Securities Law & Instruments

Headnote

NP 11-203 -- relief from the requirements of National Instrument 54-101 Communication with Beneficial Owners of Securities of a Reporting Issuer to deliver printed information circulars to certain beneficial owners of reporting issuer -- relief subject to a number of conditions, including that reporting issuer provide an explanatory letter in lieu of the printed circular and give beneficial owners to option request and obtain at no charge a printed information circular.

Applicable Legislative Provisions

National Instrument 54-101 Communication with Beneficial Owners of Securities of a Reporting Issuer, ss. 2.7, 4.2, 4.6, 9.2.

March 18, 2009

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

MANULIFE FINANCIAL CORPORATION

(the "Filer"),

 

DECISION

Background

The principal regulator in the Jurisdiction has received an application from the Filer for a decision under the securities legislation of the Jurisdiction of the principal regulator (the "Legislation") for relief:

1. pursuant to section 9.2 of National Instrument 54-101 -- Communication with Beneficial Owners of Securities of a Reporting Issuer ("NI 54-101") from the provisions of NI 54-101 that require the Filer to send a printed information circular relating to the Filer's annual and special meeting to be held on May 7, 2009 (the "Meeting") to beneficial owners who:

(a) have requested under NI 54-101 that they receive securityholder materials relating only to special meetings,

(b) were deemed in connection with the amendment of NI 54-101 in 2005 to have requested securityholder materials relating only to special meetings and have not provided updated instructions under the amended NI 54-101, or

(c) did not provide instructions as to which documents of the Filer they wished to receive under the predecessor legislation of NI 54-101, National Policy Statement 41 - Shareholder Communication ("NP 41"), and have not provided updated instructions under the amended NI 54-101 (collectively, the "Additional Beneficial Owners"),

and who are resident in Canada;

2. pursuant to section 9.2 of NI 54-101 to allow intermediaries (as such term is defined in NI 54-101) to satisfy their obligations under NI 54-101 to (a) send securityholder materials to the Additional Beneficial Owners that are resident in Canada by sending those Additional Beneficial Owners the materials that the Filer delivers to the intermediaries to be sent to those Additional Beneficial Owners, and (b) tabulate and execute voting instructions received from those Additional Beneficial Owners; and

3. to permit the application for this decision and this decision to be kept confidential until the date that the Filer files the information circular relating to the Meeting

(collectively, the "Exemption Sought").

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 Filers have provided notice that section 4.7(1) of Multilateral Instrument 11-102 -- Passport System ("MI 11-102") is intended to be relied upon in British Columbia, Alberta, Saskatchewan, Manitoba, Quebec, Nova Scotia, New Brunswick, Prince Edward Island, Newfoundland and Labrador and Yukon.

Interpretation

Terms defined in National Instrument 14-101 -- Definitions and MI 11-102 have the same meaning if used in this decision, unless otherwise defined.

Representations

This decision is based on the following facts represented by the Filer:

1. The Filer's head office is located in Toronto, Ontario.

2. The Filer was incorporated under the Insurance Companies Act (Canada) on April 26, 1999. On September 23, 1999, in connection with the demutualization of The Manufacturers Life Insurance Company ("MLI"), the Filer became the sole shareholder of MLI and certain holders of participating life insurance policies of MLI became shareholders of the Filer. On September 24, 1999, the Filer filed a final prospectus in connection with an initial treasury and secondary offering conducted in Canada and the United States. On April 28, 2004, the Filer completed a merger with John Hancock Financial Services, Inc. ("JHFS") and as a result the Filer became the beneficial owner of all of the issued and outstanding shares of JHFS common stock. The Filer is a publicly traded company on the Toronto Stock Exchange, the New York Stock Exchange, the Stock Exchange of Hong Kong Limited and the Philippine Stock Exchange. The Filer is a reporting issuer or the equivalent in each of the provinces and territories of Canada and is not, to its knowledge, in default of its reporting issuer obligations under the securities legislation of any of the provinces or territories of Canada.

3. As a result of its corporate history as a holding company for a demutualized mutual life insurance company, as well as its subsequent merger with JHFS, the Filer has a large shareholder base. As of February 28, 2009 the Filer had a total of 641,000 beneficial shareholders. There are 226,000 Additional Beneficial Owners in aggregate, of which 199,000 are resident in Canada and 27,000 are resident in jurisdictions outside Canada, principally in Hong Kong, the Philippines and the United States.

4. The Meeting is scheduled to be held on May 7, 2009. The Filer expects to print the materials relating to the Meeting beginning on March 18, 2009 and ending on March 27, 2009. The Filer will file the materials relating to the Meeting on or about March 23, 2009. The Filer expects to mail materials relating to the Meeting beginning on March 27, 2009 and ending on April 7, 2009.

5. The Meeting is a special meeting for the purposes of NI 54-101 because holders of the Filer's common shares will be asked to consider a special resolution to confirm an amendment to the Filer's by-laws to create a new class of preferred shares (the "Class 1 Shares"). The new Class 1 Shares will rank on a parity with the Filer's existing Class A Shares and will provide additional flexibility for the Filer to create future series of preferred shares with different rights from those under the existing series of Class A Shares. At the Meeting, holders of the Filer's common shares will also be asked to receive the 2008 audited financial statements, elect directors, appoint auditors and consider shareholder proposals.

6. NI 54-101 requires the Filer to send a printed information circular to the Additional Beneficial Owners in respect of a special meeting, but not for an annual meeting, because the Additional Beneficial Owners either (a) requested under NI 54-101 that they receive securityholder materials relating only to special meetings, (b) were deemed in connection with the amendment of NI 54-101 in 2005 to have requested securityholder materials relating only to special meetings and have not provided updated instructions under the amended NI 54-101, or (c) did not provide instructions as to which documents of the Filer they wished to receive under the predecessor legislation of NI 54-101, NP 41, and have not provided updated instructions under the amended NI 54-101.

7. Of the approximately 199,000 Additional Beneficial Owners resident in Canada approximately 82,000 hold ownership statements, meaning that they received their common shares of the Filer on the demutualization of MLI in 1999.

8. The information circular is expected to be approximately 64 pages in length. The Filer estimates that the cost of printing and mailing 199,000 information circulars to the Additional Beneficial Owners resident in Canada would be $900,000.

9. In lieu of mailing each Additional Beneficial Owner resident in Canada a printed copy of the information circular, the Filer will deliver to Broadridge Investor Communications Corporation ("Broadridge") and CIBC Mellon Trust Company ("CIBC Mellon") for mailing to each Additional Beneficial Owner that is resident in Canada (a) either the form of proxy relating to the Meeting that is being sent to registered shareholders of the Filer or a voting instruction form and (b) a letter from the Chair of the Board of Directors and President and Chief Executive Officer of the Filer providing an overview of the matters to be voted on at the Meeting, advising that the information circular is available in electronic format on www.sedar.com and on the Filer's website at www.manulife.com, and advising that a printed copy of the information circular is available from the Filer's agent, free of charge, to Additional Beneficial Owners making such request. The Filer will pay for delivery of all materials by Broadridge and CIBC Mellon to the intermediaries and to the Additional Beneficial Owners.

10. The Filer will file the letter to Additional Beneficial Owners on www.sedar.com at the same time that the Filer files all other materials relating to the Meeting. The letter will explain that the Filer has received permission from Canadian securities regulatory authorities to provide materials relating to the Meeting to Additional Beneficial Owners in the manner described in the letter. The Filer expects that Additional Beneficial Owners will receive the letter and form of proxy or voting instruction form between April 7, 2009 and April 14, 2009.

11. The Filer has retained DATA Group, a provider of corporate and institutional print and print management solutions located in Mississauga, Ontario, to respond to requests for information circulars. The letter from the Filer will direct Additional Beneficial Owners that are resident in Canada to contact DATA Group at a specified toll free telephone or fax number or email address to request a printed information circular. Pursuant to its arrangement with the Filer, DATA Group's service standard is to send a printed information circular within two business days of receipt of a request. Information Circulars will be mailed by postage-paid first class mail or by courier delivery at the option of the Additional Beneficial Owner. DATA Group will act as the Filer's agent for such purposes and the Filer will pay all of the expenses involved in delivering information circulars to Additional Beneficial Owners resident in Canada.

12. DATA Group will not retain any records of the identity, including contact information, of Additional Beneficial Owners that contact DATA Group. The Filer will not receive any information about the Additional Beneficial Owners that contact DATA Group, other than the aggregate number of information circulars requested by Additional Beneficial Owners from DATA Group.

13. The Filer has consulted with Broadridge and its counsel in developing the mailing and voting procedures for Additional Beneficial Owners described in this Application.

14. The Filer will mail printed information circulars at the Filer's expense to Additional Beneficial Owners not resident in Canada. This mailing is being made because it is uncertain whether there would be sufficient time for those Additional Beneficial Owners to receive the initial mailing, request a printed information circular if they so desire, and receive the printed information circular a reasonable period of time in advance of the Meeting.

15. The Filer estimates it will save $500,000 as a result of not having to mail approximately 199,000 information circulars to the Additional Beneficial Owners resident in Canada.

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 Exemption Sought is granted provided that the Filer delivers by April 3, 2009 to Broadridge and CIBC Mellon for mailing to each Additional Beneficial Owner that is resident in Canada (a) either the form of proxy relating to the Meeting that is being sent to registered shareholders of the Filer or a voting instruction form and (b) a letter from the Chair of the Board of Directors and President and Chief Executive Officer of the Filer providing an overview of the matters to be voted on at the Meeting, advising that the information circular is available in electronic format on www.sedar.com and on the Filer's website at www.manulife.com, and advising that a printed copy of the information circular is available from the Filer's agent, free of charge, to Additional Beneficial Owners making such request.

"Michael Brown"
Assistant Manager, Corporate Finance, Team 2