Mutual Reliance Review System for Exemptive Relief Application -- Exemptive relief granted to scholarship plans allowing extension of prospectus lapse date and relief to not include interim financial statements in the renewal prospectus due to the unique fact situation that gave rise to the application.
Applicable Ontario Statutory Provisions
Securities Act, R.S.O 1990, c. S.5, as am., s. 62(5).
OSC Rule 41-502, ss. 5.2(b), 11.1.
Mutual Reliance Review System for Exemptive Relief Applications -- Securities Act, R.S.O. 1990, c. S.5, as am.
July 24, 2007
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
BRITISH COLUMBIA, ALBERTA, SASKATCHEWAN,
MANITOBA, ONTARIO, QUEBEC, NOVA SCOTIA,
PRINCE EDWARD ISLAND, NEW BRUNSWICK,
NEWFOUNDLAND AND LABRADOR, AND YUKON AND
NUNAVUT TERRITORIES (THE "JURISDICTIONS")
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEW SYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
IN THE MATTER OF
HERITAGE EDUCATIONAL FOUNDATION (THE "FILER")
ON BEHALF OF HERITAGE PLANS AND
(COLLECTIVELY, THE "PLANS")
MRRS DECISION DOCUMENT
The local securities regulatory authority or regulator (the Decision Maker) in each of the Jurisdictions has received an application from the Filer for a decision under the securities legislation of the Jurisdictions (the Legislation) that:
(i) the time limits for the renewal of the prospectus of the Plans dated July 14, 2006 (the Prospectus) be extended to the time limits that would be applicable if the lapse date of the Prospectus were August 31, 2007 (the New Lapse Date), and
(ii) the renewal prospectus for the Plans filed within the extended time limits applicable under the New Lapse Date not be required to include the interim financial statements of the Plans for the period ended June 30, 2007.
Paragraphs (i) and (ii) together shall be referred to as the Requested Relief.
Under the Mutual Reliance Review System for Exemptive Relief Application,
(a) the Ontario Securities Commission is the principal regulator for this application, and
(b) this MRRS decision document evidences the decision of each Decision Maker.
Defined terms contained in National Instrument 14-101 Definitions have the same meaning in this decision unless they are defined in this decision.
This decision is based on the following facts represented by the Filer:
1. The Filer is a non-profit corporation without share capital incorporated by Letters Patent dated December 1, 1986 under the Canada Corporations Act with its head office located in Ontario;
2. The Plans are reporting issuers, or the equivalent thereof, as defined in the Legislation, and are not in default of any requirements of the Legislation or the regulations made thereunder;
3. The Filer is the sponsor and the administrator of the Plans;
Lapse Date Relief
4. The Plans are currently offered under the Prospectus that was receipted on July 14, 2006. Pursuant to the Legislation or the regulations made thereunder, the lapse date ("Lapse Date") for the distribution of scholarship agreements by the Plans was July 14, 2007.
5. A pro forma prospectus for the Plans was filed on June 13, 2007. First comment letter has been issued by staff of the OSC as principal regulator. OSC staff told the Filer that given that a number of the comments relate to broad industry wide issues, additional time would be required to consider the responses before staff could clear the prospectus for final filing.
6. There have been no material changes in the affairs of the Plan since the date of the Prospectus.
Prospectus Relief -- Interim Financial Statements
7. The Legislation requires the interim financial statements of the Plans for the period ended June 30, 2007 to be filed no later than August 29, 2007. The Foundation would have been in a position to file the renewal prospectus offering the Plans within 10 days of the Lapse Date pursuant the Legislation or the regulations made thereunder. Since the delay in the filing of the renewal prospectus for the Plans is beyond the control of the Filer, the Filer has submitted that it should not be required, as a consequence of the change of the Lapse Date, to include the interim financial statements of the Plans in the renewal prospectus if it is filed on or after August 29, 2007. OSC Rule 41-502 and the equivalent provisions in the Legislation or local rules of other Jurisdictions would require the interim financial statements of the Plans to be included in the renewal prospectus if it is filed on or after August 29, 2007.
8. The interim financial statements for the period ended June 30, 2007 will be prepared, filed and made available otherwise in accordance with National Instrument 81-106 Investment Fund Continuous Disclosure.
9. Since the delay in the filing of the renewal prospectus for the Plans is beyond the control of the Filer, the Filer has submitted that it would be appropriate to waive the fee normally required to accompany applications for discretionary relief.
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:
A. the time periods provided by the Legislation as they apply to a distribution of securities under the Prospectus are hereby extended to the time periods that would be applicable if the Lapse Date was August 31, 2007; and
B. the renewal prospectus for the Plans filed within the time limits permitted by this Decision under the New Lapse Date is exempt from the requirements of the Legislation to include the interim financial statements of the Plans for the period ended June 30, 2006.