Securities Law & Instruments

Headnote

NP 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Approval of mutual fund mergers -- approval required because mergers do not meet the criteria for pre-approval -- The continuing funds do not have substantially similar fundamental investment objectives as those of the terminating funds, the terminating funds' portfolio assets are not acceptable to the continuing funds' portfolio advisor, the materials mailed to securityholders did not contain the continuing funds' fund facts, and the merger was not conducted on a tax-deferred basis -- Terminating funds' unitholders provided with timely and adequate disclosure regarding the merger and prospectus-level disclosure regarding the continuing fund.

Applicable Legislative Provisions

National Instrument 81-102 Mutual Funds, ss. 5.5(1)(b), 5.6(1)(a)(ii), 5.6(1)(d)(ii), 5.6(1)(f)(ii), 5.6(1)(b).

May 26, 2014

IN THE MATTER OF THE SECURITIES LEGISLATION OF THE PROVINCE OF ONTARIO (the "Jurisdiction") AND IN THE MATTER OF THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS IN MULTIPLE JURISDICTIONS AND IN THE MATTER OF NEXGEN FINANCIAL LIMITED PARTNERSHIP (the "Filer") AND NEXGEN NORTH AMERICAN SMALL/MID CAP REGISTERED FUND, NEXGEN NORTH AMERICAN SMALL/MID CAP TAX MANAGED FUND, NEXGEN NORTH AMERICAN GROWTH REGISTERED FUND, NEXGEN NORTH AMERICAN GROWTH TAX MANAGED FUND (each a "Terminating Fund" and collectively the "Terminating Funds") AND NEXGEN U.S. GROWTH REGISTERED FUND, NEXGEN U.S. GROWTH TAX MANAGED FUND (each a "Continuing Fund" and collectively the "Continuing Funds", and together with the Terminating Funds, the "Funds")

DECISION

Background

The principal regulator in the Jurisdiction has received an application (the "Application") from the Filer on behalf of the Terminating Funds for a decision under the securities legislation of the Jurisdiction of the principal regulator (the "Legislation") for approval of the mergers (the "Mergers") of NexGen North American Small/Mid Cap Registered Fund and NexGen North American Growth Registered Fund into NexGen U.S. Growth Registered Fund (each, a "Registered Merger" and collectively, the "Registered Mergers") and the merger of NexGen North American Small/Mid Cap Tax Managed Fund and NexGen North American Growth Tax Managed Fund into NexGen U.S. Growth Tax Managed Fund (each, a "Tax Managed Merger" and collectively, the "Tax Managed Mergers") under paragraph 5.5(1)(b) of National Instrument 81-102 ("NI 81-102") (the "Exemption 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 British Columbia, Alberta, Quebec, Newfoundland and Labrador and Northwest Territories (including Ontario, the "Jurisdictions").

Interpretation

Terms contained in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this decision, unless otherwise defined.

"Continuing Registered Fund" means NexGen U.S. Growth Registered Fund.

"Continuing Tax Managed Fund" means NexGen U.S. Growth Tax Managed Fund

"Terminating Registered Funds" means NexGen North American Growth Registered Fund and NexGen North American Small/Mid Cap Registered Fund.

"Terminating Tax Managed Funds" means NexGen North American Growth Tax Managed Fund and NexGen North American Small/Mid Cap Tax Managed Fund.

Representations

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

1. The Filer is a limited partnership established under the laws of the Province of Ontario and its head office is located in Toronto, Ontario. The Filer is registered as a dealer in the category of mutual fund dealer, an adviser in the category of portfolio manager and an investment fund manager under the Securities Act (Ontario) and as an adviser in the category of commodity trading manager under the Commodity Futures Act (Ontario).

2. The Filer is the manager and portfolio manager of the Terminating Funds and will be the manager and portfolio manager of the Continuing Funds.

3. The Terminating Funds are not in default of securities legislation in any of the Jurisdictions.

4. The four Terminating Funds are open-end mutual funds. The two Terminating Tax Managed Funds consist of classes of NexGen Investment Corporation (the "Corporation"), a mutual fund corporation incorporated under the laws of the Province of Ontario, and the two Terminating Registered Funds are trusts governed under the laws of Ontario.

5. The Terminating Funds are reporting issuers under the applicable securities legislation of the Jurisdictions.

6. Securities of the Terminating Funds are currently offered for sale under a simplified prospectus and annual information form dated May 31, 2013 (the "Prospectus") in each of the Jurisdictions. Each of the Terminating Funds follows the standard investment restrictions and practices established under the Legislation, except as otherwise noted in the Prospectus.

7. The two Continuing Funds will be open-end mutual funds. The Continuing Tax Managed Fund is comprised of classes of the Corporation and the Continuing Registered Fund is a trust governed under the laws of Ontario.

8. Securities of the Continuing Funds will be offered for sale under a simplified prospectus and annual information form dated on or about May 30, 2014 (the "Renewal Prospectus") in each of the Jurisdictions. Each of the Continuing Funds will follow the standard investment restrictions and practices established under the Legislation, except as otherwise noted in the Renewal Prospectus.

9. A preliminary and pro-forma simplified prospectus and annual information form dated March 31, 2014 (the "Preliminary Prospectus") was filed on April 2, 2014 and a preliminary receipt dated April 4, 2014 was issued respecting the securities of the mutual funds managed by the Filer (the "NexGen Funds"), including the Continuing Funds and the Terminating Funds. On or about May 30, 2014, a final prospectus respecting the NexGen Funds (not including the Terminating Funds if all securityholder and regulatory approvals are received) will be filed. The Continuing Funds will be reporting issuers under applicable securities legislation of each of the Jurisdictions upon filing the Renewal Prospectus.

10. The board of directors of the Filer approved and ratified the Mergers and a press release and material change report in respect of the Mergers was filed on SEDAR on April 11, 2014 and April 15, 2014, respectively. In addition, amendments to the simplified prospectus, annual information form and fund facts of the Terminating Funds, which gave notice of the proposed Mergers, were filed on SEDAR on April 14, 2014.

11. As required by National Instrument 81-107 Independent Review Committee for Investment Funds ("NI 81-107"), the Filer presented the terms of the Mergers to the Independent Review Committee ("IRC") of the Terminating Funds for its review and recommendation. The IRC reviewed the potential conflict of interest matters related to the proposed Mergers and on February 13, 2014 determined that the proposed Mergers, if implemented, would achieve a fair and reasonable result for each of the Terminating Funds.

12. Securityholders of the Terminating Funds will continue to have the right to redeem or transfer their securities of a Terminating Fund at any time up to the close of business on the business day prior to the effective date of the Mergers.

13. A meeting (the "Meeting") of the securityholders of each Terminating Fund was held on May 9, 2014 to approve the Mergers. In connection with each Meeting, the Filer, as manager of the Terminating Funds, sent to securityholders of each Terminating Fund a notice of the meeting of securityholders and a management information circular (the "Information Circular") dated April 4, 2014 and a related form of proxy. The Information Circular provided sufficient information to securityholders to permit them to make an informed decision about the Mergers.

14. It is proposed that the Mergers take place on or about May 30, 2014 (the "Merger Date"). The Filer will be the sole securityholder of each Continuing Fund on the Merger Date.

15. The Filer will pay all costs and expenses relating to the solicitation of proxies and holding the Meetings as well as the costs of implementing the Mergers, including any brokerage fees.

16. Upon the Merger, securityholders of each Terminating Fund will receive the equivalent value of the identical series of securities of the applicable Continuing Fund with the identical rights and privileges as the series of securities of the Terminating Fund they previously held. Management fees for each series of each Continuing Fund are equal to the management fees for the equivalent series of the applicable Terminating Fund.

17. Following the Mergers, the Continuing Funds will exist as publicly offered open-end mutual funds and the Terminating Funds will be wound up.

18. Securityholders of each Terminating Fund approved the relevant Merger at the Meeting held on May 9, 2014.

19. Upon receipt of this approval, the following steps will be carried out to effect the Mergers:

a. In respect of the Tax Managed Mergers:

i. Portfolio securities held by the Tax Managed Terminating Funds will be liquidated on or before the effective date of the Merger Date.

ii. Each outstanding share of a Tax Managed Terminating Fund will be exchanged for share(s) of an equivalent class and series of the Tax Managed Continuing Fund. The share exchange will be effected on the basis of the relative net asset values of the applicable shares at the close of business on the Merger Date.

iii. The assets and liabilities of the Corporation attributable to the Tax Managed Terminating Funds will be transferred to the Tax Managed Continuing Fund.

iv. The Tax Managed Terminating Funds will then be wound up.

b. In respect of the Registered Mergers:

i. The master declaration of trust of the Registered Terminating Funds will be amended to facilitate the Mergers. In particular, the investment objectives of each Registered Terminating Fund will be amended to permit each Registered Terminating Fund to be invested solely in cash immediately prior to the Merger Date, to reflect the fact that the portfolios of each Registered Terminating Fund will be liquidated to effect the Merger.

ii. Each of the Registered Terminating Funds will transfer all of its assets which will consist of cash, less an amount required to satisfy the liabilities of the Registered Terminating Fund to the Registered Continuing Fund in exchange for units of the Registered Continuing Fund. The unit exchange will be effected on the basis of the relative net asset values of the applicable units at the close of business on the Merger Date.

iii. Each unitholder of a Registered Terminating Fund will receive the corresponding units of the Registered Continuing Fund.

iv. Each Registered Terminating Fund will distribute to its unitholders sufficient net income and net realized capital gains so that it will not be subject to tax under the Income Tax Act (Canada) ("Tax Act") for its current taxation year.

v. Each Registered Terminating Fund will distribute to its unitholders the units of the Registered Continuing Fund received by it in exchange for all of the unitholders' existing units of the Registered Terminating Fund on a series-by-series basis so that following the distribution the unitholders of the Registered Terminating Fund will become direct unitholders of the Registered Continuing Fund.

vi. The Registered Terminating Funds will be wound up.

20. Approval of the Mergers is required because each Merger does not satisfy the following criteria for pre-approved reorganizations and transfers as set out in section 5.6 of NI 81-102:

a. The investment objectives of each Terminating Fund are not substantially similar to the investment objectives of its corresponding Continuing Fund, as required by subsection 5.6(1)(a)(ii);

b. The Mergers will not be effected under one of the sections of the Tax Act enumerated in subsection 5.6(1)(b);

c. The portfolio assets of each Terminating Fund are not acceptable to the portfolio advisor of its respective Continuing Fund, as required by subsection 5.6(1)(d)(ii); and

d. The materials sent to securityholders of each Terminating Fund did not include the most recently filed fund facts of its corresponding Continuing Fund as required by paragraph 5.6(1)(f)(ii).

21. The investment objectives of each Terminating Fund are not substantially similar to the investment objectives of its corresponding Continuing Fund, as required by subsection 5.6(1)(a)(ii), because (a) each Continuing Fund's investments are restricted primarily to U.S. equity securities while each Terminating Fund's investments are restricted to North American equity securities and (b) for the North American Small/Mid Cap Merger, each Terminating Fund's investments are restricted primarily to small/mid-capitalization issuers while each Continuing Funds' investments do not have a restriction on the capitalization of the issuers.

22. The Registered Mergers will be completed on a taxable basis and so will not satisfy the requirement under subsection 5.6(1)(b). However, as all investors in the Terminating Registered Funds, other than the Filer, hold such funds within registered plans, no investor will be impacted by effecting the Registered Mergers on a taxable basis.

23. The Tax Managed Mergers will be effected on a tax-deferred basis through the exchange of shares within the Corporation but not pursuant to one of the sections of the Tax Act enumerated in subsection 5.6(1)(b). As the Corporation is expected to have sufficent losses to offset any gains realized on the sale of portfolio securities as a result of these Mergers, no investor in the Terminating Tax Managed Funds is expected to be impacted by the Tax Managed Mergers.

24. The portfolio sub-advisor of the Continuing Funds has been provided with a copy of the current investment portfolios of the Terminating Funds and has determined that substantially all of the portfolio securities of the Terminating Funds are not acceptable to it if such securities were to be transferred to the Continuing Funds.

25. As the Continuing Funds are new, they do not yet have a current prospectus or fund facts in the Jurisdictions. As a result, the materials required to be sent to securityholders of the Terminating Funds did not contain the fund facts for the applicable Continuing Fund. Instead of sending the fund facts as required by paragraph 5.6(1)(f)(ii), the Filer sent the Preliminary Prospectus.

26. In the opinion of the Filer, the Mergers will be beneficial to securityholders of the Terminating Funds and those in the Continuing Funds for the following reasons:

a. Securityholders in the Terminating Funds will enjoy potential improved economies of scale and potentially lower proportionate fund operating expenses (which are borne indirectly by securityholders) as part of a larger combined Continuing Fund;

b. Due to the smaller size and historic growth profile of the Terminating Funds, the administrative and regulatory costs of operating the Terminating Funds as stand-alone mutual funds would be higher per securityholder and could potentially increase if the Terminating Funds decrease further in asset size; and

c. The Mergers transition securityholders in the Terminating Funds to growing and more viable Continuing Funds.

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 Exemption Sought is granted.

"Darren McKall"
Manager, Investment Funds Branch
Ontario Securities Commission