Headnote
National Policy 11-203 Process For Exemptive Relief Applications in Multiple Jurisdictions - – Exemptive relief granted to exchange-traded Fund for initial and continuous distribution of units, including: relief from dealer registration requirements to permit promoter to disseminate sales communications promoting the Fund subject to compliance with Part 15 of NI 81-102, relief to permit the Fund’ prospectus to not contain an underwriter’s certificate, and relief from take-over bid requirements in connection with normal course purchases of units on the Toronto Stock Exchange as the declaration of trust provides that no unitholder can exercise voting rights beyond the 20% threshold.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. s.5, as amended, ss. 25(1), 59(1), 74(1), 95, 96, 97, 98, 100, 104(2)(c) and 147.
Rules Cited National Instrument 81-102 Mutual Fund – Part 15
September 30, 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 in the Jurisdiction has received an application from the Filer for a decision under the securities legislation of the Jurisdiction (the "Legislation") for exemptive relief from the following provisions of NI 81-102 (the "Requested Relief"):
Sections 9.1 and 10.2 to permit purchases and sales of units ("Units") of PowerShares China ETF, PowerShares Emerging Markets Tnfrastructure 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") on the Toronto Stock Exchange ("TSX");
Section 9.4(2) to permit the Funds to accept a combination of cash and securities as subscription proceeds for Units;
Section 10.3 to permit the Funds to redeem less than the Prescribed Number of Units at a discount to their market price, instead of at their net asset value; and
permission under Section 14.1 to permit the Funds to establish a record date for distributions in accordance with TSX Rules.
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
the OSC is the principal regulator for this application; and
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 a Fund 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.
Section references set out in this decision are references to NI 81-102, unless otherwise indicated.
Terms defined in National Instrument 14-101 - Definitions, Multilateral Instrument 11-102 - Passport System and 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:
The Funds are mutual funds trusts governed by the laws of Ontario and will be reporting issuers under the laws of all of the Jurisdictions.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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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.
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, brokerage expenses and commissions, income taxes and withholding taxes and extraordinary expenses.
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.
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 on the following conditions:
Sections 9.1 and 10.2 - to enable the purchase and sale of Units of the Funds on the TSX, which precludes the transmission of purchase or redemption orders to the order receipt offices of the Funds.
Section 9.4(2) - to permit payment for the issuance of Units of the Funds to be made partially in cash and partially in securities, provided that the acceptance of securities as payment is made in accordance with Section 9.4(2)(b).
Section 10.3 - to permit the redemption of less than the Prescribed Number of Units of the Funds at a price equal to 95% of the closing price of the Units on the TSX; and
Section 14.1 - to relieve the Funds from the requirement relating to the record date for the payment of distributions, provided that the Funds comply with applicable TSX requirements.
"Darren McKall"
Darren McKall, Assistant Manager Ontario Securities Commission