Application pursuant to section 7.1 of NI 33-109 and section 7.1 of OSC Rule 33-506 that the Applicant be relieved from the Form 33-109F4 requirements in respect of certain of its Nominal Officers. The exempted officers are without significant authority over any part of the Applicant's operations and have no connection with its Ontario operation. The Applicant is still required to submit a Form 33-109F4 on behalf of each of its directing minds, who are certain Executive Officers, and its Registered Individuals who are those officers involved in the Ontario business activities.
Commodity Futures Act (Ontario), R.S.O. 1990, c. C.20, as am., s. 80.
Securities Act (Ontario), R.S.O. 1990, c. S.5, as am., s. 147.
National Instrument 33-109 Registration Information.
OSC Rule 33-506 Registration Information.
May 5, 2009
IN THE MATTER OF
THE SECURITIES ACT,
R.S.O. 1990, CHAPTER S.5, AS AMENDED
IN THE MATTER OF
THE COMMODITY FUTURES ACT,
R.S.O. 1990, CHAPTER C.20, AS AMENDED
IN THE MATTER OF
MELLON CAPITAL MANAGEMENT CORPORATION
(Subsection 7.1(1) of National Instrument 33-109 and
Subsection 7.1(1) of Ontario Securities Commission
UPON the application (the Application) of Mellon Capital Management Corporation (the Applicant) to the Ontario Securities Commission (the Commission or OSC) pursuant to section 7.1 of National Instrument 33-109 Registration Information (NI 33-109) and section 7.1 of OSC Rule 33-506 Registration Information (Rule 33-506) for an exemption from the requirement in subsection 2.1(c) and section 3.3 of NI 33-109, and in subsection 2.1(c) and section 3.3 of Rule 33-506, that the Applicant submit a completed Form 33-109F4 for all Permitted Individuals (as defined below) of the Applicant in connection with the Applicant's registration as an adviser in the category of Non-Canadian adviser (investment counsel and portfolio manager) (NCA) and as a commodity trading manager (non-resident) (CTM);
AND UPON considering the Application and the recommendation of staff of the Commission;
AND UPON the Applicant having represented to the Director that:
1. The Applicant is a corporation formed under the laws of the State of Delaware in the United States of America and is an indirect, wholly-owned subsidiary of The Bank of New York Mellon Corporation, which is a publicly-traded company listed on the New York Stock Exchange. The head office of the Applicant is located in San Francisco, California, United States of America.
2. The Applicant is registered under the Securities Act (Ontario) (the OSA) as an NCA and under the Commodity Futures Act (Ontario) (the CFA) as a CTM and intends to maintain such registrations. The Applicant is currently registered as an investment adviser with the United States Securities and Exchange Commission.
3. The Applicant provides investment management services to institutional clients on a global basis.
4. Less than 1% of the aggregate consolidated gross revenues from advisory activities of the Applicant in any one financial year would be expected to arise from the Applicant acting as an adviser for clients in Ontario.
5. Pursuant to NI 33-109 and Rule 33-506, an NCA and CTM respectively are required to submit, in accordance with National Instrument 31-102 National Registration Database (NI 31-102), a completed Form 33-109F4 for each permitted individual or non-registered individual (within the meaning of section 3.3 of each of NI 33-109 and Rule 33-506) of the Applicant, including all directors and officers who have not applied to become registered individuals of the Applicant under subsection 2.2(1) of each of NI 33-109 and Rule 33-506. The definitions of "permitted individual" in NI 33-109 and of "non-registered individual" in Rule 33-506 include, among others, a director or officer of a firm.
6. All individuals who intend to act as an adviser in respect of securities in Ontario on behalf of the Applicant and who are officers of the Applicant, are, or will seek to become, registered as advising officers (the Registered Individuals) in accordance with the registration requirements under section 25(1) of the OSA and section 22(1) of the CFA, and with the requirements of NI 31-102, by submitting a Form 33-109F4 completed with all the information required for a Registered Individual.
7. Other than the Executive Officers (as defined below), the Applicant's remaining officers would not reasonably be considered to be senior officers of the Applicant from a functional point of view. These officers (the Nominal Officers) have the title "vice-president" or a similar title but are not in charge of a principal business unit, division or function of the Applicant and, in any event, are not, or will not be, involved or have oversight of, or direction over, the Applicant's advisory activities in Ontario. The Applicant considers its permitted individuals and non-registered individuals (collectively, the Permitted Individuals) who have obtained, or will be seeking, non-advising officer status (the Executive Officers) as the holders of its most senior executive positions and/or are the individuals that are in direct contact with its Canadian clients from a marketing or direct client relationship perspective.
8. There are currently no individuals who would be included in the definition of "permitted individual" or "non-registered individual" by reason of an ownership interest in the Applicant or other criteria set out in NI 33-109 or Rule 33-506.
9. The Applicant seeks relief from the requirement to submit Form 33-109F4s for the Nominal Officers. The Applicant proposes to submit Form 33-109F4s on behalf of each of its Executive Officers completed with all the information required for a Permitted Individual. The Applicant also proposes to submit a Form 33-109F4 for the individual at any point in time who is its Chief Compliance Officer under its NCA registration.
10. In the absence of the requested relief, NI 33-109 and Rule 33-506 would require that in conjunction with the Applicant's NCA and CMT registration, the Applicant submit a completed Form 33-109F4 for each of its Nominal Officers, rather than limiting this filing requirement to the much smaller number of Executive Officers. In addition, the Applicant would be required to submit a completed Form 33-109F4 for any additional new Nominal Officer, if the requested exemption is not granted. The information contained in the filed Form 33-109F4s would also need to be monitored on a constant basis to ensure that notices of change were submitted in accordance with the requirements of section 5.1 of each of NI 33-109 and Rule 33-506 and that all information was kept current.
11. Given the relatively limited scope of the Applicant's activities in Ontario and given that the Nominal Officers will not have any involvement in the Applicant's Ontario activities, the preparation and filing of Form 33-109F4s on behalf of each Nominal Officer would achieve no regulatory purpose, while imposing an unwarranted administrative and compliance burden on the Applicant.
AND WHEREAS the Director is satisfied that it would not be prejudicial to the public interest to make the requested Order on the basis of the terms and conditions proposed;
IT IS ORDERED pursuant to section 7.1 of NI 33-109 and section 7.1 of Rule 33-506 that the Applicant is exempt from the requirement in subsection 2.1(c) of NI 33-109 and section 3.3 of NI 33-109, and in subsection 2.1(c) of Rule 33-506 and section 3.3 of Rule 33-506, to submit a completed Form 33-109F4 for each of its Permitted Individuals who are Nominal Officers not involved in its Ontario business, provided that at no time will the Nominal Officers include any Executive Officer or Chief Compliance Officer, or other officer who will be involved in, or have oversight of, the Applicant's activities in Ontario in any capacity.
May 5, 2009