– *updated August 30, 2015 –
Pssst…want to offer your securities to the largest number of people possible in Canada without filing a prospectus? Want control and certainty over what information prospective investors are relying on when purchasing securities of your company? Want a simplified one page subscription agreement with no investor questionnaire? Look no further then the offering memorandum exemption in National Instrument 45-106 Prospectus and Registration Exemptions (“NI 45-106”). The offering memorandum exemption is available in all jurisdictions across Canada except Ontario.
Yes, I know Ontario is a big market but apparently the Ontario Securities Commission does not believe its residents are as advanced as the residents in the rest of Canada in assessing opportunities set out in an offering memorandum. You can use an offering memorandum in Ontario but there is no offering memorandum exemption in Ontario. You must instead rely on a registration and prospectus exemption that is recognized in Ontario to sell securities to Ontario residents. The exclusion of Ontario is a small hiccup but still does not take away from the usefulness of the offering memorandum exemption. After all Ontario is not the center of the universe or Canada.
In part three of this three part series, I will discuss the offering memorandum exemption. First I will discuss the form an offering memorandum is required to take if an issuer wants to rely on the offering memorandum exemption. I will then cover a few of the provincial differences that seem to trip up issuers and sometimes even their legal counsel. In closing I will discuss offering memorandum hot spots and how to stay away from trouble when putting together an offering memorandum.
Form is everything.
The offering memorandum exemption in NI 45-106 allows an issuer to sell its securities to anyone, regardless of their relationship, wealth or a minimum value of securities being purchased. Preparing an offering memorandum requires a bit more input by management and its professional advisors to put together than just a subscription agreement and investor questionnaire (which is the main reason why issuers are reluctant to use the offering memorandum exemption). The added time and associated cost however can be well worth the effort, particularly when an issuer is looking to raise over $100,000.
In Canada an offering memorandum is required to be prepared and delivered in the required form to prospective investors. There are two versions of the required form: (1) is for qualifying issuers (Form 45-106F3); and (2) the other is for non-qualifying issuers (Form 45-106F2). Qualifying issuers are issuers listed on the TSX or TSX Venture Exchange. Non-qualifying issuers are all other issuers. The form for qualifying issuers allows certain information that is already posted on SEDAR to be incorporated by reference into the offering memorandum.
The disclosure required in an offering memorandum is much less than that required in a prospectus. A Canadian offering memorandum in the required form includes the following sections:
- Item 1: Use of Available Funds (as set out in tables in form);
- Item 2: Description of Business (no more than 2-15 pages);
- Item 3: Interests of Directors, Management, Promoters and Principal Holders (as set out in tables in form);
- Item 4: Capital Structure (as set out in tables in form);
- Item 5: Securities Offered (very basic description required);
- Item 6: Income Tax Consequences and RRSP Eligibility (simplified disclosure other than for flow-through shares or special income tax vehicle securities);
- Item 7: Compensation Paid to Sellers and Finders (basic disclosure – cannot pay finder’s fee in Northwest Territories, Nunavut, Saskatchewan and Yukon);
- Item 8: Risk Factors (no more than 2 pages);
- Item 9: Reporting Obligations (very basic description required);
- Item 10: Resale Restrictions (text required as set out in section);
- Item 11: Purchasers’ Rights (2 day cancellation right as set out in section and statutory and contractual right of action disclosure as required by each province securities are offered);
- Item 12: Financial Statements (audited annual*; unaudited interim);
- Item 13: Date and Certificate (certificate as of date of offering memorandum stating no misrepresentation in document); and
- Risk Acknowledgement Form (to be signed by all investors).
* Note: Certain provinces have also provided for exemptive relief allowing non-reporting issuers raising $500,000 or less to include unaudited versus audited financial statements in their offering memorandum, subject to certain terms and conditions.
Much of the information required in an offering memorandum is set-up in tables and can be pulled from an issuer’s business plan, corporate record book and financial statements. The disclosure sections are meant to be short and concise with sufficient information to allow investors to make an informed investment decision about the issuer and its business. United States and other foreign issuers often use what is called an offering memorandum wrap which references where in a prospectus filed in their home jurisdiction Canadian private placement investors can find the information required in a Form 45-106F2 offering memorandum.
Instructions on completing each form are included behind the basic form template provided by the regulators. Mining development and exploration companies need to file Form 43-101 technical report as required by subsection 4.2(1)(d) of National Instrument 43-101 Standards of Disclosure for Mineral Projects to support any scientific or technical information describing a mineral project on a property disclosed in an offering memorandum. Similarly, oil and gas issuers must ensure information they include about their oil and gas activities in their offering memorandum conforms to National Instrument 51-101 Standards of Disclosure for Oil and Gas Activities.
The offering memorandum, and if applicable the Form 43-101 technical report, is required to be filed at the same time as the first Form 45-106F1 Report of Exempt Distribution or Form 45-106F6 Report of Exempt Distribution (BC report format) is filed (10 days aft er the accepting the first subscription). The offering memorandum only needs to be filed the first time unless it is updated. If a material change occurs in the business of the issuer after delivery of an offering memorandum to a potential investor, the issuer must give the potential investor an update to the offering memorandum with a newly signed certificate before the issuer accepts an agreement to purchase securities.
Issuers who fail to prepare and file their offering memorandum in the required form can be expected to be cease traded (see: Comstock Energy Inc. (Re), 2014 BCSECCOM 390; Howard Bond Corp., Re, 2013 ABASC 407; Howard Land Corp., Re, 2013 ABASC 408; Falls Capital Corp (Re), 2013 BCSECCOM 220; Opes Joint Venture, Re, 2013 ABASC 77; DeLaet, Re, 2013 ABASC 42; Shire International Real Estate Investments Ltd., Re, 2011 ABASC 608; ReSol Securities Inc., Re, 2011 ABASC 572; Standard Resources Fund, Re, 2011 ABASC 498; Rogers Oil & Gas Inc., Re, 2011 ABASC 453; Cleanviro Limited Partnership (Re), 2011 BCSECCOM 291; Edgeworth Properties – Ellerslie Ridge Inc (Re), 2011 BCSECCOM 256; Evolution Fund (Re), 2010 BCSECCOM 643; Peace Summit Technologies (VCC) Inc. (11/05/2010); GDC Investments Inc. (08/31/2010); Turkanda Coal Corp. (08/26/2010); Living Forest One Limited Partnership (08/17/2010); ACIC Marketing Limited Partnership (08/12/2010); Pioneer West Mortgage Investment Corporation (07/20/2010); All Canadian Investment Corporation (07/13/2010); Western Liquid Funding Limited Partnership (04/30/2010); Antrim Balanced Mortgage Fund Ltd. (04/13/2010); Kensington Realfund Corporation (03/03/2010); Eagle Peak Resources Inc. (02/15/2010); Metal Mountain Resources Inc. (02/16/2010); Black Sand Equity Management Ltd. (12/30/2009); Bridgeport Capital Inc. (09/14/2006); Automoney Financial Corporation (10/22/2008); and Canadian Rockport Homes Int’l, Inc. (12/31/2008) or find themselves and/or their management with regulatory bans and penalties (see: Lathigee (Re), 2015 BCSECCOM 78, Cinnabar Explorations Inc (Re), 2014 BCSECCOM 26; Black Gold Resources Ltd (Re),2014 BCSECCOM 197; Saafnet Canada Inc (Re), 2014 BCSECCOM 96; Kirkham, Re, 2013 ABASC 429; Cinnabar Explorations Inc (Re), 2013 BCSECCOM 361; Gregory Clark Carrington (02/07/2011); and China Dragon Fund Ltd, et al. (07/04/2007).
Issuers may also be required to refund investors funds received and may face civil action in addition to regulatory action in Canada (see: Fiorillo v. Krispy Kreme Doughnuts Inc., 2009 CanLII 29902 (ON S.C.). Sections in the form are not optional items. Each section of the required form must be included and all tables and required statements must be set out exactly as in the form.
The only offering memorandum format or template issuers should be following in Canada are those set-out in Form 45-106F2 and Form 45-106F3 of NI 45-106. Unfortunately, some issuers we have talked to have cited a couple of Ontario based law firm articles online which state there is no required form for an offering memorandum. When checking these articles it is obvious the authors are referring to Ontario only. It is a correct statement that there is no required form for an offering memorandum in Ontario as Ontario does not recognize the offering memorandum exemption. If, however, an issuer wants to rely on the offering memorandum exemption in any other province or territory in Canada the offering memorandum must be in the required form.
Keep in mind issuers can rely on different exemptions in different jurisdictions. For instance, an issuer may rely on the offering memorandum in British Columbia and the accredited investor exemption in Ontario. The British Columbia resident investor would receive the offering memorandum, one page subscription agreement and risk acknowledgement. The Ontario resident would receive the offering memorandum, traditional long form subscription agreement, investor questionnaire, certificate and accredited investor verification request form. The offering memorandum in both instances should be identical and in the required form under NI 45-106F1. The issuer would file the offering memorandum in both provinces at the same time as filing its Form 45-106F1 Report of Exempt Distribution (Form 45-106F6 Report of Exempt Distribution).
The foregoing covers 99% of all issuers relying on the offering memorandum exemption. Issuers should be aware that British Columbia requires a different offering memorandum form be used for syndicated mortgages (BC Form 45-901F) and real estate securities (BC Form 45-906F). Alberta also requires a different offering memorandum form be used for real estate securities (Alberta Form 45-509F). Manitoba also has a Made in Manitoba private placement exemption (section 91(b) of the Manitoba Securities Regulation) for sales to related purchasers and no more than 50 sophisticated purchasers in all jurisdictions which requires a different offering memorandum be used (MB Form 26). Issuers in these categories should check the corresponding policy statement in each jurisdiction they intend to offer securities before preparing one of these alternate offering memorandums.
Provincial differences in using the offering memorandum exemption.
British Columbia, New Brunswick, Nova Scotia and Newfoundland and Labrador have adopted a basic version of the offering memorandum exemption (“Basic OM”) while Alberta, Saskatchewan, Manitoba, Québec, Prince Edward Island, Northwest Territories, Nunavut and Yukon have adopted a slightly enhanced version of the exemption (“Enhanced OM”). Ontario, as mentioned previously, does not recognize the offering memorandum exemption.
The Basic OM requirements are that (1) the investor purchases the securities offered as principal; (2) that the issuer deliver the offering memorandum in the required form to the investor prior to the subscription agreement being signed; and (3) that the issuer obtain a signed risk acknowledgment from the investor.
The Enhanced OM in addition to the Basic OM requirements restricts the acquisition cost of an investor to $10,000 or less unless the investor is an “eligible investor” as defined in NI 45-106. An eligible investor is not subject to a maximum investment cap. The eligible investor, however, must not have been created solely for the purpose of investing under the offering memorandum. Also, if the issuer is an investment fund, the investment fund is required be a non-redeemable investment fund, or a mutual fund that is a reporting issuer.
In addition to the Enhanced OM requirements Northwest Territories, Nunavut and Yukon do not allow any commissions or finder’s fees to be paid to any person, other than to a registered dealer, in connection with the offering memorandum exemption. Saskatchewan had a similar ban until March 23, 2010 when it adopted General Order 45-919 ** removing this limitation. This provision is taken very seriously by the regulators that have it in place and can result in an immediate cease trade order. (see: Sitefinders Capital 9 Corporation (02/16/2010); 20/20 Diversified Income Trust (10/27/2009); Edgeworth Mortgage Investment Corporation (02/16/2010); Fisgard Capital Corporation (03/08/2010); and Investicare Seniors Housing Corp. (01/27/2010).
Surprisingly, other than the no commission or finder’s fee ban, the additional provisions of the Enhanced OM have caused few if any regulatory actions on their own.
Hot spots and reoccurring problem areas.
The Corporate Finance Branch of the Saskatchewan Financial Services Commission’s Securities Division publishes its review findings of offering memorandums filed in Saskatchewan. They have identified several hot spots and reoccurring problem areas in offering memorandums. Frankly, I found it disheartening to read that almost all offering memorandums filed in Saskatchewan were non-compliant. A good portion of these offering memorandums must have had some input by legal professionals, but obviously not enough input to make a real difference. Here is a quick list of what to check before filing your offering memorandum (“OM”) as based on the Saskatchewan Securities Divisions findings:
|Problem Areas||Remedy and Check|
|Attachments to the OM||
OM with projections on business and financial assumptions that were not considered reasonable under the circumstances. Canadian Rockport Homes Int’l Inc.; Malone, William; and Riis, Nelson (BC); Failure to disclose financial condition: Michael Patrick Lathigee and Earle Douglas Pasquill, FIC Real Estate Projects Ltd., FIC Foreclosure Fund Ltd., WBIC Canada Ltd.
|Stale Dated OM||
|Use of Proceeds||
OM with fraudulent misrepresentations: Ali, Cem; Horizon FX Investments Limited Partnership, Horizon FX Investments Incorporated; and HFX Management Services Inc. (BC); Misleading or deficient OM: Arbour Energy Inc., Dennis Morice, Heinz Weis, Arthur Wigmore, Milowe Brost, The Institute For Financial Learning, Group of Companies Inc., – Merendon Mining Corporation Ltd. and Gary Sorenson.
Voluntary pre-offering filings and reviews.
Offering memorandums are not required to be pre-filed in any province or territory in Canada. In general, the first look a securities regulator takes at an offering memorandum or its corresponding Form 43-101 technical report is when these documents are filed with an issuer’s first Form 45-106F1 Report of Exempt Distribution (or Form 45-106F6 Report of Exempt Distribution) after the first sale of securities. Securities regulators go through a two check process when reviewing these documents. This first check review is a relatively quick look to make sure the offering memorandum, and if applicable technical report, are in the required form, all sections have been addressed, the certificates are in order and properly signed, and that the issuer has provided the regulator with the correct filing fee. The second check review is detail oriented and deliberate. The regulators on this go round look at the substance of the information provided by an issuer. If the offering memorandum or technical report is found to be deficient the regulator may issue a letter requesting the deficiency be addressed and that the investors receive an updated document. If the deficiencies are deemed significant the securities of the issuer may be cease traded until an amended offering memorandum and or technical report in compliance with the rules has been filed. If the deficiencies are deemed serious or there is a suggestion of fraud or an intentional misrepresentation the file is elevated to enforcement to handle.
Only two jurisdictions in Canada currently allows issuers to pre-file their offering memorandum to confirm if it is in compliance with the securities rules as viewed by that regulator. Issuers, resident in Saskatchewan and New Brunswick, may file a draft offering memorandum with staff of the Corporate Finance Branch of the Saskatchewan Financial Services Commission’s Securities Division or the New Brunswick Financial and Consumer Services Commission’s Securities Division respectively. Securities Division staff will review the draft document and return comments on how to improve the offering memorandum for compliance purposes. It is something for issuers to seriously consider in order to avoid any potential embarrassment of having to re-file an offering memorandum due to deficiencies.
I should also mention in that in 2011, the New Brunswick Financial and Consumer Services Commission’s Securities Division launched its online OM Tool to assist issuers in creating an offering memorandum. It is a PDF template and not as useful as I would have hoped it would be for issuers, but there is a lot of useful material on the New Brunswick Securities Commissions website for all issuers considering an exempt offering of their securities.
The offering memorandum exemption is a terrific way for issuers to expand their horizon as to who they may approach to invest in their business. As an issuer you will avoid unnecessary regulatory problems if you carefully follow the required form and related instructions that apply to you as either a non-qualifying issuer or qualifying issuer. The key is to keep the information factual and only include statements you can back-up or can prove are reasonable.
If you plan to go it alone in preparing your offering memorandum, you should consider conducting your own internal due diligence review of your company prior to putting your document together. If you engage legal counsel it is likely they will make such a review mandatory. The reason I recommend a due diligence review is to make sure you don’t inadvertently miss something. It is why lawyers and auditors insist on a due diligence review when drafting a major disclosure document.
I also recommend you use an offering memorandum checklist to confirm you have addressed each section or that an item is not applicable to you. Using the wrong form or missing a required section is the number one reason issuers get in trouble with regulators when using the offering memorandum exemption (excluding those issuers who are involved in blatant fraud).
You may also want to consider using a lawyer to prepare your offering memorandum or at a minimum have a lawyer review the documents you have prepared. Alternatively, if you choose to forego getting a lawyer involved, and you are an issuer resident in Saskatchewan or New Brunswick, you should seriously consider requesting a pre-filing review of your offering memorandum with the respective securities commission in those provinces. The Corporate Finance Branch of the Saskatchewan Financial Services Commission’s Securities Division charges $500 for this service. There is no cost to have the New Brunswick Financial and Consumer Services Commission’s Securities Division review your offering memorandum.
This ends our three part series entitled Anyone With Money is a Friend of Mine: Traps to Avoid When Raising Private Capital. I hope you found the series useful or at a minimum informative.
Links to the other articles in this series:
- Anyone with Money is a Friend of Mine: Introduction;
- Part One: Relying on the “Close Personal Friend” and “Close Business Associate” Exemptions to Raise Private Placement Capital; and
- Part Two: Relying on the “Accredited Investor” Exemption to Raise Private Placement Capital.
Other Articles You May Find of Interest:
- The Definition of Eligible Investor in Canada - Aug 27, 2015
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DisclaimerThe articles on this website are not intended to create, and do not create, an attorney-client relationship. You should not act or rely on information on this website without first seeking the advice of a lawyer. This material is intended for general information purposes only and does not constitute legal advice. You are advised to contact legal counsel prior to undertaking any securities transaction. Laws change and there are subtle nuances to the rules that may apply in your particular circumstance.