Applicant registered as an international adviser is exempted from the electronic funds transfer requirement pursuant to subsection 6.1(1) of National Instrument 31-102 National Registration Database and activity fees contemplated under section 4.1 of Ontario Securities Commission Rule 13-502 Fees is waived in respect of this discretionary relief, subject to certain conditions. Applicant has provided notice that subsection 4.7(1) of Multilateral Instrument 11-102 Passport System is intended to be relied upon in British Columbia and Manitoba.
Multilateral Instrument 11-102 Passport System (2008) 31 OSCB 1019, ss. 4.7(1).
National Instrument 31-102 National Registration Database (2007) 30 OSCB 5430, s. 6.1.
Ontario Securities Commission Rule 13-502 Fees (2003) 26 OSCB 867, ss. 4.1, 6.1.
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
ONTARIO (the Jurisdiction)
IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF
APPLICATIONS IN MULTIPLE JURISDICTIONS
IN THE MATTER OF
MONTAG & CALDWELL, INC.
The principal regulator in the Jurisdiction has received an application from the Filer for a decision under the securities legislation of the Jurisdiction (the Legislation), for relief pursuant to the subsection 6.1(1) of National Instrument 31-102 National Registration Database (NI 31-102) granting the Filer relief from the electronic funds transfer requirement contemplated under NI 31-102 (the EFT Requirement) and for relief from the fee requirement contemplated under the securities legislation of each of the jurisdictions in respect of this discretionary relief (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 application; and
(b) the Filer has provided notice that subsection 4.7(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in British Columbia and Manitoba.
Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this decision, unless otherwise defined.
This decision is based on the following facts represented by the Filer:
1. The Filer is incorporated under the laws of Georgia in the United States of America. The Filer is not a reporting issuer. The head office of the Filer is located in Atlanta, Georgia, United States of America.
2. The connecting factor used to identify Ontario as the principal regulator is the location of clients.
3. The Filer is registered as an investment adviser with the United States Securities and Exchange Commission.
4. The Filer is registered under the Legislation as an adviser in the category of international adviser. The Filer is registered with the British Columbia Securities Commission as a Portfolio Manager and Investment Counsel (Securities) and with the Manitoba Securities Commission as a Securities Adviser.
5. The Filer is not in default of securities legislation in any jurisdiction.
6. NI 31-102 requires that all registrants in Canada enrol with CDS Inc. (CDS) and use the national registration database (NRD) to complete certain registration filings. As part of the enrolment process, registrants are required to open an account with a member of the Canadian Payments Association from which fees may be paid with respect to NRD by electronic pre-authorized debit to satisfy the EFT Requirement.
7. The Filer anticipates encountering difficulties in setting up a Canadian based bank account for purposes of fulfilling the EFT Requirement.
8. The Filer confirms that it is not registered in, and does not intend to register in, another category to which the EFT Requirement applies and that it has applied for relief from the EFT Requirement in each jurisdiction in which is registered.
9. Staff of the Canadian Securities Administrators has indicated that, with respect to applications from international dealers and international advisers (or applicants in equivalent categories of registration) for relief from the EFT Requirement, it is prepared to recommend waiving the fee normally required to accompany applications for discretionary relief (the Application Fee).
10. For Ontario registrants, the requirement for payment of the Application Fee is set out in section 4.1 of Rule 13-502.
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:
1. the Filer makes acceptable alternative arrangements with CDS for the payment of NRD fees and makes such payment within ten (10) business days of the date of the NRD filing or payment due date;
2. the Filer pays its participation fee for each jurisdiction to the appropriate regulators by cheque, draft, money order or other acceptable means at the time of filing its application for annual renewal, which shall be no later than the first day of December in each year;
3. the Filer pays any applicable activity fees, or other fees that the legislation of each jurisdiction requires it to pay to the appropriate regulators, by cheque, draft, money order or other acceptable means at the appropriate time;
4. the Filer is not registered in any other Canadian jurisdiction in another category to which the EFT Requirement applies, or has received an exemption from the EFT Requirement in each jurisdiction to which the EFT Requirement applies; and
5. the Filer submits a similar application in any other Canadian jurisdiction where it becomes registered as an international dealer or international adviser or in an equivalent registration category.
It is the further decision of the principal regulator that the Application Fee will be waived in respect of the application for this Decision.
December 18, 2008