Skip Navigation
Securities Law

44-101 - Short Form Prospectus Distributions [NI Amendment - Lapsed]

Published Date: 2004-10-22
Effective Date: 2005-01-04
Related Document(s):

Concurrently Published:

1. This Instrument amends National Instrument 44-101 Short Form Prospectus Distributions.

2. Section 1.1 is amended

(a) by repealing the definitions of “auditor’s report”, “foreign auditor’s report”, “foreign GAAP”, “foreign GAAS” and “U.S. GAAS”;

(b) by repealing the definition of “executive officer” and substituting the following:

“executive officer” with respect to a person or company means an individual who is
(a) a chair of the person or company,
(b) a vice-chair of the person or company,
(c) the president of the person or company,

(d) a vice-president of the person or company in charge of a principal business unit, division or function including sales, finance or production,
(e) an officer of the person or company or any of its subsidiaries, who performed a policy-making function in respect of the person or company, or
(f) any other individual who performed a policy-making function in respect of the person or company;

(c) by adding the following definitions:
“issuer’s GAAP” means the accounting principles used to prepare an issuer’s financial statements, as permitted by NI 52-107;
“NI 52-107” means National Instrument 52-107 Acceptable Accounting Principles, Auditing Standards and Reporting Currency;
“US GAAP” means generally accepted accounting principles in the United States of America that the SEC has identified as having substantial authoritative support as supplemented by Regulation S-X and S-B under the 1934 Act.
3. Subsection 1.2(9) is repealed and the following substituted:
1.2(9) Application of Significance Tests - Accounting Principles and Currency - For the purposes of the significance tests in subsections (2) and (3), financial statements of the business or related businesses must be reconciled to the accounting principles used to prepare the issuer’s financial statements and translated into the same reporting currency as that used in the issuer’s financial statements.
4. Section 4.12 is amended by striking out “shall be accompanied by an auditor’s report without a reservation of opinion” and substituting “must be audited”.

5. Section 4.13 is repealed and the following substituted:
Despite section 4.12, interim financial statements of a business included in a short form prospectus under this Part do not have to be audited.
6. Section 4.14 is repealed and the following substituted:
Despite section 4.12, an issuer may omit from its short form prospectus an audit report for the annual financial statements referred to in subsection 4.8(3) if the financial statements have not been audited.
7. Section 4.15 is amended
(a) in paragraph (a) by striking out “auditor’s report” and substituting “audit report”, and

(b) by repealing paragraph (b) and substituting “the financial statements have not been audited”.
8. Section 5.6 is amended by striking out “shall be accompanied by an auditor’s report without a reservation of opinion” and substituting “must be audited”.

9. Section 5.7 is repealed and the following substituted:
Despite section 5.6, interim financial statements of a business included in a short form prospectus under this Part do not have to be audited.
 
10. Section 5.8 is repealed and the following substituted:
Despite section 5.6, an issuer may omit from its short form prospectus an audit report for the annual financial statements referred to in subsection 5.3(2) if the financial statements have not been audited.

11. The title to Part 7 is repealed and the following substituted:

Part 7 Audit Requirement for Financial Statements of an Issuer

12. Section 7.1 is repealed and the following substituted:

7.1 Audit Requirement

The financial statements of an issuer included in a short form prospectus must be audited.

13. Section 7.2 is repealed.

14. Section 7.3 is repealed and the following substituted:

7.3 Exception to Audit Requirement — Despite section 7.1, the following financial statements do not have to be audited:

1. Comparative interim financial statements required to be incorporated by reference under paragraph (1)3 of Item 12.1 or paragraph 2 of 12.2 of Form 44-101F3.

2. The comparative annual financial statements of the issuer for the most recently completed financial year if

(a) the financial statements are required to be incorporated by reference in a short form prospectus solely by reason of paragraph (1)5 of Item 12.1 of Form 44-101F3;

(b) the auditor of the issuer has not issued an audit report on the financial statements; and

(c) comparative financial statements for the year preceding the most recently completed financial year are audited and are included in the short form prospectus.

3. The comparative interim financial statements of a credit supporter required to be incorporated by reference under Item 13.2 of Form 44-101F3.
15. Sections 7.4 and 7.5 are repealed.

16. Paragraph 10.2(b) is amended
(a) in item 6 by striking out “auditor’s report” and substituting “audit report”, and

(b) by repealing item 7.
17. Form 44-101F3 Short Form Prospectus is amended
(a) in paragraphs (c) and (d) of paragraph 7.1(2) by striking out “in the Handbook” and substituting “in accordance with the issuer’s GAAP”;

(b) in paragraph 7.1(3) by striking out “under Canadian GAAP”;

(c) in Instruction (2)(d) of Item 7 by striking out “generally accepted accounting principles” and substituting “the issuer’s GAAP”;
(d) in paragraph 12.1(3)
(i) by repealing paragraph (b) and substituting “is required by subsection 4.1(1) of NI 52-107 to provide a reconciliation to Canadian GAAP”;
(ii) by striking out “other than in accordance with Canadian GAAP” in paragraph (c) and “substituting in accordance with US GAAP”; and
(iii) by striking out “foreign GAAP” and substituting “US GAAP”; and
(e) by repealing Item 20 and substituting the following:
If the short form prospectus includes financial statements not prepared in accordance with Canadian GAAP and the short form prospectus does not include a reconciliation to Canadian GAAP, include any reconciliation to Canadian GAAP required under NI 52-107.

18. This Instrument comes into force on January 4, 2005.

NATIONAL INSTRUMENT 44-101
SHORT FORM PROSPECTUS DISTRIBUTIONS
APPENDIX A
AUTHORIZATION OF
INDIRECT COLLECTION OF PERSONAL INFORMATION



The attached Schedule 1 contains information concerning the name, position with or relationship to issuer, name and address of employer, if other than the issuer, residential address, date and place of birth and citizenship of each director, executive officer, promoter, if any, and each director and executive officer of the promoter, if any, of the issuer named below (the "Issuer") as required by securities legislation, unless previously delivered to the regulator. The Issuer hereby confirms that each person or company listed on Schedule 1

(a) has been notified by the Issuer

(i) of the Issuer's delivery to the regulator of the information pertaining to the person or company as set out in Schedule 1,
(ii) that such information is being collected indirectly by the regulator under the authority granted to it in securities legislation,

(iii) that such information is being collected for the purpose of enabling the regulator to discharge his/her obligations under the provisions of securities legislation that, among other things, require or permit the regulator to refuse to issue a receipt for a prospectus if it appears to the regulator that the past conduct of management or promoters of the issuer affords reasonable grounds for belief that the business of the issuer will not be conducted with integrity and in the best interests of its securityholders, and

(iv) that the title, business address and business telephone number of the public official in the local jurisdiction as set out in the attached Schedule 2, who can answer questions about the regulator's indirect collection of the information; and

(b) has authorized the indirect collection of the information by the regulator.


Date:


Name of Issuer

Per:


Name


Official Capacity

(Please print the name of the
individual whose signature
appears in the official capacity)


Schedule 1 Personal Information
to Appendix A Authorization of Indirect
Collection of Personal Information
[Name of Issuer]


Name and Position with or Relationship to IssuerName and Address ofEmployer, if other than IssuerResidential AddressDate and Place of BirthCitizenship


Schedule 2 Public Official
to Appendix A Authorization of Indirect
Collection of Personal Information

Local JurisdictionPublic Official

Alberta Executive Director
Alberta Securities Commission
Suite 400
300 - 5th Avenue S.W.
Calgary, Alberta T2P 3C4
Telephone: (403) 297-4228

British Columbia Supervisor, Registration
British Columbia Securities Commission
P.O. Box 10142, Pacific Centre
701 West Georgia Street
Vancouver, British Columbia V7Y 1L2
Telephone: (604) 899-6692
Toll Free within British Columbia: 1-800 373-6393

Manitoba Director
Manitoba Securities Commission
Consumer and Corporate Affairs
Administration
1034 - 405 Broadway
Winnipeg, Manitoba R3C 3L6
Telephone: (204) 945-2653

New Brunswick Administrator
Department of Justice
Securities Branch
Harbour Building, 133 Prince William Street
Suite 606, P.O. Box 5001
Saint John, New Brunswick E2L 4Y9
Telephone: (506) 658-3060

Newfoundland Director of Securities
Department of Government Services and Lands
P.O. Box 8700
West Block, 2nd Floor, Confederation Building
St. John's, Newfoundland A1B 4J6
Telephone: (709) 729-4189

Northwest Territories Government of the Northwest Territories
Securities Registries
Department of Justice
P.O. Box 1320,
Yellowknife, Northwest Territories X1A 2L9

Nova Scotia Deputy Director, Compliance and Enforcement
Nova Scotia Securities Commission
P.O. Box 458
Halifax, Nova Scotia B3J 2P8
Telephone: (902)424-5354

Nunavut Nunavut Legal Registries
Government of Nunavut
BAG 9500
Yellowknife, Northwest Territories X1A 2R3

Ontario Administrative Assistant to the
Director of Corporate Finance
Ontario Securities Commission
18th Floor, 20 Queen Street West
Toronto, Ontario M5H 2S8
(416) 597-0681

Prince Edward Island Deputy Registrar, Securities Division
Shaw Building
95 Rochford Street, P.O. Box 2000, 4th Floor
Charlottetown, Prince Edward Island C1A 7N8
Telephone: (902) 368-4550

Quebec Secretary and Director
Legal Department
Commission d'accès à l'information
Québec City (Head Office)
575, rue St-Amable
Bureau 1.10
Québec, Québec G1R 2G4
Telephone: (418) 528-7741
Toll Free in Québec: (888) 628-7741

Saskatchewan Director
Saskatchewan Securities Commission
800-1920 Broad Street
Regina, Saskatchewan S4P 3V7
Telephone: (306) 787-5842

Yukon Registrar of Securities
Department of Justice
Andrew A. Philipsen Law Centre
2130 - 2nd Avenue, 3rd Floor
Whitehorse, Yukon Territory Y1A 5H6
Telephone: (867) 667-5005




NATIONAL INSTRUMENT 44-101
SHORT FORM PROSPECTUS DISTRIBUTIONS
APPENDIX B
ISSUER FORM OF SUBMISSION TO
JURISDICTION AND APPOINTMENT OF
AGENT FOR SERVICE OF PROCESS


1. Name of issuer (the "Issuer"):
____________________________________________________________

2. Jurisdiction of incorporation, or equivalent, of Issuer:
____________________________________________________________

3. Address of principal place of business of Issuer:
____________________________________________________________

4. Description of securities (the "Securities"):
____________________________________________________________

5. Date of the short form prospectus (the "Short Form Prospectus") under which the Securities are offered:
____________________________________________________________

6. Name of agent for service of process (the "Agent"):
____________________________________________________________

7. Address for service of process of Agent in Canada (the address may be anywhere in Canada):
____________________________________________________________

8. The Issuer designates and appoints the Agent at the address of the Agent stated above as its agent upon whom may be served any notice, pleading, subpoena, summons or other process in any action, investigation or administrative, criminal, quasi-criminal, penal or other proceeding (the "Proceeding") arising out of, relating to or concerning the distribution of the Securities made or purported to be made under the Short Form Prospectus or the obligations of the Issuer as a reporting issuer, and irrevocably waives any right to raise as a defence in any such Proceeding any alleged lack of jurisdiction to bring such Proceeding.

9. The Issuer irrevocably and unconditionally submits to the non-exclusive jurisdiction of
(a) the judicial, quasi-judicial and administrative tribunals of each of the provinces [and territories] of Canada in which the securities are distributed under the Short Form Prospectus; and

(b) any administrative proceeding in any such province [or territory],
in any Proceeding arising out of or related to or concerning the distribution of the Securities made or purported to be made under the Short Form Prospectus or the obligations of the issuer as a reporting issuer.

10. Until six years after it has ceased to be a reporting issuer in any Canadian province or territory, the Issuer shall file a new submission to jurisdiction and appointment of agent for service of process in this form at least 30 days before termination of this submission to jurisdiction and appointment of agent for service of process.

11. Until six years after it has ceased to be a reporting issuer in any Canadian province or territory, the Issuer shall file an amended submission to jurisdiction and appointment of agent for service of process at least 30 days before any change in the name or above address of the Agent.

12. This submission to jurisdiction and appointment of agent for service of process shall be governed by and construed in accordance with the laws of [insert province or territory of above address of Agent].

Dated: _________________ __________________________________________
Signature of Issuer

__________________________________________
Print name and title of signing
officer of Issuer

AGENT
The undersigned accepts the appointment as agent for service of process of [insert name of Issuer] under the terms and conditions of the appointment of agent for service of process stated above.


Dated: ________________ __________________________________________
Signature of Agent

__________________________________________
Print name of person signing and, if Agent is not an individual, the title of the person



NATIONAL INSTRUMENT 44-101
SHORT FORM PROSPECTUS DISTRIBUTIONS
APPENDIX C
NON-ISSUER FORM OF SUBMISSION TO
JURISDICTION AND APPOINTMENT OF
AGENT FOR SERVICE OF PROCESS


1. Name of issuer (the "Issuer"):
__________________________________________________________________

2. Jurisdiction of incorporation, or equivalent, of Issuer:
__________________________________________________________________

3. Address of principal place of business of Issuer:
__________________________________________________________________

4. Description of securities (the "Securities"):
__________________________________________________________________

5. Date of the short form prospectus (the "Short Form Prospectus") under which the Securities are offered:
__________________________________________________________________

6. Name of person filing this form (the "Filing Person"):
__________________________________________________________________

7. Filing Person's relationship to Issuer:
__________________________________________________________________

8. Jurisdiction of incorporation, or equivalent, of Filing Person, if applicable, or jurisdiction of residence of Filing Person:
__________________________________________________________________

9. Address of principal place of business of Filing Person:
__________________________________________________________________

10. Name of agent for service of process (the "Agent"):
__________________________________________________________________

11. Address for service of process of Agent in Canada (which address may be anywhere in Canada):
__________________________________________________________________

12. The Filing Person designates and appoints the Agent at the address of the Agent stated above as its agent upon whom may be served any notice, pleading, subpoena, summons or other process in any action, investigation or administrative, criminal, quasi-criminal, penal or other proceeding (the "Proceeding") arising out of, relating to or concerning the distribution of the Securities made or purported to be made under the Short Form Prospectus, and irrevocably waives any right to raise as a defence in any such Proceeding any alleged lack of jurisdiction to bring the Proceeding.

13. The Filing Person irrevocably and unconditionally submits to the non-exclusive jurisdiction of
(a) the judicial, quasi-judicial and administrative tribunals of each of the provinces [and territories] of Canada in which the securities are distributed under the Short Form Prospectus; and
(b) any administrative proceeding in any such province [or territory],
in any Proceeding arising out of or related to or concerning the distribution of the Securities made or purported to be made under the Short Form Prospectus.

14. Until six years after completion of the distribution of the Securities made under the Short Form Prospectus, the Filing Person shall file a new submission to jurisdiction and appointment of agent for service of process in this form at least 30 days before termination of this submission to jurisdiction and appointment of agent for service of process.

15. Until six years after completion of the distribution of the Securities under the Short Form Prospectus, the Filing Person shall file an amended submission to jurisdiction and appointment of agent for service of process at least 30 days before a change in the name or above address of the Agent.

16. This submission to jurisdiction and appointment of agent for service of process shall be governed by and construed in accordance with the laws of [insert province or territory of above address of Agent].

Dated: _________________ __________________________________________
Signature of Filing Person

__________________________________________
Print name of person signing and, if the Filing Person is not an individual, the title of the person
AGENT
The undersigned accepts the appointment as agent for service of process of [insert name of Filing Person] under the terms and conditions of the appointment of agent for service of process stated above.


Dated: _________________ __________________________________________
Signature of Agent
__________________________________________
Print name of person signing and, if the Agent is not an individual, the title of the person