Headnote National Policy 11-203 – Process for Exemptive Relief Applications in Multiple Jurisdictions – Novel relief granted to facilitate the offering of exchange-traded series and conventional mutual fund series within same fund structure – Relief granted from the requirement in NI 41-101 to prepare and file a long form prospectus for exchange-traded series provided that a simplified prospectus is prepared and filed in accordance with NI 81-101 – Exchange-traded series and mutual fund series referable to same portfolio and have substantially identical disclosure – Relief permitting all series of funds to be disclosed in same prospectus – Disclosure required by NI 41-101 for exchange-traded series and not contemplated by NI 81-101 will be disclosed in prospectus under relevant headings.
Applicable Legislative Provisions
National Instrument 41-101 General Prospectus Requirements, s. 19.1.
August 2, 2013
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 PURPOSE INVESTMENTS INC. (the Filer)
Decision
I. Background
The principal regulator in the Jurisdiction has received an application from the Filer on behalf of the Purpose Core Dividend Fund, Purpose Tactical Hedged Equity Fund, Purpose Monthly Income Fund, Purpose Total Return Bond Fund (collectively, the Existing Funds), each Existing Fund being a separate class of shares of Purpose Fund Corp., and any additional funds of which the Filer will be the manager and which are structured in the same manner as the Existing Funds (the Future Funds and together with the Existing Funds, the Funds) for a decision under the securities legislation of the Jurisdiction (the Legislation) granting, in accordance with the terms of this decision, relief from National Instrument 41-101 General Prospectus Requirements (NI 41-101) to prepare and file a long form prospectus for the ETF Shares (defined below) in the form prescribed by Form 41-101F2 Information Required in an Investment Fund Prospectus provided that the Filer files a prospectus for the ETF Shares in accordance with the provisions of National Instrument 81-101 Mutual Fund Prospectus Disclosure (NI 81-101), other than the requirements pertaining to the filing of a fund facts document (the Requested Relief).
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 all of the provinces and territories of Canada other than Ontario (together with Ontario, the Jurisdictions).
II. 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.
(a) Basket means, in relation to the ETF Shares of a Fund, a group of securities or assets representing the constituents of the Fund.
(b) Designated Broker means a registered dealer that enters into an agreement with the Filer or an affiliate of the Filer on behalf of a Fund to perform certain duties in relation to the ETF Shares of the Fund.
(c) Exchange means the Toronto Stock Exchange (TSX) or another stock exchange recognized by the Ontario Securities Commission.
(d) Prescribed Number of ETF Shares means, in relation to a Fund, the number of ETF Shares of the Fund determined from time to time for the purpose of subscription orders, exchanges, redemptions or for other purposes.
(e) Shareholder means a holder of one or more ETF Shares or Mutual Fund Shares of a Fund.
(f) Dealer means a registered dealer (that may or may not be a Designated Broker) that enters into a continuous distribution agreement with the Filer or an affiliate of the Filer on behalf of a Fund, pursuant to which the Dealer may subscribe for and purchase ETF Shares from the Fund.
Unless otherwise specified, all references to money amounts are to the lawful currency of Canada.
III. Representations
This decision is based on the following facts represented by the Filer.
The Filer is a corporation incorporated under the laws of the Jurisdiction.
The registered office of the Filer is located at 77 King Street West, TD North Tower, 21st Floor, Toronto, Ontario.
The Filer is registered as an investment fund manager, portfolio manager and an exempt market dealer under the Securities Act (Ontario).
The manager of each Fund will be the Filer or an affiliate thereof.
The Filer is not in default of securities legislation in any of the Jurisdictions.
Each of the Funds is a separate class of shares of Purpose Fund Corp. Purpose Fund Corp. is a mutual fund corporation established under the laws of the Province of Ontario. The authorized capital of Purpose Fund Corp. includes an unlimited number of classes of non-cumulative, redeemable, non-voting shares. Each class of shares consists of four series, namely, Series A shares, Series F shares, Series I shares (collectively, the “Mutual Fund Shares”) and exchange-traded series (the “ETF Shares”). ETF Shares of each Fund will be listed on the TSX and will be available to all investors. Each corporate class is a separate investment fund having specific investment objectives and is specifically referable to a separate portfolio of investments.
The Funds are or will be mutual funds governed by the laws of Ontario and each Fund will be a reporting issuer under the laws of all of the Jurisdictions. Each Fund offers or will offer ETF Shares and Mutual Fund Shares.
Each Fund is, or will be, subject to NI 81-102 Mutual Funds (NI 81-102), subject to any exemptions therefrom that have been, or may be, granted by the applicable securities regulatory authorities.
The Funds filed in accordance with NI 41-101 a preliminary long form prospectus dated May 1, 2013 with respect to the proposed offering of ETF Shares.
The Funds filed in accordance with NI 81-101 a preliminary simplified prospectus and annual information form dated May 1, 2013 with respect to the proposed offering of Mutual Fund Shares.
The Filer has applied to list the ETF Shares of the Existing Funds on the TSX. The Filer will not file a final prospectus for any of the Funds in respect of the ETF Shares until the TSX or another recognized stock exchange has conditionally approved the listing of ETF Shares.
Mutual Fund Shares may be subscribed for or purchased directly from a Fund through qualified financial advisors or brokers.
ETF Shares may be subscribed for or purchased directly from a Fund by Dealers or Designated Brokers and orders may be placed for ETF Shares in the Prescribed Number of ETF Shares or an integral multiple thereof.
Each Fund will appoint one or more Designated Brokers to perform certain functions, which include standing in the market with a bid and ask price for ETF Shares for the purpose of maintaining liquidity for ETF Shares.
Each Dealer or Designated Broker that subscribes for ETF Shares will deliver, in respect of each Prescribed Number of ETF Shares to be issued, a Basket or cash in an amount sufficient so that the value of the Basket or cash delivered is equal to the NAV of the ETF Shares next determined following the receipt of the subscription order.
Neither the Dealers nor the Designated Brokers will receive any fees or commissions in connection with the issuance of ETF Shares to them. On the issuance of ETF Shares, an administrative fee may be charged to a Dealer or Designated Broker to offset the expenses (including any applicable TSX additional listing fees) incurred in issuing the ETF Shares.
Except as described above, ETF Shares may not generally be purchased directly from a Fund. Investors will generally be expected to purchase ETF Shares through the facilities of the applicable Exchange. ETF Shares may be issued directly to Shareholders upon a reinvestment of dividends or switch from the ETF Shares of one Fund to the ETF Shares of another Fund.
Shareholders that are not Designated Brokers or Dealers that wish to dispose of their ETF Shares will generally be able to do so by selling their ETF Shares on the applicable Exchange, through a registered dealer, subject only to customary brokerage commissions. A Shareholder that holds a Prescribed Number of ETF Shares of a Fund or an integral multiple thereof will be able to exchange such ETF Shares with the Fund for cash and/or Baskets. A Shareholder will also be able to redeem ETF Shares for cash at a redemption price equal to 95% of the closing price of the ETF Shares on the applicable Exchange on the date of redemption.
The Filer believes it is more efficient and expedient to include all of the series of each Fund in one prospectus form instead of two different prospectus forms and that this presentation will assist in providing full, true and plain disclosure of all material facts relating to the shares of the Funds by permitting disclosure relating to all series of shares to be included in one prospectus.
The Filer will ensure that any additional disclosure included in the simplified prospectus and annual information form relating to the ETF Shares will not interfere with an investor’s ability to differentiate between the Mutual Fund Shares and the ETF Shares and their respective attributes.
The Funds will file summary documents for the ETF Shares in connection with the filing of any prospectus.
The Funds will comply with the provisions of NI 81-101 when filing any amendment or pro forma prospectus.
IV. 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 Requested Relief is granted, provided that:
(a) the Filer files a simplified prospectus and annual information form in respect of the ETF Shares in accordance with the requirements of NI 81-101, other than the requirements pertaining to the filing of a fund facts document;
(b) the Filer includes disclosure required pursuant to Form 41-101F2 (that is not contemplated by Form 81-101F1 Contents of Simplified Prospectus or Form 81-101F2 Contents of Annual Information Form) in respect of the ETF Shares, in each Fund’s simplified prospectus and/or annual information form, as applicable; and
(c) the Filer includes disclosure regarding this decision under the heading “Additional Information” and “Exemptions and Approvals” in each Fund’s simplified prospectus and annual information form, respectively.
“Raymond Chan”
Raymond Chan Manager, Investment Funds Ontario Securities Commission