Securities Law & Instruments

Headnote

Section 80 of the Commodity Futures Act (Ontario) -- relief from the adviser registration requirements of subsection 22(1)(b) of the CFA in respect of advising a certain non-Canadian fund in respect of trades in commodity futures and options contracts traded on commodity futures exchanges outside Canada and cleared through clearing corporations outside Canada, subject to certain terms and conditions.

Statutes Cited

Commodity Futures Act, R.S.O. 1990, c. C.20, as am., s. 22(1)(b) and s. 80.

Securities Act, R.S.O. 1990, c. S.5, as am. -- Rule 35-502 -- Non Resident Advisers.

Securities Act, R.S.O. 1990, c. S.5, as am. -- Rule 45-501 -- Exempt Distributions.

July 8, 2005

IN THE MATTER OF

THE COMMODITY FUTURES ACT,

R.S.O. 1990, CHAPTER C.20, AS AMENDED (the CFA)

AND

IN THE MATTER OF

KIEWIT INVESTMENT FUND LLLP

AND

OFFIT HALL CAPITAL MANAGEMENT LLC

 

ORDER

(Section 80 of the Act)

UPON the application (the Application) of Offit Hall Capital Management LLC (the Applicant) to the Ontario Securities Commission (the Commission) for an order pursuant to section 80 of the CFA that the Applicant and its directors, officers and employees acting on its behalf as an adviser (collectively, the Representatives) are exempt, for a period of three years, from the registration requirements of paragraph 22(1)(b) of the CFA in respect of advising Kiewit Investment Fund LLLP (the Fund) in respect of trades in commodity futures and options contracts traded on commodity futures exchanges outside Canada and cleared through clearing corporations located outside Canada subject to certain terms and conditions;

AND UPON considering the Application and the recommendation of staff of the Commission;

AND UPON the Applicant having represented to the Commission that:

1. The Applicant is a limited liability company organized under the laws of the State of Delaware. The Applicant is registered with the United States Securities and Exchange Commission (the SEC) as an investment adviser under the Investment Advisers Act of 1940 and is exempt from registration under the United States Commodity Futures Trading Commission. As of December 2004, the Applicant had more than U.S. $15.6 billion under advisement for 103 clients.

2. The Applicant is not registered in any capacity under the CFA or the Securities Act (Ontario) (the OSA).

3. The Fund is a Delaware limited partnership newly formed by Peter Kiewit Sons', Inc. (PKS). PKS is a corporation incorporated under the laws of the State of Delaware and is one of the largest construction contractors in North America.

4. The Fund is designed solely for the benefit of certain Eligible Employees (as defined below) of PKS and will offer such Eligible Employees a cost-effective opportunity to access types of investments and professional investment management that otherwise may not be available to them on an individual basis.

5. The Fund is registered in the United States as a diversified, closed-end management investment company, and will operate pursuant to an order of the SEC, as an "employees' securities company" within the meaning of Section 2(a)(13) of the Investment Company Act of 1940, as amended (the 1940 Act).

6. The Fund is not and has no current intention of becoming a reporting issuer in Ontario or any other Canadian jurisdiction.

7. The Applicant serves as the Fund's investment adviser and provides investment management services to the Fund. The Adviser is responsible for providing investment advice with respect of trades in commodity futures contracts traded on commodity futures exchanges outside Canada and cleared through clearing corporations outside Canada, subject to the Fund's board of directors.

8. Units of limited partnership interests in the Fund (the Units) will initially be offered to current full-time and certain former employees and directors of PKS or an affiliated company of PKS who are or previously were holders of common stock of PKS and directors of the Fund (collectively, the Eligible Employees). Thereafter, the Fund may, in the board of directors' discretion, offer Units to any person that is eligible to become a limited partner of the Fund, which includes Eligible Employees, PKS or any entity controlled by PKS and certain immediate family members of an Eligible Employee.

9. There is presently no rule under the CFA that provides an exemption from the adviser registration requirement in paragraph 22(1)(b) of the CFA for a person or company acting as an adviser in respect of commodity futures options and commodity futures contracts that is similar to the exemption from the adviser registration requirement in clause 25(1)(c) of the OSA for acting as an adviser (as defined in the OSA) in respect of securities that is provided under section 7.10 (Privately Placed Funds Offered Primarily Abroad) of OSC Rule 35-502 -- Non-Resident Advisers (Rule 35-502).

10. As would be required under section 7.10 of Rule 35-502, the securities of the Funds will be:

i. primarily offered outside of Canada;

ii. only distributed in Ontario through one or more registrants under the OSA; and

iii. distributed in Ontario in reliance upon an exemption from the prospectus requirements of the OSA to accredited investors (as defined in OSC Rule 45-501 -- Exempt Distributions (Rule 45-501)) or persons relying on the minimum purchase exemption under section 2.12 of Rule 45-501 or persons relying on exemptive relief provided by the Commission.

11. Prospective investors who are Ontario residents will receive disclosure that includes (a) a statement that there may be difficulty in enforcing legal rights against the Fund and or the Applicant which advises the Fund because such entities are resident outside of Canada and all or substantially all of their assets are situated outside of Canada; and (b) a statement that the Applicant advising the Fund is not registered with or licensed by any securities regulatory authority in Canada and, accordingly, the protections available to clients of a registered adviser will not be available to purchasers of Units.

12. The Fund intends to provide liquidity to investors in the Fund through semi-annual issuer bids effected in compliance with the OSA or pursuant to an exemption from the issuer bid requirements of the OSA.

AND UPON being satisfied that it would not be prejudicial to public interest for the Commission to grant the exemptions requested on the basis of the terms and conditions proposed,

IT IS ORDERED pursuant to section 80 of the CFA that each of the Applicant and its Representatives are, for a period of three years, not subject to the requirements of paragraph (22)(1)(b) of the CFA in respect of their advisory activities in connection with the Fund, provided that:

(a) the Applicant is registered with the SEC as an investment adviser;

(b) the Fund invests, or may in the future invest, in commodity futures and options contracts traded on organized exchanges outside of Canada and cleared through clearing corporations located outside of Canada;

(c) securities of the Fund are and will be offered primarily outside Canada and are only distributed in Ontario through Ontario-registered dealers, in reliance on an exemption from the prospectus requirements of the OSA to accredited investors (as defined in Rule 45-501), persons relying on the minimum purchase exemption under section 2.12 of Rule 45-501 or persons relying on exemptive relief provided by the Commission, and upon an exemption from the adviser registration requirements of the OSA under section 7.10 of Rule 35-502; and

(d) prospective investors who are Ontario residents will receive disclosure that includes (a) a statement that there may be difficulty in enforcing legal rights against the Fund and or the Applicant which advises the Fund because such entities are resident outside of Canada and all or substantially all of their assets are situated outside of Canada; and (b) a statement that the Applicant advising the Fund is not registered with or licensed by any securities regulatory authority in Canada and, accordingly, the protections available to clients of a registered adviser will not be available to purchasers of Units.

"Paul M. Moore"

"H. Lorne Morphy"