Mackenzie Financial Corporation and Mackenzie Global Credit Opportunities Fund
Headnote
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- relief from NI 81-102 seed capital requirements for new continuing funds following reorganizations -- relief from NI 81-101 and NI 81-106 to allow new continuing funds to use performance data from existing funds in its offering documents and continuous disclosure -- subject to conditions.
Applicable Legislative Provisions
National Instrument 81-101 -- Mutual Fund Prospectus Disclosure, ss. 2.1 and 6.1(1).
National Instrument 81-102 -- Investment Funds, ss. 3.1, 15.1.1 and 15.3(2), 15.6(1)(a)(i)(A), 15.6(1)(b), 15.6(1)(d)(i), 15.8(2)(a), 15.8(3)(a) and 15.9(2) 19.1(1).
National Instrument 81-106 Investment Fund Continuous Disclosure, ss. 4.1 and 17.1(1).
April 6, 2021
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 MACKENZIE FINANCIAL CORPORATION (the Filer) AND MACKENZIE GLOBAL CREDIT OPPORTUNITIES FUND (the Terminating Fund)
DECISION
Background
The principal regulator in the Jurisdiction has received an application from the Filer on behalf of the Terminating Fund, for a decision under the securities legislation of the Jurisdiction (the Legislation) approving the proposed merger (the Merger) of the Terminating Fund with the Mackenzie North American Corporate Bond Fund (the Continuing Fund), pursuant to paragraph 5.5(l)(b) of National Instrument 81-102 Investment Funds (NI 81-102) (the Approval Sought).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
(a) the Ontario Securities Commission is the principal regulator for this application; and
(b) 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 each of the provinces and territories of Canada, other than Ontario (together with Ontario, the Canadian Jurisdictions).
Interpretation
Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this decision, unless otherwise defined. The following additional terms shall have the following meanings:
Closed and Exempt Merger means the Merger where the Series F8 units of the Continuing Fund and the Terminating Fund are not currently offered for purchase and are not currently qualified for distribution under a prospectus;
Effective Date means on or about June 4, 2021, the anticipated date of the Merger;
Exempt Mergers means the Merger where the Series R and IG, and CL units of the Continuing Fund will be offered only on an exempt distribution basis;
Funds means collectively, the Terminating Fund and the Continuing Fund;
Grandfathering Mergers means the Merger where the Series T8 and PWT8 units of the Continuing Fund will be created solely to facilitate the Merger, will not be qualified for distribution under a prospectus and will not be available for sale subsequent to the Merger; and
New Series Mergers means the Merger where the Series AR and PWR units of the Continuing Fund will be created to facilitate the Merger.
Representations
This decision is based on the following facts represented by the Filer:
The Filer
1. The Filer is a corporation governed by the laws of Ontario and is registered as: (a) a investment fund manager in Ontario, Quebec and Newfoundland and Labrador; (b) a portfolio manager and exempt market dealer in the Canadian Jurisdictions; (c) an adviser in Manitoba; and (d) a commodity trading manager in Ontario.
2. The Filer, with its head office in Toronto, Ontario, is the trustee and manager of the Funds.
The Funds
3. The Funds are unit trusts established under the laws of Ontario. Each of the Funds are reporting issuers under the securities legislation of the Canadian Jurisdictions. Neither the Filer nor the Funds are in default of securities legislation in any of the Canadian Jurisdictions.
4. Other than circumstances in which the securities regulatory authority of a Canadian Jurisdiction has expressly exempted a Fund therefrom, the Funds follow the standard investment restrictions and practices established under NI 81-102.
5. Units of the Funds are generally qualified for sale under the simplified prospectus, annual information form and fund facts documents dated September 25, 2020, as amended (collectively, the Offering Documents).
Series R and CL of the Continuing Fund are, and Series IG units of the Continuing Fund will only be, offered on an exempt distribution basis.
Series T8 and PWT8 units of the Terminating Fund are no longer qualified for distribution under a prospectus. Further, Series T8 and PWT8 units of the Continuing Fund which will be created solely to facilitate the Merger, will not be qualified for distribution under a prospectus and will not be available for sale subsequent to the Merger.
Series F8 units of the Terminating Fund are no longer offered for sale and no longer qualified for distribution under a prospectus, as is the case for Series F8 units of the Continuing Fund.
Series AR and PWR units of the Continuing Fund will be newly created to facilitate the Merger and will be qualified for distribution under a prospectus.
6. The net asset value for each series of the Funds is calculated on a daily basis in accordance with the Funds' valuation policy and as described in the applicable Offering Documents.
Reasons for the Approval Sought
7. Approval of the Merger is required because the Merger does not satisfy all of the criteria for pre-approved reorganizations and transfers set out in section 5.1 of NI 81-102. The preapproval criteria are not satisfied in the following ways:
(i) the fundamental investment objective of the Continuing Fund is not, or may be considered not to be, "substantially similar" to the investment objective of the Terminating Fund;
(ii) the Merger will not be completed as a tax-deferred transaction under the Income Tax Act (Canada) (the Tax Act); and
(iii) the materials sent to applicable unitholders of the Terminating Fund in respect of the Exempt Mergers, the Grandfathering Mergers, the Closed and Exempt Merger, and the New Series Mergers did not include the most recently filed fund facts document(s) for the corresponding series of the Continuing Fund.
8. Except as noted above, the Merger will otherwise comply with all other criteria for preapproved reorganizations and transfers set out in section 5.6 of NI 81-102.
The Proposed Merger
9. Pursuant to the Merger, unitholders of the Terminating Fund would become unitholders of the Continuing Fund.
10. The Merger does not require approval of unitholders of the Continuing Fund as the Filer has determined that the Merger does not constitute material changes for the Continuing Fund.
11. As required by National Instrument 81-107 Independent Review Committee for Investment Funds, the Independent Review Committee (IRC) has been appointed for the Funds. The Filer presented the terms of the Merger to the IRC for a recommendation. The IRC reviewed the Merger and provided a positive recommendation having determined that the Merger, if implemented, would achieve a fair and reasonable result for the Funds and their respective unitholders.
12. In accordance with National Instrument 81-106 Investment Fund Continuous Disclosure (NI 81-106), a press release announcing the Merger was issued and filed via SEDAR on March 5, 2021. A material change report and amendments to the Offering Documents with respect to the Merger were filed in accordance with NI 81-106.
13. By way of order dated October 21, 2016, the Filer was granted relief (the Notice-and Access Relief) from the requirement set out in paragraph 12.2(2)(a) of NI 81-106 to send a printed management information circular to unitholders while proxies are being solicited. Subject to certain conditions, the Notice-and-Access Relief instead allows a notice-and access document to be sent to such unitholders. Pursuant to the requirements of the Notice and-Access Relief, the notice-and-access document, a form of proxy in connection with each special meeting of unitholders of the Funds, as well as the most recent fund facts document(s) for the applicable series of the Continuing Fund (other than in respect of the Exempt Mergers, the Grandfathering Mergers, the Closed and Exempt Merger, and the New Series Mergers) will be mailed to unitholders of the Terminating Fund commencing on or about April 5, 2021. The management information circular and forms of proxy (collectively, the Meeting Materials) in connection with special meetings of unitholders of the Fund will be posted on the Filer's website at www.mackenzieinvestments.com as well as on the SEDAR website at www.sedar.com.
14. The Meeting Materials describe all of the relevant facts concerning the Merger relevant to each unitholder, including the differences between investment objective, strategies and fee structures of the Terminating Fund and the Continuing Fund, the IRC's recommendations regarding the Merger, and income tax considerations so that unitholders of the Terminating Fund may consider this information before voting on the Merger. The Meeting Materials also describe the various ways in which unitholders can obtain a copy of the simplified prospectus and annual information form of the Continuing Fund, as well as the most recent interim and annual financial statements and management reports of fund performance for the Continuing Fund, at no cost.
15. In order to effect the Merger relating to Series IG, R, CL, T8, PWT8, and F8 of the Terminating Fund, securities of the applicable series of the Continuing Fund will be distributed to unitholders of the Terminating Fund in reliance on the prospectus exemption contained in section 2.11 of National Instrument 45-106 Prospectus Exemptions.
16. In respect of the Exempt Mergers, the Grandfathering Mergers, the Closed and Exempt Merger, and the New Series Mergers because a current simplified prospectus and fund facts documents are not available for the applicable series of the Continuing Fund, unitholders of each of the corresponding series of the Terminating Fund were sent a fund facts document relating the following series of the Continuing Fund:
Terminating Fund Series
Continuing Fund Series Fund Facts
Series AR
Series A
Series F8
Series F5
Series T8
Series T5
Series PWR
Series PW
Series PWT8
Series PWT5
Series IG
Series A
Series CL
Series A
Series R
Series A
17. The Filer will pay for the costs of the Merger. These costs consist mainly of brokerage charges associated with the trades that occur both before and after the date of the Merger and legal, proxy solicitation, printing, mailing and regulatory fees. There are no charges payable by unitholders of the Terminating Fund who acquire units of the Continuing Fund as a result of the Merger.
18. Unitholders of the Terminating Fund will be asked to approve the Merger at a special meeting of unitholders scheduled to be held on or about May 10, 2021.
19. Following the implementation of the Merger, all systematic plans that are established with respect to the Terminating Fund will be re-established in the Continuing Fund, on a series-for-series basis with substantially similar fees, unless unitholders advise the Filer otherwise or unless otherwise noted in the information circular.
20. Unitholders may change or cancel any systematic plan at any time and unitholders of the Terminating Fund who wish to establish one or more systematic plans in respect of their holdings in the Continuing Fund may do so following the implementation of the Merger.
21. The Merger will be effected on a taxable basis, which the Manager has determined will be in the overall best interests of the investors of the Funds. Effecting the Merger on a taxable basis will preserve, where applicable, any unused tax losses of the Continuing Fund, which would otherwise expire upon implementation of the Merger on a tax deferred basis and therefore would not be available to shelter income and capital gains realized by the Continuing Fund in future years.
22. Unitholders in the Terminating Fund will continue to have the right to redeem their units or exchange their units for units of any other mutual fund of the Filer at any time up to the close of business on the business day before the Effective Date. Unitholders of the Terminating Fund that switch their units for units of other mutual funds of the Filer will not incur any charges other than switch fees, if applicable, as described in the Terminating Fund's simplified prospectus. Unitholders who redeem units may be subject to redemption charges.
23. Following the implementation of the Merger, the Continuing Fund will continue as a publicly offered open-ended mutual fund offering units in the Canadian Jurisdictions.
24. Following the implementation of the Merger, a press release and material change report announcing the results of the unitholder meeting in respect of the Merger of the Terminating Fund will be issued and filed.
25. No sales charges will be charged by the Filer to investors or to the Terminating Fund or Continuing Fund in connection with the acquisition by the Continuing Fund of the investment portfolio of the Terminating Fund.
26. The assets of the Terminating Fund to be acquired by the Continuing Fund in order to effect the Merger is currently, or will be, acceptable, on or prior to the effective date of the Merger, to the portfolio managers of the Continuing Fund and are, or will be, consistent with the investment objective of the Continuing Fund.
27. If the Merger is approved, the reorganization will be implemented after the close of business on the Effective Date. If the Merger are not approved, the Terminating Fund will continue to be offered for distribution.
Merger Benefits
28. The Filer believes that the Merger is beneficial to unitholders of the Terminating Fund for the following reasons:
(i) Efficient use of investment managers: The Merger is being proposed to reflect the Filer's desire to deploy its portfolio managers as efficiently as possible, in order to maximize return potential for fund investors.
(ii) Streamlining similar mandates: Since managing the Continuing Fund, it has been run substantially similar to the Terminating Fund with approximately 70% overlap of the holdings on an asset weighted basis. The Merger will also allow the Filer to make its product offering smaller and simpler, and therefore easier for investors to navigate.
(iii) Continued access to the same investment management team: The Merger is being proposed to reflect the Filer's belief that investors will continue to benefit from the Filer's Fixed Income Team's portfolio management capabilities and similar long-term risk adjusted returns.
(iv) Same or Lower Fees: In each case, management fees and/or fixed administration fees will be the same or lower for the Continuing Fund.
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 Approval Sought is granted, provided that the Filer obtains the prior approval of the unitholders of the Terminating Fund for the Merger at a special meeting held for that purpose.