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Maxxum Financial services Co. et al. - ss. 59(1)
IN THE MATTER OF
THE SECURITIES ACT
R.S.O. 1990, CHAPTER S. 5, AS AMENDED (the "Act")
AND
IN THE MATTER OF
MAXXUM FINANCIAL SERVICES CO.AND
JANUS AMERICAN EQUITY FUND
JANUS GLOBAL EQUITY FUND
JANUS AMERICAN VALUE FUND
ORDER
(Subsection 59(1) of Schedule I of the Regulation made under the above statute (the "Regulation"))
UPON the application (the "Application") of Maxxum Financial Services Co. ("Maxxum Financial"), which is, or will become, the manager of the Janus RSP American Equity Fund, Janus RSP Global Equity Fund, Janus RSP American Value Fund and other similar funds established by Maxxum Financial from time to time(collectively, the "Top Funds") and the Janus American Equity Fund, Janus Global Equity Fund, Janus American Value Fund and other similar funds established by Maxxum Financial from time to time (collectively, the "Underlying Funds") to the Ontario Securities Commission (the "Commission") for an order pursuant to subsection 59(1) of Schedule I of the Regulation exempting the Underlying Funds from paying duplicate filing fees on an annual basis in respect of the distribution of units of the Underlying Funds to the Top Funds, the distribution of units of the Underlying Funds to Counterparties (defined herein) with whom the Top Funds have entered into forward contracts, and on the reinvestment of distributions on such units;
AND UPON considering the Application and the recommendation of the staff of the Commission;
AND UPON Maxxum Financial having represented to the Commission that:
1. Maxxum Financial is a general partnership formed under the laws of Ontario and is, or will be, the manager of the Top Funds and Underlying Funds (together the "Funds").
2. The Funds are, or will be, established as open-ended mutual fund trusts under the laws of Ontario.
3. The units of the Funds are, or will be, qualified for distribution pursuant to simplified prospectuses and annual information forms filed across Canada.
4. The Top Funds' investment objective is to provide long-term investment capital growth by investing in money-market instruments, as well as forward contracts that are linked to the returns earned by the Underlying Funds, which are foreign property under the Income Tax Act (Canada), for which Maxxum Financial is also the manager.
5. Each of the Top Funds and Underlying Funds is or will be a reporting issuer under the securities laws of each of the provinces and territories of Canada. None of the existing Top Funds or Underlying Funds is in default of any requirements of the securities legislation, regulations or rules applicable in each of the provinces and territories of Canada.
6. A Counterparty may hedge its obligations under a forward contract by investing in units (the "Hedge Units") of the applicable Underlying Fund.
7. As part of its investment strategy, each Top Fund may purchase units of the Underlying Funds (the "Fund on Fund Investments").
8. Applicable securities regulatory approvals for the Fund on Fund Investments and the Top Funds' investment strategies have been obtained, where necessary.
9. Annually, each Top Fund will be required to pay filing fees to the Commission in respect of the distribution of its units in Ontario pursuant to section 14 of Schedule I of the Regulation and will similarly be required to pay fees based on the distribution of its units in other relevant Canadian jurisdictions pursuant to the applicable securities legislation in each of those jurisdictions.
10. Annually, each Underlying Fund is required to pay filing fees to the Commission in respect of the distribution of its units in Ontario, including units issued to the Top Funds, pursuant to section 14 of Schedule I of the Regulation and is similarly required to pay fees based on the distribution of its units in other relevant Canadian jurisdictions pursuant to the applicable securities legislation in each of those jurisdictions.
11. A duplication of filing fees pursuant to Section 14 of Schedule I of the Regulation may result when: (a) assets of a Top Fund are invested in an Underlying Fund; (b) Hedge Units are distributed; and (c) a distribution is paid by an Underlying Fund on units of the Underlying Fund held by a Top Fund or Hedge Units which are reinvested in additional units of the Underlying Fund ("Reinvested Units").
AND UPON the Commission being satisfied that to do so would not be prejudicial to the public interest;
IT IS ORDERED by the Commission pursuant to subsection 59(1) of Schedule I of the Regulation that the Underlying Funds are exempt from the payment of duplicate filing fees on an annual basis pursuant to section 14 of Schedule I of the Regulation in respect of the distribution of units of the Underlying Funds to the Top Funds, the distribution of Hedge Units to Counterparties and the distribution of Reinvested Units, provided that each Underlying Fund shall include in its notice filed under subsection 14(4) of Schedule I of the Regulation a statement of the aggregate gross proceeds realized in Ontario as a result of the issuance by the Underlying Funds of: (1) units distributed to the Top Funds; (2) Hedge Units; and (3) Reinvested Units; together with a calculation of the fees that would have been payable in the absence of this order.
April 27, 2001.
Paul Moore, Robert Korthals