Dentons | November 24, 2015

On November 5, 2015, securities regulators in five provinces published in final form Multilateral Instrument 45-108 Crowdfunding (MI 45-108) setting out rules that will provide a new way for businesses to raise capital over the internet. The rules are aimed at facilitating small investments made through online portals, a practice that has become known as “equity crowdfunding”. The regulators anticipate that the regime will be of greatest use to small- and medium-sized businesses, including both reporting and non-reporting issuers.

The five provinces that are implementing the new rules are Manitoba, Ontario, Québec, New Brunswick and Nova Scotia, and are referred to herein as the “participating provinces”. The planned effective date is January 25, 2016.

Background

Any offering of securities must either be qualified by a prospectus or be exempt from the prospectus requirement. In addition, if the offering involves an intermediary—such as a broker or a dealer—that intermediary must either be registered in such capacity or be exempt from the requirement to register.

Related: Regulators including OSC Publish Crowdfunding Exemption and Registration Framework for Funding Portals

MI 45-108 introduces a prospectus exemption for equity crowdfunding in the participating provinces, subject to a number of conditions. There is no associated registration exemption, which means that any funding portal involved in an offering under the exemption must be registered. The MI 45-108 prospectus exemption will be available to both reporting and non-reporting issuers or, in non-technical parlance, to businesses both public and private.

The MI 45-108 prospectus exemption should be considered in light of the “Start-Up Crowdfunding Exemption” implemented by six provinces in May of this year, as described in a previous Insight. Those provinces—being British Columbia, Saskatchewan, Manitoba, Québec, New Brunswick and Nova Scotia—adopted exemptions from the prospectus and registration requirements for equity crowdfunding transactions to supplement other prospectus exemptions currently used by online platforms in Canada, such as the accredited investor exemption.¹ In contrast to the crowdfunding prospectus exemption under MI 45-108, the Start-Up Crowdfunding Exemption is available only to non-reporting issuers. The interplay between the MI 45-108 prospectus exemption and the Start-Up Crowdfunding Exemption is discussed further below.

Details of the MI 45-108 prospectus exemption

The principal conditions of the MI 45-108 prospectus exemption are summarized below.

Investment limits

The limits on investment under the MI 45-108 prospectus exemption focus on both investors and issuers. Investors will be limited to $2,500 per investment and, in Ontario, $10,000 per calendar year (all figures CA$), unless they satisfy certain asset and income tests. Those that meet such tests and are therefore considered “accredited investors” may invest up to $25,000 per investment and, in Ontario, $50,000 per calendar year. In Ontario, investors who meet even higher thresholds—qualifying them as “permitted clients”—are not subject to an investment limit.

Related: The Real Data on Equity Crowdfunding Performance

An issuer, together with any other person in the “issuer group,” can raise a maximum of $1.5 million per 12-month period. “Issuer group” includes affiliates of the issuer.

Documentation requirements

Issuers using the MI 45-108 prospectus exemption must provide investors with an offering document containing prescribed information about the issuer and the offering including, among other things:

1. Financial statements, which must be audited if the issuer has completed a financial year; and
2. A statement that investors will be able to rescind their investment or sue for damages in the event of a misstatement in the offering document or other materials associated with the investment.

Investors will be required to sign a form acknowledging that the investment is risky.

Advertising and solicitation

An issuer using the MI 45-108 prospectus exemption must not advertise a distribution of securities, though it may inform prospective purchasers of its intention to distribute securities and refer the person to the applicable funding portal.

Continuous disclosure

After completing a distribution under the MI 45-108 prospectus exemption, issuers will have to continue to provide investors with certain information about the business. Reporting issuers must observe their existing disclosure obligations. Non-reporting issuers will have to make annual financial statements “reasonably available” to investors within 120 days of the issuer’s year-end, together with a description of the use of proceeds.² In Ontario, New Brunswick and Nova Scotia, a non-reporting issuer will also have to notify investors of certain issuer events, namely a discontinuation of its business, a change of its industry or a change of control.

Requirements for funding portals

A distribution under the MI 45-108 prospectus exemption must be made through a single funding portal, which must be registered as a dealer.³ The offering document and any other permitted materials must be posted only on that portal’s online platform.

Funding portals are subject to a number of requirements, including those applicable to other registered dealers. Other rules include a prohibition on advertising or general solicitation of investors; a requirement to conduct certain background checks on the issuer and its key individuals; and an obligation to terminate a distribution if it appears that the business of the issuer is not being “conducted with integrity”.

Other conditions

The MI 45-108 prospectus exemption is available only to issuers incorporated or organized in Canada, and having their head office and a majority of directors located in Canada. In addition, if the issuer has a principal operating subsidiary it must be incorporated or organized in Canada or the United States. The exemption is not available to investment funds, it cannot be used to offer complex securities, and proceeds of a distribution may not be expended to invest in, merge with or acquire an unspecified business. Issuers must maintain certain records for a period of eight years following the distribution.

Impact of the MI 45-108 prospectus exemption

The conditions to the MI 45-108 prospectus exemption, summarized above, are fairly onerous, particularly in light of the applicable investment limits. As such, there is uncertainty as to whether this exemption will be used with any frequency. In order to gauge its popularity, however, two other recent developments in securities law should be borne in mind.

The first is that, as noted above, the MI 45-108 prospectus exemption complements the Start-Up Crowdfunding Exemption in all participating provinces but Ontario. As such, non-reporting issuers may conduct a distribution under both exemptions in Manitoba, Québec, New Brunswick and Nova Scotia; a concurrent distribution in Saskatchewan and British Columbia under the Start-Up Crowdfunding Exemption; and another concurrent distribution in Ontario under the MI 45-108 prospectus exemption, assuming all conditions are satisfied. The investment limits under the Start-Up Crowdfunding Exemption are also low, at $1,500 per investor and $250,000 in aggregate, but the addition of those amounts may increase the viability of a distribution under the MI 45-108 prospectus exemption.

View: ASC and Nunavut Securities Office Publish Proposed Start-up Business Exemption for Comment

The other relevant development relates to the offering memorandum prospectus exemption, which has recently been adopted in Ontario and amended in several other provinces, as described in our recent Insight. The obligations of an issuer under that exemption are roughly similar to the obligations under the MI 45-108 prospectus exemption, while the investment limits are considerably higher. In addition, the offering memorandum exemption applies across Canada, if with some variation. Those facts may compel issuers interested in raising funds from the “crowd” to conduct offerings by way of the offering memorandum exemption, rather than the exemptions that are specifically designed for equity crowdfunding.

References
¹ Alberta and Nunavut recently published for comment a separate proposed prospectus exemption for equity crowdfunding, as described in another recent Insight. Saskatchewan has published the MI 45-108 prospectus exemption for comment.
² The notice of use of proceeds need not be provided in any year after the proceeds of a financing under the MI 45-108 prospectus exemption have been fully expended and investors have been notified of the use of proceeds.
³ The applicable categories of registration are investment dealer, exempt market dealer and restricted dealer, although a firm registered as a restricted dealer may not be registered in any other category and, in Ontario, may not be affiliated with another registered firm.

This article was co-authored by Daniel McElroy, Knowledge Management Lawyer in Dentons’ Vancouver office.

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Hear Dentons speak about Compliance with Equity Crowdfunding Regulations at our Calgary Crowdfunding Bootcamp on Thursday, Dec. 3

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