Canada: US OTC Market Issuers Could Become Subject To Canadian Reporting Obligations

The Canadian Securities Administrators in each province and territory of Canada other than Ontario (the adopting jurisdictions) recently adopted Multilateral Instrument 51-105 Issuers Quoted in the U.S. Over-the-Counter Markets. As we've previously discussed, MI 51-105 is scheduled to come into force on July 31, 2012 and, assuming ministerial approval, will have significant implications for issuers that have, or will have in the future, a class of securities that are quoted on over-the counter markets in the United States and who do not also have securities that trade on the North American stock exchanges specified in the Instrument.

By operation of the Instrument, an issuer will become subject to Canadian public company reporting obligations where the issuer, among other things, engages in promotional activities in furtherance of the purchase or sale of their securities, either directly or through a third party representative, in or from an adopting jurisdiction on or after July 31, 2012, or where the issuer otherwise previously distributed securities to persons resident in an adopting jurisdiction if the issuer is subsequently assigned a ticker symbol by the Financial Industry Regulatory Authority in the United States (FINRA) for use on OTC markets in the United States at any time after July 31, 2012. 

The stated purpose of the Instrument is to discourage the manufacture and sale in the adopting jurisdictions of OTC quoted shell companies that can be used to facilitate abusive market practices. However, the Instrument will have the unintended but significant effect of subjecting major well-established issuers who have securities listed on exchanges outside of North America and that only trade OTC in the United States to Canadian public company reporting obligations. Significantly, these issuers may unknowingly become subject to Canadian public company reporting obligations, as it is common market practice for U.S. broker-dealers to apply to have a FINRA ticker symbol assigned to an issuer's securities without the knowledge or involvement of the issuer. 

The Instrument defines an "OTC issuer" as an issuer that has a class of securities that have been assigned a ticker symbol by FINRA for use on any of the OTC markets in the United States (such as the OTC Bulletin Board, the Pink Sheets or the "grey market") but does not include an issuer that has any class of securities that are listed or quoted on one or more prescribed Canadian or U.S. exchanges. However, an issuer will also be considered an "OTC issuer" if a FINRA ticker symbol is assigned to the issuer after July 31, 2012 and, on or before the date the symbol was assigned, the issuer distributed a security to a person resident in an adopting jurisdiction and that class of securities becomes the issuer's OTC-quoted securities. As such, where a ticker symbol is assigned to a class of OTC securities trading in the United States, there is a risk that an issuer that has distributed securities to persons resident in an adopting jurisdiction could, regardless of when such securities were distributed, inadvertently become subject to Canadian public company reporting requirements and to the jurisdiction of securities regulators in the adopting jurisdictions.

Pursuant to MI 51-105, an OTC issuer will be considered an "OTC reporting issuer" and become subject to Canadian securities law requirements that apply generally to "reporting issuers" in the adopting jurisdictions if, after July 31, 2012, an OTC issuer's business is "directed or administered," or "promotional activities" are carried on, in or from an adopting jurisdiction.  For these purposes, "promotional activities" means activities or communications by or on behalf of an issuer that promote or could reasonably be expected to promote the purchase or sale of the securities of the issuer. The regulators in the adopting jurisdictions consider "promotional activities" to include communications through an investment newsletter or similar types of promotional publications, as well as the provision of information to potential investors who request information or to potential private placement investors.  Further, an issuer will be considered to carry out promotional activities in an adopting jurisdiction if it communicates from anywhere with persons in that jurisdiction, or communicates from an adopting jurisdiction with persons anywhere, in a way that promotes or reasonably could be expected to promote the purchase or sale of the issuer's securities.

An OTC issuer that becomes an "OTC reporting issuer" will become subject to Canadian securities law requirements, including those requirements relating to continuous and timely disclosure that generally apply to Canadian public companies, as well as governance requirements relating to the mandate and composition of audit committees, CEO/CFO certifications and corporate governance disclosure.  An OTC Reporting Issuer will have to file a prescribed form of notice in respect of any persons that carry out promotional activities on its behalf, and its directors, officers, promoters and control persons will have to deliver "personal information forms" to the applicable regulators.

The Instrument also imposes specific restrictions on the use of prospectus exemptions and the ability to resell securities, and will require securities issued by OTC reporting issuers to carry specific legend notations in certain circumstances.  Most notably, if securities of an OTC reporting issuer are acquired on or after July 31, 2012, but prior to the date that the issuer is assigned a ticker symbol by FINRA, those securities may only be resold in reliance upon prescribed prospectus exemptions, or through an investment dealer registered in a Canadian jurisdiction if a trade is executed through an OTC market in the United States. The Instrument has not been adopted in Ontario and may not directly impact issuers whose capital markets activities are restricted strictly to Ontario and do not otherwise have any connection to an adopting jurisdiction. The Instrument is scheduled to come into force in every other province and territory of Canada on July 31, 2012, subject to the receipt of applicable ministerial approvals.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions