Mutual Reliance Review System for Exemptive Relief Applications - subdivided offering- the prohibitions contained in the Legislation prohibiting trading in portfolio shares bypersons or companies having information concerning the trading programs of mutualfunds shall not apply to the promoter/agent with respect to certain principal trades withthe issuer in securities comprising the issuer's portfolio in connection with an offeringwhere underlying interest consists of a portfolio of common shares of Canadian publicfinancial services companies.
The restrictions against registrants 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
BMO NESBITT BURNS INC. AND CANADIAN FINANCIAL SERVICES NT CORP.
MRRS DECISION DOCUMENT
WHEREAS the Canadian securities regulatory authority or regulator (the "DecisionMaker") in each of the provinces of British Columbia, Alberta, Saskatchewan, Manitoba,Ontario, Quebec, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland(the "Jurisdiction") has received an application from Canadian Financial Services NT Corp.(the "Issuer") and BMO Nesbitt Burns Inc. ("BMO Nesbitt Burns") in connection with thedistribution (the "Offering") of capital shares (the "Capital Shares") and preferred shares(the "Preferred Shares") of the Issuer by BMO Nesbitt Burns and such other agents as maybe appointed (collectively, the "'Agents"), pursuant to a prospectus, for a decision pursuantto the securities legislation of the Jurisdictions (the "Legislation") that:
(A) in the case of the Legislation of each of the Jurisdictions other than Nova Scotia,Saskatechewan, and Manitoba, the restrictions contained therein restrictingregistrants from acting as underwriters in connection with the distribution ofsecurities of a related or connected issuer shall not apply to BMO Nesbitt Burns inconnection with the Offering (the "Underwriting Restrictions").
(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 BMO Nesbitt Burns in Capital Shares and Preferred Shares.
(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 BMO Nesbitt Burns in connectionwith the Principal Sales and Principal Purchases (each 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 inBank of Montreal, which bank is a substantial indirect security holder of adistribution company and a management company of the Issuer (the "InvestmentRestrictions") shall not apply to the Issuer;
AND WHEREAS under the Mutual Reliance Review System for Exemptive ReliefApplications (the "MRRS"), the Ontario Securities Commission is the principal regulatorfor this application;
AND WHEREAS the Issuer and BMO Nesbitt Burns have represented to theDecision Makers as follows:
1. The Issuer was incorporated under the laws of the Province of Ontario on August17, 2000 and has its principal office at 1 First Canadian Place, 4th Floor, Toronto,Ontario, M5X 1H3.
2. The Issuer has filed with the securities regulatory authority of each province ofCanada a preliminary prospectus dated August 30, 2000 (the "PreliminaryProspectus") in respect of the offering of Capital Shares and Preferred Shares tothe public in such provinces.
3. The Issuer intends to become a reporting issuer or equivalent under the Legislationby filing a final prospectus (the "Final Prospectus") relating to the Offering.
4. At the closing of the Offering, the authorized capital of the Issuer will consist of anunlimited number of Capital Shares, an unlimited number of Preferred Shares andan unlimited number of Class A Shares, having the attributes described in thePreliminary Prospectus.
5. The Capital Shares and Preferred Shares may be surrendered for retraction at anytime in the amounts described in the Preliminary Prospectus.
6. All Capital Shares and Preferred Shares outstanding on a date approximately fiveyears from the closing of the Offering (the "Redemption Date") will be redeemed bythe Issuer on such date and Preferred Shares will be redeemable at the option ofthe Issuer on any Annual Retraction Payment Date (as described in the PreliminaryProspectus).
7. Application will be made to list the Capital Shares and Preferred Shares on TheToronto Stock Exchange (the "TSE").
8. The Class A Shares are the only voting shares in the capital of the Issuer. Thereare 100 Class A Shares issued and outstanding. 1066918 Ontario Inc. owns all ofthe 100 issued and outstanding Class A Shares of the Issuer. Each of BMO NesbittBurns and The CBFI Corporation (all of the common shares of which are owned byBo Pelech, a director of the Company) owns 50% of the common shares of 1066918Ontario Inc.
9. The Issuer has a board of directors which currently consists of six directors. Threeof the current directors are employees of BMO Nesbitt Burns. Also, the offices ofPresident/Chief Executive Officer, Chief Financial Officer and Secretary of theIssuer are held by employees of BMO Nesbitt Burns.
10. The Issuer is a passive investment company whose principal undertaking will be toinvest the net proceeds of the Offering in a portfolio of common shares (the"Portfolio Shares") of selected Canadian publicly listed banks, life insurancecompanies, investment management companies and other financial companies (the"Financial Services Companies"). The purpose of the Issuer is to provide a vehiclethrough which different investment objectives with respect to participation inPortfolio Shares may be satisfied.
11. 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.
12. BMO Nesbitt Burns was incorporated under the laws of Canada, is an indirect,majority-owned subsidiary of Bank of Montreal, is registered under the Legislationas a dealer in the categories of "broker" and "investment dealer" and is a memberof the Investment Dealers Association of Canada and the TSE.
13. BMO Nesbitt Burns is the promoter of the Issuer.
14. Pursuant to an administration agreement (the "Administration Agreement") to beentered into, the Issuer will retain BMO Nesbitt Burns to administer the ongoingoperations of the Issuer and will pay BMO Nesbitt Burns an administration fee equalto:
(a) a monthly fee of 1/12 of 0.15% of the market value of the Portfolio Shares;
(b) any interest income earned by the Issuer from time to time; and
(c) the excess of the net proceeds received by the Issuer in respect of thedisposition of Portfolio Shares received by the Issuer as stock dividends orpursuant to dividend reinvestment plans (net of applicable expenses andcash taxes which are not immediately refundable) over the amount of thecash dividends which would have otherwise been received.
15. Pursuant to an agreement (the "Agency Agreement") to be made between theIssuer and BMO Nesbitt Burns and such other agents as may be appointed after thedate hereof (collectively, the "Agents" and individually, an "Agent"), the Issuer willappoint the Agent(s) as its agent(s) to offer the Capital Shares and PreferredShares on a best efforts basis and the Final Prospectus qualifying the Offering willcontain a certificate signed by each of the Agent(s) in accordance with theLegislation.
16. BMO Nesbitt Burns' 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" and include the following:
(a) agency fees with respect to the Offering;
(b) an administration fee under the Administration Agreement;
(c) commissions in respect of the disposition of Portfolio Shares to fund aredemption or retraction, or the purchase for cancellation, of the CapitalShares and Preferred Shares;
(d) interest and reimbursement of expenses in connection with the acquisitionof Portfolio Shares; and
(e) Principal Sales and Principal Purchases (as described in paragraphs 17 and27 below).
17. Pursuant to an agreement (the "Securities Purchase Agreement") to be entered intobetween the Issuer and BMO Nesbitt Burns, BMO Nesbitt Burns will purchase, asagent for the benefit of the Issuer, Portfolio Shares in the market on commercialterms or from non-related parties with whom BMO Nesbitt Burns and the Issuer dealat arm's length. Subject to receipt of the relief requested hereby, BMO NesbittBurns may, as principal, also sell Portfolio Shares to the Issuer (the "PrincipalSales"). The aggregate purchase price to be paid by the Issuer for the PortfolioShares (together with carrying costs and other expenses incurred in connection withthe purchase of the Portfolio Shares) will not exceed the net proceeds from theOffering.
18. The Preliminary Prospectus discloses and the Final Prospectus will disclose thatif the Principal Sales are made by BMO Nesbitt Burns, as principal, to the Issuer,any Portfolio Shares acquired by the Issuer from BMO Nesbitt Burns, as principal,will be purchased in accordance with the rules of the applicable stock exchangeand the price paid (inclusive of all transaction costs, if any) to BMO Nesbitt Burnswill 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 Portfolio Shares are listed and postedfor trading at the time of purchase from BMO Nesbitt Burns.
19. All Principal Sales will be approved by at least two independent directors of theIssuer and no commissions will be paid to BMO Nesbitt Burns in respect of anyPrincipal Sales.
20. For the reasons set forth below, in the case of the Principal Sales, the interests ofthe Issuer and the shareholders of the Issuer may be enhanced by insulating theIssuer from price increases in respect of the Portfolio Shares.
21. None of the Portfolio Shares to be sold by BMO Nesbitt Burns as principal to theIssuer have been acquired, nor has BMO Nesbitt Burns agreed to acquire, anyPortfolio Shares while BMO Nesbitt Burns had access to information concerning theinvestment program of the Issuer, although certain of the Portfolio Shares to be heldby the Issuer may be acquired or BMO Nesbitt Burns may agree to acquire suchPortfolio Shares on or after the date of the Decision Document.
22. The Final Prospectus will disclose the acquisition cost of the Portfolio Shares andselected information with respect to the dividend policy and trading history of thePortfolio Shares.
23. The Issuer is not, and will not upon the completion of the Offering, be an insider ofany of the Financial Services Companies within the meaning of the Legislation.
24. BMO Nesbitt Burns does not have any knowledge of a material fact or materialchange with respect to the Financial Services Companies which has not beendisclosed to the public.
25. Under the Securities Purchase Agreement, BMO Nesbitt Burns may receivecommissions at normal rates in respect of its purchase of Portfolio Shares, as agenton behalf of the Issuer, and the Issuer will pay any carrying costs or other expensesincurred by BMO Nesbitt Burns, on behalf of the Issuer, in connection with itspurchase of Portfolio Shares as agent on behalf of the Issuer. In respect of thePrincipal Sales made to the Issuer by BMO Nesbitt Burns as principal, BMO NesbittBurns may realize a financial benefit to the extent that the proceeds received fromthe Issuer exceed the aggregate cost to BMO Nesbitt Burns of such PortfolioShares. Similarly, the proceeds received from the Issuer may be less than theaggregate cost to BMO Nesbitt Burns of the Portfolio Shares and BMO NesbittBurns may realize a financial loss, all of which is described in the PreliminaryProspectus and will be described in the Final Prospectus.
26. The net proceeds from the offering of the Capital Shares and the Preferred Shares(after deducting the Agent(s)'s fees, expenses of the Offering and the Issuer'sinterest and other expenses relating to the acquisition of the Portfolio Shares) willbe used by the Issuer to fund the purchase of the Portfolio Shares.
27. In connection with the services to be provided by BMO Nesbitt Burns to the Issuerpursuant to the Administration Agreement, BMO Nesbitt Burns may sell PortfolioShares to fund retractions of Capital Shares and Preferred Shares prior to theRedemption Date and upon liquidation of the Portfolio Shares prior to theRedemption Date. These sales will be made by BMO Nesbitt Burns as agent onbehalf of the Issuer. Subject to the receipt of the relief requested hereby, in certaincircumstances such as where a small number of Capital Shares and PreferredShares have been surrendered for retraction, BMO Nesbitt Burns may alsopurchase Portfolio Shares as principal (the "Principal Purchases").
28. In connection with any Principal Purchases, BMO Nesbitt Burns 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 BMO Nesbitt Burns may make Principal Purchases.
29. The Administration Agreement will provide that BMO Nesbitt Burns must takereasonable steps, such as soliciting bids from other market participants or suchother steps as BMO Nesbitt Burns, in its discretion, considers appropriate aftertaking into account prevailing market conditions and other relevant factors, toenable the Issuer to obtain the best price reasonably available for the PortfolioShares so long as the price obtained (net of all transaction costs, if any) by theIssuer from BMO Nesbitt Burns is more or at least as advantageous to the Issueras the price which is available (net of all transaction costs, if any) through thefacilities of the applicable stock exchange at the time of the trade.
30. BMO Nesbitt Burns will not receive any commissions from the Issuer in connectionwith Principal Purchases and, in carrying out the Principal Purchases, BMO NesbittBurns shall deal fairly, honestly and in good faith with the Issuer.
31. It will be the policy of the Issuer to hold the Portfolio Shares and to not engage inany trading of the Portfolio Shares, except:
(a) to fund retractions or redemptions of Capital Shares and Preferred Shares;
(b) following receipt of stock dividends on Portfolio Shares; or
(c) in certain other limited circumstances described in the PreliminaryProspectus, such as the occurrence of an extraordinary transaction orbusiness combination involving one of the Financial Services Companies.
32. BMO Nesbitt Burns will be a significant maker of markets for Capital Share andPreferred Shares, although it is not anticipated that BMO Nesbitt Burns will beappointed the registered pro-trader by the TSE with respect to the Issuer. As aresult, BMO Nesbitt Burns will, from time to time, purchase and sell Capital Sharesand Preferred Shares as principal and trade in such securities as agent on behalfof its clients, the primary purpose of such trades (the "Market Making Trades")being to provide liquidity to the holders of Capital Shares and Preferred Shares. Alltrades made by BMO Nesbitt Burns as principal will be recorded daily by the TSE.
33. As BMO Nesbitt Burns indirectly owns 50% of the Class A Shares of the Issuer,BMO Nesbitt Burns will be deemed to be in a position to affect materially the controlof the Issuer and consequently, each Market Making Trade will be a "distribution"or "distribution to the public" within the meaning of the Legislation.
34. By virtue of BMO Nesbitt Burns' relationship with the Issuer, including the fact thatthree of the directors and officers of the Issuer are employees of BMO NesbittBurns and BMO Nesbitt Burns is the promoter of the Issuer, the Issuer is aconnected issuer (or equivalent) and/or related issuer (or equivalent) of BMONesbitt Burns under the Legislation.
35. It is not known at this time whether any other agents will participate in distributingthe Offering or, if so, what proportions of the Offering will be sold by additionalagents other than BMO Nesbitt Burns.
36. The Issuer is not and it is not expected that the Issuer could be in financialdifficulty.
AND WHEREAS under the MRRS this Decision Document evidences the decisionof 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 BMO Nesbitt Burns in connectionwith the Offering.
B. The Prospectus Requirements shall not apply to the Market Making Trades by BMONesbitt Burns in the Capital Shares and Preferred Shares provided that at the timeof each Market Making Trade, BMO Nesbitt Burns and its affiliates do notbeneficially own or have the power to exercise control or direction over a sufficientnumber of voting securities of any of the Financial Services Companies, securitiesconvertible into voting securities of any of the Financial Services Companies,options to acquire voting securities of any of the Financial Services Companies, orany other securities which provide the holder with the right to exercise control ordirection over voting securities of any of the Financial Services Companies whichin the aggregate permit BMO Nesbitt Burns to affect materially the control of any ofthe Financial Services Companies and without limiting the generality of theforegoing, the beneficial ownership of or the power to exercise control or directionover securities representing in the aggregate, 20% or more of the votes attachingto all the then issued and outstanding voting securities of any of the FinancialServices Companies shall, in the absence of evidence to the contrary, be deemedto affect materially the control of any of such Financial Services Companies.
C. The Principal Trading Prohibitions shall not apply to BMO Nesbitt Burns inconnection with the Principal Sales and Principal Purchases.
D. The Investment Restrictions shall not apply to the Issuer in connection withinvestments in shares of Bank of Montreal.
October 5th, 2000.
"J. A. Geller" "Stephen N. Adams"