Application pursuant to section 7.1 of MI 33-109 that the Applicant be relieved from the Form 33-109F 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 33-109 F4's on behalf of its directing minds, who are certain "Executive Officers" and its Registered Individuals which are those officers involved in the Ontario business activities.
Securities Act, R.S.O. 1990, c. S.5, as am., s. 147.
Multilateral Instrument 33-109 - Registration Information.
IN THE MATTER OF
THE SECURITIES ACT,
R.S.O. 1990, CHAPTER S.5,
AS AMENDED (the ACT)
IN THE MATTER OF
JULIUS BAER INVESTMENT MANAGEMENT LLC
(Subsection 7.1(1) of Multilateral Instrument 33-109)
UPON the application (the Application) of Julius Baer Investment Management LLC (the Applicant) to the Ontario Securities Commission (the Commission) pursuant to section 7.1 of Multilateral Instrument 33-109 -- Registration Information (MI 33-109) for an exemption from the requirement in subsection 2.1(c) and section 3.3 of MI 33-109 that the Applicant submit a completed Form 33-109F4 for all Non-Registered Individuals of the Applicant in connection with the Applicant's registration 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 Director that:
1. The Applicant is a limited liability company formed under the laws of the State of Delaware in the United States and is an indirect subsidiary of Julius Baer Holding Ltd. of Zurich, Switzerland. The head office of the Applicant is located in New York, New York.
2. The Applicant is currently registered as an investment adviser with the U.S. Securities and Exchange Commission and as a commodity pool operator and commodity trading adviser with the U.S. Commodity Futures Trading Commission and is a member of the National Futures Association.
3. The Applicant currently registered under the Act as an international adviser in the categories of investment counsel and portfolio manager and has been exempted from certain registration requirements under the Commodity Futures Act (Ontario). The Applicant is concurrently applying for registration under the Act as a dealer in the category of limited market dealer.
4. The Applicant manages assets of approximately USD $39 billion and acts as an investment adviser to a number of investment funds. The applicant intends to distribute certain investments funds to institutional investors in Ontario and has therefore applied for registration as a limited market dealer.
5. Pursuant to MI 33-109, a limited market dealer is required to submit, in accordance with Multilateral Instrument 31-102 -- National Registration Database (MI 31-102), a completed Form 33-109F4 for each non-registered individual (Non-Registered Individual) 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 MI 33-109.
6. All individuals who intend to engage in trading activities in Ontario on behalf of the Applicant and who are officers of the Applicant, will seek to become registered as trading officers (the Registered Individuals) in accordance with the registration requirement under section 25(1) of the Securities Act (Ontario) and the requirements of MI 31-102, by submitting a Form 33-109F4 completed with all the information required for a Registered Individual. The Applicant anticipates approximately 5 individuals will seek registration as Registered Individuals.
7. The Applicants remaining officers, approximately 60, would all be considered Non-Registered Individuals for the purposes of MI 33-109. The Applicant considers its Non-Registered Individuals who will be seeking non-trading officer status (the Executive Officers) as the holders of its most senior executive positions and/or members of the Applicant's executive committee and/or are the individuals that are in direct contact with its Canadian clients from a marketing or direct client relationship perspective. The Applicant anticipates there will be 3 such Executive Officers.
8. Other than the Executive Officers, 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 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 will not be involved or have oversight of, or direction over, the Applicant's trading activities in Ontario (the Nominal Officers).
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 Non-Registered Individual. The Applicant also proposes to submit a Form 33-109F4 for its Designated Compliance Officer.
10. In the absence of the requested relief, the Applicant would require that in conjunction with its registration as a limited market dealer, that 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 MI 33-109.
11. Given the relatively small scope of the Applicant's proposed 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 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 MI 33-109 that the Applicant is exempt from the requirement in subsection 2.1(c) of MI 33-109 and section 3.3 of MI 33-109 to submit a completed Form 33-109F4 for each of its Non-Registered 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 Designated Compliance Officer, or other officer who will be involved in, or have oversight of, the Applicant's activities in Ontario in any capacity.
January 12, 2007
"David M. Gilkes"