Securities Law & Instruments

Headnote

Mutual Reliance System for Exemptive Relief Applications -- Exemptive relief granted to an exchange traded fund from certain mutual fund requirements and restrictions on: borrowing, organizational costs, calculation and payment of redemptions, and date of record for payment of distributions -- Since investors will generally buy and sell units through the TSX, there are adequate protections and it would not be prejudicial to investors -- National Instrument 81-102 -- Mutual Funds.

Applicable Legislative Provisions

National Instrument 81-102 -- Mutual Funds, ss. 2.6(a), 3.3, 10.3, 10.4(1), 14.1, 19.1.

December 4, 2006

IN THE MATTER OF

THE SECURITIES LEGISLATION OF

ONTARIO, BRITISH COLUMBIA, ALBERTA,

SASKATCHEWAN, MANITOBA, QUÉBEC,

NEW BRUNSWICK, NEWFOUNDLAND AND

LABRADOR, NOVA SCOTIA AND

PRINCE EDWARD ISLAND

(the Jurisdictions)

AND

IN THE MATTER OF

THE MUTUAL RELIANCE REVIEW SYSTEM

FOR EXEMPTIVE RELIEF APPLICATIONS

AND

IN THE MATTER OF

5BANC SPLIT INC.

 

MRRS DECISION DOCUMENT

Background

The local securities regulatory authority or regulator (the Decision Maker) in each of the Jurisdictions has received an application (the Application) from 5Banc Split Inc. (the Company) for a decision under section 19.1 of National Instrument 81-102 -- Mutual Funds (NI 81-102) that the following sections of NI 81-102 (collectively the NI 81-102 Requirements) will not apply to the Company with respect to the Capital Shares and Preferred Shares proposed to be issued by the Company as described in a preliminary prospectus dated October 23, 2006 (the Preliminary Prospectus):

(a) section 2.6(a), which prohibits a mutual fund from borrowing cash or providing a security interest over any of its portfolio assets except in compliance with subsection 2.6(a);

(b) section 3.3, which prohibits a mutual fund or its securityholders from bearing the costs of the preparation and filing of any preliminary simplified prospectus;

(c) section 10.3, which requires that the redemption price of a security of a mutual fund to which a redemption order pertains shall be the net asset value of a security of that class, or series of class, next determined after the receipt by the mutual fund of the order;

(d) subsection 10.4(1), which requires that a mutual fund shall pay the redemption price for securities that are the subject of a redemption order within three business days after the date of calculation of the net asset value per security used in establishing the redemption price; and

(e) section 14.1, which requires that the record date for determining the right of securityholders of a mutual fund to receive a dividend or distribution by the mutual fund shall be calculated in accordance with section 14.1.

Under the Mutual Reliance Review System for Exemptive Relief Applications

(a) the Ontario Securities Commission is the principal regulator for this Application, and

(b) this MRRS Decision Document evidences the decision of each Decision Maker.

Interpretation

Defined terms contained in National Instrument 14-101 - Definitions have the same meaning in this decision unless they are otherwise defined in this decision.

Representations

This decision is based on the following facts represented by the Company:

The Company

1. The Company was incorporated under the Business Corporations Act (Ontario) on November 9, 2001.

2. The Company will make offerings to the public (the Offerings) on a best efforts basis, of class B capital shares (the Capital Shares) and class B preferred shares (the Preferred Shares) pursuant to a final prospectus (the Final Prospectus) in respect of which the Preliminary Prospectus has already been filed.

3. There are currently 813,107 class A capital shares (the Class A Capital Shares) and 813,107 class A preferred shares (the Class A Preferred Shares) issued and outstanding. The Class A Capital Shares and Class A Preferred Shares are scheduled to be redeemed by the Company on December 15, 2006 (the Redemption Date) in accordance with their terms. A holder of Class A Capital Shares may choose to continue his or her investment in the Company by electing to receive Capital Shares of the Company as part of the Offerings in satisfaction of the redemption price payable for their Class A Capital Shares on the Redemption Date.

4. The Capital Shares and the Preferred Shares will be listed for trading on the Toronto Stock Exchange (the TSX). An application requesting conditional listing approval has been made by the Company to the TSX.

5. The Company is a passive investment company whose principal investment objective is to invest in a portfolio of common shares (the Bank Shares) of Bank of Montreal, The Bank of Nova Scotia, Canadian Imperial Bank of Commerce, Royal Bank of Canada and The Toronto-Dominion Bank in order to generate fixed cumulative preferential distributions for holders of the Company's Preferred Shares, and to allow the holders of the Company's Capital Shares to participate in capital appreciation of the Bank Shares after payment of the expenses of the Company. The Company intends to pay dividends on the Capital Shares in an amount equal to the amount by which the dividends received by the Company on the Bank Shares exceed the distributions paid on the Preferred Shares and the expenses of the Company.

6. The expenses incurred in connection with the Offerings (the Expenses of the Offerings), being the costs of the preparation and filing of the Preliminary Prospectus and the Final Prospectus, will be borne by the Company.

7. The net proceeds of the Offerings (after deducting the agents' fees, Expenses of the Offerings and expenses relating to the acquisition of the Bank Shares, will be used by the Company to fund the purchase of Bank Shares and to fund the redemption of the Class A Preferred Shares and Class A Capital Shares, to the extent necessary.

8. The Company has established a credit facility with TD Securities Inc. (TD Securities) that may be used by the Company to purchase Bank Shares and that will be repaid in full on the closing of the Offerings. The maximum rate of interest payable on such credit facility will be set out in the Final Prospectus. To the extent that the credit facility is used, the Company will pledge Bank Shares as collateral for amounts borrowed thereunder.

9. It will be the policy of the Company to hold the Bank Shares and to not engage in any trading of the Bank Shares, except:

(i) to fund retractions or redemptions of Capital Shares and Preferred Shares;

(ii) following receipt of stock dividends on the Bank Shares;

(iii) in the event of a take-over bid for any of the Bank Shares;

(iv) if necessary, to fund any shortfall in the distribution on Preferred Shares;

(v) to meet obligations of the Company in respect of liabilities including extraordinary liabilities; or

(vi) certain other limited circumstances as described in the Preliminary Prospectus.

10. Preferred Share distributions will be funded primarily from the dividends received on the Bank Shares and, if necessary, any shortfall will be funded with proceeds from the sale of Bank Shares.

11. The record date for the payment of Preferred Share distributions, Capital Share dividends or other distributions of the Company will be set in accordance with the applicable requirements of the TSX.

12. The Capital Shares and Preferred Shares may be surrendered for retraction at any time. Retraction payments for Capital Shares and Preferred Shares will be made on the Retraction Payment Date (as defined in the Preliminary Prospectus) provided the Capital Shares and the Preferred Shares have been surrendered for retraction by the Valuation Date (as defined in the Preliminary Prospectus). While the Company's Unit Value (as defined in the Preliminary Prospectus) is calculated weekly, the retraction price for the Capital Shares and the Preferred Shares will be determined based on the Unit Value in effect as at the Valuation Date.

13. The retraction payments for the Capital Shares and Preferred Shares surrendered under the Regular Retraction or Concurrent Retraction (both as defined in the Preliminary Prospectus) will be calculated at a discount to the Unit Value of the Company on the applicable Valuation Date, in the manner described in the Preliminary Prospectus.

14. Any Capital Shares and Preferred Shares outstanding on December 15, 2011 will be redeemed by the Company on such date.

Decision

Each of the Decision Makers is satisfied that the test contained in NI 81-102 that provides the Decision Maker with the jurisdiction to make the decision has been met.

The decision of the Decision Makers is that an exemption is granted from the NI 81-102 Requirements, as follows:

(a) section 2.6(a), to permit the Company to enter into a short-term loan with TD Securities to finance the acquisition of Bank Shares and provide a security interest over its assets so long as all such borrowings are repaid on closing of the Offerings;

(b) section 3.3, to permit the Company to bear the Expenses of the Offerings;

(c) section 10.3, to permit the Company to calculate the retraction price for the Capital Shares and Preferred Shares in the manner described in the Preliminary Prospectus and on the applicable Valuation Date as defined in the Preliminary Prospectus;

(d) subsection 10.4(1), to permit the Company to pay the retraction price for the Capital Shares and Preferred Shares on the Retraction Payment Date as defined in the Preliminary Prospectus; and

(e) section 14.1, to relieve the Company from the requirement relating to the record date for the payment of dividends or other distributions, provided that it complies with the applicable requirements of the TSX.

"Rhonda Goldberg"
Assistant Manager, Investment Funds
Ontario Securities Commission