Mutual Reliance Review System for ExemptiveRelief Applications -- application for relief from the insiderreporting requirement in connection with certain dispositionsof securities made to satisfy a withholding tax obligation arisingfrom the distribution of common shares under various automaticsecurities purchase plans -- relief granted subject to certainconditions including a condition that the plan participant irrevocablyelect not less than 30 days prior to the distribution date asto how the withholding tax obligation will be satisfied.
Securities Act, R.S.O. 1990, c. S.5, as am.,ss. 1(1), 107, 108, 121(2)(a)(ii).
Regulation made under the Securities Act, R.R.O.1990, Reg. 1015, as am., Part VIII.
National Instrument 55-101 - Exemption FromCertain Insider Reporting Requirements.
IN THE MATTER OF
THE SECURITIES LEGISLATIONOF
ALBERTA, BRITISH COLUMBIA,MANITOBA
NEWFOUNDLAND AND LABRADOR,NOVA SCOTIA,
ONTARIO, QUEBEC, AND SASKATCHEWAN
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEWSYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
IN THE MATTER OF
CANADIAN IMPERIAL BANK OFCOMMERCE
MRRS DECISION DOCUMENT
WHEREAS the local securities regulatoryauthority or regulator (the "Decision Maker") in eachof Alberta, British Columbia, Manitoba, Newfoundland and Labrador,Nova Scotia, Ontario, Québec and Saskatchewan (collectively,the "Jurisdictions") has received an application fromCanadian Imperial Bank of Commerce ("CIBC") for adecision pursuant to the securities legislation of the Jurisdictions(the "Legislation") that the requirement containedin the Legislation to file insider reports shall not apply toinsiders of CIBC in respect of certain dispositions of securitiesmade to satisfy income tax withholding obligations under certainCIBC equity incentive plans, subject to certain conditions;
AND WHEREAS under the Mutual RelianceReview System for Exemptive Relief Applications (the "System"),the Ontario Securities Commission is the principal regulatorfor this application;
AND WHEREAS CIBC has represented to theDecision Makers that:
1. CIBC is a Schedule 1 Canadian charteredbank governed by the Bank Act (Canada).
2. CIBC is a reporting issuer (or equivalent)in each province and territory of Canada.
3. CIBC is not in default of any requirementsunder the Legislation.
4. The authorized share capital of CIBC consistsof an unlimited number of common shares, without nominal orpar value, provided that the maximum aggregate considerationfor all outstanding common shares at any time does not exceed$15,000,000,000 (the "Common Shares"); an unlimitednumber of Class A preferred shares, without nominal or parvalue, provided that the maximum aggregate consideration forall outstanding Class A preferred shares at any time doesnot exceed $10,000,000,000; and an unlimited number of ClassB preferred shares, without nominal or par value, providedthat the maximum aggregate consideration for all outstandingClass B preferred shares at any time does not exceed $10,000,000,000.
5. The Common Shares are listed and postedfor trading on the Toronto and New York stock exchanges. Asat July 31, 2003, 360,920,799 Common Shares are issued andoutstanding.
6. CIBC has established certain equity incentiveplans which provide equity incentives to participants. Payoutunder the plans is in the form of CIBC Common Shares whichare acquired and held by a trust in accordance with the plansuntil distribution to participants. In the future, CIBC mayestablish similar plans from time to time. These existingand future plans are referred to as the "Plans".
7. Generally, each of the Plans has the followingterms:
(a) Awards are available to certain employeesof CIBC and, for some Plans, certain employees of CIBC affiliates(as defined in the Bank Act). CIBC and its affiliatesare referred to as the "CIBC Group". Employeesof the CIBC Group who receive awards under any of the Plansare referred to as "participants".
(b) Funding for awards is paid by CIBC toa trust set up for each Plan to purchase CIBC Common Sharesin the open market.
(c) An award is denominated into award unitsby dividing the value of a participant's award by the "averagecost" paid by the trust for purchasing Common Sharesat the time the participant's award is made. "Averagecost" is the average weighted price of the Common Sharespurchased in accordance with the Plans.
(d) An award unit represents the right toreceive one Common Share on vesting in accordance with theterms of the applicable Plan. Awards are not transferable.
(e) Awards generally vest according to oneof two vesting schedules: One third per year, starting onthe first anniversary of the end of the fiscal year to whichthe award relates, or 100% on the third anniversary of theend of the fiscal year to which the award relates. CIBC'sfiscal year ends on October 31.
(f) On October 31 of each year in accordancewith the terms of each Plan, the trust automatically distributesto each Plan participant one Common Share for each vestedaward unit (except in certain Plans where the participantelects, at the time the award is made, to defer receiptof Common Shares until the end of the third year.)
(g) The Income Tax Act places a withholdingtax obligation on CIBC at the time Common Shares are distributedfrom the trust (the "Distribution Date") exceptwhere a specific participant would suffer hardship in whichcase the withholding tax obligation is waived.
(h) CIBC estimates the withholding tax inrespect of a distribution of Common Shares to each Participantin advance of the Distribution Date. Participants are requiredto elect how to deal with the resulting tax obligation.A participant may
1) provide the trustee of the trust witha cheque for the estimated tax amount,
2) request that the trustee of the trustsell, on the Distribution Date, a sufficient number ofthe Common Shares being distributed, or
3) advise that the withholding obligationwould result in hardship to the participant and that nowithholding should occur. This election must be made bya prescribed date well in advance of the DistributionDate.
Elections are generally completed at leastsix weeks before the Distribution Date. The Plans providethat if the participant does not make an election by theprescribed date, then before distributing Common Sharesto the participant, the trustee must sell a sufficient numberof Common Shares on the Distribution Date to deal with thewithholding tax obligation.
(i) A participant's election is driven primarilyby personal tax planning and cash flow considerations. Aparticipant would require sufficient funds to provide thetrustee with a cheque for the estimated withholding taxamount. As a result, in prior years, a majority of participantsin the Plans elected to have shares sold. A smaller numberhave elected to deal with the withholding tax amount byproviding a cheque because the sale of shares distributedfrom the trust could result in a further tax liability tothe participant. This further tax liability could ariseif the participant already holds other CIBC shares, as thecost base of all such CIBC shares would be averaged in determiningwhether the participant has realized a gain or loss fortax purposes.
(j) Once the award units vest on October31, the withholding tax estimates are finalized using theOctober 31 share value. For employees who elected to haveshares sold on October 31, the trustee sells that numberof shares that are equal to the number of vested awardsunits multiplied by the appropriate tax rate for the employee.
(k) Occasionally, awards are made underthe Plans to new hires or for retention purposes. The descriptionsin section 7 (a)-(j) apply equally to such awards, exceptthat the vesting date and Distribution Date may be a dayother than October 31.
AND WHEREAS under the System, this MRRSDecision Document evidences the decision of each Decision Maker(collectively, the "Decision");
AND WHEREAS each of the Decision Makersis satisfied that the test contained in the Legislation thatprovides the Decision Maker with the jurisdiction to make theDecision has been met;
THE DECISION of the Decision Makers underthe Legislation is that the requirement contained in the Legislationto file insider reports shall not apply to an insider in respectof a sale of Common Shares if
(a) the sale of Common Shares occurs on orabout the Distribution Date and is made to satisfy a withholdingtax obligation arising from the distribution of Common Sharesfor vested awards under the Plans;
(i) the insider elects how the income taxwithholding obligation is to be satisfied, communicatessuch election to CIBC or the Plan trustee not less than30 days prior to the Distribution Date and such electionis irrevocable as of the 30th day before the DistributionDate; or
(ii) the insider does not elect how theincome tax withholding obligation is to be satisfied and,in accordance with the terms of the Plan, the Plan trusteeis therefore required to sell Common Shares automaticallyon or about the Distribution Date to satisfy a withholdingtax obligation;
(c) the insider files a report, in the formprescribed for insider trading reports under the Legislation,disclosing all sales of Common Shares under the Plans thathave not been previously disclosed by or on behalf of theinsider,
(i) for any Common Shares under the Planswhich have been disposed of or transferred, other than inrespect of withholding taxes on the distribution of vestedawards, within the time required by the Legislation forreporting the disposition or transfer; and
(ii) for any Common Shares disposed of underthe Plans during the calendar year in respect of withholdingtaxes, within 90 days of the end of the calendar year; and
(d) the insider does not beneficially own,directly or indirectly, voting securities of CIBC, or exercisecontrol or direction over voting securities of CIBC or a combinationof both, that carry more than 10% of the voting rights attachedto CIBC's outstanding voting securities.
October 21, 2003.
"R. W. Korthals"