National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Relief granted to mutual funds for extension of lapse date of prospectus for 30 days -- Extension of lapse date will not affect the currency or accuracy of the information contained in the prospectus -- Securities Act (Ontario).
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., s. 62(5).
November 27, 2012
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF
APPLICATIONS IN MULTIPLE JURISDICTIONS
IN THE MATTER OF
GROWTHWORKS WV MANAGEMENT LTD.
(the "Filer") and
GROWTHWORKS COMMERCIALIZATION FUND LTD.
The principal regulator in the Jurisdiction has received an application from the Filer and the Fund for a decision under the securities legislation of the Jurisdiction of the principal regulator ("Legislation") that the time limits pertaining to filing a renewal prospectus with respect to the distribution of Class A Shares of the Fund be extended as if the lapse date of the prospectus of the Filer dated November 17, 2011 (the "Current Prospectus") was December 27, 2012 (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 11-202 -- Passport System is intended to be relied upon in each of Manitoba, Saskatchewan and Alberta (together with Ontario, the "Jurisdictions").
Terms defined in National Instrument 14-101 -- Definitions, have the same meaning if used in this decision, unless otherwise defined in this decision.
This decision is based on the following facts as represented by the Filer and the Fund:
1. The Fund was incorporated under the laws of Canada on May 13, 2004 and is a reporting issuer in the Provinces of Ontario, Manitoba, Saskatchewan, Alberta and British Columbia. The Current Prospectus was filed in each of these Provinces other than the Province of British Columbia.
2. The Fund is registered as a labour-sponsored venture capital corporation under the Income Tax Act (Canada) and under the Labour-Sponsored Venture Capital Corporations Act (Manitoba) and as a labour-sponsored investment fund under the Community Small Business Investment Funds Act (Ontario) and is an approved fund under the Labour-sponsored Venture Capital Corporations Act (Saskatchewan).
3. The Fund is a mutual fund under applicable securities legislation. The Fund's securities are not listed on any exchange. The Fund is not in default of securities legislation in any jurisdiction.
4. The authorized capital of the Fund currently consists of: an unlimited number of Class A shares, issuable in series, of which five series are issued and outstanding and two series are qualified under the Current Prospectus, namely 12 Series and 13 Series; and an unlimited number of Class B shares, of which 1,000 shares are issued and outstanding and held by the Fund's labour sponsor, Canadian Federation of Labour; and an unlimited number of non-voting Class C Shares, of which 100 shares are issued and outstanding and held by the Filer as the Fund's manager.
5. Pursuant to the Legislation, the lapse date of the Current Prospectus was November 17, 2012 (the "Lapse Date"). Accordingly, under the Legislation, in order to continue distributions of securities of the Fund after the Lapse Date, the Fund is required to (i) file a pro forma prospectus on or before October 19, 2012, (ii) file a final prospectus by November 27, 2012, (the "Filing Deadline") and (iii) obtain a receipt for such a final prospectus by December 6, 2012.
6. The Fund filed a preliminary and pro forma prospectus dated October 12, 2012 with respect to Class A Shares, Series 13 (pro forma) and Series 14 (preliminary) (the "Renewal Prospectus"). Class A Shares, Series 12 and Series 13 are qualified for distribution under the Fund's Current Prospectus.
7. On October 26, 2012, the Fund received a first comment letter from the Principal Regulator. A response to comments was filed on November 19, 2012, including financial data requested by the Principal Regulator that was reviewed at a meeting of the Board of Directors of the Fund held on November 14, 2012.
8. Given the imminent Filing Deadline, the Filer and the Fund seek an extension to permit the Filer and the Fund time to satisfactorily address any further comments of the Principal Regulator, finalize the Renewal Prospectus, seek necessary approvals of changes to the Renewal Prospectus from directors of the Fund and from the Filer and file the Renewal Prospectus.
9. In the opinion of the Filer and the Fund, there have been no material changes in the affairs of the Fund since the filing of the Current Prospectus, therefore the Current Prospectus represents current information regarding the Fund and the 12 Series and 13 Series; the requested extension will not affect the currency or accuracy of the information contained in the Current Prospectus, and accordingly would not be prejudicial to the public interest.
10. Any material change that occurs prior to the issuance of a receipt for the final Renewal Prospectus will be disclosed by way of an amendment to the Current Prospectus.
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.