Exemption Orders (Discretionary)
TD SECURITIES INC.
2001 BCSECCOM 565
Headnote
Mutual Reliance Review System for Exemptive Relief Applications - Issuer is a connected issuer, but not a related issuer, in respect of registrants that are underwriters in proposed distribution of units by the issuer - Underwriters exempt from the independent underwriter requirement in the legislation provided that issuer not in financial difficulty.
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 THE PROVINCES OF ALBERTA, BRITISH COLUMBIA, NEWFOUNDLAND, QUÉBEC AND ONTARIO
AND
IN THE MATTER OF THE MUTUAL RELIANCE REVIEW SYSTEM FOR EXEMPTIVE RELIEF APPLICATIONS
AND
IN THE MATTER OF TD SECURITIES INC. AND COM DEV INTERNATIONAL LTD.
MRRS DECISION DOCUMENT
WHEREAS the securities regulatory authority or regulator (the “Decision Maker”) in each of Alberta, British Columbia, Newfoundland, Québec and Ontario (the “Jurisdictions”) has received an application from TD Securities Inc. (the “Filer”) 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 a 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 Filer in respect of a proposed distribution (the “Offering”) of common shares (the “Offered Securities”) of COM DEV International 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 Filer has 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 business of the Issuer is the design, manufacture and distribution of space and ground-based wireless communications products and subsystems.
3. The common shares of the Issuer are listed on The Toronto Stock Exchange.
4. The head office of the Filer is in Toronto, Ontario.
5. The Issuer filed a preliminary short form prospectus dated April 12, 2001 (the “Preliminary Prospectus”) in each province of Canada.
6. The Filer along with National Bank Financial Corp., Sprott Securities Inc., Yorkton Securities Inc. and Harris Partners Limited are proposing to act as underwriters in connection with the Offering.
7. The Issuer has a $35,000,000 operating facility (the “Operating Facility”) with a Canadian chartered bank (the “Lender”) which is an affiliate of the Filer. As at April 11, 2001, approximately $16.8 million was outstanding pursuant to the Operating Facility.
8. The nature of the relationship between the Issuer and the Filer has been described in the Preliminary Prospectus and will be described in the Prospectus.
9. The Lender did not and will not participate in the decision to make the Offering or in the determination of its terms.
10. The Filer will not benefit in any manner from the Offering other than the payment of its underwriting fees in connection with the Offering.
11. By virtue of the Operating Facility, the Issuer may, in connection with the Offering, be considered a connected issuer (or the equivalent) of the Filer.
12. The Issuer is not a related issuer (or the equivalent) of the Filer or of any of the other members of the underwriting syndicate.
13. The nature and details of the relationship between the Issuer and the Filer 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 Filer in connection with the Offering provided the Issuer is not a related issuer, as defined in the Proposed Instrument, to the Filer 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 April 23rd , 2001.
Paul M. Moore R. Stephen Paddon