Headnote NP 11-203 – relief granted from the investment prohibition in subsection 4.1(1) of NI 81-102 to permit purchases under private placements where the issuer is not a reporting issuer in any of the jurisdictions – relief conditional on the fund complying with conditions under s. 4.1(4)(a) and (d) which include approval by the fund’s independent review committee.
Applicable Legislative Provisions
National Instrument 81-102 – Mutual Funds, sections 4.1(1) and 19.1.
National Instrument 81-107 – Independent Review Committees for Investment Funds, section 5.2.
April 9, 2008
IN THE MATTER OF THE SECURITIES LEGISLATION OF ONTARIO (the Principal Jurisdiction) AND
IN THE MATTER OF THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS IN MULTIPLE JURISDICTIONS
AND
IN THE MATTER OF GOODMAN & COMPANY, INVESTMENT COUNSEL LTD. (the Dealer Manager)
DECISION
Background
The Principal Regulator (as defined below) in the Principal Jurisdiction has received an application from the Dealer Manager for a decision under the securities legislation of the Principal Jurisdiction of the Principal Regulator (the “Legislation”) for an exemption pursuant to section 19.1 of National Instrument 81‑102 (“NI 81-102”) from compliance with subsection 4.1(1) of NI 81-102 (the “Exemption Sought”).
The exemption would enable the Dynamic Precious Metals Fund for which the Dealer Manager acts as manager (the “Dealer Managed Fund”) to invest in the Securities (as defined below) of Peregrine Metals Ltd. (the “Issuer) during the distribution (the “Distribution” or the “Distribution Period”), notwithstanding that an affiliate of the Dealer Manager is acting in connection with the Distribution. The Distribution is a private placement offering (the “Private Placement”) and the Issuer is not a reporting issuer in any of the Jurisdictions.
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
(a) the Ontario Securities Commission is the principal regulator (the “Principal Regulator”) for this application, and
(b) the Dealer Manager 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 relied upon in all other jurisdictions of Canada. The provinces and territories of Canada are collectively referred to as the “Jurisdictions.”
Interpretation
Defined terms contained in National Instrument 14-101 – Definitions and MI 11-102 have the same meanings in this decision (“Decision”) unless they are otherwise defined in this Decision.
Representations
This Decision is based on the following facts represented by the Dealer Manager:
The Dealer Manager is a “dealer manager” with respect to the Dealer Managed Fund, and the Dealer Managed Fund is a “dealer managed fund”, as such terms are defined in section 1.1 of NI 81-102.
The Dealer Managed Fund is an open-ended mutual fund trust established under the laws of the Province of Ontario. The securities of the Dealer Managed Fund are qualified for distribution in all of the provinces and territories of Canada pursuant to a simplified prospectus that has been prepared and filed in accordance with the applicable securities legislation.
The Dealer Manager is a corporation incorporated under the laws of Ontario and holds a registration in the categories of "investment counsel" and "portfolio manager" in Ontario. It also holds a registration in the categories of "investment counsel" and "portfolio manager" or the equivalent in each of Quebec, British Columbia, Alberta, Manitoba, Saskatchewan, Nova Scotia and New Brunswick. The head office of the Dealer Manager is located in Toronto, Ontario.
The Private Placement is being underwritten, subject to certain terms, by a syndicate which will include Dundee Securities Corporation (the “Related Underwriter”), an affiliate of the Dealer Manager, with a 20% interest, and CIBC World Markets Inc. with an 80% interest (the Related Underwriter and any other underwriter which is now or may become part of the syndicate prior to closing, the “Underwriters”).
According to the term sheet dated March 2008 (the “Term Sheet”), the Private Placement is being made on a best efforts basis for 18,750,000 units (each, a “Unit”) at a price of $0.80 per Unit, with the total issue amount of $15,000,000. In addition, the Underwriters will be granted an option to increase the issue amount by up to $5,000,000 at any point prior to the closing of the Private Placement (the “Closing Date”). Each Unit will consist of one common share (each a “Common Share”) of the Issuer and one-half Common Share purchase warrant (“Warrant”) (the Common Shares, Warrants and Units herein are collectively referred to as the “Securities”). Each full warrant will entitle the holder to purchase one Common Share at an exercise price of $1.25 for a period of 18 months from the Closing Date.
According to the Term Sheet, the net proceeds of the Private Placement will be used to advance the Issuer’s mineral properties, primarily the Altar property in Argentina, and for general corporate purposes.
The Term Sheet indicates that purchasers of the Units will receive one liquidity entitlement (“Liquidity Entitlement”) for each Unit purchased, entitling the holder to receive 0.1 of a Common Share for no additional consideration in the event that a liquidity event (“Liquidity Event”) shall not have occurred on or before the date that is 12 months following the Closing Date. The Liquidity Entitlements will be issued as separate certificates and will not be tradable separately from the Common Shares. A "Liquidity Event" means either: (i) the Common Shares being listed on the TSX Venture Exchange, the Toronto Stock Exchange or such other major stock exchange that CIBC World Markets may approve, and the removal of any restricted period or hold period under applicable securities laws in Canada (other than in respect of resales by control persons); or (ii) all of the issued and outstanding Common Shares having been sold, transferred or exchanged, pursuant to a take-over bid, amalgamation, plan of arrangement or other business combination, for cash or securities that are not subject to any restricted period or hold period under applicable securities laws in Canada (other than in respect of resales by control persons) and are listed on either the TSX Venture Exchange, the Toronto Stock Exchange or such other major stock exchange that CIBC World Markets may approve; or (iii) any combination of the events or circumstances described in clauses (i) and (ii) such that all of the Common Shares shall be subject to one or more of clause (i) or (ii).
The Dealer Manager is currently compliant with and acting in reliance on National Instrument 81‑107 - Independent Review Committee for Investment Funds (“NI 81‑107”).
The investment objective of the Dealer Managed Fund permits it to invest in the Securities.
The Dealer Manager may wish to cause the Dealer Managed Fund to invest in the Securities during the Distribution Period.
Pursuant to NI 81-107 and to the amendments to NI 81-102 that came into force on November 1, 2006 (the “Amendments”), investments in securities during a distribution and the 60-day period following completion of a distribution (together, a “Prohibition Period”) are no longer prohibited under section 4.1 of 81-102 where, among other things, the distribution is made by a prospectus filed in one or more of the Jurisdictions and the investments have been approved in accordance with NI 81-107.
The Amendments, however, do not extend to provide relief for investments in securities during a Prohibition Period where the offering is a private placement. Accordingly, an application for relief was made by the Dealer Manager and relief was granted from the Canadian Securities Administrators (“CSA”) on August 24, 2007 (the “Private Placement Relief”). The Private Placement Relief allows certain funds managed by the Dealer Manager to be able to invest in equity securities of an issuer in connection with a private placement during the Prohibition Period on the condition that the issuer is a reporting issuer in one of the Jurisdictions and such investment is made in accordance with NI 81‑107.
The Private Placement Relief does not apply to the Private Placement as the Issuer is not a reporting issuer in any of the Jurisdictions and the Distribution is not being made pursuant to a prospectus. However, the Dealer Manager will comply with paragraphs (a) and (d) of subsection 4.1(4) of NI 81-102 and with NI 81-107.
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 provided that the following condition is satisfied:
- At the time of purchase by the Dealer Managed Fund during the Distribution Period for the Offering, the Dealer Managed Fund has an IRC that complies with NI 81-107 and the IRC of the Dealer Managed Fund will have approved the investment in accordance with each of subsection 4.1(4)(a) of NI 81-102 and NI 81‑107. The Dealer Managed Fund will also comply with paragraph (d) of subsection 4.1(4) of NI 81-102.
“Rhonda Goldberg”
Rhonda Goldberg Manager, Investment Funds Branch ONTARIO SECURITIES COMMISSION