Invesco Trimark Ltd. (Re), 2008 CanLII 51785

Headnote

National Policy 11-203 Process For Exemptive Relief Applications in Multiple Jurisdictions - Exemptive relief granted to exchange traded fund offered in continuous distribution from certain mutual fund requirements and restrictions on: transmission of purchase or redemption orders, issuing units for cash or securities, calculation and payment of redemptions and date of record for payment of distributions – National Instrument 81-102 Mutual Funds

Applicable Legislative Provisions

National Instrument 81-102 Mutual Funds, ss. 9.1, 9.4(2), 10.2, 10.3, 14.1 and 19.1

September 19, 2008

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 INVESCO TRIMARK LTD. (the "Filer")

DECISION

Background

The principal regulator has received an application from the Filer for a decision under the securities legislation of the Jurisdiction (the "Legislation") for exemptive relief from the Legislation so that:

1. the registration requirement of the Legislation does not apply to the Filer in connection with its dissemination of sales communications relating to the distribution of units ("Units") of PowerShares China ETF, PowerShares Emerging Markets Infrastructure ETF, PowerShares FTSE RAFI Developed Markets ETF, PowerShares FTSE RAFI Emerging Markets ETF, PowerShares Global Agriculture ETF, PowerShares Global Clean Energy ETF, PowerShares Global Water ETF (the "Existing Funds") and any additional exchange-traded funds of which the Filer, or an affiliate of the Filer, may be the trustee and/or manager and which operate on a similar basis as the Existing Funds (the "Future Funds", which together with the Existing Funds are collectively referred to as the "Funds")(the "Registration Relief");

2. all holders of Units of the Funds be exempted from the requirements of the Legislation related to take-over bids, including the requirement to file a report of a take-over bid and the accompanying fee with each applicable Jurisdiction, (the "Take-over Bid Relief") in respect of take-over bids for the Funds;

3. in connection with the distribution of securities of the Funds pursuant to a prospectus, the Funds be exempt from the requirement that the prospectus contain a certificate of the underwriter or underwriters who are in a contractual relationship with the issuer whose securities are being offered (the "Underwriter Relief").

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

1. the OSC is the principal regulator for this application; and

2. 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, Alberta, Saskatchewan, Manitoba, Quebec, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, Yukon, Northwest Territories and Nunavut.

Interpretation

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

"Basket of Securities" means a group of securities determined by the Filer from time to time representing the constituents of the investment portfolio then held by the Funds.

"Designated Brokers" means registered brokers and dealers that enter into agreements with the Funds to perform certain duties in relation to the Funds.

"Prescribed Number of Units" means the number of Units of the Funds determined by the Filer from time to time for the purpose of subscription orders, exchanges, redemptions or for other purposes.

"Underwriters" means registered brokers and dealers that have entered into underwriting agreements with the Funds and that subscribe for and purchase Units from the Funds, and "Underwriter" means any one of them.

"Unitholders" means beneficial and registered holders of Units.

Terms defined in National Instrument 14-101 – Definitions, Multilateral Instrument 11-102 – Passport System and NI 81-102 – Mutual Funds ("NI 81-102") 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 Funds are mutual funds trusts governed by the laws of Ontario and will be reporting issuers under the laws of all of jurisdictions in Canada.

2. Invesco Trimark has applied to list the Units of the Funds on the TSX. Invesco Trimark will not file a final prospectus for the Funds until the TSX has conditionally approved the listing of Units.

3. Units issued by the Funds will be index participation units within the meaning of NI 81-102. The Funds will be generally described as exchange-traded funds.

4. Invesco Trimark, a registered investment counsel and portfolio manager, is the trustee and manager of the Funds and is responsible for the administration of the Funds.

5. Each of the Funds will seek investment results that correspond generally to the price and yield performance of an index (the "Index") by replicating generally the portfolio of securities which constitutes such Index, net of fees and expenses.

6. Units may only be subscribed for or purchased directly from the Funds by Underwriters or Designated Brokers and orders may only be placed for Units in the Prescribed Number of Units (or an integral multiple thereof) on any day when there is a trading session on the TSX. Under Designated Broker and Underwriter agreements, the Designated Brokers and Underwriters agree to offer Units for sale to the public only as permitted by applicable Canadian securities legislation, which require a prospectus to be delivered to purchasers buying Units as part of a distribution. Therefore, first purchasers of Units in the distribution on the TSX will receive a prospectus from the Designated Brokers and Underwriters.

7. The Funds will appoint Designated Brokers to perform certain functions which include standing in the market with a bid and ask price for Units of the Funds for the purpose of maintaining liquidity for the Units.

8. Each Underwriter or Designated Broker that subscribes for Units must deliver, in respect of each Prescribed Number of Units to be issued, a Basket of Securities and cash in an amount sufficient so that the value of the Basket of Securities and cash delivered is equal to the net asset value of the Units subscribed for next determined following the receipt of the subscription order. In the discretion of Invesco Trimark, the Funds may also accept subscriptions for Units in cash only, in securities other than Baskets of Securities and/or in a combination of cash and securities other than Baskets of Securities, in an amount equal to the net asset value of the Units next determined following the receipt of the subscription order.

9. The net asset value per Unit of the Funds will be calculated and published daily and the investment portfolio of the Funds will be made available daily on Invesco Trimark's website.

10. Upon notice given by Invesco Trimark from time to time and, in any event, not more than once quarterly, a Designated Broker will subscribe for Units in cash in an amount not to exceed 0.3% of the net asset value of the Funds, or such other amount established by Invesco Trimark and disclosed in the prospectus of the Funds, next determined following delivery of the notice of subscription to that Designated Broker.

11. Neither the Underwriters nor the Designated Brokers will receive any fees or commissions in connection with the issuance of Units to them. Invesco Trimark may, at its discretion, charge an administration fee on the issuance of Units to the Designated Brokers or Underwriters.

12. Except as described in paragraphs 6 through 11 above, Units may not be purchased directly from the Funds. Investors are generally expected to purchase Units through the facilities of the TSX. However, Units may be issued directly to Unitholders upon the reinvestment of distributions of income or capital gains and in accordance with a distribution reinvestment plan of the Funds, if such a plan is implemented.

13. Unitholders that wish to dispose of their Units may generally do so by selling their Units on the TSX, through a registered broker or dealer, subject only to customary brokerage commissions. A Unitholder that holds a Prescribed Number of Units or an integral multiple thereof may exchange such Units for Baskets of Securities and cash; Unitholders may also redeem their Units for cash at a redemption price equal to 95% of the closing price of the Units on the TSX on the date of redemption.

14. As manager, Invesco Trimark receives a fixed annual fee from the Funds. Such annual fee is calculated as a fixed percentage of the net asset value of the Funds. As manager, Invesco Trimark is responsible for all costs and expenses of the Funds except the management fee, any expenses related to the implementation and on-going operation of an independent review committee under National Instrument 81-107, fees and expenses related to the advisory board of the PowerShares ETFs, brokerage expenses and commissions, income taxes and withholding taxes and extraordinary expenses.

15. Unitholders will have the right to vote at a meeting of Unitholders in respect of the Funds in certain circumstances, including prior to any change in the, fundamental investment objective of the Funds, any change to their voting rights the introduction of a fee or expenses to be charged to the Funds or to Unitholders or a change in the basis of the calculation of a fee or expenses charged to the Funds or Unitholders where such change could result in an increase in the amount of fees or expenses payable by the Funds or Unitholders.

16. Although Units will trade on the TSX and the acquisition of Units can therefore be subject to the Take-over Bid Requirements:

(a) it will not be possible for one or more Unitholders to exercise control or direction over the Funds as the declaration of trust in respect of the Funds will ensure that there can be no changes made to the Funds which do not have the support of Invesco Trimark;

(b) it will be difficult for purchasers of Units to monitor compliance with Take-over Bid Requirements because the number of outstanding Units will always be in flux as a result of the ongoing issuance and redemption of Units by the Fund; and

(c) the way in which Units will be priced deters anyone from either seeking to acquire control, or offering to pay a control premium, for outstanding Units because Unit pricing will be dependent upon the performance of the portfolio of the Fund as a whole.

17. The application of the Take-over Bid Requirements to the Funds would have an adverse impact upon Unit liquidity because they could cause Designated Brokers and other large Unitholders to cease trading Units once prescribed take-over bid thresholds are reached. This, in turn, could serve to provide conventional mutual Funds with a competitive advantage over the Funds.

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 Registration Relief, the Take-over Bid Relief and the Underwriter Relief are granted provided that:

1. in respect of the Registration Relief, Invesco Trimark complies with Part 15 of National Instrument 81-102 – Mutual Funds; and

2. in respect of the Take-over Bid Relief, prior to making any take-over bid for Units that is not otherwise exempt from the Take-over Bid Requirements, the Unit Purchaser, and any person or company acting jointly or in concert with the Unit Purchaser (a "Concert Party"), provides the Filer with an undertaking not to exercise any votes attached to the Units held by the Unit Purchaser and any Concert Party which represent more than 20% of the votes attached to all outstanding Units.

Paulette L. Kennedy Commissioner Ontario Securities Commission

Paul K. Bates Commissioner Ontario Securities Commission