Register today for OSC Dialogue 2024: Inviting, thriving and secure capital markets
Great-West Lifeco Inc. et al. - MRRS Decision
Headnote
Mutual Reliance Review System for Exemptive Relief Applications -- Exemption from the requirements to file annual certificates and interim certificates under Multilateral Instrument 52-109 Certification of Disclosure in Issuers' Annual and Interim Filings granted to a capital trust sponsored by an insurance company, subject to specified conditions, where the trust had previously been exempted from the requirements to file financial statements, MD&A and AIFs.
Applicable Instruments
Multilateral Instrument 52-109 Certification of Disclosure in Issuers' Annual and Interim Filings.
National Instrument 51-102 Continuous Disclosure Obligations.
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
ALBERTA, SASKATCHEWAN, MANITOBA, ONTARIO,
NEWFOUNDLAND AND LABRADOR, NOVA SCOTIA,
THE NORTHWEST TERRITORIES AND NUNAVUT
AND
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEW SYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
AND
IN THE MATTER OF
GREAT-WEST LIFECO INC.
AND
IN THE MATTER OF
THE GREAT-WEST LIFE ASSURANCE COMPANY
AND
IN THE MATTER OF
GREAT-WEST LIFE CAPITAL TRUST
MRRS DECISION DOCUMENT
WHEREAS the local securities regulatory authority or regulator (the "Decision Maker", and collectively the "Decision Makers") in each of Alberta, Saskatchewan, Manitoba, Ontario, Newfoundland and Labrador, Nova Scotia, the Northwest Territories and Nunavut (collectively, the "Jurisdictions") has received an application on behalf of Great-West Lifeco Inc. ("Lifeco"), The Great-West Life Assurance Company ("GWL") and Great-West Life Capital Trust (the "Trust") for a decision, pursuant to the securities legislation of the Jurisdictions (the "Legislation"), that the requirements contained in the Legislation to:
(a) file annual certificates ("Annual Certificates") with the Decision Makers under section 2.1 of Multilateral Instrument 52-109 Certification of Disclosure in Issuer's Annual and Interim Filings ("MI 52-109"); and
(b) file interim certificates ("Interim Certificates" and together with the Annual Certificates, the "Certification Filings") with the Decision Makers under section 3.1 of MI 52-109 ;
shall not apply to the Trust, subject to certain terms and conditions;
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, unless otherwise defined, the terms herein have the meaning set out in National Instrument 14-101 Definitions;
AND WHEREAS pursuant to a Mutual Reliance Review System ("MRRS") decision document dated March 19, 2003 (the "Previous Decision"), the Trust is exempted, on certain terms and conditions, from the requirements of the securities legislation in the jurisdictions of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, Nova Scotia and Newfoundland and Labrador (the local securities regulatory authorities or regulators in such jurisdictions, collectively, the "Previous Decision Makers") concerning the preparation, filing and delivery of (i) interim and annual financial statements with the Previous Decision Makers; (ii) an annual filing with the Previous Decision Makers in lieu of filing an information circular, where applicable; (iii) an annual report and an information circular with the Decision Maker in Quebec and delivery of such report or information circular to the security holders of the Trust resident in Quebec; and (iv) an annual information form ("AIF") and management's discussion and analysis ("MD&A") with the Decision Makers in Ontario, Quebec and Saskatchewan;
AND WHEREAS the Trust will file a notice with the applicable securities regulatory authorities or regulators under section 13.2(2) of National Instrument 51-102 - Continuous Disclosure Obligations stating that it intends to rely on the Previous Decision to the same extent and on the same conditions as contained in the Previous Decision;
AND WHEREAS Lifeco, GWL and the Trust have represented to the Decision Makers that:
Trust
1. The Trust is an open-end trust established under the laws of the Province of Ontario by The Canada Trust Company, as trustee, pursuant to an amended and restated declaration of trust dated as of November 29, 2002 (the "Declaration of Trust").
2. The beneficial interests of the Trust are divided into two classes of units, issuable in series of which one series of each class is currently outstanding and designated as Special Trust Securities -- Series A (the "Special Trust Securities") and Great-West Life Trust Securities -- Series A (the "GREATs Series A"). The Special Trust Securities and the GREATs Series A are collectively referred to herein as the "Trust Securities". The Special Trust Securities are held in their entirety by GWL.
3. The Trust was established solely for the purpose of effecting the offering of GREATs Series A and possible future offerings of securities in order to provide GWL with a cost effective means of raising capital for Canadian financial institution regulatory purposes. The Trust does not and will not carry on any operating activity other than in connection with such offerings.
4. The Trust is a reporting issuer, or the equivalent, in each of the provinces and territories of Canada that provides for a reporting issuer regime and is not, to its knowledge, in default of any applicable requirements under the securities legislation thereunder.
Lifeco
5. Lifeco was incorporated under the Canada Business Corporations Act on November 8, 1979. Lifeco is a reporting issuer, or the equivalent, in each of the provinces and territories of Canada that provides for a reporting issuer regime and is not, to its knowledge, in default of any applicable requirements under the securities legislation thereunder.
GWL
6. GWL is a Canadian insurance company subject to the Insurance Companies Act (Canada). GWL is a reporting issuer, or the equivalent, in each of the provinces and territories of Canada that provides for a reporting issuer regime and is not, to its knowledge, in default of any applicable requirements under the securities legislation thereunder.
GREATs
7. The Trust filed a prospectus dated December 17, 2002 (the "Prospectus") with each of the provinces and territories of Canada for the issuance of $350,000,000 aggregate principal amount of GREATs Series A and received receipts for the Prospectus from each of the provinces and territories of Canada.. The Prospectus also qualifies certain other related securities for distribution in the Jurisdictions, including the Conversion Right which will allow the Trust to satisfy the Holder Exchange Right and the Automatic Exchange (each as defined in the Prospectus).
8. The Trust has also issued 2,000 Special Trust Securities to GWL in connection with the offering of GREATs Series A.
9. The business objective of the Trust is to acquire and hold a 50 year senior debenture, issued by GWL, which generates income for distribution to holders of the Trust Securities.
10. Except to the extent that distributions are payable to GREATs Series A holders and, other than in the event of termination of the Trust (as set forth in the Declaration of Trust), GREATs Series A holders have no claim or entitlement to the income of the Trust or the assets held by the Trust.
11. Because of the terms of the Trust, the return to a GREATs Series A holder depends upon the financial condition of Lifeco and GWL and not that of the Trust.
12. The Certification Filings are intended to improve the quality and reliability of (i) an issuer's interim financial statements and interim MD&A (collectively, the "Interim Filings"); and (ii) an issuer's AIF, annual financial statements and annual MD&A (collectively, the "Annual Filings").
13. The Previous Decision exempts the Trust from filing its own Interim Filings and Annual Filings, provided that Lifeco and GWL make their Interim Filings and Annual Filings on the Trust's SEDAR profile, and therefore, it would not be meaningful or relevant for the Trust to have to make its own Certification Filings.
14. Investors in GREATs are ultimately concerned about the affairs and financial performance of Lifeco and GWL, as opposed to that of the Trust itself, and therefore, it is appropriate that Lifeco's and GWL's Certification Filings be available to them on the same basis as the Interim and Annual Filings of Lifeco and GWL.
AND WHEREAS pursuant to the System, this MRRS Decision Document evidences the decision of each of the Decision Makers (collectively, 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 requirement contained in the Legislation:
(a) to file Annual Certificates with the Decision Makers under section 2.1 of MI 52-109; and
(b) to file Interim Certificates with the Decision Makers under section 3.1 of MI 52-109;
shall not apply to the Trust for so long as:
(i) the Trust does not file its own Interim Filings and Annual Filings and Lifeco and GWL file their Interim Filings and Annual Filings on the Trust's SEDAR profile in accordance with the Previous Decision;
(ii) Lifeco and GWL remain reporting issuers, or the equivalent, under the Legislation;
(iii) Lifeco and GWL file with the Decision Makers, in electronic format under the Trust's SEDAR profile, the documents listed in clauses (a) and (b) above of this Decision, at the same time as they are required under the Legislation to be filed by Lifeco and GWL;
(iv) the Trust pays all applicable filing fees that would otherwise be payable by the Trust in connection with the filing of the documents referred to in clauses (a) and (b) above of this Decision;
(v) all outstanding securities of the Trust are either GREATs or Special Trust Securities;
(vi) the rights and obligations of holders of additional series of GREATs are the same in all material respects as the rights and obligations of the GREATs Series A holders at the date hereof; and
(vii) all issued and outstanding Special Trust Securities continue to be directly or indirectly owned by Lifeco;
and provided that if a material adverse change occurs in the affairs of the Trust, this Decision shall expire 30 days after the date of such change.
May 28, 2004.
"Iva Vranic"