March 14, 2024
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 EMBARK STUDENT CORP. (the “Filer”)
AND
IN THE MATTER OF The FLEX FIRST PLAN and the FAMILY SINGLE STUDENT EDUCATION SAVINGS PLAN (the “Terminating Plans”)
DECISION
Background
The principal regulator in the Jurisdiction has received an application from the Filer, on behalf of the Terminating Plans, for a decision under the securities legislation of the Jurisdiction (the “Legislation”) that the time limits for the renewal of the prospectus of each Terminating Plan dated May 8, 2023 (together, the “Current Prospectus”) be extended to the time limits that would apply if the lapse date was July 1, 2024 (the “Exemption Sought”).
Under National Policy 11-203 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 by the Filer and the Terminating Plans in Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, Prince Edward Island, Québec, Saskatchewan and Yukon (together with Ontario, the “Jurisdictions”).
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.
Representations
This decision is based on the following facts represented by the Filer:
The Filer
The Filer is a corporation amalgamated under the Canada Business Corporations Act having its head office in Mississauga, Ontario.
The Filer is registered as a scholarship plan dealer in each of the provinces and territories of Canada and an investment fund manager in Ontario, Québec and Newfoundland and Labrador.
The Filer is the investment fund manager and scholarship plan dealer of the Terminating Plans and Embark Student Foundation is the sponsor of the Terminating Plans.
The Filer is not in default of securities legislation in any of the Jurisdictions.
The Terminating Plans
Each Terminating Plan is a reporting issuer in the Jurisdictions in which its securities are distributed.
Securities of the Terminating Plans are qualified for sale in each of the Jurisdictions under the Current Prospectus, which has been prepared in accordance with National Instrument 41-101 General Prospectus Requirements (NI 41-101).
At the special meeting of the unitholders of the Terminating Plans held on December 12, 2023, the Filer received approval to wind up the Terminating Plans and transfer the existing assets of the Terminating Plans to the Embark Student Plan and Embark Select Conservative Plan (collectively, the “Embark Plans”) by July 1, 2024.
All the assets of the Terminating Plans will be transferred to the Embark Plans on July 1, 2024 (the “Termination Date”) and thereafter, the Terminating Plans will be terminated.
Current unitholders may subscribe for or purchase securities of the Terminating Plans directly from the Filer in accordance with existing contribution schedules. The Filer ceased to sell units of the Terminating Plans to new customers as of March 1, 2023 when it began offering units of the Embark Plans under the initial prospectus for those plans dated February 6, 2023. The application is being made in order to preserve these existing contribution schedules after May 8, 2024 and until the Termination Date.
Pursuant to section 62(1) of the Securities Act (Ontario) (the “Act”), the lapse date for the Current Prospectus is May 8, 2024 (the “Current Lapse Date”). Accordingly, if a new prospectus for each Terminating Plan is not otherwise filed and receipted by the Current Lapse Date, under section 62(2) of the Act, the distribution of securities of each of the Terminating Plans would have to cease on the Current Lapse Date unless: (i) the Terminating Plans file a pro forma prospectus at least 30 days prior to the Current Lapse Date; (ii) the final prospectus is filed no later than 10 days after the Current Lapse Date; and (iii) a receipt for the final prospectus is obtained within 20 days after the Current Lapse Date.
The Terminating Plans are not in default of securities legislation in any of the Jurisdictions.
The Exemption Sought
The Exemption Sought will allow the Filer to avoid incurring unnecessary costs and any confusion that may result from renewing the Terminating Plans under the Current Prospectus and later terminating the Terminating Plans.
There have been no undisclosed material changes in the business, operations or affairs of each Terminating Plan since the date of the Current Prospectus. Accordingly, the Current Prospectus represents current information regarding the applicable Terminating Plan.
Given the disclosure obligations of the Filer and the Terminating Plans, should any material change in the business, operations or affairs of the Terminating Plans occur, the Current Prospectus of the Terminating Plans will be amended as required under the Legislation.
The Exemption Sought will not affect the currency or accuracy of the information contained in the Current Prospectus of each Terminating Plan and therefore will not be prejudicial to the public interest.
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 Manager, Investment Funds and Structured Products Ontario Securities Commission
App# 2024/0064 SEDAR Project# 6081415