IN THE MATTER OF THE SECURITIES LEGISLATION OF BRITISH COLUMBIA, ALBERTA, SASKATCHEWAN, MANITOBA, ONTARIO,
NOVA SCOTIA, AND NEWFOUNDLAND
AND
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEW SYSTEM FOR EXEMPTIVE RELIEF APPLICATIONS
AND
IN THE MATTER OF
MACKENZIE FINANCIAL CORPORATION AND UNIVERSAL RSP ETHICAL OPPORTUNITIES FUND, UNIVERSAL RSP FAR EAST FUND, UNIVERSAL RSP FINANCIAL SERVICES FUND,
UNIVERSAL RSP HEALTH SCIENCES FUND, UNIVERSAL RSP INTERNET TECHNOLOGIES FUND, UNIVERSAL RSP JAPAN FUND, UNIVERSAL RSP TELECOMMUNICATIONS FUND,
(collectively, the "RSP Funds")UNIVERSAL ETHICAL OPPORTUNITIES FUND, UNIVERSAL FAR EAST FUND, UNIVERSAL FINANCIAL SERVICES FUND,
UNIVERSAL HEALTH SCIENCES FUND, UNIVERSAL INTERNET TECHNOLOGIES FUND, UNIVERSAL JAPAN FUND, UNIVERSAL TELECOMMUNICATIONS FUND
(collectively, the "Underlying Funds")
MRRS DECISION DOCUMENT
WHEREAS the local securities regulatory authority or regulator (the "Decision
Maker") in each of the provinces of British Columbia, Alberta, Saskatchewan, Manitoba,
Ontario, Nova Scotia and Newfoundland (the "Jurisdictions") has received an application
(the "Application") from Mackenzie Financial Corporation ("Mackenzie" or the "Manager"),
the RSP Funds and the Underlying Funds for a decision pursuant to the securities
legislation of the Jurisdictions (the "Legislation") that:
1. the requirements contained in the Legislation requiring the mutual fund security
holder to issue a news release and file a report where its aggregate holdings of
securities of a reporting issuer exceed 10% of the outstanding securities of the
reporting issuer and refrain from purchasing additional securities of the Underlying
Funds for a specified period of time once its holdings exceed this 10% level, and
before such holdings exceed the 20% level, shall not apply in respect of
investments to be made by the RSP Funds in their corresponding Underlying
Funds;
2. the restrictions contained in the Legislation prohibiting a mutual fund from
knowingly making and holding an investment in a person or company in which the
mutual fund, alone or together with one or more related mutual funds, is a
substantial securityholder shall not apply in respect of certain investments to be
made by the RSP Funds in their corresponding Underlying Funds;
3. the requirements contained in the Legislation requiring the management company
to file a report relating to a purchase or sale of securities between the mutual fund
and any related person or company, or any transaction in which, by arrangement
other than an arrangement relating to insider trading in portfolio securities, the
mutual fund is a joint participant with one or more of its related persons or
companies, shall not apply in respect of certain investments to be made by the RSP
Funds in their corresponding Underlying Funds; and
4. the requirements contained in the Legislation prohibiting the portfolio manager (or
in the case of the Securities Act (British Columbia), the mutual fund or responsible
person) from knowingly causing an investment portfolio managed by it (the mutual
fund) to invest in the securities of an issuer in which a responsible person is an
officer or director unless the specific fact is disclosed to the client, if applicable, and
the written consent of the client to the investment is obtained before the purchase
shall not apply in respect of certain investments to be made by the RSP Funds in
their corresponding Underlying Funds;
The Legislation outlined above in paragraphs 1 through 4 will be referred to in this
Decision Document as the "Applicable Legislation";
AND WHEREAS pursuant to the Mutual Reliance Review System for Exemptive
Relief Applications (the "System"), the Ontario Securities Commission is the principal
regulator for this application;
AND WHEREAS it has been represented by the Manager to the Decision Makers
that:
1. Each of the RSP Funds will be and each of the Underlying Funds is an open-ended
mutual fund trust established under the laws of the Province of Ontario. Mackenzie
is a corporation established under the laws of the Province of Ontario and for each
of the RSP Funds will be and for each of the Underlying Funds is the trustee,
manager and promoter. Mackenzie is and will be the registrar and transfer agent
for all of the Underlying Funds and the RSP Funds. The head office of Mackenzie
is in Toronto, Ontario.
2. The RSP Funds will be, and the Underlying Funds are, reporting issuers and the
Underlying Funds are not in default of any requirements of the act or rules
applicable in each of the provinces and territories of the various securities
authorities of Canada. The securities of each of the Underlying Funds are currently
qualified for distribution pursuant to a simplified prospectus and annual information
form and the securities of the RSP Funds will be qualified under a simplified
prospectus and annual information form (collectively, the "Prospectus") to be filed
shortly in all provinces and territories.
3. Each of the RSP Funds seeks to achieve its investment objective while ensuring
that securities of the RSP Fund do not constitute "foreign property" for registered
retirement savings plans, registered retirement income funds and deferred profit
sharing plans ("Registered Plans").
4. To achieve its investment objective, each of the RSP Funds invests its assets in
securities such that its units will, in the opinion of tax counsel to the RSP Funds,
be "qualified investments" for Registered Plans and will not constitute foreign
property in a Registered Plan. This will primarily be achieved through the
implementation of a derivative strategy. However, the RSP Funds also intend to
invest a portion of their assets in securities of the Underlying Funds. This
investment by the RSP Funds will at all times be below the maximum foreign
property limit prescribed for Registered Plans (the "Permitted Limit").
5. The investment objectives of the Underlying Funds are achieved through
investment primarily in foreign securities.
6. The direct investments by the RSP Funds in the Underlying Funds will be within the
Permitted Limit (the "Permitted RSP Fund Investment"). The Manager and the RSP
Funds will comply with the conditions of this Decision in respect of such
investments. The amount of direct investment by each RSP Fund in its
corresponding Underlying Fund will be adjusted from time to time so that, except
for transitional cash, the aggregate of derivative exposure to, and direct investment
in, the Underlying Fund will equal 100% of the assets of the RSP Fund.
7. Except to the extent evidenced by this Decision and specific approvals granted by
the Canadian securities administrators pursuant to National Instrument 81-102
Mutual Funds ("NI 81-102"), the investments by the RSP Funds in the Underlying
Funds have been structured to comply with the investment restrictions of the
Legislation and NI 81-102.
8. In the absence of this Decision, as soon as the aggregate holdings by a RSP Fund
of securities of the corresponding Underlying Fund exceed 10% of the outstanding
securities of the Underlying Fund, the Manager, and possibly the RSP Fund, would
be required to comply with the reporting and other requirements of the Legislation.
9. In the absence of this Decision, pursuant to the Legislation, each of the RSP Funds
is prohibited from (a) knowingly making an investment in a person or company in
which the mutual fund, alone or together with one or more related mutual funds, is
a substantial securityholder; and (b) knowingly holding an investment referred to
in subsection (a) hereof. As a result, in the absence of this Decision a RSP Fund
would be required to divest itself of any investments referred to in subsection (a)
herein.
10. In the absence of this Decision, the Legislation requires the Manager to file a report
on every purchase or sale of securities of the Underlying Funds by the RSP Funds.
11. By virtue of Mackenzie being the trustee of the RSP Funds and the Underlying
Funds and, therefore, an "associate" of each such mutual fund and because
Mackenzie is the portfolio manager of the RSP Funds and certain of the directors
and officers of Mackenzie are also officers of the RSP Funds and the Underlying
Funds and, as such a "responsible person" pursuant to legislation, in the absence
of this Decision, Mackenzie would be prohibited from causing the RSP Funds to
invest in the Underlying Funds unless the specific fact is disclosed to investors and,
if applicable, the written consent of investors is obtained before the purchase.
AND WHEREAS pursuant to the System this MRRS Decision Document evidences
the decision of each Decision Maker (collectively, the "Decision");
AND WHEREAS each of the Decision Makers is satisfied that the test contained in
the Legislation that provides the Decision Maker with the jurisdiction to make the Decision
has been met;
The Decision of the Decision Makers pursuant to the Legislation is that the
Applicable Legislation shall not apply so as to prevent the RSP Funds from investing in,
or redeeming the securities of, the Underlying Funds and such investment does not require
further consent from or notice to securityholders of the RSP Funds or the Decision Makers.
PROVIDED IN EACH CASE THAT:
1. this Decision, as it relates to the jurisdiction of a Decision Maker, will terminate one
year after the publication in final form of any legislation or rule of that Decision
Maker dealing with the matters in subsection 2.5(1) of NI 81-102; and
2. the foregoing Decision shall only apply in respect of investments in, or transactions
with, the Underlying Funds that are made by the RSP Funds in compliance with the
following conditions:
a) the RSP Funds and the Underlying Funds are under common management
and the Underlying Funds' securities are offered for sale in the jurisdiction
of the Decision Maker pursuant to a prospectus which has been filed with
and accepted by the Decision Maker;
b) each RSP Fund restricts its aggregate direct investment in its corresponding
Underlying Fund to a percentage of its assets that is within the Permitted
Limit;
c) the investment by the RSP Funds in the Underlying Funds is compatible with
the fundamental investment objective of the RSP Funds;
d) the prospectus of the RSP Funds will describe the intent of the RSP Funds
to invest in a specified Underlying Fund;
e) the RSP Funds may change the Permitted RSP Fund Investments only if
they change their fundamental investment objectives in accordance with the
Legislation;
f) no sales charges are payable by the RSP Funds in relation to its purchases
of securities of the Underlying Funds;
g) there are compatible dates for the calculation of the net asset value of the
RSP Funds and the Underlying Funds for the purpose of the issue and
redemption of the securities of such mutual funds;
h) no redemption fees or other charges are charged by the Underlying Funds
in respect of the redemption by the RSP Funds of securities of the
Underlying Funds owned by the RSP Funds;
i) the arrangements between or in respect of the RSP Funds and the
Underlying Funds are such as to avoid the duplication of management fees;
j) no fees and charges of any sort are paid by a RSP Fund or by an Underlying
Fund or by the manager or principal distributor of a RSP Fund or an
Underlying Fund or by any affiliate or associate of any of the foregoing
entities to anyone in respect of a RSP Fund's purchase, holding or
redemption of the securities of the Underlying Fund;
k) in the event of the provision of any notice to securityholders of the
Underlying Funds, as required by the constating documents of the
Underlying Funds or by the laws applicable to the Underlying Funds, such
notice will also be delivered to the securityholders of the RSP Funds; all
voting rights attached to the securities of the Underlying Funds that are
owned by the RSP Funds will be passed through to the securityholders of
the RSP Funds; in the event that a securityholders' meeting is called for an
Underlying Fund, all of the disclosure and notice material prepared in
connection with such meeting will be provided to the securityholders of the
corresponding RSP Fund and such securityholders will be entitled to direct
a representative of the RSP Fund to vote that RSP Fund's holding in the
Underlying Fund in accordance with their direction; and the representative
of the RSP Fund will not be permitted to vote the RSP Fund's holdings in the
Underlying Fund except to the extent the securityholders of the RSP Fund
so direct;
l) in addition to receiving the annual and, upon request, the semi-annual
financial statements, of the RSP Funds, securityholders of the RSP Funds
will receive the annual and, upon request, the semi-annual financial
statements, of the Underlying Funds in either a combined report, containing
both the RSP Funds' and Underlying Funds' financial statements, or in a
separate report containing the Underlying Funds' financial statements; and
m) to the extent that the RSP Funds and the Underlying Funds do not use a
combined simplified prospectus and annual information form and financial
statements containing disclosure about the RSP Funds and the Underlying
Funds, copies of the simplified prospectus, annual information form and
annual and semi-annual financial statements relating to the Underlying
Funds may be obtained upon request by a securityholder of the RSP Funds.
March 29th, 2000.
"J. A. Geller"
"R. Stephen Paddon"
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