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> Offering Memorandum: Senior Notes & Bonds (an Extract)
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Corporate NewsOffering Memorandums in Ontario - the New Prospectus Exemption
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Will the New Offering Memorandum Prospectus Exemption have an Impact?
On January 16, 2016, Ontario adopted a new “Offering Memorandum” Prospectus Exemption to permit companies (other than investment funds) to raise capital by issuing securities without a prospectus provided that they issue an Offering Memorandum in prescribed form and comply with the requirements of the exemption.
Overview of the Offering Memorandum Exemption
This new exemption brings Ontario substantially in line with Alberta, Quebec, Saskatchewan, New Brunswick and Nova Scotia, and will considerably facilitate small to medium sized companies raising capital in these provinces.& Unlike other prospectus exemptions widely used by small to medium businesses, the Offering Memorandum Exemption does not have any ceiling on the amount which can be raised, and it can be used to raise capital from investors who have no relationship to the business (unlike the “founders, friends and business associates” exemption), and does not require investors to satisfy certain criteria (such as the “accredited investor” exemption).
Investor Limitations
However, as part of the investor protection aspects which accompany the introduction of the exemption, the exemption is not without limits on investors.
First, investors who are ineligible investors cannot invest more that $10,000 under the Offering Memorandum in any 12 month period. This limit increases to $30,000 in any 12 month period for eligible investors. There is an exception for eligible investors to permit investments up to $100,000 in a 12 month period if he or she receives advice from a portfolio manager, investment dealer or exempt market dealer confirming that the investments in excess of $30,000 are suitable for the person.
Second, investors have to sign a Risk Acknowledgement in a prescribed form which also confirms they are within the above investment limits.
Issue Limitations and Requirements
Issuers who want to raise capital in Ontario (and the other participating provinces) have to comply with a number of requirements:
The Offering Memorandum must be in the prescribed form and include among other things audited financial statements.
Marketing materials used with prospective investors are deemed to be part of the Offering Memorandum.
Although the prescribed form of Offering Memorandum requires disclosure of how the proceeds are intended to be used, investors must be given notice after the offering is complete as to how the proceeds of the offering were actually used.
Audited financial statements must be made available to investors each year after the issuance of shares under the exemption.
A mandatory notice to investors if the issuer discontinues the business, changes the industry in which it carries on business, or there is a change in control of the issuer.
Preliminary Assessment of the Offering Memorandum Exemption
My personal view is that this prospectus exemption will not be widely adopted, and that companies seeking to raise capital will continue to rely on other existing exemptions, especially the “accredited investor” exemption. Some of the reasons underlying this view are the following:
Investor Limits:& Although there is no limit on how much money can be raised by an issuer with this exemption, the investor limits (described below) are a significant practical limitation on the total amounts which companies will be able to raise.
Expense:&& Preparation of the Offering Memorandum will be a material expense, and in many cases will be a significant percentage of the proceeds which issuers will be able to raise.
Liability:& The Offering Memorandum document creates significant liability for issuers and their directors and officers for misrepresentation, especially in this era of availability of class actions on behalf of investors.
Audited Statements:& The auditing of annual financial statements is often a significant expense for companies desperately seeking capital, whether to grow or just keep the dream alive.& In my experience, the vast majority won’t have audited statements when contemplating a capital raise with this exemption, and therefore the requirement to get them audited will be an additional substantial expense of the offering.& In addition, most entrepreneurs behind small to medium business perceive little benefit from the expense of an audit every year, which becomes mandatory if this Offering Memorandum exemption is used.
& Offering Memorandums have& always been a part of the capital market scene for small to medium business in Ontario, but they were not an exception to the requirement of a prospectus.& Given that there was no exemption, the potential liability which rides with an Offering Memorandum and the gradual introduction or reform of prospectus exemptions over the years which do not require disclosure documentation,& Offering Memorandums have been uncommonly used in Ontario in recent years to market the issuance of securities.
“Eligible” investors& are individuals who have: (A) net assets, alone or with a spouse, totalling $400,000 or (B) net income during the two preceding calendar years of more than $75,000 or more than $125,000 combined with a spouse, and these income thresholds are reasonably expected to be exceeded in the current calendar year.
&For more information please contact& by phone at (416) 368-0600 or by email at& .Looking for more of the latest headlines on LinkedIn?Ligia Mangra,
Content Writer at Squirrly There’s a lot of rumor that crowdfunding might be either making fundraising become extinct or improving it by taking&
By Brian Koscak, CrowdFunding Beat guest contributor, How to Raise Money for Start-Ups, Early Stage Enterprises, Charities and Non-Profits Late&
By Brian Koscak and Alixe Cormick
The term “offering memorandum” has two meanings under securities laws in Canada. In Canadian jurisdictions other than Ontario, an offering memorandum is a document prepared in the prescribed form under
(NI 45-106 OM) to enable an issuer to rely on the offering memorandum exemption set out in section 2.9 of NI 45-106 (the OM exemption).
This OM exemption is available in every province and territory in Canada except for Ontario.
In Ontario, an offering memorandum is defined under section 1(1) of the Ontario
“a document, together with any amendments to that document, purporting to describe the business and affairs of an issuer that has been prepared primarily for delivery to and review by a prospective purchaser so as to assist the prospective purchaser to make an investment decision in respect of securities being sold in a distribution to which section 53 [of the Act] would apply but for the availability of one or more of the exemptions contained in Ontario securities law, but does not include a document setting out current information about an issuer for the benefit of a prospective purchaser familiar with the issuer through prior investment or business contacts.” (emphasis added)
There is no prescribed form for an offering memorandum in Ontario (the Ontario OM).
There is also no private placement exemption associated with an Ontario OM unlike a NI 45-106 OM.
People often confuse using an “offering memorandum” when raising capital in Ontario with the OM exemption under NI 45-106.
An Ontario OM and NI 45-106 OM are very different in form and purpose.
This article explores what is an Ontario OM, Ontario OM regulatory requirements and how the Ontario OM relates to the OM exemption.
What is an Ontario OM?
As defined above,
an Ontario OM captures a wide variety of written offering materials that may not immediately be considered an offering memorandum by the average person.
For something to be considered an Ontario OM, it must have the following three elements:
It must be a document – Only documents are considered offering memorandums in Ontario. An Ontario OM may be a print or electronic document, and include a power-point presentation, on-line web material, an email or a document in any other written form.
Note: Oral statements are not considered an Ontario OM, however, a written transcript of an oral statement or video could be construed as an OM.
It must describe the business and affairs of the issuer – Any document that describes the business and affairs of the issuer may be considered on Ontario OM
It must have been “primarily prepared” for the purpose to sell the issuer’s securities – Only documents “primarily prepared” in contemplation of soliciting an investment from a prospective investor will be considered an Ontario OM.
Documents such as green sheets, term sheets (see exception below), investor presentations, investment summaries and private placement or offering memoranda, including NI 45-106 OMs (if provided to Ontario investors in reliance on another prospectus exemption), are considered Ontario OMs.
What the document is called is irrelevant. Note: Product sales brochures, technical reports, internal reports etc., if primarily prepared for other purposes, are generally not considered an Ontario OM as these materials are primarily prepared to sell product or advance the business of the company.
Documents not considered an Ontario OM
The following documents are not considered an Ontario OM:
1. documents prepared for the benefit of:
existing investors of an issuer such as quarter or
a prospective investor familiar with the issuer through prior business contacts. Arguably, this means an individual who has had sufficient prior business dealings with a director, executive officer, founder or control person of an issuer to be in a position to assess their capabilities and trustworthiness, and
2. a term sheet.
The Companion Policy to NI 45-106 defines a term sheet as a document that “represents
a skeletal outline of the features of a distribution without dealing extensively with the business or affairs of the issuer of the securities being distributed.”
Issuers are reminded that just because a document is called a ‘term sheet’ does not mean it is. It could in fact be an Ontario OM as a matter of law in circumstances where the document
goes beyond a skeletal outline and describes the business and affairs of an issuer. [Footnote 1]
Ontario OM regulatory requirements
Other than for government incentive securities, there is no legal obligation to prepare an Ontario OM for distributing securities under a prospectus exemption in Ontario.
Issuers cannot sell securities to an Ontario investor using an Ontario OM if a prospectus exemption does not exist to sell to that investor.
Prospectus exemptions that issuers may rely on in Ontario include the private issuer exemption under section 2.4 of NI 45-106, the accredited investor exemption under section 2.3 of NI 45-106 and the minimum amount or $150,000 exemption under section 2.10 of NI 45-106, among other available exemptions.
As previously mentioned, there is no prescribed form for an Ontario OM.
If an issuer elects to voluntarily deliver an Ontario OM to potential investors in Ontario, it must include a statutory right of action that provides an investor with a right of rescission or right to sue for damages, as set out in subsection 130.1(1) of the Ontario .
If an Ontario OM includes forward-looking information (FLI),
issuers are well advised to include reasonable cautionary language identifying FLI as such, the material factors and assumptions they relied upon in preparing the FLI and ensure that it had a reasonable basis for making the FLI (See
. These steps will provide the issuer with a defence under section 132.1 of the Ontario
from liability for misrepresentation of FLI in the Ontario OM.
If an Ontario OM is used by an issuer to sell securities, it must be filed with the Ontario Securities Commission (the OSC), with any amendments, within ten days of the sale of the issuer’s securities unless the document is otherwise filed.
The OM exemption, the NI 45-106 OM and the Ontario OM
The OM Exemption is currently not available in Ontario.
The OSC recently announced on that it intends to publish new capital raising prospectus exemptions for a 90-day public comment period in the first quarter of 2014. One of these proposed exemptions is the OM exemption albeit likely modified by Ontario.
The earliest effective date, if these proposed exemptions are adopted, would be sometime in the second quarter of 2014. In the meantime, issuers inside and outside of Ontario planning to sell securities to Ontario residents must rely on another available exemption from the prospectus requirement of the Ontario
NI 45-106 OMs used in Ontario are considered to be an Ontario OM in the Province.
It must include the same statutory right of action required in all Ontario OMs.
Issuers are also well advised to follow the FLI guidance discussed above.
Bottom line
Ontario OMs, unless they meet the form requirements of NI 45-106 OMs, may not be used outside of Ontario to rely on the OM exemption.
Ontario OMs, however, may be used in other provinces and territories outside of Ontario when relying on prospectus exemptions other than the OM exemption.
Footnote 1 - For additional guidance on what is a term sheet, see the definition of “standardized term sheet” as defined under subsection 13.5(1) of
(NI 41-101). A
term sheet in this instance is not being provided in connection with securities being sold in a distribution pursuant to a prospectus exemption, but for a registered prospectus offering. A standardized term sheet delivered in connection with a preliminary prospectus is not considered an Ontario OM under subsection 13.5(1) of NI 41-101.
Disclaimer
This blog is not intended to create, and does not create an attorney-client relationship. You should not act or rely on information on this blog post without first seeking the advice of a lawyer.
This material is intended for general information purposes only and does not constitute legal advice.
For legal issues that arise, the reader should consult legal counsel.
Brian Koscak is a Partner at
located in Toronto, Ontario and Chair of the . Brian is also a member of the Ontario Securities Commission’s Exempt Market Advisory Committee. Brian can be reached by phone at 416-860-2955, by e-mail at
or on twitter Brian also regularly writes about Canadian securities law matters on his personal blog at .
Alixe Cormick is the founder of
in Vancouver, British Columbia and a member of the Advisory Board of the National Crowdfunding Association of Canada. You can reach Alixe by phone at 604-659-9188, by e-mail at , on twitter
http://www.briankoscak.com/category/offering-memorandum-exemption-2Rights Offering代表什么？_百度知道
Rights Offering代表什么？
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字典上解释：
附权发行网络释义
： 1新股增发；2配股；3认股权配售
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同学你好，很高兴为您解答！　　Rights Offering购股权发行向现有股东发行购股权，给与他们在特定时期内，以特定价格按比例买入额外股份的权力。　　对于各个投资领域内的专业人员，包括基金经理、证券分析师、财务总监、投资顾问、投资银行家、交易员等等，CFA非常重要；它直接证明了你的职业素养和能力，被投资业看成一个“黄金标准”,这一资格被认为是投资业界中具有专业技能和职业操守的承诺。考生考过CFA对自己将会有很大帮助。　　希望的回答能帮助您解决问题，更多财会问题欢迎提交给。高顿祝您生活愉快！
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我们会通过消息、邮箱等方式尽快将举报结果通知您。（原创系列）给自己的交代——投资翻译笔记之（二）发债说明书目录
今天整理的内容“发债说明书”，即offering circular或offering
memorandum（发行备忘录），准确地说是“债券/票据发行说明书”。一般来说，发行说明书分为“招股发行说明书”（prospectus）和“债券/票据发行说明书”，对招股不了解，就先整理发债说明书吧。对招股发行说明书有兴趣的朋友可以看下这个链接：
（美国招股说明书框架）。
本篇讨论的是海外发行说明书，国内的貌似要简短一些（国内发债说明书目录案例在本文最后有附）。
根据百度百科，发行说明书即简短的公开说明书，是发行人在发行债券时向投资者分发的以期引起投资兴趣的文件。通常发行说明书非常之厚，篇幅在200页至400页不等，我接触的几份都是380页左右（包括附录）。
下面以中海油美元债发行说明书为例，总结一下目录部分条目（多么希望我在翻译的时候有人已经整理出一份！！）：
Important Notice（重要提示）
Certain Definitions and
Conventions（部分释义及规范，我同事翻的是“承诺”，待确定。Definitions有时也用terms）
Presentation of Financial Data（财务数据陈述）
Enforcement of Civil Liabilities（民事责任的执行）
Forward-Looking Statements（前瞻性陈述/声明）
Summary（概要）
The Offering（本次发行/债券发行条款）
Risk Factors（风险因素）
Use of Proceeds（募集资金用途）
Exchange of Rate Information（汇率信息）
Capitalization（资本总额）
Selected Consolidated Financial Data and Operating
Data（部分合并财务数据和运营数据）
Management’s Discussion and Analysis of Financial Condition and
Results of Operation（经营成果及财务状况分析）
Recent Developments（公司近期发展）
Industry Overview（行业概览）
Regulation（法律法规）
The Issuer（发行人介绍）
The Guarantor and Corporate
Structure（担保人及公司结构介绍，我同事翻的是“保证人”）
Business（公司业务描述）
Management（公司管理层简介，有时仅介绍董事故为Directors）
Major Shareholders（多数股东介绍，或者substantial shareholders）
Related Party Transactions（关联交易）
Description of the Notes and
Guarantees（票据及担保描述，还是担保和保证之争。根据发行种类的性质，此处notes可能为bonds）
Taxation（税务/税项）
Plan of Distribution（发行计划）
Transfer Restrictions（转让限制）
Ratings（债券评级）
Legal Matters（法律事务）
Independent Public Accountants（独立会计师）
Experts（专业意见/专家）
Where you are find more information（其他信息提供渠道）
Index to Consolidated Financial Statements（合并财务报表指引）
Appendices（附录）
今天偷懒了，仅写目录吧，计划详细研究发债说明书，尤其是法律部分条款，任务艰巨！
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