BloombergSen Inc.
Headnote
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Relief granted from ss. 13.5(2)(b)(iii) of National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations to permit one-time In-specie transactions between related pooled funds to facilitate internal reorganizations -- relief subject to usual conditions, such as acceptability of portfolio assets to receiving fund, filer to keep written record of transfers, certain pricing conditions.
Applicable Legislative Provisions
National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations, ss. 13.5(2)(b)(iii), 15.1.
November 27, 2018
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
BLOOMBERGSEN INC.
(the Filer)
AND
IN THE MATTER OF
THE FUNDS
(as defined below)
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) for an exemption from subparagraph 13.5(2)(b)(iii) of National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations (NI 31-103), which prohibits a registered adviser from knowingly causing an investment portfolio managed by it, including an investment fund for which it acts as an adviser to purchase or sell a security from or to the investment portfolio of an investment fund for which a "responsible person" acts as an adviser (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 each province and territory of Canada.
Interpretation
Terms defined in National Instrument 14-101 Definitions, MI 11-102, NI 31-103, or in the Securities Act (Ontario) have the same meaning if used in this decision, unless otherwise defined.
Representations
Filer
1. The Filer is a corporation incorporated under the laws of the Province of Ontario and has its head office in Toronto, Ontario.
2. The Filer is registered in the categories of investment fund manager, portfolio manager and exempt market dealer in Ontario, in the categories of investment fund manager and exempt market dealer in Québec, Newfoundland and Labrador, and in the category of exempt market dealer in Alberta, British Columbia, Manitoba, and New Brunswick.
3. The Filer is not a reporting issuer in any jurisdiction and is not in default of securities legislation of any jurisdiction of Canada.
4. The Filer is the investment fund manager and portfolio adviser of the Funds (as defined below).
The Partners Fund
5. BloombergSen Partners Fund LP (Ontario) (the Partners Fund) is a limited partnership established under the laws of the Province of Ontario pursuant to a limited partnership agreement.
6. The current investment objective of the Partners Fund is to achieve long-term capital appreciation through investments primarily in equity-based securities.
7. Securities of the Partners Fund are offered for sale in any jurisdiction in Canada pursuant to prospectus exemptions under National Instrument 45-106 Prospectus Exemptions (NI 45-106).
8. The Partners Fund is an investment fund for the purposes of the Legislation but is not a reporting issuer in any jurisdiction of Canada.
The Partners Trust
9. BloombergSen Partners Trust (Ontario) (the Partners Trust) is a trust established under the laws of the Province of Ontario pursuant to a Declaration of Trust.
10. The current investment objective of the Partners Trust is to invest all its capital in the Partners Fund as a feeder fund of the Partners Fund.
11. Securities of the Partners Trust are offered for sale in any jurisdiction in Canada pursuant to prospectus exemptions under NI 45-106.
12. The Partners Trust is an investment fund for the purposes of the Legislation but is not a reporting issuer in any jurisdiction of Canada.
The Canadian Master Fund
13. BloombergSen Canadian Master Fund LP (the Canadian Master Fund) is a limited partnership established under the laws of the Province of Ontario pursuant to a limited partnership agreement.
14. The current investment objective of the Canadian Master Fund is to achieve long-term capital appreciation through investments primarily in equity-based securities.
15. Securities of the Canadian Master Fund are offered for sale in any jurisdiction in Canada pursuant to prospectus exemptions under NI 45-106.
16. The Canadian Master Fund is an investment fund for the purposes of the Legislation but is not a reporting issuer in any jurisdiction of Canada. Currently there are only two limited partners (investors) in the Canadian Master Fund and both are related to the Filer.
The Master Fund
17. BloombergSen Master Fund LP (the Master Fund) is an exempted limited partnership established under the Cayman Islands pursuant to an exempted limited partnership agreement.
18. The Master Fund is an investment fund for the purposes of the Legislation but is not a reporting issuer in any jurisdiction in Canada.
19. The stated investment objective of the Master Fund is to achieve long-term capital appreciation through investments primarily in equity-based securities.
The Reorganization
20. The Filer wishes to amend the investment objective of the Partners Trust so it becomes a feeder fund to the Master Fund instead of a feeder fund to the Partners Fund (the Reorganization).
21. The Filer is proposing that the Reorganization is best executed by way of an In-specie transaction (the Partners Fund In-Specie Transfer) pursuant to which the Partners Trust will redeem securities from the Partners Fund at net asset value and subscribe for securities from the Master Fund at net asset value. As consideration, the Partners Fund will transfer the equivalent amount of its portfolio securities and cash to the Master Fund.
22. The Partners Fund In-Specie Transfer will settle the obligation between the Partners Fund to the Partners Trust for its redemption of the Partners Fund securities and will also settle the obligation between the Partners Trust to the Master Fund for its subscription of the Master Fund securities.
23. There will be no changes to the investment objective and strategies of the Partners Trust as a result of this Reorganization, other than that the Partners Trust will seek to achieve its investment objective by investing through the Master Fund rather than through the Partners Fund. The investment objective of the Master Fund is the same as the Partners Fund and the two funds are substantially invested in the same securities at all times.
24. The Filer also considers the Partners Fund In-Specie Transfer to be the most efficient and cost-effective way to effect the Reorganization.
Winding down of Canadian Master Fund (the "Wind down")
25. The Filer wishes to wind down the Canadian Master Fund (the Wind Down) and transfer its assets to Master Fund.
26. The Filer is proposing that the winding down of the Canadian Master Fund is best executed by way of an In-specie transaction pursuant to which the existing limited partners (investors) will redeem the securities of the Canadian Master Fund at net asset value and subscribe for the equivalent amount of securities of the BloombergSen American Dollar Fund LP (the Canadian Feeder Fund, and together with the Partners Fund, the Partners Trust, the Canadian Master Fund and the Master Fund, the Funds, and each of them is a Fund), which is a feeder fund for the Master Fund. As consideration, the Canadian Master Fund will transfer its portfolio securities to the Master Fund (the Canadian Master Fund In-Specie Transfer, and, together with the Partners Fund In-Specie Transfer, the In-Specie Transfers).
27. The Canadian Master Fund and the Master Fund have the same investment objective and are substantially invested in the same equities at all times.
28. The Canadian Master Fund In-Specie Transfer will settle the obligation between the Canadian Master Fund to the limited partners (investors) for the redemption in connection with the Wind-Down and will also settle the obligation between the limited partners to the Canadian Feeder Fund for the subscription of that Fund's securities.
29. The Filer considers the Canadian Master Fund In-Specie Transfer to be the most efficient and cost-effective way for the Canadian Master Fund to be wound down and to allow its existing limited partners (investors) to subscribe into another structure to achieve the same investment objective and strategy.
Generally
30. As the portfolio advisor to the Funds, the Filer is a "responsible person" for each of the Funds, as that term is defined in NI 31-103. As a result, without the Requested Relief, the Filer would be precluded from effecting the In-Specie Transfers.
31. The Master Fund will, at the time of transfer in securities, be permitted to accept the portfolio securities of the Partners Fund and the Canadian Master Fund being transferred.
32. The portfolio securities of the Partners Fund and the Canadian Master Fund are acceptable to the Filer as the portfolio adviser of the Master Fund acquiring the portfolio securities and are consistent with the investment objectives of the Master Fund.
33. In the case of the Partners Fund In-Specie Transfer, the portfolio securities will be transferred to the Master Fund on a pro-rata basis, consistent with their relative allocations within the Partners Fund's portfolio.
34. None of the portfolio securities being transferred to the Master Fund under the In-Specie Transfers will be "illiquid assets" as that term is defined in National Instrument 81-102 Investment Funds.
35. The value of the portfolio securities of the Partners Fund and the Canadian Master Fund will be equal to the issue price of the securities of the Master Fund for which they are consideration, valued as if the securities were portfolio assets of the Master Fund.
36. The Filer will keep written records of the transaction reflecting the details of the portfolio securities delivered to the Master Fund and the value assigned to such portfolio securities for a period of five years after the In-specie transactions.
37. The Filer will not receive any compensation in respect of the In-specie transactions and, in respect of the delivery of portfolio securities under the Reorganization, the only charge paid by the Partners Fund and the Canadian Master Fund may be a commission charged by the dealer executing the trade and/or any administrative charges levied by the prime broker or custodian.
38. In the circumstances, the In-Specie Transfers will lessen the market price impact of selling the portfolio securities of the Partners Fund or the Canadian Master Fund, respectively, and the purchase of those portfolio securities by the Master Fund. The transaction costs (i.e., general commissions and dealer transaction costs) of the In-Specie Transfers will be significantly lower than if those portfolio securities were purchased and sold in open-market transactions.
39. The In-Specie Transfers will be executed through the respective Funds' custodian, TD Securities Inc.
40. The proposed Reorganization represents the business judgment of a responsible person uninfluenced by considerations other than the best interests of the investment funds concerned.
41. The In-Specie Transfers will be subject to (i) compliance with the written policies and procedures of the Filer respecting In-specie transactions that are consistent with applicable securities legislation, and (ii) the oversight of the Filer's Chief Compliance Officer, to ensure that the transaction represents the business judgment of the Filer acting in its discretionary capacity with respect to the Funds, uninfluenced by considerations other than the best interests of the Funds.
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:
(a) the Master Fund is permitted to accept the portfolio securities of the Partners Fund and the Canadian Master Fund being transferred under the In-Specie Transfers;
(b) the portfolio securities being transferred to the Master Fund are acceptable to the Filer as portfolio manager of the Master Fund and are consistent with the Master Funds' investment objectives;
(c) the portfolio securities transferred to the Master Fund under the In-Specie Transfers as purchase consideration for the Master Fund's securities (i) will be valued on the same valuation day on which the purchase price of the Master Fund's securities is determined, and (ii) will have a value that is at least equal to the issue price of the Master Fund's securities for which they are consideration, valued as if the portfolio securities were assets of the Master Fund;
(d) the account statement next prepared for the Funds will include a note describing the securities delivered to the Master Fund and the value assigned to such securities;
(e) the Filer keeps written records of all In-specie transactions during the financial year, reflecting details of the securities delivered to the Master Fund and the value assigned to such securities, for five years after the end of the financial year, the most recent two years in a reasonably accessible place;
(f) the Filer does not receive any compensation in respect of any sale of securities and, in respect of any delivery of securities further to the In-Specie Transfers, the only charge paid by the Funds, may be a commission charged by the dealer executing the trade and/or any administrative charges levied by the prime broker or custodian; and
(g) the Filer's board of directors determines the In-Specie Transfers are in the best interests of the Funds prior to effecting them.