On June 4, 2019, the US Securities and Exchange Commission (SEC) sued Kik Interactive Inc. (Kik), a privately-held Canadian corporation based in Waterloo, Ontario, for conducting an unregistered securities offering of its digital token “Kin” in violation of section 5 of the Securities Act of 1933. The SEC is seeking a permanent injunction, disgorgement of ill-gotten gains, and civil penalties against Kik.
On September 21, 2017, following the results of a stakeholder survey conducted over the course of the year to date, the British Columbia Securities Commission (BCSC) announced changes to the existing equity crowdfunding rules found in British Columbia Instrument 45-535 – Start-up Crowdfunding Registration and Prospectus Exemptions (BCI 45-535) to address two of the most…
On October 31, 2016, the Alberta Securities Commission (ASC) adopted Multilateral Instrument 45-108 Crowdfunding (MI 45-108) which will allow small or medium sized businesses (Target Businesses) to raise more capital through crowdfunding offerings across multiple jurisdictions in Canada than is possible under ASC Rule 45-517 Prospectus Exemption for Start-up Businesses (ASC Rule 45-517) which was adopted by the ASC on July 29, 2016. Both MI 45-108 and ASC Rule 45-517 (collectively, the Growth Initiatives) provide Target Businesses with an exemption from prospectus requirements. The Growth Initiatives are in place of proposed MI 45-109 Prospectus Exemption for Start-up Businesses published by the ASC and the Nunavut Securities Office.
The Growth Initiatives are aimed at addressing Target Businesses’ need for a cost effective and simple way to raise capital in a difficult economic environment by raising small amounts of money from a large number of people, commonly referred to as crowdfunding. The Growth Initiatives offer different avenues that Target Businesses can use to overcome the hurdle of attracting investment without the high transactional costs of completing a prospectus offering.
On May 6, 2016, the B.C. Securities Commission (Commission) adopted BC Instrument 72-505 Exemption from prospectus requirement for crowdfunding distributions to purchasers outside British Columbia (BCI 72-505). BCI 72-505 creates an exemption from the prospectus requirement for B.C. issuers that distribute securities to purchasers resident outside of B.C. using Multilateral Instrument 45-108 Crowdfunding (MI 45-108), which has not been otherwise adopted in B.C.
To qualify for the prospectus exemption under BCI 72-505, the following conditions must be met:
- the distribution must not be made to a purchaser resident in B.C.;
- the purchaser must purchase the security as principal;
- the purchaser must certify in the subscription agreement that the purchaser is not resident in B.C.;
- the issuer must comply with the requirements of MI 45-108 in the jurisdiction where the purchaser is resident; and
- if the issuer is concurrently offering securities to a purchaser resident in B.C. using British Columbia Instrument 45-535 Start-up Crowdfunding Registration and Prospectus Exemptions (BCI 45-535), the issuer must provide the purchaser resident in B.C. with the same disclosure provided to purchasers in other jurisdictions under MI 45-108.
On November 5, 2015 securities regulatory authorities in Manitoba, Ontario, Quebec, New Brunswick and Nova Scotia (Participating Jurisdictions) published in final form the long awaited crowdfunding regime: Multilateral Instrument 45-108 Crowdfunding (Crowdfunding Regime) which includes a crowdfunding prospectus exemption (Crowdfunding Exemption) and a registration framework for funding portals. The…
In recent years, crowdfunding has proven an exceptionally popular and efficient means by which individuals and companies make use of the internet to attract investors for a variety of purposes. The traditional model generally involves a large number of individuals contributing small sums of money to finance specific ideas or projects. Increasingly, however, equity crowdfunding is emerging as a way for start-ups and early-stage companies that are non-reporting issuers to raise capital at an earlier stage of development through the issuance of securities. Equity crowdfunding has already proven successful in certain foreign jurisdictions, and is expected to make an impact in Canada.
Following a consultation period held early last year, the securities regulators of British Columbia, Manitoba, New Brunswick, Nova Scotia, Québec and Saskatchewan (Jurisdictions) announced on May 14, 2015 that they have implemented, or expect to implement in the near future, changes to their securities legislation to provide for registration and prospectus exemptions for start-ups and early-stage companies that wish to raise capital through crowdfunding. Businesses wishing to rely on the exemptions will be able to conduct crowdfunding distributions in the Jurisdictions.
The start-up crowdfunding exemption actually consists of two distinct exemptions. The first is a prospectus exemption for start-up companies seeking to raise capital. The second is a dealer registration exemption for persons wishing to operate a funding portal, a platform which facilitates start-up crowdfunding distributions.
The Jurisdictions plan to implement these exemptions by way of local blanket orders. The conditions associated with the two exemptions are outlined in Multilateral CSA Notice 45-316 Start-up Crowdfunding Registration and Prospectus Exemptions (CSA 45-316), and are summarized below. The start-up crowdfunding exemptions will be effective in each Jurisdiction concurrently with, or as soon as possible after, the publication of the notice of CSA 45-316. Each exemption order is available, or will be available shortly, on the websites of each Jurisdiction’s securities regulatory authority.
The start-up prospectus exemption
The start-up prospectus exemption permits non-reporting issuers to issue eligible securities, subject to a number of conditions. The key conditions are:…
In a release issued today, the Ontario Securities Commission advised that the participating jurisdictions of the Canadian Securities Administrators are still reviewing the comments received on a proposed crowdfunding regime and an offering memorandum prospectus exemption. In its release, the OSC stated that its goal is to publish proposed rules regarding these matters either…
The British Columbia Securities Commission (BCSC) has issued a notice dated March 20, 2014 requesting comments on whether the BCSC should consider adopting an exemption which would allow equity financings of small amounts raised from many individuals (as a form of Crowdfunding) through online portals (Portals) to be exempt from the prospectus requirements. The notice was released concurrently with proposed start-up Crowdfunding rules in certain other Canadian jurisdictions (see related posts by our colleagues from the Toronto and Montreal offices of Fasken Martineau DuMoulin LLP) and follows the implementation of a similar prospectus exemption for Crowdfunding in Saskatchewan.
If adopted, the Start-Up Crowdfunding exemption would join the already existing British Columbia exemptions, which include the private issuer; family, friends and business associates; accredited investor; and offering memorandum exemptions (Existing Exemptions).
In order to use the Start-Up Crowdfunding exemption, among various other requirements, an issuer must:
- not be a reporting issuer or an investment fund;
- not raise more than $1,500 from any one investor or exceed gross proceeds of more than $150,000 per offering;
- not make more than two offerings per year;
- complete the offering through a Portal; and
- provide a streamlined offering document to investors through the Portal.
The Start-Up Crowdfunding exemption would permit …
On March 20, 2014, the Ontario Securities Commission (OSC) published a Notice and Request for Comment proposing four new capital raising prospectus exemptions in Ontario. As previously discussed in Timely Disclosure, the OSC initiated a consultation process in December 2013 to consider prospectus exemptions to facilitate capital raising.
One of the new exemptions proposed is the crowdfunding exemption that would allow businesses to raise capital from a potentially large number of investors through an online portal registered with the securities regulators (Crowdfunding Exemption). The Crowdfunding Exemption, along with offering memorandum exemption, friends, family and business associates exemption, and existing securityholder exemption, were proposed by the OSC in an effort to provide startups and small and medium sized enterprises (SMEs) with greater access to capital markets.…
The Autorité des marchés financiers (Québec), the Financial and Consumer Affairs Authority of Saskatchewan, Financial and Consumer Services Commission of New Brunswick, the Manitoba Securities Commission and the Nova Scotia Securities Commission (CSA Participating Jurisdictions) published on March 20, 2014 for a 90-day comment period
- the integrated Crowdfunding Prospectus Exemption (Crowdfunding Exemption); and
- the draft blanket order relating to the Start-up Crowdfunding Prospectus and Registration Exemption (Start-up Exemption).
In line with the Crowdfunding Exemption and the Start-up Exemption, the CSA Participating Jurisdictions also published proposed registration rules and exemptions applicable to the funding portals participating in crowdfunding (Portal Requirements).
The Ontario Securities Commission concurrently published materials relating to, among other exemptions, a crowdfunding exemption and related portal requirements, by way of a local notice. The British Columbia Securities Commission also concurrently published a local notice soliciting comments on the Start-up Exemption. The Financial and Consumer Affairs Authority of Saskatchewan implemented an exemption for start-up and small businesses and their portals on December 6, 2013. No portals have yet been established in Saskatchewan. Although the Alberta Securities Commission has not published any material, it will be considering the public comments received in respect of the other published materials.
This bulletin focus on the Portal Requirements under both the Crowdfunding Exemption and the Start-up Exemption. You can read our reports on the Start-up Exemption and the Crowdfunding Exemption. Both the Crowdfunding Exemption and the Start-up Exemption will coexist as they target issuers at different stages of development.…