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Canadian Imperial Bank of Commerce, et al. - MRRS Decision
INTHE MATTER OF
THESECURITIES LEGISLATION OF
BRITISHCOLUMBIA, ALBERTA, SASKATCHEWAN,
ONTARIO,NOVA SCOTIA, NEWFOUNDLAND AND LABRADOR
AND
INTHE MATTER OF
THEMUTUAL RELIANCE REVIEW SYSTEM
FOREXEMPTIVE RELIEF APPLICATIONS
AND
INTHE MATTER OF
CANADIANIMPERIAL BANK OF COMMERCE
AND
CIBCINCOME PORTFOLIO
CIBCINCOME PLUS PORTFOLIO
CIBCBALANCED PORTFOLIO
CIBCBALANCED GROWTH PORTFOLIO
CIBCBALANCED GROWTH RSP PORTFOLIO
CIBCGROWTH PORTFOLIO
CIBCGROWTH RSP PORTFOLIO
CIBCAGGRESSIVE GROWTH PORTFOLIO
CIBCAGGRESSIVE GROWTH RSP PORTFOLIO
MRRSDECISION DOCUMENT
WHEREASthe Canadian securities regulatory authority or regulator (collectively,the "Decision Makers") in each of the provinces of British Columbia,Alberta, Saskatchewan, Ontario, Nova Scotia and Newfoundlandand Labrador (collectively, the "Jurisdictions") has receivedan application (the "Application") from Canadian Imperial Bankof Commerce (the "Manager") in its own capacity and on behalfof CIBC Income Portfolio, CIBC Income Plus Portfolio, CIBC BalancedPortfolio, CIBC Balanced Growth Portfolio, CIBC Balanced GrowthRSP Portfolio, CIBC Growth Portfolio, CIBC Growth RSP Portfolio,CIBC Aggressive Growth Portfolio, CIBC Aggressive Growth RSPPortfolio and other mutual funds managed by the Manager afterthe date of this Decision (defined herein) having as their investmentobjective to invest all or substantially all of their assetsin other mutual funds managed by the Manager (collectively,the "Top Funds", individually, a "Top Fund") for a decisionby each Decision Maker (collectively, the "Decision") pursuantto the securities legislation of the Jurisdictions (the "Legislation")that the following provisions of the Legislation (the "ApplicableRequirements") shall not apply to the Manager or the Top Funds,as the case may be, in respect of certain investments to bemade from time to time by a Top Fund in the units of CIBC MoneyMarket Fund, CIBC Canadian Bond Fund, CIBC Global Bond Fund,Canadian Imperial Equity Fund, CIBC U.S. Small Companies Fund,CIBC European Equity Fund, CIBC Emerging Economies Fund, CIBCFar East Prosperity Fund, CIBC Canadian Short-Term Bond IndexFund, CIBC U.S. Equity Index Fund, CIBC U.S. Index RRSP Fund,CIBC International Index RRSP Fund, CIBC Canadian Bond IndexFund, CIBC Canadian Index Fund and such other mutual funds managedby the Manager after the date of this Decision (collectively,the "Underlying Funds, individually, an "Underlying Fund"):
(a)the restrictions contained in the Legislation prohibiting amutual fund from knowingly making or holding an investment ina person or company in which the mutual fund, alone or togetherwith one or more related mutual funds, is a substantial securityholder, and
(b)the requirements contained in the Legislation requiring a managementcompany, or in British Columbia, a mutual fund manager, to filea report relating to a purchase or sale of securities betweenthe mutual fund and any related person or company, or any transactionin which, by arrangement other than an arrangement relatingto insider trading in portfolio securities, the mutual fundis a joint participant with one or more of its related personsor companies.
ANDWHEREAS pursuant to the Mutual Reliance Review System("MRRS") for Exemptive Relief Applications (the "System"), theOntario Securities Commission is the principal regulator forthis Application;
ANDWHEREAS the Manager has represented to the DecisionMakers as follows:
1.The Manager is a Canadian chartered bank with its head officelocated in Toronto, Ontario, and is, or will be, the Managerof the Top Funds and Underlying Funds.
2.Each of the Top Funds and Underlying Funds is or will be anopen-end mutual fund trust established under the laws of theProvince of Ontario. Units of each of the Top Funds and UnderlyingFunds will be qualified for distribution in each of the Jurisdictionsunder a simplified prospectus and annual information form (together,the "Prospectus") filed with and accepted by the Decision Makers.
3.Each of the Top Funds and Underlying Funds is or will be a reportingissuer in each of the Jurisdictions and is not or will not bein default of any requirements of the Legislation.
4.To achieve their respective investment objectives, each of theTop Funds will invest fixed percentages (the "Fixed Percentages")of its net assets, excluding cash and cash equivalents, directlyin units of the specified Underlying Funds, subject to a permitteddeviation to account for market fluctuations of not more than2.5 percent above or below the Fixed Percentages (the "PermittedRanges").
5.The Prospectus for the Top Funds will disclose the names, investmentobjectives, investment strategies, risks and restrictions ofthe Top Funds and Underlying Funds, as well as the Fixed Percentagesto be invested in each Underlying Fund and the Permitted Ranges.
6.Where an Underlying Fund or a Fixed Percentage is changed, theManager will amend the Prospectus in accordance with securitieslegislation to reflect this significant change, or will filea new simplified prospectus reflecting the significant changewithin ten days thereof, and will provide 60 days' prior writtennotice of the change to unitholders of the relevant Top Fund.
7.Each of the Top Funds will not invest in a mutual fund whoseinvestment objective includes investing in other mutual funds.
8.CIBC Securities Inc., a wholly owned subsidiary of the Manageris or will be the principal distributor and will act as dealerfor the purchase by a Top Fund of units of an Underlying Fund.The arrangements will be such that the Top Fund is not chargedany initial sales charge in connection with its purchase ofunits of an Underlying Fund, and the purchase of such unitswill be on a basis that does not give rise to any deferred salescharge payable by a Top Fund.
9.The investments by each of the Top Funds in securities of theUnderlying Funds represent the business judgement of "responsiblepersons" (as defined in the Legislation) uninfluenced by considerationsother than the best interests of the Top Fund.
10.Except to the extent evidenced by this Decision and specificapprovals granted by the regulator or the securities regulatoryauthority in each of the provinces and territories of Canadapursuant to National Instrument 81-102 Mutual Funds ("NI 81-102"),the investments by each Top Fund in an Underlying Fund havebeen structured to comply with the investment restrictions ofthe Legislation and NI 81-102.
11.In the absence of this Decision, pursuant to the Legislation,the Top Funds are prohibited from knowingly making or holdingan investment in a person or company in which the mutual fund,alone or together with one or more related mutual funds, isa substantial security holder. As a result, in the absence ofthis Decision, the Top Funds would be required to divest themselvesof any such investments.
12.In the absence of this Decision, the Legislation requires theManager to file a report on every purchase and sale of securitiesof the Underlying Funds by the Top Funds.
ANDWHEREAS pursuant to the System this MRRS Decision Documentevidences the decision of each Decision Maker;
ANDWHEREAS each of the Decision Makers is satisfied thatthe test contained in the Legislation that provides the DecisionMaker with the jurisdiction to make the Decision has been met;
THEDECISION of the Decision Makers pursuant to the Legislationis that the Applicable Requirements shall not apply so as toprevent the Top Funds from making and holding an investmentin securities of the Underlying Funds or require the Managerto file a report relating to the purchase and sale of such securities;
PROVIDEDIN EACH CASE THAT:
1.the Decision, as it relates to the jurisdiction of a DecisionMaker, will terminate one year after the publication in finalform of any legislation or rule of that Decision Maker dealingwith matters in section 2.5 of NI 81-102;
2.the Decision shall only apply if, at the time a Top Fund makesor holds an investment in its Underlying Funds, the followingconditions are satisfied:
(a) the securities of both the Top Fund and the Underlying Fundsare being offered for sale in the jurisdiction of the DecisionMaker pursuant to a simplified prospectus and annual informationform which has been filed with and accepted by the DecisionMaker;
(b) the investment by the Top Fund in the Underlying Funds iscompatible with the fundamental investment objectives of theTop Fund;
(c) the Prospectus discloses the intent of the Top Fund to investin securities of the Underlying Funds, the names of the UnderlyingFunds, the Fixed Percentages and the Permitted Ranges withinwhich such Fixed Percentages may vary;
(d) the investment objective of the Top Fund discloses thatthe Top Fund invests in securities of other mutual funds;
(e) the Underlying Funds are not mutual funds whose investmentobjective includes investing directly or indirectly in othermutual funds;
(f) the Top Fund invests its assets (exclusive of cash and cashequivalents) in the Underlying Funds in accordance with theFixed Percentages disclosed in the Prospectus;
(g) the Top Fund's holding of securities in the Underlying Fundsdoes not deviate from the Permitted Ranges;
(h) any deviation from the Fixed Percentages is caused by marketfluctuations only;
(i) where an investment by the Top Fund in any of the UnderlyingFunds has deviated from the Permitted Ranges as a result ofmarket fluctuations, the Top Fund's investment portfolio wasre-balanced to comply with the Fixed Percentages on the nextday on which the net asset value was calculated following thedeviation;
(j) if the Fixed Percentages and the Underlying Funds whichare disclosed in the Prospectus have been changed, either theTop Fund's Prospectus has been amended or a new simplified prospectushas been filed to reflect the change, and the security holdersof the Top Fund have been given at least 60 days' notice ofthe change;
(k) there are compatible dates for the calculation of the netasset value of the Top Fund and the Underlying Funds for thepurpose of the issue and redemption of the securities of suchmutual funds;
(l) no sales charges are payable by the Top Fund in relationto its purchases of securities of the Underlying Funds;
(m) no redemption fees or other charges are charged by an UnderlyingFund in respect of the redemption by the Top Fund of securitiesof the Underlying Fund owned by the Top Fund;
(n) no fees or charges of any sort are paid by the Top Fundand the Underlying Funds, by their respective managers or principaldistributors, or by any affiliate or associate of any of theforegoing entities, to anyone in respect of the Top Fund's purchase,holding or redemption of the securities of the Underlying Funds;
(o) the arrangements between or in respect of the Top Fund andthe Underlying Funds are such as to avoid the duplication ofmanagement fees;
(p) any notice provided to security holders of an UnderlyingFund as required by applicable laws or the constating documentsof that Underlying Fund has been delivered by the Top Fund toits security holders;
(q) all of the disclosure and notice material prepared in connectionwith a meeting of security holders of the Underlying Funds andreceived by the Top Fund has been provided to its security holders,the security holders have been permitted to direct a representativeof the Top Fund to vote its holdings in the Underlying Fundin accordance with their direction, and the representative ofthe Top Fund has not voted its holdings in the Underlying Fundsexcept to the extent the security holders of the Top Fund havedirected;
(r) in addition to receiving the annual, and upon request, thesemi-annual financial statements, of the Top Fund, securityholders of the Top Fund have received appropriate summary disclosurein respect of the Top Fund's holdings of securities of the UnderlyingFunds in the financial statements of the Top Fund; and
(s) to the extent that the Top Fund and the Underlying Fundsdo not use a combined simplified prospectus and annual informationform containing disclosure about the Top Fund and the UnderlyingFunds, copies of the simplified prospectus and annual informationform of the Underlying Funds have been provided upon requestto security holders of the Top Fund and the right to receivethese documents is disclosed in the Prospectus of the Top Fund.
January16, 2002.
"K.D. Adams" "Robert W. Korthals"