Headnote
NP 11-203 – Relief from NI 81-106 and NI 41-101 for a foreign fund to prepare financial statements using International Financial Reporting Standards and have the financial statements audited using International Standards on Auditing; and relief granted from seed capital requirements for commodity pools in NI 81-104– Issuer is an existing investment fund in a foreign jurisdiction that already prepares financial statements in accordance with International Financial Reporting Standards; Investment Manager permitted to redeem $50,000 seed capital investment in the fund provided the fund has received subscriptions from investors other than the Investment Manager totalling at least $5.0 million and provided the Investment Manager maintain $100,000 in excess working capital.
Applicable Legislative Provisions
National Instrument 81-106 Investment Fund Continuous Disclosure, s. 2.6, and 2.7
National Instrument 41-101 General Prospectus Requirements, ss. 4.2(2)
Form 41-101F2 Information Required in an Investment Fund Prospectus, item 38
National Instrument 81-104 Commodity Pools, section 3.2(2)(a) and section 10.1.
April 30, 2009
In the Matter of the Securities Legislation of Ontario (the “Jurisdiction”)
and
In the Matter of the Process for Exemptive Relief Applications in Multiple Jurisdictions
and
In the Matter of AHL Investment Strategies SPC (the “Filer”)
Decision
Background
The principal regulator in the Jurisdiction has received an application from the Filer for a decision under the securities legislation of the Jurisdiction of the principal regulator (the “Legislation”) for exemptive relief:
(1) pursuant to section 19.1 of National Instrument 41-101 - General Prospectus Requirements (“NI 41-101”) from the requirements under subsection 4.2(2) of NI 41-101 and Item 38 of Form 41-101F2 Information Required in an Investment Fund Prospectus to permit:
(a) the Filer to include financial statements prepared using International Financial Reporting Standards (“IFRS”), rather than Canadian generally accepted accounting principles (“GAAP”), in the final prospectus (the “Final Prospectus”) of the Filer to be filed in each of the Jurisdictions; and
(b) the Filer to use International Standards on Auditing (“ISA”), rather than Canadian generally accepted auditing standards (“GAAS”), in auditing the Filer's financial statements included in the Final Prospectus.
(2) pursuant to 17.1 of National Instrument 81-106 - Investment Fund Continuous Disclosure (“NI 81-106”) from the requirements under:
(a) subsection 2.6 of NI 81-106, to permit the financial statements of the Filer to be prepared in accordance with IFRS, rather than Canadian GAAP; and
(b) subsection 2.7 of NI 81-106, to permit the financial statements of the Filer that are required to be audited to be audited in accordance with ISA, rather than Canadian GAAS.
(collectively, the “Accounting and Audit Relief”),
(3) pursuant to section 10.1 of National Instrument 81-104 Commodity Pools (“NI 81-104”) for a decision that the Filer be exempted from the requirements under subsection 3.2(2)(a) of NI 81-104, which requires a commodity pool to have invested in it at all times securities that were issued pursuant to paragraph 3.2(1)(a) of NI 81-104 and had an aggregate issue price of $50,000 (the “Seed Capital Relief”).
(the Accounting and Audit Relief and the Seed Capital Relief are collectively referred to herein as, the “Requested Relief”).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application),
(a) the Ontario Securities Commission (the “Commission”) is the principal regulator for this application; and
(b) the Filer has provided notice that section 4.7(1) of Multilateral Instrument 11-102 Passport System (“MI 11-102”) is intended to be relied upon in Québec.
Interpretation
Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this decision, unless otherwise defined.
Representations
This decision is based on the following facts represented by the Filer:
The Filer is incorporated with limited liability in the Cayman Islands and registered as a segregated portfolio company under the Companies Law (2007 Revision).
Pursuant to its Articles of Association, the Filer may issue separate classes of notes, the value of which will depend on a separate segregated portfolio of the Filer. Each segregated portfolio will have its own investment objective and investment strategy.
The Filer will establish and maintain a segregated portfolio (the “AHL Portfolio”) and proposes to issue a series of Canadian dollar denominated redeemable Class C AHL Alpha CAD notes (the “Notes”) that will constitute unsubordinated and unsecured obligations of the Filer, the value of which will depend on the AHL Portfolio.
The AHL Portfolio’s investment objective is to provide investors with the opportunity to realize capital appreciation through investment returns that have a low correlation to traditional forms of stock and bond securities.
To pursue its investment objective, the AHL Portfolio will invest the proceeds of any offering of Notes in a diversified portfolio of financial instruments across a range of global markets using a multi-strategy trading program.
Man Investments Limited (the “Investment Manager”), a company incorporated in England and Wales, which is regulated in the conduct of regulated activities in the United Kingdom by the Financial Services Authority of the United Kingdom, in its capacity as investment manager of the Filer, will provide investment advisory and portfolio management services in respect of the assets of the AHL Portfolio.
The Filer is a commodity pool as such term is defined in section 1.1 of NI 81-104, in that the Filer has adopted fundamental investment objectives that permit the Filer to use or invest in specified derivatives in a manner that is not permitted under National Instrument 81-102 – Mutual Funds (“NI 81-102”).
The Filer will be subject to the investment restrictions contained in applicable Canadian securities legislation, including NI 81-102, and the AHL Portfolio will be managed in accordance with these restrictions, except as otherwise permitted by NI 81-104.
The Filer has filed a non-offering Preliminary Prospectus dated April 14, 2009 with the securities regulatory authorities in Ontario and Québec, a receipt for which was issued by the Commission and the Autorité des marchés financiers on April 14, 2009.
Once the Filer obtains a receipt for the Final Prospectus from the Commission and the Autorité des marchés financiers, pursuant to which it will become a reporting issuer under the Securities Act (Ontario) and the Securities Act (Québec), the financial statements and other reports required to be prepared and filed by the Filer in respect of the AHL Portfolio will be provided to holders of Notes (“Noteholders”) and available through SEDAR.
The Filer and each of its segregated portfolios prepare their financial statements in accordance with IFRS and have their financial statements audited in accordance with ISA, which are accepted under the relevant legal and regulatory requirements of the Cayman Islands. It is intended that once the AHL Portfolio is established, the financial statements of the AHL Portfolio will be prepared in accordance with IFRS and audited in accordance with ISA.
The essential books and records of the Filer and each of its segregated portfolios, including the AHL Portfolio, required for an audit are primarily located in the United Kingdom.
Ernst & Young LLP, Cayman Islands (“E&Y CI”) audits the financial statements of the Filer and each of its segregated portfolios in accordance with ISA. It is intended that once the AHL Portfolio is established, E&Y CI will audit the financial statements of the AHL Portfolio in accordance with ISA.
E&Y CI is registered with the Canadian Public Accountability Board.
The Canadian Accounting Standards Board has confirmed that publicly accountable enterprises will be required to prepare their financial statements in accordance with IFRS for interim and annual financial statements relating to fiscal years beginning on or after January 1,2011.
Under National Instrument 52-107 - Acceptable Accounting Principles, Auditing Standards and Reporting Currency ("NI 52-107"), a "foreign issuer" is permitted to prepare its financial statements in accordance with IFRS and to have its audited financial statements audited in accordance with ISA, provided that an auditor's report describes any material differences in the form and content of such auditor's report as compared to an auditor's report prepared in accordance with Canadian GAAS and indicates that an auditor's report prepared in accordance with Canadian GAAS would not contain a reservation.
The Filer and each of its segregated portfolios would qualify as a "foreign issuer" under NI 52-107 but for the fact that it is an investment fund.
The Preliminary Prospectus discloses, and the Final Prospectus will disclose, the Filer’s intention that the financial statements of the AHL Portfolio will be prepared in accordance with IFRS and audited in accordance with ISA as contemplated.
The Preliminary Prospectus is, and the Final Prospectus will be, a non-offering prospectus and no securities are will be offered thereunder. The Notes will be offered from time to time to investors that are resident outside of Canada.
The Notes may be purchased on a weekly basis at a price equal to the NAV of the Notes. The Notes may be redeemed on a weekly basis for a redemption price equal to the NAV of the Notes less any costs of funding the redemption and less, if applicable, the redemption fees payable in connection with redemptions of Notes. The Filer does not intend to list the Notes on any stock exchange.
As the investment manager of the Fund, the Investment Manager will be obliged to act in accordance with the Investment Management Agreement, which requires the Investment Manager to comply with all applicable laws with respect to the conduct of the Investment Manager's business and the provision of services under the Investment Management Agreement.
The Investment Manager is registered as an investment advisor and is regulated in the conduct of regulated activities in the United Kingdom by the Financial Services Authority of the United Kingdom.
The Filer and its directors or officers irrevocably and unconditionally submit to the non-exclusive jurisdiction of the judicial, quasi-judicial, and administrative tribunals of the Jurisdictions and any administrative proceedings in any such Jurisdiction, in any proceedings arising out of or related to or concerning the conditions and representations of the decision in connection with the Requested Relief or its activities as a reporting issuer.
Decision
The principal regulator is satisfied that the decision meets the test set out in the Legislation for the principal regulator to make the decision.
The decision of the principal regulator under the Legislation is that the Requested Relief is granted provided that:
(a) in respect of the Accounting and Audit Relief,
i. the annual financial statements of the AHL Portfolio for the Final Prospectus and for subsequent financial periods will be prepared in accordance with IFRS and audited in accordance with ISA as contemplated;
ii. the interim financial statements of the AHL Portfolio for subsequent financial periods will be prepared in accordance with IFRS and audited in accordance with ISA as contemplated; and
iii. the Filer provides the disclosure set out in paragraph 18; and
(b) in respect of the Seed Capital Relief,
i. the Investment Manager may not redeem any of its initial investment of $50,000 in the AHL Portfolio until $5.0 million has been received by the AHL Portfolio from persons or companies other than the persons and companies referred to in paragraph 3.2(l)(a) of NI 81-104;
ii. the basis on which the Investment Manager may redeem any of its initial investment of $50,000 from the AHL Portfolio is disclosed in the Preliminary Prospectus or will be disclosed in the Final Prospectus;
iii. if, after the Investment Manager redeems its initial investment of $50,000 in the AHL Portfolio in accordance with condition (b)(i) above, the value of the Notes subscribed for by investors other than the persons and companies referred to in paragraph 3.2(l)(a) of NI 81-104 drops below $5.0 million for more than 30 consecutive days, the Investment Manager will, unless the AHL Portfolio is in the process of being dissolved or terminated, invest $50,000 in the AHL Portfolio and maintain that investment until condition (b)(i) is again satisfied; and
iv. the Investment Manager will at all times maintain excess working capital of a minimum of $100,000.
Darren McKall
Darren McKall
Assistant Manager, Investment Funds
Ontario Securities Commission