Mutual Reliance Review System for Exemptive Relief Applications -- Exemption to allow dealer managed mutual funds to invest in securities of an issuer during the 60 days after completion of the offering for which an affiliate of the dealer manager acted as an underwriter - The conflict of interest is mitigated by the oversight of an independent review committee - Subsection 4.1(1) of National Instrument 81-102 Mutual Funds.
Applicable Legislative Provisions
National Instrument 81-102 Mutual Funds, ss. 4.1(1), 19.1.
March 21, 2007
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
BRITISH COLUMBIA, ALBERTA, SASKATCHEWAN,
MANITOBA, ONTARIO, QUEBEC, NEW BRUNSWICK,
NOVA SCOTIA, PRINCE EDWARD ISLAND,
NEWFOUNDLAND AND LABRADOR, AND THE
NORTHWEST TERRITORIES, NUNAVUT
AND THE YUKON
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEW SYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
IN THE MATTER OF
CIBC ASSET MANAGEMENT INC. AND
CIBC GLOBAL ASSET MANAGEMENT INC.
MRRS DECISION DOCUMENT
The local securities regulatory authority or regulator in each of the Jurisdictions (the "Decision Maker") has received an application from the Applicants (or "Dealer Managers"), for and on behalf of the mutual funds named in Appendix "A" (the "Funds" or "Dealer Managed Funds") for whom the Applicants act as manager or portfolio advisor or both, for a decision ("Decision") under section 19.1 of National Instrument 81-102 Mutual Funds ("NI 81-102") for:
• an exemption from subsection 4.1(1) of NI 81-102 to enable the Dealer Managed Funds to invest in common shares ("Common Shares") of Fortis Inc. (the "Issuer") on the Toronto Stock Exchange (the "TSX") during the 60-day period (the "60-Day Period") that begins on the completion of the distribution of the Issuer's subscription receipts (the "Subscription Receipts") and ends on the earlier of (i) the end of the 60-Day Period and (ii) the end of the day prior to a Dealer Manager providing the principal regulator with a notice (the "Notice") of intention to comply with National Instrument 81-107 Independent Review Committee for Investment Funds ("NI 81-107") pursuant to section 8.2 of that instrument, (the "Prohibition Period") notwithstanding that the Dealer Managers or their associates or affiliates act or have acted as an underwriter in connection with the offering (the "Offering") of Subscription Receipts pursuant to a short form prospectus filed in each of the provinces of Canada (the "Requested Relief").
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.
It is the responsibility of each of the Decision Makers to make a global assessment of the risks involved in granting exemptive relief from subsection 4.1 of NI 81-102 in relation to the specific facts of each application.
Defined terms contained in National Instrument 14-101 Definitions have the same meanings in this decision unless they are otherwise defined in this decision.
This decision is based on the following facts represented by the Applicant:
1. Each Dealer Manager is a "dealer manager" with respect to the Dealer Managed Funds, and each Dealer Managed Fund is a "dealer managed fund", as such terms are defined in section 1.1 of NI 81-102.
2. The securities of the Dealer Managed Funds are qualified for distribution in one or more of the provinces and territories of Canada pursuant to simplified prospectuses that have been prepared and filed in accordance with their respective securities legislation.
3. The head office of CIBC Asset Management Inc. is in Toronto, Ontario. The head office of CIBC Global Asset Management Inc. is in Montreal, Quebec.
4. The Offering was underwritten, subject to certain terms, by an underwriting syndicate which included CIBC World Markets Inc. (the "Related Underwriter"), among others (the Related Underwriter together with the other underwriters, the "Underwriters"). The Related Underwriter is an affiliate of each Dealer Manager.
5. The Issuer is principally a diversified, international electric utility company that owns subsidiaries engaged in the regulated distribution of electricity. Regulated utility assets comprise approximately 86% of the Issuer's total assets with the balance comprised primarily of non-regulated electricity generating assets, and commercial real estate and hotel investments owned and operated through its non-utility operated subsidiary.
6. According to the Issuer's prospectus dated March 7, 2007 (the "Prospectus"), the Offering will consist of 38,500,000 Subscription Receipts at an offering price of $26.00 per Subscription Receipt. Holders of Subscription Receipts will be entitled to receive, upon satisfaction of Release Conditions (as defined in the Prospectus), and without payment of any additional consideration, one Common Share for each Subscription Receipt held plus an amount equal to the dividends declared on the Common Shares by the Issuer, if any, for which record dates have occurred during the period from the closing date, which is expected to occur on or about March 15, 2007 (the "Closing Date") to the date of issuance of the Common Shares in respect of the Subscription Receipts. The gross proceeds from the sale of the Subscription Receipts will be held by Computershare Trust Company of Canada, pending receipt by the Issuer of all regulatory and government approvals required to finalize the acquisition by the Issuer of all the British Columbia Utilities Commission, and fulfillment or waiver of all other outstanding conditions precedent to closing the acquisition as itemized in the agreement dated February 26, 2007 among the Issuer, 3211953 Nova Scotia Company and Kinder Morgan for the purchase of all of the issued and outstanding shares of Terasen Inc. (the "Acquisition") for an aggregate consideration of $3.7 billion.
7. The Issuer has granted to the Underwriters an option, exercisable for a period of 30 days from the Closing Date, to purchase up to a total of 5,775,000 additional Subscription Receipts on the same terms as set out above solely to cover over-allotments, if any.
8. According to the Prospectus, the Issuer intends to use the net proceeds from the Offering to partially fund the Acquisition.
9. Application has been made to list the Subscription Receipts, as well as the Common Shares issuable on the exchange of the Subscription Receipts, on the TSX. The Corporation's outstanding Common Shares are listed on the TSX under the symbol "FTS".
10. According to the Prospectus, the Issuer may be a "connected issuer" as defined in National Instrument 33-105 of the Related Underwriter for the reasons set forth in the Prospectus Supplement. As disclosed in the Prospectus Supplement, these reasons include that the Related Underwriter, is an affiliate of a Canadian chartered bank that has agreed to extend credit facilities to the Issuer in connection with the financing of the Acquisition. In addition, the Related Underwriter is a subsidiary of a Canadian chartered bank that has, either solely or as a member of a syndicate of financial institutions, extended credit facilities to the Issuer and/or its subsidiaries (the "Existing Facilities"). Consequently, the Issuer may be considered a "connected issuer" of the Related Underwriter for the purposes of the securities regulation of certain Canadian provinces. As of January 31, 2007, an aggregate of $338 million was outstanding under the Existing Facilities. The Issuer and/or its subsidiaries are in compliance with their respective obligations under the existing facilities. Since the execution of the Existing Facilities, no breach thereunder has been waived by the lenders thereunder.
11. Despite the affiliation between the Dealer Managers and the Related Underwriter, they operate independently of each other. In particular, the investment banking and related dealer activities of the Related Underwriter and the investment portfolio management activities of the Dealer Managers are separated by "ethical" walls. Accordingly, no information flows from one to the other concerning their respective business operations or activities generally, except in the following or similar circumstances:
(a) in respect of compliance matters (for example, the Dealer Manager and the Related Underwriter may communicate to enable the Dealer Manager to maintain an up to date restricted-issuer list to ensure that the Dealer Manager complies with applicable securities laws); and
(b) the Dealer Managers and the Related Underwriter may share general market information such as discussion on general economic conditions, bank rates, etc.
12. The Dealer Managed Funds are not required or obligated to purchase any Common Shares during the Prohibition Period.
13. The Dealer Managers may cause the Dealer Managed Funds to invest in Common Shares during the Prohibition Period. Any purchase of the Common Shares will be consistent with the investment objectives of the Dealer Managed Funds and represent the business judgment of the Dealer Managers uninfluenced by considerations other than the best interests of the Dealer Managed Funds or in fact be in the best interests of the Dealer Managed Funds.
14. To the extent that the same portfolio manager or team of portfolio managers of a Dealer Manager manages two or more Dealer Managed Funds and other client accounts that are managed on a discretionary basis (the "Managed Accounts"), the Common Shares purchased for them will be allocated:
(a) in accordance with the allocation factors or criteria stated in the written policies or procedures put in place by the Dealer Manager for its Dealer Managed Funds and Managed Accounts, and
(b) taking into account the amount of cash available to each Dealer Managed Fund for investment.
15. There will be an independent committee (the "Independent Committee") appointed in respect of the Dealer Managed Funds to review the investments of the Dealer Managed Funds in Common Shares during the Prohibition Period.
16. The Independent Committee will have at least three members and every member must be independent. A member of the Independent Committee is not independent if the member has a direct or indirect material relationship with its Dealer Manager, the Dealer Managed Funds, or any affiliate or associate thereof. For the purpose of this Decision, a material relationship means a relationship which could, in the view of a reasonable person, reasonably interfere with the exercise of the member's independent judgment regarding conflicts of interest facing the Dealer Manager.
17. The members of the Independent Committee will exercise their powers and discharge their duties honestly, in good faith, and in the best interests of investors in the Dealer Managed Funds and, in so doing, exercise the degree of care, diligence and skill that a reasonably prudent person would exercise in the circumstances.
18. Each Dealer Manager, in respect of the Dealer Managed Funds, will notify a member of staff in the Investment Funds Branch of the Ontario Securities Commission, of the filing of the SEDAR Report on SEDAR, as soon as practicable after the filing of such report, and the notice shall include the SEDAR project number of the SEDAR Report and the date on which it was filed.
19. If a Dealer Manager files a Notice during the 60-Day Period, the Dealer Managed Funds will no longer be able to rely on this Decision and will only be able to make further investments in the Common Shares during the remainder of the 60-Day Period in compliance with NI 81-107, including compliance with an applicable standing instruction under NI 81-107.
20. Each Dealer Manager has not been involved in the work of the Related Underwriter and the Related Underwriter has not been and will not be involved in the decisions of the Dealer Managers as to whether the Dealer Managed Funds will purchase Common Shares during the Prohibition Period.
Each of the Decision Makers has assessed the conflict of interest risks associated with granting an exemption in this instance from subsection 4.1(1) of NI 81-102 and is satisfied that, at the time this Decision is issued, the potential risks are sufficiently mitigated.
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 under the Legislation is that the Requested Relief is granted, notwithstanding that the Related Underwriter acts or has acted as underwriter in the Offering provided that, in respect of each Dealer Manager and its Dealer Managed Funds, the following conditions are satisfied:
I. At the time of each purchase (the "Purchase") of Common Shares by a Dealer Managed Fund pursuant to this Decision, the following conditions are satisfied:
(a) the Purchase
(i) represents the business judgment of the Dealer Manager uninfluenced by considerations other than the best interests of the Dealer Managed Fund, or
(ii) is, in fact, in the best interests of the Dealer Managed Fund;
(b) the Purchase is consistent with, or is necessary to meet, the investment objective of the Dealer Managed Fund as disclosed in its simplified prospectus; and
(c) the Dealer Managed Fund does not place the order to purchase, on a principal or agency basis, with its Related Underwriter;
II. Prior to effecting any Purchase pursuant to this Decision, each Dealer Managed Fund has in place written policies or procedures to ensure that,
(a) there is compliance with the conditions of this Decision; and
(b) in connection with any Purchase,
(i) there are stated factors or criteria for allocating the Common Shares purchased for two or more Dealer Managed Funds and other Managed Accounts, and
(ii) there is full documentation of the reasons for any allocation to a Dealer Managed Fund or Managed Account that departs from the stated allocation factors or criteria;
III. The Dealer Manager does not accept solicitation by its Related Underwriter for the Purchase of Common Shares for the Dealer Managed Fund;
IV. Each Dealer Managed Fund has an Independent Committee to review the Dealer Managed Fund's investments in the Common Shares during the Prohibition Period;
V. The Independent Committee has a written mandate describing its duties and standard of care which, at a minimum, sets out the applicable conditions of this Decision;
VI. The members of the Independent Committee exercise their powers and discharge their duties honestly, in good faith, and in the best interests of investors in the Dealer Managed Funds and, in so doing, exercise the degree of care, diligence and skill that a reasonably prudent person would exercise in the circumstances;
VII. The Dealer Managed Fund does not relieve the members of the Independent Committee from liability for loss that arises out of a failure to satisfy the standard of care set out in paragraph VI above;
VIII. Until a Notice is provided to the principal regulator, the Dealer Managed Fund does not incur the cost of any portion of liability insurance that insures a member of the Independent Committee for a liability for loss that arises out of a failure to satisfy the standard of care set out in paragraph VI above;
IX. The cost of any indemnification or insurance coverage paid for by the Dealer Manager, any portfolio manager of the Dealer Managed Fund, or any associate or affiliate of the Dealer Manager or any portfolio manager of the Dealer Managed Funds to indemnify or insure the members of the Independent Committee in respect of a loss that arises out of a failure to satisfy the standard of care set out in paragraph VI above is not paid either directly or indirectly by the Dealer Managed Fund;
X. The Dealer Manager files a certified report on SEDAR (the "SEDAR Report") in respect of each Dealer Managed Fund, no later than 30 days after the end of the Prohibition Period, provided however that if a Dealer Manager files a Notice during the Prohibition Period, the SEDAR Report shall be filed concurrently with the Notice being provided to the principal regulator. The SEDAR Report shall contain a certification by the Dealer Manager that contains:
(a) the following particulars of each Purchase:
(i) the number of Common Shares purchased by the Dealer Managed Fund;
(ii) the date of the Purchase and purchase price;
(iii) whether it is known whether any underwriter or syndicate member has engaged in market stabilization activities in respect of the Common Shares;
(iv) if the Common Shares were purchased for two or more Dealer Managed Funds and other Managed Accounts of the Dealer Manager, the aggregate amount so purchased and the percentage of such aggregate amount that was allocated to each Dealer Managed Fund; and
(v) the dealer from whom the Dealer Managed Fund purchased the Common Shares and the fees or commissions, if any, paid by the Dealer Managed Fund in respect of such Purchase;
(b) a certification by the Dealer Manager that the Purchase:
(i) was made free from any influence by the Related Underwriter or any affiliate or associate thereof and without taking into account any consideration relevant to the Related Underwriter or any associate or affiliate thereof; and
(ii) represented the business judgment of the Dealer Manager uninfluenced by considerations other than the best interest of the Dealer Managed Fund, or
(iii) was, in fact, in the best interests of the Dealer Managed Fund;
(c) confirmation of the existence of the Independent Committee to review the Purchase of the Common Shares by the Dealer Managed Funds, the names of the members of the Independent Committee, the fact that they meet the independence requirements set forth in this Decision, and whether and how they were compensated for their review;
(d) a certification by each member of the Independent Committee that after reasonable inquiry the member formed the opinion that the policies and procedures referred to in paragraph II(a) above are adequate and effective to ensure compliance with this Decision and that the decision made on behalf of each Dealer Managed Fund by the Dealer Manager to purchase Common Shares for the Dealer Managed Funds and each Purchase by the Dealer Managed Fund:
(i) was made in compliance with the conditions of this Decision;
(ii) was made by the Dealer Manager free from any influence by the Related Underwriter or any affiliate or associate thereof and without taking into account any consideration relevant to the Related Underwriter or any associate or affiliate thereof; and
(iii) represented the business judgment of the Dealer Manager uninfluenced by considerations other than the best interests of the Dealer Managed Fund, or
(iv) was, in fact, in the best interests of the Dealer Managed Fund;
XI. The Independent Committee or if a Notice has been provided to the principal regulator during the Prohibition Period, an independent review committee established under NI 81-107 advises the Decision Makers in writing of:
(a) any determination by it that the condition set out in paragraph X(d) has not been satisfied with respect to any Purchase of the Common Shares by a Dealer Managed Fund;
(b) any determination by it that any other condition of this Decision has not been satisfied;
(c) any action it has taken or proposes to take following the determinations referred to above; and
(d) any action taken, or proposed to be taken, by the Dealer Manager or a portfolio manager of a Dealer Managed Fund. in response to the determinations referred to above;
XII. Each Purchase of Common Shares during the Prohibition Period is made on the TSX; and
XIII. An underwriter provides to the Dealer Manager written confirmation that the "dealer restricted period" in respect of the Offering, as defined in Ontario Securities Commission Rule 48-501, Trading During Distributions, Formal Bids and Share Exchange Transactions, has ended.
THE MUTUAL FUNDS
Imperial Canadian Equity Pool
Imperial Canadian Dividend Pool
Imperial Canadian Dividend Income Pool
Renaissance Talvest Mutual Funds
Renaissance Canadian Balanced Fund
Renaissance Canadian Balanced Value Fund
Renaissance Canadian Core Value Fund
Renaissance Canadian Dividend Income Fund
Renaissance Canadian Growth Fund
Renaissance Diversified Income Fund
Talvest Cdn. Asset Allocation Fund
Talvest Cdn. Equity Value Fund
Talvest Dividend Fund
Talvest Millennium Next Generation Fund
CIBC Mutual Funds and
CIBC Family of Managed Portfolios
CIBC Balanced Fund
CIBC Balanced Index Fund
CIBC Canadian Equity Fund (formerly CIBC Core Canadian Equity Fund)
CIBC Canadian Equity Value Fund (formerly Canadian Imperial Equity Fund)
CIBC Capital Appreciation Fund
CIBC Dividend Fund
CIBC Diversified Income Fund
CIBC Monthly Income Fund
CIBC Global Monthly Income Fund
Frontiers Canadian Equity Pool
Frontiers Canadian Monthly Income Pool