Headnote
National Policy 11-203 Process for Exemptive Relief in Multiple Jurisdictions – Filer wants to put in place a credit support issuer structure, but is unable to rely on the exemption for credit support issuers in applicable securities legislation – Filer obtained relief from continuous disclosure requirements, certification requirements, audit committee requirements and corporate governance requirements in connection with an amalgamation – Filer unable to rely on exemption for credit support issuers in applicable legislation since Filer’s convertible debentures do not convert immediately into securities of credit supporter and warrants are outstanding - relief subject to conditions – relief pursuant to subsection 158(1.1) of the Business Corporations Act (Ontario) that an offering corporation is authorized to dispense with its audit committee as filer obtained relief related to credit support issuer –– filer exempt from audit committee requirements of National Instrument 52-110 Audit Committees – Relief from audit committee requirements of National Instrument 52-110 conditional upon issuer continuing to satisfy conditions of credit support issuer relief.
Applicable Legislative Provisions
National Instrument 51-102 Continuous Disclosure Obligations, ss. 13.1(2) and 13.4 National Instrument 52-109 Certification of Disclosure in Issuers’ Annual and Interim Filings, ss. 8.5 and 8.6(2) National Instrument 52-110 Audit Committees, ss. 1.2(g) and 8.1(2) National Instrument 58-101 Disclosure of Corporate Governance Practices, ss. 1.3(c) and 3.1(2) Business Corporations Act, R.S.O. 1990, c. B.16, s. 158(1.1).
August 13, 2013
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 DIR INDUSTRIAL PROPERTIES INC. (the “Filer”)
DECISION
Background
The principal regulator has received an application from the Filer for a decision under the securities legislation of the principal regulator (the “Legislation”) granting the Filer relief from the following:
the continuous disclosure requirements contained in National Instrument 51-102 – Continuous Disclosure Obligations (“NI 51-102”), as amended from time to time (the “Continuous Disclosure Requirements”);
the certification requirements contained in National Instrument 52-109 – Certification of Disclosure in Issuers' Annual and Interim Filings, as amended from time to time (the “Certification Requirements”);
the corporate governance requirements contained in National Instrument 58-101 – Corporate Governance Requirements, as amended from time to time (the “Corporate Governance Requirements”);
the audit committee requirements contained in National Instrument 52-110 – Audit Committees, as amended from time to time (the “Audit Committee Requirements”); and
the audit committee requirements contained in section 158 of the Business Corporations Act (Ontario) (the “OBCA”), as amended from time to time (the “OBCA Audit Committee Requirements”),
collectively, the “Exemption Sought”.
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application),
the Ontario Securities Commission is the principal regulator for the application, and
other than for the OBCA Audit Committee Requirements, 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, New Brunswick, Nova Scotia, Prince Edward Island and Newfoundland and Labrador.
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.
Representations
The decision is based on the following facts represented by the Filer:
The Filer is a corporation incorporated under the laws of the Province of Ontario. The Filer is the continuing corporation resulting from the amalgamation on July 19, 2013 of C2C Industrial Properties Inc. (“C2C”) and Dundee Industrial Atlantic Acquisition Inc. (the “Offeror”).
The Filer’s head office is located at 30 Adelaide Street East, Suite 1600, Toronto, Ontario, M5C 3H1.
The Filer is a reporting issuer in each of the provinces of Canada other than Québec.
Dundee Industrial REIT is an unincorporated, open-ended real estate investment trust created by a declaration of trust dated October 4, 2012, as amended and restated.
Dundee Industrial REIT’s head office is located at 30 Adelaide Street East, Suite 1600, Toronto, Ontario, M5C 3H1.
Dundee Industrial REIT is a reporting issuer in all of the provinces of Canada.
Dundee Industrial Limited Partnership (“Dundee Industrial LP”) is a limited partnership formed under the laws of the Province of Ontario on December 21, 2010.
Dundee Industrial LP is a direct subsidiary of Dundee Industrial REIT.
The Filer is a direct subsidiary of Dundee Industrial LP.
On March 19, 2013, Dundee Industrial REIT, the Offeror (which was then a wholly-owned subsidiary of Dundee Industrial LP) and C2C (which was then a widely-held public company) entered into a support agreement pursuant to which Dundee Industrial REIT agreed to cause the Offeror to make an offer (the “Offer”) to purchase all of the issued and outstanding common shares of C2C in consideration for 0.4485 units of Dundee Industrial REIT per common share of C2C and the board of directors of C2C agreed to recommend to the holders of common shares of C2C that they accept the Offer.
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