CI Investments Inc.
Headnote
National Policy 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 Investment Funds -- terminating funds and continuing funds do not have substantially similar fundamental investment objectives -- mergers otherwise comply with pre-approval criteria, including securityholder vote, IRC approval -- securityholders provided with timely and adequate disclosure regarding the mergers
Applicable Legislative Provisions
National Instrument 81-102 Investment Funds, ss. 5.5(1)(b) and 19.1(2).
March 18, 2021
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 Manager) AND FIRST ASSET UTILITY PLUS FUND FIRST ASSET CANADIAN DIVIDEND OPPORTUNITY FUND (each, a Terminating Fund, and collectively the Terminating Funds)
DECISION
Background
The principal regulator in the Jurisdiction has received an application from the Manager on behalf of the Terminating Funds for a decision under the securities legislation of the Jurisdiction (the Legislation) approving the proposed mergers (each a Merger, and collectively the Mergers) of each of the Terminating Funds into the applicable Continuing Fund (each as defined below) pursuant to paragraph 5.5(1)(b) of National Instrument 81-102 Investment Funds (NI 81-102) (the Merger Approval).
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 subsection 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 and Newfoundland and Labrador (together with Ontario, the Jurisdictions).
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. The following additional terms shall have the following meanings:
Continuing Fund means each of Signature Global Infrastructure Fund and CI North American Dividend Fund;
Fund means each of the Terminating Funds and the Continuing Funds;
Income Tax Act means the Income Tax Act (Canada);
IRC means the independent review committee for the Funds; and
Representations
This decision is based on the following facts represented by the Manager:
The Manager and the Funds
1. The Manager is a corporation amalgamated under the laws of Ontario. The Manager is registered as follows:
(a) under the securities legislation of all provinces and territories as a portfolio manager;
(b) under the securities legislation of Ontario, Quebec and Newfoundland and Labrador as an investment fund manager;
(c) under the securities legislation of all provinces and territories as an exempt market dealer; and
(d) under the Commodity Futures Act (Ontario) as a commodity trading counsel and a commodity trading manager.
2. The Manager is the manager of each Fund.
3. Each Terminating Fund and each Continuing Fund is an open-end mutual fund trust governed by a declaration of trust.
4. Neither the Manager nor the Funds are in default of securities legislation in any province or territory of Canada, as applicable.
5. Each Continuing Fund is a reporting issuer under the securities legislation of each province and territory of Canada and is subject to the requirements of NI 81-102 and National Instrument 81-101 Mutual Fund Prospectus Disclosure. Each Terminating Fund is a reporting issuer under the securities legislation of the Jurisdictions and is subject to the requirements of NI 81-102 and National Instrument 81-101 Mutual Fund Prospectus Disclosure.
6. Each Fund follows the standard investment restrictions and practices established under the securities legislation of the applicable jurisdictions, except to the extent that the Funds have received an exemption from the securities regulatory authority of a jurisdiction to deviate therefrom.
7. Each Terminating Fund currently distributes its securities in all the Jurisdictions pursuant to a simplified prospectus and annual information form dated May 8, 2020, as amended. Each Continuing Fund currently distributes its securities in all the provinces and territories of Canada pursuant to a simplified prospectus and annual information form dated June 25, 2020, as amended.
Reason for Merger Approval
8. Regulatory approval of the Mergers is required because none of the Mergers satisfy all of the criteria for pre-approved reorganizations and transfers set out in section 5.6 of NI 81-102. In particular, in respect of each of Merger 1 and Merger 2 (each as defined below), a reasonable person may not consider the Terminating Fund to have a substantially similar fundamental investment objective as its corresponding Continuing Fund.
9. Other than the criteria described in paragraph 8, each Merger complies with all the other criteria for pre-approved reorganizations and transfers set out in section 5.6 of NI 81-102.
The Proposed Mergers
10. The Manager intends to merge each Terminating Fund into the Continuing Fund shown opposite its name in the table below:
11. The proposed Mergers were announced in:
(a) a press release dated January 18, 2021;
(b) a material change report dated January 20, 2021; and
(c) amendments dated January 20, 2021 to the simplified prospectus, annual information form and fund facts of each of the Terminating Funds, each of which has been filed on SEDAR.
12. As required by National Instrument 81-107 Independent Review Committee for Investment Funds, the Manager presented the terms of the Mergers to the IRC for its review. The IRC determined that the Mergers, if implemented, will achieve a fair and reasonable result for each of the Funds.
13. The Manager is convening a special meeting of the securityholders of each Terminating Fund in order to seek the approval of the securityholders of the Terminating Fund to complete its Merger, as required by paragraph 5.1(1)(f) of NI 81-102 (the Meeting). The Meeting will be held on or about March 25, 2021.
14. The Manager has concluded that the Mergers are not material changes to the Continuing Funds, and accordingly, there is no intention to convene a meeting of securityholders of the Continuing Funds to approve the Mergers pursuant to paragraph 5.1(1)(g) of NI 81-102.
15. By way of order dated July 28, 2017, the Manager was granted relief (the Notice-and-Access Relief) from the requirement set out in paragraph 12.2(2)(a) of National Instrument 81-106 Investment Fund Continuous Disclosure to send a printed management information circular to securityholders while proxies are being solicited, and, subject to certain conditions, instead allows a notice-and-access document (as described in the Notice-and-Access Relief) to be sent to such securityholders. In accordance with the Manager's standard of care owed to the Funds pursuant to securities legislation, the Manager will only use the notice-and-access procedure for a particular meeting where it has concluded it is appropriate and consistent with the purposes of notice-and-access (as described in the Companion Policy to NI 54-101 Communication with Beneficial Owners of Securities of a Reporting Issuer) to do so, also taking into account the purpose of the meeting and whether the Funds would obtain a better participation rate by sending the management information circular with the other proxy-related materials.
16. Pursuant to requirements of the Notice-and-Access Relief, a notice-and-access document and applicable proxies in connection with the Meeting, along with the fund facts of the Continuing Funds, were mailed to securityholders on February 23, 2021 and were concurrently filed via SEDAR. The management information circular (the Circular), which the notice-and-access document provides a link to, was also filed via SEDAR at the same time.
17. If all required approvals for a Merger are obtained, it is intended that the Merger will occur after the close of business on or about April 16, 2021 (the Effective Date). The Manager therefore anticipates that each securityholder of a Terminating Fund will become a securityholder of its 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.
18. The tax implications of the Mergers as well as the differences between the investment objectives and other features of the Terminating Funds and the Continuing Funds and the IRC's recommendation of the Mergers are described in the Circular, so that securityholders may make an informed decision before voting on whether to approve the Mergers. The Circular also describes the various ways in which securityholders can obtain a copy of the simplified prospectus, annual information form and fund facts for the Continuing Funds and their most recent interim and annual financial statements and management reports of fund performance.
19. Securityholders of each Terminating Fund will continue to have the right to redeem 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 securityholders advise otherwise.
20. The costs of effecting the Mergers (consisting primarily of legal and regulatory fees, and proxy solicitation, printing and mailing costs) will be borne by the Manager.
21. No sales charges will be payable by securityholders of the Funds in connection with the Mergers.
22. Securities of the applicable Continuing Funds received by securityholders of the Terminating Funds as a result of the Mergers will have the same sales charge option and, for securities purchased under a deferred sales charge option, the same remaining deferred sales charge schedule, as their securities in the Terminating Funds.
23. The investment portfolio and other assets of each Terminating Fund to be acquired by the applicable Continuing Fund in order to effect the Mergers are currently, or will be, acceptable, on or prior to the Effective Date, to the portfolio manager(s) of the applicable Continuing Fund and are, or will be, consistent with the investment objective of the applicable Continuing Fund.
Merger Steps
24. The specific steps to implement each Merger are as follows:
(a) Prior to a Merger, if required, the Terminating Fund will sell any securities in its portfolio that do not meet the investment objective and investment strategies of the Continuing Fund. As a result, the Terminating Fund may temporarily hold cash or money market instruments and may not be fully invested in accordance with its investment objective for a brief period of time prior to that Merger being effected.
(b) The value of a Terminating Fund's investment portfolio and other assets will be determined at the close of business on the effective date of the applicable Merger in accordance with the constating documents of the Terminating Fund.
(c) Each of the Terminating Fund and the Continuing Fund may declare, pay and automatically reinvest a distribution to its securityholders of net realized capital gains and net income, if any, to ensure that it will not be subject to tax for its current tax year.
(d) The Terminating Fund will transfer substantially all of its assets to the Continuing Fund. In return, the Continuing Fund will issue to the Terminating Fund units of the Continuing Trust Fund having an aggregate net asset value equal to the value of the assets transferred to the Continuing Fund.
(e) The Continuing Fund will not assume liabilities of the Terminating Fund and the Terminating Fund will retain sufficient assets to satisfy its estimated liabilities, if any, as of the effective date of the applicable Merger.
(f) Immediately thereafter, units of the Continuing Fund received by the Terminating Fund will be distributed to securityholders of the Terminating Fund in exchange for their units in the Terminating Fund on a dollar-for-dollar and series-by-series basis.
(g) The Terminating Fund will be wound-up within 30 days following its Merger.
25. The result of each Merger will be that investors in each Terminating Fund will cease to be securityholders of the Terminating Fund and will become securityholders of its Continuing Fund, and the Continuing Funds will continue as publicly-offered open-end mutual funds.
Benefits of the Mergers
26. In the opinion of the Manager, the Mergers will be beneficial to securityholders of the Funds for the following reasons:
(a) it is expected that the Mergers will result in a more streamlined and simplified product line-up with less duplication that is easier for investors to understand;
(b) following the Mergers, each Continuing Fund will have more assets, thereby allowing for increased portfolio diversification opportunities and a smaller proportion of assets to be set aside for fund redemptions;
(c) securityholders of each Terminating Fund will benefit by moving to a Continuing Fund with a much larger net asset value, and each Continuing Fund will benefit from its larger profile in the marketplace; and
(d) the management fee and fixed administration fee with respect to each series of each Continuing Fund will be lower than the management fee and current operating expenses that are currently payable by securityholders of the corresponding series of the applicable Terminating Fund.
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, provided that the Manager obtains the prior approval of the securityholders of the Terminating Funds at a special meeting held for that purpose.