Application to the Commission for an order, pursuant to section 218 of Regulation 1015 of the Securities Act (Ontario), that the requirement in section 213 of the Regulation, which 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, shall not apply to the Applicant. The order sets out the terms and conditions applicable to a non-resident limited market dealer and is subject to a three year sunset.
Ontario Regulation 1015, R.R.O. 1990, sec. 213, 218.
IN THE MATTER OF
THE SECURITIES ACT,
R.S.O. 1990, C.S.5 AS AMENDED (the Act)
IN THE MATTER OF
R.R.O. 1990, REGULATION 1015, AS AMENDED (the Regulation)
IN THE MATTER OF
WESTPORT CAPITAL MANAGEMENT CORPORATION
(Section 218 of the Regulation)
UPON the application (the Application) from Westport Capital Management Corporation (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 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, in order for the Applicant 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 corporation formed under the laws of the State of Florida on July 26, 2001.
2. The Applicant is registered in the United States with the U.S. Commodity Futures and Trading Commission (CFTC) as a Commodity Pool Operator and is a member of the National Futures Association (NFA). John W. Henry & Company, Inc. (JWH), an affiliate of the Applicant, is registered as a Commodity Pool Operator with the NFA, and in Ontario is registered as a Non-Resident Commodity Trading Manager.
3. The proposed business to be conducted in Ontario by the Applicant will be restricted to the sale of units of pooled funds of JWH, and its affiliates, pursuant to the registration and prospectus exemptions available under the Act.
4. The Applicant is resident outside of Canada, will not maintain an office in Canada, and will only participate in the distribution of securities in Ontario pursuant to registration and prospectus exemptions contained in the Act and Ontario Securities Commission Rule 45-501 Exempt Distributions.
5. Without the relief requested, the Applicant would be required to either: (i) hire an Ontario resident to act as local trading officer, which affords little or no additional protection to Ontario investors and would burden the Applicant with unnecessary additional cost, or (ii) abandon its application and conduct registrable activities only through an Ontario registered dealer at an increased price which would ultimately be passed on to Ontario investors.
AND UPON the Commission being satisfied that to make this order would not be prejudicial to the public interest:
IT IS ORDERED THAT section 213 of the Regulation shall, for a period of three years, not apply to the Applicant, pursuant to section 218 of the Regulation, provided that:
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 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, officers or partners, 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, 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, or other assets of clients resident in Ontario.
6. In each of the following situations the Applicant will inform the Director immediately upon the Applicant: (i) ceasing to be registered as a commodity pool operator with the CFTC or NFA, (ii) having its registration in any other jurisdiction not renewed or being suspended or revoked, (iii) becoming aware that it is the subject of an investigation or disciplinary action by any financial services or securities regulatory authority or self-regulatory authority, (iv) that the registration of its salespersons, officers, directors, or partners who are registered in Ontario have not been renewed or have been suspended or revoked in any Canadian or foreign jurisdiction, or (v) that any of its salespersons, officers, directors, or partners who are registered in Ontario are the subject of an 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 of 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. 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.
9. The Applicant, will have available a person, possibly a third party, to assist the Commission in compliance and enforcement matters.
10. 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. 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.
11. 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.
January 28, 2005.
"David L. Knight"
"Robert L. Shirriff"