INVESTMENT DEALERS ASSOCIATION OF CANADA. RESEARCH CAPITAL CORPORATION and PATRICK GERALD WALSH SETTLEMENT AGREEMENT

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1 INVESTMENT DEALERS ASSOCIATION OF CANADA IN THE MATTER OF: The BY-LAWS OF THE INVESTMENT DEALERS ASSOCIATION OF CANADA And RESEARCH CAPITAL CORPORATION and PATRICK GERALD WALSH SETTLEMENT AGREEMENT I. INTRODUCTION 1. The Enforcement Department Staff ( Staff ) of the Investment Dealers Association of Canada ( the Association ) has conducted an investigation into the conduct of Research Capital Corporation ( RCC ) and Patrick Gerald Walsh ( Walsh ) (collectively herein the Respondents ). 2. The investigation discloses matters for which the Respondents may be disciplined by a Hearing Panel of the Association, pursuant to Association By-law 20, Part 10. II. JOINT SETTLEMENT RECOMMENDATION 3. Staff and the Respondents consent and agree to the settlement of these matters by way of this settlement agreement (the Settlement Agreement ) in accordance with Association By-laws to 20.40, inclusive, and Rule 15 of the Rules of Practice and Procedure. 4. The Settlement Agreement is subject to acceptance by the Hearing Panel. 5. The Settlement Agreement shall become effective and binding upon the Respondents and Staff as of the date of its acceptance by the Hearing Panel. 6. The Settlement Agreement will be presented to the Hearing Panel at a hearing (the Settlement Hearing ) for its approval. Following the conclusion of the Settlement Hearing, the Hearing Panel may either accept or reject the Settlement Agreement. 1

2 7. If the Hearing Panel accepts the Settlement Agreement, the Respondents waive their rights under the Association s By-Laws and any applicable legislation to a disciplinary hearing, review or appeal. 8. If the Hearing Panel accepts the Settlement Agreement, Staff will not proceed with disciplinary proceedings under Association By-Laws in relation to the facts set out in section III of the Settlement Agreement. 9. If the Hearing Panel rejects the Settlement Agreement, Staff and the Respondents may enter into another settlement agreement; or Staff may proceed to a disciplinary hearing in relation to the matters disclosed in the Investigation. 10. The Settlement Agreement will become available to the public upon its acceptance by the Hearing Panel. 11. Staff and the Respondents agree that if the Hearing Panel accepts the Settlement Agreement, they, or anyone on their behalf, will not make any public statements inconsistent with the Settlement Agreement. Nothing in this section is intended to restrict the Respondents from making full answer and defence to any civil proceedings against them. 12. Staff and the Respondents jointly recommend that the Hearing Panel accept the Settlement Agreement. 13. If the Hearing Panel rejects this Settlement Agreement: (i) The provisions of By-law to 20.24, inclusive, shall apply, provided that no member of the Hearing Panel rejecting this Settlement Agreement shall participate in any hearing conducted by a Hearing Panel with respect to the same matters which are the subject of the Settlement Agreement; and (ii) This Settlement Agreement and the negotiations relating thereto shall be confidential and without prejudice and may not be used as evidence or referred to in any hearing. III. STATEMENT OF FACTS Acknowledgment 14. Staff and the Respondents agree, for the purposes of this settlement only, with the facts set out in this Section III and acknowledge that the terms of the settlement contained in this agreement are based upon those specific facts. 2

3 Factual Background (i) The Respondents Histories 15. The Respondent RCC became a Member of the Association under the name Research Capital Corporation on September 30, 1989, when it changed its (previously registered and approved) name from Andras Research Capital Inc. 16. The Respondent Walsh has been registered with and approved by the Association in a number of capacities from 1979 to the present, principally involved with RCC and its business predecessors. In particular, the Respondent Walsh has been registered for some or all of the relevant period as Assistant Designated Person (ADP) (March 1994 to November 2001); Ultimate Designated Person (UDP) (November 2001 to present); Chairman, President and CEO (September 1988 to July 1999); President and CEO (July 1999 to February 2004); and Chairman and CEO from February 2004 to the present. (ii) Compliance and Supervision Duties of the Respondents 17. The Respondents were at all relevant times bound by the Association s By-Laws, Regulations and Policies. 18. Throughout the relevant period, the Association s By-Laws 29 and 38 provided, in part, as follows: 29.1 Members and each partner, director, officer, sales manager, branch manager, assistant or co-branch manager, registered representative, investment representative and employee of a Member (i) shall observe high standards of ethics and conduct in the transaction of their business, (ii) shall not engage in any business conduct or practice which is unbecoming or detrimental to the public interest, and (iii) shall be of such character and business repute and have such experience and training as is consistent with the standards described in clauses (i) and (ii) or as may be prescribed by the Board of Directors. For the purposes of disciplinary proceedings pursuant to the By-laws, each Member shall be responsible for all acts and omissions of each partner, director, officer, sales manager, branch manager, assistant or co-branch manager, registered representative, investment representative and employee of a Member; and each of the foregoing individuals shall comply with all By-laws, Regulations and Policies required to be complied with by the Member. and 38.1 Every Member shall designate its Chief Executive Officer, its President, its Chief Operating Officer or its Chief Financial Officer (or such other officer 3

4 designated with the equivalent supervisory and decision-making responsibility) to act as the Ultimate Designated Person (the UDP ) who shall be responsible to the applicable self-regulatory organization for the conduct of the firm and the supervision of its employees Every Member shall appoint [a] Chief Compliance Officer (the CCO ) The CCO shall report to the board of directors (or equivalent) of the Member as necessary but at least annually on the status of compliance at the Member The board of directors (or equivalent) shall review the report of the CCO and determine what actions are necessary and ensure such actions are carried out in order to address any compliance deficiencies noted in the report The UDP shall ensure that policies and procedures are developed and implemented which adequately reflect the regulatory requirements of the Member. 19. During the period between November 2001 and September 2004, as Ultimate Designated Person at RCC, the responsibilities of the Respondent Walsh were as described in By-Laws 38.1 and above. (iii) Supervision of T. 20. In September 2001, with the knowledge and approval of the Respondent Walsh, T was hired by RCC to act as a Registered Representative (RR), providing advice and trading services to RCC s retail clients. To the knowledge of senior managers at RCC, T had been fined and suspended in 1997 by the Ontario Securities Commission for improper activities as a RR, and was at the time he was hired by RCC under investigation by the Association. 21. T s employment at RCC was approved by the Association subject to a request that he be placed under close supervision by the firm. Close supervision is a regime in which an individual s activities are monitored and supervised more closely than is normal in the securities industry and monthly reports of that supervision are compiled and kept on file by the employer. In response to the Association s request, and with the knowledge of the Respondent Walsh, RCC agreed to place T under close supervision, and named the individual (T s Branch Manager in the Respondent s Toronto office) who would be responsible for the supervision. 22. From the time of his arrival at RCC in September 2001, T persistently engaged in a number of activities and practices in the course of his business which the Association 4

5 alleges were contrary to various Association By-Laws, Regulations and Policies. T s actions included particularly the following: (a) he opened accounts for and served clients outside his jurisdiction of registration; (b) he opened many accounts and accepted orders for trading in them without completing the required documentation; (c) he accepted orders for trading in accounts from individuals other than the named account holders or persons otherwise authorized to trade in those accounts; (d) he misled RCC regarding the involvement in certain accounts of certain individuals; and (e) he failed in his gatekeeper role and facilitated questionable trading activity by certain clients. 23. T s disciplinary history with the Ontario Securities Commission involved disciplinary offences similar in nature to those set out in the paragraph above. 24. During the course of his employment, T s overall pattern of business conduct should have raised concerns in RCC s senior management such that his business should have been subject to closer scrutiny and tighter control than actually occurred. In particular, the nature of T s business in the name of the Respondent involved, among other features: (a) a high volume of transactions in the Over-The-Counter Bulletin Board ( OTC BB ) market; (b) frequent filings for, and trades pursuant to, exemptions under Rule 144 of the Securities Exchange Commission of the United States; (c) (d) numerous offshore accounts; a large number of third-party transfers of stock; (e) frequent trading by clients in a small number of low-priced securities; (f) the appearance of artificially re-flagging accounts into different names or jurisdictions after trading in those accounts had been prevented or limited by the Respondent s compliance department; and 5

6 (g) numerous transactions of apparently questionable economic purpose. 25. Relatively rare or isolated occurrences or features such as those mentioned in the preceding paragraph might not attract management attention or create concerns. However, the cumulative effect of their repeated occurrence in T s business should have alerted the Respondents to the high-risk nature of his activities (from a compliance point of view) and the Respondents should have exercised greater diligence in supervising those activities and controlling and restricting them where appropriate. 26. Particular failures of supervision of T s activities, for which the Respondents bear responsibility, included the following: (a) failure to prevent him from opening accounts for and serving many clients in jurisdictions in which, to the Respondent s knowledge, he was not registered or approved; (b) failure to examine the totality of those activities with a view to identifying questionable or improper trading patterns, or clients of a dubious or unsavory nature or background; (c) failure to follow up on compliance queries or directives made to T or his assistant; (d) failure to share or circulate information among or coordinate the actions of compliance and management staff who were or should have been engaged in supervising T and his accounts; (e) failure to maintain adequate evidence of supervision by documenting inquiries made, responses received and action taken when specific concerns were identified; and (f) failure to prepare accurate or timely close supervision reports relating to his activities. 27. Although T s activities were to be under close supervision, the Respondents failed to effectively identify, record, or curtail the misconduct described in the preceding paragraph. 28. These failures of supervision were detrimental to the public interest, and therefore collectively constituted a violation of the Association s By-Law

7 (iv) Compliance at RCC in the Period In 2002 and again in 2004, Association Sales Compliance Staff carried out Sales Compliance Reviews ( SCR ) at RCC. The procedure generally involved a review of the report(s) of any previous Sales Compliance Review(s), followed by an on-site review, the perusal of related documentation, and interviews with individual officers and employees of the firm. Each SCR resulted in the preparation of a detailed report on the nature and quality of compliance activity observed at RCC. 30. The draft report of the 2004 SCR described, in detail, instances of problems in many areas of the sales compliance function at RCC. Many of the adverse findings in the report, including some characterized as significant (the most serious category in the Association s lexicon) were repeats of similar findings made in the course of the 2002 Sales Compliance Review at RCC. 31. In particular, the draft SCR report described instances of problems in the following subject areas: (a) Supervision of certain client account activity; (b) Adequacy of certain account documentation and classification of accounts; (c) Measures to deter money-laundering and potential terrorist activity; (d) (e) (f) (g) Supervision of options trading; Supervision of certain discretionary and managed accounts; Aspects of supervision of branch offices; and Controls in the Corporate Finance Department. 32. The observed failings frequently involved the accounts and activities of T. By January 2003, following the receipt at RCC of the draft report of the 2002 SCR, the firm s Chief Compliance Officer pointed out to management at RCC that T constituted a main risk to RCC and that T s trading was a main issue raised by the Association in its Sales Compliance Review process. 33. The observed failings in the subject areas noted above related directly to the regulatory requirements in effect at RCC, including various Association By-Laws, Regulations and Policies, requirements of the Ontario Securities Commission, and the Proceeds of Crime (Money-Laundering) and Terrorist Financing Regulations. 34. In addition to the failings already noted, there had been no annual report from RCC s Chief Compliance Officer to its Board of Directors on the status of compliance at 7

8 the company for any year from 2001 to 2003 (inclusive), as was required by By-Law Since no such report had been made, there was no formal review by the Board during this period of the status of compliance at the company, as was required by By-Law The failure by the Respondents to prevent or correct the sales compliance shortcomings noted in the 2002 and 2004 SCR was detrimental to the public interest, and was therefore a contravention of By-Law IV. MITIGATING FACTORS 36. Staff and the Respondents acknowledge and agree that the penalty proposed in this Settlement Agreement would have been significantly higher except for the following factors: (a) By June 2004, RCC had completed an extensive search process and hired an experienced individual as their Chief Compliance Officer. Further, subsequent to the delivery of the report of the 2004 SCR, the Respondent RCC, in consultation with the Association, retained a consulting expert in the field of sales compliance. The consultant evaluated RCC s compliance program and made detailed recommendations to RCC s Board of Directors with a view to addressing the issues identified in the SCR report. Those recommendations, as implemented by RCC, have resulted in substantial improvement in RCC s sales compliance performance. The cost of this initiative, in an amount in excess of $100,000, was borne by the respondent RCC; (b) The Respondents cooperated fully with Association Staff in their investigation of the matters giving rise to this Settlement Agreement; and (c) The Respondent Walsh has no history of previous disciplinary action by the Association. V. CONTRAVENTIONS 37. The Respondents admit the following contraventions of Association By-laws, Regulations, Rulings or Policies: Count 1 Conduct detrimental to the public interest, contrary to Association By-Law 29.1, in that between September 2001 and September 2004 they failed to ensure effective or adequate supervision by the appropriate officers or employees of the Registered Representative S.T. 8

9 Count 2 Conduct detrimental to the public interest, contrary to By-Law 29.1, in that between 2002 and June 2004, they failed to adequately address and correct compliance shortcomings identified by the Investment Dealers Association of Canada and to provide reasonable assurance that Association standards governing compliance and supervision were met. VI. TERMS OF SETTLEMENT 35. The Respondents agree to the following terms of settlement: Penalty: Costs: a global fine covering both counts in the amount of $160,000; and payment of $40,000 in respect of the Association s investigation and prosecution costs related to the matters which are the subject of this agreement. 36. The monetary penalty and costs imposed upon the Respondents are payable within ten days of acceptance of this Settlement Agreement by a Hearing Panel. AGREED TO by the Respondent Research Capital Corporation at the City of Toronto in the Province of Ontario, this day of, Witness for the Respondent RCC AGREED TO by the Respondent Patrick Gerald Walsh at the City of Toronto in the Province of Ontario, this day of, Witness Patrick Gerald Walsh 9

10 AGREED TO by the Association at the City of Toronto in the Province of Ontario, this day of, Witness C. Fred Blair on behalf of Staff of the Investment Dealers Association of Canada ACCEPTED this day of 2005, by the following Hearing Panel selected to review the Settlement Agreement: Per: Panel Chair Panel Member Panel Member 10