Banc of America Securities LLC et al. - s. 147 of the Act and s. 6.1 of Rule 13-502 Fees

Order

Headnote

Relief from section 6.5 of OSC Rule 45-501 Ontario Prospectus Exemptions - Relief granted from s. 6.5 for forward-looking information in offering memoranda provided to accredited investors in connection with private placements by foreign issuer - such private placements are generally small part of larger distributions of securities by foreign issuers outside Canada pursuant to foreign offering documents - relief subject to conditions - Relief also granted from section 4.1 of OSC Rule 13-502 Fees.

Applicable Legislative Provisions

Securities Act (Ontario), s. 147.

OSC Rule 13-502 Fees, s. 4.1.

OSC Rule 45-501 Ontario Prospectus Exemptions, s. 6.5.

IN THE MATTER OF

THE SECURITIES ACT,

R.S.O. 1990, c. S.5, AS AMENDED

AND

IN THE MATTER OF

BANC OF AMERICA SECURITIES LLC

BARCLAYS CAPITAL INC.

CITIGROUP GLOBAL MARKETS INC.

COWEN AND COMPANY, LLC

DEUTSCHE BANK SECURITIES INC.

GOLDMAN, SACHS & CO.

J.P. MORGAN SECURITIES INC.

LEHMAN BROTHERS CANADA INC.

MACQUARIE CAPITAL MARKETS CANADA LTD.

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

MORGAN STANLEY & CO. INCORPORATED

AND

UBS SECURITIES LLC

 

ORDER

(Section 147 of the Act

and

Section 6.1 of Rule 13-502 Fees)

WHEREAS effective December 31, 2007 Ontario Securities Commission Rule 45-501 -- Ontario Prospectus Exemptions ("Rule 45-501") was amended to, among other things, require that an offering memorandum used in Ontario which contains forward-looking information comply with certain new provisions of National Instrument 51-102 -- Continuous Disclosure Obligations ("NI 51-102");

AND UPON the application (the "Application") of the dealers listed on Schedule "A" hereto (collectively, the "Applicants") each applying for itself and its affiliated dealers shown beside its name in Schedule "B" hereto (the Applicants and their affiliated dealers collectively referred to herein as the "Dealers") to the Ontario Securities Commission (the "Commission") for an order pursuant to Section 147 of the Securities Act, R.S.O. 1990, c. S.5, as amended (the "Act") to provide that Section 6.5 of Rule 45-501 shall not be applicable to an offering memorandum of a non-Canadian issuer that is not a reporting issuer in Ontario (each, a "Foreign Issuer") provided to a prospective purchaser in Ontario by the Applicants

AND UPON the Application of the Applicants to the Director for an exemption pursuant to Section 6.1 of OSC Rule 13-502 -- Fees ("Rule 13-502") to provide that Section 4.1 of Rule 13-502 shall not be applicable to the Applicants;

AND UPON the Applicants having represented to the Commission that:

1. Each of the Dealers is incorporated or otherwise organized by under the laws of the jurisdiction shown opposite its name in Schedule "B" hereto.

2. Each of the Dealers is registered with the OSC as a dealer in the category shown opposite its name in Schedule "B" hereto.

3. The Dealers offer and sell securities of Foreign Issuers on a private placement basis to purchasers in Ontario relying on the "accredited investor" prospectus exemption under Section 2.3 of National Instrument 45-106 -- Prospectus and Registration Exemptions.

4. The offerings by private placement of securities of a Foreign Issuer (each, a "Foreign Issuer Private Placement") in Ontario are part of a distribution of securities of a Foreign Issuer offered primarily outside of Canada pursuant to a prospectus, offering memorandum or other offering document (each, a "Foreign Offering Document") prepared in accordance with the requirements of the United States or other non-Canadian jurisdictions.

5. In a Foreign Issuer Private Placement, a Foreign Offering Document is generally accompanied by a "wrapper" or is otherwise supplemented with disclosure prescribed by Ontario securities law and with disclosure of certain additional information for the benefit of Ontario investors and provided by the Dealers to Ontario prospective purchasers as a Foreign Issuer's offering memorandum within the meaning of Section 1(1) of the Act.

6. In a Foreign Issuer Private Placement, a Foreign Issuer that intends to rely on the civil liability safe harbour with respect to forward-looking statements provided by Section 21E of the U.S. Securities Exchange Act of 1934, as amended (the "Exchange Act") or Section 27A of the U.S. Securities Act of 1933, as amended (the "U.S. Securities Act"), will generally include in its Foreign Offering Document disclosure with respect to "forward-looking statements" within the meaning of Section 21E of the Exchange Act and Section 27A of the U.S. Securities Act to enable the Foreign Issuer to rely on the civil liability safe harbour provided with respect to forward-looking statements.

7. Other Foreign Issuers conducting a Foreign Issuer Private Placement that include forward looking information in their Foreign Offering Document will generally include disclosure of related material risk factors potentially affecting the forward looking information.

8. The disclosure with respect to forward looking information contained in a Foreign Offering Document used in a Foreign Issuer Private Placement in Ontario will not necessarily include all of the disclosure prescribed for offering memoranda by section 6.5 of Rule 45-501.

AND UPON considering the Application and the recommendation of the staff of the Commission;

AND UPON the Commission being satisfied that it would not be prejudicial to the public interest to make this Order;

IT IS ORDERED, pursuant to section 147 of the Act, that offering memoranda delivered by or on behalf of the Dealers to prospective purchasers that are accredited investors in connection with Foreign Issuer Private Placements shall not be subject to Section 6.5 of Rule 45-501, provided that a Foreign Offering Document contains or is accompanied by either:

(a) the disclosure required in order for an issuer to rely on the safe harbour provided by Section 21E of the Exchange Act or by Section 27A of the U.S. Securities Act with respect to forward looking information, whether or not such safe harbour is applicable; or

(b) a statement that "This offering is being made by a non-Canadian issuer using disclosure documents prepared in accordance with non-Canadian securities laws. Prospective purchasers should be aware that these requirements may differ significantly from those of Ontario. The forward looking information included or incorporated by reference herein may not be accompanied by the disclosure and explanations that would be required of a Canadian issuer under Ontario securities law."

DATED at Toronto, this 16th day of May, 2008.

"Carol S. Perry"
"Kevin J. Kelly"
Commissioner
Commissioner
Ontario Securities Commission
Ontario Securities Commission

AND UPON the Director being satisfied that it would not be prejudicial to the public interest to make this Order;

IT IS ORDERED, pursuant to Section 6.1 of Rule 13-502, that the Application shall not be subject to Section 4.1 of Rule 13-502.

DATED at Toronto, this 16th day of May, 2008.

"Kelly Gorman"
Manager, Corporate Finance
Ontario Securities Commission

 

Schedule "A"

List of Applicants

Banc of America Securities LLC

Barclays Capital Inc.

Citigroup Global Markets Inc.

Cowen and Company, LLC

Deutsche Bank Securities Inc.

Goldman, Sachs & Co.

J.P. Morgan Securities Inc.

Lehman Brothers Canada Inc.

Macquarie Capital Markets Canada Ltd.

Merrill Lynch, Pierce, Fenner & Smith Incorporated

Morgan Stanley & Co. Incorporated

UBS Securities LLC

 

Schedule "B"

List of Dealers Affiliated with Applicants

Applicant

Affiliated Dealers

Jurisdiction

OSC Registration

 

1.

Banc of America

Securities LLC

Delaware

International Dealer

 

Banc of America Securities

Canada Co. /

Nova Scotia

Investment Dealer

Banc d'Amerique Valeurs

Mobilières du Canada

 

2.

Barclays Capital Inc.

Connecticut

International Dealer

 

Barclays Capital Securities

Limited

United Kingdom

International Dealer

 

Barclays Global Investors

Canada Limited

Canada

Limited Market Dealer

 

Barclays Global Investors

Services

United States

International Dealer

 

Barclays Global Investors

Services Canada Limited

Canada

Investment Dealer

 

3.

Citigroup Global Markets Inc.

New York

International Dealer

 

Citigroup Global Markets

Limited

England and Wales

International Dealer

 

Citigroup Global Markets

Canada Inc.

Ontario

Investment Dealer

 

Citibank Canada Investment

Limited Market Dealer

Funds Limited

Ontario

& Mutual Fund Dealer

 

4.

Cowen and Company, LLC

Delaware

International Dealer

 

5.

Deutsche Bank Securities Inc.

Delaware

International Dealer

 

Deutsche Bank Securities

Limited/Deutsche Bank

Ontario

Broker & Investment

Valeurs Mobilières Limitée

Dealer

 

Deutsche Asset Management

Canada Limited/Gestion de

placements Deutsche

Canada

Limited Market Dealer

Canada Limitée

 

6.

Goldman, Sachs & Co.

New York

International Dealer &

Limited Market Dealer

 

Goldman Sachs Canada Inc.

Ontario

Investment Dealer

 

Goldman Sachs Execution &

International Dealer &

Clearing, L.P.

New York

Limited Market Dealer

 

Goldman Sachs International

United Kingdom

International Dealer

 

7.

J.P. Morgan Securities Inc.

Delaware

International Dealer

 

J.P. Morgan Securities

Canada Inc. / J.P. Morgan

Valeurs Mobilières Canada

Canada

Investment Dealer

Inc.

 

JPMorgan Asset

Management (Canada) Inc. /

Canada

Limited Market Dealer

Gestion d'Actif JPMorgan

(Canada) Inc.

 

8.

Lehman Brothers Canada Inc.

Investment Dealer

New Brunswick

 

Lehman Brothers Inc.

Delaware

International Dealer

 

Lehman Brothers

International (Europe)

United Kingdom

International Dealer

 

Lehman Commercial Paper

Incorporated

New York

International Dealer

 

Neuberger Berman, LLC

Delaware

International Dealer

 

9.

Macquarie Capital Markets

Canada Ltd./Marchés

Ontario

Investment Dealer

Financiers Macquarie Canada

 

Ltée

Macquarie Capital (USA) Inc.

Delaware

International Dealer

 

10.

Merrill Lynch, Pierce, Fenner

International Dealer &

& Smith Incorporated

Delaware

Limited Market Dealer

 

Merrill Lynch Canada Inc.

Canada

Investment Dealer

 

11.

Morgan Stanley & Co.

International Dealer &

Incorporated

Delaware

Limited Market Dealer

 

Morgan Stanley & Co.

International plc

United Kingdom

International Dealer

 

Morgan Stanley & Co. Limited

United Kingdom

International Dealer

 

Morgan Stanley Canada

Broker & Investment

Limited

Canada

Dealer

 

12.

UBS Securities LLC

Delaware

International Dealer

 

UBS AG

Switzerland

International Dealer

 

UBS Securities Canada Inc. /

UBS Valeurs Mobilières

Canada

Investment Dealer

Canada Inc.