Securities Law & Instruments

Headnote

National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Approval granted for indirect change of control of a mutual fund manager. 1354033 Alberta Ltd. (formerly Northland Bancorp Inc.) has agreed to purchase 80.4% of the outstanding common shares of Galileo Global Equity Advisors Inc., the parent company of Galileo Funds Inc. Prior to closing, share purchase agreement will be assigned by 1354033 Alberta Ltd. to Northland Bancorp Inc. (formerly 1445251 Alberta Ltd.), a related entity -- Change of control will not have any adverse affect on the management and administration of the Galileo Funds.

Applicable Legislative Provisions

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

July 24, 2009

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

GALILEO FUNDS INC.

(the Filer)

AND

GALILEO GLOBAL EQUITY ADVISORS INC.

(GGEA)

 

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 sought pursuant to subsection 5.5(2) of National Instrument 81-102 -- Mutual Funds (NI 81-102) of the indirect change of control of the Filer as a result of the proposed acquisition of a controlling interest in GGEA, the sole shareholder of the Filer, by 1354033 Alberta Limited (1354033) (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, 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 British Columbia, Alberta, Saskatchewan, Manitoba, Québec, New Brunswick, Nova Scotia, Prince Edward Island, Northwest Territories, Yukon and Nunavut.

Interpretation

Defined terms contained in National Instrument 14-101 -- Definitions and MI 11-102 have the same meaning in this decision unless they are otherwise defined.

Representations

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

GGEA and the Filer

1. GGEA is a corporation incorporated under the laws of Ontario and its head office is located in Toronto, Ontario.

2. GGEA is the parent company of the Filer and owns 100% of the issued and outstanding shares of the Filer.

3. The Filer is a corporation incorporated under the laws of Ontario, and its head office is located in Toronto, Ontario. The Filer is the manager of the Galileo High Income Plus Fund and Galileo Small/Mid Cap Fund (the Funds).

4. GGEA is registered in: (a) Ontario as a limited market dealer, investment counsel and portfolio manager; (b) Alberta as an investment counsel and portfolio manager; (c) British Columbia as a portfolio manager; (d) Nova Scotia as investment counsel and portfolio manager; and (e) Manitoba as portfolio manager. GGEA is the portfolio manager of the Funds.

5. The Funds are reporting issuers in British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Québec, Nova Scotia, New Brunswick, Prince Edward Island, Northwest Territories, Yukon and Nunavut (collectively with the Jurisdiction, the Jurisdictions).

6. Securities of the Funds are qualified for distribution in British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Québec, Nova Scotia, New Brunswick and Prince Edward Island by a consolidated simplified prospectus dated November 11, 2008, as amended (the SP) and an annual information form dated November 11, 2008, as amended (the AIF).

7. The Filer and the Funds are not in default of the requirements of applicable securities legislation in the Jurisdictions.

1354033 and Northland

8. 1354033 was incorporated under Alberta law on October 3, 2007 as "1354033 Alberta Ltd." It amended its articles of incorporation on December 18, 2008 to change its name to "Northland Bancorp Inc." and further amended its articles of incorporation on May 12, 2009 to change its name back to "1354033 Alberta Ltd."

9. 1354033 is a Calgary-based real estate and private equity boutique active in the public and private equity and the debt markets. It is seeking to is expand into the financial services industry by acquiring mutual fund management companies and investment advisory firms. Cliff Johnson is the sole shareholder of 1354033.

10. 1445251 Alberta Ltd. (Northland), was incorporated under Alberta law on January 1, 2009. On June 23, 2009, Northland amended its articles of incorporation to change its name to "Northland Bancorp Inc." The majority of the issued and outstanding common shares of Northland are beneficially owned by Cliff Johnson and members of his family. The remaining issued and outstanding common shares of Northland are beneficially owned by senior officers of Northland.

The Transaction and Change of Control

11. Michael Waring, the majority shareholder of GGEA, entered into a share purchase agreement dated May 12, 2009 with 1354033, pursuant to which it agreed to buy from Michael Waring 80.5% of the issued and outstanding common shares of GGEA (the Transaction). Following completion of the Transaction, Michael Waring will continue to hold 15.4% of the issued and outstanding common shares of GGEA. The remaining 4.1% will be held by other shareholders.

12. The Transaction will result in an indirect change of control of the Filer. The completion of the Transaction is subject to the satisfaction of closing conditions, including regulatory approvals.

13. Prior to the closing of the Transaction, 1354033 will assign the share purchase agreement to its related entity, Northland. As a result, Northland will ultimately be the holder of 80.5% of the issued and outstanding common shares of GGEA, following the completion of the Transaction.

14. The directors and senior officers of the Filer and GGEA following the closing of the Transaction are expected to be a combination of the existing directors and senior officers of the Filer, GGEA and Northland.

15. 1354033 and Northland do not anticipate any significant changes respecting management and administration of the Funds in the short term following the closing of the Transaction. While there will be some changes to the management of GGEA and the Filer, the majority of the Filer's management and employees should not be affected by the indirect change in ownership of the Filer.

16. Michael Waring will remain a director and a senior officer of both the Filer and GGEA, and portfolio manager of the Funds following the closing of the Transaction. Michael Waring was one of the founders of the Filer and has been a director and senior officer ever since. He has also been a primary source of the Filer's strategic direction and management during that time.

17. The Transaction will not affect the ability of the Filer or GGEA to comply with all applicable regulatory requirements or its ability to satisfy its obligations to the Funds. To the extent that any changes are made following completion of the Transaction which constitute "material changes" in relation to the Funds, within the meaning of National Instrument 81-106 Investment Fund Continuous Disclosure, amendments will be made to the Funds' SP and AIF, as appropriate.

18. Pursuant to National Instrument 81-107 Independent Review Committee for Investment Funds, the Filer intends to reappoint the existing members of the Funds' independent review committee following completion of the Transaction.

19. The proposed Transaction constitutes a "material change" with respect to the Funds. In connection therewith the Filer has:

(a) filed on SEDAR a press release dated May 12, 2009 describing the Transaction;

(b) filed on SEDAR a material change report dated May 15, 2009 in connection with the Transaction; and

(c) filed on SEDAR an amendment to the Funds' AIF dated May 21, 2009.

20. Pursuant to section 5.8 of NI 81-102, the Filer delivered notice of the Transaction to the Funds' securityholders (the Notice) on May 22, 2009 and has confirmed that the Transaction will not close less than 60 days following delivery of the Notice.

Decision

The principal regulator is satisfied that the decision meets the test contained in the Legislation for the principal regulator to make the following decision.

The decision of the principal regulator under the Legislation is that the Approval Sought is granted.

"Darren McKall"
Assistant Manager, Investment Funds Branch