Exemption Orders (Discretionary)

iPERFORMANCE FUND CORP.


2001 BCSECCOM 1177


Headnote

Mutual Reliance Review System for Exemptive Relief Applications – variation to previously granted registration and prospectus relief to permit the calculation of the initial investment to include purchases made through an investors wholly-owned company or companies

Applicable British Columbia Provisions

Securities Act, R.S.B.C. 1996, c 418, s. 171

IN THE MATTER OF THE SECURITIES LEGISLATION OF BRITISH COLUMBIA, ALBERTA, SASKATCHEWAN, ONTARIO, NOVA SCOTIA, NEW BRUNSWICK, PRINCE EDWARD ISLAND, NEWFOUNDLAND, NORTHWEST TERRITORIES, YUKON AND NUNAVUT

AND

IN THE MATTER OF THE MUTUAL RELIANCE REVIEW SYSTEM FOR EXEMPTIVE RELIEF APPLICATIONS

AND

IN THE MATTER OF iPERFORMANCE FUND CORP.

MRRS DECISION DOCUMENT

WHEREAS the securities regulatory authority or regulator (the "Decision Maker") in each of British Columbia, Alberta, Saskatchewan, Ontario, Nova Scotia, New Brunswick, Prince Edward Island, Newfoundland, Northwest Territories, Yukon and Nunavut (the “Jurisdictions”) has received an application from iPerformance Fund Corp. (the "Filer") for a decision pursuant to the securities legislation of the Jurisdictions (the "Legislation") amending a previous decision granted by the Decision Maker in each of the Jurisdictions on April 16, 2001 (the “Previous Decision”) on the basis set out in this Decision Document;

AND WHEREAS the Previous Decision, among other things, permitted the calculation of an initial distribution of Units of Funds (both as defined below) to aggregate an investor’s purchases made personally with those made through his or her registered plans to ensure that such investor invested at least the amount prescribed by the Legislation;

AND WHEREAS at the time of granting the Previous Decision no request was made to permit the calculation of the initial distribution to also include purchases made through wholly-owned companies of the investor and the Filer now wishes to amend the Previous Decision to include such purchases;

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 the Filer has represented to the Decision Makers that:

1. The Filer has applied for registration under the Securities Act (Ontario) as an adviser in the categories of investment counsel and portfolio manager. Until such time as the registration has been approved by the applicable regulatory authority, the Filer will act under the registration of its controlling shareholder, Hirsch Asset Management Corp., which is a mutual fund dealer, investment counsel and portfolio manager in Ontario.

2. The Filer has, or will continue in the future to, establish certain open-ended unit trusts ("Funds") pursuant to declarations of trust for which the Filer acts as the trustee and manager.

3. Each Fund is, or will be, a "mutual fund" as defined in the Legislation.

4. None of the Funds are, or currently intends to become, a reporting issuer, as such term is defined in the Legislation, and the units of the Funds ("Units") are not and will not be listed on any stock exchange.

5. Each Fund is, or will be, divided into Units which will evidence each investor's undivided interest in the assets of the Fund.

6. Units of the Funds are, or will be, qualified for investment by a trust governed by a self-administered registered retirement savings plan or registered retirement income fund ("Registered Plans").

7. The Filer obtained the Previous Decision from the Decision Makers which, among other things, permitted the calculation of the initial distribution of Units to investors (the “Initial Investment”) in a Fund to aggregate an investor's purchases made personally with those made through his or her Registered Plans in order to ensure that such investor invested at least the amount prescribed by the Legislation (the "Prescribed Amount") relating to the exemptions from the prospectus and registration requirements which require the investor to purchase securities of an issuer having a minimum cost.

8. The Initial Investment will have an aggregate acquisition cost to the investor, the investor's Registered Plans and the investor's Wholly-Owned Company or Companies (as defined below), of at least the Prescribed Amount.

9. Certain investors have requested to make all or a portion of the Initial Investment through a corporation in which the investor beneficially owns, directly or indirectly, all of the outstanding securities (a “Wholly-Owned Company”).

10. At the time of making the application requesting the Previous Decision no request was made to permit the calculation of the Initial Investment to also include purchases made through a Wholly-Owned Company or Companies of the investor.

AND WHEREAS pursuant to the System, this MRRS Decision Document evidences the decision of each Decision Maker (the "Decision");

AND WHEREAS each of the Decision Makers is satisfied that the test contained in the Legislation that provides the Decision Makers with the jurisdiction to make the Decision has been met;

THE DECISION of the Decision Makers pursuant to the Legislation is that paragraph 7 of the Previous Decision is revoked and restated in its entirety as follows:

“7. The initial distribution of Units of a Fund (the “Initial Investment”) to an investor, the Registered Plans of the investor, and a corporation or corporations in which the investor beneficially owns, directly or indirectly, all of the outstanding securities (each a “Wholly-Owned Company”), will have an aggregate acquisition cost to the investor, the investor’s Registered Plans or the investor’s Wholly-Owned Company or Companies (an investor alone, an investor’s Registered Plan alone, an investor’s Wholly-Owned Company or Companies alone, or any combination of the foregoing, a “Unitholder”) of at least the amount prescribed by the Legislation (the “Prescribed Amount”) in connection with the exemptions from the prospectus and registration requirements (the “Private Placement Exemptions”) which require the investor to purchase securities of an issuer having a minimum acquisition cost.”

DATED November 30, 2001.

K.D. Adams H. Lorne Morphy