R Split III Corp. - MRRS Decision
Headnote
Mutual Reliance Review System for Exemptive Relief Applications -- Split-share corporation granted relief from delivering annual financial statements and from preparing annual management report of fund performance for first fiscal year end -- Financial statements and management report of fund performance would only cover a short operating period and would be of minimal benefit to securityholders -- First interim MRFP must be delivered to all securityholders and must include financial highlights- first financial statements required to be filed with security regulatory authorities or regulators.
Applicable Legislative Provisions
National Instrument 81-106 Investment Fund Continuous Disclosure, ss. 4.2, 5.1.
May 22, 2007
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
ONTARIO, BRITISH COLUMBIA, ALBERTA,
SASKATCHEWAN, MANITOBA, QUEBEC,
NEW BRUNSWICK, NOVA SCOTIA, NEWFOUNDLAND
AND LABRADOR, NORTHWEST TERRITORIES,
YUKON AND NUNAVUT
(THE "JURISDICTIONS")
AND
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEW SYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
AND
IN THE MATTER OF R SPLIT III CORP.
(THE "FILER")
MRRS DECISION DOCUMENT
Background
The local securities regulatory authority or regulator (the "Decision Maker") in each of the Jurisdictions has received an application from R Split III Corp. (the "Filer") for a decision under the securities legislation (the "Legislation") of the Jurisdictions for:
• an exemption from the requirement contained in section 5.1(2)(a) of National Instrument 81-106 -- Investment Fund Continuous Disclosure ("NI 81-106") to deliver to its shareholders annual financial statements for the period from incorporation to May 31, 2007; and
• an exemption from the requirement contained in section 4.2 of NI 81-106 to file a management report of fund performance ("MRFP") for the period from incorporation to May 31, 2007, as would otherwise be required pursuant to applicable Legislation (the "Requested Relief").
Under the Mutual Reliance Review System for Exemptive Relief Applications
(a) the Ontario Securities Commission is the principal regulator for this application, and
(b) this MRRS decision document evidences the decision of each Decision Maker.
Interpretation
Defined terms contained in National Instrument 14-101 Definitions have the same meaning in this decision unless they are defined in this decision. In this decision:
"Capital Shares" means the 4,546,000 class A capital shares of the Filer distributed pursuant to the Prospectus;
"Initial Financial Statements" means the financial statements of the Filer for the period from incorporation to May 31, 2007;
"Royal Bank Shares" means the portfolio of common shares of Royal Bank of Canada held by the Filer;
"Preferred Shares" means the 2,273,000 class A preferred shares of the Filer distributed pursuant to the Prospectus; and
"Prospectus" means the final prospectus of the Filer dated March 28, 2007.
Representations
This decision is based on the following facts represented by the Filer:
1. The Filer was incorporated under the laws of the Province of Ontario on January 30, 2007. The fiscal year end of the Filer is May 31. The Filer filed the Prospectus with the securities regulatory authority in each of the provinces and territories of Canada which was receipted on March 28, 2007 and pursuant to which the distribution of Capital Shares and Preferred Shares was completed on April 5, 2007 (the "Closing Date"). The Filer carried on no relevant business activity from its date of incorporation until filing the Prospectus.
2. The Filer is a passive investment company whose principal undertaking is the holding of the Royal Bank Shares in order to generate fixed cumulative preferential distributions for the holders of the Preferred Shares and to enable the holders of Capital Shares to participate in any capital appreciation in the Royal Bank Shares after payment of administrative and operating expenses of the Filer. The Royal Bank Shares held by the Filer will only be disposed of as described under the heading "The Company -- Sale of Royal Bank Shares" commencing on page 10 of the Prospectus and "Details of the Offerings" commencing on page 17 of the Prospectus. The sole purpose of the Filer is to provide a vehicle through which different investment objectives with respect to participation in the Royal Bank Shares may be satisfied.
3. Pursuant to the requirements of the Legislation, and subject to any relief obtained pursuant to this application, the Filer would be required to (i) prepare and file in the Jurisdictions and deliver to its shareholders the Initial Financial Statements and (ii) prepare and file in the Jurisdictions and deliver to its shareholders an MRFP for the same period.
4. The Filer will audit its financial statements for the period ended May 31, 2007.
5. The benefit to be derived by the shareholders of the Filer from receiving the Initial Financial Statements would be minimal in view of (i) the short period from the date of the Prospectus, March 28, 2007, to the fiscal year end, May 31, 2007; and (ii) the nature of the minimal business carried on by the Filer.
6. The expense to the Filer of sending to its shareholders the Initial Financial Statements would not be justified in view of the benefit to be derived by the shareholders from receiving such statements.
7. The limited activities of the Filer for the period from January 30, 2007 to May 31, 2007 do not provide meaningful information for the purposes of the preparation of an MRFP.
8. For example, in respect of certain MRFP requirements, Form 81-106F1 requires a discussion of how changes to the investment fund over the financial year affected the overall level of risk associated with an investment in the investment fund, a summary of the results of operations of the investment fund for the financial year in which the management discussion of fund performance pertains, a discussion of the recent developments affecting the investment fund, a discussion of any transactions involving related parties to the investment fund, disclosure of selected financial highlights for the investment fund and a summary of the investment fund's portfolio as at the end of the financial year of the investment fund to which the MRFP pertains. Given the minimal business carried on by the Filer and the fact that the Filer filed its Prospectus close to the time of its fiscal year end, no disclosure on these and other items required to be disclosed by Form 81-106F1 could be meaningfully provided in the MRFP.
Decision
Each of the Decision Makers is satisfied that the test contained in the Legislation that provides the Decision Maker with the jurisdiction to make the Decision has been met.
The decision of the Decision Makers under the Legislation is that the Requested Relief is granted provided that:
(i) the Initial Financial Statements are filed and posted for viewing on SEDAR and www.scotiamanagedcompanies.com;
(ii) the Filer send a copy of such Initial Financial Statements to any shareholder of the Filer who so requests;
(iii) the Filer will prepare an MRFP for the period ended November 30, 2007 in accordance with Form 81-106F1, except that it will also include financial highlights as required by Part B, Item 3 of Form 81-106F1; and
(iv) the Filer will deliver the MRFP referred to in (iii) to each of its securityholders, as if section 18.5 of NI 81-106 applied.