Application 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, for the Applicant to be registered under the Act as a dealer in the category of limited market dealer.
R.R.O. 1990, Regulation 1015, am. to O.Reg. 500/06, ss. 213, 218.
IN THE MATTER OF
THE SECURITIES ACT,
R.S.O. 1990, CHAPTER S.5, AS AMENDED
IN THE MATTER OF
R.R.O. 1990, REGULATION 1015,
IN THE MATTER OF
MORGAN STANLEY SMITH BARNEY LLC
(Section 218 of the Regulation)
UPON the application (the Application) of Morgan Stanley Smith Barney LLC (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 (LMD);
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 limited liability company formed under the laws of the State of Delaware, United States of America. The head office of the Applicant is located in Purchase, New York, United States of America.
2. The Applicant is the result of a new joint venture arrangement between Morgan Stanley and Citigroup Global Markets Inc. It is registered as a broker-dealer and investment adviser with the United States Securities and Exchange Commission and as a futures commission merchant with the National Futures Association, and is a member of the Financial Industry Regulatory Authority and the New York Stock Exchange.
3. The Applicant is a global financial services firm that provides investment, financing and related services to individuals and institutions. Services provided to clients include securities brokerage, trading and underwriting; investment banking, strategic services (including mergers and acquisitions) and other corporate advisory activities; origination, dealer and related activities; and securities clearance and settlement services and investment advisory and related record keeping services.
4. The Applicant has applied to the Commission for registration under the Act as a dealer in the category of LMD and as an adviser in the category of international adviser. As an LMD, the Applicant proposes to engage in trading in securities, including equity securities of Canadian issuers, with "accredited investors" (as defined in National Instrument 45-106 Prospectus and Registration Exemptions) in Ontario.
5. Section 213 of the Regulation 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.
6. The Applicant is not resident in Canada. The Applicant does not require a separate Canadian company in order to carry out its proposed LMD activities in Ontario. It is more efficient and cost-effective to carry out those activities through the existing company.
7. Without the relief requested, the Applicant would not meet the requirements of the Regulation for registration as a dealer in the category of LMD as it is not a company incorporated, or a person formed or created, under the laws of Canada or a province or territory of Canada.
AND UPON being satisfied that to make this order would not be prejudicial to the public interest;
IT IS ORDERED THAT, pursuant to section 218 of the Regulation, and in connection with the registration of the Applicant as a dealer under the Act in the category of an LMD, section 213 of the Regulation shall not apply to the Applicant, 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 or related to or concerning its registration under the Act or its activities in Ontario as a registrant.
5. Securities, funds, and other assets of the Applicant's clients in Ontario will be held as follows:
(a) by the client; or
(b) by a custodian or sub-custodian:
(i) that meets the guidelines prescribed for acting as a sub-custodian of the portfolio securities of a mutual fund in Part 6 of National Instrument 81-102 Mutual Funds;
(ii) that is:
(1) subject to the agreement announced by the Bank for International Settlements (BIS) on July 1, 1988 concerning international convergence of capital measurement and capital standards; or
(2) exempt from the requirements of paragraph 3.7(1)(b)(ii) of OSC Rule 35-502 Non Resident Advisers; and
(iii) if such securities, funds and other assets are held by a custodian or sub-custodian that is the Applicant or an affiliate of the Applicant, that custodian holds such securities, funds and other assets in compliance with, or pursuant to an exemption from, the requirements of the Regulation.
6. Securities of the Applicant's clients in Ontario may be deposited with or delivered to a recognized depository or clearing agency.
7. The Applicant will inform the Director immediately upon the Applicant becoming aware:
(a) that it has ceased to be registered in the United States as a broker-dealer;
(b) of its registration in any other jurisdiction not being renewed or being suspended or revoked;
(c) that it is the subject of a regulatory proceeding, investigation or disciplinary action by any financial services or securities regulatory authority or self-regulatory authority;
(d) that the registration of its salespersons or officers who are registered in Ontario have not been renewed or have been suspended or revoked in any Canadian or foreign jurisdiction; or
(e) that any of its salespersons or officers who are registered in Ontario are the subject of a regulatory proceeding, investigation or disciplinary action by any financial services or securities regulatory authority or self-regulatory authority in any Canadian or foreign jurisdiction.
8. The Applicant will pay the increased compliance and case assessment costs of the Commission due to the Applicant's location outside Ontario, including the cost of hiring a third party to perform a compliance review on behalf of the Commission.
9. 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.
10. 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 the books and records.
11. The Applicant will, upon the Commission's request, provide a representative to assist the Commission in compliance and enforcement matters.
12. 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 processes or consenting to an asset freeze, to the extent such powers would be enforceable against the Applicant if the Applicant were resident in Ontario.
13. 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.
14. 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.
May 26, 2009