Mutual Reliance Review System for Exemptive Relief Applications - subdivided offering - the prohibitions contained in the Legislation prohibiting trading in portfolio shares by persons or companies having information concerning the trading programs of mutual funds shall not apply to the promoter/agent with respect to certain principal trades with the issuer in securities comprising the issuers portfolio in connection with an offering where underlying interest consists of a portfolio of common shares of a chartered Canadian bank.
The restrictions restricting registrants from acting as underwriters in connection with thedistribution of securities of a related or connected issuer shall not apply to thepromoter/agent in connection with the offering.
Market making trades by promoter/agent shall not be subject to requirements to file andobtain a receipt for a preliminary and final prospectus provided that the promoter/agentand its affiliates do not beneficially own or have the power to exercise control of asufficient number of voting securities of an issuer of the securities comprising theissuer=s portfolio to permit the promoter/agent to affect materially the control of suchissuer.
Issuer, a mutual fund, exempted from restriction against making an investment in anyperson or company who is a substantial security holder of the mutual fund, itsmanagement company or distribution company.
Applicable Ontario Statutes
Securities Act, R.S.O. 1990, c.S.5, as amended, ss. 1(1), 53, 59, 74(1), 111(2)(a), 119,121(2)(a)(ii).
Applicable Ontario Regulations
Regulation made under the Securities Act, R.R.O. 1990, Reg. 1015, as amended, ss.233, 224(1)(b).
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEW SYSTEM FOR EXEMPTIVE RELIEF APPLICATIONS
IN THE MATTER OF
TD SPLIT INC. AND TD SECURITIES INC.
MRRS DECISION DOCUMENT
WHEREAS the local securities regulatory authority or regulator (the "DecisionMaker") in each of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec,Nova Scotia, Newfoundland, New Brunswick and Prince Edward Island (the "Jurisdictions")has received an application from TD Split Inc. (the "Issuer") and TD Securities Inc. ("TDSecurities") for a decision under the securities legislation (the "Legislation") of theJurisdictions that the following requirements contained in the applicable Legislation shallnot apply to the Issuer and/or TD Securities, as applicable, in connection with the initialpublic offering (the "Offering") of class A capital shares (the "Capital Shares") and classA preferred shares (the "Preferred Shares") of the Issuer:
(a) in the case of the Legislation of each of the Jurisdictions other than Nova Scotiaand Manitoba, the restrictions contained therein restricting registrants from actingas underwriters in connection with the distribution of securities of a related orconnected issuer (the "Underwriting Restrictions") shall not apply to TD Securitiesin connection with the Offering;
(b) the requirements contained in the Legislation of each of the Jurisdictions to file andobtain a receipt for a preliminary prospectus and final prospectus (the "ProspectusRequirements") shall not apply to Market Making Trades (as hereinafter defined)by TD Securities in Capital Shares and Preferred Shares of the Issuer;
(c) in the case of the Legislation of each of the Jurisdictions other than Manitoba, theprohibitions contained therein prohibiting trading in portfolio shares by persons orcompanies having information concerning the trading programs of mutual funds (the"Principal Trading Prohibitions") shall not apply to TD Securities in connection withthe Principal Sales and Principal Purchases (both as hereinafter defined); and
(d) in the case of the Legislation of each of the Jurisdictions other than Manitoba, therestrictions contained therein prohibiting the Issuer from making investments in TheToronto-Dominion Bank, which bank is a substantial security holder of a distributioncompany of the Issuer (the "Investment Restrictions") shall not apply to the Issuerin connection with the Offering;
subject to certain restrictions;
AND WHEREAS under the Mutual Reliance Review System for Exemptive ReliefApplications (the "System"), the Ontario Securities Commission is the principal regulatorfor this application;
AND WHEREAS the Issuer has represented to the Decision Makers that:
1. The Issuer was incorporated on July 31, 2000 under the laws of the Province ofOntario and has its principal office in Toronto, Ontario.
2. The Issuer has filed with the securities regulatory authorities of each Jurisdictiona preliminary prospectus dated August 3, 2000 (the "Preliminary Prospectus") inrespect of the Offering of Capital Shares and Preferred Shares to the public.
3. The Issuer intends to become a reporting issuer under the Legislation by filing afinal prospectus (the "Final Prospectus") relating to the Offering.
4. The Issuer is authorized to issue an unlimited number of Class A voting shares (the"Class A Shares"), of which 100 Class A Shares are currently outstanding.
5. Prior to the filing of the Final Prospectus, the articles of incorporation of the Issuerwill be amended so that the authorized capital of the Issuer will consist of anunlimited number of Capital Shares, an unlimited number of Preferred Shares, anunlimited number of Class B, Class C and Class D Preferred Shares, issuable inseries, and an unlimited number of Class E voting shares (the "Class E Shares"),having the attributes set forth under the headings "Description of Share Capital"and "Details of the Offerings" commencing on page 11 of the PreliminaryProspectus.
6. At the time of filing the Final Prospectus, all Class A Shares will be converted intoClass E Shares and, as at such time, 100 Class E Shares will be issued andoutstanding. The Class E Shares will be the only voting shares in the capital of theIssuer. TD Securities will own 50 of the issued and outstanding Class E and TDSplit Holdings Corporation will own the remaining 50 issued and outstanding ClassE Shares. Two employees of TD Securities, J. David Beattie and R. Denys Calvin,each own 50% of the issued and outstanding common shares of TD Split HoldingsCorporation.
7. The Capital Shares and Preferred Shares may be surrendered for retraction at anytime in the manner described in the Preliminary Prospectus.
8. Application will be made to list the Capital Shares and Preferred Shares on TheToronto Stock Exchange (the "TSE").
9. All Capital Shares and Preferred Shares outstanding on a date approximately fiveyears from the closing of the Offering will be redeemed by the Issuer on such dateand Preferred Shares will be redeemable at the option of the Issuer on any AnnualRetraction Payment Date (as described in the Preliminary Prospectus).
10. The Issuer has a board of directors which currently consists of three directors. Allof the directors are employees of TD Securities. Also, the offices of President/ChiefExecutive Officer and Chief Financial Officer/Secretary of the Issuer are held byemployees of TD Securities. Prior to filing the Final Prospectus, it is contemplatedthat at least two additional directors, independent of TD Securities, will beappointed to the board of directors of the Issuer.
11. The Issuer is a passive investment company whose principal undertaking will be toinvest the net proceeds of the Offering in a portfolio (the "Portfolio") of publiclylisted common shares (the "TD Bank Shares") of The Toronto-Dominion Bank (the"TD Bank"). The aggregate number of TD Bank Shares to be included in thePortfolio will represent less than 2% of the public market capitalization of the TDBank. The purpose of the Issuer is to provide a vehicle through which differentinvestment objectives with respect to participation in TD Bank Shares may besatisfied.
12. The TD Bank Shares are listed and traded on the TSE.
13. The Issuer is considered to be a mutual fund as defined in the Legislation. Sincethe Issuer does not operate as a conventional mutual fund, it has made applicationfor a waiver from certain requirements of National Instrument 81-102.
14. TD Securities was incorporated under the federal laws of Canada and is a direct,wholly-owned subsidiary of the TD Bank and is registered under the Legislation asa dealer in the categories of "broker" and "investment dealer" and is a member ofthe Investment Dealers Association of Canada and the TSE.
15. TD Securities is the promoter of the Issuer and will be establishing a credit facilityin favour of the Issuer in order to facilitate the acquisition of the TD Bank Sharesby the Issuer.
16. Pursuant to an administration agreement (the "Administration Agreement") to beentered into, the Issuer will retain TD Securities to administer the ongoingoperations of the Issuer and will pay TD Securities a fee equal to:
(a) monthly fee of 1/12 of 0.15% of the market value of the TD Bank Shares held in the Portfolio; and
(b) any interest income earned by the Issuer during the term of the Administration Agreement.
17. Pursuant to an agreement (the "Agency Agreement") to be made between theIssuer and TD Securities, Scotia Capital Inc. and such other agents as may beappointed after the date of this decision document (collectively, the "Agents" andindividually, an "Agent"), the Issuer will appoint the Agents, as its agents, to offerthe Capital Shares and Preferred Shares of the Issuer on a best efforts basis andthe Final Prospectus qualifying the Offering will contain a certificate signed by eachof the Agents in accordance with the Legislation.
18. TD Securities' economic interest in the Issuer and in the material transactionsinvolving the Issuer are disclosed in the Preliminary Prospectus and will bedisclosed in the Final Prospectus under the heading "Interest of Management andOthers in Material Transactions".
19. The net proceeds from the sale of the Capital Shares and Preferred Shares underthe Final Prospectus, after payment of commissions to the Agents, expenses ofissue and carrying costs relating to the acquisition of the TD Bank Shares, will beused by the Issuer to:
(a) pay the acquisition cost (including any related costs or expenses) of the TDBank Shares; and
(b) pay the initial fee payable to TD Securities for its services under theAdministration Agreement (as defined below).
20. Pursuant to an agreement (the "Securities Purchase Agreement") to be entered intobetween the Issuer and TD Securities, TD Securities will purchase, as agent for thebenefit of the Issuer, TD Bank Shares in the market on commercial terms or fromnon-related parties with whom TD Securities and the Issuer deal at arm's length.
21. The Final Prospectus will disclose the acquisition cost of the TD Bank Shares andselected information with respect to the dividend and trading history of the TD BankShares.
22. Subject to the relief granted hereby, TD Securities may, as principal, sell TD BankShares to the Issuer (the "Principal Sales"). The aggregate purchase price to bepaid by the Issuer for the TD Bank Shares (together with carrying costs and otherexpenses incurred in connection with the purchase of TD Bank Shares) will notexceed the net proceeds from the Offering.
23. The Preliminary Prospectus discloses and the Final Prospectus will disclose thatany Principal Sale will be made in accordance with the rules of the applicable stockexchange and the price paid to TD Securities (inclusive of all transaction costs, ifany) will not be greater than the price which would have been paid (inclusive of alltransaction costs, if any) if the acquisition had been made through the facilities ofthe principal stock exchange on which the TD Bank Shares are listed and postedfor trading at the time of the purchase from TD Securities.
24. TD Securities will not receive any commissions from the Issuer in connection withthe Principal Sales and all Principal Sales will be approved by at least twoindependent directors of the Issuer.
25. For the reasons set forth in paragraphs 22 and 23 above, and the fact that nocommissions are payable to TD Securities in connection with the Principal Sales,in the case of the Principal Sales, the interests of the Issuer and the shareholdersof the Issuer may be enhanced by insulating the Issuer from price increases inrespect of the TD Bank Shares.
26. None of the TD Bank Shares to be sold by TD Securities as principal to the Issuerhave been acquired, nor has TD Securities agreed to acquire, any TD Bank shareswhile TD Securities had access to information concerning the investment programof the Issuer, although certain of the TD Bank Shares to be held by the Issuer maybe acquired or TD Securities may agree to acquire such TD Bank Shares on orafter the date of this Decision Document.
27. The Issuer is not, and will not upon the completion of the Offering, be an insider ofthe TD Bank within the meaning of the Legislation.
28. TD Securities does not have knowledge of a material fact or material change withrespect to the TD Bank that has not been generally disclosed.
29. It will be the policy of the Issuer to hold the TD Bank Shares and to not engage inany trading of the TD Bank Shares, except:
(a) to fund retractions or redemptions of Capital Shares and Preferred Shares;
(b) to fund a portion of the fixed cumulative dividends payable on the Preferred Shares;
(c) following receipt of stock dividends on the TD Bank Shares; or
(d) in certain other limited circumstances as described in the Preliminary Prospectus.
30. In connection with the services to be provided by TD Securities to the Issuerpursuant to the Administration Agreement, TD Securities may sell TD Bank Sharesto fund retractions of Capital Shares and Preferred Shares prior to the RedemptionDate and upon liquidation of the TD Bank Shares prior to the Redemption Date.These sales will be made by TD Securities as agent on behalf of the Issuer, but incertain circumstances, such as where a small number of Capital Shares andPreferred Shares have been surrendered for retraction, TD Securities maypurchase TD Bank Shares as principal (the "Principal Purchases") subject to therelief granted hereby.
31. In connection with any Principal Purchases, TD Securities will comply with therules, procedures and policies of the applicable stock exchange of which it is amember and in accordance with orders obtained from all applicable securitiesregulatory authorities. The Preliminary Prospectus discloses and the FinalProspectus will disclose that TD Securities may realize a gain or loss on the resaleof such securities.
32. The Administration Agreement will provide that TD Securities must take reasonablesteps, such as soliciting bids from other market participants or such other steps asTD Securities, in its discretion, considers appropriate after taking into accountprevailing market conditions and other relevant factors, to enable the Issuer toobtain the best price reasonably available for the TD Bank Shares so long as theprice obtained is at least as advantageous to the Issuer as the price which isavailable (net of all transaction costs, if any) through the facilities of the applicablestock exchange at the time of the trade.
33. TD Securities will not receive any commissions from the Issuer in connection withthe Principal Purchases and, in carrying out the Principal Purchases, TD Securitiesshall deal fairly, honestly and in good faith with the Issuer.
34. TD Securities will be a significant maker of markets for the Capital Shares andPreferred Shares, although it is not anticipated that TD Securities will be appointedthe registered pro-trader by the TSE with respect to the Issuer. As a result, asdiscussed above TD Securities will, from time to time, purchase and sell CapitalShares and Preferred Shares as principal and trade in such securities as agent onbehalf of its clients, the primary purpose of such trades (the "Market MakingTrades") being to provide liquidity to the holders of Capital Shares and PreferredShares. All trades made by TD Securities as principal will be recorded daily by theTSE.
35. As TD Securities owns 50% of the Class E Shares of the Issuer, TD Securities willbe deemed to be in a position to effect materially the control of the Issuer andconsequently, each Market Making Trade will be a "distribution" or "distribution tothe public" within the meaning of certain of the Legislation.
36. By virtue of TD Securities' relationship with the Issuer, including the fact that threeof the directors of the Issuer and all of the officers of the Issuer are employees ofTD Securities and TD Securities is the Promoter of the Issuer, the Issuer is aconnected issuer (or its equivalent) and/or related issuer (or its equivalent) of TDSecurities under certain of the Legislation.
37. The TD Bank is a substantial security holder of TD Securities, which is a distributioncompany of the Issuer. Accordingly, an investment by the Issuer in the TD BankShares will constitute an investment in a substantial security holder of a distributioncompany of the Issuer which, in the absence of the relief hereby granted, isprohibited by certain of the Legislation.
38. Although TD Securities and Scotia Capital Inc. will be lead and co-lead underwritersof the Offering, respectively, it is not known at this time what proportions of theOffering will be sold by additional agents other than TD Securities and ScotiaCapital Inc. A minimum of 20% of the Offering will be sold by Scotia Capital Inc.
AND WHEREAS under the System, this MRRS 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;
The Decision of the Decision Makers pursuant to the Legislation is that:
A. The Underwriting Restrictions shall not apply to TD Securities in connection with the Offering.
B. The Prospectus Requirements shall not apply to the Market Making Tradesby TD Securities in the Capital Shares and Preferred Shares provided thatat the time of each Market Making Trade, TD Securities and its affiliates donot beneficially own or have the power to exercise control or direction overa sufficient number of voting securities of the TD Bank, securities convertibleinto voting securities of the TD Bank, options to acquire voting securities ofthe TD Bank, or any other securities which provide the holder with the rightto exercise control or direction over voting securities of the TD Bank whichin the aggregate, permit TD Securities to affect materially the control of theTD Bank and without limiting the generality of the foregoing, the beneficialownership of or the power to exercise control or direction over securitiesrepresenting in the aggregate, 20% or more of the votes attaching to all thethen issued and outstanding voting securities of the TD Bank shall, in theabsence of evidence to the contrary, be deemed to affect materially thecontrol of the TD Bank.
C. The Principal Trading Prohibitions shall not apply to TD Securities inconnection with the Principal Sales and Principal Purchases.
D. The Investment Restrictions shall not apply to the Issuer in connection withinvestments in the TD Bank Shares for the purposes of the Offering asdescribed in the Preliminary Prospectus.
August 30th, 2000.
"Howard I. Wetson" "Theresa McLeod"