Exemption Orders (Discretionary)
TD SECURITIES INC.
2001 BCSECCOM 712
Headnote
Mutual Reliance Review System for Exemptive Relief Applications – Issuer is a “connected issuer,” but not a “related issuer,” of the registrants that are to act as underwriters in a proposed distribution of securities of the Issuer – Issuer is not a “specified party” as defined in proposed Multi-Jurisdictional Instrument 33-105 Underwriting Conflicts – Registrant underwriters exempted from independent underwriter requirements provided that, at the time of the distribution, the issuer is not a “specified party” as defined in the proposed Instrument, and, in the case of each registrant, is not a “related issuer.”
Applicable British Columbia Provisions
Securities Act,R.S.B.C. 1996, c. 418, s. 48
Securities Rules, B.C. Reg. 194/97, s. 78(2)(b)
IN THE MATTER OF THE SECURITIES LEGISLATION OF ONTARIO, BRITISH COLUMBIA AND QUÉBEC
AND
IN THE MATTER OF THE MUTUAL RELIANCE REVIEW SYSTEM FOR EXEMPTIVE RELIEF APPLICATIONS
AND
IN THE MATTER OF TD SECURITIES INC. AND CIBC WORLD MARKETS INC.,
AND
TOROMONT INDUSTRIES LTD.
MRRS DECISION DOCUMENT
WHEREAS the securities regulatory authority or regulator (the “Decision Maker”) in each of Ontario, British Columbia and Québec (the “Jurisdictions”) has received a application from TD Securities Inc. (“TDSI”) and CIBC World Markets Inc. (“CIBCWM”) (collectively, the “Filers”) for a decision, pursuant to the securities legislation of the Jurisdictions (the “Legislation”), that the requirement (the “Independent Underwriter Requirement”) contained in the Legislation which restricts a registrant from acting as an underwriter in connection with a distribution of securities of an issuer made by means of prospectus, where the issuer is a connected issuer (or the equivalent) of the registrant unless a portion of the distribution at least equal to that portion underwritten by non-independent underwriters is underwritten by an independent underwriter, shall not apply to the Filers in respect of a proposed distribution (the “Offering”) of common shares (the “Offered Securities”) of Toromont Industries Ltd. (the “Issuer”), pursuant to a short form prospectus (the “Prospectus”);
AND WHEREAS pursuant to the Mutual Reliance Review System for Exemptive Relief Applications (the “System”), the Ontario Securities Commission is the principal regulator for this application;
AND WHEREAS the Filers have represented to the Decision Makers that:
1. The Issuer is a reporting issuer under the Legislation of each Jurisdiction and is not in default of any requirements of the Legislation.
2. The Issuer currently has operations in Canada and the United States in the sale and servicing of construction equipment, power generation, refrigeration and process systems.
3. The common shares of the Issuer are listed on The Toronto Stock Exchange.
4. The head office of the lead underwriter for the Offering is in Toronto, Ontario.
5. The Issuer filed a preliminary short form prospectus dated May 25, 2001 (the “Preliminary Prospectus”) in the Jurisdictions.
6. The Filers, along with Raymond James Ltd. and Canaccord Capital Corporation are proposing to act as underwriters in connection with the Offering.
7. The Toronto-Dominion Bank and Canadian Imperial Bank of Commerce (collectively, the “Banks”) have extended to the Issuer, under unsecured credit facilities, funds in the aggregate amount of approximately $100 million (the “Loans”). The Issuer is in compliance with the terms of these credit facilities.
8. The nature of the relationship among the Issuer and the Filers has been described in the Preliminary Prospectus and will be described in the Prospectus.
9. The Banks did not and will not participate in the decision to make the Offering or in the determination of its terms.
10. The Filers will not benefit in any manner from the Offering other than the payment of their underwriting fees in connection with the Offering.
11. By virtue of the Loans, the Issuer may, in connection with the Offering, be considered a connected issuer (or the equivalent) of each of TDSI and CIBCWM.
12. The Issuer is not a related issuer (or the equivalent) of the Filers or of any of the other members of the underwriting syndicate.
13. The nature and details of the relationship between the Issuer and the Filers will be described in the Prospectus. The Prospectus will contain the information specified in Appendix “C” of draft Multi-Jurisdictional Instrument 33-105 Underwriting Conflicts (the “Proposed Instrument”).
14. The Issuer is not a “specified party” as defined in the Proposed Instrument.
AND WHEREAS pursuant to the System this MRRS Decision Document evidences the decision of each Decision Maker (the “Decision”);
AND WHEREAS 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 Independent Underwriter Requirement shall not apply to the Filers in connection with the Offering provided the Issuer is not a related issuer, as defined in the Proposed Instrument, to the Filers at the time of the Offering and is not a specified party, as defined in the Proposed Instrument, at the time of the Offering.
DATED June 1st ,2001.
Paul M. Moore R. Stephen Paddon