voting securities of the Applicant, or exercises control ordirection over voting securities of the Applicant, or a combination of both, that carrymore than 10% of the voting rights attaching to all of the Applicant's outstandingvoting securities.
April 17th, 2000.