Multilateral Instrument 11-102 Passport System and National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – Closed-end investment fund exempt from prospectus requirements in connection with the sale of units repurchased from existing security holders pursuant to market purchase programs and by way of redemption of units by security holders subject to conditions.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., ss. 53(1), 74(1).
Citation: Re Middlefield Healthcare & Wellness Dividend Fund, 2016 ABASC 299
December 20, 2016
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
ALBERTA AND ONTARIO
IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF
APPLICATIONS IN MULTIPLE JURISDICTIONS
IN THE MATTER OF
MIDDLEFIELD HEALTHCARE &
WELLNESS DIVIDEND FUND
The securities regulatory authority or regulator in each of the Jurisdictions (the Decision Maker) has received an application from the Filer for a decision under the securities legislation of the Jurisdictions (the Legislation) exempting the Filer from the requirement to file a prospectus (the Prospectus Requirement) in connection with the distri-bution of units of the Filer (the Units) that have been repurchased by the Filer pursuant to the Purchase Programs (as defined below) or redeemed by the Filer pursuant to the Redemption Programs (as defined below) in the period prior to the Conversion (as defined below) (the Exemption Sought).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a dual application):
(a) the Alberta Securities Commission is the principal regulator for this application;
(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 British Columbia, Saskatchewan, Manitoba, New Bruns-wick, Nova Scotia, Prince Edward Island and Newfoundland and Labrador; and
(c) this decision is the decision of the principal regulator and evidences the decision of the securities regulatory authority or regulator in Ontario.
Terms defined in National Instrument 14-101 Definitions or in MI 11-102 have the same meaning if used in this decision, unless otherwise defined herein.
This decision is based on the following facts represented by the Filer:
1. The Filer is an unincorporated closed-end investment trust established under the laws of Alberta.
2. The Filer is not considered to be a “mutual fund” as defined in the Legislation because the holders of Units are not entitled to receive on demand an amount computed by reference to the value of a proportionate interest in the whole or in part of the net assets of the Filer.
3. The Filer is a reporting issuer in each of the provinces of Canada and is not in default of any of the requirements of applicable securities legis-lation.
4. The Units are listed and posted for trading on the Toronto Stock Exchange (the TSX). As of October 20, 2016, the Filer had 11,500,000 Units issued and outstanding.
5. Middlefield Limited (the Manager), which was incorporated pursuant to the Business Corporations Act (Alberta), is the manager and the trustee of the Filer.
6. The Manager currently intends that on or about April 15, 2019, the Trust will be merged on a tax-deferred basis into an open-end mutual fund managed by the Manager or an affiliate which the Manager determines has substantially similar investment objectives. Notwithstanding the Mana-ger’s current intention to merge the Trust as described above, the Manager may instead determine, subject to applicable unitholder and/or regulatory approvals, to either merge the Trust into a listed exchange-traded mutual fund (ETF) or convert the Trust into an open-end mutual fund or an ETF.
Mandatory Purchase Program
7. The constating document of the Filer provides that the Filer, subject to certain exceptions and com-pliance with any applicable regulatory require-ments, is obligated to purchase (the Mandatory Purchase Program) any Units offered on the TSX (or such other exchange or market on which the Units are then listed and primarily traded) if, at any time after the closing of the Filer’s initial public offering, the price at which Units are then offered for sale on the TSX (or such other exchange or market on which the Units are then listed and primarily traded) is less than 95% of the net asset value of the Filer per Unit, provided that the maximum number of Units that the Filer is required to purchase pursuant to the Mandatory Purchase Program in any calendar quarter is 1.25% of the number of Units outstanding at the beginning of each such period.
Discretionary Purchase Program
8. The constating document of the Filer provides that the Filer, subject to applicable regulatory require-ments and limitations, has the right, but not the obligation, exercisable in its sole discretion at any time, to purchase outstanding Units in the market at prevailing market prices (the Discretionary Purchase Program and, together with the Mandatory Purchase Program, the Purchase Programs).
9. Subject to the Filer’s right to suspend redemp-tions, Units may be surrendered for redemption (the Monthly Redemption Program) on the second last business day of each month in order to be redeemed at a redemption price per Unit equal to the Monthly Redemption Price per Unit (as defined in the Filer’s long form final prospectus dated September 20, 2016 (the Prospectus)).
10. Subject to the Filer's right to suspend redemp-tions, Units may be surrendered for redemption (the NAV Redemption) on the second last business day of April 2018 at a redemption price per Unit equal to the Redemption Price per Unit (as defined in the Prospectus).
11. At the sole discretion of the Manager and subject to the receipt of any necessary regulatory approvals, the Manager may from time to time allow additional redemptions of Units (Additional Redemptions and, together with the Monthly Redemption Program and the NAV Redemption, the Redemption Programs), provided that the holder thereof shall be required to use the full amount received on such redemption to purchase treasury securities of a new or existing fund promoted by the Manager or an affiliate thereof then being offered to the public by prospectus.
Resale of Repurchased Units or Redeemed Units
12. Purchases of Units made by the Filer under the Purchase Programs or Redemption Programs are exempt from the issuer bid requirements of the Legislation pursuant to exemptions contained therein.
13. The Filer wishes to resell, in its sole discretion and at its option, through one or more securities dealers and through the facilities of the TSX (or another exchange on which the Units are then listed), the Units repurchased by the Filer pursuant to the Purchase Programs (Repurchased Units) or redeemed pursuant to the Redemption Programs (Redeemed Units).
14. All Repurchased Units or Redeemed Units will be held by the Filer for a period of four months after the repurchase or redemption thereof by the Filer (the Holding Period), prior to any resale.
15. The resale of Repurchased Units or Redeemed Units will be effected in such a manner as not to have a significant impact on the market price of the Units.
16. Repurchased Units or Redeemed Units that the Filer does not resell within 12 months after the Holding Period (that is, within 16 months after the date of repurchase or redemption, as applicable) will be cancelled by the Filer.
17. During any calendar year, the Filer will not resell an aggregate number of Repurchased Units and Redeemed Units that is greater than 5% of the number of Units outstanding at the beginning of such calendar year.
18. Prospective purchasers of Repurchased Units or Redeemed Units will have access to the Filer’s continuous disclosure, which will be filed on SEDAR.
19. The Legislation provides that a trade by or on behalf of an issuer in previously issued securities of that issuer that have been purchased by that issuer is a distribution and, as such, is subject to the Prospectus Requirement. In the absence of the Exemption Sought, any sale by the Filer of Repurchased Units or Redeemed Units would be a distribution that is subject to the Prospectus Requirement.
Each of the Decision Makers is satisfied that the decision meets the test set out in the Legislation for the Decision Maker to make the decision.
The decision of the Decision Makers under the Legislation is that the Exemption Sought is granted provided that:
(a) the Repurchased Units and Redeemed Units are otherwise sold by the Filer in compliance with the Legislation through the facilities of and in accordance with the regulations and policies of the TSX or of any other exchange on which the Units are then listed; and
(b) the Filer complies with the conditions of paragraphs 1 through 5 of subsection 2.8(2) of National Instrument 45-102 Resale of Securities with respect to the sale of the Repurchased Units and Redeemed Units.
For the Commission: