Mutual Reliance Review System for Exemptive Relief Applications -- Applicant is registered as an international adviser and is seeking to be exempted from the electronic funds transfer requirement pursuant to subsection 6.1(1) of Multilateral Instrument 31-102 National Registration Database and activity fee 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.
Multilateral Instrument 31-102 National Registration Database (2003) 26 OSCB 926, s. 6.1.
Ontario Securities Commission Rule 13-502 Fees (2003) 26 OSCB 867, ss. 4.1, 6.1.
June 1, 2007
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
ALBERTA AND ONTARIO
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEW SYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
IN THE MATTER OF
GAM USA INC.
MRRS DECISION DOCUMENT
(Subsection 6.1(1) of Multilateral Instrument 31-102
National Registration Database and
Section 6.1 of Rule 13-502 Fees)
The local securities regulatory authority or regulator (the Decision Maker) in Alberta and Ontario (the Jurisdictions) has received an application from GAM USA Inc. (the Applicant) for a decision under the securities legislation of the Jurisdictions (the Legislation) granting the Applicant relief from,
a) the requirement contained in the Legislation to pay required fees through the National Registration Database (NRD) using electronic funds transfer (EFT); and;
b) the application fee requirement contemplated under section 4.1 of Ontario Securities Commission Rule 13-502 Fees in respect of this discretionary relief (the Application Fee).
Under the Mutual Reliance Relief System for Exemptive Relief of Applications,
a) the Ontario Securities Commission is the principal regulator for this application; and
b) this MRRS decision document evidences the decision of each Decision Maker.
Defined terms contained in Multilateral Instrument 31-102 Definitions have the same meaning unless they are defined in this decision.
This decision is based on the following facts represented by the Applicant:
1. The Applicant is a Delaware corporation. The head office of the Applicant is located in New York.
2. The Applicant is registered as a foreign adviser in the category of investment counsel and portfolio manager in the Province of Alberta and an adviser in the category of international adviser (investment counsel and portfolio manager) in the Province of Ontario.
3. The Applicant is not registered as a dealer or adviser in any other category of dealer or adviser that requires payment of fees through EFT.
4. Each of the Jurisdictions has adopted Multilateral Instrument 31-102 - National Registration Database (MI 31-102) relating to the NRD.
5. Part 4 of MI 31-102 imposes a requirement that all payments made pursuant to use of the NRD, including submission fees, annual registration fees and NRD user fees, must be made by means of a pre-authorized EFT debit (the EFT Requirement).
6. In order to be able to make pre-authorized EFT payments, a registrant must have a bank account based in Canada. The Applicant, as an international registrant, has encountered difficulties and significant costs in setting up and maintaining a Canadian based bank account for purposes of fulfilling the EFT Requirement since it is not incorporated in Canada and does not have place of business in Canada.
7. In order to pay fees outside of NRD, the Applicant proposes to pay fees using certified cheques or bank drafts in Canadian dollars delivered when due to the relevant regulators.
Each of the Decision Makers is satisfied that the test contained in the Legislation that provides the Decision Maker with the Jurisdiction to make the Decision has been met;
The decision of the Decision Makers under the Legislation is that:
1. the Applicant is exempt from the EFT Requirement pursuant to subsection 6.1(1) of MI 31-102, for so long as the Applicant:
A. 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;
B. pays its participation fee under the Act to the Commission 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;
C. pays any applicable activity fees, or other fees that the Act requires it to pay to the Commission, by cheque, draft, money order or other acceptable means at the appropriate time; and
D. is not registered in any Jurisdiction in another category to which the EFT Requirement applies;
provided that the Applicant submits a similar application in any other Canadian jurisdiction where it becomes registered as an international dealer, international adviser or in an equivalent registration category; and
2. except in Alberta, the Applicant is exempt from the Application Fee associated with making this application for relief.
"David M. Gilkes"