One time trade of securities between a non-redeemable investment fund and an affiliated fund, both advised by the same portfolio manager, to implement a merger -- costs of the merger borne by the manager -- sale of securities exempt from the self-dealing prohibitions in paragraph s.13.5(2)(b)(iii), National Instrument 31-103 -- Registration Requirements and Exemptions.
Applicable Legislative Provisions
National Instrument 31-103 Registration Requirements and Exemptions, ss.13.5(2)(b)(iii), 15.1.
June 30, 2010
IN THE MATTER OF
THE SECURITIES LEGISLATION OF QUÉBEC
IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF
APPLICATIONS IN MULTIPLE JURISDICTIONS
IN THE MATTER OF
STANTON ASSET MANAGEMENT INC.
O'LEARY GLOBAL INCOME OPPORTUNITIES
FUND (the Terminating Fund) AND O'LEARY
GLOBAL YIELD OPPORTUNITIES FUND (formerly
called O'Leary Global Balanced Yield Fund)
(the Continuing Fund, and together with the
Terminating Fund, the Funds)
The securities regulatory authority or regulator in each of the Jurisdictions (Decision Maker) has received an application from the Filer for a decision under the securities legislation of the Jurisdictions (the Legislation) for exemptive relief from Section 13.5(2)(b)(iii) of National Instrument 31-103 -- Registration Requirements and Exemptions (NI 31-103) in connection with the transfer of the investment portfolio of the Terminating Fund to the Continuing Fund in order to implement the merger (the Merger) of the Terminating Fund into the Continuing Fund (the Exemption Sought).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a dual application):
(a) L'Autorité des marchés financiers is the principal regulator (the Principal Regulator) for this application;
(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, New Brunswick, Prince Edward Island, Nova Scotia and Newfoundland and Labrador; and
(c) the decision is the decision of the Principal Regulator and evidences the decision of the securities regulatory authority or regulator in Ontario.
Terms defined in MI 11-102 and National Instrument 14-101 -- Definitions have the same meaning if used in this decision, unless otherwise defined.
This decision is based on the following facts represented by the Filer:
1. The Filer is a corporation existing under the Canada Business Corporations Act with its head office in Montreal, Quebec.
2. The Filer is registered as a portfolio manager under the securities legislation of each of Québec and Ontario.
3. The Filer is not in default of securities legislation in any Canadian jurisdiction.
4. The Filer is the portfolio manager of each Fund and O'Leary Funds Management LP (the "Manager") is the manager of each Fund.
5. The Manager proposes to effect the Merger of the Terminating Fund into the Continuing Fund, subject to regulatory approval, on or about August 16, 2010 (the "Merger Date").
6. Each Fund was established pursuant to a declaration of trust under the laws of the Province of Ontario.
7. The Funds are reporting issuers under the securities legislation of each province of Canada and are not on the list of defaulting reporting issuers maintained under such legislation.
8. Unless an exemption has been obtained, each of the Funds follows the standard investment restrictions and practices established under the applicable securities legislation of each province of Canada.
9. The Terminating Fund is a "non-redeemable investment fund" as defined in the Legislation and units of the Terminating Fund (the "Units") are listed on the Toronto Stock Exchange ("TSX").
10. The Terminating Fund was established under the laws of the Province of Ontario pursuant to a declaration of trust dated January 29, 2009 (the "Terminating Fund Declaration") and completed its initial public offering on February 27, 2009.
11. The Continuing Fund is a "mutual fund" as defined in the Legislation and currently offers series A, F, H, I, and M units pursuant to an amended and restated simplified prospectus dated December 22, 2009, as further amended on March 26, 2010 and on June 3, 2010 (the "Prospectus").
12. The Continuing Fund proposes to file the amendments to its simplified prospectus and annual information form to qualify the series X units to be used in the Merger prior to the Merger Date.
13. Series X units of the Continuing Fund will have a distribution policy which seeks to provide unitholders with monthly distributions.
14. The investment objectives of the Terminating Fund are (a) to maximize total return for unitholders consisting of interest and dividend income and capital appreciation, and (b) to provide unitholders with monthly distributions.
15. Currently, the investment objectives of the Continuing Fund are "to generate income and long-term capital growth by investing primarily in a broadly diversified portfolio of common equity and fixed income securities of public global issuers. The Fund will not be limited to how much it can invest or keep invested in a country or sector. This will vary according to market conditions."
16. Prior to the Merger, the Manager proposes to amend the investment objectives of the Continuing Fund so that the investment objectives of the Continuing Fund are more similar to the investment objectives of the Terminating Fund on the Merger Date. It is proposed that the investment objectives of the Continuing Fund will be as follows:
"The Fund's objectives are to invest globally primarily in publicly-traded corporate bonds, convertible debt securities, preferred shares and dividend-paying equity securities of issuers having market capitalizations of at least $1 billion in order to maximize total return for unitholders consisting of interest and dividend income and capital appreciation. The Fund will seek to provide unitholders with periodic distributions in accordance with the distribution policy established for each series."
17. The Manager is the sole unitholder of the Continuing Fund. Units of the Continuing Fund will not be sold to investors until following the Merger and so the Manager will be the only unitholder in the Continuing Fund prior to the Merger.
18. As sole unitholder of the Continuing Fund, the Manager will approve the investment objective change and proposed Merger in respect of the Continuing Fund.
19. The Merger will be a material change for the Continuing Fund, as the net asset value ("NAV") of the Continuing Fund is smaller than the NAV of the Terminating Fund.
20. The NAV for units of each Fund is calculated on a daily basis on each day that the TSX is open for trading.
21. The board of directors of O'Leary Funds Management Inc., the general partner of the Manager, has approved the Merger. A press release in respect of the Merger was issued and filed on SEDAR under the profile of each Fund on June 4, 2010, material change reports were filed on SEDAR under the profile of each Fund on June 11, 2010 and an amendment to the simplified prospectus and annual information form of the Continuing Fund was filed via SEDAR on June 4, 2010.
22. The Merger will be effected in accordance with the "permitted merger" provision set out in the Terminating Fund Declaration. This provision provides that the Manager may, without obtaining Unitholder approval and subject to TSX approval, merge the Terminating Fund with another fund or funds, provided that:
(a) the fund(s) with which the Fund is merged must be managed by the Manager or an affiliate of the Manager (the "Affiliated Fund(s)");
(b) Unitholders are permitted to redeem their Units at a redemption price equal to 100% of the NAV per Unit, less any costs of funding the redemption, including commissions, prior to the effective date of the merger;
(c) the funds being merged have similar investment objectives as set forth in their respective declarations of trust, as determined in good faith by the Manager and by the manager of the Affiliated Funds in their sole discretion;
(d) the Manager must have determined in good faith that there will be no increase in the management expense ratio borne by the Unitholders as a result of the merger;
(e) the merger of the funds is completed on the basis of an exchange ratio determined with reference to the NAV per Unit of each fund; and
(f) the merger of the funds must be capable of being accomplished on a tax-deferred rollover basis for unitholders of each of the funds.
If the Manager determines that a merger is appropriate and desirable, the Manager can effect the merger, including any required changes to the Terminating Fund Declaration, without seeking Unitholder approval for the merger or such amendments. If a decision is made to merge, the Manager must issue a press release at least thirty (30) business days prior to the proposed effective date thereof disclosing details of the proposed merger.
23. No TSX approval is required for the Merger. However, the Terminating Fund will need to comply with the requirements of the TSX to delist.
24. As required by National Instrument 81-107 -- Independent Review Committee for Investment Funds ("NI 81-107"), an Independent Review Committee ("IRC") has been appointed for each of the Funds. The Manager presented the terms of the Merger to the IRC and obtained the IRC's approval of the Merger.
25. All costs and expenses associated with the Merger will be borne by the Manager. No sales charges, redemption fees or other fees or commissions will be payable by unitholders of the Funds in connection with the Merger.
26. The Merger will be implemented on a tax-deferred basis after the expiry of the annual redemption notice period of the Terminating Fund.
27. The Merger is expected to take place using the following steps:
(a) Prior to the Merger Date, the Terminating Fund will sell any securities in its portfolio necessary to meet redemption requests.
(b) Effective as of close of business on or about July 26, 2010, the Units of the Terminating Fund will be de-listed from the TSX.
(c) The value of the Terminating Fund's portfolio and other assets will be determined at the close of business on the Merger Date in accordance with the Terminating Fund Declaration.
(d) The Continuing Fund will acquire the investment portfolio and other assets of the Terminating Fund in exchange for Series X Units of the Continuing Fund.
(e) The Continuing Fund will not assume liabilities of the Terminating Fund and the Terminating Fund will retain sufficient assets to satisfy its estimated liabilities, if any, as of the Merger Date.
(f) The Series X Units of the Continuing Fund received by the Terminating Fund will have an aggregate NAV equal to the value of the Terminating Fund's portfolio assets and other assets that the Continuing Fund is acquiring, and the Series X Units will be issued at their applicable series NAV per unit as of the close of business on the Merger Date.
(g) The Terminating Fund will distribute to its unitholders a sufficient amount of its net income and net realized capital gains so that it will not be subject to tax under Part I of the Tax Act for its taxation year ending on the Merger Date.
(h) Immediately thereafter, the Terminating Fund will be terminated and the Series X Units of the Continuing Fund received by the Terminating Fund will be distributed to unitholders of the Terminating Fund on a dollar for dollar basis in exchange for their Units in the Terminating Fund.
(i) As soon as reasonably possible following the Merger, the Terminating Fund will be wound up.
(j) The Manager will issue a press release forthwith after the Merger is completed announcing the completion of the Merger and the ratio by which Units of the Terminating Fund were exchanged for Series X Units.
28. The Terminating Fund is, and following the Merger, the Continuing Fund is expected to be, a mutual fund trust under the Income Tax Act (Canada) ("Tax Act") and accordingly, Units of the Funds are or are expected to be "qualified investments" under the Tax Act for registered retirement savings plans, registered retirement income funds, deferred profit sharing plans, registered disability savings plans, registered education savings plans and tax-free savings accounts.
29. The Filer is a "responsible person" as defined in the Legislation as a result of being the portfolio manager of the Funds.
30. The transfer of the investment portfolio of the Terminating Fund to the Continuing Fund (and the corresponding purchase of such investment portfolio by the Continuing Fund) as a step in the Merger may be considered a purchase or sale of securities, knowingly caused by a registered adviser that manages the investment portfolio of the Funds, from or to the investment portfolio of an investment fund for which a "responsible person" acts as an adviser, contrary to NI 31-103.
31. The Merger would comply with the exemption from section 13.5(2)(b) of NI 31-103 provided in section 6.1 of NI 81-107 but for subsection 6.1(2)(f). The Filer will not effect the transfer of assets from the Terminating Fund to the Continuing Fund in accordance with the "market integrity requirements" (as such term is defined in section 6.1(1) of NI 81-107), because the purchase and sale of such assets will be effected directly between the Terminating Fund and the Continuing Fund.
32. In the absence of this order, the Filer would be prohibited from purchasing and selling the securities of the Terminating Fund (and thereby transferring the investment portfolio of the Terminating Fund to the Continuing Fund) in connection with the Merger.
33. In the opinion of the Filer, the Merger will not adversely affect unitholders of the Terminating Fund or the Continuing Fund and will in fact be in the best interests of Unitholders of the Terminating Fund. The Filer believes that the Merger will be beneficial to Unitholders for the following reasons:
(a) The Continuing Fund has the potential to have a larger portfolio, as the Continuing Fund will be in continuous distribution, and so should offer improved portfolio diversification to Unitholders;
(b) Series X Units of the Continuing Fund will have greater liquidity through daily purchases and redemptions than Units of the Terminating Fund and the Merger will eliminate the discount to NAV for the Terminating Fund;
(c) Management fees for the Terminating Fund will be the same as the management fees for the Series X Units of the Continuing Fund; and
(d) The Continuing Fund allows greater unitholder flexibility with respect to switches, reclassifications and conversions.
Each of the Decision Makers is satisfied that the decision meets the test set out in the Legislation for the Decision Maker to make the decision.
The decision of the Decision Makers is that the Exemption Sought is granted provided that:
(a) upon a request by a Unitholder for financial statements, the Filer will make best efforts to provide the unitholder with financial statements of the Continuing Fund; and
(b) the Terminating Fund and the Continuing Fund with respect to a Merger have an unqualified audit report in respect of their last completed financial period.
The Director, Distribution -- SROs, Compensation and Practices