Application: In the Matter of Vengrowth Funds et al.

IN THE MATTER OF THE SECURITIES ACT,
R.S.O. 1990, c. S.5 as amended

AND

IN THE MATTER OF AN APPLICATION BY THE SPECIAL COMMITTEE OF
DIRECTORS OF THE VENGROWTH FUNDS

AND

IN THE MATTER OF GROWTHWORKS CANADIAN
FUND LTD. AND GROWTHWORKS LTD.

APPLICATION

This application to the Ontario Securities Commission is brought by the applicant, the Special Committee of Directors of The VenGrowth Investment Fund Inc., The VenGrowth II Investment Fund Inc., The VenGrowth III Investment Fund Inc., The VenGrowth Advanced Life Sciences Fund Inc., and The VenGrowth Traditional Industries Fund Inc. (the "VenGrowth Funds"). 

This application will come on for a hearing on a date, at a time and at a place to be set by the Secretary of the Commission. 

1. The applicant makes application for: 

(a) an order permitting this application to be heard, 

(b) an order pursuant to subsection 127(1)2 of the Securities Act, R.S.O. 1990, c. S.5, as amended (the “Act”) that trading in securities of GrowthWorks Canadian Fund Ltd. (“GrowthWorks") by or on behalf of the respondents, GrowthWorks and GrowthWorks Ltd., with respect to GrowthWorks’ proposed acquisition of the VenGrowth Funds, cease for such period as is specified in the order,

(c) an order pursuant to subsection 127(1)5 of the Act that GrowthWorks' information circular dated March 14, 2011, and its related support agreement and other documents sent to VenGrowth Shareholders or published on the GrowthWorks website not be provided by or on behalf of the respondents to any VenGrowth Shareholders and that these documents be removed from the GrowthWorks website, and

(d) such further and other relief as counsel may request and the Commission may order.

2. The grounds for this application are:

(a) GrowthWorks is attempting to acquire the VenGrowth Funds by soliciting their shareholders (the “VenGrowth Shareholders”) to sign support agreements giving GrowthWorks an irrevocable power of attorney to requisition shareholder meetings of the VenGrowth Funds and vote VenGrowth Shareholders’ shares at such meetings,

(b) the solicitation is being made, in part, through an “information circular” dated March 14, 2011 and other documents and statements that are misleading and omit material information,

(c) GrowthWorks’ solicitation is a solicitation of proxies that contravenes Ontario securities law and the Canada Business Corporations Act (“CBCA”),

(d) GrowthWorks’ support agreement contravenes the CBCA and Ontario securities law and is itself misleading,

(e) GrowthWorks’ attempt to create an irrevocable proxy to enable it to acquire the VenGrowth Funds is inconsistent with the animating principles of the Act with respect to take-over bids and proxy solicitation,

(f) it is in the public interest for the Commission to permit this application to be heard,

(g) it is in the public interest for the Commission to make orders prohibiting the continuation of GrowthWorks’ solicitation and other conduct in furtherance of its proposed acquisition of the VenGrowth Funds,

(h) section 127 of the Act,

(i) Rule 16 of the Ontario Securities Commission Rules of Procedure, and

(j) such further and other grounds as counsel may advise.

3. The documentary evidence to be used at the hearing of this application is: 

(a) the Application Record,  

(b) any further material as may be necessary for the hearing of this Application,  

 

Date: May 2, 2011
PHILIP ANISMAN Barrister and Solicitor 80 Richmond Street West, Suite 1704 Toronto, Ontario M5H 2A4 Telephone: 416.363.4200 Fax: .416.363.6200 Email: anismanphil@on.aibn.com LSUC 12234V		MILLER THOMSON LLP Scotia Plaza 40 King Street West, Suite 5800 P.O. Box 1011 Toronto, Ontario M5H 3S1 Jay M. Hoffman LSUC 26930S Telephone: 416.595.8508 Fax: 416.595.8695 Email: jhoffman@millerthomson.com Emily Cole LSUC 34620Q Telephone: 416.595.8640 Fax: 416.595.8695 Email: ecole@millerthomson.com Fax: 416.595.8695

Counsel for the Applicant

 

To:	GROWTHWORKS CANADIAN FUND LTD. c/o McCarthy Tetrault LLP Box 48, 5300-66 Wellington Street West Toronto Dominion Bank Tower Toronto, Ontario M5K IE6 Jonathan R. Grant
AND TO:	GROWTHWORKS LTD. c/o Davies Ward Phillips & Vineberg LLP 44th Floor, 1 First Canadian Place P.O. Box 63, Stn. 1st Canadian Place Toronto, Ontario M5X 1B1 J. Alex Moore
AND TO:	ONTARIO SECURITIES COMMISSION CORPORATE FINANCE BRANCH, MERGERS AND ACQUISITIONS Ontario Securities Commission 19th Floor, 20 Queen Street West Toronto, Ontario M5H 3S8 Naizam Kanji, Deputy Director
AND TO:	ONTARIO SECURITIES COMMISSION INVESTMENTS FUNDS BRANCH Ontario Securities Commission 19th Floor, 20 Queen Street West Toronto, Ontario M5H 3S8 Vera Nunes, Assistant Manager