Bank of Nova Scotia, the Shareholder Dividend and Share Purchase Plan of the Bank, and Computershare Trust Company of Canada
Headnote
Process for Exemptive Relief Applications in Multiple Jurisdictions -- Plan agents under reinvestment plans of various issuers exempted, subject to conditions, from the dealer registration requirement for trades made by the plan agent with a plan participant when the plan agent accepts an unsolicited direction from the participant to sell, on behalf of the participant, securities of the issuer, that are held under the plan for the participant, through an appropriately registered dealer -- Each plan provides for the purchase of additional securities of the issuer by plan participants, using dividends or distributions out of earnings, surplus, capital or other sources that are payable in respect of the securities of the issuer that are held by participant in the plan, and, depending upon the plan, may also provide for the purchase by the participant of additional securities of the issuer, using optional cash payments -- Each plan agent is either a trust company or an affiliate of a trust company.
Applicable Ontario Statutory Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., ss. 25(1)(a), 53, 74(1).
Multilateral Instruments Cited
National Instrument 14-101 Definitions.
National Instrument 45-106 Prospectus and Registration Exemptions, s. 2.2.
December 16, 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
THE BANK OF NOVA SCOTIA (THE BANK)
THE SHAREHOLDER DIVIDEND AND SHARE
PURCHASE PLAN OF THE BANK (THE PLAN),
AND COMPUTERSHARE TRUST COMPANY
OF CANADA (THE PLAN AGENT)
DECISION
Background
The principal regulator in the Jurisdiction has received an application from the Bank, under the securities legislation of the Jurisdiction of the principal regulator (the Legislation), for a decision that, where, in connection with the termination of the participation of a Plan participant (Plan Participant) in the Plan, the Plan Agent accepts a direction (a Sale Order) from the Plan Participant to sell common shares of the Bank (Common Shares) that are held by the Plan Agent for the Plan Participant under the Plan, through an appropriately registered dealer, the dealer registration requirement shall not apply to the trade that is made by the Plan Agent with the Plan Participant when the Plan Agent accepts the Sale Order (the Requested Relief).
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 Bank 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 each of the provinces and territories of Canada.
Interpretation
Defined terms contained in National Instrument 14-101 Definitions have the same meaning in the decisions unless they are defined in this decision or the context otherwise requires.
Representations
The decision is based on the following facts represented by the Bank:
The Bank
1. The Bank is a bank named in Schedule I of the Bank Act (Canada). The Bank is not an investment fund. The executive offices of the Bank are located in Ontario.
2. The authorized share capital of the Bank consists of an unlimited number of Common Shares and an unlimited number of preferred shares, issuable in series (Preferred Shares).
3. The Common Shares are listed on the Toronto Stock Exchange and the New York Stock Exchange.
4. The Bank is a reporting issuer (or the equivalent) in each province and territory of Canada that provides for a reporting issuer regime and is not, to its knowledge, in default of any requirement of the securities legislation of such jurisdictions.
The Plan Agent
5. The Plan Agent is a trust company organized under the laws of Canada and authorized to carry on business as a trust company in each province and territory of Canada.
The Plan
6. The Plan includes the following features:
(i) holders of Common Shares (other than U.S. residents) may elect to have dividends paid thereon automatically reinvested in Common Shares;
(ii) holders of Preferred Shares (other than U.S. residents) may elect to have dividends paid thereon automatically reinvested in Common Shares;
(iii) holders (each, a Shareholder) of either Common Shares or Preferred Share who are also holders of subordinated debentures of the Bank (Debentures) (other than U.S. residents) may elect to have interest on Debentures reinvested in Common Shares; and
(iv) Shareholders (other than U.S. residents) may make optional cash payments (Optional Cash Payment) of up to $20,000 per annum for the purchase of additional Common Shares of the Bank under the Plan, without paying brokerage commissions or other expenses, subject to a minimum payment of $100.
7. The Plan Agent was appointed to act as the administrator for the Plan by the Bank and, where the Plan Agent carries on trading activities in respect of the acquisition or disposition of securities for a Plan Participant under the Plan, the Plan Agent is stated in the Plan to be acting as agent for the Plan Participant. The Plan Agent does not provide investment advice to any Plan Participant concerning decisions by the Plan Participant to purchase, sell or hold securities under the Plan.
8. Under the Plan, the Bank pays the Plan Agent all cash dividends and interest on the Common Shares, Preferred Shares or Debentures held by Plan Participants through the Plan which are to be reinvested, and the Plan Agent uses those funds, together with any Optional Cash Payments, to purchase additional Common Shares for the Plan Participants. At the election of the Bank, the Common Shares are either purchased from the Bank from treasury or purchased in the secondary market. All Common Shares acquired under the Plan are registered in the name of the Plan Agent or its nominee.
9. Agent. Non-registered holders must arrange to have their Shares transferred into their name or into a specific segregated registered account in order to become Plan Participants. Once an authorization form has been lodged with the Plan Agent, participation in the Plan is automatic, until terminated.
10. The Plan Agent maintains an account for each Plan Participant. Statements of account are mailed to each Plan Participant as promptly as practicable after each Common Share dividend payment date. Common Shares issued or purchased under the Plan for each Plan Participant are credited in an account established for that Plan Participant and shown on that Plan Participant's statement of account. On request, the Plan Agent will issue share certificates registered in a Plan Participant's name for any number of whole Common Shares held for such Plan Participant's account under the Plan. Common Shares held by the Plan Agent under the Plan may not be pledged, sold or otherwise disposed by a Plan Participant. Instead, a Plan Participant that wishes to do so, must request that certificates for such shares be issued to it. Certificates are not issued for fractional shares.
11. Participation in the Plan may be terminated at any time by the Plan Participant giving written notice to the Plan Agent. When participation is terminated, the terminating Plan Participant will receive a certificate for the number of whole Common Shares held for such Participant's account and a cash payment will be made for any fraction of a Common Share credited to the account. The Plan provides that a terminating Plan Participant may direct the Plan Agent to sell all of the whole and fractional Common Shares credited to such Plan Participant's account under the Plan. In such event, the Plan Agent will sell such Common Shares through a registered dealer designated by the Plan Agent, as soon as reasonably practicable following receipt by the Agent of notice of termination. The proceeds of sale, less any applicable commissions and taxes, will be paid to the terminating Plan Participant by the Plan Agent, together with a cash payment for any fractional Common Share. For the purpose of providing cash payments in respect of fractional Common Shares, the Plan Agent will purchase from the Plan Participant for cash any such fraction based on the last price paid by the Plan Agent for new Common Shares purchased out of Optional Cash Payments.
12. There is currently no registration exemption that is available to the Plan Agent for trades made by the Plan Agent with a terminating Plan Participant when the Plan Agent accepts a Sale Order from the Plan Participant.
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 Requested Relief is granted, provided that:
(A) the Plan Agent is, at the relevant time, appropriately licensed or otherwise permitted to carry on the business of a trust company in the Jurisdiction; and
(B) the Sale Order is not solicited, but for this purpose a Sale Order shall not be considered "solicited" by reason of the Bank, or the Plan Agent on behalf of the Bank, distributing from time to time to Plan Participants disclosure documents, notices, brochures, statements of account, or similar documents advising of the ability under the Plan of the Plan Agent to facilitate sales of Common Shares or by reason of the Bank and/or the Plan Agent advising Plan Participants of that ability, and informing Plan Participants of the details of the operation of the Plan in response to enquiries from time to time from Plan Participants by telephone or otherwise.
(C) the Requested Relief shall terminate on December 31, 2014.