Arctic Glacier Income Fund - MRRS Decision
Headnote
Mutual Reliance Review System for ExemptiveRelief Applications -- Closed-end investment trust exempt fromprospectus and registration requirements in connection withissuance of units to existing unitholders under a distributionreinvestment plan whereby distributions of income are reinvestedin additional units of the trust, subject to certain conditions- first trade relief provided for additional units of trust,subject to certain conditions.
Ontario Statutes
Securities Act, R.S.O. 1990, c. S.5, as am.,ss. 25, 53, 74(1).
Ontario Rules
Multilateral Instrument 45-102 Resale of Securities24 OSCB 7029.
IN THE MATTER OF
THE SECURITIES LEGISLATIONOF
BRITISH COLUMBIA, ALBERTA,SASKATCHEWAN, MANITOBA,
ONTARIO, QUÉBEC, NOVASCOTIA, NEW BRUNSWICK,
NEWFOUNDLAND AND LABRADOR,AND PRINCE EDWARD ISLAND
AND
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEWSYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
AND
IN THE MATTER OF
ARCTIC GLACIER INCOME FUND
MRRS DECISION DOCUMENT
WHEREAS the local securities regulatoryauthority or regulator (the "Decision Maker") in eachof British Columbia, Alberta, Saskatchewan, Manitoba, Ontario,Québec, Nova Scotia, New Brunswick, Prince Edward Island,and Newfoundland and Labrador (the "Jurisdictions")has received an application from Arctic Glacier Income Fund(the "Trust") for a decision under the securitieslegislation of the Jurisdictions (the "Legislation"),that the requirements contained in the Legislation to be registeredto trade in a security and to file and obtain a receipt fora preliminary prospectus and a prospectus (the "Registrationand Prospectus Requirements") shall not apply to the distributionand resale of trust units of the Trust pursuant to a distributionreinvestment plan (the "Plan");
AND WHEREAS under the Mutual RelianceReview System for Exemptive Relief Applications (the "System"),The Manitoba Securities Commission is the principal regulatorfor this application;
AND WHEREAS, unless otherwise defined,the terms herein have the meaning set out in National Instrument14-101 Definitions or in Québec Commission Notice 14-101;
AND WHEREAS the Trust has representedto the Decision Makers that:
1. The Trust is an unincorporated open-endmutual fund trust established under the laws of the Provinceof Alberta by a declaration of trust dated January 22, 2002,as amended and restated as of March 11, 2002.
2. The beneficial interests in the Trust aredivided into interests of one class, described and designatedas "Trust Units". The Trust is authorized to issuean unlimited number of Trust Units of which 15,659,846 arepresently issued and outstanding.
3. The Trust became a reporting issuer orthe equivalent in all Jurisdictions on March 13, 2002 on obtaininga receipt for its prospectus dated March 12, 2002. The lastprospectus of the Trust was dated June 17, 2003 and filedin all of the Jurisdictions on June 17, 2003. The Trust iscurrent on all filings required to be made under the Legislation.
4. The Trust Units are listed and posted fortrading on the Toronto Stock Exchange (the "TSX")under the symbol "AG.UN".
5. The Trust makes cash distributions of aproportionate share of its annual distributable cash flow("Distributions") on a monthly basis paid on the15th day of each month (the "DistributionDate") to unitholders of record ("Unitholders")on the last business day of the previous month (each a "RecordDate").
6. The Trust has adopted the Plan which, subjectto obtaining all necessary regulatory approvals, will permitUnitholders to reinvest Distributions by electing to purchaseadditional Units ("Plan Units") pursuant to thePlan and in accordance with a distribution reinvestment planservices agreement entered into between the Trust and ComputershareTrust Company of Canada in its capacity as agent under thePlan (in such capacity, the "Plan Agent").
7. Participation in the Plan is restrictedto Unitholders and beneficial owners of Trust Units who areresidents of Canada.
8. A registered holder of Trust Units mayelect to participate in the Plan by completing an authorizationform and sending it to the Plan Agent. Beneficial owners ofTrust Units may elect to participate in the Plan by notifyingthe Plan Agent via the applicable participant ("CDS Participant")in the Canadian Depository for Securities Limited ("CDS")depository service.
9. Distributions due to participants in thePlan ("Plan Participants") will be paid to the PlanAgent and applied to purchase Plan Units directly from theTrust.
10. The Price of Plan Units purchased withDistributions will be 95% of the volume weighted average ofthe trading price for the Trust Units on the TSX for the ten(10) trading days immediately preceding the relevant DistributionDate.
11. The Plan also allows Plan Participantsto make optional cash payments ("Optional Cash Payments")to purchase Plan Units, provided that Optional Cash Paymentsmade by any Plan Participant shall be not less than $1,000per Distribution Date and not more than $12,000 per calendaryear.
12. The Price of Plan Units purchased withOptional Cash Payments will be 100% of the volume weightedaverage of the trading price for the Trust Units on the TSXfor the ten (10) trading days immediately preceding the relevantDistribution Date.
13. The aggregate number of Plan Units thatmay be purchased with Optional Cash Payments in a calendaryear will be limited to 2% of the outstanding Trust Unitsat the commencement of that calendar year.
14. Optional Cash Payments, accompanied bythe prescribed forms, must be received by the Plan Agent onor before 5:00 p.m. (Toronto time) no later than two (2) businessdays prior to a Distribution Date, in order to be investedin Plan Units in respect of such Distribution Date. Any OptionalCash Payments received after such time will be held (withoutinterest) by the Plan Agent and be used to purchase Plan unitsin respect of the following Distribution Date.
15. Plan Participants may terminate theirparticipation in the Plan by written notice to the Plan Agentor their CDS Participant, who will in turn notify CDS. CDSwill notify the Plan Agent each month of the number of TrustUnits participating in the Plan through CDS.
16. No commissions or brokerage fees willbe payable on the purchase of Plan Units and administrativecosts will be borne by the Trust.
17. The Trust reserves the right to suspendor terminate the Plan at any time in its sole discretion,upon not less than 30 days' notice to (i) the Plan Participantswho are registered Unitholders, (ii) CDS and (iii) the PlanAgent.
18. Subject to the approval of the TSX, theTrust may amend the Plan at any time and may, in consultationwith the Plan Agent, adopt additional rules and regulationsto facilitate the administration of the Plan.
19. The distribution of the Plan Units bythe Trust pursuant to the Plan cannot be made in relianceon certain registration and prospectus exemptions containedin the Legislation for the reinvestment of dividends, interestor distributions of capital gains, earnings or surplus, asthe Plan involves the reinvestment of Distributions of alldistributable cash flow of the Trust which may not fall intoany of these categories.
20. Additionally, the distribution of PlanUnits by the Trust pursuant to the Plan cannot be made inreliance on certain registration and prospectus exemptionscontained in the Legislation for the reinvestment plans ofmutual funds as the Trust is not a "mutual fund"within the definition in the Legislation because the Unitholdersare not entitled to receive on demand an amount computed byreference to the value of a proportionate interest in thewhole or in a part of the net assets of the Trust.
AND WHEREAS under the System, this MRRSDecision Document evidences the decision of each of the DecisionMakers (collectively, the "Decision");
AND WHEREAS each of the Decision Makersis satisfied that the test contained in the Legislation thatprovides the Decision Makers with the jurisdiction to make theDecision has been met;
THE DECISION of the Decision Makers underthe Legislation is that the Registration and Prospectus Requirementscontained in the Legislation shall not apply to the trades ofPlan Units to the Plan Agent for the account of Plan Participantspursuant to the Plan provided that:
(a) at the time of the trade the Trust isa reporting issuer or the equivalent under the Legislationand is not in default of any requirements of the Legislation;
(b) no sales charge is payable in respectof the distributions of Plan Units from treasury;
(c) the Trust has caused to be sent to theperson or company to whom the Plan Units are traded, not morethan 12 months before the trade, a statement describing:
(i) their right to withdraw from the Planand to make an election to receive cash instead of PlanUnits on the making of a distribution by the Trust; and
(ii) instructions on how to exercise theright referred to in (i);
(d) in the calendar year during which thetrade takes place, the aggregate number of Plan Units issuedpursuant to the Optional Cash Payments shall not exceed 2%of the aggregate number of Units outstanding at the commencementof that calendar year;
(e) except in Québec, the first tradein Plan Units acquired pursuant to this Decision will be adistribution or primary distribution to the public under theLegislation unless the conditions of paragraphs 2 through5 of subsection 2.6(3) of Multilateral Instrument 45-102 Resaleof Securities are satisfied; and
(f) in Québec, the first trade (alienation)in Plan Units acquired pursuant to this Decision will be adistribution unless:
(i) at the time of the first trade, theTrust is a reporting issuer in Québec and is notin default of any of the requirements of securities legislationin Québec;
(ii) no unusual effort is made to preparethe market or to create a demand for the Plan Units;
(iii) no extraordinary commission or considerationis paid to a person or company in respect of the trade;and
(iv) if the seller of the Plan Units isan insider of the Trust, the seller has reasonable groundsto believe that the issuer is not in default of any of requirementof the Legislation of Québec.
August 7, 2003.
"Chris Besko"