Fountainhead Pte. Ltd
Relief from the adviser registration requirement in respect of advice to a Cayman Islands investment fund, and to clients located in certain "specified foreign jurisdictions" where the Filer and its representatives are registered or exempted from registration under local securities rules.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, ss. 25(3), 74(1).
June 16, 2022
IN THE MATTER OF THE SECURITIES LEGISLATION OF ONTARIO (the Jurisdiction) AND IN THE MATTER OF FOUNTAINHEAD PTE. LTD. (the Filer)
The securities regulatory authority in Ontario (the Decision Maker) has received an application from the Filer for a decision pursuant to section 74 of the Securities Act (Ontario) (the Securities Act) to exempt the Filer and individuals acting on behalf of the Filer who are resident in Ontario (the Representatives) from the adviser registration requirement under Section 25(3) of the Act in respect of advice provided by the Filer and the Representatives to certain non-Ontario resident clients specified below (the Exemption Sought).
Terms defined in the Securities Act have the same meaning if used in this decision, unless otherwise defined.
The decision is based on the following facts represented by the Filer:
1. The Filer is an exempt private company incorporated in Singapore on December 7, 2016 which operates as an investment management company in Singapore.
2. The Filer's registered office is located in Singapore.
3. The fund management industry in Singapore is regulated by the Monetary Authority of Singapore (the MAS).
4. Singapore law provides that a person cannot act as an investment fund manager unless the person is a holder of capital markets services license for fund management under the Securities and Futures Act (Singapore) (the SFA), registered as a registered fund management company under the SFA or falls within such other categories of persons who are exempt from licensing under the SFA.
5. As such, the Filer is registered as a registered fund management company (RFMC) with the MAS and holds a capital markets services license for fund management under the SFA.
6. MAS is responsible for reviewing the application process to qualify as an RFMC and, based on public information, takes into account, among others, the following factors when assessing an application for an RFMC registration: (i) fitness and propriety of the applicant, its shareholders and directors; (ii) track record and fund management expertise; (iii) ability to meet the minimum financial requirements prescribed under the SFA; (iv) strength of internal risk management and compliance systems; and (v) business model / plans and projections and associated risks.
7. RFMCs, including the Filer and the Representatives, are subject to Singapore's local securities laws and ongoing oversight by the MAS (collectively, Singapore Rules).
8. The Filer's primary business is providing investment management services to the Filer's flagship fund, Fountainhead Partnerships Fund, an open-ended exempted company incorporated with limited liability under the laws of the Cayman Islands (the Fund).
9. The securities of the Fund have not been qualified for sale or distribution in Singapore and are currently offered on an exempt basis pursuant to a private offering memorandum.
10. The directors of the Fund, who are also principals of the Filer, are responsible for the overall management and control of the Fund including the appointment of the investment manager of the Fund. In that capacity, they have appointed the Filer as the investment manager of the Fund with full discretion to manage, invest and reinvest the assets of the Fund in accordance with the investment strategies and restrictions of the Fund.
11. The Filer provides investment management services to the Fund. The Fund, the Filer and the Representatives do not provide investment advice to the investors of the Fund.
12. The Fund is distributed in accordance with Singapore Rules for exempt funds offered under private memorandum through local distributors that are registered or exempted under applicable rules and in accordance with any other applicable local securities laws of Specified Foreign Jurisdictions (as defined below), as applicable (collectively, Local Rules). All of the investors of the Fund are located in Specified Foreign Jurisdictions and no Canadian residents are or will be invested in the Fund.
13. The Filer may and also does, from time to time, advise certain individual clients in Singapore who are accredited investors, all in accordance and compliance with the Singapore Rules. Except for the Fund, the Filer's clients are all currently resident in Singapore which is a "specified foreign jurisdiction" as such term is defined under OSC Rule 72-503 -- Distributions Outside Canada (OSC Rule 72-503). With respect to its clients, the Filer and the Representatives are and will be appropriately registered or exempted from registration in each applicable jurisdiction and their activities are undertaken in accordance with Local Rules.
14. The Filer is not registered under the Securities Act and the Filer and the Representatives have been and, absent the Exemption Sought, would be engaged in registerable activities in Ontario in contravention of Section 25(3) of the Securities Act. Other than the failure to comply with Section 25(3), the Filer and the Representatives is not in default of any of its obligations under securities legislation of Ontario.
15. The Ontario Securities Commission has recognized certain exemptions from the adviser registration requirement for foreign regulated advisers including pursuant to OSC Rule 32-505 Conditional Exemption from Registration for United States Broker-Dealer and Advisers Servicing U.S. Clients from Ontario (OSC Rule 32-505). OSC Rule 32-505 provides an exemption from the adviser registration requirements to U.S. advisers who act as advisers to U.S. clients but trigger the requirement to register as an adviser in Ontario due to the location of its offices or advisers in Ontario on the basis that the U.S. adviser firms: (i) act as an adviser only to U.S. clients; (ii) are appropriately registered (or exempt from registration) in the United States; and (iii) are subject to oversight of an acceptable securities regulatory in the United States.
16. Members of Canadian Securities Administrators, other than Ontario, issued parallel orders of general application, which grant a similar exemption to U.S. adviser firms as available under OSC Rule 32-505.
17. Similarly, OSC Rule 72-503 provides a prospectus exemption to Ontario issuers subject to the issuer complying with its local regulatory regime but limits the exemption to certain 'specified foreign jurisdictions'. The countries included on the list of 'specified foreign jurisdictions' set out in Appendix A of OSC Rule 72-503 (collectively, Specified Foreign Jurisdictions).
18. Although the Fund is not located in a Specified Foreign Jurisdiction, there would be no regulatory purpose to requiring the Filer or the Representatives to be registered as advisers in Ontario in addition to Singapore specifically due to the fact that that Fund, which is the Filer's client, is controlled by the principals of the Filer, who have the authority, among other things, to appoint the investment manager of the Fund, which is the Filer. There is therefore no independent third-party decision maker for the Fund that might rely on an assumption that the Filer or the Representatives are registered as advisers in Ontario.
The Decision Maker is satisfied that the decision meets the test set out in the Legislation and the decision of the Decision Maker is that the Exemption Sought is granted provided that the Filer and the Representatives remain in compliance with all of the following conditions:
1. The Filer and the Representatives only advise the Fund and clients resident in Specified Foreign Jurisdictions.
2. The Filer and the Representatives are appropriately registered or exempt from registration under Local Rules, as applicable.
3. The Filer and the Representatives are not in default of the Local Rules or any other applicable laws or regulations in each Specified Foreign Jurisdiction in which it engages in the business of advising with respect to investing in, buying or selling securities.
4. The Filer will notify each of its clients that it is not registered in Ontario as an adviser or in any other category of registration.
5. All of the investors of the Fund are located in Specified Foreign Jurisdictions and not Canada.
6. The Filer will distribute securities of the Fund through agents that are registered or exempted under applicable Local Rules and will ensure that offering documents are provided as may be required under applicable Local Rules.
7. The Filer and the Representatives recognize that each of them is a market participant for purposes of Ontario securities law.
8. The Filer and the Representatives will deal fairly, honestly and in good faith with their clients, consistent with the general duties set out in OSC Rule 31-505 Conditions of Registration.