Securities Law & Instruments

Headnote

Mutual Reliance Review System for Exemptive Relief Applications -- mutual funds granted relief from 10% concentration restriction in subsection 2.1(1) of National Instrument 81-102 Mutual Funds in connection with the acquisition by certain of the mutual funds to acquire shares of MGIC Investment Corporation in exchange for the shares those mutual funds presently held in Radian Group Inc. as a result of a merger -- the mutual funds will hold securities in the merged entity in essentially the same amounts as they held in common shares of Radian Group Inc.

Applicable Legislative Provisions

National Instrument 81-102 Mutual Funds, s. 2.1(1).

July 19, 2007

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,

NORTHWEST TERRITORIES, YUKON TERRITORY AND NUNAVUT

(the Jurisdictions)

AND

IN THE MATTER OF

THE MUTUAL RELIANCE REVIEW SYSTEM

FOR EXEMPTIVE RELIEF APPLICATIONS

AND

IN THE MATTER OF

AIC AMERICAN FOCUSED FUND,

AIC AMERICAN FOCUSED CORPORATE CLASS,

AIC CANADIAN FOCUSED FUND,

AIC CANADIAN FOCUSED CORPORATE CLASS,

AIC CANADIAN BALANCED FUND,

AIC CANADIAN BALANCED CORPORATE CLASS

AND AIC DIVIDEND INCOME FUND

(collectively, the Specified AIC Funds),

AIC LIMITED AND AIC INVESTMENT SERVICES INC.

(collectively, the Filer)

 

MRRS DECISION DOCUMENT

Background

The local securities regulatory authority or regulator (the Decision Maker) in each of the Jurisdictions has received an application from the Filer for a decision under section 19.1 of National Instrument 81-102 Mutual Funds (NI 81-102 or the Legislation) that the Filer be exempt from the issuer concentration restriction contained in subsection 2.1(1) of NI 81-102 in connection with the acquisition by certain of the Funds (defined below) of shares of MGIC Investment Corporation in exchange for the shares those Funds presently hold in Radian Group Inc., pursuant to the Merger (defined below) described in this Decision Document (the Requested Relief).

Under the Mutual Reliance Review System for Exemptive Relief Applications (MRRS):

(a) The Ontario Securities Commission is the principal regulator for this application, and

(b) this MRRS decision document evidences the decision of each Decision Maker.

Interpretation

Defined terms contained in National Instrument 14-101 Definitions and in NI 81-102 have the same meanings in this decision unless they are otherwise defined in this decision.

(a) MGIC means MGIC Investment Corporation, a U.S. company with its common stock listed on the New York Stock Exchange.

(b) Radian means Radian Group Inc., a U.S. company with its common stock listed on the New York Stock Exchange.

(c) Merger means the proposed merger of MGIC with Radian to form MGIC Radian Financial Group Inc., announced in February 2007.

(d) Funds means the Specified AIC Funds and any other AIC Fund that may hold Radian common shares immediately prior to the Merger.

Representations

This decision is based on the following facts represented by the Filer:

1. AIC Limited acts as the manager and trustee (the Manager or AIC) of, and AIC Investment Services Inc. acts as the portfolio adviser (the Portfolio Adviser) of, the AIC Funds. The AIC Funds are distributed under simplified prospectuses and annual information forms in all provinces and territories of Canada. The Portfolio Adviser is an affiliate of AIC Limited and is registered with the Ontario Securities Commission and other provincial regulators, as applicable, as an adviser in the category of investment counsel and portfolio manager. The principal offices of the Manager and the Portfolio Adviser are located in Burlington, Ontario.

2. The Specified AIC Funds presently hold securities in Radian. On February 6, 2007, Radian and MGIC announced the Merger, which was approved by the shareholders of both companies at meetings held on May 9 and 10, 2007. In the Merger, Radian shareholders will receive 0.9658 shares of MGIC common shares for each Radian common share held immediately prior to the Merger. The Merger is expected to be completed late in the third quarter or early in the fourth quarter of 2007 pending all remaining regulatory approvals.

3. The following table indicates for each Specified AIC Fund as of May 31, 2007: (i) the number of Radian common stock held, (ii) the percentage of net assets that stock represented as of that date, (iii) the number of MGIC common shares each Specified AIC Fund would have received if the Merger had been completed on that date and (iv) the percentage of assets of each Specified AIC Fund those MGIC common shares would have represented if the Merger had been completed on that date.

Specified AIC Fund
Radian common
Percentage of
MGIC common
Percentage of
shares held
assets held in
shares
assets held in
Radian common
(if Merger had
MGIC common
shares
been completed
shares
on May 31,
(if Merger had
2007)
been completed
on May 31, 2007)
 
MGIC market price
as of May 31 can be
expected to adjust to
account for the
Merger so that it will
be consistent with
Radian market price
 
AIC American
1,608,745
11.6
1,553,726
11.7
Focused Fund
 
AIC American
201,897
11.2
194,992
11.3
Focused Corporate
Class
 
AIC Canadian
1,309,900
10.4
1,265,101
10.6
Focused Fund
 
AIC Canadian
144,385
10.0
139,447
10.2
Focused Corporate
Class
 
AIC Canadian
304,820
8.3
294,395
8.4
Balanced Fund
 
AIC Canadian
34,985
8.3
33,789
8.4
Balanced Corporate
Class
 
AIC Dividend Income
240,787
4.7
232,552
4.8
Fund

4. The Radian common shares presently held by each Specified AIC Fund were acquired in full compliance with section 2.1(1) of NI 81-102. The 10 percent concentration restriction prescribed by section 2.1(1) was not breached at the time of purchase of the Radian common shares by any Specified AIC Fund. Those Specified AIC Funds currently holding in excess of 10 percent of their net assets in Radian common shares, exceeded that threshold passively and not through additional purchases of Radian common shares.

5. On behalf of the Specified AIC Funds, AIC voted in favour of Radian completing the Merger, given AIC's belief that the Merger would be in the best interests of the Specified AIC Funds and that the exchange ratio in the Merger was fair and reasonable to the Specified AIC Funds. In AIC's opinion, it was in the best interests for AIC to vote the common shares of Radian held by the Specified AIC Funds, given the benefits inherent in the Merger to the Specified AIC Funds. AIC was of the view that it would not be in the best interests of the Specified AIC Funds to vote against the Merger or abstain from voting.

6. Section 2.1(1) of NI 81-102 prohibits a mutual fund from purchasing a security of an issuer if, immediately after the transaction, more than 10 percent of the net assets of the mutual fund, taken at market value at the time of the transaction, would be invested in securities of any issuer. The word "purchase" is defined in section 1.1 of NI 81-102 as meaning "in connection with an acquisition of a portfolio asset by a mutual fund, an acquisition that is the result of a decision made and action taken by the mutual fund". Paragraph 2.13(2)3 of the Companion Policy to NI 81-102 suggests that, generally, where a mutual fund receives a security as a result of a merger for which the mutual fund voted in favour, then that acquisition would constitute a "purchase".

7. Without the Requested Relief, the Funds would be considered to have "purchased" the MGIC common shares they will acquire as a result of the Merger and the Funds may be in breach of section 2.1(1) since they might, as a result of the Merger, acquire MGIC common shares in excess of the 10 percent concentration restriction.

8. AIC does not believe that it is in the best interests of the Funds to divest of the Radian common shares held by each Fund in order to be within the 10 percent threshold of section 2.1(1) of NI 81-102 after the Merger.

9. The Funds will hold securities in the merged Radian-MGIC entity in essentially the same amounts as they will hold in common shares of Radian immediately before the Merger. Thus, the Funds will have no more economic exposure to the merged Radian-MGIC entity immediately after the Merger than it did to Radian immediately before the Merger.

10. No Fund will make any further purchase of the securities of the merged Radian-MGIC entity after the Merger for as long as its exposure to securities in the merged Radian-MGIC entity remain above 10 percent of net assets.

11. The Filer is applying for the Requested Relief for all of the Funds, given that the Merger will not take place until later in 2007 and it is not possible to definitively state which Funds will be in breach of section 2.1(1) of NI 81-102 until immediately after the Merger.

Decision

Each of the Decision Makers 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 under the Legislation is that the Requested Relief is granted.

"Leslie Byberg"
Manager, Investment Funds Branch
Ontario Securities Commission