Headnote
National Policy 11-203 Process For Exemptive Relief Applications in Multiple Jurisdictions - Exemption from section 4.4 of NI 81-106 and Items 3.1(1), 3.1(7), 3.1(8), 4.1(1), 4.1(2), 4.2(1), 4.2(2) and 4.3(1)(a) of Part B of Form 81-106F1 and Items 3(1) and 4 of Part C of Form 81-106F1 to permit continuing funds further to an amalgamation to include in their annual and interim management reports of fund performance the financial highlights and past performance of the corresponding existing funds - Upon amalgamation, portfolio assets of existing funds to continue as portfolio assets referable to the continuing funds - Continuing funds to have same investment objectives, investment strategies, management fees, portfolio investment manager, and, at effective date of amalgamation, same portfolio assets as the existing funds - Financial data of existing funds is significant information that can assist investors in making decision to purchase or hold shares of continuing funds.
Applicable Legislative Provisions
National Instrument 81-106 Investment Fund Continuous Disclosure, sections 4.4 and 17.1
Form 81-106F1 Contents of Annual and Interim Management Report of Fund Performance, Items 3.1(1), 3.1(7), 3.1(8), 4.1(1), 4.1(2), 4.2(1), 4.2(2) and 4.3(1)(a) of Part B and Items 3(1) and 4 of Part C
March 17, 2010
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
AGF Investments Inc. (the Manager),
AGF All World Tax Advantage Group Limited (AWTAG),
AGF Canadian Growth Equity Fund Limited (AGF Growth),
AGF Canadian Resources Fund Limited (AGF Resources)
AGF Canadian Growth Equity Class, and AGF Canadian Resources Class
(collectively, Filers)
DECISION
Background
The principal regulator in the Jurisdiction has received an application from the Filers for a decision under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) granting an exemption from the following provisions of the Legislation to enable the AGF Canadian Growth Equity Class and AGF Canadian Resources Class (collectively, the Continuing Funds) to include in their annual and interim management reports of fund performance (MRFPs) the performance data and information derived from the financial statements (collectively, the Financial Data) of AGF Growth and AGF Resources (collectively, the Existing Funds) that are presented in the Existing Funds’ annual MRFPs for the year ended September 30, 2010 (the Existing Funds’ 2010 annual MRFPs"):
(a) Section 4.4 of NI 81-106 for the purposes of the relief requested from Form 81-106F1 -- Contents of Annual and Interim Management Report of Fund Performance ("Form 81-106F1") for the Continuing Funds;
(b) Items 3.1(1), 3.1(7), 3.1(8), 4.1(1) in respect of the requirement to comply with subsections 15.3(2) and 15.9(2)(d) of National Instrument 81-102 -- Mutual Funds ("N1 81-102"), 4.1(2), 4.2(1), 4.2(2) and 4.3(1)(a) of Part B of Form 81-106F1 for the Continuing Funds; and
(c) Items 3(1) and 4 of Part C of Form 81-106F1 for the Continuing Funds,
(collectively, 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 Filers have 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, Québec, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, The Northwest Territories, Yukon and Nunavut.
Interpretation
Terms defined in National Instrument 14-101 Definitions, NI 81-102 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 Filers:
The Filers
The head office of each of the Filers is located in Toronto, Ontario. The Filers are not in default of securities legislation in any jurisdiction of Canada.
The Manager, a corporation incorporated under the laws of Ontario, is the manager of AGF Growth, AGF Resources and all of the classes of AWTAG.
Each of AWTAG, AGF Growth and AGF Resources (collectively, the Corporations) is a mutual fund corporation incorporated under the laws of Ontario. Each of AGF Growth and AGF Resources offer only one class of shares. AWTAG offers currently 20 classes of shares. Each class of shares is issuable in more than one series.
All of the directors and officers of the Corporations are the same.
Each of the Corporations is a reporting issuer as defined in the securities legislation of each province and territory of Canada, operates in accordance with NI 81-102, and distributes its shares to the public pursuant to a simplified prospectus (SP) and annual information form (AIF).
For securities law purposes, each mutual fund is a separate share class.
The Amalgamation
On April 13, 2010, each of the Corporations will seek shareholder approval to amalgamate (the Amalgamation) to continue as a single mutual fund corporation known as AGF All World Tax Advantage Group Limited (Amalco).
On or about October 1, 2010 (the Effective Date), subject to having obtained the required shareholder and regulatory approvals for the Amalgamation, AGF Growth and AGF Resources will amalgamate with AWTAG.
The Amalgamation is intended to benefit investors by giving them a broader choice of mutual funds between which they may switch their investments on a tax-deferred basis.
Pursuant to the Amalgamation, each existing class and series of AWTAG will be an identical class with identical series, identical assets referable to such class and series, identical portfolio managers, identical fees and identical net asset values per class and per series in Amalco.
Pursuant to the Amalgamation, shareholders of the Existing Funds will become shareholders of two new classes (continuing funds) of Amalco to be known as AGF Canadian Growth Equity Class and AGF Canadian Resources Class. The Existing Funds and the corresponding Continuing Funds will be substantially similar, with the Continuing Funds having the same investment objectives, investment strategies, management fees, portfolio investment manager, and, at the Effective Date of the Amalgamation, the same portfolio assets as the Existing Funds.
Upon the Amalgamation, the portfolio assets of the Existing Funds will continue as portfolio assets referable to the Continuing Funds. The portfolio assets of the Continuing Funds will be maintained as a separate portfolio by Amalco for the exclusive benefit of the shareholders of the Continuing Funds, as they are for the other classes of Amalco.
Upon the Amalgamation, the portfolio assets referable to each series of shares of the Existing Funds will become referable to a corresponding series of shares of the Continuing Funds (each such series, a Replacement Series). The rights associated with each Replacement Series will be identical in all respects to the rights formerly associated with the corresponding series of shares of the Existing Funds. Upon the Amalgamation, for each share they held of an Existing Fund, shareholders will receive a share of the Replacement Series. The net asset value (NAV) of each such share of the Replacement Series will be equal to the NAV per share of the corresponding series of shares of the Existing Fund.
As a result, notwithstanding the merger by way of Amalgamation, the Continuing Funds will be managed substantially similarly to the Existing Funds.
The Continuing Funds will be new funds and do not have any assets or liabilities and do not have their own Financial Data as at the Effective Date. In order for the merger by way of Amalgamation to be as seamless as possible for investors in the Existing Funds and the Continuing Funds, the Manager proposes that the Continuing Funds MRFPs’ include the Financial Data presented in the Existing Fund's 2009 annual MRFPs.
Prior to the Amalgamation, the Existing Funds were operated in accordance with the requirements of National Instrument 81-102 and distributed their shares to the public pursuant to a prospectus and had been reporting issuers for at least 12 months.
Immediately prior to the Amalgamation, an amendment to AWTAG's SP and AIF will be filed relating to the Amalgamation and the new AGF Canadian Growth Equity Class and AGF Canadian Resources Class.
The Existing Funds will file and deliver annual financial statements and an annual MRFP for its financial year ended September 30, 2010 within 90 days as required under NI 81-106.
The Continuing Funds’ financial year-end going forward will be September 30.
The Continuing Funds will prepare comparative interim and annual financial statements for 2011 under section 2.1 of NI 81-106 using the Existing Funds' annual financial statements for the year ended September 30, 2010. The Continuing Funds will file their first comparative interim financial statements within 60 days of March 31, 2011 as required under NI 81-106.
The Financial Data of each series of the Existing Funds is significant information which can assist investors in determining whether to purchase or hold shares of the corresponding Replacement Series.
The Filers have filed a separate application for exemptive relief from certain provisions of (a) NI 81-102 to permit the Continuing Funds to use performance data of the Existing Funds in sales communications and reports to securityholders (the Fund Communications) and (b) National Instrument 81-101 -- Mutual Fund Prospectus Disclosure and Form 81-101F1 -- Contents of Simplified Prospectus to permit the Continuing Funds to disclose the start dates of the Existing Funds as their respective start dates (NI 81-102 and NI 81-101 Relief).
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) The Existing Funds prepare annual financial statements under section 2.1 of NI 81-106 for the year ended September 30, 2010.
(b) The MRFP for each Replacement Series includes the Financial Data of the corresponding series of the Existing Funds and discloses the merger by way of Amalgamation for the relevant time periods.
(c) The Continuing Funds prepare their simplified prospectuses and other Fund Communications in accordance with the NI 81-102 and NI 81-101 Relief.
“Rhonda Goldberg”
Rhonda Goldberg
Manager, Investment Funds
Ontario Securities Commissions