BCN 2004/14 - Adoption of Amendments to Multilateral Instrument 45-103 Capital Raising Exemptions and Related Documents [BCN - Rescinded]

Substance and purpose of the Instrument
Effective March 30, 2004, the British Columbia Securities Commission is adopting amendments (the Amendments) to:

• Multilateral Instrument 45-103 Capital Raising Exemptions, and
• Companion Policy 45-103CP.

The BCSC is implementing the Amendments with the securities regulatory authorities in Alberta, Manitoba, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, Prince Edward Island and Saskatchewan.

Background
The Amendments are required as a result of the concurrent adoption on March 30, 2004 of the following instruments in each of the jurisdictions:

• National Instrument 51-102 Continuous Disclosure Obligations
• National Instrument 52-107 Acceptable Accounting Principles, Auditing Standards and Reporting Currency
• Repeal and replacement of Multilateral Instrument 45-102 Resale of Securities (New MI 45-102)

Prior publications
We published the Amendments for comment on July 25, 2003 (BCN 2003/28). 

On January 30, 2004, we published advance notice that, subject to government approval, we expected to adopt the Amendments effective March 30, 2004 (BCN 2004/08).  The advance notice contained a detailed summary of the Amendments, including blacklined versions of the amended forms.  It also contained a summary of the comments received and our response.

Forms
Effective March 30, 2004, the Executive Director is rescinding and specifying the following forms related to the Amendments:

• Form 45-103F1 Offering Memorandum for Non-Qualifying Issuers
• Form 45-103F2 Offering Memorandum for Qualifying Issuers, and
• Form 45-103F4 Report of Exempt Distribution.

The other forms referred to in or required by MI 45-103 have not been amended.

Questions
You may refer questions to:

Leslie Rose
Senior Legal Counsel
Legal and Market Initiatives
British Columbia Securities Commission
(604) 899-6654
(800) 373-6393 (in B.C. and Alberta)
lrose@bcsc.bc.ca

March 26, 2004

Douglas M. Hyndman      Steve Wilson
Chair                                    Executive Director

Ref:  Multilateral Instrument 45-103 Capital Raising Exemptions
Companion Policy 45-103CP
Form 45-103F1 Offering Memorandum for Non-Qualifying Issuers
Form 45-103F2 Offering Memorandum for Qualifying Issuers, and
Form 45-103F4 Report of Exempt Distribution.

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 Commission Documents database or the Historical Documents database.

SCHEDULE B

1 Section 1.1 of Multilateral Instrument 45-103 Capital Raising Exemptions, B.C. Reg. 225/2003, is amended

(a) by adding the following definitions:
“AIF” has the meaning ascribed to that term under NI 51-102;
“CPC instrument” means a rule or regulation of a jurisdiction of Canada or a rule, regulation or policy of an exchange in Canada that applies only to capital pool companies; ,

(b) in the definition of “control person” by adding “, Newfoundland and Labrador” after “Nunavut”,

(c) by adding the following definitions:
“MD&A” has the meaning ascribed to that term under NI 51-102;
“NI 51-102” means National Instrument 51-102 Continuous Disclosure  Obligations; ,

(d) by repealing the definition of “non-redeemable investment fund” and substi-tuting the following:
“non-redeemable investment fund” means an issuer

(a) where contributions of security holders are pooled for investment,
(b) where security holders do not have day-to-day control over the management and investment decisions of the issuer, whether or not they have the right to be consulted or to give directions, and
(c) whose securities do not entitle the security holder to receive on demand, or within a specified period after demand, an amount computed by reference to the value of a proportionate interest in the whole or in part of the net assets of the issuer; ,

(e) by repealing the definition of “qualifying issuer” and substituting the following:
“qualifying issuer” means an issuer that

(a) is a reporting issuer in a jurisdiction,
(b) is an electronic filer under National Instrument 13-101 System for Electronic Document Analysis and Retrieval (SEDAR),
(c) has filed all documents that it is required to file under NI 51-102, National Instrument 43-101 Standards of Disclosure for Mineral Projects and National Instrument 51-101 Standards of Disclosure for Oil and Gas Activities,
(d) if not a venture issuer, has filed in a jurisdiction

(i) a prospectus (other than a prospectus filed under a CPC instrument) but, since becoming a reporting issuer, has not yet filed or been required to file an AIF or annual financial statements under
NI 51-102, or
(ii) an AIF, MD&A and annual financial statements under NI 51-102,
and

(e) if a venture issuer

(i) has filed in a jurisdiction a prospectus, other than a prospectus filed under a CPC instrument, but since becoming a reporting issuer has not yet filed, or been required to file, annual financial statements under NI 51-102,
(ii) has filed in a jurisdiction an information circular or filing statement in respect of a qualifying transaction for a capital pool company under a CPC instrument, but has not subsequently filed, or been required to file, annual financial statements under NI 51-102, or
(iii) has filed in a jurisdiction

(A) MD&A and annual financial statements under NI 51-102, and
(B) an AIF in the form required by Form 51-102F2 with copies of all material incorporated by reference in the AIF and not previously filed; ,

(f) by adding the following definition:
“venture issuer” has the meaning ascribed to that term in NI 51-102.

2 Section 4.1 is amended

(a) in subsections (1) and (2), by striking out “British Columbia and Nova Scotia” and substituting “British Columbia, Nova Scotia, and Newfoundland and Labrador,”,
and

(b) in subsections (3) and (4), by striking out “Newfoundland and Labrador,”.

3 Subsection 6.4 (1) is amended

(a) in paragraph (a), by striking out “listed in Appendix B of MI 45-102” and substi-tuting “of Canada”,

(b) by repealing paragraph (b) and substituting the following:
(b) if the issuer was not a reporting issuer in any jurisdiction of Canada at the time the security was acquired, the security has been held for at least 12 months, ,

(c) by repealing paragraph (c) and substituting the following:
(c) the issuer of the security subsequently has filed a prospectus with the securities regulatory authority in Manitoba with respect to the security and has obtained a receipt for that prospectus, or , and

(d) in paragraph (d) by striking out “prospectus and dealer registration require-ments” and substituting “dealer registration requirement, and in the case of a trade that would be subject to the prospectus requirement, is made under an exemption from the prospectus requirement”.

4 The following Part is added:

PART 10 TRANSITIONAL PERIOD

10.1 Transitional period

(1) In this Part, “original MI 45-102” means Multilateral Instrument 45-102 Resale of Securities as it existed immediately before its repeal on March 30, 2004.
(2) Despite the definition of qualifying issuer in section 1.1 of this instrument, an issuer that was a qualifying issuer as that term was defined in original MI 45-102 on March 29, 2004 will be considered to be a qualifying issuer under this instrument until

(a) in the case of a venture issuer, the date following March 29, 2004 on which it first files or the date it is required to file under NI 51-102, whichever is earlier, MD&A and annual financial statements, and
(b) in the case of an issuer other than a venture issuer, the date following March 29, 2004 that it first files or is required to file an AIF, MD&A and annual financial statements under NI 51-102.