Exemptive Relief Applications - application for mutual fund prospectus lapse date extension.
Applicable Ontario Provisions:
Securities Act, R.S.O. 1990, c. S.5, s. 62(5).
April 22, 2005
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
BRITISH COLUMBIA, ALBERTA, SASKATCHEWAN, MANITOBA, ONTARIO, QUEBEC, NEW BRUNSWICK, NOVA
SCOTIA, PRINCE EDWARD ISLAND, NEWFOUNDLAND AND LABRADOR, YUKON TERRITORY AND NUNAVUT
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEW SYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
IN THE MATTER OF
ING CANADIAN DIVIDEND FUND
MRRS DECISION DOCUMENT
WHEREAS the Canadian securities regulatory authority or regulator (the "Decision Maker") in each of the provinces and territories of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, Yukon Territory and Nunavut (the "Jurisdictions") has received an application (the "Application") from ING Investment Management, Inc. ("ING IM"), manager of the Fund for a decision pursuant to securities legislation of the Jurisdictions (the "Legislation") that the time limits pertaining to the distribution of the Investor Class Units, Exclusive Class Units and Institutional Class Units (collectively, the "Units") under the simplified prospectus and annual information form (the "Prospectus") of the Fund dated April 22, 2004 be extended to the time limits that would be applicable if the lapse dates were July 31, 2005;
AND WHEREAS under the Mutual Reliance Review System for Exemptive Relief Applications (the "System") the Ontario Securities Commission is the principal regulator for the Application;
AND WHEREAS the Funds have represented to the Decision Makers that:
1. The Fund is a trust governed by the laws of Ontario pursuant to a declaration of trust (the "Declaration of Trust") dated December 12, 2000, as amended and restated November 1, 2001 as further amended, and to which the ING Canadian Dividend Income Fund was added on April 14, 2003.
2. ING IM is the manager of the Fund.
3. The Fund currently distributes its Units in each Jurisdiction pursuant to the Prospectus.
4. The Fund is a reporting issuer as defined in the securities legislation of each Jurisdiction and is not in default of any of the requirements of such legislation.
5. Pursuant to the Legislation or the regulations made thereunder, the lapse date (the "Lapse Date") for the distribution of the Units is April 22, 2005 in all Jurisdictions except in Quebec and April 23, 2005 in Quebec.
6. Pursuant to the Legislation or the regulations made thereunder, the Fund is required to file its pro forma renewal prospectus (the "Pro Forma Renewal Prospectus") and pro forma renewal annual information form (the "Pro Forma Renewal AIF") (the Pro Forma Renewal Prospectus and the Pro Forma Renewal AIF, collectively, the "Pro Forma Renewal Documents") on or before March 23, 2005 in all Jurisdictions except in Quebec and on or before March 24, 2004 in Quebec.
7. In a press release dated March 30, 2005, ING IM announced that an agreement (the "Agreement") has been entered into between ING IM and AGF Funds Inc. ("AGF") providing for, among other things, the mergers of mutual funds managed by ING IM into certain mutual funds ("AGF Funds") managed by AGF (the "Mergers").
8. As part of the Agreement, it is proposed that (i) the manager of the Fund be changed from ING IM to AGF Funds Inc. ("AGF"); (ii) the auditors of the Fund be changed from Ernst and Young LLP to Pricewaterhouse Coopers LLP; (iii) the declaration of trust of the Fund be replaced with the master trust agreement of AGF so that the Fund can be added to the master trust agreement in common with other funds managed by AGF and the trustee of the Fund be changed from Natcan Trust Company to AGF; (iv) ther termsn under which deferred sales charges payable be changed such that they will be identical with the terms under which AGF currently charges deferred sales charges in connection with redemptions from other AGF Funds; and (v) such other changes as will be disclosed in the management information circular relating to the Meeting (as defined below), which may include fee increases (the "Fund Amendments") (together with the Mergers, the "Transactions").
9. On April 8, 2005, amendments to the Prospectus were filed with the securities regulatory authority of each Jurisdiction to reflect the proposed Fund Amendments.
10. At a meeting of unitholders of the Fund (the "Unitholders") scheduled to be held on June 8, 2005 (the "Meeting"), Unitholders will be asked, among other things, to approve the Fund Amendments. If Unitholders approve the Fund Amendments, it is proposed that they will take effect after the close of business on August 5, 2005, subject to regulatory approvals.
11. The Meeting materials, which include a notice of the Meeting and a management information circular of the Fund will be mailed to Unitholders and filed on SEDAR in May, 2005.
12. The Fund seeks to extend the Lapse Date to July 31, 2005 in order to have the time to incorporate any changes approved by Unitholders at the Meeting (the "Approved Changes") and the closing of the Transactions in the Pro Forma Renewal Documents and the Final Renewal Documents (as defined below).
13. There have been and are expected to be no material changes in the affairs of the Fund since the filing of the Prospectus other than those for which amendments regarding the Transactions will be filed. Accordingly, the Prospectus and the amendments thereto represent current information regarding the Fund. The requested lapse date extension will not affect the accuracy of information in the Prospectus, as amended, and therefore will not be prejudicial to the public interest.
14. Without an extension to the Lapse Date, the Fund will have to file the Pro Forma Renewal Documents not later than March 23, 2005 in all Jurisdictions except in Quebec and March 24, 2005 in Quebec and file amended Pro Forma Renewal Documents again shortly thereafter at the time when the Transactions are publicly announced, resulting in increased costs and time involved in preparing, printing and distributing the Pro Forma Renewal Documents.
15. Furthermore, without an extension to the Lapse Date, the Fund will not be able to include the outcome of the Meeting in the final renewal prospectus and annual information form (collectively, the "Final Renewal Documents"), which are due for filing not later than May 2, 2005 in all Jurisdictions except in Quebec and not later than May 3, 2005 in Quebec, and, shortly thereafter, the Fund will have to file amended and restated Final Renewal Documents to incorporate Approved Changes, incurring the additional costs, time and expenditures of preparing, printing and distributing the Final Renewal Documents twice within a short period of time.
AND WHEREAS under the system, this MRRS Decision Document evidences the decision of each Decision Makers (collectively, the "Decision"); and
AND WHEREAS each Decision Maker is satisfied that the test contained in the Legislation that provides the Decision Maker with the jurisdiction to make the Decision has been met.
THE DECISION of the Decision Makers pursuant to the Legislation is that the time periods provided in the Legislation as they apply to a distribution of securities under the Prospectus, are hereby extended to the time limits that would be applicable if the lapse date for the distribution of the Units under the Prospectus was July 31, 2005.