BC Notices

BCN 2009/14 Adoption of NI 45-106 Prospectus and Registration Exemptions, NI 45-102 Resale of Securities, Related Documents and Consequential Amendments [BCN]
Published September 25, 2009
View PDF of BC Reg 227/2009 PDF 

Concurrently Published

Effective September 28, 2009, the Commission, together with the other Canadian Securities Administrators, is adopting National Instrument 45-106 Prospectus and Registration Exemptions (NI 45-106) its related forms and companion policy (NI 45-106 documents), and adopting amendments to National Instrument 45-102 Resale of Securities, its form and companion policy (NI 45-102 documents).

Substance and Purpose

The changes to the NI 45-106 documents:

  • incorporate more local exemptions into the consolidated instrument,
  • further harmonize some exemptions for which NI 45-106 contains minor local differences,
  • resolve ambiguities in the current drafting, and
  • reflect decisions the CSA has made in granting exemptive relief on individual applications.

The changes to the NI 45-102 documents clarify:

  • how purchasers of securities are notified of resale restrictions where the purchaser does not receive a share certificate,
  • notice requirements when control persons sell their securities, and
  • the resale provisions applicable to securities distributed under certain exemptions in NI 45-106.

In conjunction with the amendments to NI 45-106, we are making consequential amendments to National Instrument 51-102 Continuous Disclosure Obligations (NI 51-102) and National Instrument 33-105 Underwriting Conflicts (NI 33-105). In particular, we have updated various section references in Appendix A of NI 33-105 and a section reference to NI 45-106 contained in NI 51-102.

 

Prior publications

We published the NI 45-106 documents and the NI 45-102 documents for comment on February 29, 2008 (BCN 2008/10).  We published advance notice of our proposed adoption of the NI 45-106 documents and the NI 45-102 documents on July 17, 2009 (BCN 2009/11).

 

Staff notices

We intend to withdraw the following staff notices:

 

  • CSA Staff Notice 45-302 Frequently Asked Questions Regarding the Resale Rules, and
  • CSA Staff Notice 45-305 Frequently Asked Questions Regarding National Instrument 45-106 Prospectus and Registration Exemptions. 

The relevant interpretive guidance in those notices has been incorporated into 45-106CP and 45-102CP.

 

We will update CSA Staff Notice 45-304 Notice of Local Exemptions Related to NI 45-106 Prospectus and Registration Exemptions.

 

Securities Act Amendments

Certain amendments in Bill 20, the Securities Amendment Act, 2006, which received Royal Assent on May 18, 2006, repeal the prospectus and registration exemptions in the Securities Act.  On September 16, 2009 the Lieutenant Governor in Council made an order in council to bring into force the provisions in the Securities Amendment Act, 2006 that repeal the prospectus and registration exemptions in the Act, effective September 28, 2009. 

 

Consequential amendments to BC only rules   

Effective September 28, 2009, the Commission is adopting amendments to repeal certain sections in Part 10 of the Securities Rules. 

 

The Commission is also adopting amendments to BC Instrument 51-509 Issuers quoted in the US over-the-counter markets.

 

New local instruments

 

1.   BC Instrument 45-528 Trades under a realization on collateral given for a debt

We relocated the registration and prospectus exemptions in sections 45(2)(13) and 74(2)(12) of the Act (trades under a realization on collateral given for a debt) to BC Instrument 45-528 Trades under a realization on collateral given for a debt.  We retained this exemption because section (e) of the definition of “trade” in the Act includes a transfer of beneficial ownership of a security to a transferee, pledgee, mortgagee or other encumbrancer under a realization on collateral given for a debt.

 

2.   BC Instrument 45-529 Bonus or finder’s fee

We relocated the registration and prospectus exemptions in sections 89(e) and 128(f) of the Rules (bonus or finder’s fee) to BC Instrument 45-529 Bonus or finder’s fee. Retaining the bonus or finder’s fee exemption allows us to retain the current fee structure for exempt distribution reporting for this exemption.

 

3.   BC Instrument 45-530 Exemptions for securities issued by a cooperative association

We have consolidated the registration and prospectus exemptions in sections 46(k) and 75(a) of the Act and BC Rule 45-502 Cooperative Associations in BC Instrument 45-530 Exemptions for securities issued by a cooperative association. 

 

4.   BC Instrument 45-531 Exemptions for shares or deposits of a credit union

We relocated the registration and prospectus exemptions in sections 46(i) and 75(a) of the Act (shares or deposits of a credit union) to BC Instrument 45-531 Exemptions for shares or deposits of a credit union. 

 

5.   BC Instrument 91-505 Prospectus exemption for put and call options

We relocated the prospectus exemption in section 75(b) of the Act to BC Instrument 91-505 Prospectus exemption for put and call options.

 

We relocated the registration and prospectus exemptions identified above so that the exemptions are situated along with other registration and prospectus exemptions in the 5-digit national numbering scheme. In addition, moving these exemptions to BC Instruments enables us to revise an exemption more quickly if we determine it is no longer appropriate or effective.

 

Consequential amendments to local instruments, policies and forms

We are also amending, repealing and replacing, revoking or rescinding the following BC Instruments, policies and forms to

  • eliminate local requirements, exemptions and guidance that are no longer necessary because they are covered in NI 45-106 and
  • make necessary reference changes.

We are amending:

  • BC Policy 13-601 Required forms
  • BC Instrument 21-501 Recognition of exchanges, self-regulatory bodies and jurisdictions
  • BC Policy 45-601 Statutory and discretionary exemptions
  • Companion Policy 51-509CP Issuers quoted in the US over-the-counter markets
  • BC Instrument 72-503 Distribution of securities outside British Columbia
  • BC Instrument 72-504 Distribution of Eurobonds
  • BC Interpretation Note 72-702 Distribution of securities to persons outside British Columbia

We are also rescinding or revoking the following:

  • BC Policy 12-602 Exempt purchaser status
  • BC Instrument 13-501 Filing reports of exempt distribution by facsimile
  • BC Instrument 45-511 Trades of government warrants
  • BC Instrument 45-515 Resale of Rights
  • BC Instrument 45-522 Exemption from requirement to file reports of exempt distribution
  • BC Instrument 45-523 Transition period for minimum purchase price and asset acquisition exemptions
  • BC Instrument 45-525 Exemption for distribution reinvestment plans
  • BC Instrument 45-526 Removal of exemptions for rights offerings

Also effective September 28, 2009, the Executive Director is re-specifying in BCP 13-601 Required Forms, the following forms:

  • Form 91-505F1 Put option contract (previously Form 91-901F)
  • Form 91-505F2 Call option contract (previously Form 91-902F)

The Executive Director will rescind the following forms in BCP 13-601 Required Forms:

  • BC Form 12-602F Application for exempt purchaser status
  • BC Form 32-901F Information statement required for exempt trades by not for profit issuers

Questions

You may refer questions to:

 

Gordon Smith

Senior Legal Counsel

British Columbia Securities Commission

(604) 899-6656

(800) 373-6393 (in B.C. and Alberta)

gsmith@bcsc.bc.ca

 

September 25, 2009

 

 

 

 

Brent W. Aitken                                                            Sandra Jakab

Acting Chair                                                                 Acting Executive Director

 

 

Ref:   National Instrument 45-106 Prospectus and Registration Exemptions

Companion Policy 45-106CP Prospectus and Registration Exemptions

National Instrument 45-102 Resale of Securities

Companion Policy 45-102CP Resale of Securities

BC Instrument 51-509 Issuers quoted in the US over-the-counter markets

Companion Policy 51-509CP Issuers quoted in the US over-the-counter markets

BC Policy 13-601 Required forms

BC Instrument 21-501 Recognition of exchanges, self-regulatory bodies and jurisdictions

BC Instrument 45-528 Trades under a realization on collateral given for a debt 

BC Instrument 45-529 Bonus or finder’s fee

BC Instrument 45-530 Exemptions for securities issued by a cooperative association

BC Instrument 45-531 Exemptions for shares or deposits of a credit union

BC Policy 45-601 Statutory and discretionary exemptions

BC Instrument 72-503 Distribution of securities outside British Columbia

BC Instrument 72-504 Distribution of Eurobonds

BC Interpretation Note 72-702 Distribution of securities to persons outside British Columbia

BC Instrument 91-505 Prospectus exemption for put and call options 

BC Policy 12-602 Exempt purchaser status

BC Instrument 13-501 Filing reports of exempt distribution by facsimile

BC Instrument 45-511 Trades of government warrants

BC Instrument 45-515 Resale of Rights

BC Instrument 45-522 Exemption from requirement to file reports of exempt distribution

BC Instrument 45-523 Transition period for minimum purchase price and asset acquisition exemptions

BC Instrument 45-525 Exemption for distribution reinvestment plans

BC Instrument 45-526 Removal of exemptions for rights offerings

BC Form 12 602F Application for exempt purchaser status

BC Form 32-901F Information statement required for exempt trades by not for profit issuers

BC Form 91-505F1 Put option contract

BC Form 91-505F2 Call option contract

 

 

This Notice may refer to other documents. These documents can be found at the B.C. Securities Commission public website at www.bcsc.bc.ca in the section Securities Law & Policy: Policies & Instruments.