Securities Law & Instruments

Headnote

National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- relief from eligibility requirements under NI 44-102 for reporting issuer whose equity securities are not listed on a short form eligible exchange -- equity securities listed on NYSE and Frankfurt Stock Exchange.

Applicable Legislative Provisions

National Instrument 44-102 Shelf Distributions, ss. 2.2, 11.1.

November 22, 2010

IN THE MATTER OF

THE SECURITIES LEGISLATION OF

ONTARIO

(THE JURISDICTION)

AND

IN THE MATTER OF

THE PROCESS FOR EXEMPTIVE RELIEF

APPLICATIONS IN MULTIPLE JURISDICTIONS

AND

IN THE MATTER OF

DEUTSCHE BANK AKTIENGESELLSCHAFT

(THE FILER)

DECISION

Background

The principal regulator in the Jurisdiction has received an application from the Filer for a decision (the Exemption Sought) under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) for an exemption, pursuant to subsection 11.1(1) of National Instrument 44-102 -- Shelf Distributions (NI 44-102), from the qualification requirements in subsection 2.2(1) and subparagraph 2.2(3)(b)(iii) of NI 44-102, which would otherwise require that the Filer's equity securities be listed or posted for trading on a short form eligible exchange (as defined in National Instrument 44-101 Short Form Prospectus Distributions (NI 44-101)), for any non-principal-protected linked notes or exchangeable notes (the Structured Notes) issued under the Filer's medium-term note (Note) program (the Program).

Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):

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

(b) the Filer has provided notice that Section 4.7(1) of Multilateral Instrument 11-102 -- Passport System (MI 11-102) is intended to be relied upon in all of the provinces and territories of Canada other than Ontario.

Interpretation

Terms defined in National Instrument 14-101 -- Definitions, MI 11-102, NI 44-101, and NI 44-102 have the same meaning if used in this decision, unless otherwise defined.

Representations

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

1. The Filer is a stock corporation incorporated under the laws of the Federal Republic of Germany pursuant to the German Stock Corporation Act (Aktiengesetz) with its principal office in Frankfurt am Main, Germany.

2. The Filer is the largest bank in Germany and one of the largest financial institutions in the world measured by total assets. As of December 31, 2009, the Filer had total assets of €1,500.7 billion and total shareholders' equity of €36.6 billion.

3. As of October 6, 2010, the Filer had 929,499,640 no par value ordinary shares outstanding, each carrying full dividend rights as from January 1, 2010. The Filer's ordinary shares are "equity securities" within the meaning of the Securities Act (Ontario), carrying a residual right to participate in the earnings of the Filer and, on liquidation or winding up of the Filer, in its assets.

4. The Filer's ordinary shares are listed for trading and official quotation on all the German stock exchanges, including Germany's largest exchange, the Frankfurt Stock Exchange, and are listed on the New York Stock Exchange (NYSE).

5. The Filer is currently a reporting issuer in all of the provinces of Canada, except Québec, and is not in default of applicable securities legislation in any province of Canada. Upon filing the Prospectus, the Filer will become a reporting issuer in Québec.

6. The Filer's head office is in Germany. In accordance with Section 3.4(5) of National Policy 11-202 Process for Prospectus Reviews in Multiple Jurisdictions, the Filer has selected Ontario as the principal regulator since it has the most significant connection to this jurisdiction, which is the location of the head office of its Canadian Branch.

7. The Filer intends to file an amended and restated preliminary short form prospectus upon receipt of the Exemption Sought.

8. The Filer wishes to distribute Notes, including Structured Notes, under the final base shelf prospectus (the Prospectus) corresponding to the Filer's preliminary short form prospectus dated July 30, 2010.

9. The Filer's long-term senior debt, which includes Notes issued under the Program, currently has long-term senior debt ratings of Aa3 from Moody's Investors Service (Moody's), A+ from Standard & Poor's (S&P) and AA- from Fitch Ratings (Fitch), and the Filer is not aware of any pending lowering of such ratings. These ratings are assigned to the Filer's senior debt generally, and not to specific Notes under the Program.

10. The Notes to be issued under the Prospectus will be issued under the same Senior Indenture, dated November 22, 2006, as for Notes issued under the Filer's U.S. SEC Registration Statement on Form F-3 and related prospectus.

11. Moody's, S&P and Fitch have recently announced that they will no longer provide ratings for non-principal-protected structured notes. The announcements by those rating organizations indicated that this measure arose from concerns that ratings on non-principal-protected structured notes may be misunderstood by investors, since such ratings would be granted based on the creditworthiness of the issuer, and not reflect the risk of loss of principal. As a result, the Filer would not be qualified under section 2.3 of NI 44-102 in respect of any Structured Notes to be offered under the Prospectus. Absent the Exemption Sought, the Filer would not be qualified to offer Structured Notes under the Prospectus.

12. The Filer satisfies the basic qualification criteria set forth in section 2.2 of NI 44-101 and section 2.2 of NI 44-102, other than having its equity securities listed and posted for trading on a short form eligible exchange.

13. The Filer does not anticipate seeking ratings for the specific Notes to be issued under the Prospectus.

Decision

The principal regulator is satisfied that the decision meets the test set out in the Legislation for the principal regulator to make the decision.

The decision of the principal regulator under the Legislation is that the Exemption Sought is granted so long as:

(i) the Filer satisfies the criteria in paragraphs 2.2(a), (b), (c), and (d) of NI 44-101;

(ii) the Filer is not an issuer:

a. whose operations have ceased; or

b. whose principal asset is cash, cash equivalents, or its exchange listing;

(iii) the Filer's ordinary shares are listed on both the Frankfurt Stock Exchange and the NYSE;

(iv) Any shelf prospectus supplement qualifying Structured Notes under the Prospectus includes the cover page disclosure that:

a. the Structured Notes under the Prospectus are not rated;

b. a credit rating applicable to the Program only applies to credit-related factors such as the Filer's ability to make any payments it would be obligated to make under the Structured Notes;

c. any credit rating applicable to the Program does not apply to Structured Notes and, for so long as Moody's, S&P or Fitch continue not to rate Structured Notes, an explanation to that effect; and

d. an investor's principal is at risk as a result of non-credit related factors such as the performance of the underlying reference indices; and

(v) The Filer files before or concurrently with the Prospectus an undertaking that it will not distribute in each local jurisdiction under the Prospectus specified derivatives, including the Structured Products, that, at the time of distribution, are novel without pre-clearing with the regulator the disclosure to be contained in a shelf prospectus supplement pertaining to the distribution of the novel specified derivatives, in accordance with subsection 4.1(2) of NI 44-102.

"Michael Brown"
Assistant Manager,
Ontario Securities Commission