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-approved reorganizations and transfers in National Instrument 81-102 – certain continuing funds have different investment objectives and fee structures than terminating funds, certain mergers are not “qualifying exchanges” or tax-deferred transactions under the Income Tax Act (Canada) –annual and interim financial statements not sent in connection with approval in reliance on previous relief – investors of terminating funds provided with adequate disclosure regarding the mergers.
Applicable Legislative Provisions
National Instrument 81-102 Mutual Funds sections 5.5(1)(b), 5.6 and 5.5(3).
August 13, 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 CI INVESTMENTS INC. (the Filer)
AND
IN THE MATTER OF THE TERMINATING FUNDS AND THE CONTINUING FUNDS LISTED IN THE CHART ATTACHED AS SCHEDULE A (collectively, the Funds)
DECISION
Background
The principal regulator in the Jurisdiction has received an application from the Filer on behalf of the Terminating Funds for a decision under the securities legislation of the Jurisdiction (the Legislation) granting approval under section 5.5(1)(b) of National Instrument 81-102 Mutual Funds (NI 81-102) to merge each Terminating Fund into the Continuing Fund opposite its name in the chart attached as Schedule A (the Mergers) (the Merger Approval).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
the Ontario Securities Commission is the principal regulator for this application; and
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, Quebec, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, Yukon, Northwest Territories and Nunavut.
Interpretation
Terms defined 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:
The Filer
- The Filer is:
(a) a corporation amalgamated under the laws of Ontario;
(b) registered under the Securities Act (Ontario) in the categories of commodity trading counsel and commodity trading manager, investment counsel and portfolio manager, and limited market dealer;
(c) the manager of the Funds; and
(d) not in default of securities legislation in any jurisdiction.
The Funds
Each of the Funds listed in Schedule A with a name ending in the word “Fund” is an open-end mutual fund trust. The Terminating Funds that are mutual fund trusts are sometimes referred to below as the Terminating Trust Funds.
Each of the Funds listed in Schedule A with a name ending in the words “Corporate Class” is an open-end mutual fund and a class of special shares of CI Corporate Class Limited (the Corporation). The Corporation is a corporation incorporated under the laws of Ontario.
Each Fund, except for Blackmont Corporate Bond Fund, currently distributes its securities in all provinces and territories of Canada pursuant to a multi-fund simplified prospectus and annual information form each dated July 18, 2008, as amended (the SP and AIF, respectively). Each Terminating Fund, other than Blackmont Corporate Bond Fund, received lapse date extension relief under a decision of the Ontario Securities Commission dated July 19, 2009 to continue distributing its securities under the SP and AIF until August 17, 2009.
Securities of Blackmont Corporate Bond Fund were previously offered and distributed in all provinces and territories of Canada pursuant to a simplified prospectus and annual information form each dated March 13, 2008, as amended. Securities of Blackmont Corporate Bond Fund are no longer in distribution.
The Funds are reporting issuers under the Legislation and subject to the requirements of NI 81-102. The Funds are not on the list of defaulting reporting issuers maintained under the Legislation or in default of securities legislation in any jurisdiction.
Each Fund follows the standard investment restrictions and practices established under the Legislation except to the extent that the Funds have received permission from the Canadian Securities Administrators to deviate therefrom.
As of March 31, 2009, the net asset value (NAV) of the Funds was as set out in Schedule A.
The Mergers
- The Filer believes the Mergers will be beneficial to securityholders of each Fund for the following reasons:
(a) it is expected that each Merger will reduce duplication and redundancy;
(b) following the Mergers, each Continuing Fund will have more assets, thereby allowing for increased portfolio diversification opportunities and a smaller proportion of assets set aside to fund redemptions; and
(c) each Continuing Fund will benefit from its larger profile in the marketplace.
As required by National Instrument 81-107 – Independent Review Committee for Investment Funds, the Filer presented the terms of the Mergers to the independent review committee of the Funds (the IRC) for its review. The IRC determined that the decision of the Filer to complete the Mergers: (a) has been proposed by the Filer free from any influence by an entity related to the Filer and without taking into account any consideration relevant to an entity related to the Filer; (b) represents the business judgement of the Filer uninfluenced by considerations other than the best interest of the Funds; (c) is in compliance with the Filer’s written policies and procedures relating to the Mergers; and (d) achieves a fair and reasonable result for the Funds (the IRC’s Determination).
Due to the different structures of the Funds, the procedures for implementing the Mergers will vary. However, the result of each Merger will be that investors in each Terminating Fund will cease to be holders of securities of a class of the Terminating Fund and will become holders of securities of an equivalent class of its corresponding Continuing Fund.
The Filer expects that CI Global Consumer Products Corporate Class and CI Global Financial Services Corporate Class which, as at March 31, 2009, had a larger combined NAV than their corresponding Continuing Fund, CI Global Value Corporate Class, will each liquidate portions of their investment portfolios prior to the Mergers, such that a majority of the assets that will be allocated to CI Global Value Corporate Class in connection with these Mergers will consist of cash.
The proposed Mergers were described in (i) a press release issued and filed on SEDAR on June 11, 2009, (ii) a material change report filed on SEDAR on June 11, 2009, and (iii) amendments to the SP and AIF, each dated June 11, 2009.
Investors in the Terminating Funds approved their Mergers at special meetings that were held concurrently on August 10, 2009. The Filer concluded that none of the Mergers constituted a material change for any Continuing Fund and accordingly, no approvals were sought from investors in the Continuing Funds pursuant to section 5.1(g) of NI 81-102.
The materials sent to investors in a Terminating Fund in connection with their approval included a management information circular dated July 6, 2009 (the Circular) and the applicable simplified prospectus for its corresponding Continuing Fund. The Circular set out:
(a) the proposed Mergers, including the procedures for implementing them and the consequences of the Mergers, including their tax consequences for the Funds and for investors in the Funds;
(b) the similarities and differences between the Terminating Funds and the Continuing Funds, including the differences referred to in Schedule A;
(c) the various ways in which investors can obtain a copy of the annual information form and most recent annual and interim financial statements for the Continuing Funds; and
(d) the IRC’s Determination.
- The Circular explained that for Mergers that will not be implemented as either a qualifying exchange or a tax deferred transaction as contemplated by NI 81-102:
(a) the Filer does not anticipate such Mergers giving rise to material adverse tax consequences for the Terminating Trust Funds and their investors; and
(b) each Continuing Fund in these Mergers has significant unutilized loss carryforwards that would be lost if these Mergers were completed on a tax-deferred basis.
If all required approvals for each Merger are obtained, it is proposed that each Merger will occur after the close of business on or about August 14, 2009 (the Effective Date). The Filer therefore anticipates that a securityholder of a Terminating Fund will become a securityholder of its corresponding Continuing Fund after the close of business on the Effective Date.
The Filer previously received and is relying on an exemption dated November 25, 2004 obtained by the Filer from the financial statement delivery provision in section 5.6(1)(f)(ii) of NI 81-102 in respect of mergers of mutual funds managed by the Filer (the Prior Exemption). The Filer has complied with the conditions of the Prior Exemption in respect of the Mergers.
The cost of effecting the Mergers (consisting primarily of proxy solicitation, printing, mailing, legal and regulatory fees) will be borne by the Filer.
Securityholders of the Terminating Funds will continue to have the right to redeem securities of the Terminating Funds at any time up to the close of business on the Effective Date.
Each Terminating Fund will be wound up as soon as reasonably possible following its Merger.
In the opinion of the Filer, each Merger satisfies all of the criteria for pre-approved reorganizations and transfers set forth in section 5.6 of NI 81-102, except either the criteria contained in subsection 5.6(1)(a)(ii) of NI 81-102, subsection 5.6(1)(b) of NI 81-102 or subsection 5.6(1)(f)(ii) of NI 81-102 as set out in Schedule A.
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 Merger Approval is granted.
“Darren McKall”
Name: Darren McKall
Title: Assistant Manager, Investment Funds
Ontario Securities Commission
Schedule A
Terminating Fund & $CAD NAV as at March 31, 2009
Continuing Fund & $CAD NAV as at
March 31, 2009
Section 5.6(1)(a)(ii) – investment objectives may not be considered substantially similar by a reasonable person
Section 5.6(1)(a)(ii) – fee structures may not be considered substantially similar by a reasonable person
Section 5.6(1)(b) – Merger will not be implemented as either a qualifying exchange or tax deferred transaction as contemplated by NI 81-102
Section 5.6(1)(f)(ii) –
Annual and interim financial statements not sent in connection with approval
Different
distribution policies
Blackmont Corporate Bond Fund – $12.9 mill
Signature Corporate Bond Corporate Class – $83.8 mill
CI Global Consumer Products Corporate Class – $10.4 mill
CI Global Value Corporate Class – $29.6 mill
CI Global Financial Services Corporate Class – $28.0 mill
Knight Bain Canadian Bond Fund –$187.2 mill
Signature Canadian Bond Fund –
$1.6 bill
Knight Bain Corporate Bond Fund – $2.7 mill
Knight Bain Diversified Monthly Income Fund – $32.6 mill
Signature Global Income & Growth Fund – $77.6 mill
Knight Bain Pure Canadian Equity Fund – $37.9 mill
Signature Select Canadian Fund –
$3.2 bill
Knight Bain Small Cap Fund – $215,287
CI Can-Am Small Cap Corporate Class – $97.2 mill
Signature Canadian Asset Allocation Fund – $286.8 mill
Signature Canadian Balanced Fund –$1.3 bill
Synergy Canadian Style Management Corporate Class – $179.5 mill
Synergy Canadian Corporate Class – $1.0 bill
Synergy Focus Canadian Equity Fund – $45.6 mill
Synergy Focus Global Equity Fund – $42.1 mill
Synergy Global Corporate Class – $179.6 mill
Signature Long-Term Bond Fund – $91.8 mill
Signature Canadian Bond Fund – $1.6 bill
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-approved reorganizations and transfers in National Instrument 81-102 – certain continuing funds have different investment objectives and fee structures than terminating funds, certain mergers are not “qualifying exchanges” or tax-deferred transactions under the Income Tax Act (Canada) –annual and interim financial statements not sent in connection with approval in reliance on previous relief – investors of terminating funds provided with adequate disclosure regarding the mergers.
Applicable Legislative Provisions
National Instrument 81-102 Mutual Funds sections 5.5(1)(b), 5.6 and 5.5(3).