Headnote NP 11-203 – Coordinated Review – Lapse date of mutual fund prospectus extended for merger of the funds – Extension of lapse date will not affect the currency or accuracy of the information contained in the prospectus – Securities Act (Ontario)
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c.S.5, as amended, sections 62(1.1) and 147.
July 13, 2010
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
Artisan Canadian T-Bill Portfolio
Artisan Most Conservative Portfolio
Artisan Conservative Portfolio
Artisan Moderate Portfolio
Artisan Growth Portfolio
Artisan High Growth Portfolio
Artisan Maximum Growth Portfolio
Artisan New Economy Portfolio
(the Artisan Portfolios)
Institutional Managed Income Pool
Institutional Managed Canadian Equity Pool
Institutional Managed US Equity Pool
Institutional Managed International Equity Pool
(The Institutional Managed Pools)
Select Income Managed Corporate Class
Select 100i Managed Portfolio Corporate Class
(the Select Corporate Classes)
(tHE aRTISAN pORTFOLIOS, THE iNSTITUTIONAL mANAGED pOOLS AND THE sELECT Corporate cLASSES, COLLECTIVELY, the FUNDS)
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) that the time limit pertaining to the distribution of securities of the Funds under their respective simplified prospectuses (the Prospectuses) be extended to permit the continued distribution of securities of the Funds until September 18, 2010 (the Exemption Sought).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
(i) the Ontario Securities Commission is the principal regulator for this application; and
(ii) 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 each of the other provinces and territories of Canada (collectively, with Ontario, the Jurisdictions).
Interpretation
Terms defined in National Instrument 14-101 Definitions 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 and the Funds:
The Filer
The Filer is the manager of the Funds. The Filer and the Funds are not in default of any of the requirements of the Legislation.
The Funds are reporting issuers under the Legislation. Securities of the Select Corporate Classes are currently qualified for distribution in all Jurisdictions under a simplified prospectus and annual information form dated July 18, 2009, as amended (the Select Corporate Classes Prospectus). Securities of the Artisan Portfolios are currently qualified for distribution in all Jurisdictions under a simplified prospectus and annual information form dated July 25, 2009, as amended (the Artisan Prospectus). Securities of the Institutional Managed Pools are currently qualified for distribution in all Jurisdictions under a simplified prospectus and annual information form dated July 25, 2009, as amended (the IMP Prospectus).
Pursuant to the Legislation, the lapse date for the distribution of securities under the Select Corporate Classes Prospectus is July 18, 2010 and the lapse date for the distribution of securities under the Artisan Prospectus and the IMP Prospectus is July 25, 2010 (collectively, the Lapse Dates).
Pursuant to the Legislation, in order to renew each Prospectus of the Funds, the following matters (among others) are required in order for the Funds to be eligible to rely on the provisions deeming continuous prospectus qualification contained in section 2.5(4) of National Instrument 81-101 Mutual Fund Prospectus Disclosure and section 62(2) of the Securities Act (Ontario):
(a) a pro forma simplified prospectus and annual information form is required to be filed 30 days prior to the Lapse Date of the Prospectus; and
(b) the final version the simplified prospectus is required to be filed not later than 10 days following the Lapse Date of the Prospectus and a receipt for such final prospectus must be issued within 20 days following the Lapse Date of the Prospectus.
On June 11, 2010, the Filer announced by press release, in connection with which a material change report and amendments to each Prospectus were filed on SEDAR, that it is proposing to streamline its mutual fund line-up by merging the Funds into other mutual funds managed by it.
The independent review committee of the Funds has reviewed all of the proposed mergers with respect to conflict of interest matters and determined that the mergers will achieve a fair and reasonable result for investors. Subject to obtaining all applicable investor, regulatory and other required approvals, the Filer intends to effect the mergers on or about September 18, 2010, after which the Funds will be wound up.
The mergers will be effected in accordance with applicable requirements of the Legislation, including National Instrument 81-102 Mutual Funds, National Instrument 81-106 Investment Fund Continuous Disclosure (NI 81-106) and National Instrument 81-107 Independent Review Committee for Investment Funds.
Special meetings of the securityholders of the Funds will be held on September 17, 2010 to approve the mergers of the Funds into other mutual funds managed by the Filer.
In view of the proposed mergers, the Filer does not intend to file renewal prospectuses for the Funds. Securities of the Funds will therefore not be qualified for distribution during the period from the Lapse Date of the Prospectus to the effective date of the mergers unless the Exemption Sought is granted. The Filer wishes to continue to distribute securities of the Funds during that period and expects sales principally to be to existing investors in the Funds participating in systematic trading programs, including pre-authorized purchase plans, automatic rebalancing services and pre-authorized switching plans. An extension of the Lapse Dates to September 18, 2010 is therefore requested.
If the Exemption Sought is not granted:
(a) a pro forma simplified prospectus for the Select Corporate Classes would have been required to be filed by June 18, 2010 and a final simplified prospectus would be required to be filed by July 28, 2010; and
(b) pro forma simplified prospectuses for the Artisan Portfolios and Institutional Managed Pools would have been required to be filed by June 25, 2010 and final simplified prospectuses would be required to be filed by August 4, 2010,
in accordance with the existing time limits for the renewal of each Prospectus, notwithstanding that the Funds will be wound up after the effective date of the mergers. No pro forma simplified prospectuses were filed in order to avoid the costs and potential confusion which may result from the Funds having renewal prospectuses that would be used for less than two months.
There have been no material changes in the affairs of the Funds other than those for which amendments to each Prospectus have been filed. Accordingly, each Prospectus represents the current information regarding the Funds.
The extension requested will not affect the currency or accuracy of the information contained in each Prospectus, as it may be further amended in accordance with NI 81-106, and accordingly will not be prejudicial to the public interest.
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.
“James E.A. Turner” “Paulette L. Kennedy”
Name: James E.A. Turner Name: Paulette L. Kennedy
Title: Vice Chair Title: Commissioner
Ontario Securities Commission Ontario Securities Commission