GoldPoint Partners Select Manager Canada Fund IV, LP and Newbury Equity Partners IV L.P.
Headnote
Multilateral Instrument 11-102 Passport System and National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Relief from the requirements applicable to take-over bids in Part 2 of NI 62-104 in connection with purchases made by an arm's length third party pursuant to a liquidity option offered to security holders at the time of subscription -- there is no published market for the securities and the issuer is not a reporting issuer but there is no restriction on the number of security holders so the liquidity provider may not be able to rely on the statutory non-reporting issuer exemption -- the terms of the liquidity option are fully disclosed to all potential investors in the private placement memorandum of the issuer -- all potential investors will receive equal treatment in terms of their ability to participate in the liquidity option -- the liquidity provider will not have any board or management representation in respect of the issuer -- issuer is a limited partnership and operational control will remain with its general partner, irrespective of the number of securities acquired by the liquidity provider -- requested relief granted, subject to conditions.
Applicable Legislative Provisions
National Instrument 62-104 Take-Over Bids and Issuer Bids, Part 2 and s. 6.1.
June 6, 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 GOLDPOINT PARTNERS SELECT MANAGER CANADA FUND IV, LP (the Fund) AND NEWBURY EQUITY PARTNERS IV L.P. (NEP, and together with the Fund, the Filers)
DECISION
Background
The principal regulator in the Jurisdiction has received an application from the Filers for a decision under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) exempting NEP from the requirements applicable to take-over bids in Part 2 of National Instrument 62-104 Take-Over Bids and Issuer Bids (NI 62-104, and such requirements, the Take-Over Bid Requirements) in connection with purchases of limited partnership units of the Fund (the Units) by NEP pursuant to the proposed Liquidity Option (as defined below) (the Exemption Sought).
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 passport application, and
(b) the Filers have 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, Prince Edward Island, Newfoundland and Labrador, the Northwest Territories, the Yukon and Nunavut.
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 Filers:
1. The Fund is a limited partnership existing under the laws of the Province of Ontario, and is an "investment fund" for the purposes of the Securities Act (Ontario) (the Act). The Fund's head office is located in the State of New York, United States of America (U.S.).
2. The Fund is not, and does not anticipate becoming, a reporting issuer in any jurisdiction.
3. The general partner of the Fund, GoldPoint Partners Canada IV GenPar Inc. (the GP), is a corporation existing under the Business Corporations Act (New Brunswick). The GP's head office is located in the State of New York, U.S.
4. The investment fund manager functions of the Fund have been delegated by the GP to its affiliate, GoldPoint Partners Canada GenPar Inc. (the Fund Manager), pursuant to a management agreement between the GP and the Fund Manager. The Fund Manager directs all of the business, operations and affairs of the Fund. The Fund Manager is a corporation existing under the laws of the Province of New Brunswick, and is a registered "investment fund manager" in Ontario, Québec, and Newfoundland and Labrador. The head office of the Fund Manager is located in the State of New York, U.S.
5. The investment objective of the Fund is to invest, directly or indirectly, as a limited partner in GoldPoint Partners Select Manager Fund IV, L.P. (the Bottom Fund), a foreign-based private equity fund of funds.
6. The Fund is authorized to issue, inter alia, an unlimited number of Units. The Fund will be offering Units pursuant to one or more private placements to "accredited investors" (as such term is defined in National Instrument 45-106 Prospectus Exemptions (NI 45-106)) across Canada. There will be no published market for the Units.
7. Each Unit issued will represent a capital commitment of U.S.$1,000 in the Fund. Each holder of Units (each, a Limited Partner) is required to make a minimum capital commitment to the Fund of U.S.$250,000 (or 250 Units), which full amount is to be paid as and when called for by the GP, as the general partner of the Fund.
8. As an added benefit for Limited Partners, whose Units will otherwise be highly illiquid long-term investments and subject to transfer restrictions, Limited Partners will be provided with a liquidity option (the Liquidity Option), the terms of which are set out in a definitive purchase and sale agreement among the applicable Participating Limited Partner (as defined below) and NEP (such agreement, the Liquidity Sale Agreement). The form of Liquidity Sale Agreement has been approved by the Fund and NEP and is attached as an exhibit to the subscription agreement in respect of the Units. Pursuant to the terms of the Liquidity Sale Agreement, NEP agrees to purchase all, but not less than all, of the Units of a Participating Limited Partner during the term of the Liquidity Option (as described in paragraphs 13 (d) and (e) below).
9. NEP and GoldPoint Partners LLC (GoldPoint), an affiliate of the GP and the Fund Manager and the investment fund manager of the Bottom Fund, entered into a liquidity governing agreement (the Liquidity Governing Agreement) in respect of the Liquidity Option on February 7, 2018. The terms of the Liquidity Option (as described in paragraph 13 below) and the Liquidity Sale Agreement are set out in the Liquidity Governing Agreement. The Liquidity Governing Agreement also sets out the agreement of the Fund to collect the Liquidity Fees (as defined below) from all Participating Limited Partners and to remit all such fees to NEP.
10. NEP is a limited partnership existing under the laws of Delaware and has its head office in the State of Connecticut, U.S. NEP acquires, primarily through secondary transactions, limited partnership interests in established leveraged buyout, venture capital and mezzanine funds. NEP will be able to acquire Units pursuant to the Liquidity Option without being subject to the dealer registration requirements in the Legislation. NEP is at arm's length to the Fund, the GP, the Fund Manager, the Bottom Fund and GoldPoint, and is not an "insider", an "associate" of an "insider", or an "associate" or "affiliate" of any of them, as such terms are defined in the Act.
11. The existence and terms of the Liquidity Option will be set out in the private placement memorandum of the Fund (the PPM) provided to potential investors in the Fund.
12. All potential investors in the Fund will receive equal treatment in terms of their ability to participate in the Liquidity Option and the percentage of Units accepted thereunder, until such time that the aggregate number of Units subject to the Liquidity Option equals U.S.$50 million in Limited Partner Commitments (as defined below). Limited Partners wishing to have the benefit of the Liquidity Option will be required to "opt in" to the Liquidity Option by checking the appropriate box in their subscription agreement (such Limited Partners so electing and whose participation is accepted, the Participating Limited Partners) and paying the Liquidity Fee. Any Limited Partner that does not elect to participate in the Liquidity Option at the time of the closing at which such Limited Partner is subscribing for Units will not have the opportunity thereafter to so participate without obtaining the consent of each of the parties to the Liquidity Governing Agreement.
13. The principal terms of the Liquidity Option are as follows:
Fee:
(a) In consideration for providing the Liquidity Option, each Participating Limited Partner will be required to pay to the Fund an annual fee (the Liquidity Fee) equal to the product of:
(i) such Participating Limited Partner's aggregate capital commitment to the Fund (such amount, the Limited Partner Commitment); and
(ii) 0.10%, subject to reduction on the fifth anniversary of the Final Closing, by (A) 10%, and (B) on each anniversary thereafter, up to and including the eleventh anniversary of the Final Closing, and additional 10%.
Once a Participating Limited Partner sells its Units to NEP, Liquidity Fees will cease to be payable by that Participating Limited Partner.
(b) The Liquidity Fee will be payable commencing on the date the Participating Limited Partner becomes a Limited Partner, and shall be calculated and payable on such date and each one-year anniversary thereafter.
(c) Any Participating Limited Partner that fails to timely pay the Liquidity Fee when due will automatically lose its right to sell its Units to NEP pursuant to the Liquidity Option and will surrender any amounts already paid by it with respect to the Liquidity Fee.
Term:
(d) A Participating Limited Partner may require NEP to purchase its Units at any time commencing on the later of (i) the date of the Final Closing, which is expected to occur in fall 2019, and (ii) any such time when the Purchase Price (as defined below) is greater than zero.
(e) The obligation of NEP to purchase Units from Participating Limited Partners will terminate on the earlier of (i) the twelfth anniversary of the Final Closing, and (ii) May 1, 2031, with such term subject to extension upon the agreement of NEP, GoldPoint and the GP, as the general partner of the Fund.
Purchase Price:
(f) At the request of any Participating Limited Partner, NEP will provide a written offer to purchase such Participating Limited Partner's Units at a U.S. dollar price equal to the net asset value (NAV) of the Participating Limited Partner's Units multiplied by a total of the Discount Factor multiplied by the Participating Limited Partner's Exposure, less the Participating Limited Partners' Remaining Commitment, all divided by the NAV of the Participating Limited Partner's Units (the Purchase Price). "Discount Factor" means, for the first through fifth years following the date of the Final Closing, 90%, and, for the sixth, seventh, eighth, ninth, tenth, eleventh and twelfth years following the date of the Final Closing, 87.5%, 85%, 82.5%, 80%, 77.5%, 75% and 70%, respectively. "Exposure" means, in respect of a Unit, the NAV of the Unit plus such Participating Limited Partner's Remaining Commitment. "Remaining Commitment" means the Participating Limited Partner's Limited Partner Commitment less capital contributions drawn down by the Fund. The Purchase Price will be adjusted upward on a dollar-for-dollar basis to account for any capital contributions made by the selling Participating Limited Partner between the signing of the Liquidity Sale Agreement and the closing of the sale, and reduced downward on a dollar-for-dollar basis for any distributions made by the Fund to the selling Participating Limited Partner between the signing of the Liquidity Sale Agreement and the closing of the sale.
Obligation to Purchase:
(g) NEP's obligation to purchase Units pursuant to the Liquidity Option will be capped at U.S.$50 million in Limited Partner Commitments. To reduce the likelihood that the Units subject to the Liquidity Option will exceed NEP's obligation to purchase Units, the Fund will not accept elections to participate in the Liquidity Option for more than an aggregate number of Units equal to U.S.$50 million in Limited Partner Commitments.
(h) If the Limited Partners who elect to participate in the Liquidity Option represent, in the aggregate, more than U.S.$50 million in Limited Partner Commitments, the Units of each such Limited Partner will be accepted on a pro rata basis such that the aggregate number of Units subject to the Liquidity Option will equal U.S.$50 million in Limited Partner Commitments.
(i) If, at the initial closing of the Fund, the Limited Partners who elect to participate in the Liquidity Option represent, in the aggregate, less than U.S.$50 million in Limited Partner Commitments and one or more subsequent closings of the Fund occurs, Limited Partners who subscribe for Units at a subsequent closing of the Fund will be offered the opportunity to participate in the Liquidity Option. The then-remaining availability of the Liquidity Option, being the difference between U.S.$50 million in Limited Partner Commitments and the aggregate Limited Partner Commitments of Limited Partners whose participation in the Liquidity Option was accepted at a prior closing of the Fund (such amount, the Remaining Liquidity Option Availability), will be offered to all potential investors in the Fund. The Units of Limited Partners electing to participate in the Liquidity Option at a particular subsequent closing will be accepted on a pro rata basis in respect of the Remaining Liquidity Option Availability as among those Units issued at such subsequent closing.
(j) The Fund will notify NEP if Limited Partners representing more than U.S.$50 million in Limited Partner Commitments elect to participate in the Liquidity Option with a view to the possibility of the Liquidity Option being extended by NEP to include such excess Limited Partner Commitments. NEP may, but is under no obligation to, extend the Liquidity Option beyond U.S.$50 million in Limited Partner Commitments.
Timing:
(k) A Participating Limited Partner wishing to require NEP to purchase its Units will sign and deliver a copy of the Liquidity Sale Agreement to NEP.
(l) The closing of the sale of Units on the exercise of the Liquidity Option will not occur until NAV is finally determined, which could be as long as 190 days following the execution of the Liquidity Sale Agreement, and requires, among other things, the consent of the GP to the transfer of such Units to NEP and the admission of NEP as a Limited Partner, which consent the Participating Limited Partner and NEP have agreed to use commercially reasonable efforts to take all necessary actions to obtain.
14. When the Remaining Liquidity Option Availability first becomes equal to or less than US$12.5 million (or 25% of such greater extended aggregate purchase amount in Limited Partner Commitments) in Limited Partner Commitments, the GP will deliver a notice to each Participating Limited Partner setting out the number of Units that are subject to the Liquidity Option and the Remaining Liquidity Option Availability.
15. In the event there is more than one closing of the Fund, potential investors in the Fund will be provided with written notice of the number of Units that are subject to the Liquidity Option and the Remaining Liquidity Option Availability as at the time of each subsequent closing. In addition, in the event of more than one closing of the Fund, the PPM will be supplemented with disclosure outlining the availability of the Remaining Liquidity Option Availability as at the latest practicable date prior to the distribution of the PPM to potential investors in the Fund.
16. NEP intends to hold any Units purchased pursuant to the Liquidity Option until the dissolution of the Fund. Following such acquisitions, NEP will have obligations and rights as a Limited Partner in respect of such purchased Units.
17. NEP does not and will not have any board or management representation in respect of the Fund.
18. The terms of the Liquidity Option reflect arm's length negotiations between GoldPoint and NEP, and bona fide terms and conditions.
19. The exercise of the Liquidity Option by a number of Participating Limited Partners could result in NEP acquiring 20% or more of the outstanding Units and, as a result, the operation of the Liquidity Option would be a take-over bid for the purposes of the Take-Over Bid Requirements.
20. The Legislation provides an exemption from the Take-Over Bid Requirements with respect to non-reporting issuers if (the Non-Reporting Issuer Exemption):
(a) the offeree issuer is not a reporting issuer;
(b) there is not a published market for the securities that are the subject of the bid; and
(c) the number of security holders of that class of securities at the commencement of the bid is not more than 50, exclusive of holders who (i) are in the employment of the offeree issuer or an affiliate of the offeree issuer, or (ii) were formerly in the employment of the offeree issuer or in the employment of an entity that was an affiliate of the offeree issuer at the time of that employment, and who while in that employment were, and have continued after that employment to be, security holders of the offeree issuer.
21. Although the Fund will not be a reporting issuer and there will be no published market for the Units, as there is no restriction on the number of Limited Partners that the Fund may have, there can be no assurances that the Fund will have fewer than 50 Limited Partners and NEP may not be able to rely on the Non-Reporting Issuer Exemption in respect of acquisitions made pursuant to the Liquidity Option.
22. The Filers are not in default of securities legislation in any jurisdiction.
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 provided that:
(a) a summary of the principal terms of the Liquidity Option is set out in the PPM, and such terms are not amended or extended other than in accordance with the terms of the Liquidity Sale Agreement, as disclosed;
(b) a copy of the Liquidity Sale Agreement is provided to potential investors, as part of, or together with, the PPM;
(c) there is no published market for the Units;
(d) the Fund is not a reporting issuer;
(e) at the time that a person becomes a Limited Partner, it is an "accredited investor" (as defined in NI 45-106); and
(f) neither NEP nor any of its joint actors
(i) has, or has had within the relevant preceding 12 month period, any board or management representation in respect of the Fund, or
(ii) has knowledge of any material information concerning the Fund or the Units that has not been generally disclosed.