Securities Law & Instruments

Headnote

National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Approval granted for change of control of a mutual fund manager. A new entity Matrix Asset Management Ltd. created as the result of the transaction between the Filer and Growth Works Ltd. ("Growth Works") Growth Works will have control of the management of the Filer's mutual funds -- Change of control will not have any adverse effect on the management and administration of the Seamark Mutual Funds -- National Instrument 81-102 Mutual Funds.

Applicable Legislative Provisions

National Instrument 81-102 Mutual Funds, s. 5.5(2).

December 14, 2009

IN THE MATTER OF

THE SECURITIES LEGISLATION OF

NOVA SCOTIA AND ONTARIO

(the "Jurisdictions")

AND

IN THE MATTER OF

THE PROCESS FOR EXEMPTIVE RELIEF

APPLICATIONS IN MULTIPLE JURSIDCTIONS

AND

IN THE MATTER OF

SEAMARK ASSET MANAGEMENT LTD.

(the "Filer")

DECISION

Background

The securities regulatory authority or regulator in each of the Jurisdictions (the "Decision Maker") has received an application from the Filer for a decision under the securities legislation of the Jurisdictions (the "Legislation") for the approval of the change of control of the Filer resulting from the Transaction (as defined below) (the "Change of Control") in satisfaction of the requirement in section 5.5(2) of National Instrument 81-102 -- Mutual Funds ("NI 81-102") (the "Approval Sought").

Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a dual application):

(a) the Nova Scotia Securities Commission is 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 11-201") is intended to be relied upon in each of British Columbia, Alberta, Saskatchewan, Manitoba, Quebec, New Brunswick, Prince Edward Island 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.

Interpretation

Defined terms contained 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:

SEAMARK

SEAMARK was incorporated under the Canada Business Corporation Act on November 4, 1982 under the name of Elliott & Page Atlantic Limited. On October 1, 1990, articles of amendment were filed to change the name to SEAMARK Asset Management Ltd., under which name it continues to carry on business.

SEAMARK is an investment counsel firm with its head office located in Halifax, Nova Scotia and is registered as a dealer in the category of exempt market dealer in the Provinces of Newfoundland and Labrador and Ontario and as an adviser in the category of portfolio manager in each of the provinces in Canada.

SEAMARK is a reporting issuer in all provinces and territories in Canada.

SEAMARK is not on any list of defaulting reporting issuers maintained by any securities regulatory authority.

The common shares of SEAMARK are listed and posted for trading on the Toronto Stock Exchange ("TSX") and trade under the symbol "SM".

SEAMARK provides discretionary investment management services to a range of clients including:

1. Institutional Clients -- pensions, endowments, and other funds managed on behalf of institutions (corporations, municipalities, and not for profit societies), including group pension plans sponsored by life insurance companies.

2. Mutual Funds -- mutual funds available directly to retail investors that are managed and sponsored by SEAMARK or managed by SEAMARK on behalf of the funds' sponsors.

3. WRAP Programs -- assets managed through a managed portfolio advisory program. Financial advisors employed by the sponsors of these programs assist their clients in selecting suitable investment manager, of whom SEAMARK is one among a number of potential choices.

4. Private Clients -- assets managed on behalf of high net worth individuals who have a direct client relationship with SEAMARK.

SEAMARK is the manager and trustee of the following mutual funds ("SEAMARK's Mutual Funds"):

1. SEAMARK Dividend & Income Fund;

2. SEAMARK Canadian Equity Fund; and

3. SEAMARK North American Fund.

Each of the SEAMARK's Mutual Funds is a reporting issuer in the Jurisdictions. They each offer their units by way of an offering under the simplified prospectus to qualified investors resident in Canada. None of the SEAMARK's Mutual Funds are on any list of defaulting reporting issuers maintained by any securities regulatory authority.

The Transaction

On October 28, 2009 SEAMARK and Growth Works Ltd. ("GrowthWorks") entered into a business combination agreement (the "Agreement") to form a new asset management company, Matrix Asset Management Ltd. ("Matrix") (the "Transaction").

The Agreement contemplates the exchange of all of the outstanding common shares of SEAMARK for common shares of Matrix on a 1-for-1 basis, followed by the exchange (the "Share Exchange") of a minimum of 90% of the outstanding common shares of GrowthWorks for common shares of Matrix (the "Acquisition Shares"). As a result, both SEAMARK and GrowthWorks will become subsidiaries of Matrix. Assuming all outstanding common shares of GrowthWorks (and all common shares of GrowthWorks that may be issued pursuant to outstanding securities of GrowthWorks that are convertible or exercisable into common shares of GrowthWorks) are acquired by Matrix pursuant to the Share Exchange or otherwise, the Acquisition Shares will represent 75% of Matrix's issued common share capital on completion of the Transaction. As a result, the Transaction would be considered a change of control for SEAMARK. SEAMARK issued a press release announcing the Transaction on October 29, 2009.

SEAMARK's shareholders will be asked to approve the Transaction at a special meeting of shareholders called and scheduled for January 6, 2010. Approval of two-thirds of those voting will be required to effect the exchange of SEAMARK's common shares for the common shares of Matrix, and approval of a majority of those voting will be required in order to proceed with the Share Exchange.

Holders of more than 53% of the outstanding common shares of SEAMARK have signed support agreements under which they have agreed to vote their shares in favour of the Transaction.

Holders of more than 74% of the outstanding common shares of GrowthWorks have signed support agreements under which they have agreed to exchange their shares pursuant to the Share Exchange offer. The Share Exchange offer was distributed to GrowthWorks' shareholders on November 2 and 3, 2009.

On November 13, 2009 a joint notice was submitted under sections 11.9 and 11.10 of National Instrument 31-103 -- Registration Requirements and Exemptions ("NI 31-103") to the applicable securities regulatory authorities. SEAMARK provided the notice pursuant to Section 11.9(1)(b) of NI 31-103 and SEAMARK, GWC (as defined below) and MVX (as defined below) provided the notice pursuant to Section 11.10(1) of NI 31-103.

Notice of Change of Control was mailed to all of the SEAMARK's Mutual Funds unitholders on November 13, 2009.

The Transaction is scheduled to close on or about January 14, 2010, subject to a number of conditions, including obtaining necessary regulatory, TSX, shareholder and other approvals, and the satisfaction or waiver of all conditions related to the Transaction.

GrowthWorks

GrowthWorks is a private company incorporated in 1999 under the CBCA. Its head office is located in Vancouver, British Columbia. GrowthWorks has approximately 150 shareholders but is not a reporting issuer in any jurisdiction in Canada. No shareholder holds greater than 10% of the outstanding voting securities of GrowthWorks other than as follows:

 

 

% of

Name

Number of

Outstanding Common Shares

 

Common Shares

 

 

David Levi{1}

1,642,410

19.19%

 

Working Enterprises Ltd.

4,000,000

46.73%

{1} Mr. Levi holds, directly, indirectly or controls (through trusts and/or corporations, in any manner) a total of 1,642,410 common shares.

The remaining shares of GrowthWorks are held by directors, officers, employees and former employees of Growth Works Capital Ltd. ("GWC") (and trusts for certain of those persons and the family members of certain of those persons).

Affiliates of GrowthWorks manage several venture capital funds, including Working Opportunity Fund (EVCC) Ltd., GrowthWorks Canadian Fund Ltd., GrowthWorks Commercialization Fund Ltd., GrowthWorks Atlantic Venture Fund Ltd. and the Mavrix group of specialty mutual funds and flow-through investment funds. Currently, affiliates of GrowthWorks have approximately $1 billion in assets under management.

Each of GWC and Mavrix Fund Management Inc. ("MVX"), registrants under securities laws, are wholly owned subsidiaries of GrowthWorks.

Growth Works Capital Ltd.

GWC has been registered with one or more securities regulatory authorities for over 10 years. David Levi is the President and Chief Executive Officer of GWC.

GWC is currently registered as an adviser in the category of a portfolio manager in British Columbia, Ontario, Nova Scotia, Manitoba and Saskatchewan. GWC is also registered as a mutual fund dealer in each of British Columbia, Ontario, Nova Scotia and Saskatchewan. GWC's registration as a mutual fund dealer is to allow it to conduct "in furtherance" trades in connection with its actions as the principal distributor to investment funds managed by GWC or its affiliates. In Manitoba, GWC is permitted to make similar "in furtherance" trades in connection with acting as principal distributor for investment funds managed by GWC or its affiliates.

Mavrix Fund Management Inc.

MVX was incorporated under the Business Corporations Act (Ontario). MVX was founded in 2001 as an independent, employee-owned asset management corporation. MVX acquired management agreements, declarations of trust and certain other assets from YMG Mutual Funds in 2001 and subsequently changed the names of those funds to "Mavrix Fund Management Inc.". GrowthWorks acquired MVX in June 2009 through a plan of arrangement.

MVX is a registrant under the Ontario Securities Act as a dealer in the category of exempt market dealer and as an adviser in the category of portfolio manager.

MVX is a reporting issuer in each of the provinces and the territories in Canada. MVX's debentures are listed on the CNSX.

Matrix

Matrix is incorporated under the CBCA. Following the Transaction, both SEAMARK and GrowthWorks will become subsidiaries of Matrix.

Change of Control

It is anticipated that, following the completion of the Transaction, the operations of SEAMARK will continue substantially as they are currently operated. The role of SEAMARK as the manager of the SEAMARK Mutual Funds is not expected to change as a result of the change of control of SEAMARK. No changes are expected to the portfolio advisers, the fundamental objectives, restrictions and strategies relating to each of the SEAMARK's Mutual Funds as a result of the change of control. It is anticipated that following the Transaction, the board of directors of SEAMARK will consist of Brent Barrie, Chief Executive Officer of SEAMARK, Angela Eaton, Chief Investment Officer of SEAMARK as well as David Levi, Alex Irwin and Clint Matthews, all of whom have the requisite experience. David Levi, Alex Irwin and Clint Matthews will also act as officers of Matrix.

Matrix will be governed by a new board of directors, whose membership will include representatives from both the boards of GrowthWorks and SEAMARK, including David Levi, President and Chief Executive Officer of GrowthWorks, Larry Bell, Dale Parker, John Shields, Brent Barrie, Chief Executive Officer of SEAMARK, Stephen Rankin and William Eeuwes. In addition, former SEAMARK Chief Executive Officer, G. Peter Marshall, is expected to join Matrix's board.

Upon the Change of Control, all current members of the Independent Review Committee for SEAMARK Mutual Funds ("IRC") will cease to be members of the IRC by the operation of section 3.10(1)(c) of National Instrument 81-107 -- Independent Review Committee for Investment Funds ("NI 81-107") and, subject to their consent, are expected to be subsequently re-appointed as members of the IRC by SEAMARK as contemplated in the commentary to sections 3.3(5) and 3.10 of NI 81-107.

While the Transaction will result in a Change of Control, it is not expected to have any negative impact on the management of the SEAMARK's Mutual Funds.

Decision

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 under the Legislation is that the Approval Sought is granted.

"J.W. Slattery"
Executive Director
Nova Scotia Securities Commission