D.E. Shaw & Co., L.P. - ss. 38(1) CFA

IN THE MATTER OF THE COMMODITY FUTURES ACT,R.S.O. 1990, CHAPTER C. 20, AS AMENDED (the "CFA")
AND

IN THE MATTER OFD. E. SHAW & CO., L.P.


ORDER(Subsection 38(1) of the CFA)

UPON the application of D. E. Shaw & Co., L.P. (the "Applicant") to the Ontario Securities Commission (the "Commission") for an order pursuant to subsection 38(1) of the CFA to exempt the Applicant and its directors, officers and employees from the requirements of clause 22(1)(b) of the CFA in respect of advising certain non-redeemable investment funds and similar investment vehicles established under the laws of foreign jurisdictions (the "Funds"), the securities of which may be privately placed in Ontario, in connection with trades in commodity futures contracts and commodity futures options primarily traded on commodity futures exchanges outside Canada and primarily cleared through clearing corporations outside Canada, subject to certain terms and conditions;

AND UPON considering the application and the recommendation of Staff of the Commission;

AND UPON the Applicant having represented to the Commission as follows:

1.The Applicant is a limited partnership formed under the laws of the State of Delaware and is registered with the U.S. Securities and Exchange Commission as an investment adviser. The Applicant is also registered with the U.S. Commodities Futures Trading Commission as a commodity pool operator and is a member of the U.S. National Futures Association.

2.The Applicant is registered as an adviser in the category of international adviser (investment counsel and portfolio manager) under the Ontario Securities Act (the "OSA"). D. E. Shaw Securities, LLC, an affiliate of the Applicant, is registered under the OSA as an international dealer. In addition, D. E. Shaw Valence, L.P., another affiliate of the Applicant, is similarly registered with the Commission as an international dealer in Ontario.

3.The Funds invest, or are expected to invest, in securities, commodities and/or other financial instruments, including futures and options contracts primarily traded on organized exchanges outside of Canada and primarily cleared through clearing corporations located outside of Canada and other derivative instruments traded over-the-counter. The Applicant provides, or is expected to provide, investment advisory services to the Funds, including advice with respect to investments in securities, commodity futures contracts and commodity futures options primarily traded on organized exchanges outside of Canada and primarily cleared through clearing corporations located outside of Canada.

4.Advisory activities of the Applicant relating to securities will be carried out in accordance Rule 35-502 - Non-Resident Advisors.

5.Each of the Funds is not, and has no current intention of becoming, a reporting issuer in Ontario or in any other Canadian jurisdiction.

6.Securities of the Funds are offered, or are expected to be offered, primarily outside of Canada to institutional investors and high net worth individuals. Securities of the Funds are offered, or will be offered, to a small number of Ontario residents (principally institutional investors) and the distribution of the securities of the Funds in Ontario is, or will be effected, through registrants in reliance upon an exemption from the requirements of sections 53 and 62 of the OSA.

7.Prospective investors who are Ontario residents will receive disclosure that includes (a) a statement that there may be difficulty in enforcing legal rights against the applicable Fund or any of the adviser, the trustee or manager of the applicable Fund because they are resident outside of Canada and all or substantially all of their respective assets are situated outside of Canada; and (b) if applicable, a statement that the Applicant is not registered with or licensed by any securities regulatory authority in Canada and, accordingly, the protections available to clients of a registered adviser will not be available to purchasers of securities of the Fund.

8.In the absence of the order, the Applicant would be required to apply for registration as a commodity trading manager in Ontario.

AND UPON the Commission being satisfied that to do so would not be prejudicial to the public interest;

IT IS ORDERED pursuant to subsection 38(1) of the CFA that the Applicant and its directors, officers and employees responsible for advising the Funds be exempt from the requirements of clause 22(1)(b) of the CFA in respect of their advisory activities in connection with the Funds, provided that:

(a)this Order shall terminate on December 31, 2003;

(b)the Applicant continues to be registered as an investment adviser and as a commodity pool operator in the United States;

(c)the Funds invest primarily in foreign securities, and in futures and options contracts primarily traded on organized exchanges outside of Canada and primarily cleared through clearing corporations located outside of Canada;

(d)securities of the Funds are offered primarily abroad and are only distributed in Ontario through registrants (as defined under the OSA) and in reliance upon an exemption from the requirements of sections 53 and 62 of the OSA; and

(e)prospective investors who are Ontario residents will receive disclosure that includes (i) a statement that there may be difficulty in enforcing legal rights against the applicable Fund or any of adviser, the trustee or manager of the applicable Fund because they are resident outside of Canada and all or substantially all of their assets are situated outside of Canada; and (ii) if applicable, a statement that the Applicant is not registered with or licensed by any securities regulatory authority in Canada and, accordingly, the protections available to clients of a registered adviser will not be available to purchasers of securities of the Fund.

December 29, 2000.


"John A. Geller""Robert Korthals"