Securities Law & Instruments

 

Headnote

Subsection 38(1) of the Commodity Futures Act(Ontario)("CFA") - relief from the requirements ofsubsection 22(1)(b) of the CFA in respect of advising certainnon-Canadian mutual funds in respect of trades in commodityfutures contracts traded on commodity futures exchanges outsideCanada and cleared through clearing corporations outside Canadasubject to certain terms and conditions, until the date whenthe funds cease to meet the criteria of 7.10 of Rule 35-502.

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

AND

REGULATION 90 UNDER
THE COMMODITY FUTURES ACT,
R.R.O. 1990, AS AMENDED (the "REGULATION")

AND

IN THE MATTER OF
CREDIT SUISSE ASSET MANAGEMENT, LLC and
CSAM CAPITAL INC.

ORDER
(Subsection 38(1) of the CFA)

UPON the application of Credit SuisseAsset Management, LLC ("CSAM") and CSAM Capital Inc.("CSAM Capital") to the Ontario Securities Commission(the "Commission") for an order pursuant to subsection38(1) of the CFA that CSAM and CSAM Capital and their officersare exempt from the requirements of paragraph 22(1)(b) of theCFA in respect of advising certain non-Canadian mutual fundsin respect of trades in commodity futures contracts traded oncommodity futures exchanges outside Canada and cleared throughclearing corporations outside Canada (the "Proposed AdvisoryBusiness");

AND UPON considering the applicationand the recommendation of staff of the Commission:

AND UPON CSAM and CSAM Capital havingrepresented to the Commission as follows.

1. CSAM is a limited liability company and CSAMCapital is a corporation and an affiliate of CSAM, and bothwere created under the laws of the State of Delaware.

2. CSAM and CSAM Capital are each registeredwith the U.S. Commodities Futures Trading Commission (the "CFTC")as a commodity trading operator/ commodity trading adviser andare members of the U.S. National Futures Association (the "NFA").

3. CSAM and CSAM Capital serve as general partnersfor and/or have entered into certain investment advisory agreementsfor the purpose of advising certain non-Canadian mutual fundsas follows: DLJ Technology - Long/Short Investors Limited, HealthtechLong/Short Investors Limited, Global Diversified Investors Limited,Global Diversified Investors II Limited, International MarketsLong/Short Offshore Investors Fund and CSAM Low Volatility AlternativeOffshore Fund (the "Existing Funds") in respect ofinvestments in or the use of commodity futures contracts tradedon commodity futures exchanges outside Canada and cleared throughclearing corporations outside Canada.

4. CSAM and CSAM Capital may also serve as generalpartners and/or enter into investment advisory agreements inthe future for the purpose of advising other non-Canadian mutualfunds (the "Future Funds") in respect of investmentsin or the use of commodity futures contracts traded on commodityfutures exchanges outside Canada and cleared through clearingcorporations outside Canada (the Existing Funds and the FutureFunds together the "Funds").

5. As would be required under section 7.10 (PrivatelyPlaced Funds Offered Primarily Abroad) of Rule 35-502 of theSecurities Act (Ontario) all of the Funds are or will be non-Canadianand the securities of the Funds are or will be:

(1) primarily offered outside of Canada;

(2) only distributed in Ontario through oneor more registrants under the Securities Act (Ontario); and

(3) distributed in Ontario in reliance uponan exemption from the prospectus requirements under the SecuritiesAct (Ontario).

6. Prospective investors who are Ontario residentswill receive disclosure that includes (a) a statement that theremay be difficulty in enforcing legal rights against any of CSAMor CSAM Capital, or the officers of CSAM or CSAM Capital becausethey are resident outside of Canada and all or substantiallyall of their assets are situated outside of Canada, and (b)a statement that CSAM and CSAM Capital are not registered withor licensed by any securities regulatory authority in Ontariounder the Commodity Futures Act, and, accordingly, the protectionsavailable to clients of a registered adviser will not be availableto purchasers of units of the Funds.

AND UPON being satisfied that it wouldnot be prejudicial to public interest for the Commission togrant the exemptions requested.

IT IS ORDERED pursuant to subsection38(1) of the CFA that CSAM, CSAM Capital and their officersare not subject to the requirements of paragraph 22(1)(b) ofthe CFA in respect of the Proposed Advisory Business until thedate when the Existing Funds or the Future Funds or both ceaseto meet the criteria of 7.10 of Rule 35-502 as set forth inparagraph 5 above provided that:

(1) CSAM and CSAM Capital continue to be registeredwith the CFTC as commodity trading advisers and are membersof the NFA;

(2) the Funds are invested in futures and optionscontracts traded on organized exchanges outside of Canada andcleared through clearing corporations located outside of Canada,in other derivative instruments traded over the counter and,to a lesser extent, in securities; and

(3) Prospective investors who are Ontario residentswill receive disclosure that includes

(a) a statement that there may be difficultyin enforcing legal rights against any of CSAM or CSAM Capital,or the officers of CSAM or CSAM Capital because they are residentoutside of Canada and all or substantially all of their assetsare situated outside of Canada; and

(b) a statement that CSAM and CSAM Capital arenot registered with or licensed by any securities regulatoryauthority in Ontario under the Commodity Futures Act, and, accordingly,the protections available to clients of a registered adviserwill not be available to purchasers of units of the Funds.

September 13, 2002.

"H.L. Morphy"     "H.P.Hands"