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When seeking to access capital in the public markets in an uncertain economy, traditional follow-on financing methods might not be the right choice for some issuers. It may be that “bought deal” and “best efforts” public financings are unavailable or otherwise available but on terms that are unsuitable.

In these circumstances, issuers may consider an alternative financing method provided for in Canadian securities legislation: namely, an at-the-market (ATM) public offering. Under an ATM offering, an issuer sells its shares directly into the market through the facilities of a stock exchange or marketplace. In establishing an ATM offering, the issuer sets a maximum number of securities to be issued, and then determines on an ongoing basis how many securities to issue and sell (if any) by setting the specific minimum price, quantity of securities, and sales timing.

This post discusses the framework for ATM offerings and explores some of the advantages and disadvantages associated with this kind of financing.

General Framework

Base Shelf Prospectus

The first formal step by the issuer in setting up an ATM offering is to file a base shelf prospectus in accordance with National Instrument 44-102 Shelf Distributions (NI 44-102). A base shelf prospectus is a type of short-form prospectus where an issuer normally qualifies the distribution of various types of securities up to a specified maximum dollar amount, which can then be issued over a 25-month period.

While the general rule under securities laws is that all distributions of securities under a prospectus must be made at a fixed price, NI 44-102 provides an exception to this rule for ATM offerings. To give effect to this exception, the shelf prospectus must disclose that the issuer may undertake non-fixed price offering transactions by way of ATM offerings.

Note that NI 44-102 places certain limits on ATM offerings. First, it limits the securities that may be issued by way of an ATM offering to “equity securities”, which are securities that carry a residual right to participate in the earnings of an issuer and, upon liquidation or winding-up of the issuer, in its assets. This typically excludes ATM offerings in respect of preferred shares and debt securities. Second, NI 44-102 limits the market value of equity securities that can be distributed under an ATM offering to 10% of the aggregate market value of the equity securities of that class (for this calculation, securities controlled by persons holding more than 10% of the issuer’s total outstanding equity securities are excluded). Finally, it prohibits an overallotment of securities or any other transaction made with the intention of stabilizing or maintaining the market price of securities.

Prospectus Supplement

Once the final base shelf prospectus has been receipted by the applicable securities regulators and all other above steps are complete, the issuer then files a prospectus supplement to the final base shelf prospectus. The prospectus supplement sets out the parameters and terms of the ATM offering and describes the securities that are the subject of such offering. This document generally is not reviewed by the securities regulators and can be quite brief. However, it must set out either the maximum number of shares to be sold or the maximum aggregate offering size, and it must identify the securities dealers that are implementing the ATM offering and specify any commissions to be paid.

Distribution Agreement

Concurrent with the filing of the prospectus supplement for an ATM offering, the issuer typically executes a distribution or sales agency agreement (Distribution Agreement) with the securities dealer selected to act as the issuer’s agent for the ATM offering. Distribution Agreements for ATM offerings contain standard securities dealer protections, including customary covenants, representations and warranties made by the issuer, and customary closing conditions for each placement of securities. Securities dealers are subject to statutory underwriter liability, and so will engage in standard due diligence practices. Because ATM offerings are ongoing affairs, securities dealers will seek comfort letters and legal opinions both as of the time of execution of the Distribution Agreement and on a periodic basis.


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On April 6,2017, the Canadian Securities Administrators (CSA) released CSA Consultation Paper 51-404 Considerations for Reducing Regulatory Burden for Non-Investment Fund Reporting Issuers (Consultation Paper 51-404). The purpose of Consultation Paper 51-404 is to consider certain legal requirements where the CSA believes there may be ways to reduce the costs and burdens of regulatory requirements

The Ontario Securities Commission (OSC) has proposed OSC Policy 15-601 Whistleblower Program (Policy), which is designed to encourage individuals (whistleblowers) to report to the OSC information regarding serious misconduct related to securities or derivatives, with the prospect of receiving monetary awards in certain circumstances (whistleblower awards).

Under the Policy, any whistleblower may submit information regarding serious breaches of Ontario securities law that is not already known to the OSC and that was obtained either from (i) the whistleblower’s independent knowledge derived from his/her experiences, communications and observations or (ii) the whistleblower’s critical analysis of publicly available information (original information). Original information excludes information that is:

  • subject to solicitor-client privilege,
  • obtained in connection with the provision of legal advice to a client or employer on whose behalf the whistleblower or his/her firm acts or provides services,
  • obtained from an allegation made in a judicial, administrative hearing or enforcement matter of a securities-related self-regulatory organization, a government report, hearing, audit or investigation, or news media (unless the whistleblower is the source), or
  • in violation of applicable criminal law.

In connection with the submission of original information, the whistleblower is required to sign a declaration acknowledging that it is an offence under certain securities laws to a make a statement to the OSC that is misleading or untrue or does not state a fact that is required to make any statement not misleading, and that the whistleblower may be prosecuted for providing false or untrue information to the OSC. While this provision is intended to discourage improper or spurious submissions by a whistleblower, the requirement for this declaration could have a cooling off effect in terms of the submission of legitimate claims by adding to the angst that a whistleblower might otherwise be experiencing.

A whistleblower may submit information to the OSC anonymously only if the whistleblower is represented by a lawyer who makes the submission on his/her behalf. However, before any whistleblower award will be paid to the whistleblower, the OSC will generally require disclosure of the identity of the whistleblower. The Policy expressly provides that, while the OSC will use reasonable efforts to keep the identity of a whistleblower confidential, the OSC cannot guarantee that a whistleblower’s identity will remain confidential if requested under the Freedom of Information and Personal Protection and Privacy Act (Ontario). While the Policy also provides that the OSC expects that employers who are the subject of a whistleblower report will not retaliate against a whistleblower, there is currently no statutory power for the OSC to enforce this provision of the Policy. Accordingly, the fact that a whistleblower must expend his/her own financial resources to employ a lawyer in order to maintain confidentiality, and the limits on the OSC’s ability to protect whistleblower confidentiality and prevent employer retaliation, could also deter the submission of original information by whistleblowers.

Once a whistleblower submits original information, the Policy allows the OSC to request additional information and assistance from the whistleblower, including:

  • explanations to evaluate and use the information provided,
  • a description and precise location for documents of which the whistleblower has knowledge but not possession,
  • additional information in the whistleblower’s possession,
  • testimony at any OSC proceeding, and
  • information relating to whether the whistleblower is eligible for a whistleblower award.

The whistleblower is also expected to maintain the confidentiality of the information submitted and the fact that he/she has made a report to the OSC, as well as of any information provided to the whistleblower by the OSC. Any failure to do any of the above may result in a whistleblower being ineligible for a whistleblower award or impact the quantum of any amount that is awarded (as discussed below).

The Policy provides that voluntarily submitted original information that will be eligible for a whistleblower award will relate to a serious violation of Ontario securities laws and will be of high quality (i.e., contain sufficient timely, specific and credible facts of the alleged violation of Ontario securities law) and be of meaningful assistance to the OSC in investigating the matter and outcome. The Policy provides that all of the above criteria generally are expected to be satisfied in order for a whistleblower to be eligible for a whistleblower award.

The Policy also states that whistleblowers generally
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