Hamilton Lane (Canada) LLC and the Top Funds

Hamilton Lane (Canada) LLC and the Top Funds

Headnote

National Instrument 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Mutual funds that are not reporting issuers granted 90-day extension of the annual financial statement filing and delivery deadlines under NI 81-106 -- Funds invest a material portion of their assets in independently managed underlying funds that are domiciled in international jurisdictions and governed by laws that require the financial statements to be filed within 120 days of the financial year end of the underlying funds -- Funds not able to obtain the financial statements of the underlying funds sooner than the March 31 deadline for delivering the financial statements of the fund -- Relief granted subject to conditions, including that no less than 25% of the total assets of a fund, at the time the fund makes the initial investment decision in the foreign underlying funds, are invested in entities that have financial reporting periods that end on December 31 of each year and are subject to laws of their jurisdiction that require their annual financial statements to be delivered within 120 days of their financial year end, that notification of the relief is given to the fund securityholders, and that the offering memorandum of the top fund discloses the extended delivery deadline.

Applicable Legislative Provisions

National Instrument 81-106 Investment Fund Continuous Disclosure, ss. 2.2, 5.1(2)(a) and 17.1.

June 16, 2021

IN THE MATTER OF THE SECURITIES LEGISLATION OF ONTARIO AND IN THE MATTER OF HAMILTON LANE (CANADA) LLC AND THE TOP FUNDS (as defined below)

ORDER

Background

The Ontario Securities Commission (the Commission) has received an application from Hamilton Lane (Canada) LLC (the "Filer"), as investment fund manager of Hamilton Lane Global Private Assets Canada (Feeder) Fund, (the "Initial Top Fund") and any other existing or future mutual fund that is not and will not be, a reporting issuer, and that is, or will be, managed by the Filer and invests in underlying funds as part of its investment strategy (the "Future Top Funds", and together with the Initial Top Fund, the "Top Funds") for an order pursuant to section 17.1 of National Instrument 81-106 Investment Fund Continuous Disclosure (NI 81-106) exempting the Filer and the Top Funds from:

1. the requirement in section 2.2 of NI 81-106 that the Top Funds file their audited annual financial statements and auditor's report on or before the 90th day after the Top Funds' most recently completed financial year (the "Annual Filing Deadline"); and

2. the requirement in paragraph 5.1(2)(a) of NI 81-106 that the Top Funds deliver their audited financial statements by the Annual Filing Deadline (the "Annual Delivery Requirement")

(collectively, relief from the Annual Filing Deadline and the Annual Delivery Requirement, the "Requested Relief").

Representations

This order is based on the following facts represented by the Filer.

A. The Filer

1. The Filer is a limited liability company formed under the laws of State of Delaware with its head office in the State of Pennsylvania.

2. The Filer is registered as a portfolio manager in Ontario, an investment fund manager in each of Ontario, Québec, and Newfoundland and Labrador, and an exempt market dealer in each province and territory of Canada except Nunavut.

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 manager of the Initial Top Fund. The Filer is, or will be, the investment fund manager and portfolio manager of each Top Fund. The Filer or a third party will act as trustee of each Top Fund.

B. The Top Funds

5. The Initial Top Fund is a trust organized under the laws of Ontario pursuant to an amended and restated declaration of trust dated October 16, 2020. Each Future Top Fund will be organized as a pooled fund trust or limited partnership under the laws of Ontario or another jurisdiction of Canada.

6. Each Top Fund will be a "mutual fund" for the purposes of the Legislation.

7. Securities of each Top Fund will only be offered for sale on a continuous basis to qualified investors in all provinces and territories in Canada except Nunavut pursuant to an exemption from the prospectus requirements under the Securities Act (Ontario) ("OSA") or National Instrument 45-106 Prospectus Exemptions ("NI 45-106").

8. Units of each Top Fund will only be distributed in Canada pursuant to exemptions from the prospectus requirement in accordance with the OSA or NI 45-106.

9. None of the Top Funds is, or will be, a reporting issuer in any province or territory of Canada.

10. Each Top Fund will have a financial year-end of December 31.

11. Each Top Fund will invest in units of one or more underlying funds (each, an "Underlying Fund"), either directly or through an Underlying Fund (an "HL Master Fund") managed by the Filer or an affiliate of the Filer (the Filer, together with its affiliates, "Hamilton Lane").

12. The investment objective of each Top Fund is, or will be, to obtain capital appreciation over a specified term and/or income. The investment strategy of each Top Fund is to invest the Top Fund's investable assets in Underlying Funds.

13. The Top Fund, directly or through an HL Master Fund, will generally invest through a number of different approaches, including without limitation, (i) direct investments in the equity or debt of a company, (ii) primary subscriptions to private funds, including without limitation funds-of-funds, (iii) secondary purchases of interests in private funds, (iv) investments in listed private equity companies, funds or other vehicles, or (v) programmatic investment relationships with asset managers outside of their commingled private funds.

14. Hamilton Lane believes that investing in the Underlying Funds offers benefits not available through a direct investment in the companies, other issuers or assets held by the Underlying Funds.

15. Hamilton Lane engages in an extensive due diligence process when selecting Underlying Funds.

16. Securities of the HL Master Funds are typically redeemable at various intervals, but securities of other Underlying Funds are not redeemable until the termination of such Underlying Funds. As each Top Fund has a medium-- to long-term investment horizon, each Top Fund is able to manage its own liquidity requirements taking into consideration the frequency at which the securities of the Underlying Funds may be redeemed.

17. The net asset value of each Top Fund ("NAV") is calculated on a monthly basis, as of the last day of each calendar month (the "Valuation Date"). Investors of each Top Fund are provided with the NAV on a monthly basis.

18. Certain holdings of each Top Fund in securities of the Underlying Funds may be disclosed in the financial statements.

Financial Statements

19. Generally, section 2.2 and subsection 5.1(2)(a) of NI 81-106 require a Top Fund to file and deliver its annual audited financial statements by the Annual Filing Deadline. As each Top Fund's financial year-end is December 31, they each have a filing and delivery deadline of March 31.

20. Section 2.11 of NI 81-106 provides an exemption (the "Filing Exemption") from the Annual Filing Deadline if, among other things, an investment fund delivers its annual financial statements in accordance with part 5 of NI 81-106 by the Annual Filing Deadline.

21. In order to formulate an opinion on the financial statements on each Top Fund, the Top Fund's auditor or the HL Master Fund's auditor requires audited financial statements of the respective Underlying Funds in order to audit the information contained in the Top Fund's financial statements. The auditors of the Top Funds have advised the Filer that they will be unable to complete the audit of each Top Fund's annual financial statements until the audited financial statements of a certain percentage of the Underlying Funds are completed and available to the respective Top Fund and/or HL Master Fund.

22. The Underlying Funds may be domiciled in Canada, the United States or other international jurisdictions.

23. The Underlying Funds will be managed by independent managers, except for HL Master Funds which will be managed by Hamilton Lane and will invest in Underlying Funds managed by independent managers.

24. The Underlying Funds may have varying financial year-ends and may be subject to a variety of financial reporting deadlines. For example, a material amount of the assets of the Top Funds invested in Underlying Funds will be in Underlying Funds that are governed by laws that require the financial statements to be filed within 120 days of the financial year end of the Underlying Fund.

25. In most cases, the Top Funds and/or the HL Master Funds will not be able to obtain the financial statements of the Underlying Funds sooner than the deadline for filing the financial statements of the Underlying Funds and, in all cases, no sooner than other unitholders of the Underlying Funds receive the financial statements of the Underlying Funds.

26. The offering memorandum of each Top Fund that will be provided to investors will disclose or investors will be otherwise notified that annual audited financial statements for the Top Fund will be filed and delivered within 180 days of financial year end, subject to regulatory approval.

27. The Filer will notify unitholders in the Top Funds that it has received and intends to rely on relief from the Annual Filing Deadline and Annual Delivery Requirement.

28. The Filer does not anticipate it will be able to rely on the Filing Exemption since it is unable to prepare and deliver the audited annual financial statements and auditor's report within ninety (90) days after the Top Fund's most recently completed financial year.

29. It is expected that each Top Fund will not be able to file the annual audited financial statements of the Top Fund by the Annual Filing Deadline. As a result, the Top Fund will not be able to meet the Annual Delivery Requirement. The Filer expects this timing delay in the completion of its annual audited financial statements to occur every year for the foreseeable future.

30. Each Top Fund therefore seeks an extension of the Annual Filing Deadline and Annual Delivery Requirement to June 30 of each year, to enable the Top Fund's auditors to first receive the audited financial statements of the Underlying Funds so as to be able to prepare the Top Fund's annual audited financial statements.

Order

The Director is satisfied that this order meets the test set out in the securities legislation of Ontario for the Commission to make the order.

The order of the Director under section 17.1 of NI 81-106 is that the Requested Relief is granted to a Top Fund so long as:

1. The Top Fund has a financial year ended December 31.

2. The Top Fund's investment strategy is to invest the Top Fund's investable assets in Underlying Funds which share the Top Fund's investment objective.

3. The Top Fund invests the majority of its assets in Underlying Funds.

4. No less than 25% of the total assets of the Top Fund at the time the Top Fund makes the initial investment decision in the Underlying Fund(s), are invested in investment entities that have financial reporting periods that end on December 31 of each year and are subject to laws of their jurisdictions that require their financial statements to be delivered within 120 days of their financial year ends.

5. The offering memorandum provided to unitholders regarding the Top Fund discloses that annual audited financial statements for the Top Fund will be filed and delivered within 180 days of financial year end, subject to regulatory approval.

6. The Top Fund notifies its unitholders that the Top Fund has received and intends to rely on relief from the filing and delivery requirements under section 2.2 and paragraph 5.1(2)(a) of NI 81-106.

7. The Top Fund is not a reporting issuer and the Filer is a limited liability company formed under the laws of the State of Delaware with its head office in the State of Pennsylvania and has the necessary registrations to carry out its operations in each jurisdiction of Canada in which it operates.

8.

(a) The audited annual financial statements of the Top Fund are filed on or before the 180th day after the Top Fund's most recently completed financial year; or

(b) the conditions in section 2.11 of NI 81-106 are met, except for subsection 2.11(b), and the annual audited financial statements are delivered to unitholders in accordance with Part 5 of NI 81-106 on or before the 180th day after the Top Fund's most recently completed financial year.

9. This order terminates within one year of the coming into force of any amendment to NI 81-106 or other rule that modifies how the Annual Filing Requirement or Annual Delivery Requirement applies in connection with mutual funds.