January 15, 2016
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 Hamilton Capital Partners Inc. (the Filer)
and
In the Matter of
Hamilton Capital Global Bank ETF
and
Hamilton CAPITAL GLOBAL FINANCIALS YIELD ETF
(THE EXISTING ETFS)
DECISION
Background
The principal regulator in the Jurisdiction has received an application from the Filer on behalf of the Existing ETFs and additional exchange-traded mutual funds (the Future ETFs, and together with the Existing ETFs, the ETFs and each, an ETF) established in the future of which the Filer, or an affiliate of the Filer, may be the manager, for a decision under the securities legislation of the Jurisdiction (the Legislation) that:
(a) exempts each ETF Manager and each ETF from the requirement to include a certificate of an underwriter in an ETF's prospectus (the Underwriter's Certificate Requirement);
(b) exempts each ETF Manager and each ETF from the requirement to include in an ETF's prospectus the statement respecting purchasers' statutory rights of withdrawal and remedies of rescission or damages in substantially the form prescribed in item 36.2 of Form 41-101F2 -- Information Required in an Investment Fund Prospectus (the Prospectus Form Requirement); and
(c) exempts all purchasers and holders of Units (as defined below) from the Take-over Bid Requirements (as defined below).
(collectively, the Exemption Sought).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
(a) the Ontario Securities Commission is the principal regulator for this application; and
(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 all of the other provinces and territories of Canada (together with the Jurisdiction, the Jurisdictions).
Interpretation
Terms defined in National Instrument 14-101 Definitions, MI 11-102 and National Instrument 81-102 Investment Funds (NI 81-102) have the same meaning if used in this decision, unless otherwise defined.
The following terms shall also have the following meanings:
(a) Affiliate Dealer means a registered dealer that is an affiliate of an Authorized Dealer or Designated Broker and that participates in the re-sale of Creation Units of an ETF from time to time.
(b) Authorized Dealer means a registered dealer that has entered, or intends to enter, into an agreement with an ETF Manager authorizing the dealer to subscribe for, purchase and redeem Creation Units from one or more ETFs on a continuous basis from time to time.
(c) Basket of Securities means a group of securities determined by an ETF Manager from time to time representing the constituents of the investment portfolio then held by certain ETFs.
(d) Creation Unit means, in relation to an ETF, the number of Units of an ETF determined by an ETF Manager from time to time for the purpose of subscription orders, exchanges, redemptions or for other purposes.
(e) Dealers means, collectively, an Affiliate Dealer, Authorized Dealer, or Other Dealer and Dealer means any of them.
(f) Designated Broker means a registered dealer that has entered, or intends to enter, into an agreement with an ETF Manager to perform certain duties in relation to the ETF, including posting a liquid two-way market for the trading of the ETF’s Units on the TSX or another Marketplace.
(g) ETF Facts means a prescribed summary disclosure document required pursuant to amendments to the Legislation expected to be made after the date of this decision, in respect of one or more classes or series of Units being distributed under a prospectus.
(h) ETF Manager means the Filer or an affiliate of the Filer.
(i) Marketplace means a “marketplace” as defined in National Instrument 21-101 Marketplace Operations, in Canada.
(j) Other Dealer means a registered dealer that acts as an authorized dealer or designated broker to other exchange-traded funds that are not managed by an ETF Manager and that has received relief under a Prospectus Delivery Decision.
(k) Prospectus Delivery Decision means a decision granting relief from the Prospectus Delivery Requirement to a Designated Broker or Dealer dated July 19, 2013 or any subsequent decision granting similar relief to a Designated Broker or Dealer, and in each case, that is in effect at the relevant time.
(l) Prospectus Delivery Requirement means the requirement that a dealer, not acting as agent of the purchaser, who receives an order or subscription for a security offered in a distribution to which the prospectus requirement of the Legislation applies, send or deliver to the purchaser or its agent, unless the dealer has previously done so, the latest prospectus and any amendment either before entering into an agreement of purchase and sale resulting from the order or subscription, or not later than midnight on the second business day after entering into that agreement.
(m) Summary Document means a document, in respect of a class or series of Units of an ETF being distributed under a prospectus, prepared in accordance with Appendix A.
(n) Take-Over Bid Requirements means the requirements of the Legislation relating to take-over bids, including the requirement to file a report of a take-over bid and to pay the accompanying fee, in the Jurisdiction.
(o) TSX means the Toronto Stock Exchange.
(p) Unitholder means a beneficial and registered holder of a Unit or Units of an ETF.
(q) Unit means a unit of an ETF.
Representations
This decision is based on the following facts represented by the Filer:
The Filer is a corporation organized under the laws of Ontario with a head office in Toronto.
The Filer is registered as: (i) an investment fund manager in Ontario, Québec and Newfoundland & Labrador; (ii) an exempt market dealer in Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland & Labrador, Northwest Territories, Nova Scotia, Ontario, Prince Edward Island, Québec and Saskatchewan; and (iii) a portfolio manager in Ontario.
The Filer is the trustee, portfolio manager and investment fund manager of the Existing ETFs. An ETF Manager will be the manager of the Future ETFs.
The ETFs are, and will be, mutual fund trusts governed by the laws of Ontario and reporting issuers under the laws of one or more of the Jurisdictions.
Each ETF is, or will be, subject to NI 81-102, subject to any exemptions therefrom that have been, or may be, granted by the applicable securities regulatory authorities.
The Filer has filed, and an ETF Manager will file, a long-form prospectus in accordance with National Instrument 41-101 General Prospectus Requirements on behalf of the ETFs, subject to any exemptions that have been or may be granted by the applicable securities regulatory authorities.
The Filer and each Existing ETF are not in default of securities legislation in any of the Jurisdictions.
Each ETF will be in continuous distribution. The Units of each ETF will be listed on the TSX or another Marketplace in Canada.
Units of an ETF are, or will be, distributed on a continuous basis in one or more of the Jurisdictions under a long-form prospectus. Units of an ETF may generally only be subscribed for or purchased directly from the ETF in an amount equal to a Creation Unit by Authorized Dealers or Designated Brokers. Authorized Dealers or Designated Brokers will subscribe for Creation Units of an ETF for the purpose of facilitating investor purchases of Units of the ETF on the TSX or another Marketplace in Canada.
In addition to subscribing for and re-selling Creation Units of an ETF, Authorized Dealers, Designated Brokers and Affiliate Dealers are also generally engaged in purchasing and selling Units of an ETF of the same class or series as the Creation Units in the secondary market. Other Dealers may also be engaged in purchasing and selling Units of an ETF of the same class or series as the Creation Units of the ETF in the secondary market despite not being an Authorized Dealer, Designated Broker or Affiliate Dealer.
According to the Authorized Dealers and Designated Brokers, Creation Units of an ETF are generally commingled with other Units of the ETF purchased by the Authorized Dealers, Designated Brokers and Affiliate Dealers in the secondary market. As such, it is not practicable for the Authorized Dealers, Designated Brokers or Affiliate Dealers to determine whether a particular re-sale of Units of an ETF involves Creation Units or Units of the ETF purchased in the secondary market.
Designated Brokers perform certain other functions, which include standing in the market with a bid and ask price for Units of an ETF for the purpose of maintaining liquidity for the Units of the ETF.
Except for Authorized Dealer and Designated Broker subscriptions for a Creation Units of an ETF, as described above, and other distributions that are exempt from the Prospectus Delivery Requirement under the Legislation, Units of the ETF generally may not be purchased directly from the ETF. Investors are generally expected to purchase and sell Units of an ETF, directly or indirectly, through dealers executing trades through the facilities of the TSX or another Marketplace in Canada. Units of an ETF may also be issued directly to ETF investors upon the reinvestment of distributions of income or capital gains.
Exemption from the Prospectus Form Requirement
The Filer understands that the Canadian securities administrators have taken the view that the first re-sale of a Creation Unit of an ETF on the TSX or another Marketplace in Canada will generally constitute a distribution of Creation Units of an ETF under the Legislation and that the Authorized Dealers, Designated Brokers and Affiliate Dealers are subject to the Prospectus Delivery Requirement in connection with such re-sales. Re-sales of Units of an ETF in the secondary market that are not Creation Units of the ETF would not ordinarily constitute a distribution of such Units.
Under a Prospectus Delivery Decision, Authorized Dealers, Designated Brokers and Affiliate Dealers are exempt from the Prospectus Delivery Requirement in connection with the re-sale of Creation Units of an ETF to investors on the TSX or another Marketplace in Canada. Under a Prospectus Delivery Decision, Other Dealers are also exempt from the Prospectus Delivery Requirement in connection with the re-sale of creation units of other exchange-traded funds that are not managed by an ETF Manager.
A Prospectus Delivery Decision includes a condition that the Designated Broker or Dealer undertakes that it will send or deliver to each purchaser of Units of an ETF who is a customer of the Authorized Dealer, Designated Broker, Affiliate Dealer or Other Dealer, and to whom a trade confirmation is required under the Legislation to be sent or delivered by the Authorized Dealer, Designated Broker, Affiliate Dealer or Other Dealer in connection with the purchase, the latest Summary Document filed in respect of the Units of the ETF, not later than midnight on the second day, exclusive of Saturdays, Sundays and holidays, after the purchase of the Units of the ETF.
An ETF Manager will file with the applicable Jurisdictions on the System for Electronic Document Analysis and Retrieval (SEDAR) a Summary Document for each class or series of Units of an ETF and will make available to the applicable Dealers and Designated Brokers the requisite number of copies of the Summary Document for the purpose of facilitating their compliance with the Prospectus Delivery Decision.
An ETF Manager will file a Summary Document for each class or series of Units of an ETF within the timeframe necessary to allow Dealers and Designated Brokers to effect delivery of the Summary Document as contemplated in the Prospectus Delivery Decision.
The Exemption Sought from the Prospectus Form Requirement is required to reflect the relief provided in the Prospectus Delivery Decision. Accordingly, an ETF Manager will include language in each ETF’s prospectus explaining the impact on a purchaser’s statutory rights as a result of the Prospectus Delivery Decision in replacement of the language prescribed by the Prospectus Form Requirement.
Exemption from the Underwriter’s Certificate Requirement
The Authorized Dealers and Designated Brokers do not provide the same services in connection with a distribution of Creation Units of an ETF as would typically be provided by an underwriter in a conventional underwriting.
The Authorized Dealers and Designated Brokers generally seek to profit from their ability to create and redeem Units of an ETF by engaging in arbitrage trading to capture spreads between the trading prices of Units of the ETF and their underlying securities and by making markets for their clients to facilitate client trading in Units of the ETF.
The Filer generally conducts its own marketing, advertising and promotion of the ETFs. The Filer may, at its discretion, charge an administration fee on the issuance of Creation Units of an ETF to Authorized Dealers or Designated Brokers.
The Authorized Dealers and Designated Brokers are not involved in the preparation of an ETF’s prospectus, do not incur any marketing costs or receive any underwriting fees or commissions from the ETFs or the ETF Managers in connection with the distribution of Creation Units of an ETF. Furthermore, the Authorized Dealers will change from time to time. Accordingly, it is not practical to provide an underwriters’ certificate in the prospectus of the ETFs.
Exemption from the Take-Over Bid Requirements
- Although Units of an ETF will trade on the TSX and the acquisition of Units of the ETF can therefore be subject to the Take-Over Bid Requirements:
(a) it will be difficult for purchasers of Units of the ETF to monitor compliance with the Take-Over Bid Requirements because the number of outstanding Units of the ETF will always be in flux as a result of the ongoing issuance and redemption of Units by the ETF; and
(b) the way in which Units of the ETF will be priced deters anyone from either seeking to acquire control, or offering to pay a control premium, for outstanding Units of the ETF because pricing for each Unit of the ETF will generally reflect the net asset value of the Units of the ETF.
- The application of the Take-Over Bid Requirements to an ETF would have an adverse impact upon the liquidity of a Unit of the ETF because they could cause Dealers, Designated Brokers and other large Unitholders of the ETF to cease trading Units of the ETF once prescribed take-over bid thresholds are reached. This, in turn, could serve to provide conventional mutual funds with a competitive advantage over an ETF.
Generally
- The Filer understands that the securities regulatory authorities are developing proposed rule amendments that will require an ETF Manager to file an ETF Facts on behalf of an ETF in connection with the filing of a prospectus. If the amendments are adopted, the requirement to file an ETF Facts will supersede the requirement to file a Summary Document. Since the introduction of the ETF Facts will likely be subject to a transition period, there may be a period of time where some ETFs have an ETF Facts while others have a Summary Document. If the ETF Manager files an ETF Facts with respect to a class or series of Units of an ETF, the ETF Manager will use such ETF Facts instead of a Summary Document to satisfy its obligations with respect to the Exemption Sought in respect of any purchase of such class or series of Units that occurs after the filing of such ETF Facts.
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 is that the Exemption Sought in respect of the Underwriter's Certificate Requirement and the Prospectus Form Requirement is granted, provided that each ETF Manager will be in compliance with the following conditions:
(a) the ETF Manager files with the applicable Jurisdictions on SEDAR the Summary Document for a class or series of Units of an ETF when filing the final prospectus for that ETF;
(b) the ETF Manager displays on its website in a manner that would be considered prominent to a reasonable investor such Summary Document for a class or series of Units of each ETF;
(c) the ETF Manager amends the Summary Document at the same time it files any amendments to the ETF’s prospectus that affect the disclosure in the Summary Document and files the amended Summary Document with the applicable Jurisdictions on SEDAR and makes it available on its website in a manner that would be considered prominent to a reasonable investor;
(d) the ETF Manager provides or makes available to each Dealer or Designated Broker, the number of copies of the Summary Document of the class or series of Units of the ETF that the Dealer or Designated Broker reasonably requests in support of compliance with its respective Prospectus Delivery Decision;
(e) each ETF’s prospectus, pro forma prospectus or any amendment:
(i) incorporates the relevant Summary Document by reference;
(ii) contains the disclosure referred to in paragraph 19 above; and
(iii) discloses both this decision and the Prospectus Delivery Decision under Item 34.1 of Form 41-101F2 Exemptions and Approvals;
(f) the ETF Manager obtains an executed acknowledgement from each Authorized Dealer, Designated Broker and Affiliate Dealer, and uses its best efforts to obtain an acknowledgment from each Other Dealer:
(i) indicating its election, in connection with the re-sale of Creation Units of the ETF on the TSX or another Marketplace in Canada, to send or deliver the Summary Document in accordance with a Prospectus Delivery Decision or, alternatively, to comply with the Prospectus Delivery Requirement; and
(ii) if a Dealer or Designated Broker agrees to deliver the Summary Document in accordance with a Prospectus Delivery Decision:
(A) an undertaking that the Dealer or Designated Broker will attach or bind one ETF’s Summary Document with another ETF’s Summary Document only if the documents are being sent or delivered under the Prospectus Delivery Decision at the same time to an investor purchasing Units of each such ETF; and
(B) confirming that the Dealer or Designated Broker has in place written policies and procedures to ensure that it is in compliance with the conditions of the Prospectus Delivery Decision;
(g) the ETF Manager will keep records of which Designated Brokers and Dealers have provided it with an acknowledgement under a Prospectus Delivery Decision, and which intend to rely on and comply with the Prospectus Delivery Decision or intend to comply with the Prospectus Delivery Requirement;
(h) the ETF Manager files with its principal regulator, to the attention of the Director, Investment Funds and Structured Products Branch, on or before January 31st in each calendar year, a certificate signed by its ultimate designated person certifying that, to the best of the knowledge of such officer, after making due inquiry, the ETF Manager has complied with the terms and conditions of this decision during the previous calendar year;
(i) if the ETF Manager files an ETF Facts instead of a Summary Document with respect to a class or series of Units, the latest ETF Facts filed in respect of such class or series of Units must be substituted for a Summary Document in order to satisfy the foregoing conditions with respect to any purchase in such class or series of Units that occurs after the date of filing of such ETF Facts;
(j) conditions (a), (b), (c) and (e)(i) above do not apply to the Exemption Sought with respect to a class or series of Units of an ETF if the ETF Manager files an ETF Facts; and
(k) conditions (d), (e)(ii), (e)(iii), (f), (g) and (h) do not apply to the Exemption Sought after any new legislation or rule dealing with the Prospectus Delivery Decision takes effect and any applicable transition period has expired.
- The decision of the principal regulator is that the Exemption Sought in respect of the Take-over Bid Requirements is granted.
The Exemption Sought from the Prospectus Form Requirement as it relates to one or more of the Jurisdictions will terminate on the latest of (i) the coming into force of any legislation or rule dealing with the Exemption Sought from the Prospectus Form Requirement or (ii) the end date of any applicable transition period for any legislation or rule dealing with the Exemption Sought from the Prospectus Form Requirement.
As to the Exemption Sought from the Underwriter’s Certificate Requirements and the Take-Over Bid Requirements
“Edward P. Kerwin”
“Deborah Leckman”
Name: Edward P. Kerwin Title: Commissioner
Name: Deborah Leckman Title: Commissioner
As to the Exemption Sought from the Prospectus Requirement
“Stephen Paglia”
Stephen Paglia Acting Manager, Investment Funds and Structured Products Branch Ontario Securities Commission
APPENDIX A
CONTENTS OF SUMMARY DOCUMENT
General Instructions:
Items 1 to 10 represent the minimum disclosure required in a Summary Document for a fund. The inclusion of additional information is not precluded so long as the Summary Document does not exceed a total of four pages in length (two pages double-sided).
Terms defined in National Instrument 81-102 Investment Funds, National Instrument 81-105 Mutual Fund Sales Practices or National Instrument 81-106 Investment Fund Continuous Disclosure and used in this Summary Document have the meanings that they have in those national instruments.
Information in the Summary Document must be clear and concise and presented in plain language.
The format and presentation of information in the Summary Document is not prescribed but the information must be presented in a manner that assists in readability and comprehension.
The order of the Items outlined below is not prescribed, except for Items 1 and 2, which must be presented as the first 2 items in the Summary Document.
Each reference to a fund in this Appendix A refers to an ETF as defined in the decision above.
Item 1 -- Introduction
Include at the top of the first page a heading consisting of:
(a) the title “Summary Document”;
(b) the name of the manager of the fund;
(c) the name of the fund to which the Summary Document pertains; and
(d) the date of the document.
Item 2 -- Cautionary Language
Include a statement in italics in substantially the following form:
“The following is a summary of the principal features of this fund. You can find more detailed information about the fund in the prospectus. The prospectus is available on [insert name of the manager of the fund] website at [insert manager of the fund website], or by contacting [insert name of the manager of the fund] at [insert manager of the fund’s email address], or by calling [insert telephone number of the manager of the fund”].
Item 3 -- Fund Details
Include the following disclosure:
(a) ticker symbol;
(b) fund identification code(s);
(c) index ticker (as applicable);
(d) exchange;
(e) currency;
(f) inception date;
(g) RSP eligibility;
(h) DRIP eligibility;
(i) expected frequency and timing of distributions, and if applicable, the targeted amount for distributions;
(j) management expense ratio, if available; and
(k) portfolio manager, when the fund is actively managed.
Item 4 -- Investment Objectives
Include a description of the fundamental nature of the fund, or the fundamental features of the fund that distinguishes it from other funds.
INSTRUCTIONS:
Include a description of what the fund primarily invests in, or intends to primarily invest in, such as
(a) a description of the fund, including what the fund invests in, and if it is trying to replicate an index, the name of the index, and an overview of the nature of securities covered by the index or the purpose of the index; and
(b) the key investment strategies of the fund.
Item 5 -- Investments of the Fund
- Include a table disclosing:
(a) the top 10 positions held by the fund; and
(b) the percentage of net asset value of the fund represented by the top 10 positions.
- Include at least one, and up to two, charts or tables that illustrate the investment mix of the fund’s investment portfolio.
INSTRUCTIONS:
(a) The information required under this Item is intended to give a snapshot of the composition of the fund’s investment portfolio. The information required to be disclosed under this Item must be as at a date within 60 days before the date of the Summary Document.
(b) The information required under Item 5(2) must show a breakdown of the fund’s investment portfolio into appropriate subgroups and the percentage of the aggregate net asset value of the fund constituted by each subgroup. The names of the subgroups are not prescribed and can include security type, industry segment or geographic location. The fund should use the most appropriate categories given the nature of the fund. The choices made must be consistent with disclosure provided under “Summary of Investment Portfolio” in the fund’s MRFP.
(c) For new funds where the information required to be disclosed under this Item is not available, provide a brief statement explaining why the required information is not available.
Item 6 -- Risk
- Include a statement in italics in substantially the following form:
“All investments involve risk. When you invest in the fund the value of your investment can go down as well as up. For a description of the specific risks of this fund, see the fund’s prospectus.”
- If the cover page of the fund’s prospectus contains text box risk disclosure, also include a description of those risk factors in the Summary Document.
Item 7 -- Fund Expenses
- Include an introduction using wording similar to the following:
“You don’t pay these expenses directly. They affect you because they reduce the fund’s returns.”
- Provide information about the expenses of the fund in the form of the following table:
Annual rate (as a % of the fund’s value)
Management expense ratio (MER) This is the total of the fund’s management fee and operating expenses.
Trading expense ratio (TER) These are the fund’s trading costs.
Fund expenses The amount included for fund expenses is the amount arrived at by adding the MER and the TER.
- If the information in (2) is unavailable because the fund is new including wording similar to the following:
“The fund’s expenses are made up of the management fee, operating expenses and trading costs. The fund’s annual management fee is [ ]% of the fund’s value. Because this fund is new, its operating expenses and trading costs are not yet available.”
INSTRUCTIONS:
Use a bold font or other formatting to indicate that fund expenses is the total of all ongoing expenses set out in the chart and is not a separate expense charged to the fund.
Item 8 -- Trailing Commissions
If the manager of the fund or another member of the fund’s organization pays trailing commissions, include a brief description of these commissions.
The description of any trailing commission must include a statement in substantially the following words:
“The trailing commission is paid out of the management fee. The trailing commission is paid for as long as you own the fund.”
Item 9 -- Other Fees
Provide information about the amount of fees payable by an investor, other than those already described or payable by designated brokers and underwriters.
Include a statement using wording similar to the following:
“You may pay brokerage fees to your dealer when you purchase and sell units of the fund.”
INSTRUCTIONS:
(a) Examples include any redemption charges, sales charges or other fees, if any, associated with buying and selling securities of the fund.
(b) Provide a brief description of each fee disclosing the amount to be paid as a percentage (or, if applicable, a fixed dollar amount) and state who charges the fee.
Item 10 -- Statement of Rights
State in substantially the following words:
Under securities law in some provinces and territories, you have:
the right to cancel your purchase within 48 hours after you receive confirmation of the purchase, or
other rights and remedies if this document or the fund’s prospectus contains a misrepresentation. You must act within the time limit set by the securities law in your province or territory.
For more information, see the securities law of your province or territory or ask a lawyer.
Item 11 -- Past Performance
If the fund includes past performance:
- Include an introduction using wording similar to the following:
This section tells you how the fund has performed over the past [insert the lesser of 10 years or the number of completed calendar years] years. Returns are after expenses have been deducted. These expenses reduce the fund’s returns.
It’s important to note that this doesn’t tell you how the fund will perform in the future as past performance may not be repeated. Also, your actual after-tax return will depend on your personal tax situation.
- Show the annual total return of the fund, in chronological order for the lesser of:
(a) each of the 10 most recently completed calendar years; and
(b) each of the completed calendar years in which the fund has been in existence and which the fund was a reporting issuer.
- Show the
(a) final value, of a hypothetical $1,000 investment in the fund as at the end of the period that ends within 60 days before the date of the Summary Document and consists of the lesser of:
(i) 10 years, or
(ii) the time since inception of the fund,
and
(b) the annual compounded rate of return that would equate the initial $1,000 investment to the final value.
INSTRUCTIONS:
In responding to the requirements of this Item, a fund must comply with the relevant sections of Part 15 of National Instrument 81-102 Investment Funds as if those sections applied to a Summary Document.
Item 12 -- Benchmark Information
If the Summary Document includes benchmark information, ensure this information is consistent with the fund’s MRFP and presented in the same format as Item 11.