L'Autorité des marchés financiers (l'« AMF ») a publié des indications sur les bonnes pratiques destinées aux émetteurs relativement à l'examen des dépôts préalables confidentiels de prospectus et elle a formulé des commentaires sur les délais.
Une traduction de ce billet sera disponible prochainement.
The Autorité des marchés financiers (AMF) has issued best practice guidance for issuers with respect to the confidential pre-file review of prospectuses and provides comments regarding timing considerations.
As we have previously discussed, in March 2020, the Canadian Securities Administrators (CSA) published CSA Notice 43-310 Confidential Pre-File Review of Prospectuses that introduced a harmonized process for full reviews of prospectuses on a confidential pre-file basis (the pre-file process) for non-investment fund issuers. The goal of the pre-file process is to provide issuers with greater flexibility and more certainty in planning their prospectus offerings.
More recently, in January 2021, the Ontario Securities Commission (OSC) issued best practice guidance for issuers regarding the pre-file process, warning issuers of timing considerations that we discussed in a previous post.
On May 3, 2021, drawing on its experience with the use of the pre-file process by 16 issuers, the AMF issued its best practice guidance for prospectus filings (the guidance) to issuers with comments regarding timing considerations.
Capital raising activities in Québec are growing at a rapid pace with the number of prospectuses for which the AMF was principal regulator up 57% for the first quarter of 2021 compared to the same period in 2020.
In this context, with a view to streamlining the review process, the guidance identifies three best practices for issuers when confidentially pre-filing a prospectus:
- Pre-filed prospectuses should contain all financial and non-financial disclosure that would be included in the formal (public) prospectus filing; missing disclosure can result in review timelines being extended.
- A transaction timeline should be included in the pre-filing cover letter to assist AMF staff in understanding when the review should ideally be completed. The AMF expects that the issuer will publicly file a preliminary prospectus shortly after the completion of the confidential pre-filing review of the prospectus.
- Any legal or accounting questions where AMF staff input is required should be highlighted.
The best practices echo those published earlier this year by the OSC.
Also noteworthy, the guidance emphasizes that the AMF will not review non-offering prospectuses in the pre-file process. An exception will be made for non-offering prospectuses in connection with cross-border financings or where there is a specific legal or accounting matter requiring staff input. Although the guidance is silent, we understand that a pre-filing of a shelf prospectus in connection with a shortly anticipated offering thereunder will be accepted, as long as a prospectus supplement is concurrently pre-filed.
More generally, given the high level of capital raising activities, AMF staff will give priority to the most urgent and time-sensitive prospectus filings, such as bought deals and overnight marketed offerings. AMF staff will not consider urgent and time sensitive a base shelf prospectus filing with no imminent drawdown.
The guidance also states that the AMF staff will triage and prioritize all other types of files, such as exemptive relief applications, in order to deal with the most urgent and time sensitive files. This may lead to additional review delays for the files considered less urgent and time sensitive.
In practice, for issuers planning initial public offerings, the confidential pre-filing review process remains available and recommended, although (i) issuers and their advisers should plan for a longer review period than the 10 business day period set forth in CSA Notice 43-310 and (ii) issuers should ensure that their confidential pre-filing is complete, both in terms of the prospectus content, financial statements (including any acquisition statements) and MD&A, as well as supporting "filing" documents including those that would otherwise have been required upon the public filing of the preliminary IPO prospectus.
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.