Amendments to Regulatory Regime for Distributions of Securities Outside of Canada
The Canadian Securities Administrators has recently adopted amendments to National Instrument 45-102 Resale of Securities and changes to Companion Policy 45-102CP to National Instrument 45-102 Resale of Securities.
Provided all necessary regulatory and ministerial approvals are obtained, it is anticipated that the Amendments will come into force on June 12, 2018. As such, the following is subject to any further changes which may be implemented prior to such approval.
The amendments introduce a new prospectus exemption for the resale of securities (and underlying securities) of a foreign issuer if the issuer is not a reporting issuer in any jurisdiction of Canada, and the resale is on an exchange or a market outside of Canada or to a person or company outside of Canada.
A foreign issuer is an issuer that is not incorporated or organized under the laws in Canada unless certain circumstances suggest that the issuer has more than a minimal connection to Canada (i.e., the issuer has a head office in Canada or the majority of it directors or executive officers ordinarily reside in Canada).
In Alberta, the new exemption in section 2.15 and the existing exemption in section 2.14 will be located in the Alberta Securities Commission Blanket Order 45-519 Prospectus Exemptions for Resale Outside Canada (ASC Blanket Order 45-519). This is a step towards providing overall consistency in the approach to cross-border trading for both primary distributions outside Canada and the resale of securities outside Canada.
Reason for Change
This change represents a modernization of the regulatory regime for the distributions of securities outside of Canada so that it permits Canadian issuers and investors to participate competitively in the global capital markets.
The policy rationale for the changes to section 2.14 and 2.15 is to provide an exemption for resales outside of Canada for the securities of an issuer with a minimal exemption to Canada.
The guiding principle for section 2.14 is that it is not necessary to restrict the resale of securities over a foreign market or to a person or company outside Canada if the issuer has a minimal connection to Canada and there is little or no likelihood of a market for the securities to develop in Canada. The purpose of the ownership conditions is to measure whether the issuer has a minimal connection to Canada.
Since NI 45-102 has come into effect, securities regulation and information accessibility has changed worldwide. Canadian investors are increasingly acquiring securities of foreign issuers to participate in global market growth by investing in a more diversified global portfolio. Foreign securities are acquired either through private placements or on foreign exchanges. Many foreign issuers, without connection to Canada, are finding they have exceeded the ownership conditions, including through Canadians purchasing their securities on foreign markets. Due to this, Canadian security holders of these foreign issuers would hold the securities for an indefinite period. As such, the section 2.15 was adopted to provided an alternative to the ownership condition assessing whether an issuer has a minimal connection to Canada. Section 2.15 provides that a security holder is exempted from the prospectus requirement for the resale of securities acquired under a prospectus exemption if the resale is on an exchange, or a market, outside of Canada or to a person or company outside of Canada and if the issuer of the securities is a foreign issuer. A foreign issuer is an issuer that is not incorporated or organized under the laws of Canada.
Hussein Ghandour is a 3rd year student at the University of Calgary's Faculty of Law.
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