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 – certain mergers have differences in investment objectives – certain mergers not a “qualifying exchange” or a tax-deferred transaction under Income Tax Act – securityholders of terminating funds provided with timely and adequate disclosure regarding the mergers.
Applicable Legislative Provisions
National Instrument 81-102 Mutual Funds – sections 5.5(1)(b), 5.5(3), 5.6.
August 15, 2012
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
LAKEVIEW DISCIPLINED LEADERSHIP U.S. EQUITY FUND
CI JAPANESE CORPORATE Class
CI EUROPEAN FUND
CI EUROPEAN CORPORATE CLASS
SIGNATURE MORTGAGE FUND
Castlerock Canadian Stock fund
CASTLEROCK CANADIAN BOND FUND
CASTLEROCK CANADIAN VALUE FUND
CASTLEROCK CONSERVATIVE PORTFOLIO
(each a Terminating Fund and, collectively, the Terminating Funds)
AND
CAMBRIDGE AMERICAN EQUITY CORPORATE CLASS
CI PACIFIC CORPORATE CLASS
CI INTERNATIONAL CORPORATE CLASS
SIGNATURE SHORT TERM BOND FUND
CAMBRIDGE CANADIAN EQUITY CORPORATE CLASS
SIGNATURE CANADIAN BOND FUND
CI CANADIAN INVESTMENT CORPORATE CLASS
PORTFOLIO SERIES CONSERVATIVE FUND
(each a Continuing Fund and, collectively, the Continuing Funds)
AND
CASTLEROCK CANADIAN STOCK FUND
CASTLEROCK CANADIAN BALANCED FUND
CASTELROCK TOTAL RETURN FUND
CASTLEROCK GLOBAL HIGH INCOME FUND
CASTLEROCK CANADIAN BOND FUND
CASTLEROCK MONEY MARKET FUND
CASTLEROCK CANADIAN VALUE FUND
CASTLEROCK CONSERVATIVE PORTFOLIO
CASTLEROCK BALANCED PORTFOLIO
CASTLEROCK BALANCED GROWTH PORTFOLIO
CASTLEROCK GROWTH PORTFOLIO
(collectively, the Terminating Castlerock Funds, and together with the Continuing Funds and the Terminating Funds, 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) for approval of the merger (each a Merger and, collectively, the Mergers) of a Terminating Fund into its corresponding Continuing Fund under subsection 5.5(1)(b) of National Instrument 81-102 - Mutual Funds (NI 81-102) (the Exemption Sought).
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:
Manager and Fund Information
The Filer is a corporation amalgamated under the laws of Ontario and is registered under the Securities Act (Ontario) as commodity trading manager and commodity trading counsel, investment counsel and portfolio manager, and as a limited market dealer.
The Filer is the manager of the Funds.
Each of Lakeview Disciplined Leadership U.S. Equity Fund, CI European Fund, Signature Mortgage Fund, Castlerock Canadian Stock Fund, Castlerock Canadian Bond Fund, Castlerock Canadian Value Fund, and Castlerock Conservative Portfolio (individually, a “Terminating Trust Fund” and, collectively, the “Terminating Trust Funds”), Signature Short Term Bond Fund, Signature Canadian Bond Fund, and Portfolio Series Conservative Fund are each open-end mutual fund trusts governed by a declaration of trust.
Each of CI Japanese Corporate Class, CI European Corporate Class (individually, a “Terminating Corporate Fund” and, collectively, the “Terminating Corporate Funds”), Cambridge American Equity Corporate Class, CI Pacific Corporate Class, CI International Corporate Class (to be renamed Signature International Corporate Class), Cambridge Canadian Equity Corporate Class and CI Canadian Investment Corporate Class is a mutual fund comprised of two or more classes of convertible special shares of CI Corporate Class Limited (the “Corporation”).
The Corporation is a corporation incorporated under the laws of the Province of Ontario.
Each Fund is a mutual fund that is subject to the requirements of NI 81-102.
The Filer intends to merge each Terminating Fund into the Continuing Fund shown opposite its name in the table below:
Terminating Fund
Continuing Fund
Lakeview Disciplined Leadership U.S. Equity Fund
Cambridge American Equity Corporate Class
CI Japanese Corporate Class
CI Pacific Corporate Class
CI European Fund
CI International Corporate Class (to be renamed Signature International Corporate Class)
CI European Corporate Class
CI International Corporate Class (to be renamed Signature International Corporate Class)
Signature Mortgage Fund
Signature Short Term Bond Fund
Castlerock Canadian Stock Fund
Cambridge Canadian Equity Corporate Class
Castlerock Canadian Bond Fund
Signature Canadian Bond Fund
Castlerock Canadian Value Fund
CI Canadian Investment Corporate Class
Castlerock Conservative Portfolio
Portfolio Series Conservative Fund
Each Terminating Trust Fund currently distributes its securities in all the Jurisdictions pursuant to a simplified prospectus and annual information form dated July 27, 2011 (as amended, the “Terminating Trust Funds Prospectuses”). Each Terminating Corporate Fund currently distributes its securities in all the Jurisdictions pursuant to a simplified prospectus and annual information form dated July 27, 2011 (as amended, the “Terminating Corporate Funds Prospectuses”). Each Terminating Fund has applied for, and expects to receive, an order under the Legislation permitting it to continue distributing its securities under its current prospectus until October 1, 2012 in order that it may have sufficient time to implement its Merger.
The Funds are reporting issuers under the Legislation and are not on the list of defaulting reporting issuers maintained under the Legislation.
Each of the Funds follows the standard investment restrictions and practices established under the Legislation except to the extent that the Funds have received permission from the CSA to deviate therefrom.
Details of the Proposed Mergers
- The proposed Mergers were announced in:
(a) a press release dated May 28, 2012;
(b) a material change report dated May 28, 2012; and
(c) amendments to the Terminating Trust Funds Prospectuses and Terminating Corporate Funds Prospectuses dated May 28, 2012,
each of which has been filed on SEDAR.
- Due to the different structures of the Funds, the procedures for implementing the Mergers will vary. The specific steps (taking into account the particular features of each Fund) are as follows
(a) With respect to the Merger of a Terminating Trust Fund into a Continuing Corporate Fund:
(i) The value of the Terminating Fund's investment portfolio and other assets will be determined at the close of business on the effective date of the merger in accordance with the constating documents of the Terminating Fund and its Continuing Fund.
(ii) The Continuing Fund will acquire substantially all of the investment portfolio and other assets of the Terminating Fund. In return, the Continuing Fund will issue to the Terminating Fund shares of the Continuing Fund having an aggregate net asset value equal to the value of the assets acquired.
(iii) The Continuing Fund will not assume the Terminating Fund's liabilities. Instead, the Terminating Fund will retain sufficient assets to satisfy its estimated liabilities, if any, as of the date of the merger.
(iv) The Terminating Fund will declare, pay and automatically reinvest a distribution to its unitholders of net capital gains and income (if any).
(v) Immediately thereafter, the Terminating Fund will redeem all of its outstanding units at their net asset value and pay for them by delivering to its unitholders shares of an equivalent class of the Continuing Fund having an equal aggregate net asset value.
(vi) The Terminating Fund will be wound-up within 30 days following the merger
(b) With respect to the Merger of a Terminating Trust Fund into a Continuing Trust Fund:
(i) The value of the Terminating Trust Fund’s investment portfolio and other assets will be determined at the close of business on the effective date of the Merger in accordance with the constating documents of the Terminating Trust Fund.
(ii) The Terminating Trust Fund will transfer substantially all of its assets to its corresponding Continuing Fund. In return, the Terminating Trust Fund will be issued units from its corresponding Continuing Fund having an aggregate net asset value equal to the value of the assets transferred to the Continuing Fund.
(iii) The Continuing Fund will not assume any of its Terminating Trust Fund’s liabilities. Instead, the Terminating Trust Fund will retain sufficient assets to satisfy its estimated liabilities, if any, as of the date of the Merger.
(iv) The Terminating Trust Fund and its corresponding Continuing Fund will declare, pay and automatically reinvest a distribution of net capital gains and income (if any).
(v) Immediately thereafter, the Terminating Trust Fund will redeem all of its outstanding units at their net asset value and pay for them by delivering to its unitholders units of an Equivalent Class of its corresponding Continuing Fund (as more specifically described below) having an equal aggregate net asset value.
(vi) The Terminating Trust Fund will be wound-up within 30 days following its Merger.
(c) With respect to the Merger of a Terminating Corporate Fund into a Continuing Corporate Fund:
(i) Each outstanding share of the Terminating Corporate Fund will be exchanged for shares of Equivalent Classes of its corresponding Continuing Fund (as more specifically described below) based on their relative net asset values.
(ii) The assets and liabilities of CI Corporate Class Limited attributed to the Terminating Corporate Fund will be reallocated to its corresponding Continuing Fund.
(iii) As soon as reasonably possible following the Merger, the articles of incorporation of CI Corporate Class Limited will be amended to delete each Terminating Corporate Fund.
Although the procedures for implementing the Mergers may vary, the result of each Merger will be that investors in each Terminating Fund will cease to be securityholders in the Terminating Fund and will become securityholders in the corresponding Continuing Fund.
In the opinion of the Filer, 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) in the case of the Mergers involving Lakeview Disciplined Leadership U.S. Equity Fund, CI European Fund, Castlerock Canadian Stock Fund and Castlerock Canadian Value Fund, investors in the Terminating Fund will become investors in the Corporation which will provide such investors with the opportunity to change mutual fund investments while deferring the realization of any taxable capital gains on their investments;
(c) 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
(d) each Continuing Fund will benefit from a larger profile in the marketplace.
- As required by National Instrument 81-107 – Independent Review Committee for Investment Funds, CI 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 CI to complete the Mergers:
(a) has been proposed by CI free from any influence by an entity related to CI and without taking into account any consideration relevant to an entity related to CI;
(b) represents the business judgement of CI uninfluenced by considerations other than the best interest of the Funds;
(c) is in compliance with CI’s written policies and procedures relating to the Mergers; and
(d) achieves a fair and reasonable result for the Funds.
CI is convening a special meeting (each, a “Meeting” and, collectively, the “Meetings”) of the securityholders of each Terminating Fund in order to seek the approval of the securityholders of each Terminating Fund to complete its Merger, as required by subsection 5.1(f) of NI 81-102. The Meetings will be held on or about August 31, 2012.
In connection with the Meetings, CI has sent to such securityholders a management information circular, a related form of proxy and the simplified prospectus of its Continuing Fund (collectively, the “Meeting Materials”) on August 9, 2012. The Meeting Materials were also filed on SEDAR on August 10, 2012. The management information circular contains the following information that CI has deemed to be material so that securityholders of the Terminating Funds may consider this information may consider this information before voting on the Proposed Mergers: (i) the differences between the Terminating Funds and the Continuing Funds; (ii) the tax implications of the Proposed Mergers; (iii) a statement that the securities of the Continuing Fund acquiring by securityholders upon the Proposed Mergers are subject to the same redemption charges to which their securities of the terminating funds were subject prior to the Proposed Merger; and (iv) the fact that securtiyholders can obtain, at no cost, the annual information form, the most recently filed fund facts, the most recent interim and annual financial statements, and the most recent management report of fund performance that have been made pubic by contacting the Manager or by accessing the documents on the Manager’s website.
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 September 7, 2012 (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.
Each Terminating Fund will be wound-up as soon as reasonably possible following its Merger.
The cost of effecting the Mergers (consisting primarily of proxy solicitation, printing, mailing, legal and regulatory fees) will be borne by the Filer. No sales charge will be payable by any securityholder in connection with the exchange of units of the Terminating Funds into the Continuing Funds.
Securityholders of each Terminating Fund will continue to have the right to redeem their securities of the Terminating Fund at any time up to the close of business on the Effective Date. Following each Merger, all optional plans (including pre-authorized purchase programs, automatic withdrawal plans, systematic switch programs and automatic rebalancing services) which were established with respect to the Terminating Fund will be re-established in comparable plans with respect to its Continuing Fund unless investors advise otherwise.
With the exception of the Merger set out in the chart below, each Terminating Fund has the same distribution policy as its Continuing Fund.
Terminating Fund
Continuing Fund
Castlerock Conservative Portfolio
Portfolio Series Conservative Fund
The Filer bears all of the operating expenses of the Funds (other than certain taxes, borrowing costs and certain new governmental fees) in return for fixed annual administration fees.
Investors pay a commission to their dealers when purchasing securities of any Fund on a front-end sales charge basis. The amount of the commission is negotiable between the investor and his or her dealer, but is not to exceed certain percentages. In all cases, the maximum front-end sales charge applicable to securities of a Continuing Fund is the same or lower than for the equivalent class of securities of its corresponding Terminating Fund.
All Funds have substantially similar arrangements with respect to switch fees.
All Funds calculate their net asset values daily at 4:00 p.m. (Toronto time). Net asset values per unit or share are calculated for each class of securities using similar methodologies and currencies. Assets and liabilities generally are valued in the same manner.
In the opinion of the Filer, a reasonable person may not consider the investment objectives of the Terminating Funds involved in the Mergers set out in the chart below to be substantially similar to the investment objectives of their respective Continuing Funds and, accordingly, such Mergers may not meet the criteria for pre-approved reorganizations under subsection 5.6(1)(a)(ii) of NI 81-102:
Terminating Fund
Continuing Fund
CI Japanese Corporate Class
CI Pacific Corporate Class
CI European Fund
CI International Corporate Class (to be renamed Signature International Corporate Class)
CI European Corporate Class
CI International Corporate Class (to be renamed Signature International Corporate Class)
Signature Mortgage Fund
Signature Short Term Bond Fund
- In the opinion of the Filer, a reasonable person may not consider the fee structures of the Terminating Funds involved in the Mergers set out in the chart below to be substantially similar to their respective Continuing Funds and, accordingly, such Mergers may not meet the criteria for pre-approved reorganizations under subsection 5.6(1)(a)(ii) of NI 81-102:
Terminating Fund
Continuing Fund
Lakeview Disciplined Leadership U.S. Equity Fund
Management Fee (Class A): 2.05%
Management Fee (Class F): 1.05%
Performance Fee Applies: Yes
Cambridge American Equity Corporate Class
Management Fee (Class A): 2.00%
Management Fee (Class F): 1.00%
Performance Fee Applies: No
- The Mergers set out in the chart below will not be implemented as either a “qualifying exchange” within the meaning of section 132.2 of the Income Tax Act (Canada) (the Tax Act) or a tax-deferred transaction under section 85(1), 85.1(1), 86(1) or 87(1) of the Tax Act. Consequently, these Mergers do not meet the criteria for pre-approved reorganizations under subsection 5.6(1)(b) of NI 81-102.
Terminating Fund
Continuing Fund
Signature Mortgage Fund
Signature Short Term Bond Fund
Castlerock Canadian Bond Fund
Signature Canadian Bond Fund
Castlerock Conservative Portfolio
Portfolio Series Conservative Fund
Lakeview Disciplined Leadership U.S. Equity Fund
Cambridge American Equity Corporate Class
CI European Fund
CI International Corporate Class (to be renamed Signature International Corporate Class)
Castlerock Canadian Stock Fund
Cambridge Canadian Equity Corporate Class
Castlerock Canadian Value Fund
CI Canadian Investment Corporate Class
The Filer may rely on an exemption dated November 25, 2004 (the Prior Exemption) from the financial statement delivery provision set out in subsection 5.6(1)(f)(ii) of NI 81-102 in respect of mergers of mutual funds managed by the Filer. The Filer has complied with the conditions of the Prior Exemption in respect of the Mergers.
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)(f)(ii) of NI 81-102 or subsection 5.6(1)(b) of NI 81-102.
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.
“Raymond Chan”
Raymond Chan,
Manager, Investment Funds Branch
Ontario Securities Commission