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AEGON Fund Management Inc. - MRRS Decision
Headnote
Investment by mutual funds in a portfolio ofspecified mutual funds under common management exempted fromthe self-dealing prohibition in clause 111(2)(b) and subsection111(3), and from the reporting requirements of clauses 117(1)(a)and 117(1)(d), subject to certain specified conditions.
Statutes Cited
Securities Act (Ontario), R.S.O. 1990, c. S.5,as am., 111(2)(b), 111(3), 117(1)(a) and 117(1)(d).
IN THE MATTER OF
THE CANADIAN SECURITIES LEGISLATION OF
ALBERTA, BRITISH COLUMBIA, SASKATCHEWAN, ONTARIO, NEWFOUNDLANDAND
NOVA SCOTIA
AND
IN THE MATER OF
THE MUTUAL RELIANCE REVIEW SYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
AND
IN THE MATTER OF
imaxx TOP Conservative Portfolio
imaxx TOP Balanced Portfolio
imaxx TOP RSP Balanced Portfolio
imaxx TOP Growth Portfolio
imaxx TOP RSP Growth Portfolio
imaxx TOP Aggressive Growth Portfolio
MRRS DECISION DOCUMENT
WHEREAS the Canadian securities regulatoryauthority or regulator (the "Decision Maker") in eachof the provinces of British Columbia, Alberta, Saskatchewan,Ontario, Nova Scotia and Newfoundland (the "Jurisdictions")has received an application from AEGON Fund Management Inc.("AFMI" or the "Manager"), imaxx TOP ConservativePortfolio, imaxx TOP Balanced Portfolio, imaxx TOP RSP BalancedPortfolio, imaxx TOP Growth Portfolio, imaxx TOP RSP GrowthPortfolio, imaxx TOP Aggressive Growth Portfolio (the "CurrentPortfolios"), and any other mutual fund established andmanaged by the Manager after the date hereof which has as itsinvestment objective the investment of its assets in more thanone underlying fund (the "Future Portfolios", togetherwith the Current Portfolios, the "Portfolios") fora decision (the "Decision") pursuant to the securitieslegislation of the Jurisdictions (the "Legislation")that the following requirements or prohibitions under the Legislation(the"Applicable Requirements") shall not apply in connectionwith the investment by the Portfolios directly in a portfolioof securities of selected mutual funds (the "UnderlyingFunds" as further defined in paragraph 4 below):
1. the restrictions contained in the Legislation prohibitinga mutual fund from knowingly making or holding an investmentin a person or company in which the mutual fund, alone or togetherwith one or more related mutual funds, is a substantial securityholder;
2. the requirements contained in the Legislationrequiring a management company, or in British Columbia, a mutualfund manager, to file a report relating to a purchase or saleof 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.
AND WHEREAS pursuant to the Mutual RelianceReview System ("MRRS") for Exemptive Relief Applications(the "System"), the Ontario Securities Commissionis the principal regulator for this application;
AND WHEREAS it has been represented byAFMI to the Decision Makers that:
1. The Manager is a corporation incorporatedunder the laws of Canada. The Manager is an indirect wholly-ownedsubsidiary of AEGON NV.
2. The Royal Trust Company will be the trusteeof the Portfolios. AEGON Capital Management Inc. (the "InvestmentManager") will be the investment manager to the Portfoliosand is registered as an adviser under the category of investmentcounsel and portfolio manager with the Ontario Securities Commission.
3. The Manager currently proposes to establishthe Current Portfolios as six new mutual funds. Each of thePortfolios will be an open-end mutual fund trust governed bythe laws of Ontario. Securities of each of the Portfolios willbe qualified for distribution in each of the Jurisdictions undera simplified prospectus and annual information form (together,the "Prospectus") filed with and accepted by the DecisionMakers. A Prospectus for the Portfolios will be filed shortlyin final form under SEDAR project number 425164. The Portfolioswill be offered for sale in each of the provinces of Canada.
4. Each Portfolio will invest its assets, otherthan cash or cash equivalents, in other prospectus-qualifiedmutual funds (the "Underlying Funds") managed by fundmanagers (the "Underlying Managers") considered toexcel in particular investment niches, as well as in other investments,including short term investments. The Underlying Funds are currentlymanaged by third party managers but may in the future be managedby AFMI or a related party. The Underlying Managers have beenchosen on the basis of their management style, their choiceof sub-advisors and other consultants, the efficiency of theiradministration, the caliber of their reporting procedures, theperformance of their portfolios and their risk tolerance levels.The Underlying Funds are those funds whose investment objectivesalign with the investment objectives of the Portfolios.
5. Each of the Portfolios will not invest inany other mutual funds whose investment objectives include investingdirectly or indirectly in other mutual funds.
6. In order to achieve its investment objective,each of the Portfolios will invest fixed percentages (the "FixedPercentages") of its assets, excluding cash and cash equivalentsheld to meet redemptions and expenses, directly in securitiesof the Underlying Funds, subject to variation of 2.5 percentabove or below the Fixed Percentages (the "Permitted Ranges")resulting from market fluctuations.
7. The Prospectus of each Portfolio will disclosethe names and investment objectives of the Underlying Funds,the manager of the Underlying Funds along with the Fixed Percentagesand the Permitted Ranges.
8. Where an Underlying Fund or a Fixed Percentageis changed, the Manager will provide 60 days' prior writtennotice to security holders of the Portfolios and will amendthe Prospectus of the Portfolios to reflect any such change.
9. The investments by a Portfolio in securitiesof an Underlying Fund represent the business judgment of "responsiblepersons" (as defined in the Legislation) uninfluenced byconsiderations other than the best interests of the Portfolio.
10. Except to the extent evidenced by this Decisionand specific approvals granted by the regulator or the securitiesregulatory authority in each of the provinces of Canada pursuantto National Instrument 81-102 Mutual Funds ("NI 81-102"),the investments by a Portfolio in the Underlying Funds havebeen structured to comply with the investment restrictions ofthe Legislation and NI 81-102.
11. In the absence of this Decision, pursuantto the Legislation, each Portfolio is prohibited from knowinglymaking or holding an investment in a person or company in whichthe mutual fund, alone or together with one or more relatedmutual funds, is a substantial security holder. As a result,in the absence of this Decision, each Portfolio would be requiredto divest itself of any such investments.
12. In the absence of this Decision, the Legislationrequires the Manager to file a report on every purchase andsale of securities of the Underlying Funds by a Portfolio.
AND WHEREAS under the System, this MRRSDecision Document evidences the decision of each Decision Maker;
AND WHEREAS each of the Decision Makersbeing 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 Makers pursuantto the Legislation is that the Applicable Requirements do notapply so as to prevent the Portfolios from investing in, orredeeming the securities of the Underlying Funds or requirethe Manager to file a report relating to the purchase and saleof such securities;
PROVIDED THAT IN RESPECT OF:
1. the Decision, as it relates to the jurisdictionof a Decision Maker, will terminate one year after the publicationin final form of any legislation or rule of that Decision Makerdealing with the matters in section 2.5 of National Instrument81-102; and
2. the Decision shall only apply if, at thetime a Portfolio makes or holds an investment in its UnderlyingFunds, the following conditions are satisfied:
(a) the securities of both the Portfolios andthe Underlying Funds are being offered for sale in the jurisdictionof the Decision Maker pursuant to a simplified prospectus andannual information form which have been filed with and acceptedby the Decision Maker;
(b) the investment by a Portfolio in the UnderlyingFunds is compatible with the fundamental investment objectiveof the Portfolio ;
(c) the Prospectus discloses the intent of thePortfolios to invest in securities of the Underlying Funds,the names of the Underlying Funds, the Fixed Percentages andthe Permitted Percentages within which such Fixed Percentagesmay vary;
(d) the investment objective of the Portfoliodiscloses that the Portfolio invests in securities of othermutual funds;
(e) the Underlying Funds are not mutual fundswhose investment objective includes investing directly or indirectlyin other mutual funds;
(f) the Portfolio invests its assets (exclusiveof cash and cash equivalents) in the Underlying Funds in accordancewith the Fixed Percentages disclosed in the simplified prospectusof the Portfolio;
(g) the Portfolio's holding of securities inthe Underlying Funds does not deviate from the Permitted Ranges;
(h) any deviation from the Fixed Percentagesis caused by market fluctuations only;
(i) if an investment by a Portfolio in any ofthe Underlying Funds has deviated from the Permitted Rangesas a result of market fluctuations, the Portfolio's investmentportfolio is re-balanced to comply with the Fixed Percentageson the next day on which the net asset value was calculatedfollowing the deviation ;
(j) if the Fixed Percentages and the UnderlyingFunds which are disclosed in the Prospectus have been changed,either the Prospectus has been amended in accordance with securitieslegislation to reflect this significant change, or a new simplifiedprospectus has been filed to reflect the change, and the securityholdersof the Portfolio have been given at least 60 days' notice ofthe change;
(k) there are compatible dates for the calculationof the net asset value of the Portfolios and the UnderlyingFunds for the purpose of the issue and redemption of the securitiesof such mutual funds;
(l) no sales charges are payable by the Portfolioin relation to its purchases of securities of the UnderlyingFunds;
(m) no redemption fees or other charges willbe charged by an Underlying Fund in respect of the redemptionby the Portfolio of securities of the Underlying Fund ownedby the Portfolio;
(n) no fees or charges of any sort are paidby the Portfolio and the Underlying Funds by their respectivemanagers or principal distributors, or by any affiliate or associateof any of the foregoing entities, to anyone in respect of aPortfolio's purchase, holding or redemption of the securitiesof the Underlying Funds;
(o) the arrangements between or in respect ofthe Portfolio and the Underlying Funds are such as to avoidthe duplication of management fees;
(p) any notice provided to security holdersof an Underlying Fund as required by applicable laws or theconstating documents of that Underlying Fund has been deliveredby the Portfolio to its security holders;
(q) all of the disclosure and notice materialprepared in connection with a meeting of security holders ofthe Underlying Funds and received by the Portfolio has beenprovided to its security holders, the security holders havebeen permitted to direct a representative of the Portfolio tovote its holdings in the Underlying Fund in accordance withtheir direction, and the representative of the Portfolio hasnot voted its holdings in the Underlying Fund except to theextent the security holders of the Portfolio have directed;
(r) in addition to receiving the annual and,upon request, the semi-annual financial statements of the Portfolio,security holders of a Portfolio have received appropriate summarydisclosure in respect of the Portfolio's holdings of securitiesof the Underlying Funds in the financial statements of the Portfolio;and
(s) to the extent that the Portfolio and theUnderlying Funds do not use a combined simplified prospectusand annual information form containing disclosure about thePortfolio and the Underlying Funds, copies of the simplifiedprospectus and annual information form of the Underlying Fundshave been provided upon request and without charge to securityholders of the Portfolio and the right to receive these documentsis disclosed in the Prospectus of the Portfolio.
May 30, 2002.
"Paul M. Moore" "Kerry D. Adams"