Sunrise Senior Living Real Estate Investment Trust et al. - s. 74
Headnote
Order that section 53 of the Act does not apply to solicitations of expressions of interest before the filing of a preliminary short form prospectus in accordance with National Instrument 44-101 Short Form Prospectus Distributions for securities to be issued pursuant to an over-allotment option, exercisable after the closing of the offering, granted by the issuer to the underwriters to purchase up to 15% of the securities offered under the offering.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., ss. 74, 53.
National Instrument 44-101 Short Form Prospectus Distributions.
IN THE MATTER OF
THE SECURITIES ACT,
R.S.O. 1990, CHAPTER S.5, AS AMENDED
AND
IN THE MATTER OF
SUNRISE SENIOR LIVING REAL ESTATE INVESTMENT TRUST
AND
TD SECURITIES INC., SCOTIA CAPITAL INC.,
RBC CAPITAL MARKETS, BMO CAPITAL MARKETS,
CIBC WORLD MARKETS INC.,
NATIONAL BANK FINANCIAL INC.
AND CANACCORD CAPITAL CORPORATION
ORDER
(Section 74)
Background
The Ontario Securities Commission (the Commission) has received an application (the Application) from Sunrise Senior Living Real Estate Investment Trust (the Issuer) and TD Securities Inc., Scotia Capital Inc., RBC Capital Markets, BMO Capital Markets, CIBC World Markets Inc., National Bank Financial Inc. and Canaccord Capital Corporation (the Underwriters) for an order pursuant to section 74 of the Securities Act (Ontario) (the Act) that section 53 of the Act does not apply to solicitations of expressions of interest before the filing of a preliminary short form prospectus in accordance with National Instrument 44-101 Short Form Prospectus Distributions (NI 44-101) for securities to be issued pursuant to an over-allotment option, as defined below (the Requested Relief).
Interpretation
In this order,
"over-allotment option" means a right granted to the underwriters by an issuer or a selling security holder of the issuer in connection with the distribution of securities under a short form prospectus to acquire, for the purposes of covering the underwriters' over-allocation position, a security of an issuer that has the same designation and attributes as a security that is distributed under such short form prospectus, and that
(i) expires not later than the 60th day after the date of the closing of the distribution, and
(ii) is limited to the lesser of
A the over-allocation position determined as at the closing of the distribution, and
B 15% of the number or principal amount of the securities qualified for the distribution, without taking into account the securities issuable on the exercise of the over-allotment option; and
"over-allocation position" means the amount by which the aggregate number or principal amount of securities that are the subject of offers to purchase received by all underwriters of a distribution exceeds the aggregate number or principal amount of securities distributed by an issuer or selling securityholder under the prospectus, without taking into account the securities issuable on the exercise of an over-allotment option.
Representations
This order is based on the following facts represented by the Issuer and the Underwriters:
1. the purpose of an over-allotment option is to allow underwriters to conduct market stabilization activities in circumstances where the risk in so doing is protected by the existence of an over-allotment option;
2. over-allotment options are not designed to allow underwriters to sell additional securities after a prospectus has been filed or an underwriting agreement has been signed; and
3. underwriters would not accept the market risk in conducting market stabilization activities without having an over-allotment option.
Order
The Commission is satisfied that the test contained in the Act that provides the Commission with the jurisdiction to make the order has been met;
The decision of the Commission pursuant to section 74 of the Act is that the Requested Relief is granted provided that:
(a) the Issuer has entered into an enforceable agreement with the Underwriters, who have agreed to purchase the securities offered under a short form prospectus, other than the securities issuable on the exercise of an over-allotment option,
(b) the agreement referred to in paragraph (a) has fixed the terms of the distribution and requires that the Issuer file a preliminary short form prospectus for the securities and obtain from the regulator a receipt, dated as of a date that is not more than four business days after the date that the agreement is entered into, for the preliminary short form prospectus,
(c) the Issuer has issued and filed a news release announcing the agreement immediately upon entering into the agreement,
(d) upon issuance of a receipt for the preliminary short form prospectus, a copy of the preliminary short form prospectus is sent to each person or company who has expressed an interest in acquiring the securities,
(e) except as provided in paragraph (a), no agreement of purchase and sale for the securities is entered into until the short form prospectus has been filed and a receipt obtained, and
(f) the relief granted will cease to be effective on the date when NI 44-101 is amended to permit solicitations of expressions of interest before the filing of a preliminary short form prospectus for securities to be issued pursuant to over-allotment options.
The further decision of the Commission under the Act is that the Application and this decision shall be held in confidence by the Commission until the occurrence of the earliest of the following:
(a) the date on which a news release is issued by the Issuer announcing that the Issuer has entered into an enforceable agreement with the Underwriters with respect to the purchase of securities to be offered under a short form prospectus, and
(b) the date that is thirty days from the date of this decision.
Dated July 17, 2006