Headnote
NP 11-203 - Approval granted for change of manager of a mutual fund – subsection 5.5(1)(a) of National Instrument 81-102 Mutual Funds – change of manager will not result in any material changes to the management and administration of the Fund – unitholders have received timely and adequate disclosure regarding the change of manager and the change is not detrimental to unitholders or the public interest.
Applicable Legislative Provisions
National Instrument 81-102 Mutual Funds, section 5.5(1)(a), section 5.7, and section 19.1
November 28, 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 frontierAlt Funds Management Limited (the “Filer”) frontierAlt Opportunistic Global Fund
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 a change of manager of frontierAlt Opportunistic Global Fund (the “Fund”) from the Filer to Ark Fund Management Ltd. (“Ark”) under Section 5.5(1)(a) of National Instrument 81-102 Mutual 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 British Columbia, Alberta, Saskatchewan, Manitoba, Quebec, Nova Scotia, Prince Edward Island, New Brunswick and Newfoundland and Labrador.
Interpretation
Terms defined in National Instrument 41-101 Definitions and MI 11-102 have the same meaning if used in this decision, unless otherwise defined.
Representations
This decision is based on the following facts represented by the Filer:
The Filer is the manager and trustee of the Fund.
The Filer is a corporation incorporated under the Canada Business Corporations Act and is not in default of securities legislation in any jurisdiction of Canada.
The Fund is an open-end investment trust governed by an amended and restated declaration of trust dated as of April 20, 2006, as amended by amendment no. 1 thereto dated January 31, 2008, under the laws of the province of Ontario.
The Fund is a reporting issuer in all of the provinces of Canada and is not in default of securities legislation in any jurisdiction of Canada.
The units of the Fund currently are offered under a combined simplified prospectus and annual information form each dated June 11, 2008, as amended by amendment no. 1 thereto dated October 29, 2008, prepared in accordance with National Instrument 81-101 Mutual Fund Prospectus Disclosure, and subject to NI 81-102.
The Filer and Ark entered into an agreement on October 29, 2008 pursuant to which Ark will become the trustee and manager of the Fund effective on or about December 1, 2008 (the “Effective Date”), subject to receipt of all necessary regulatory and unitholder approvals and the satisfaction of all other conditions precedent to the proposed transaction. On the Effective Date, the name of the Fund is expected to be changed by Ark to “Ark NorthRoad Global Fund” and the portfolio advisor of the Fund will be changed to NorthRoad Capital Management LLC.
The Filer will have no further responsibilities in respect of the Fund after the Effective Date. The Filer will continue to act as manager for certain other open-end funds that are not relevant to the transaction between the Filer and Ark.
A press release, amendments to the simplified prospectus and annual information form of the Fund and a material change report have been filed in connection with the announcement of the change of manager.
Ark was incorporated under the laws of the Province of Ontario by articles of incorporation dated November 2, 2001. Ark’s head office is located at 120 Adelaide Street West, Suite 2400, P.O. Box 23, Toronto, Ontario, M5H 1T1. Ark is not in default of securities legislation in any jurisdiction of Canada.
Ark Financial Holdings Inc., a holding company controlled by Mr. Peter J. Shippen, is the sole shareholder of Ark.
Ark is registered under the Securities Act (Ontario) as a limited market dealer.
Ark is the manager of the Ark Aston Hill Funds, a family of mutual funds currently offered under a combined simplified prospectus and annual information form each dated January 16, 2008.
The Filer considers that the experience and integrity of each of the members of the Ark current management team is apparent by their education and years of experience in the investment industry and has been established and accepted through the granting of registration status.
Other than changing the portfolio advisor of the Fund to NorthRoad Capital Management LLC, Ark intends to administer the Fund in substantially the same manner as the Filer. There is no intention to change the investment objectives or fees and expenses of the Fund. All material agreements regarding the administration of the Fund will either be assigned to Ark by the Filer or Ark will enter into new agreements as required. In either case, the material terms of the material agreements of the Fund will remain the same.
At a special meeting of unitholders of the Fund held on November 25, 2008, unitholders of the Fund approved the change of manager. A notice of meeting and a management information circular was mailed to unitholders of the Fund no later than November 3, 2008 and filed on SEDAR in accordance with applicable securities legislation. The resignation of the Filer as trustee and manager of the Fund will be effective on the Effective Date. On that date, Ark will assume the roles of trustee and manager of the Fund under the existing amended and restated declaration of trust and amended and restated management agreement, respectively, of the 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.
“R. Goldberg”
Rhonda Goldberg Manager, Investment Funds Branch Ontario Securities Commission
SEDAR # 1336156