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-approval -- differences in investment objectives -- merger not a "qualifying exchange" -- securityholders of terminating and continuing funds provided with timely and adequate disclosure regarding the merger.
Applicable Legislative Provisions
National Instrument 81-102 Mutual Funds ss. 5.5(1)(b), 5.6.
May 21, 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 GLOBAL PREMIUM DIVIDEND INCOME FUND
AND AIC WORLD EQUITY CORPORATE CLASS
(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:
(a) approval of the mergers of the Terminating Funds into AIC Global Diversified Fund and AIC Global Diversified Corporate Class (the "Continuing Funds"), as set out in paragraph 11 below, under subsection 5.5(1) (b) of National Instrument 81-102 ("NI 81-102") (the "Current Mergers");
(b) relief from the simplified prospectus and financial statements delivery requirements contained in subsection 5.6(1)(f)(ii) of NI 81-102 in respect of:
(i) the Current Mergers; and
(ii) all future mergers of mutual funds managed by the Filer or an affiliate (the "Future Mergers" and collectively with the Current Mergers, the "Mergers")
(collectively, the "Exemption Sought").
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 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 Global Premium Dividend Income Fund and AIC Global Diversified Fund are sometimes referred to as the "Trust Funds".
AIC World Equity Corporate Class and AIC Global Diversified Corporate Class are sometimes referred to as the "Corporate Funds".
The Trust Funds and Corporate Funds are sometimes 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 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 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 laws of Ontario.
6. Units of the Trust Funds are currently qualified for sale in each of the provinces and territories of Canada by a simplified prospectus dated April 21, 2008 (the "Prospectus").
7. 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 (the "Corporate Prospectus").
8. 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.
9. 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 set out in NI 81-102.
10. 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.
11. The Manager intends to merge the Terminating Funds into the Continuing Funds as set out below:
12. No sales charges will be payable in connection with the acquisition by the Continuing Funds of the investment portfolio of the applicable Terminating Funds.
13. 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 Current Mergers.
14. The annual management fees of the Continuing Funds are the same as the Terminating Funds.
15. A material change report, press release and amendments to the simplified prospectuses and annual information forms of the Funds were filed via SEDAR on February 28, 2008 with respect to the Current Mergers.
16. A notice of meeting, a management information circular and a proxy in connection with the meetings of securityholders was mailed to securityholders of the Funds and filed on SEDAR on April 18, 2008.
17. Securityholders of the Funds approved the Current Mergers at meetings held on May 15, 2008.
18. 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 described in paragraph 15.
19. The Filer will pay for the costs of the Current 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.
20. The Terminating Funds will merge into the Continuing Funds on or about the close of business on May 30, 2008 and the Continuing Funds will continue as publicly offered open-end mutual funds. Following the Current Mergers, the Terminating Funds will be wound up as soon as reasonably practicable.
21. Securityholders of the Funds may have the potential to enjoy increased economies of scale with respect to administrative expenses, as well as profile in the marketplace as part of larger Continuing Funds.
22. 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, in the case of the Current Mergers these charges will be borne by the Filer.
23. Approval of the Current Mergers is required because the Current 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 investment objective of the Terminating Corporate Fund and the Continuing Corporate Fund may not be considered substantially similar;
(b) the merger of the Trust Funds 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;
(c) the meeting materials sent to securityholders of the Terminating Funds did not include the most recent simplified prospectus, annual and interim financial statements that have been made public for the Continuing Funds.
24. Except as noted above, the Current 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.
25. Securityholders of the Terminating Funds have been provided with information about the tax consequences of the Current Mergers in the management information circular and have had the opportunity to consider this information prior to voting on the Transactions.
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 Exemption Sought is granted provided that:
(a) in satisfaction of the simplified prospectus delivery requirement in subsection 5.6(1)(f)(ii) of NI 81-102, the Filer sends securityholders a tailored simplified prospectus consisting of :
(i) the current Part A of the simplified prospectus of the applicable continuing fund, and
(ii) the current Part B of the simplified prospectus of the applicable continuing fund;
(b) the management information circular sent to securityholders in connection with a Merger prominently discloses that securityholders can obtain the most recent interim and annual financial statements of the applicable continuing fund by accessing the SEDAR website at www.sedar.com, by accessing the Filer's website at www.aic.com, by calling the Filer's toll-free telephone numbers or by submitting (by fax or mail) a request to the Filer;
(c) upon a request by a securityholder of a terminating fund for financial statements, the Filer or its affiliates will make best efforts to provide the securityholder with financial statements of the applicable continuing fund in a timely manner so that the securityholder can make an informed decision regarding the Merger;
(d) each applicable terminating fund and the applicable continuing fund with respect to a Merger have an unqualified audit report in respect of their last completed financial period; and
(e) the information circular sent to securityholders in connection with a Merger provides sufficient information about the Merger to permit securityholders to make an informed decision about the Merger.
This decision will terminate one year after the publication in final form of any legislation or rule dealing with matters in paragraph 5.5(1)(b) of NI 81-102.