New – Reporting Requirements for Prospectus Exemptions

Further amendments were made to the Prospectus Exemptions on July 7th 2016. The Ontario Securities Commission has introduced a new harmonized report of exempt distribution. The amendment aims to reduce reporting requirements for foreign issuers conducting offerings into Canada and creates a new reporting form (Form 45 -106F1). Previously, all issuers and underwriters were required to identify whether a purchaser is a registrant or an insider of the issuer. The amendment now excludes certain issuers from this reporting requirement. Those issuers who are (a) a foreign public issuer, (b) a wholly owned subsidiary of a foreign public issuer or (c) distributing eligible foreign securities only to permitted clients will not need to disclose whether a purchaser is a registrant or an insider of the issuer.

 

The amendment follows concerns expressed by foreign issuers and dealers conducting offerings into Canada about the reporting requirements. Following the amendment and relaxed reporting requirements offerings into Canada should appeal to foreign issuers and dealers.

 

If you have any questions or would like more information regarding the Exempt Market or Private Placement Exemptions, call or email Koby Smutylo at 613 869 5440 or koby@lawyercorporation.ca.

 

The Prospectus and Registration Exemptions can be found online here and links to amendments and announcements from the commission can be found here.

 

The Exempt Market provides four new ways to raise capital in Ontario

The Ontario Securities Commission (“OSC”) is adopting four new private placement exemptions:

• a crowdfunding exemption;
• an offering memorandum exemption;
• a family, friends and business associates exemption; and
• an exemption that allows a reporting issuer to issue securities to its existing security holders.

Crowd Funding Exemption

The emergence of crowdfunding as not only a viable but popular method to raise capital has induced to Commission to include a crowdfunding regime as a Prospectus Exemption. The crowdfunding regime will allow businesses to raise capital through a registered online portal. The portal will be registered with the securities regulatory authorities and allow businesses to raise up to $1.5 million during a 12 month period. The intention of the Commission is to develop crowdfunding as capital growth option for start-up and SMEs.

Investments must be made through a single registered crowdfunding portal and must be accompanied by a risk acknowledgement form. The limits imposed on investors taking advantage of the crowdfunding regime are as follows:

Investors who do not qualify as an accredited investor:
○ $2,500 per investment
○ In Ontario only, an annual limit of $10,000

Investors who qualify as an accredited investor:
○ $25,000 per investment
○ In Ontario only an annual limit of $50,000

A special limit applies to those who qualify as a permitted client, those who have net financial assets exceeding $5 million are not subject to any investment limits in Ontario only. The crowdfunding exemption will come into effect in Ontario on January 25, 2016.

Offering Memorandum Exemption

The offering memorandum exemption will allow businesses to raise capital on the basis that an offering memorandum is made available to investors. Operating under this exemption will exempt investors from the Prospectus Requirements. The offering memorandum exemption requires that a comprehensive disclosure document is delivered to investors at the point of sale and various reports are provided to investors, such as audited annual financial statements.

Investors who utilize this exemption are subject to investment limits. Non-eligible investors as defined by the Commission are limited to $10,000 in a 12 month period while eligible investors are limited to $30,000 in a 12 month period. Those eligible investors that receive advice from a portfolio manager, investment dealer or exempt market dealer that an investment above $30,000 is suitable may invest up to $100,000 in a 12 month period. Investors who wish to utilize this exemption must sign a risk acknowledgement form. The offering memorandum exemption came into force in Ontario on January 13th, 2016.

Family, Friends and Business Associates Exemption

The family, friends and close business associates exemption (“FFBA”) allows issuers to raise capital from a range of persons in close proximity to them. Those that fall under this exemption range from immediate family such as parents, spouses and siblings to close personal friends and affiliates. In Ontario, the issuer must obtain a risk acknowledgement form from those employing this exemption. It is worth noting that investment funds are unable to rely on the FFBA Exemption in Ontario. The FFBA exemption into force in Ontario on May 5, 2015.

Existing Security Holder Exemption

The existing security holder exemption allows for publicly listed companies on four Canadian exchanges to raise capital from existing investors on reliance of that company’s public disclosure record. Investors are limited to $15,000 per 12 months, however on advice from a portfolio manager, exempt market dealer or investment dealer can the limit can be removed. The existing security holder exemption came into force in Ontario on February 11th, 2015.

If you have any questions or would like more information regarding the Exempt Market or Private Placement Exemptions, call or email Koby Smutylo at 613 869 5440 or koby@lawyercorporation.ca.

The Prospectus and Registration Exemptions can be found online here and links to amendments and announcements from the commission can be found here.

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Crowdfunding in Canada

Crowdfunding is a high profile means of raising seed capital for start-ups.   Services such as kickstarter and indiegogo are frequently looked to by Canadian companies as potential funding vehicles.   Unfortunately, raising money by crowdfunding services such as these is not a viable option for most Canadian start-up businesses.   The reason being that the investment model of crowdfunding, sometimes referred to as “equity crowdfunding” – where funders provide money in exchange for equity or debt in the start-up company – violates Canadian securities laws.  On the other hand, the rewards model of crowdfunding, where funders provide seed money in exchange for a non-financial benefit, such as a pre-order of a new product or service like a watch or a phone app., do not generally violate Canadian securities laws.   In a nut shell, crowdfunding is only an option if your start-up business model lends itself to the rewards model of crowdfunding.

Canadian companies raising capital by issuing equity or debt to investors – regardless of whether the funding round is seed financing, angel investment or second round financing – must continue to comply with the capital raising prospectus exemptions available in their jurisdiction and the jurisdictions of their investors.   The most frequently relied upon exemptions being: accredited investor exemption, family, friends and business associates exemption, private issuer exemption and offering memorandum exemption.  These exemptions are available only if the company seeking the investment and the investor fit squarely within the capital raising exemption criteria.

There is reason to be optimistic that some form of equity crowdfunding will eventually be permitted in Ontario.    The Ontario Securities Commission (OSC) is reviewing the rules regulating equity and debt financing in Ontario and this review includes the consideration of the adoption of a prospectus exemption to permit crowdfunding.   Essentially, Ontario is following the Jumpstart Our Business Startups Act (the JOBS Act)  recently enacted by the U.S. Congress in April 2012, which will allow non-accredited or non-sophisticated investors to buy small equity stakes in companies without going through the costly process of preparing and filing a prospectus.   (The JOBS Act is currently waiting on more detailed rulemaking by the SEC).   However, such optimism should be tempered because even if the OSC does eventually adopt an equity crowdfunding prospectus exemption, unless other provinces in Canada adopt a similar exemption, it will only help companies in Ontario raise seed financing from investors in Ontario.

For more information, give us a call or send us an email.

Phone: 613 869 5440
Email: koby@lawyercorporation.ca

Why is an Offering Memorandum rarely used to raise money in Ontario?

An “offering memorandum” (“OM”) is a disclosure document intended to provide investors with the ability to make an informed investment decision.

A client recently approached us wanting to use an offering memorandum to raise money in Ontario.  Our advice was to suggest the company use a term sheet, which is a bare bones description of the financing and use of proceeds, and a subscription agreement and not to use an offering memorandum.  Here’s why:

First, all Canadian provinces except Ontario have an “offering memorandum” prospectus exemption.   In Ontario, a company can provide its potential investors with an offering memorandum, but there is no offering memorandum exemption.  Even if the company prepares and provides investors with an offering memorandum, the client would need to rely on  prospectus exemption to offer and sell its securities – typically, the “accredited investor” exemption.

Generally, for individual investors to qualify as an accredited investor, the individual must be:

  • an individual who, either alone or with a spouse, beneficially owns financial assets having an aggregate realizable value that before taxes, but net of any related liabilities, exceeds $1 000 000,
  • an individual whose net income before taxes exceeded $200 000 in each of the 2 most recent calendar years or whose net income before taxes combined with that of a spouse exceeded $300 000 in each of the 2 most recent calendar years and who, in either case, reasonably expects to exceed that net income level in the current calendar year, Unofficial consolidation for financial years beginning on or after January 1, 2011,
  • an individual who, either alone or with a spouse, has net assets of at least $5 000 000.

Second, although the level of disclosure in an OM is less than that required in a prospectus offering, preparing an OM is onerous.  The format and contents of the offering are set out in Form 45-106F3.  As the April 26, 2012, Canadian Securities Administrators’ guidance demonstrates, the expectations are high for an issuer’s disclosure included in an offering memorandum.  See Form 45-106F3 and also see Multilateral CSA Staff Notice 45-309 Guidance for Preparing and Filing an Offering Memorandum under National Instrument 45-106 Prospectus and Registration Exemptions; and CSA Staff Notice 45-308 Guidance for Preparing and Filing Reports of Exempt Distribution under National Instrument 45-106 Prospectus and Registration Exemptions.

Third, under the offering memorandum exemption, subscribers in Manitoba, New Brunswick, Newfoundland and Labrador, Nova Scotia, Ontario, Prince Edward Island and Saskatchewan have statutory rights of action that must be described in the offering memorandum distributed to them. Subscribers in Alberta, British Columbia, and Québec will be entitled to contractual rights of action for damages or rescission similar to the statutory rights provided to purchasers in Ontario.  These rights are in addition to, and do not derogate from, any other right or remedy that purchasers may have at law.

Section 5.2 of Ontario Securities Commission Rule 45-501 – Ontario Prospectus and Registration Exemptions provides such investors who purchase securities offered by an OM with a statutory right of action against the issuer of securities for rescission or damages in the event that the offering memorandum and any amendment to it contains a “misrepresentation”. The term misrepresentation” is defined to mean an untrue statement of a material fact or an omission to state a material fact that is required to be stated or that is necessary to make any statement not misleading in the light of the circumstances in which it was made. These remedies, or notice with respect to these remedies, must be exercised or delivered, as the case may be, by the purchaser within the time limits prescribed by applicable securities laws.  If the purchaser elects to exercise the right of rescission, he must do so not more than 180 days after the date of the transaction; or, in the case of any action other than an action for rescission, the earlier of: (i) 180 days after the plaintiff first had knowledge of the facts giving rise to the cause of action, or (ii) three years after the date of the transaction that gave rise to the cause of action.

 

The bottom line for clients is that preparing an offering memorandum is costly and increases their liability exposure and they will still need to rely on another prospectus exemption if they wish to accept investment from Ontario residents.  

 

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