GCIC Ltd. (Re)
Headnote
National Policy 11-203 Process for Exemption Relief Applications in Multiple Jurisdictions – relief granted from investment prohibition in subsection 4.1(1) of NI 81-102 to permit certain mutual funds to purchase securities under a private placement where the issuer is not a reporting issuer in any of the jurisdictions – relief conditional on the fund complying with subsection 4.1(4)(a), (c)(ii) and (d) which include approval by the mutual funds’ independent review committee.
April 26, 2012
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 GCIC LTD. (the “Filer”)
AND
The Mutual Funds listed in Schedule A
(collectively, the “Funds”)
DECISION
Background
The principal regulator in the Jurisdiction has received an application from the Filer on behalf of the Funds for a decision under the securities legislation of the Jurisdiction of the principal regulator (“Legislation”) for an exemption from subsection 4.1(1) of 81-102 – Mutual Funds (“NI 81-102”) to enable the Funds to purchase limited partner interests (the “Securities”) of The Carlyle Group L.P. (the “Issuer”), a non-reporting issuer in the Jurisdictions (as defined below), during the period of distribution (the “Distribution Period”) of the Issuer’s Securities pursuant to a private placement offering (the “Private Placement”) and for the 60-day period (the “60-Day Period”) following completion of the Distribution Period (the Distribution Period and the 60-Day Period together, the “Prohibition Period”), notwithstanding that Scotia Capital Inc. (the “Related Underwriter”), an affiliate of the Filer, will act as an underwriter in connection with the Private Placement (the “Requested Relief”).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
(a) the Ontario Securities Commission (“OSC”) 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 is intended to be relied upon in each of the other provinces and territories of Canada (together with Ontario, the “Jurisdictions”).
Interpretation
Unless otherwise defined herein, terms defined in National Instrument 14-101 Definitions, NI 81-102 and National Instrument 81-107 Independent Review Committee for Investment Funds (“NI 81-107”) have the same meaning in this application.
Representations
1GCICL is a corporation existing under the laws of the Province of Ontario, is registered with the OSC as a portfolio manager in the category of adviser, is further registered in that category in each of British Columbia, Alberta, Manitoba, Saskatchewan, Quebec, New Brunswick, Prince Edward Island and Nova Scotia and is registered as a commodity trading manager and investment fund manager with the OSC.
2GCICL is the manager, trustee (where applicable), principal distributor, registrar, and portfolio adviser of each Fund.
3Each of the Funds is an open-ended mutual fund trust or corporation established under the laws of the Province of Ontario. The securities of each of the Funds are qualified for distribution in the Jurisdictions pursuant to simplified prospectuses and annual information forms prepared and filed in accordance with the securities legislation of the Jurisdictions.
4The Filer is currently a “dealer manager” with respect to the Funds and each Fund is “dealer managed mutual fund”, as such terms are defined in Section 1.1 of NI 81-102.
5Neither the Filer nor any Fund is in default of securities legislation in any of the Jurisdictions.
6The Filer has appointed an independent review committee (“IRC”) under NI 81-107 for each of the Funds.
7The Private Placement, which will be marketed on an underwritten basis in connection with the initial public offering of Securities in the United States (collectively with the Private Placement, the “Offering”), is currently expected to close on May 2, 2012.
8According to the undated preliminary Canadian offering memorandum for the Private Placement:
(a) the Offering is for 30,500,000 Securities at a price between US$23.00 and US$25.00 per Security;
(b) the underwriters for the Offering (“Underwriters”) will be granted an option to increase by 4,575,000 the number of Securities being offered;
(c) the Underwriters’ fee of up to 5% per Security sold in the Offering will be comprised of (i) the difference between the amount the Underwriters pay the Issuer for each Security and the initial price of the Security to the public and (ii) a possible discretionary incentive fee; and
(d) the net proceeds of the Offering will be used to purchase newly issued partnership units from three holding partnerships (collectively, “Carlyle Holdings”) that will, in turn, hold interests in four parent entities that will, in turn and along with current partners of Carlyle and certain strategic investors, own the operating companies of the business. Carlyle Holdings will use some of the proceeds to repay outstanding indebtedness under a revolving credit facility and loan agreement and the remainder for general corporate purposes.
9The Related Underwriter and its U.S. affiliate are currently expected to have a 1% interest in the Offering.
10The investment objective of each Fund permits an investment in the Securities.
11Despite the affiliation between the Filer and the Related Underwriter, they operate independently of each other. In particular, the investment banking and related dealer activities of the Related Underwriter and the investment portfolio management activities of the Filer on behalf of the Funds are separated by "ethical" walls. Accordingly, no information flows from one to the other concerning their respective business operations or activities generally, except in the following or similar circumstances:
(a) in respect of compliance matters (for example, the Filer and the Related Underwriter may communicate to enable the Filer to maintain an up to date restricted-issuer list to ensure that the Filer complies with applicable securities laws); and
(b) the Filer and the Related Underwriter may share general market information such as discussion on general economic conditions, bank rates, etc.
12As the Related Underwriter will participate in the Private Placement, the investment prohibition contained in subsection 4.1(1) of NI 81-102 (the “Prohibition”) restricts the Funds from making certain investments in the Securities during the Prohibition Period and may result in the Funds missing investment opportunities the Filer believes are favourable.
13The Funds would not be restricted by the Prohibition if, in accordance with subsection 4.1(4) of NI 81-102, certain conditions are met, including that the distribution is made by a prospectus filed in one or more of the Jurisdictions and the IRC of the Funds has approved the transaction in accordance with subsection 5.2(2) of NI 81-107.
14As a prospectus will not be filed in any Jurisdiction in connection with the Private Placement the Funds cannot rely on the exemption from the Prohibition contained in subsection 4.1(4) of NI 81-102. However, the Securities will trade on the NASDAQ Global Select Market and the Filer will comply with subparagraphs 4.1(4)(a), (c)(ii) and (d) of NI 81-102 when purchasing Securities.
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 at the time of each purchase of Securities by a Fund during the Prohibition Period:
(a) the investment will be in compliance with the investment objectives of the Fund;
(b) the Fund has an IRC that complies with NI 81-107;
(c) the IRC of the Fund will have approved the investment in accordance with subsection 4.1(4)(a) of NI 81-102 and with NI 81-107; and
(d) the Fund complies with paragraphs 4.1(4)(c)(ii) and 4.1(4)(d) of NI 81-102.
“Raymond Chan”
Raymond Chan
Manager, Investment Funds Branch
Ontario Securities Commission
SEDAR # 1892384,1892390
SCHEDULE “A”
List of Funds
Dynamic Power American Growth Fund
Dynamic Power American Growth Class
Dynamic Power Global Growth Fund
Dynamic Power Global Growth Class
Dynamic Power Global Balanced Class
Marquis Institutional Global Equity Portfolio