National Policy 11-203 Process For Exemptive Relief Applications in Multiple Jurisdictions
Approval of a change of control of a mutual fund manager – Approval is necessary under subsection 5.5(2) of National Instrument 81-102 Mutual Funds.
Applicable Legislative Provisions
National Instrument 81-102 Mutual Funds, subsection 5.5(2)
September 9, 2008
IN THE MATTER OF
THE SECURITIES LEGISLATION OF ONTARIO
AND
IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS
IN MULTIPLE JURISDICTIONS
AND
IN THE MATTER OF
GATEHOUSE CAPITAL INC. (THE “FILER” OR THE “MANAGER”)
AND GLOBAL CREDIT PREF CORP.
AND TIS PRESERVATION & GROWTH FUND
DECISION
Background
The principal regulator in the Jurisdiction (the “Decision Maker”) has received an application from the Filer for a decision under the securities legislation of the Jurisdiction (the “Legislation”) for approval pursuant to subsection 5.5(2) of National Instrument 81-102 Mutual Funds (“NI 81-102”) of a change of control of the Manager (the “Exemption 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 Alberta, British Columbia, Manitoba, Newfoundland and Labrador, New Brunswick, Nova Scotia, Prince Edward Island, Quebec and Saskatchewan (together with Ontario, the “Jurisdictions”).
Interpretation
Defined terms contained in National Instrument 14-101 Definitions and MI 11-102 have the same meaning in this decision unless they are otherwise defined in this decision.
Representations
This decision is based on the following facts represented by the Filer:
The Manager and the Funds
The Manager was incorporated on August 11, 2004 pursuant to the Business Corporations Act (Ontario). The Manager is not, to the best of its knowledge, in default of securities legislation in any Jurisdiction.
The Manager manages Global Credit Pref Corp. and the TIS Preservation & Growth Fund (collectively, the “Funds”), together with Global Credit Trust. The Manager handles and oversees the day-to-day operation of the Funds.
Global Credit Pref Corp. is a closed-end mutual fund corporation incorporated under the laws of the Province of Ontario on May 11, 2005. The preferred shares of Global Credit Pref Corp. are listed on the Toronto Stock Exchange. Global Credit Pref Corp. is not a conventional mutual fund and as a result has obtained exemptions from NI 81-102.
The TIS Preservation & Growth Fund is an open-end mutual fund trust that was established under the laws of the Province of Ontario pursuant to a trust agreement dated as of March 30, 2007 between the Manager and HSBC Trust Company (Canada) as trustee. Units of the TIS Preservation & Growth Fund are distributed in each province of Canada (except Quebec) under a simplified prospectus and annual information form dated April 8, 2008, as amended on August 11, 2008, prepared in accordance with National Instrument 81-101 Mutual Fund Prospectus Disclosure and NI 81-102.
Global Credit Pref Corp. is a reporting issuer under the applicable securities legislation in each province of Canada. The TIS Preservation & Growth Fund is a reporting issuer under the applicable securities legislation in each province of Canada except Quebec. Neither of the Funds is on the list of defaulting reporting issuers maintained under applicable securities legislation in those jurisdictions.
First Asset Investment Management Inc. is the investment advisor to Global Credit Pref Corp. Accilent Capital Management Inc. is the investment advisor to the TIS Preservation & Growth Fund, and TIS Group, Inc. has been appointed as the investment sub-advisor to the TIS Preservation & Growth Fund.
The Proposed Acquisition
The shareholders of the Manager and the Manager have entered into a share purchase agreement dated August 11, 2008 with Bycke Asset Management Inc. (the “Purchaser”), pursuant to which all of the issued and outstanding common shares in the capital of the Manager will be acquired by the Purchaser. The transaction remains subject to the receipt of all applicable regulatory approvals, third party consents and customary closing conditions, and is expected to close on or about November 7, 2008 following receipt of the regulatory approvals and the expiration of the notice period provided for in section 5.8(1)(a) of NI 81-102.
The Purchaser was incorporated on August 5, 2008 pursuant to the Business Corporations Act (Ontario) to complete the transaction. To the best of the Manager’s knowledge, the Purchaser is not in default of securities legislation in any Jurisdiction. The directors and officers of the Purchaser are Mr. David Birkenshaw, Mr. Alan Huycke and Mr. Neil Simon.
The Purchaser is owned as to 51% by Birkenshaw & Company Ltd., and as to 49% by Clearview Capital Inc. Clearview Capital Inc. is owned 50% by Mr. Neil Simon and 50% by Clearview Investment Solutions Inc. Clearview Investment Solutions Inc. is indirectly owned by Mr. Alan Huycke and members of his family. Birkenshaw & Company Ltd. is owned 100% by Mr. David Birkenshaw.
Proposed Change of Control
The acquisition of the Manager will involve a direct change of control of the Manager. Pursuant to section 5.5(2) of NI 81-102, the approval of the Decision Maker must be obtained prior to the proposed change of control.
In connection with certain regulatory requirements applicable to the Funds:
(a) a press release describing the proposed transaction was issued by the Manager on August 11, 2008 and filed under SEDAR Project Nos. 1302974, 1302976 and 1302978;
(b) a material change report was filed on August 11, 2008 under SEDAR Project Nos. 1303003, 1303004 and 1303008;
(c) an amendment to the TIS Preservation & Growth Fund’s then current annual information form was filed under SEDAR Project No. 1223827 in accordance with the fund’s continuous disclosure obligations; and
(d) notices regarding the change of control have been posted on SEDAR under SEDAR Project Nos. 1303021 and 1303027 and were sent to security holders of Global Credit Pref Corp. on August 28, 2008 and to security holders of the TIS Preservation & Growth Fund on August 29, 2008, pursuant to section 5.8(1)(a) of NI 81-102.
The Purchaser has indicated that the change of control of the Manager will not affect the day-to-day operation and administration of the Funds. All of the current service providers, including the investment advisor and sub-advisor of the Funds, as applicable, are expected to continue in their current roles. The systems, back office, fund accounting and other administrative functions are expected to continue to be operated in the same manner as currently being operated by the Funds and their administrators. The management fees and operating expenses of the Funds will not change as a result of the proposed transaction.
While it is expected that there will be some changes to the board of directors of the Manager as well as officers of the Manager, such persons will have had previous experience with one or both Funds, and the directors and officers of the Manager will have the requisite integrity and experience as required under section 5.7(1)(a)(v) of NI 81-102.
Upon the close of the transaction, all current members of the Funds’ independent review committee (the “IRC”) are expected to be re-appointed as members of the IRC by the Manager pursuant to section 3.3(5) of National Instrument 81-107 Independent Review Committee for Investment Funds.
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.
“Darren McKall”
Darren McKall
Assistant Manager, Investment Funds
Ontario Securities Commission
SEDAR Project No. 1306267