D.E. Shaw & Co., L.P. - ss. 78(1) of the CFA

Headnote

Order under subsection 78(1) of the Commodity Futures Act to vary a previous order dated December 29, 2000, made under subsection 38(1) of CFA, In the Matter of D. E. Shaw & Co., L.P. -- Variation order extends the expiry date of the previous order from December 31, 2003 to December 31, 2006.

Previous order exempted a non-resident adviser from the adviser registration requirement in subsection 22(1)(b) of the CFA for its acting as an adviser to certain non-redeemable investment funds in respect of commodity futures contracts and commodity futures options traded on commodity futures exchanges outside of Canada, and cleared through clearing corporations outside Canada, subject to certain terms and conditions.

Statutes Cited

Commodity Futures Act, R.S.O. 1990, c. C.20, as am., ss. 22(1)(b), 38(1), 78(1).

IN THE MATTER OF

THE COMMODITY FUTURES ACT,

R.S.O. 1990, CHAPTER C. 20, AS AMENDED (the "CFA")

AND

REGULATION 90 UNDER THE COMMODITY FUTURES ACT,

R.R.O. 1990, AS AMENDED (the "REGULATION")

AND

IN THE MATTER OF

D. E. SHAW & CO., L.P.

 

ORDER

(Subsection 78(1) of the CFA)

UPON the application (the "Application") of D. E. Shaw & Co., L.P. (the "Applicant") to the Ontario Securities Commission (the "Commission") for an order, pursuant to subsection 78(1) of the CFA, to vary a previous order (the "Previous Order") of the Commission dated December 29, 2000, made under subsection 38(1) of the CFA, In the Matter of D. E. Shaw & Co., L.P.;

AND WHEREAS the Previous Order provided that the Applicant and its directors, officers and employees responsible for advising Funds (as defined in the Previous Order) are exempt from the requirements of paragraph 22(1)(b) of the CFA in respect of their advisory activities in connection with the Funds, provided that certain conditions are satisfied, including: clause (a) of the Previous Order, which states that "this Order shall terminate on December 31, 2003"; and clause (b) of the Previous Order, which requires that "the Applicant continues to be registered as an investment adviser and as a commodity pool operator in the United States."

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 desires to continue advising the Funds after December 31, 2003.

2. The Applicant continues to be registered as an investment adviser with the U.S. Securities and Exchange Commission, a commodity pool operator with the Commodities Futures Trading Commission, and a member of the National Futures Association.

3. All of the representations contained in the Previous Order remain unchanged.

AND UPON the Commission being of the opinion that to make this Order would not be prejudicial to the public interest,

IT IS ORDERED, pursuant to section 78(1) of the CFA, that the Previous Order is varied as follows:

(i) in clause (a), substitute "December 31, 2006" for "December 31, 2003"; and

(ii) delete clause (b) and substitute therefor the following:

"(b) the Applicant continues to be registered as an investment adviser with the U.S. Securities and Exchange Commission, a commodity pool operator with the Commodities Futures Trading Commission, and a member of the National Futures Association;"

December 23, 2003.

"Harold P. Hands"

"Suresh Thakrar"