Mutual Reliance Review System for Exemptive Relief Applications - Investment by mutualfunds in securities of another mutual fund that is under common management for specifiedpurposes excepted from the requirements of section 101, clause 111(2)(b), andsubsection 111(3), clauses 117(1)(a) and (d), subject to certain specified conditions.
Securities Act (Ontario), R.S.O., c.S.5, as am. ss. 101, 104(2)(c), 111(2)(b), 111(3), 113,117(1)(a), 117(1)(d) and 117(2).
THE SECURITIES LEGISLATION
OF BRITISH COLUMBIA, ALBERTA,
SASKATCHEWAN, MANITOBA, ONTARIO,
QUÉBEC, NOVA SCOTIA AND NEWFOUNDLAND
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEW SYSTEM FOR EXEMPTIVE RELIEF APPLICATIONS
IN THE MATTER OF
ALTAMIRA RSP JAPANESE OPPORTUNITY FUND, ALTAMIRA RSP SCIENCE AND TECHNOLOGY FUND ANDALTAMIRA RSP e-business FUND
WHEREAS the Canadian securities regulatory authority or regulator (the "DecisionMaker") in each of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Québec,Nova Scotia and Newfoundland (the "Jurisdictions") has received an application from AltamiraInvestment Services Inc. ("AISI"), as manager and trustee of Altamira RSP JapaneseOpportunity Fund ("RSP Japanese Opportunity Fund"), Altamira RSP Science andTechnology Fund ("RSP Science and Technology Fund") and Altamira RSP e-business Fund("RSP e-business Fund") (RSP Japanese Opportunity Fund, RSP Science and TechnologyFund and RSP e-business Fund, collectively, the "RSP Funds") for a decision pursuant to thesecurities legislation of the Jurisdictions (the "Legislation") that the following requirements andrestrictions contained in the Legislation (the "Requirements") shall not apply in respect ofcertain investments to be made by RSP Japanese Opportunity Fund in Altamira JapaneseOpportunity Fund ("Japanese Opportunity Fund"), by RSP Science and Technology Fund inAltamira Science and Technology Fund ("Science and Technology Fund") and by RSP e-business Fund in Altamira e-business Fund ("e-business Fund") (Japanese Opportunity Fund,Science and Technology Fund and e-business Fund, collectively, the "Underlying Funds".A reference to an Underlying Fund shall be interpreted to be a reference to JapaneseOpportunity Fund when used in relation to RSP Japanese Opportunity Fund, to Science andTechnology Fund when used in relation to RSP Science and Technology Fund and to e-business Fund when used in relation to RSP e-business Fund).
A. the requirements contained in the Legislation requiring each RSP Fund and AISI (asmanager) to issue a news release and file a report where the aggregate holdings bythe RSP Fund of units of an Underlying Fund exceed 10% of the outstanding units ofthe Underlying Fund and the requirements to not acquire or offer to acquire units ofthe Underlying Fund pending the expiration of one business day from the date thereport is filed;
B. the requirements contained in the Legislation requiring AISI to file a report relating tothe purchase or sale of securities between an RSP Fund and any related person orcompany, or any transaction in which, by arrangement other than an arrangementrelating to insider trading and portfolio securities, an RSP Fund is a joint participantwith one or more of its related persons or companies;
C. the requirements contained in the Legislation prohibiting the RSP Funds fromknowingly making or holding an investment in a person or company in which themutual fund, alone or together with one or more related mutual funds, is a substantialsecurity holder.
AND WHEREAS pursuant to the Mutual Reliance Review System for Exemptive ReliefApplications (the "System"), the Ontario Securities Commission is the principal regulator forthis Application;
AND WHEREAS AISI has represented to the Decision Makers that:
1. AISI is a corporation amalgamated under the laws of Canada. AISI will be themanager, trustee and promoter of each RSP Fund and is the manager, trustee andpromoter of each Underlying Fund (collectively, the "Funds"). AISI's head office islocated in Toronto, Ontario.
2. Each Underlying Fund is an open-end mutual fund trust established under the laws ofOntario which is qualified for distribution in all Jurisdictions under a simplifiedprospectus and annual information form. Each RSP Fund will be an open-end mutualfund trust and will be qualified for distribution in all Jurisdictions under a simplifiedprospectus and annual information form.
3. Each Underlying Fund is, and each RSP Fund will be, a reporting issuer under thesecurities laws of each of the provinces and territories of Canada.
4. The prospectus and annual information form of the RSP Funds will contain disclosurewith respect to the investment objective, investment practices and restrictions of eachRSP Fund. The investment objective of each RSP Fund is to achieve long termgrowth that is linked to the return of the applicable Underlying Fund by investing incash and bank deposits, money market instruments and other securities, and by usingforward contracts or other permitted derivatives based on a specific group of securitiesbased on the portfolio of the applicable Underlying Fund or the units of the applicableUnderlying Fund. As part of its investment practice, each RSP Fund intends to investin units of the applicable Underlying Fund. All purchases of the Underlying Funds willbe made through Altamira Financial Services Ltd.
5. The purchase and sale of units of an Underlying Fund by an RSP Fund will representthe business judgment of responsible persons uninfluenced by considerations otherthan the best interests of the RSP Fund.
6. Each RSP Fund will make investments such that its units will be "qualifiedinvestments" for registered retirement savings plans, registered retirement incomefunds and deferred profit sharing plans (collectively, the "Registered Plans") under theIncome Tax Act (Canada) (the "Tax Act") and, based on an opinion of counsel to AISI,will not constitute foreign property to a Registered Plan.
7. The direct investment by an RSP Fund in units of an Underlying Fund (the "PermittedRSP Fund Investment") will be in an amount not to exceed the amount prescribedfrom time to time as the maximum permitted amount which may be invested in foreignproperty under the Tax Act without the imposition of tax under Part XI of the Tax Act(the "Foreign Property Maximum").
AND WHEREAS pursuant to the System this Decision Document evidences thedecision of each Decision Maker (collectively, the "Decision");
AND WHEREAS each Decision Maker is satisfied that the test contained in theLegislation that provides the Decision Maker with the jurisdiction to make the Decision hasbeen met;
The Decision of the Decision Makers pursuant to the Legislation is that theRequirements shall not apply to the purchase and sale by each RSP Fund of units of theapplicable Underlying Fund provided that:
1. the Decision, as it relates to the jurisdiction of a Decision Maker, will terminate oneyear after the publication in final form of any legislation or rule of that Decision Makerdealing with the matters in clause 2.04(4)(b) of National Policy No. 39;
2. the Decision shall apply only to purchases and sales by the RSP Funds of units of theUnderlying Funds made in compliance with the following conditions:
a) the RSP Funds and the Underlying Funds are under common managementand the units of the Underlying Funds are offered for sale in the jurisdiction ofthe Decision Maker pursuant to a prospectus which has been filed with andaccepted by the Decision Maker;
b) each RSP Fund restricts the aggregate amount of its direct investment in unitsof the applicable Underlying Fund to a percentage of its assets that is withinthe Foreign Property Maximum;
c) the investment by an RSP Fund in units of the applicable Underlying Fund iscompatible with the fundamental investment objectives of the RSP Fund;
d) the prospectus and annual information form disclose the intent of each RSPFund to invest in units of the applicable Underlying Fund;
e) each RSP Fund may change the Permitted RSP Fund Investments if itchanges its fundamental investment objective in accordance with theLegislation;
f) the arrangements between or in respect of the RSP Funds and the UnderlyingFunds are such as to avoid the duplication of management fees;
g) no sales charges are payable by an RSP Fund in relation to its purchases ofunits of the applicable Underlying Fund;
h) no redemption fees or other charges are charged by an Underlying Fund inrespect of the redemption by an RSP Fund of units of the Underlying Fundowned by the RSP Fund (other than an early withdrawal fee of 2% which maybe payable when an investor in the RSP Fund redeems units purchased andheld less than 90 days);
i) no fees and charges of any sort are paid by the RSP Funds or by theUnderlying Funds or by the manager or principal distributor of the RSP Fundsor the Underlying Funds or by any affiliate or associate of any of the foregoingentities to anyone in respect of the RSP Funds' investment in, or redemptionof, the units of the Underlying Funds (other than an early withdrawal fee of 2%which may be payable when an investor in the RSP Fund redeems unitspurchased and held less than 90 days);
j) in the event of the provision of any notice to unitholders of an Underlying Fundas required by the constating documents of the Underlying Fund or by the lawsapplicable to the Underlying Fund, such notice will also be delivered to theunitholders of the applicable RSP Fund; all voting rights attached to the unitsof an Underlying Fund which are owned by an RSP Fund will be passedthrough to the unitholders of that RSP Fund; in the event that a unitholders'meeting is called for an Underlying Fund, all of the disclosure and noticematerial prepared in connection with such meeting will be provided to eachunitholder of the applicable RSP Fund and each unitholder will be entitled todirect a representative of the RSP Fund to vote that unitholder's proportion ofthe RSP Fund's holding in the Underlying Fund in accordance with theirdirection; and the representative of the RSP Fund will not be permitted to votethe RSP Fund's holdings in the Underlying Fund except to the extent theunitholders of the RSP Fund so direct;
k) there are compatible dates for the calculation of the net asset value of an RSPFund and the applicable Underlying Fund for the purpose of the issue andredemption of the units of such mutual funds;
l) to the extent that the RSP Funds and the Underlying Funds do not use acombined report containing both the RSP Funds' and the Underlying Funds'financial statements, in addition to receiving the annual and, upon request, thesemi-annual financial statements of the RSP Funds, the unitholders of an RSPFund will receive the annual and, upon request, the semi-annual financialstatements of the applicable Underlying Fund; and
m) to the extent that the RSP Funds and the Underlying Funds do not use acombined simplified prospectus and annual information form containingdisclosure about the RSP Funds and the Underlying Funds, copies of thesimplified prospectus and annual information form and financial statementsrelating to an Underlying Fund may be obtained upon request by a unitholderof the applicable RSP Fund.
January 10th, 2000.
"J. A. Geller" "Howard I. Wetston"