IN THE MATTER OF THE SECURITIES LEGISLATION OF BRITISH COLUMBIA, ALBERTA,
SASKATCHEWAN, MANITOBA, ONTARIO, NEW BRUNSWICK, PRINCE EDWARD ISLAND, NOVA
SCOTIA, NEWFOUNDLAND AND LABRADOR, NORTHWEST TERRITORIES, YUKON AND NUNAVUT
AND
IN THE MATTER OF THE MUTUAL RELIANCE REVIEW SYSTEM FOR EXEMPTIVE RELIEF
APPLICATIONS
AND
IN THE MATTER OF BERKSHIRE INVESTMENT GROUP INC.,
BERKSHIRE SECURITIES INC., TWC FINANCIAL CORP. AND TWC
SECURITIES INC.
MRRS DECISION DOCUMENT
WHEREAS the local securities regulatory authority or regulator (the "Decision Maker") in each of British Columbia, Alberta, Saskatchewan, Manitoba,
Ontario, New Brunswick, Prince Edward Island, Nova Scotia, Newfoundland and
Labrador, Northwest Territories, Yukon and Nunavut (the "Jurisdictions") has
received an application from Berkshire Investment Group Inc. ("BIG"), and TWC
Financial Corp. ("TFC"), which propose to amalgamate (the "BIG Amalgamation")
and continue as "Berkshire Investment Group Inc." ("BIG Amalco") on or about
February 29, 2004, and from Berkshire Securities Inc. ("BSI") and TWC Securities
Inc. ("TSI") which propose to amalgamate (the "BSI Amalgamation") and continue
as "Berkshire Securities Inc." ("BSI Amalco") on or about April 16, 2004 (BIG,
TFC, BSI and TSI are collectively referred to as the "Applicants")
for a
decision pursuant to Part 7 of Multilateral Instrument 33-109 Registration
Information ("MI 33-109") exempting the Applicants from certain requirements
of MI 33-109 in connection with the BIG Amalgamation and the BSI Amalgamation so
as to permit a bulk transfer of BIG and TFC's individuals to BIG Amalco and BSI
and TSI's individuals to BSI Amalco, as referred to in Section 3.1 of the
Companion Policy 33-109CP to MI 33-109 ("33-109CP");
AND WHEREAS under the Mutual Reliance Review System for Exemptive Relief
Applications (the "System"), the Ontario Securities Commission (the
"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 the Applicants have represented to the Decision Makers that:
1. BSI is currently an investment dealer or its equivalent in all provinces and
territories of Canada, a member of the Investment Dealers Association of Canada
("IDA"), a member of the TSX Venture Exchange ("TSXV") and a participating
organization with the Toronto Stock Exchange ("TSX").
2. BIG is currently a mutual fund dealer in all provinces of Canada (and Limited
Market Dealer in Ontario) and a member of the Mutual Fund Dealers Association
of
Canada (the "MFDA").
3. Both BSI and BIG are corporations incorporated under the laws of Ontario with
their head office located in Burlington, Ontario and are wholly owned
subsidiaries of Berkshire-TWC Financial Group Inc. ("BFGI").
4. TFC was continued under the laws of Ontario on December 18, 2003, is a wholly
owned subsidiary of TWC Group of Companies Inc. ("TWC"), and is a member
of the MFDA. TFC is also registered as a mutual fund dealer with the British
Columbia,
Saskatchewan, Alberta, Manitoba, Ontario and Northwest Territories Securities
Commissions and as a broker (restricted to mutual funds) with the Yukon
Securities Commission. TWC is a wholly owned subsidiary of BFGI. BFGI will
amalgamate with TWC on February 29, 2004 and continue as BFGI.
5. TSI is a corporation incorporated under the laws of British Columbia and is a
wholly owned subsidiary of TWC. TSI is a member of the IDA in the category of
broker/investment dealer, is a member of the TSXV, and is registered as a
broker/investment dealer with the Manitoba and Saskatchewan Securities
Commissions and as a broker/investment dealer with the Alberta, British Columbia
and Ontario Securities Commissions.
6. BSI, BIG, TFC and TSI are not in default of any of the requirements of the
securities legislation of the Jurisdictions.
7. BIG proposes to amalgamate with TFC on or about February 29, 2004 and all
individuals are to be transferred to BIG Amalco. The compliance systems,
procedures and policies of each of BIG and TFC will continue to apply for a
transition period (the "Transition Period") as if each of BIG and TFC
were divisions of BIG Amalco. The Transition Period is expected to end on April
16,
2004.
8. BSI proposes to amalgamate with TSI on or about April 16, 2004 and continue
under the name "Berkshire Securities Inc." and all individuals are
to be transferred to BSI Amalco. BSI's compliance systems, procedures and policies
will apply to BSI Amalco.
9. The transactions described herein are internal restructuring transactions and
do not involve any third parties. BIG Amalco will carry on all of the active
securities business of TFC and BIG in a substantially similar manner with the
same directors as BIG and the same salespeople as BIG and TFC. BSI Amalco will
carry on all of the active securities business of TSI and BSI in a substantially
similar manner with the same directors as BSI and the same salespeople as BSI
and TSI.
10. Given the sheer volume of representatives of TFC and BIG and of TSI and BSI,
it would be exceedingly difficult to transfer each individual to BIG Amalco and
BSI Amalco respectively as per the requirements set out in the MI 33-109.
AND WHEREAS under the System this MRRS Decision Document evidences the
decision of each Decision Maker (collectively, the "Decision");
AND WHEREAS each of the Decision Makers is satisfied that the test
contained in MI 33-109 that provides the Decision Maker with the jurisdiction to
make the Decision has been met;
THE DECISION of the Decision Makers pursuant to MI 33-109 is that the
following requirements of MI 33-109 shall not apply to the Applicants in respect
of the BIG Amalgamation and the BSI Amalgamation:
(i) the requirement to submit a Form 33-109F1 regarding the termination of each employment, partner, or agency relationship under section 4.3 of MI 33-109;
(ii) the requirement to submit a Form 33-109F1 regarding each individual who ceases to be a non-registered individual under section 5.2 of MI 33-109;
(iii) the requirement to submit a Form 33-109F4 for each individual applying to become a registered individual under section 2.2 of MI 33-109;
(iv) the requirement to submit a Form 33-109F4 for each non-registered individual under section 3.3 of MI 33-109; and
(v) the requirement under section 3.1 of MI 33-109 to notify the regulator of a change to the business location information in Form 33-109F3.
DATED the 1st day of March, 2004
David M. Gilkes