NP 11-203 -- Seed capital relief and Weekly NAV calculation relief from National Instrument 81-104 Commodity Pool and National Instrument 81-106 -- Investment Fund Continuous Disclosure for a commodity pool fund not to be subject to the seed capital requirement, and for the commodity pool fund to calculate its net asset value weekly, due to the nature of the fund's indirect exposure to another commodity pool that published its net asset value on a weekly basis. The commodity pool fund based on its specific structure, subject to conditions.
Applicable Legislative Provisions
National Instrument 81-106 Investment Fund Continuous Disclosure , s. 14.2.
National Instrument 81-104 Commodity Pools, ss. 3.2(2)(a), 10.1.
November 3, 2009
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF
APPLICATIONS IN MULTIPLE JURISDICTIONS
IN THE MATTER OF
MAN CANADA AHL DP INVESTMENT FUND
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 from:
1. section 14.2(3)(b) of National Instrument 81-106 -- Investment Fund Continuous Disclosure ("NI 81-106"), which requires the net asset value ("NAV") of an investment fund that uses specified derivatives to be calculated at least once every business day ("NAV Relief"); and
2. section 3.2(2)(a) of National Instrument 81-104 -- Commodity Pools ("NI 81-104"), which requires a commodity pool to have invested in it at all times an amount invested in securities that were issued pursuant to paragraph 3.2(1)(a) of NI 81-104 and had an aggregate issue price of $50,000 ("Seed Capital Relief"),
(herein collectively referred to as the "Requested Relief").
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application),
(a) the Ontario Securities 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 British Columbia, Alberta, Saskatchewan, Manitoba, Québec, New Brunswick, Nova Scotia, Newfoundland and Labrador, Prince Edward Island, Northwest Territories, Nunavut and Yukon (the "Passport Jurisdictions").
Terms defined in National Instrument 14-101 Definitions and Ml 11-102 have the same meaning if used in this decision, unless otherwise defined.
This decision is based on the following facts represented by the Filer:
1. The Filer is an investment trust established under the laws of the Province of Ontario pursuant to a declaration of trust.
2. Man Investments Canada Corp. (the "Manager") is the manager, trustee and promoter of the Filer. The Manager will be responsible for providing or arranging for the provision of administrative services required by the Filer. The principal office of the Manager is located at Suite 1202, 70 York Street, Toronto, Ontario M5J 1S9.
3. The Filer filed a preliminary prospectus (the "Preliminary Prospectus") dated July 3, 2009 on SEDAR with respect to the proposed offering (the "Offering") of Class A Units, Class B Units, Class C Units, Class F Units, Class I Units, Class O Units, Class P Units, Class Q Units and Class R Units (together, the "Units") of the Filer, a receipt for which was issued by the Commission on July 3, 2009.
4. 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 gain exposure to or use or invest in specified derivatives in a manner that is not permitted under National Instrument 81-102 -- Mutual Funds ("NI 81-102").
5. The Filer is subject to NI 81-102 and the Securities Act (Ontario), subject to any exemptions therefrom that may be granted by securities regulatory. NI 81-104 also grants exemptions from certain investment restrictions of NI 81-102.
6. The Filer's investment objectives are: (i) to provide holders of Units (the "Unitholders") with the opportunity to realize capital appreciation through investment returns that have a low correlation to traditional forms of stock and bond securities; and (ii) starting in 2010, to pay to holders of Class O Units, Class P Units, Class Q Units and Class R Units quarterly cash distributions in each calendar year equal to 6% of the NAV of such Units calculated as at the last valuation date of the preceding year. The investment objectives of the Filer, as well as its investment strategy, is disclosed in the Preliminary Prospectus.
7. To pursue its investment objectives, the Filer will obtain exposure to the returns of an investment portfolio (the "AHL Portfolio") that ultimately invests in financial instruments across a range of global markets including, without limitation, stocks, bonds, currencies, short-term interest rates, energies, metals and agricultural commodities using a predominantly trend-following trading program that employs futures, options and forward contracts, swaps and other financial derivative instruments.
8. The Filer will obtain exposure to the AHL Portfolio through one or more forward purchase and sale agreements (collectively, the "Forward Agreement") to be entered into with one or more Canadian chartered banks and/or their affiliates (collectively, the "Counterparty").
9. The AHL Portfolio will be held as a segregated portfolio of AHL Investment Strategies SPC (the "AHL SPC"), a segregated portfolio company incorporated with limited liability in the Cayman Islands and registered as a segregated portfolio company under the Companies Law (2007 Revision).
10. The return to the Filer, and consequently to Unitholders, will be referable to the return of Canadian dollar denominated redeemable Class D Man AHL Diversified 2 CAD notes (the "AHL SPC Notes") proposed to be issued by the AHL SPC in respect of the AHL Portfolio. The aggregate value at any time of the outstanding AHL SPC Notes will equal the net asset value of the AHL Portfolio.
11. The Filer will invest substantially all of the proceeds of the Offering in a portfolio of non-dividend paying common shares of Canadian public companies (the "Common Share Portfolio"). Pursuant to the Forward Agreement, the Counterparty will agree to pay to the Filer on the scheduled settlement date of the Forward Agreement, as the purchase price for the Common Share Portfolio, an amount equal to the net redemption proceeds of the AHL SPC Notes, subject to applicable fees owing to the Counterparty under the Forward Agreement.
12. The return to the Filer, and the NAV per Unit of each Class, will by virtue of the Forward Agreement depend on the redemption value of the AHL SPC Notes which is based on the net asset value of the AHL Portfolio. The AHL Portfolio calculates its net asset value every business day and makes the net asset value of the AHL SPC Notes available to the financial press for publication on a weekly basis.
13. All of the classes of Units have the same investment strategy and restrictions but differ with respect to one or more of their features, such as management fees, expenses, redemption fees, commissions or distributions. The NAV per Unit of each class will not be the same as a result of the different fees, expenses and distributions allocable to each class of Units.
14. The Filer does not intend to list the Units on any stock exchange.
15. Units of each class of the Filer are offered for purchase weekly on a continuous basis and may be purchased through authorized dealers. Purchase orders must be received before 4:00 p.m. on the fifth business day immediately preceding a Valuation Date (as hereinafter defined) in order to process the order at the Unit price calculated on the next Valuation Date.
16. Units of each class may be redeemed on a weekly basis for a redemption price equal to 100% of the NAV per Unit of that class less, if applicable, the redemption fee payable in connection with early redemptions of Units.
17. Under section 14.2(3)(b) of NI 81-106, an investment fund that is a reporting issuer that uses or holds specified derivatives, such as the Filer intends to do, must calculate its NAV on a daily basis.
18. The Filer proposes to calculate its NAV as at the Monday of each week (the "Valuation Date") or such other day or days of each week as determined from time to time by the Manager.
19. The Preliminary Prospectus discloses, and the final prospectus of the Filer will disclose, that the NAV per Unit of each class of Units will be calculated and made available to the financial press for publication on a weekly basis. The Manager will post the NAV per Unit of each class of Units on its website at www.maninvestments.com.
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:
Seed Capital Relief
(a) the Manager may not redeem any of its initial investment of $50,000 in the Filer until $5.0 million has been received by the Filer from persons or companies other than the persons and companies referred to in paragraph 3.2(l)(a) of NI 81-104;
(b) the basis on which the Manager may redeem any of its initial investment of $50,000 from the Filer will be disclosed in the prospectus of the Filer;
(c) if, after the Manager redeems its initial investment of $50,000 in the Filer in accordance with condition (a) above, the value of the Units 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 Manager will, unless the Filer is in the process of being dissolved or terminated, reinvest $50,000 in the Filer and maintain that investment until condition (a) is again satisfied;
(d) the Manager will at all times maintain excess working capital of a minimum of $100,000;
(e) the NAV per Unit of each class of Units will be calculated and made available to the financial press for publication on a weekly basis. The Manager will post the net asset value per Unit of each class of Units on its website at ;/'; and
(f) if the NAV of the AHL SPC Notes is published more frequently than weekly, the Filer must calculate its NAV on the same frequency.