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 -- transaction will not result in any material changes to operations and management of the manager or the funds it manages.
Applicable Legislative Provisions
National Instrument 81-102 Investment Funds, ss. 5.5(1)(a.1) and 5.5(3).
August 25, 2020
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 TIMBERCREEK INVESTMENT MANAGEMENT INC. (the Manager) AND IN THE MATTER OF TIMBERCREEK GLOBAL REAL ESTATE INCOME FUND (the Fund)
The principal regulator in the Jurisdiction (the Decision Maker) has received an application from the Manager for a decision under the securities legislation of the Jurisdiction (the Legislation) for approval pursuant to subsection 5.5(1)(a.1) of National Instrument 81-102 Investment Funds (NI 81-102) of a change of control of the Manager (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 Manager 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, Newfoundland and Labrador, Northwest Territories, Yukon and Nunavut (the Other Jurisdictions and together with Ontario, the Jurisdictions).
Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this decision, unless otherwise defined.
This decision is based on the following facts represented by the Manager:
The Manager and the Fund
1. The Manager is a corporation incorporated under the laws of the Province of Ontario. The Manager's head office is located in Ontario.
2. The Manager is registered: (a) as an exempt market dealer in the provinces of Ontario, British Columbia, Alberta, Manitoba and Quebec, (b) as a portfolio manager in the province of Ontario, and (c) as an investment fund manager in the provinces of Ontario, Quebec and Newfoundland and Labrador.
3. The Manager is the investment fund manager and trustee of the Fund and provides investment advice and portfolio management services to the Fund.
4. The Fund is a reporting issuer in the Jurisdictions. Several series of mutual fund units of the Fund are qualified for distribution in the Jurisdictions by a simplified prospectus and annual information form.
5. The Fund is marketed and distributed through registered dealers.
6. Neither the Manager nor the Fund is in default of any of the securities law requirements of the Jurisdictions.
The Proposed Transaction
7. The Manager is part of the Timbercreek group of companies (the Timbercreek Group). On March 9, 2020, as part of a pending reorganization of the Timbercreek Group, Timbercreek Asset Management LLC (TAML), the sole shareholder of the Manager, entered into an agreement to transfer all of the voting shares in the Manager to Timbercreek Equities Corp. (TEC) (the Transaction).
8. Prior to completion of the Transaction, the co-founders of the Timbercreek Group Messrs. Blair Tamblyn and Ugo Bizzarri hold 87.5% and 3% respectively of 5030987 Ontario Limited (the Numbered Company), the sole shareholder of TAML. The remaining 9.5% interest in the Numbered Company is held by various shareholders (the Minority Shareholders).
9. Upon completion of the Transaction, Mr. Bizzarri will hold 100% of Tre Lupi Inc. (Ontario), which will be the sole shareholder of TEC, and TEC will be the sole shareholder of the Manager. The Transaction will result in a change of control of the Manager, since the percentage of the Manager's voting shares indirectly held by Mr. Bizzarri will increase from 3% to 100%. Mr. Tamblyn will no longer have rights of control in respect of the Manager, and the Minority Shareholders will no longer hold any interest in the Manager.
10. Completion of the Transaction will complete the reorganization of the Timbercreek Group into two distinct operating businesses, comprising (i) non-bank private commercial real estate debt financing (the Debt Business), and (ii) direct real estate asset management and securities advisory services (the Equity Business), such that TAML, through a wholly-owned subsidiary, would operate the Debt Business, and Mr. Bizzarri would take ownership of the Equity Business through TEC, his indirectly wholly-owned holding company.
11. The completion of the Transaction is subject to the satisfaction of closing conditions, including regulatory approvals and is expected to close following receipt of the regulatory approvals and the expiration of the notice period provided for in section 5.8(1)(a) of NI 81-102.
Proposed Change of Control
12. The Transaction will result in a change of control of the Manager.
13. The current directors of the Manager are Blair Tamblyn, Cameron Goodnough, Carrie Morris and Corrado Russo. The current officers of the Manager are Blair Tamblyn, Gigi Wong and Timothy Fitzpatrick. It is anticipated that Blair Tamblyn will resign as Ultimate Designated Person (UDP) and Chief Executive Officer (CEO) and Ugo Bizzarri will be appointed UDP and CEO of the Manager following the closing of the Transaction and will have overall responsibility for the investment management activities of the Manager. Timothy Fitzpatrick will continue in his capacity as Chief Compliance Officer.
14. Although the Manager does not consider the change of control material, a press release describing the Transaction will be issued by the Manager. An amendment to the Fund's Simplified Prospectus and Annual Information Form dated June 26, 2020 describing the Transaction was receipted on June 26, 2020.
15. TEC and the Manager confirm that TEC intends to undergo a rebranding project within 3 to 6 months of the date hereof, which will include a change of name of the Manager, and of TEC, under the new brand. TEC intends to effect the Transaction on or about the date of the launch of the rebranding so as to mitigate any potential confusion among investors.
16. In any event, at least 60 days prior written notice describing the Transaction and the resulting change of control will be sent to securityholders of the Fund after receipt of all regulatory approvals, pursuant to section 5.8(1)(a) of NI 81-102 (the Notice Requirement). The Transaction will not close and the change of control will not be effected prior to completion of the notice period set out in the Notice Requirement.
17. In respect of the impact of the proposed change of control of the Manager on the management and administration of the Fund:
a. TEC and the Manager confirm that for at least the foreseeable period of approximately twelve months following the change of control, the Manager will be operated as a distinct, stand-alone legal entity and there is no current intention to:
i. make any substantive changes to how the Manager operates or manages the Fund;
ii. merge the Fund or change the structure, investment objective, investment strategies or valuation procedures of the Fund;
iii. amalgamate or merge the Manager with another investment fund manager;
iv. change the investment fund manager or portfolio manager of the Fund;
v. change the individual portfolio manager of the Manager (currently Corrado Russo) who is responsible for managing the investment portfolio of the Fund;
vi. change the fees and expenses that are charged to the Fund and investors in the Fund;
vii. rationalize personnel or systems;
viii. except as referred to in representation 13, change any of the directors, officers or employees involved in any of the day-to-day business, operations or affairs of the Manager or the Fund, other than as a result of ordinary course personnel turnover;
ix. make changes to fund accounting and other administrative functions undertaken by the current providers, both internal and external, to the Manager or the Fund; or
x. make changes to the custodian of the Fund.
b. The change of control of the Manager will have no negative consequences on the ability of the Manager to comply with all applicable regulatory requirements or its ability to satisfy its obligations to the Fund.
c. The Manager currently intends to maintain the Fund as a separately managed fund, with the Manager as the Fund's investment fund manager and portfolio manager, after the Transaction closes.
d. The Transaction will not result in any material change in how the Manager operates or acts in relation to the Fund. The Transaction will not have any impact on the securityholders' interest in the Fund and securityholders are not required to take any action.
e. Following the closing of the Transaction, the Manager will continue to act as the investment fund manager and portfolio manager of the Fund in the same manner as it conducted such activities immediately prior to the closing of the Transaction.
f. All directors and officers of the Manager following closing of the Transaction have the requisite integrity and experience to fulfil their roles. Mr. Bizzarri has over 25 years of experience in the valuation, acquisition and disposition of investment-grade cash-flowing real estate relevant to the Fund's strategy of investing in securities issued by real estate investment trusts and other real estate investment issuers. Prior to co-founding the Timbercreek Group, Mr. Bizzarri was in portfolio management at the Ontario Teachers' Pension Plan Board where he played a leadership role in the strategic planning, corporate transactions/restructuring and property acquisitions for the real estate group. Mr. Bizzarri is an independent Director of Cymbria Corp., an investment manager. Mr. Bizzarri is a graduate of the Ivey School of Business and holds the Chartered Financial Analyst designation.
g. Although the current members of the Fund's independent review committee (IRC) will automatically cease to be members of the IRC by operation of section 3.10(1)(c) of National Instrument 81-107 Independent Review Committee for Investment Funds upon the closing of the Transaction, the Manager intends to reappoint them immediately after the closing of the Transaction.
h. The Transaction is not expected to adversely impact the financial stability of the Manager or its ability to fulfill its regulatory obligations.
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.