AIC Limited et al.
Headnote
NP 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Approval of mutual fund mergers -- approval required because mergers do not meet the criteria for pre-approved reorganizations and transfers in National Instrument 81-102 -- continuing funds have different investment objectives and fee structures than terminating funds -- certain mergers not a "qualifying exchange" or a tax-deferred transaction under Income Tax Act -- securityholders of terminating funds provided with timely and adequate disclosure regarding the mergers.
Applicable Legislative Provisions
National Instrument 81-102 Mutual Funds, ss. 5.5(1)(b), 5.6.
October 30, 2008
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
AIC LIMITED (the Filer)
AND
IN THE MATTER OF
AIC BALANCED GROWTH PORTFOLIO FUND
AIC PPC BALANCED GROWTH PORTFOLIO POOL
AIC BALANCED INCOME PORTFOLIO FUND
AIC PPC BALANCED INCOME PORTFOLIO POOL
AIC CORE GROWTH PORTFOLIO FUND
AIC WORLD FINANCIAL INFRASTRUCTURE INCOME AND GROWTH FUND
AIC PRIVATE PORTFOLIO COUNSEL GLOBAL POOL
AIC DIVERSIFIED SCIENCE & TECHNOLOGY FUND
AIC GLOBAL INSURANCE FUND
AIC GLOBAL BANKS FUND
AND
AIC DIVERSIFIED SCIENCE & TECHNOLOGY CORPORATE CLASS
(collectively, the Terminating Funds)
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 approval of the mergers (the Mergers) of the Terminating Funds into the applicable Continuing Funds (as defined below) under subsection 5.5(1)(b) of National Instrument 81-102 (NI 81-102).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
(i) the Ontario Securities Commission is the principal regulator for this application; and
(ii) the Filer has 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, Québec, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, Yukon, Northwest Territories and Nunavut.
Interpretation
Defined terms contained in National Instrument 14-101 -- Definitions and in MI 11-102 have the same meaning if used in this decision unless otherwise defined.
AIC Balanced Growth Portfolio Fund, Value Leaders Balanced Growth Portfolio, AIC PPC Balanced Growth Portfolio Pool, AIC Balanced Income Portfolio Fund, Value Leaders Balanced Income Portfolio, AIC PPC Balanced Income Portfolio Pool, Value Leaders Income Portfolio, AIC Core Growth Portfolio Fund, and Value Leaders Growth Portfolio are referred to as the "Portfolio Funds".
AIC World Financial Infrastructure Income and Growth Fund, AIC Global Wealth Management Fund, AIC Bond Fund, AIC Private Portfolio Counsel Global Pool, AIC Global Premium Dividend Income Fund, AIC Diversified Science & Technology Fund, AIC Value Fund, AIC Global Insurance Fund, AIC Global Advantage Fund and AIC Global Banks Fund are referred to as the "Trust Funds".
AIC Diversified Science & Technology Corporate Class and AIC Value Corporate Class are referred to as the "Corporate Funds".
Value Leaders Balanced Growth Portfolio, Value Leaders Balanced Income Portfolio, Value Leaders Income Portfolio, Value Leaders Growth Portfolio, AIC Global Wealth Management Fund, AIC Bond Fund, AIC Global Premium Dividend Income Fund, AIC Value Fund, AIC Global Advantage Fund and AIC Value Corporate Class are referred to as the "Continuing Funds".
The Portfolio Funds, Trust Funds and Corporate Funds are referred to as the "Funds".
Representations
This decision is based on the following facts represented by the Filer:
1. The Filer is a private corporation existing under the laws of Ontario with its head office located in Burlington, Ontario.
2. The Filer is the manager and trustee of the Portfolio Funds and the Trust Funds and is the manager of the Corporate Funds.
3. AIC Investment Services Inc. (AIS) is the portfolio adviser of the Funds and is a wholly owned subsidiary of the Filer. AIS is registered as a mutual fund dealer, investment counsel and portfolio manager in Ontario, investment counsel and portfolio manager in Alberta, portfolio manager in Manitoba and adviser, unrestricted practice in Québec.
4. The Portfolio Funds and Trust Funds are open-end mutual fund trusts established under the laws of Ontario by declarations of trust.
5. The Corporate Funds are classes of a mutual fund corporation, AIC Corporate Fund Inc., incorporated under the law of Ontario.
6. The Filer intends to merge the Terminating Funds into the corresponding Continuing Fund as set out below:
7. Units of the Portfolio Funds and Trust Funds are currently qualified for sale in each of the provinces and territories of Canada pursuant to a simplified prospectus dated April 21, 2008, as amended by Amendment No. 1 dated June 2, 2008, Amendment No. 2 dated August 26, 2008 and Amendment No. 3 dated September 19, 2008 and an annual information form dated April 21, 2008, as amended by Amendment No. 1 dated June 2, 2008, Amendment No. 2 dated August 26, 2008 and Amendment No. 3 dated September 19, 2008.
8. Shares of the Corporate Funds are offered for sale in each of the provinces and territories of Canada pursuant to a simplified prospectus dated April 1, 2008, as amended by Amendment No. 1 dated June 2, 2008 and Amendment No. 2 dated September 19, 2008 and an annual information form dated April 1, 2008, as amended by Amendment No. 1 dated June 2, 2008 and Amendment No. 2 dated September 19, 2008.
9. The Terminating Funds and the Continuing Funds are reporting issuers under the applicable securities legislation of each province and territory of Canada and are not in default of any of the requirements of the securities legislation of any of the provinces and territories of Canada.
10. Other than circumstances in which the securities regulatory authority of a province of Canada has expressly exempted a Fund therefrom, each of the Funds follows the standard investment restrictions and practices established by NI 81-102.
11. The net asset value for each of the Funds is calculated on a daily basis on each day the Toronto Stock Exchange is open for business.
12. A material change report, press release and amendments to the simplified prospectuses and annual information forms of the Funds were filed via SEDAR on September 19, 2008 with respect to the Mergers.
13. A notice of meeting, a management information circular and a proxy in connection with the meetings of securityholders was mailed to securityholders of the Terminating Funds, Value Leaders Balanced Growth Portfolio, Value Leaders Balanced Income Portfolio, Value Leaders Income Portfolio, Value Leaders Growth Portfolio, AIC Global Wealth Management Fund and AIC Value Corporate Class and filed on SEDAR on October 28, 2008.
14. A copy of the simplified prospectus of the applicable Continuing Fund was also mailed to securityholders of the Terminating Funds on October 28, 2008.
15. The Filer obtained an exemption dated May 21, 2008 (the Prior Exemption) from the financial statements delivery provision set out in s.5.6(1)(f)(ii) of NI 81-102 in respect of mergers of mutual funds managed by the Filer. The Filer has complied with the conditions of the Prior Exemption in respect of the Mergers.
16. Securityholders of the Terminating Funds and the Continuing Funds listed in paragraph 13 above will be asked to approve the Mergers at meetings to be held on November 19, 2008.
17. Under the Mergers, securityholders of the Terminating Funds will receive units or shares of the same class of the applicable Continuing Fund, other than:
(a) holders of Class T5 and Class T8 Units of AIC Global Insurance Fund, who will receive Mutual Fund Units of AIC Global Advantage Fund;
(b) holders of Class T5 and Class T8 Units of AIC Global Banks Fund, who will receive Mutual Fund Units of AIC Global Advantage Fund;
(c) holders of Class T Units of AIC PPC Balanced Income Portfolio Pool, who will receive Class T5 Units of Value Leaders Balanced Income Portfolio;
(d) holders of Class T Units of AIC PPC Balanced Growth Portfolio Pool, who will receive Class T6 Units of Value Leaders Balanced Growth Portfolio; and
(e) holders of Mutual Fund Units of AIC World Financial Infrastructure Income and Growth Fund, who will receive Class T5 Units of AIC Global Wealth Management Fund.
18. Securityholders of the Terminating Funds will continue to have the right to redeem securities of the Terminating Funds for cash at any time up to the close of business on the effective date of the Mergers. The management information circular mailed to securityholders of the Terminating Funds discloses that securities of the Continuing Funds acquired by securityholders upon the Mergers are subject to the same deferred sales charge and/or low load sales charges, to which their securities of the Terminating Funds were subject prior to the Merger. As well, the management information circular states that securityholders who purchased securities under the deferred sales charge and/or low load option may be required to pay a charge (depending on their holding period) if they redeem their securities prior to the implementation of the Mergers.
19. The Independent Review Committee of the Funds provided a positive recommendation with respect to the Mergers and such recommendation was included in the management information circular mailed to securityholders of the Terminating Funds.
20. Prior to the date of the Mergers, the portfolio assets of each Terminating Fund that do not meet the investment objectives of the Continuing Fund will be liquidated. The portfolio assets of each Terminating Fund to be acquired by the Continuing Fund will be acceptable to the portfolio adviser of the Continuing Fund and consistent with the investment objectives of the Continuing Fund.
21. No sales charges, if any, will be payable in connection with the acquisition by the Continuing Funds of the investment portfolio of the applicable Terminating Funds.
22. The Filer will pay for the costs of the Mergers. These costs consist mainly of legal, proxy solicitation, printing, mailing, brokerage costs (including all brokerage expenses incurred in respect of any required sale of portfolio assets of the Terminating Funds) and regulatory fees.
23. If approved by the securityholders of the Terminating Funds and the applicable Continuing Funds, all of the Mergers will occur on or about the close of business on November 28, 2008, with the exception of AIC World Financial Infrastructure Income and Growth Fund which will occur on or about the close of business on December 15, 2008, and the Continuing Funds will continue as publicly offered open-end mutual funds. Following the Mergers, the Terminating Funds will be wound up as soon as reasonably possible.
24. The Filer believes that the Mergers will benefit securityholders of the Terminating Funds because:
(a) the Mergers will lead to cost efficiencies by eliminating the administrative and regulatory costs of operating the Terminating Funds as separate mutual funds;
(b) securityholders of the Terminating Funds may have the potential to enjoy increased economies of scale with respect to administrative expenses that are spread across a greater pool of assets;
(c) securityholders of the Terminating Funds will own units or shares of the Continuing Funds, which will have an increased profile in the marketplace as a result of their greater size; and
(d) by merging the Terminating Funds instead of terminating them, there may be savings for the Terminating Funds in brokerage charges associated with the liquidation of the Terminating Funds' portfolios on a wind-up because these charges will be borne by the Filer.
25. Approval of the Mergers is required because the Mergers do not meet all of the criteria for pre-approved reorganizations and transfers set out in section 5.6 of NI 81-102 in the following ways:
(a) the fundamental investment objectives of AIC World Financial Infrastructure Income and Growth Fund, AIC Diversified Science & Technology Fund and AIC Diversified Science & Technology Corporate Class and their respective Continuing Funds may not be considered substantially similar;
(b) the merger of:
(i) the AIC Private Portfolio Counsel Global Pool into the AIC Global Premium Dividend Income Fund;
(ii) the AIC Diversified Science & Technology Fund into the AIC Value Fund;
(iii) the AIC Global Insurance Fund into the AIC Global Advantage Fund; and
(iv) the AIC Global Banks Fund into the AIC Global Advantage Fund
will not be a "qualifying exchange" within the meaning of section 132.2 of the Income Tax Act (Canada) (the ITA) or a tax-deferred transaction under subsection 85(1), 85.1(1), 86(1) or 87(1) of the ITA; and
(c) the fee structure of the Terminating Funds (other than AIC World Financial Infrastructure Income and Growth Fund) is not substantially similar to that of their respective Continuing Funds.
26. Except as noted above, the Mergers will comply with all of the other criteria for pre-approved reorganizations and transfers set out in section 5.6 of NI 81-102.
27. Securityholders of the Terminating Funds have been provided with information about the differences between the Terminating Funds and the Continuing Funds as well as information about the tax consequences of the Mergers in the management information circular and will have the opportunity to consider this information prior to voting on the Mergers.
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 Mergers are approved.