Ontario Securities Commission
(Decision dated Sept. 27/ 2012)
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – Relief granted from section 10.3 of NI 81-102 to permit a commodity pool to process redemptions of its units at their NAV per unit determined on a weekly redemption date even though the fund calculated NAV on each business day.
Applicable Legislative Provisions
National Instrument 81-102 – Mutual Funds, sections 10.3 and 19.1.
September 27, 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
Man Investments Canada Corp. (the Manager or the Filer) and
GLG Income Opportunities Fund (Fund)
Background:
The principal regulator in the Jurisdiction has received an application from the Filer, on behalf of the Fund, for a decision under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) granting exemptive relief, pursuant to Part 19 of National Instrument 81-102 Mutual Funds (NI 81-102), from the requirement in section 10.3 of NI 81-102 that the redemption price of a security of a mutual fund to which a redemption order pertains shall be the net asset value of a security of that class, or series of a class, next determined after the receipt by the mutual fund of the order (the Requested Relief).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
the Ontario Securities Commission is the principal regulator for this application; and
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 each of the other provinces and territories of Canada (collectively, with Ontario, the Jurisdictions).
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 Manager
The Manager is a corporation incorporated under the Canada Business Corporations Act and is the trustee and manager of the Fund.
The Manager’s head office is located in Toronto, Ontario.
The Manager is registered as an Investment Fund Manager in Ontario, as an adviser in the category of Portfolio Manager in Ontario and Alberta and as a dealer in the category of Exempt Market Dealer in Ontario, British Columbia, Alberta, Saskatchewan, Manitoba, Québec, New Brunswick and Nova Scotia.
None of the Manager, the Fund or GLG Prospect Mountain Ltd. (GLG Ltd.) is in default of any securities legislation in any of the Jurisdictions.
The Fund
The Fund is a mutual fund subject to NI 81-102 and a commodity pool, as such term is defined under NI 81-104, in that the Fund has adopted fundamental investment objectives that permit the Fund to gain exposure to or use or invest in specified derivatives that is not permitted under NI 81-102.
The Fund prepared and filed in accordance with National Instrument 41-101 General Prospectus Requirements (NI 41-101) a long form preliminary prospectus dated August 30, 2012 on SEDAR (the Preliminary Prospectus) with respect to the proposed offering (the Offering) of Class L Units and Class M Units of the Fund (collectively, the Units), a receipt for which was issued on August 31, 2012.
The Fund will prepare and file a long form final prospectus in accordance with NI 41-101 (the Final Prospectus); upon obtaining a receipt therefor, the Units will be qualified for distribution and the Fund will be a reporting issuer in each of the Jurisdictions.
As disclosed in the Preliminary Prospectus, the Fund’s investment objectives are to: (i) provide holders of Units (the Unitholders) with monthly-tax advantaged distributions; (ii) provide the opportunity for long-term appreciation for the Unitholders; and (iii) profit over the entire credit cycle by generally investing or otherwise gaining exposure across the capital structure of leveraged companies and other issuers often driven by a pending event or catalyst.
The Fund will be created to provide exposure to a portfolio comprised primarily of companies with credit, legal, structural or other risks through a broad range of investment instruments which may include high yield bonds, below-par/distressed bank loans, par/near-par bank loans, debtor-in-possession loans, trade claims or receivables, asset-backed securities, convertible and municipal bonds, credit default swaps, credit default indexes, preferred and common stock, warrants and other rights to purchase shares, collateralized debt, bond and loan obligations, futures, options, swaps and other derivative contracts, bridge loans, mezzanine loans, and other types of debt instruments (collectively, the Portfolio), to be held by GLG Ltd.
The Fund will obtain exposure to economic returns of the Portfolio through one or more forward sale agreements (each a Forward Agreement) entered into with one or more Canadian chartered banks and/or their affiliates (each a Counterparty).
The Fund will invest substantially all of the proceeds of the Offering in a specified portfolio of common shares of Canadian public companies (the Common Share Portfolio) that are Canadian securities as defined in subsection 39(6) of the Income Tax Act (Canada).
Under the terms of the Forward Agreement, the Counterparty will agree to pay to the Fund on the scheduled settlement date of a Forward Agreement (the Forward Date), as the purchase price for the Common Share Portfolio, an amount based on the value of the Portfolio on the Forward Date.
The return to the Fund, and consequently to the Unitholders, will by virtue of the Forward Agreement depend on the net redemption proceeds that would be received by holders on a redemption of the Canadian dollar denominated redeemable notes, proposed to be issued by GLG Ltd., having an aggregate value equal to the aggregate net asset value of the Portfolio.
The Fund does not intend to list the Units on any stock exchange.
GLG Ltd. and the Portfolio
GLG Ltd. is an exempted company with limited liability incorporated in the Cayman Islands on August 22, 2012. GLG Ltd. will acquire and maintain the Portfolio.
GLG Ore Hill LLC (the GLG Manager) will act as manager and investment manager of GLG Ltd. and will actively manage the Portfolio.
The GLG Manager, a Delaware limited liability company, is ultimately owned by Man Group plc and is an affiliate of the Manager.
GLG Ltd. prepared and filed a long form non-offering preliminary prospectus in accordance with NI 41-101 in Ontario and Québec on September 11, 2012, a receipt for which was issued on September 12, 2012, and intends to file in accordance with NI 41-101 and obtain a receipt for a long form final prospectus, pursuant to which it will become a reporting issuer under the Securities Act (Ontario) and Securities Act (Québec) and subject to continuous disclosure requirements of National Instrument 81-106 Investment Fund Continuous Disclosure (NI 81-106). As a result, the financial statements and other reports required to be filed by GLG Ltd. under NI 81-106 will be available to the Unitholders on SEDAR.
The GLG Manager intends to manage the assets of the Portfolio with substantially similar investment objectives and strategies as Man Prospect Mountain Limited (Man Prospect Mountain), a fund advised by the GLG Manager since its inception in July 2008.
GLG Ltd. will be a mutual fund because holders of its securities will be entitled to receive on demand, an amount computed by reference to the net asset value (NAV) of the Portfolio. However, GLG Ltd. will not distribute any securities under its non-offering prospectus and accordingly GLG Ltd. will be a mutual fund to which NI 81-106 applies, but will not be subject to requirements of either NI 81-102 or NI 81-104.
Though not subject to NI 81-104, GLG Ltd. will be a commodity pool as such term is defined in NI 81-104 in that GLG Ltd. has adopted fundamental investment objectives that permit it to use specified derivatives in a manner that is not permitted under NI 81-102.
GLG Ltd. has adopted the investment restrictions contained in NI 81-102 and the Portfolio is managed in accordance with these restrictions, except as otherwise permitted by NI 81-104 and in accordance with any exemptions therefrom obtained by the Manager.
The GLG Manager will monitor GLG Ltd.’s compliance with its investment restrictions for the Portfolio.
Redemptions
As will be disclosed in the Final Prospectus, Units may be redeemed on a weekly basis on each Monday, or if Monday is not a business day, the following business day (the “Redemption Date”) at a price equal to the NAV per Unit. The description of the redemption process in the Final Prospectus contemplates that the redemption price for the Units will be determined as of the Redemption Date.
As requests for redemptions may be made at any time during the week and are subject to a cut-off date (notice of redemption must be received before 4:00 p.m. (Toronto time) on the second last business day immediately preceding a Redemption Date (“the “Cut-Off Date”) in order to receive the Redemption Price in effect on that Redemption Date), redemptions may not be implemented at a price equal to the NAV next determined after receipt of the redemption request. Requests made on the Cut-Off Date will be redeemed at a redemption price in accordance with section 6.2 of NI 81-104.
These redemption mechanics correspond to those of Man Prospect Mountain, a fund with substantially similar investment objectives and strategies and which is advised by the GLG Manager.
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 Units may be redeemed on a weekly basis on each Redemption Date.
“Raymond Chan”
Raymond Chan
Manager, Investment Funds Branch
Ontario Securities Commission SEDAR Project No. 1960422
Headnote
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – Relief granted from section 10.3 of NI 81-102 to permit a commodity pool to process redemptions of its units at their NAV per unit determined on a weekly redemption date even though the fund calculated NAV on each business day.
Applicable Legislative Provisions
National Instrument 81-102 – Mutual Funds, sections 10.3 and 19.1.