On July 11, 2009, Industry Canada released draft regulations
(the Draft Regulations) that will implement certain amendments to
the Investment Canada Act (ICA) introduced with the
passage of Bill C-10 in March of this year. The Draft Regulations
provide prescribed information necessary to implement amendments to
the ICA raising the monetary threshold for the review of
investments and establishing a process for national security
reviews under the ICA, in addition to setting out new information
requirements for ICA filings. As there is a 30-day comment period,
the Draft Regulations could come into effect as early as
mid-August.
New investment review threshold
Under the ICA, the Industry Minister is required to approve
transactions that meet certain monetary thresholds on the basis
that they are of "net benefit to Canada". Pursuant to the
recent Bill C-10 amendments, the new WTO review threshold for
direct acquisitions1 of Canadian businesses (not engaged
in cultural activities) under the ICA is increased from CDN$312
million in book value of the assets of the target Canadian business
to CDN$600 million in "enterprise value" (EV). (This will
increase to CDN$800 million by 2011 and to CDN$1 billion by 2013
and indexed thereafter.) Although it was passed as part of Bill
C-10, the new EV threshold will not be in force until the
regulations defining EV are finalized.
The Draft Regulations define EV as follows:
- for acquisitions of control of a Canadian business involving
the acquisition of a publicly traded Canadian
corporation or other publicly traded entity (a Canadian or
non-Canadian trust, partnership or joint venture), the EV is the
market capitalization of the entity, plus its total liabilities
minus its cash and cash equivalents.
- for other transactions, i.e. transactions involving asset acquisitions or if control of a Canadian business is acquired without acquiring a publicly traded entity, the EV is the book value of the assets as shown on the audited financial statements. This is the current method of calculating the review threshold for all transactions.
For investors directly acquiring a publicly traded entity (except a
non-Canadian corporation that owns a Canadian entity, which is
considered an "indirect" acquisition for the purposes of
the ICA), the Draft Regulations introduce a level of complexity not
faced by purchasers of assets of a Canadian business or of private
entities. "Market capitalization" is calculated by
adding: (i) for each of class of equity security listed on a stock
exchange, the average daily number of securities that are
outstanding during the "trading period" multiplied by the
average daily closing price on the stock exchange where there is
the greatest volume of trading (the "primary market")
during the trading period and (ii) for each class of unlisted
equity securities, the average daily closing price of equity
securities on the primary market belonging to the "primary
class" (the class with the largest number of outstanding
securities) during the trading period multiplied by the average
daily number of the class of unlisted equity securities outstanding
during the trading period. The "trading period" is
defined as the most recent 20 days of trading before the end of the
entity's quarterly fiscal period immediately preceding the
closing of the acquisition. By contrast, liabilities and cash are
equal to the amounts listed on the audited financial statements for
the year preceding closing of the transaction.
While using EV for publicly traded entities might represent a more
accurate means of assessing the relative importance and size of a
target Canadian business than book value (e.g., where the business
has high revenues but low asset values), the Draft Regulations
would cause unpredictability for certain transactions. For example,
for a proposed purchase of a publicly traded Canadian corporation
with a calendar-based fiscal year, the foreign purchaser that signs
an agreement in January but is not able to complete the transaction
until July would not have definitive knowledge of the market
capitalization value required for the purposes of the EV
calculation until the end of June. In a volatile market, a deal
which was not reviewable on the basis of its market capitalization
in January might well be reviewable in June, if the target's
stock was increasing in value on the market, with the converse
being possible in a declining stock value situation.
Unfortunately, the distinction the Draft Regulations make between
EV for public versus private companies emphasizes the significance
of the form of a transaction over its substance (i.e., the relative
importance of the Canadian business to the Canadian economy). That
is, a transaction that is structured as an asset acquisition would
be subject to the book value determination as opposed to a market
capitalization test.
National security review
Bill C-10 introduced a new national security review process, in
addition to the existing investment review process noted above. The
amendments provided that the timeline for national security review
and its impact on the existing investment review process
regulations would be prescribed by regulation. The Draft
Regulations set out the timelines for each step of the national
security review process. As each individual step may involve a
number of possible outcomes, however, it is difficult to provide a
concise summary of the length of time a national security review
would take according to the Draft Regulations. Variables include:
(i) whether a transaction is notifiable or reviewable under the
ICA, or indeed neither; (ii) how serious potential national
security concerns are and accordingly, whether a notice of possible
review is given; (iii) the length of time required for a review;
and, in the near term, (iv) whether timing of a transaction would
be such as to trigger application of the transitional provisions
respecting national security reviews.
What is clear is that the national security review process has the
potential to add significant delays to the process of obtaining
required regulatory approvals for transactions if the maximum
prescribed periods are fully utilized. In such a scenario, a
national security review could take 130 days (assuming a notice of
possible review is issued), with the potential for the Industry
Minister to request an extension of the period available to him to
complete his review which would take the review period beyond 130
days. Moreover, it should be underscored that the national security
review process applies not only to the establishment or acquisition
of control of a Canadian business, but also to minority investments
in Canadian businesses.
Draft information requirements for the forms
The Draft Regulations also provide that revised notification and
application forms would require additional information for net
benefit and national security review purposes. For example,
investors would be required to give the names, mailing address,
telephone numbers, fax numbers and email addresses for each member
of the investor's board of directors, the five highest paid
officers of the investor and any individual or entity that owns 10%
or more of the equity or voting rights of the investor. They would
also be asked to disclose any ownership interest by a foreign
government, as well as the sources of funding for the
investment.
It is clear that the Government's objective is to uncover the
ultimate ownership and control behind foreign investors. Currently,
applicable regulations do not generally require disclosure of a
passive investor without a controlling interest. The proposed draft
Regulations would therefore result in greater transparency to the
Government of, for example, foreign state involvement or of known
criminals or terrorists. Such disclosure accords with the
Government's interest in national security and state-owned
enterprises and sovereign wealth funds as evidenced by its
guidelines on Investments by state-owned enterprises (released in
December 2007).
Footnotes
1. Note that indirect acquisitions (i.e., acquisitions of
Canadian entities indirectly through the acquisition of a
non-Canadian corporation) are not reviewable for WTO investors
provided that the target is not engaged in cultural sector
activity.
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.
