Securities Law & Instruments

Headnote

 

National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – approval for change of control of manager under s. 5.5(1)(a.1) of National Instrument 81-102 Investment Funds – Proposed Merger will not result in a change to the investment fund manager or to amalgamate or merge the Manager with any other entity, for the foreseeable future.

 

Applicable Legislative Provisions

 

National Instrument 81-102 Investment Funds, ss. 5.5(1)(a.1), 5.7(1)(a), 19.1.

 

July 20, 2017

 

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

ABERDEEN ASSET MANAGEMENT INC.

(AAMI or the Filer)

 

AND

 

IN THE MATTER OF

ABERDEEN ASIA-PACIFIC INCOME

INVESTMENT COMPANY LIMITED

(FAP)

 

DECISION

 

Background

 

The principal regulator in the Jurisdiction has received an application from the Filer for a decision under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) for approval of an indirect change of control of AAMI for purposes of National Instrument 81-102 – Investment Funds (NI 81-102) (Change of Control), the investment fund manager of FAP, in accordance with section 5.5(1)(a.1) of NI 81-102 (the Approval Sought).

 

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 (the Principal Regulator); 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 in each of the provinces of Canada other than Ontario (collectively, 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

 

1.             AAMI is incorporated and existing under the laws of Delaware with its head office in Philadelphia, Pennsylvania.

 

2.             AAMI is registered as a portfolio manager in Ontario, New Brunswick and Nova Scotia, and as an investment fund manager (IFM) in Newfoundland and Labrador, Ontario and Québec.

 

3.             AAMI acts as the IFM for FAP.

 

4.             AAMI is a direct wholly-owned subsidiary of Aberdeen Asset Management PLC (Aberdeen). Aberdeen is not a registrant under the securities legislation of any Canadian jurisdiction.

 

5.             AAMI is not in default of securities legislation in any of the Jurisdictions.

 

FAP

 

6.             FAP is a closed-end investment company organized under the International Companies Act, 1981-1982 (Cook Islands) whose ordinary shares are listed on the Toronto Stock Exchange (TSX: FAP).

 

7.             FAP is not in default of applicable securities legislation in any of the Jurisdictions.

 

The Proposed Merger

 

8.             Aberdeen and Standard Life plc (Standard Life) have proposed to merge by means of a scheme of arrangement sanctioned by the Court of Session in Edinburgh between Aberdeen and its shareholders under Part 26 of the UK Companies Act 2006 (the Scheme). Under this structure, assuming that the Scheme is approved, Standard Life will acquire the entire share capital of Aberdeen under the terms of the Scheme (the Proposed Merger).

 

9.             Standard Life and Aberdeen announced certain terms of the Proposed Merger in an announcement dated March 6, 2017 pursuant to Rule 2.7 of the the UK City Code on Mergers and Takeovers.

 

10.          On May 12, 2017, a notice regarding the Proposed Merger was sent to the Registration Regulation Branch of the Ontario Securities Commission pursuant to section 11.09 of National Instrument 31-103 – Registration Requirements and Exemptions and Ongoing Registrant Obligations.

 

11.          On June 14, 2017, AAMI sent notice to each of the shareholders of FAP of the Change of Control of AAMI that will result from the completion of the Proposed Merger, in accordance with Section 5.8(1)(a) of NI 81-102.

 

12.          At meetings held on June 19, 2017, shareholders of both Standard Life and Aberdeen voted to approve the Proposed Merger.

 

13.          Subject to obtaining the requisite approvals, including the Approval Sought, Standard Life and Aberdeen expect the Proposed Merger to be completed on or about August 14, 2017.

 

Effect of the Proposed Merger on AAMI and FAP

 

14.          The Proposed Merger will result in Standard Life becoming the ultimate parent company of AAMI.

 

15.          The Proposed Merger is not expected to result in a material change on the business, operations or affairs of AAMI (as it relates to FAP), of FAP, or on the shareholders of FAP, because:

 

(a)           AAMI will continue to act as the IFM of FAP immediately after the Proposed Merger;

 

(b)           the Proposed Merger is not expected to result in any changes to how AAMI operates or manages FAP;

 

(c)           the Proposed Merger will not result in any changes to the name, investment objectives, investment strategies and valuation procedures of FAP;

 

(d)           there are no current plans replace Aberdeen Asset Management Asia Limited as the portfolio adviser of FAP or change the team responsible for making the investment decisions, the board of


directors, the custodian, the auditor, or management fees or expenses of FAP, as a result of the Proposed Merger;

 

(e)           there is no current intention to change the CCO, the UDP, key management, directors, permitted individuals or registered individuals of AAMI; and

 

(f)            the Proposed Merger will not adversely affect AAMI’s financial position or its ability to fulfill its regulatory obligations.

 

16.          There is no current intention to amalgamate or merge AAMI with another investment fund manager or to change the IFM of FAP within the foreseeable future.

 

17.          Upon the Change of Control, by operation of section 3.10(1(c) of National Instrument 81-107 Independent Review Committee for Investment Funds, the members of FAP’s independent review committee (“IRC”) will cease to be IRC members. Immediately following the completion of the Proposed Merger, AAMI intends to re-appoint each member of the IRC, in an effort to reconstitute the IRC with the same members.

 

18.          The Change of Control of AAMI is not expected to have any negative consequences on the ability of AAMI to satisfy its obligations to FAP or to adversely affect the operation and administration of FAP. At this time, AAMI does not anticipate that the Proposed Merger will give rise to any conflicts of interest in addition to those that are currently managed in the ordinary course of FAP’s business.

 

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 Approval Sought is granted.

 

“Vera Nunes”

Manager, Investment Funds and Structured Products

Ontario Securities Commission