Headnote National Policy 11-203 - Process for Exemptive Relief Decisions in Multiple Jurisdictions – Relief from certain new mutual fund start-up requirements in NI 81-102 granted to a non-redeemable investment fund converting into a mutual fund - relief from seed capital requirement and from prohibition against fund bearing the costs of preparation and filing of tis initial simplified prospectus, annual information form, and fund facts – the fund is an existing fund and will have assets well in excess of $500000 upon its securities becoming available for sale as a conventional mutual fund.
Applicable Legislative Provisions National Instrument 81-102 Mutual Funds, ss. 3.1, 3.3 and 19.1.
May 2, 2013
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
ASTON HILL ASSET MANAGEMENT INC.
(the Filer)
AND
ASTON HILL GLOBAL RESOURCE & INFRASTRUCTURE FUND
(the Fund)
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) exempting the Fund from:
(a) section 3.1 of National Instrument 81-102 Mutual Funds (NI 81-102) to permit the Fund to rely on its existing net assets as its seed capital; and
(b) section 3.3 of NI 81-102 to permit the Fund to bear the costs of the preparation and filing of its first simplified prospectus, annual information form and fund facts,
(collectively, the Exemption Sought).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions:
(a) the Ontario Securities Commission is the principal regulator for the 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 British Columbia, Alberta, Saskatchewan, Manitoba, Quebec, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland & Labrador, Northwest Territories, Yukon and Nunavut (the Passport Jurisdictions and together with the Jurisdiction, the Jurisdictions).
Interpretation
Terms defined in MI 11-102, National Instrument 14-101 Definitions and NI 81-102 have the same meaning if used in this decision, unless otherwise defined.
Representations
The decision is based on the following facts represented by the Filer:
The Filer is a corporation amalgamated under the laws of the Province of Ontario with its head office located in Toronto, Ontario. The Filer is registered under the securities legislation of Ontario as an investment fund manager, portfolio manager and exempt market dealer.
The Fund is:
(a) a mutual fund trust governed by a master declaration of trust under the laws of the Province of Ontario of which the Manager is the trustee; and
(b) a reporting issuer under the securities legislation of Province of Canada.
Neither the Filer nor the Fund is in default of securities legislation in Canada.
The Fund has been carrying on operations since 2007. Prior to March 21, 2013, the Fund was a non-redeemable investment fund. On March 8, 2013, the unitholders of the Fund approved a reorganization of the Fund (the Reorganization) that included, among other matters, converting the Fund to a mutual fund. The Reorganization was completed on March 21, 2013. The Filer believes the Reorganization was in the best interests of unitholders of the Fund as it provides unitholders with enhanced liquidity and an opportunity for the Fund to raise additional capital.
The Fund has filed a preliminary simplified prospectus, annual information form and fund facts dated April 8, 2013 (collectively, the Prospectus) in order to qualify units of the Fund for sale to the public in all the provinces and territories of Canada. The final version of the Prospectus will constitute the first simplified prospectus filed by the Fund under National Instrument 81-101 Mutual Fund Prospectus Disclosure.
As of April 5, 2013, the net asset value of the Fund was approximately $34 million. The Manager expects the net asset value of the Fund to be above $500,000 when units of the Fund become available for sale under the final version of the Prospectus.
Granting the Exemption Sought will not cause prejudice to investors because the Fund has been in existence since 2007 and has sufficient assets to continue its operations. The Fund also has sufficient assets to pay the costs of its first simplified prospectus filing.
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 Exemption Sought is granted.
“Raymond Chan”
Raymond Chan Manager, Investment Funds
ONTARIO SECURITIES COMMISSION
SEDAR PROJECT# 2042910