Securities Law & Instruments

Headnote

MRRS - Relief granted from: (1) the registration and prospectus requirement; (2) theinsider trade reporting requirement; and (3) the requirement to file and deliver annualand interim financial statements in connection with the operation of an employee stockpurchase fund subject to certain conditions.

Applicable Ontario Statutory Provisions

Securities Act, R.S.O. 1990, c.S.5, as am. s. 25,53,74,77,78,80(b)(iii),107, 121(2).

Regulations Cited

Regulation made under the Securities Act, R.R.O. 1990, Reg. 1015, as am.,

Instruments Cited

Proposed National Instrument 55-101 Exemption from Certain Insider ReportingRequirements

Rules Cited

Rule 45-503 - Trades to Employees, Executives and Consultants


IN THE MATTER OF THE SECURITIES LEGISLATION OF BRITISH COLUMBIA, ALBERTA, SASKATCHEWAN, MANITOBA, ONTARIO,QUEBEC, NEWFOUNDLAND, NOVA SCOTIA, NEW BRUNSWICK AND PRINCE EDWARD ISLAND

AND

IN THE MATTER OF
THE MUTUAL RELIANCEREVIEW SYSTEM FOR EXEMPTIVE RELIEF APPLICATIONS

AND

IN THE MATTER OF
SUN LIFE FINANCIAL SERVICES OF CANADA AND THE SUN LIFE EMPLOYEE STOCK FUND

MRRS DECISION DOCUMENT


WHEREAS the local securities regulatory authority or regulator (the "DecisionMaker") in each of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Québec,Newfoundland, Nova Scotia, New Brunswick and Prince Edward Island (the "Jurisdictions")has received an application on behalf of Sun Life Financial Services of Canada ("Sun LifeFinancial") and the Sun Life Employee Stock Fund (the "Fund") (collectively, the "Filer")for a decision under the securities legislation of the Jurisdictions (the "Legislation") that:(i) the requirements contained in the Legislation to be registered to trade in a security andto file and obtain a receipt for a preliminary prospectus and a prospectus (the "Registrationand Prospectus Requirements") shall not apply to the distribution of units of the Fund tothe Participants (as defined below); (ii) the requirements contained in the Legislation ofOntario only to prepare and file financial statements (the "Financial StatementRequirements") shall not apply to the Fund; and (iii) the requirement contained in theLegislation for an insider of a reporting issuer to file insider reports (the "Insider ReportingRequirements") shall not apply to automatic investments by insiders of Sun Life Financialwho are participants (the "Participating Insiders") in the Fund, 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 Filer has represented to the Decision Makers that:

 

1. Sun Life Financial is a reporting issuer or equivalent in the Jurisdictions and is notin default of any requirements of the Legislation.

2. The common shares of Sun Life Financial are listed on the Toronto Stock Exchange(the "TSE"), the New York Stock Exchange, the London Stock Exchange and thePhilippine Stock Exchange.

3. Sun Life Financial and its subsidiaries (collectively, "Sun Life") have approximately4,200 employees in Canada.

4. The Fund is being established for the sole purpose of providing employees of SunLife with the ability to indirectly acquire an interest in the shares of Sun LifeFinancial.

5. The Fund will be established by a declaration of trust pursuant to the laws ofOntario and will be a mutual fund in Ontario as that term is defined in the Act.

6. Units of the Fund will not be transferable.

7. Employees of Sun Life will be the only parties entitled to purchase units of theFund.

8. Participation by employees of Sun Life in the Fund will be voluntary. Employeesof Sun Life will not be induced to purchase units of the Fund by expectation ofemployment or continued employment.

9. Employees of Sun Life participating in the Fund ("Participants") may acquire unitsof the Fund in two ways:

(a) pursuant to automatic payroll deduction (the "Automatic Purchase Feature"),Participants may elect to have a percentage of their salary automaticallydeducted on a bi-weekly basis and deposited with the trustee to be used topurchase common shares of Sun Life Financial; and

 

(b) pursuant to a lump sum payment option (the "Lump Sum Feature"),Participants are permitted to make lump sum cash payments to the trustee,or to transfer funds from another Sun Life savings plan, to be used topurchase common shares of Sun Life Financial.

 

The timing of an investment through the Lump Sum Feature will be at the discretionof the Participants, subject to the restrictions imposed on Participating Insiders inSun Life Financial's insider trading policy which restricts an Insider from obtainingunits during certain specified periods.

 

10. Other than the Lump Sum Feature, the Fund will qualify as an "automatic securitiespurchase plan" as defined in proposed National Instrument 55-101 "Exemption fromCertain Insider Reporting Requirements".

11. The number of common shares of Sun Life Financial to be acquired under the Fundis expected to be de minimus in relation to the number of common shares of SunLife Financial issued and outstanding.

12. The Fund's assets will be composed of approximately 98% common shares of SunLife Financial and 2% cash. The initial value of $10 per unit will fluctuate primarilywith the market price of the Sun Life Financial shares on the TSE. The units will beredeemable for shares of Sun Life Financial. The number of Sun Life Financialshares represented by the units will be determined by dividing the then currentvalue of the units by the closing share price of the Sun Life Financial shares on theTSE at 4:00 p.m. on any day on which the TSE is open for trading.

13. Prior to the initial purchase of units by a Participant, Sun Life will provide theParticipant with an information brochure (the "Information Brochure") disclosing,among other things, the objective of the Fund, the management fee paid to theTrustee by the Fund, the method of valuation of a unit for purchases orredemptions, the voting and dividend rights of unitholders and the Canadian incometax consequences of acquiring, holding and disposing of units of the Fund.

14. It is contemplated that a Canadian trust company (the "Trustee") will act as trusteeand custodian of the Fund.

15. Sun Life will pay the Trustee an administrative fee of $13,000. In addition, theTrustee will receive a management fee of 0.20% of the net asset value of the Fundper year, which fee will be charged to the Fund. Sun Life Assurance Company ofCanada will perform various administrative services for the Fund pursuant to acontract with the Trustee and will be compensated by the Trustee for theperformance of such services.

16. The voting, dividend and continuous disclosure rights and other rights andentitlements with respect to ownership of shares of Sun Life Financial will flowthrough to the Participants in the Fund.

17. The Participants will be provided with audited annual financial statements of SunLife Financial and all other materials sent to shareholders of Sun Life Financial.The Participants will also be asked whether they wish to receive the unauditedinterim financial statements of Sun Life Financial.

18. It is expected that the offering of shares of Sun Life Financial to employees of SunLife indirectly through the Fund will be beneficial to the employees by allowing thepooling of investments so that shares of Sun Life Financial may be purchased insufficient quantities to keep brokerage costs to a minimum and ensuring theemployees a higher level of liquidity than would be the case with a directinvestment.

19. The tax treatment that a Participant would receive through holding an interest inshares of Sun Life Financial indirectly through the Fund is virtually identical to thatwhich he or she would receive through buying shares of Sun Life Financial directly.

20. Exemptions from the Registration and Prospectus Requirements contained in theLegislation in connection with the purchase of shares of an issuer by employees arenot available since employees of Sun Life are acquiring units of the Fund, ratherthan directly acquiring shares of Sun Life Financial.

AND WHEREAS, pursuant to the System, this Decision Document evidences thedecision 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 HEREBY DECIDED by the Decision Makers pursuant to the Legislation thatthe Registration and Prospectus Requirements shall not apply to an issuance of units ofthe Fund to Participants provided that:

 

(i) the sole investment objective of the Fund is to acquire the shares of Sun LifeFinancial;

(ii) prior to the initial issuance of units of the Fund to a Participant, suchParticipant is provided with a statement that as a consequence of thisDecision certain protections, rights and remedies provided by the legislation,including statutory rights of rescission and damages, will not be available inrespect of the units of the Fund issued pursuant to this Decision; and

(iii) prior to the initial issuance of units of the Fund to a Participant, suchParticipant is provided with an Information Brochure containing relevantinformation concerning the Fund, including the Canadian income taxconsequences of acquiring, holding and disposing of units thereof.

 

AND IT IS FURTHER DECIDED by the Decision Makers pursuant to the Legislationof Ontario only that the Financial Statement Requirements shall not apply to the Fundprovided that:

(i) the sole investment objective of the Fund is to acquire the shares of Sun LifeFinancial; and

(ii) the Participants will be provided with audited annual and, if they request,unaudited interim financial statements of Sun Life Financial and all othermaterials sent to shareholders of Sun Life Financial.

AND IT IS FURTHER DECIDED by the Decision Makers pursuant to the Legislationthat the Insider Reporting Requirements shall not apply to Participating Insiders withrespect to the acquisition of units in the Fund pursuant to the Automatic Purchase Featureof the Fund, provided that:

(i) each such Participating Insider shall report, in the form prescribed for insidertrading reports under the Legislation, all acquisitions of units of the Fund andthe resulting change or changes in his or her direct or indirect beneficialownership of or control over securities of Sun Life Financial under theAutomatic Purchase Feature of the Fund that have not previously beenreported by or on behalf of the insider

(A) for any units of the Fund acquired under the Automatic PurchaseFeature of the Fund which have been disposed of or transferred,within the time required by the Legislation for reporting the dispositionor transfer; and

(B) for any units of the Fund acquired under the Automatic PurchaseFeature of the Fund during a calendar year (the "Reporting Period")which have not been disposed of or transferred, within 90 days of theend of the Reporting Period;

(ii) if a Participant becomes an insider during a Reporting Period, then for thepurposes of the first insider trading report contemplated by paragraph (i)(B)above the "Reporting Period" for that insider shall be calculated as theperiod of time commencing on the date the Participant became an insiderthrough to December31 of that year;

(iii) if, at any time during a Reporting Period other than at the commencement ofsuch period, a Participating Insider determines to adopt the use of an insidertrading report as contemplated by paragraph (i)(B) above to reportacquisitions of units of the Fund and the resulting change or changes in theParticipating Insider's direct or indirect beneficial ownership of or control ordirection over securities of Sun Life Financial pursuant to the AutomaticPurchase Feature of the Fund, then for the purposes of the first insidertrading report contemplated by paragraph (i)(B) above the "ReportingPeriod" shall be calculated as the period of time commencing on the date onwhich such determination is made through to December 31 of that year; and

(iv) the Participating Insider does not beneficially own, directly or indirectly,voting securities of Sun Life Financial or units of the Fund, or exercisecontrol or direction over voting securities of Sun Life Financial or units of theFund, or a combination of both, that carry more than 10 per cent of thevoting rights attaching to all outstanding voting securities of Sun LifeFinancial.

June 27th, 2000.

"J. A. Geller"    "David Brown"