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CM Investment Management Inc. - MRRS Decision
Headnote
Investment by the RSP Funds in forward contractsissued by related counterparties exempted from the requirementsof s. 113, s. 117 & ss. 121(2)(a)(ii).
Statutes Cited
Securities Act (Ontario), R.S.O. 1990, c. S.5.,as am., 111(2)(a), 111(2)(c)(ii), 117(1)(a), 117(1)(d) and 118(2)(a).
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
BRITISH COLUMBIA, ALBERTA, SASKATCHEWAN,
ONTARIO, NOVA SCOTIA AND
NEWFOUNDLAND AND LABRADOR
AND
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEW SYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
AND
IN THE MATTER OF
FRONTIERS INTERNATIONAL EQUITY RSP POOL
FRONTIERS U.S. EQUITY RSP POOL
RENAISSANCE GLOBAL GROWTH RSP FUND
RENAISSANCE GLOBAL SECTORS RSP FUND
RENAISSANCE GLOBAL TECHNOLOGY RSP FUND
RENAISSANCE GLOBAL VALUE RSP FUND
RENAISSANCE INTERNATIONAL GROWTH RSP FUND
RENAISSANCE TACTICAL ALLOCATION RSP FUND
MRRS DECISION DOCUMENT
WHEREAS the local securities regulatoryauthority or regulator (the "Decision Maker") in eachof British Columbia, Alberta, Saskatchewan, Ontario, Nova Scotiaand Newfoundland and Labrador (the "Jurisdictions")has received an application from CM Investment Management Inc.("CM"), as manager and trustee of the Frontiers InternationalEquity RSP Pool, Frontiers U.S. Equity RSP Pool (collectivelythe "Frontiers RSP Pools"), Renaissance Global GrowthRSP Fund, Renaissance Global Sectors RSP Fund, Renaissance GlobalTechnology RSP Fund, Renaissance Global Value RSP Fund, RenaissanceInternational Growth RSP Fund and Renaissance Tactical AllocationRSP Fund and other mutual funds managed by CM having an investmentobjective or strategy that is linked to the returns or portfolioof another specified CM mutual fund while remaining 100% eligiblefor registered plans (all, including the Frontiers RSP Pools,collectively referred to as the "RSP Funds"), fora decision under the securities legislation of the Jurisdictions(the "Legislation") that the following prohibitionsor requirements in the Legislation (the "Applicable Requirements")shall not apply to CM or the RSP Funds, as the case may be,in respect of certain investments to be made by the RSP Fundsin forward contracts and other derivative instruments of CanadianImperial Bank of Commerce ("CIBC") and its affiliates:
1. the provision requiring the management companyof a mutual fund to file a report relating to the purchase orsale of securities between the mutual fund and any related personor company, or any transaction in which, by arrangement otherthan an arrangement relating to insider trading in portfoliosecurities, the mutual fund is a joint participant with oneor more of its related persons or companies;
2. the provision prohibiting a mutual fund fromknowingly making and holding an investment in a person or companywho is a substantial securityholder of the mutual fund, itsmanagement company or distribution company;
3. the provision prohibiting a mutual fund fromknowingly making and holding an investment in an issuer in whichany person or company who is a substantial securityholder ofthe mutual fund, its management company or distribution companyhas a significant interest;
4. the provision prohibiting a portfolio manageror, in British Columbia, the mutual fund, from knowingly causingan investment portfolio managed by it to invest in any issuerin which a "responsible person" (as that term is definedin the Legislation) or an associate of a responsible personis an officer or director, unless the specific fact is disclosedto the client and, if applicable, the written consent of theclient to the investment is obtained before the purchase.
AND WHEREAS under the Mutual RelianceReview System for Exemptive Relief Applications (the "System"),the Ontario Securities Commission is the principal regulatorfor this Application;
AND WHEREAS CM has represented to theDecision Makers that:
1. CM is a corporation amalgamated under thelaws of Canada with its registered office located in Ontario.CM is the manager, trustee, promoter and portfolio manager ofthe existing RSP Funds.
2. The existing RSP Funds are open-end mutualfunds established under the laws of Ontario. Units of the FrontiersRSP Pools are qualified for distribution pursuant to an amendedand restated simplified prospectus dated March 28, 2002 in eachJurisdiction. Units of the other existing RSP Funds are qualifiedfor distribution pursuant to a separate amended and restatedsimplified prospectus dated March 28, 2002 in each Jurisdiction.
3. Each of the existing RSP Funds is a reportingissuer under the securities laws of each of the provinces andterritories of Canada. None of the existing RSP Funds is indefault of the Legislation.
4. The RSP Funds enter into forward contractsor other derivative instruments with one or more institutionsto link the return of the RSP Fund to the return of the correspondingunderlying fund or to the portfolio securities of the correspondingunderlying fund.
5. CIBC is a bank listed in Schedule I to theBank Act (Canada). CIBC owns all of the outstanding shares ofCM.
6. There may be directors or officers of CIBCand its affiliates that are also directors or officers of CM.
7. The RSP Funds intend to enter into forwardcontracts and other specified derivatives (collectively the"Forward Contracts") with CIBC and its affiliates(collectively the "Related Counterparties") so longas the pricing terms of the forward contracts or other specifiedderivatives are comparable to those offered by the Related Counterpartyto other third parties of similar size to the RSP Fund.
8. The independent auditors of the RSP Funds(the "Independent Auditors"), none of whom are themselvesdirectors, officers or employees of CM or any affilliate ofCM, will review all the pricing terms of the Forward Contractsto ensure that the RSP Funds will receive terms and pricingthat are at least as favourable as those available to the RSPFunds with arm's length Counterparties from time to time.
9. The Prospectus, and any renewal thereof,will disclose the involvement of the Related Counterparty inthe Forward Contracts with the Related Counterparty
10. In the absence of this Decision, each RSPFund is prohibited from knowingly making or holding an investmentin securities of the Related Counterparies.
11. In the absence of this Decision CM is requiredto file a report on every purchase or sale of securities ofthe Related Conterparties.
12. In the absence of this Decision, the portfoliomanager, or mututal fund, is prohibited from causing each RSPFund to invest its assets in securities of the Related Counterpartiesunless the specific fact is disclosed to investors and, if applicable,the written consent of investors is obtained before the purchase.
AND WHEREAS under the System this MRRSDecision Document evidences the decision of each Decision Maker(collectively, the "Decision");
AND WHEREAS each of the Decision Makersis satisfied that the test contained in the Legislation thatprovides the Decision Maker with the jurisdiction to make theDecision has been met;
THE DECISION of the Decision Makersunder the Legislation is that the Applicable Requirements shallnot apply to the RSP Funds or CM, as the case may be, in respectof investments by the RSP Funds in the Forward Contracts witha Related Counterparty, that are made in compliance with thefollowing conditions:
1. the pricing terms offered by the RelatedCounterparties to the RSP Fund under the Forward Contracts orother specified derivatives are at least as favourable as theterms committed by the Related Counterparties to other thirdparties, which are of similar size as the RSP Fund;
2. prior to the RSP Fund entering into a ForwardContract with a Related Counterparty, the Independent Auditorsof the RSP Fund will review the pricing offered by the RelatedCounterparty to the RSP Fund against the pricing offered bythe Related Counterparty to other fund groups offering RSP fundsof similar size, to ensure the pricing is at least as favourable;
3. the review by the Independent Auditors willbe undertaken not less frequently than on a quarterly basisand, in addition, on every renewal or pricing amendment to eachForward Contract, during the term of such contract;
4. the RSP Fund's simplified prospectus disclosesthe Independent Auditors' role and their review of the ForwardContract, as well as the involvement of the Related Counterparties;and
5. the RSP Fund will enter into Forward Contractswith the Related Counterparties only once confirmation of favourablepricing is received from the independent auditors of the RSPFund.
May 15, 2002.
"Theresa McLeod" "Robert L. Shirriff"