Comgest Asset Management International Limited – s. 218 of the Regulation
Headnote
Application for an order, pursuant to section 218 of the Regulation, exempting the Applicant from the requirement in section 213 of the Regulation that the Applicant be incorporated, or otherwise formed or created, under the laws of Canada or a province or territory of Canada, for the Applicant to be registered under the Act as a dealer in the category of limited market dealer.
Regulation Cited
R.R.O. 1990, Regulation 1015, am. to O.Reg. 500/06, ss. 213, 218.
IN THE MATTER OF
THE SECURITIES ACT,
R.S.O. 1990, CHAPTER S.5, AS AMENDED
(the Act)
AND
IN THE MATTER OF
R.R.O. 1990, REGULATION 1015,
AS AMENDED
(the Regulation)
AND
IN THE MATTER OF
COMGEST ASSET MANAGEMENT
INTERNATIONAL LIMITED
ORDER
(Section 218 of the Regulation)
UPON the application (the Application) of Comgest Asset Management International Limited (the Applicant) to the Ontario Securities Commission (the Commission) for an order, pursuant to section 218 of the Regulation, exempting the Applicant from the requirement under section 213 of the Regulation that the Applicant, as a company, be incorporated under the laws of Canada or a province or territory of Canada to be registered under the Act as a dealer in the category of limited market dealer;
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 company limited by shares formed under the Companies Acts, 1963 to 2003 (Ireland) on December 14, 2004. The head office of the Applicant is located in Dublin, Ireland.
2. The Applicant is registered as a portfolio management company with the Irish Financial Services Regulatory Authority of Ireland, providing investment advice through managed accounts and investment funds. Under Irish securities legislation, such registration enables the Applicant, among other things, to sell units of investment funds that are managed by the Applicant.
3. The Applicant carries on business as an adviser in Ireland, providing investment advice through managed accounts and investment funds.
4. In Ontario, the Applicant intends to, among other things, distribute units of investment funds managed by the Applicant, primarily to accredited investors in Ontario, pursuant to prospectus exemptions contained in National Instrument 45-106 Prospectus and Registration Exemptions.
5. The Applicant has been registered under the Act since March 27, 2009 as a dealer in the category of "limited market dealer" (non-resident) and as an adviser in the category of "international adviser".
6. At the time of the Applicant's registration under the Act, specific terms and conditions (the Existing Terms and Conditions) were imposed on the Applicant's registration in connection with the Applicant's registration as an international adviser as well as the Applicant's dual registration as both a dealer and an adviser.
7. Through inadvertence, the Applicant's registration as a limited market dealer was granted without the Applicant having first obtained an order, pursuant to section 218 of the Regulation, exempting the Applicant from the requirement in section 213 of the Regulation that the Applicant, as a company, be incorporated under the laws of Canada or a province or territory of Canada to be a registered dealer under the Act.
8. Section 213 of the Regulation provides that a registered dealer that is not an individual must be a company incorporated, or a person formed or created, under the laws of Canada or a province or territory of Canada.
9. The Applicant is not resident in Canada and will not maintain an office in Canada. The Applicant does not propose to incorporate a separate Canadian company in order to carry out its proposed limited market dealer activities in Ontario, as it is more efficient and cost-effective to carry out those activities through the Applicant.
10. The Applicant will not carry out in Ontario any activity that it does not already carry out in Ireland, and for which it is duly registered under applicable Irish securities legislation.
11. The Applicant has agreed to the imposition of terms and conditions (the New Terms and Conditions), set out in the attached Schedule A, as a condition of its registration under the Act as a limited market dealer and as an international adviser, in replacement of the Existing Terms and Conditions.
AND UPON the Commission being satisfied that to make this order would not be prejudicial to the public interest;
IT IS ORDERED, pursuant to section 218 of the Regulation, and in connection with the registration of the Applicant as a dealer under the Act in the category of limited market dealer, section 213 of the Regulation shall not apply to the Applicant, provided that the Applicant complies with the New Terms and Conditions.
June 23, 2009.
Schedule A
Terms and Conditions on Registration of
Comgest Asset Management International
Limited as Dealer and as Adviser
1. The Applicant appoints an agent for service of process in Ontario.
2. The Applicant shall provide to each client resident in Ontario a statement in writing disclosing the non-resident status of the Applicant, the Applicant's jurisdiction of residence, the name and address of the agent for service of process of the Applicant in Ontario, and the nature of risks to clients that legal rights may not be enforceable.
3. The Applicant will not change its agent for service of process in Ontario without giving the Commission thirty (30) days' prior notice of such change by filing a new Submission to Jurisdiction and Appointment of Agent for Service of Process.
4. The Applicant and each of its registered directors or officers irrevocably and unconditionally submits to the non-exclusive jurisdiction of the judicial, quasi-judicial, and administrative tribunals of Ontario and any administrative proceedings in Ontario, in any proceedings arising out of or related to or concerning its registration under the Act or its activities in Ontario as a registrant.
5. The Applicant will not have custody of, or maintain customer accounts in relation to securities, funds, and other assets of clients resident in Ontario.
6. The Applicant will inform the Director immediately upon the Applicant becoming aware:
(a) that it has ceased to be registered with the Irish Financial Services Regulatory Authority of Ireland;
(b) of its registration in any other jurisdiction not being renewed or being suspended or revoked;
(c) that it is the subject of a regulatory proceeding, investigation or disciplinary action by any financial services or securities regulatory authority or self-regulatory authority;
(d) that the registration of its salespersons, officers or directors who are registered in Ontario have not been renewed or have been suspended or revoked in any Canadian or foreign jurisdiction; or
(e) that any of its salespersons, officers or directors who are registered in Ontario are the subject of a regulatory proceeding, investigation or disciplinary action by any financial services or securities regulatory authority or self-regulatory authority in any Canadian or foreign jurisdiction.
7. The Applicant will pay the increased compliance and case assessment costs of the Commission due to the Applicant's location outside Ontario, including the cost of hiring a third party to perform a compliance review on behalf of the Commission.
8. The Applicant will make its books and records outside Ontario, including electronic records, readily accessible in Ontario, and will produce physical records for the Commission within a reasonable time if requested.
9. If the laws of the jurisdiction in which the Applicant's books and records are located prohibit production of the books and records in Ontario without the consent of the relevant client, the Applicant shall, upon a request by the Commission:
(a) so advise the Commission; and
(b) use its best efforts to obtain the client's consent to the production of books and records.
10. The Applicant will, upon the Commission's request, provide a representative to assist the Commission in compliance and enforcement matters.
11. The Applicant and each of its registered directors, officers or partners will comply, at the Applicant's expense, with requests under the Commission's investigation powers and orders under the Act in relation to the Applicant's dealings with Ontario clients, including producing documents and witnesses in Ontario, submitting to audit or search and seizure process or consenting to an asset freeze, to the extent such powers would be enforceable against the Applicant if the Applicant were resident in Ontario.
12. If the laws of the Applicant's jurisdiction of residence that are otherwise applicable to the giving of evidence or production of documents prohibit the Applicant or the witnesses from giving the evidence without the consent or leave of the relevant client or any third party, including a court of competent jurisdiction, the Applicant shall:
(a) so advise the Commission; and
(b) use its best efforts to obtain the client's consent to the giving of the evidence.
13. The Applicant will maintain appropriate registration and regulatory organization membership, in the jurisdiction of its principal operations and if required, in its jurisdiction of residence.
14. The Applicant shall adopt and maintain reasonable policies and procedures to minimize the potential for conflict of interest resulting from its activities as both a dealer and adviser.
15. Prior to commencing any trading or advising with its clients, the Applicant shall disclose that it provides services as both a dealer and adviser, and provide a statement of the policies and procedures adopted in paragraph 14, above.