Headnote
NP 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – approval granted for change of control of manager of a mutual fund – indirect change of control of manager as a result of acquisition of Belgian bank.
Applicable Legislative Provisions
National Instrument 81–102 Mutual Funds, subsection 5.5(2)
December 3, 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 FORTIS GLOBAL EQUITY EXPOSURE FUND, FORTIS INVESTMENT MANAGEMENT CANADA LTD, SOCIÉTÉ FÉDÉRALE DE PARTICIPATIONS ET D’INVESTISSEMENT, BNP PARIBAS S.A.
(the Filers)
DECISION
Background
The principal regulator in the Jurisdiction has received an application from BNP Paribas S.A. (BNP Paribas) for a decision under the securities legislation of the Jurisdiction (the Legislation) for approval of the change of control of Fortis Investment Management Canada Ltd. (the Manager), the manager, trustee and portfolio advisor of the Fortis Global Equity Exposure Fund (the Fund), in accordance with subsection 5.5(2) of National Instrument 81-102 – Mutual Funds (NI 81-102) (the Approval Sought).
Under Multilateral Instrument 11-102 (“MI 11-102”) and National Policy 11-203 – Process for Exemptive Relief Applications in Multiple Jurisdictions:
(a) the Ontario Securities Commission is the principal regulator for this application; and
(b) the Filers have provided notice that section 4.7(1) of MI 11-102 is intended to be relied upon in all other nine provinces and three territories.
Interpretation
Defined terms contained in National Instrument 14-101 – Definitions have the same meaning in this decision unless they are defined in this decision.
Representations
This decision is based on the following facts represented by BNP Paribas and Société Fédérale de Participations et d’Investissement (SFPI):
- SFPI (Federal Participation and Investment Company) was formed under the laws of Belgium as a Belgian limited liability company of public interest wholly‑owned by the Belgian federal State. The social purpose of SFPI is (i) to promote, in the interest of the Belgian economy, and taking into account the industrial policy of the Belgian State, the creation, restructuring or expansion of private companies, (ii) to promote the public economic initiative, (iii) to contribute to the industrial policy of the Belgian Sate by implementing all missions entrusted to it by specific Acts or Royal Decrees deliberated on in Counsel of Ministers (Mission Déléguée/Gedelegeerde Opdracht) and (iv) to render opinions at the request of the federal government.
Within the framework of the rescue of the Fortis Group, as well as within the framework of the Transaction (as defined below), SFPI acted and will be acting pursuant to the mechanism of Mission Déléguée/Gedelegeerde Opdracht as referred to in 1. hereabove.
Faced with a mounting crisis and the need for immediate resolute action, Fortis Bank Belgium, the indirect parent of the Manager, agreed in late September 2008 to an investment by, and then, on beginning of October 2008, to a sale to the Belgian Sate, through SFPI.
SFPI held 99.93% of the capital and voting rights of Fortis Bank Belgium on October 10, 2008. On October 6, 2008, BNP Paribas announced the terms of a transaction with SFPI to take control of Fortis Bank Belgium (the Transaction).
The BNP Paribas Group (of which BNP Paribas is the parent company) is one of the top global players in financial services, with offices in 88 countries on six continents and over 155,000 employees.
BNP Paribas ranks among the top three largest banks in the world by asset size. As of June 30, 2008, BNP Paribas Group had consolidated assets of €1.817 billion.
It is expected that BNP Paribas will indirectly acquire control of the Manager on or about December 4, 2008.
The Fund is an open-end mutual fund trust established under the laws of Ontario pursuant to a declaration of trust dated February 4, 2005. Units of the Fund are currently offered to the public in each of the Jurisdictions pursuant to a simplified prospectus and annual information form each dated February 19, 2008, as amended.
The indirect acquisition of the Manager by SFPI did not result in any material changes to the management or administration of the Fund and none is expected before the indirect transfer of control to BNP Paribas.
It is not expected that the indirect acquisition of the Manager by BNP Paribas will initially result in any material changes to the management or administration of the Fund. The Manager will remain the manager, trustee and portfolio advisor of the Fund, and the fundamental investment objective of the Fund will remain the same.
The indirect acquisition of the Manager by SFPI did not result in any significant changes to the management structure of the Manager and none is expected before the transfer of indirect control to BNP Paribas.
It is not expected that the indirect acquisition of the Manager by BNP Paribas will immediately result in any significant changes to the management structure of the Manager. The Manager will initially continue to operate as a separate distinct business unit, substantially in the same manner as it is operated today with substantially the same personnel.
BNP Paribas has adequate depth and personnel to ensure that the Manager will initially continue to operate in substantially the same manner as it operates today, and that the Fund and the unitholders of the Fund will not be adversely affected as a result of the acquisition of the Manager by BNP Paribas.
Unitholders of the Fund were advised of the indirect acquisition of the Manager by BNP Paribas by notice dated October 6, 2008.
The Transaction requires prior authorization from the authorities regulating the banking, financial, and insurance industries in France and Belgium.
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.
“Darren McKall”
Assistant Manager – Investment Funds
Headnote
NP 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – approval granted for change of control of manager of a mutual fund – indirect change of control of manager as a result of acquisition of Belgian bank.
Applicable Legislative Provisions
National Instrument 81–102 Mutual Funds, subsection 5.5(2)