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Brandes Investment Partners & Co. et al. - MRRS Decision
Headnote
Investment by RSP clone funds in units of itscorresponding funds exempted from the requirements of clause111(2)(b), 111(3), 117(1)(a) and 117(1)(d) subject to specifiedconditions.
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 SECURITIES LEGISLATIONOF
BRITISH COLUMBIA, ALBERTA,SASKATCHEWAN, ONTARIO,
NOVA SCOTIA, AND NEWFOUNDLANDAND LABRADOR
AND
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEWSYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
AND
IN THE MATTER OF
BRANDES INVESTMENT PARTNERS& CO.
AND
BRANDES RSP INTERNATIONALEQUITY FUND,
BRANDES RSP GLOBAL EQUITYFUND AND
BRANDES RSP U.S. EQUITY FUND
MRRS DECISION DOCUMENT
WHEREAS the local securities regulatoryauthority or regulator (the "Decision Maker") in eachof the provinces of British Columbia, Alberta, Saskatchewan,Ontario, Nova Scotia and Newfoundland and Labrador (the "Jurisdictions")has received an application from Brandes Investment Partners& Co. ("Brandes" or the "Manager"),as manager of the Brandes RSP International Equity Fund, BrandesRSP Global Equity Fund and Brandes RSP U.S. Equity Fund (collectively,the "New RSP Funds") and other mutual funds managedby the Manager after the date of this Decision (defined herein)having an investment objective that is linked to the returnsof another specified Brandes mutual fund while remaining 100%eligible for registered plans (together with the "New RSPFunds", the "RSP Funds") for a decision by eachDecision 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 RSP Funds or theManager, as the case may be, in respect of certain investmentsto be made by the RSP Funds in a Corresponding Fund (as hereinafterdefined) from time to time:
1. the restrictions contained in the Legislationprohibiting a mutual fund 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 securityholder; and
2. the requirements contained in the Legislationrequiring the management company, or in British Columbia,a mutual fund manager, to file a report relating to a purchaseor sale of securities between the mutual fund and any relatedperson or company, or any transaction in which, by arrangementother than 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 under the Mutual RelianceReview System for Exemptive Relief Applications (the "System"),the Ontario Securities Commission is the principal regulatorfor this application;
AND WHEREAS, unless otherwise defined,the terms herein have the meaning set out in National Instrument14-101 Definitions or in Québec Commission Notice 14-101;
AND WHEREAS the Manager has representedto the Decision Makers that:
1. The Manager is a corporation incorporatedunder the laws of the province of Nova Scotia. The Manageris or will be the manager of the RSP Funds and of the CorrespondingFunds (collectively, the "Funds").
2. Each of the RSP Funds is or will be anopen-end mutual fund trust established under the laws of Ontarioand each of the Corresponding Funds is, or will be, an open-endmutual fund trusts established under the laws of a provinceof Canada. Securities of the Funds are or will be qualifiedfor distribution under a simplified prospectus and annualinformation form filed in each of the Jurisdictions.
3. Each of the Funds is or will be a reportingissuer and not in default of any requirements of the Legislation.
4. The Manager is the manager of Brandes InternationalEquity Fund, Brandes Global Equity Fund and Brandes U.S. EquityFund (the "Existing Corresponding Funds"). The Managermay in the future be the manager of other mutual funds inwhich the RSP Funds will invest their assets (the "FutureCorresponding Funds" and collectively with the ExistingCorresponding Fund, the "Corresponding Funds").
5. The simplified prospectus of the RSP Fundswill disclose the investment objectives, investment strategies,risks and restrictions of the RSP Funds and the CorrespondingFunds. The investment objective of each RSP Fund will disclosethe name of the Corresponding Fund.
6. Each of the RSP Funds intends to becomea registered investment under the Income Tax Act (Canada)(the "Tax Act") such that its units will be "qualifiedinvestments" for registered retirement savings plans,registered retirement income funds, deferred profit sharingplans and similar plans ("Registered Plans") andwill not constitute "foreign property" in a RegisteredPlan. The investment objective of an RSP Fund will primarilybe achieved through the implementation of a derivative strategythat provides a return linked to the returns of a specifiedCorresponding Fund. The RSP Fund will also invest a portionof its assets directly in securities of the CorrespondingFund. This direct investment will at all times be below themaximum foreign property limit for Registered Plans (the "PermittedLimit").
7. The investment objective of each CorrespondingFund is or will be achieved through investment primarily inforeign securities.
8. The amount of direct investment by eachRSP Fund in its Corresponding Fund will be adjusted from timeto time so that, except for the transitional cash (i.e. cashfrom purchases not yet invested or cash held to satisfy redemptions),the aggregate of the derivative exposure to, and direct investmentin, the Corresponding Fund will equal approximately 100% ofthe assets of the RSP Fund.
9. Except to the extent evidenced by thisDecision and specific approvals granted by the Decision Makerspursuant to National Instrument 81-102 ("NI 81-102"),the investments by the RSP Funds in the Corresponding Fundshave been structured to comply with the investment restrictionsof the Legislation and NI 81-102.
10. In the absence of this Decision, eachRSP Fund is prohibited from knowingly making or holding aninvestment in a Corresponding Fund in which the RSP Fund aloneor together with one or more related mutual funds is a substantialsecurityholder.
11. In the absence of this Decision, Brandesis required to file a report on every purchase or sale ofsecurities of the Corresponding Funds by each of the RSP Funds.
12. The investments by the RSP Funds in securitiesof the Corresponding Funds represents the business judgmentof "responsible persons" (as defined in the Legislation),uninfluenced by considerations other than the best interestsof the RSP Funds.
AND WHEREAS under the System, this MRRSDecision Document evidences the decision of each Decision Maker;
AND WHEREAS each Decision Maker is satisfiedthat the test contained in the Legislation that provides theDecision Maker with the jurisdiction to make the Decision hasbeen met.
THE DECISION of the Decision Makers underthe Legislation is that the Applicable Requirements shall notapply so as to prevent the RSP Funds from making or holdingan investment in securities of the Corresponding Funds, or soas to require the Manager to file a report relating to the purchaseor sale of such securities;
PROVIDED THAT IN RESPECT OF the investmentsby the RSP Funds in securities of the Corresponding Funds:
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 DecisionMaker dealing with matters in subsection 2.5 of NI 81-102.
2. the Decision shall only apply if, at thetime a RSP Fund makes or holds an investment in a CorrespondingFund, the following conditions are satisfied:
(a) the securities of both the RSP Fundand the Corresponding Fund are being offered for sale inthe jurisdiction of the Decision Maker pursuant to a simplifiedprospectus and annual information form which has been filedwith and accepted by the Decision Maker;
(b) the investment by the RSP Fund in theCorresponding Fund is compatible with the fundamental investmentobjectives of the RSP Fund;
(c) the investment objective of the RSPFund discloses that the RSP Fund invests directly and indirectly(through derivative exposure) in the Corresponding Fund,the name of the Corresponding Fund and that the RSP Fundis fully eligible for registered plans;
(d) the Corresponding Fund is not a mutualfund whose investment objective includes investing directlyor indirectly in other mutual funds;
(e) the RSP Fund restricts its direct investmentin the Corresponding Fund to a percentage of its assetsthat is within the Permitted Limit;
(f) there are compatible dates for the calculationof the net asset value of the RSP Fund and the CorrespondingFund for the purpose of the issue and redemption of thesecurities of such mutual funds;
(g) no sales charges are payable by theRSP Fund in relation to its purchases of securities of theCorresponding Fund;
(h) no redemption fees or other chargesare charged by the Corresponding Fund in respect of theredemption by the RSP Fund of securities of the CorrespondingFund owned by the RSP Fund;
(i) no fees and charges of any sort arepaid by the RSP Fund and the Corresponding Fund, by theirrespective managers or principal distributors, or by anyaffiliate or associate of any of the foregoing entitiesto anyone in respect of the RSP Fund's purchase, holdingor redemption of the securities of the Corresponding Fund;
(j) the arrangements between or in respectof the RSP Fund and the Corresponding Fund are such as toavoid the duplication of management fees;
(k) any notice provided to securityholdersof the Corresponding Fund, as required by applicable lawsor the constating documents of the Corresponding Fund, hasbeen delivered by the RSP Fund to its securityholders;
(l) all of the disclosure and notice materialprepared in connection with a meeting of securityholdersof the Corresponding Fund and received by the RSP Fund hasbeen provided to its securityholders, the securityholdershave been permitted to direct a representative of the RSPFund to vote its holdings in the Corresponding Fund in accordancewith their direction, and the representative of the RSPFund has not voted its holdings in the Corresponding Fundexcept to the extent the securityholders of the RSP Fundhave directed;
(m) in addition to receiving the annualand, upon request, the semi-annual financial statements,of the RSP Fund, securityholders of the RSP Fund have receivedthe annual and, upon request, the semi-annual financialstatements, of the Corresponding Fund in either a combinedreport, containing financial statements of the RSP Fundand Corresponding Fund, or in a separate report containingthe financial statements of the Corresponding Fund; and
(n) to the extent that the RSP Fund andthe Corresponding Fund do not use a combined simplifiedprospectus and annual information form containing disclosureabout the RSP Fund and the Corresponding Fund, copies ofthe simplified prospectus and annual information form ofthe Corresponding Fund have been provided upon request tosecurityholders of the RSP Fund and the right to receivethese documents is disclosed in the simplified prospectusof the RSP Fund.
October 17, 2002.
"Theresa M. McLeod" "RobertL. Shirriff"