Unofficial Consolidation: National Instrument 44-101 Short Form Prospectus Distributions

Unofficial Consolidation: National Instrument 44-101 Short Form Prospectus Distributions

Unofficial Consolidation

Ontario Securities Commission

National Instrument 44-101

Unofficial consolidation current to 2018-06-12.

This document is not an official statement of law or policy and should be used for reference purposes only.

Any forms referenced in this document are available separately on the Ontario Securities Commission website.

National Instrument 44-101
SHORT FORM PROSPECTUS DISTRIBUTIONS

Contents

Part 1 Definitions and Interpretations

Definitions

Definitions in NI 41-101

References to Information Included in a Document

References to Information to be Included in a Document

Interpretation of "short form prospectus"

Part 2 Qualification to File a Prospectus in the Form of a Short Form Prospectus

Short Form Prospectus

Basic Qualification Criteria

Alternative Qualification Criteria for Issuers of Designated Rating Non-Convertible Securities

Alternative Qualification Criteria for Issuers of Guaranteed Non-Convertible Debt Securities, Preferred Shares and Cash Settled Derivatives

Alternative Qualification Criteria for Issuers of Guaranteed Convertible Debt Securities or Preferred Shares

Alternative Qualification Criteria for Issuers of Asset-Backed Securities

Exemptions for Reporting Issuers that Previously Filed a Prospectus and Successor Issuers

Notice of Intention and Transition

Part 3 Deemed Incorporation by Reference

Deemed Incorporation by Reference of Filed Documents

Deemed Incorporation by Reference of Subsequently Filed Documents

Incorporation by Reference

Part 4 Filing Requirements for a Short Form Prospectus

Required Documents for Filing a Preliminary Short Form Prospectus

Required Documents for Filing a Short Form Prospectus

Alternative Consent

Review of Unaudited Financial Statements

Part 5 [Repealed]

Part 6 [Repealed]

Part 7 Solicitations of Expressions of Interest

Definitions and Interpretations

Solicitations of Expressions of Interest

Amendment or Termination of Bought Deal Agreement

Confirmation Clause

Standard Term Sheets after Announcement of Bought Deal but before a Receipt for a Preliminary Short Form Prospectus

Marketing Materials after Announcement of Bought Deal but before a Receipt for a Preliminary Short Form Prospectus

Road Shows after Announcement of Bought Deal but before a Receipt for a Preliminary Short Form Prospectus

Exception from Filing and Incorporation Requirements for Road Shows for Certain U.S. Cross-border Offerings

Part 8 Exemption

Exemption

Evidence of Exemption

Part 9 Transition, Repeal and Effective Date

Applicable Rules

Repeal

Effective Date

Appendix A - Notice Declaring Intention to be Qualified under National Instrument 44-101 Short Form Prospectus Distributions ("NI 44-101")

Appendix B - Authorization of Indirect Collection, Use and Disclosure of Personal Information [Repealed]

Appendix C - Issuer Form of Submission to Jurisdiction and Appointment of Agent  for Service of Process [Repealed]

Appendix D - Non-Issuer Form of Submission to Jurisdiction and Appointment of Agent for Service of Process [Repealed]

 

 

Part 1
Definitions and Interpretations

Definitions

1.1         In this Instrument

"AIF" has the same meaning as in NI 51-102 for a reporting issuer other than an investment fund, and for an investment fund means an annual information form as such term is used in NI 81-106;

"applicable CD rule" means, for a reporting issuer other than an investment fund, NI 51-102 and, for an investment fund, NI 81-106;

"cash equivalent" means an evidence of indebtedness that has a remaining term to maturity of 365 days or less and that is issued, or fully and unconditionally guaranteed as to principal and interest, by

    1. the government of Canada or the government of a jurisdiction of Canada,
    2. the government of the United States of America, the government of one of the states of the United States of America, the government of another sovereign state or a permitted supranational agency, if, in each case, the evidence of indebtedness has a designated rating, or
    3. a Canadian financial institution, or other entity that is regulated as a banking institution, loan corporation, trust company, or insurance company or credit union by the government, or an agency of the government, of the country under whose laws the entity is incorporated or organized or a political subdivision of that country, if, in either case, the Canadian financial institution or other entity has outstanding short term debt securities that have received a designated rating from any designated rating organization or its DRO affiliate;

"cash settled derivative" means a derivative, the terms of which provide for settlement only by means of cash or cash equivalent the amount of which is determinable by reference to the underlying interest of the derivative;

"current AIF" means,

    1. if the issuer has filed an AIF for its most recently completed financial year, that AIF, or
    2. the issuer's AIF filed for the financial year immediately preceding its most recently completed financial year if
      1. the issuer has not filed an AIF for its most recently completed financial year, and
      2. the issuer is not yet required under the applicable CD rule to have filed its annual financial statements for its most recently completed financial year,

"current annual financial statements" means,

    1. if the issuer has filed its comparative annual financial statements in accordance with the applicable CD rule for its most recently completed financial year, those financial statements together with the auditor's report accompanying the financial statements and, if there has been a change of auditors since the comparative period, an auditor's report on the financial statements for the comparative period, or
    2. the issuer's comparative annual financial statements filed for the financial year immediately preceding its most recently completed financial year, together with the auditor's report accompanying the financial statements and, if there has been a change of auditors since the comparative period, an auditor's report on the financial statements for the comparative period if
      1. the issuer has not filed its comparative annual financial statements for its most recently completed financial year, and
      2. the issuer is not yet required under the applicable CD rule to have filed its annual financial statements for its most recently completed financial year;

"designated rating" means the following:

    1. for the purposes of paragraph 2.6(1)(c), a credit rating from a designated rating organization listed in this paragraph, from a DRO affiliate of an organization listed in this paragraph, from a designated rating organization that is a successor credit rating organization of an organization listed in this paragraph or from a DRO affiliate of such successor credit rating organization, that is at or above one of the following corresponding rating categories or that is at or above a category that replaces one of the following corresponding rating categories:

Designated Rating Organization

Long Term Debt

Short Term Debt

Preferred Shares

DBRS Limited

BBB

R-2

Pfd-3

Fitch Ratings, Inc.

BBB

F3

BBB

Kroll Bond Rating Agency, Inc.

BBB

K3

BBB

Moody's Canada Inc.

Baa

Prime-3

Baa

S&P Global Ratings Canada

BBB

A-3

P-3

    1. except as described in paragraph (a), a credit rating from a designated rating organization listed in this paragraph, from a DRO affiliate of an organization listed in this paragraph, from a designated rating organization that is a successor credit rating organization of an organization listed in this paragraph or from a DRO affiliate of such successor credit rating organization, that is at or above one of the following corresponding rating categories or that is at or above a category that replaces one of the following corresponding rating categories:

Designated Rating Organization

Long Term Debt

Short Term Debt

Preferred Shares

DBRS Limited

BBB

R-2

Pfd-3

Fitch Ratings, Inc.

BBB

F3

BBB

Moody's Canada Inc.

Baa

Prime-3

Baa

S&P Global Ratings Canada

BBB

A-3

P-3

"designated rating organization" means,

    1. if designated under securities legislation, any of
      1. DBRS Limited, Fitch Ratings, Inc., Kroll Bond Rating Agency, Inc., Moody’s Canada Inc. or S&P Global Ratings Canada,
      2. a successor credit rating organization of a credit rating organization listed in subparagraph (i), or
    2. any other credit rating organization designated under securities legislation;

"DRO affiliate" has the same meaning as in section 1 of National Instrument 25-101 Designated Rating Organizations;

"material change report" means, for a reporting issuer other than an investment fund, a completed Form 51-102F3, and for an investment fund, a completed Form 51-102F3 Material Change Report of NI 51-102 adjusted as directed by NI 81-106;

"MD&A" has the same meaning as in NI 51-102 in relation to a reporting issuer other than an investment fund, and in relation to an investment fund means an annual or interim management report of fund performance as defined in NI 81-106;

"NI 13-101" means National Instrument 13-101 System for Electronic Document Analysis and Retrieval (SEDAR);

"NI 41-101" means National Instrument 41-101 General Prospectus Requirements;

"permitted supranational agency" means the International Bank for Reconstruction and Development, the International Finance Corporation, the Inter-American Development Bank, the Asian Development Bank, the Caribbean Development Bank, the European Bank for Reconstruction and Development, the African Development Bank and any person or company prescribed under paragraph (g) of the definition of "foreign property" in subsection 206(1) of the ITA;

"reverse takeover acquiree" has the same meaning as in section 1.1 of NI 51-102;

"short form eligible exchange" means each of the Toronto Stock Exchange, Tier 1 and Tier 2 of the TSX Venture Exchange, Aequitas NEO Exchange Inc., and the Canadian Securities Exchange;

"successor credit rating organization" means, with respect to a credit rating organization, any credit rating organization that succeeded to or otherwise acquired all or substantially all of another credit rating organization’s business in Canada, whether through a restructuring transaction or otherwise, if that business was, at any time, owned by the first-mentioned credit rating organization;

"successor issuer" means

    1. except for an issuer which, in the case where the restructuring transaction involved a divestiture of a portion of a reporting issuer’s business, succeeded to or otherwise acquired less than substantially all of the business divested, an issuer that meets any of the following requirements:
      1. it was a reverse takeover acquiree in a completed reverse takeover;
      2. it was formed as a result of a completed restructuring transaction;
      3. it participated in a restructuring transaction and its existence continued following the completion of the restructuring transaction; or
    2. an issuer that issued securities to the securityholders of a second issuer that was a reporting issuer, in a reorganization that did not alter those securityholders’ proportionate interest in the second issuer or the second issuer’s proportionate interest in its assets;

"underlying interest" means, for a derivative, the security, commodity, financial instrument, currency, interest rate, foreign exchange rate, economic indicator, index, basket, agreement, benchmark or any other reference, interest or variable, and, if applicable, the relationship between any of the foregoing, from, to or on which the market price, value or any payment obligation of the derivative is derived, referenced or based; and

"U.S. credit supporter" means a credit supporter that

    1. is incorporated or organized under the laws of the United States of America or any state or territory of the United States of America or the District of Columbia,
    2. either
      1. has a class of securities registered under section 12(b) or section 12(g) of the 1934 Act, or
      2. is required to file reports under section 15(d) of the 1934 Act,
    3. has filed with the SEC all 1934 Act filings for a period of 12 calendar months immediately before the filing of the preliminary short form prospectus,
    4. is not registered or required to be registered as an investment company under the Investment Company Act of 1940 of the United States of America, and
    5. is not a commodity pool issuer as defined in National Instrument 71-101 The Multijurisdictional Disclosure System.

Definitions in NI 41-101

1.1.1      Every term that is defined or interpreted in NI 41-101, the definition or interpretation of which is not restricted to a specific portion of NI 41-101, has, if used in this Instrument, the meaning ascribed to it in NI 41-101, unless otherwise defined or interpreted in this Instrument.

References to Information Included in a Document

1.2         References in this Instrument to information included in a document refer to both information contained directly in the document and information incorporated by reference in the document.

References to Information to be Included in a Document

1.3         Provisions of this Instrument that require an issuer to include information in a document require an issuer either to insert the information directly in the document or to incorporate the information in the document by reference.

Interpretation of "short form prospectus"

1.4         In this Instrument, other than in Parts 4 through 8 or unless otherwise stated, a reference to a short form prospectus includes a preliminary short form prospectus.

1.5         [Repealed]

Part 2
Qualification to File a Prospectus in the Form of a Short Form Prospectus

Short Form Prospectus

2.1 (1)    An issuer shall not file a prospectus in the form of Form 44-101F1 of this Instrument unless the issuer is qualified under any of sections 2.2 through 2.6 to file a prospectus in the form of a short form prospectus.

(2)          An issuer that is qualified under any of sections 2.2 through 2.6 to file a prospectus in the form of a short form prospectus for a distribution may file, for that distribution,

    1. a preliminary prospectus, prepared and certified in the form of Form 44-101F1; and
    2. a prospectus, prepared and certified in the form of Form 44-101F1.

Basic Qualification Criteria

2.2         An issuer is qualified to file a prospectus in the form of a short form prospectus for a distribution of any of its securities in the local jurisdiction, if the following criteria are satisfied:

    1. the issuer is an electronic filer under NI 13-101;
    2. the issuer is a reporting issuer in at least one jurisdiction of Canada;
    3. the issuer has filed with the securities regulatory authority in each jurisdiction in which it is a reporting issuer all periodic and timely disclosure documents that it is required to have filed in that jurisdiction
      1. under applicable securities legislation,
      2. pursuant to an order issued by the securities regulatory authority, or
      3. pursuant to an undertaking to the securities regulatory authority;
    4. the issuer has, in at least one jurisdiction in which it is a reporting issuer,
      1. current annual financial statements, and
      2. a current AIF;
    5. the issuer's equity securities are listed and posted for trading on a short form eligible exchange and the issuer is not an issuer
      1. whose operations have ceased, or
      2. whose principal asset is cash, cash equivalents, or its exchange listing.

Alternative Qualification Criteria for Issuers of Designated Rating Non-Convertible Securities

2.3 (1)    An issuer is qualified to file a prospectus in the form of a short form prospectus for a distribution of non-convertible securities in the local jurisdiction, if the following criteria are satisfied:

    1. the issuer is an electronic filer under NI 13-101;
    2. the issuer is a reporting issuer in at least one jurisdiction of Canada;
    3. the issuer has filed with the securities regulatory authority in each jurisdiction in which it is a reporting issuer all periodic and timely disclosure documents that it is required to have filed in that jurisdiction
      1. under applicable securities legislation,
      2. pursuant to an order issued by the securities regulatory authority, or
      3. pursuant to an undertaking to the securities regulatory authority;
    4. the issuer has, in at least one jurisdiction in which it is a reporting issuer,
      1. current annual financial statements, and
      2. a current AIF;
    5. the securities to be distributed
      1. have received a designated rating on a provisional basis,
      2. are not the subject of an announcement by a designated rating organization or its DRO affiliate, of which the issuer is or ought reasonably to be aware, that the designated rating given by the organization may be down-graded to a rating category that would not be a designated rating, and
      3. have not received a provisional or final rating lower than a designated rating from any designated rating organization or its DRO affiliate.

(2)          Paragraph (1)(e) does not apply to an issuer filing a short form prospectus that is a base shelf prospectus under NI 44-102.

Alternative Qualification Criteria for Issuers of Guaranteed Non-Convertible Debt Securities, Preferred Shares and Cash Settled Derivatives

2.4 (1)    An issuer is qualified to file a prospectus in the form of a short form prospectus for a distribution of non-convertible debt securities, non-convertible preferred shares or non-convertible cash settled derivatives in the local jurisdiction, if the following criteria are satisfied:

    1. a credit supporter has provided full and unconditional credit support for the securities being distributed,
    2. at least one of the following is true:
      1. the credit supporter satisfies the criteria in paragraphs 2.2(a), (b), (c) and (d) if the word "issuer" is replaced with "credit supporter" wherever it occurs;
      2. the credit supporter is a U.S. credit supporter and the issuer is incorporated or organized under the laws of Canada or a jurisdiction of Canada;
    3. unless the credit supporter satisfies the criteria in paragraph 2.2(e) if the word "issuer" is replaced with "credit supporter" wherever it occurs, at the time the preliminary short form prospectus is filed
      1. the credit supporter has outstanding non-convertible securities that
        1. have received a designated rating,
        2. have not been the subject of an announcement by a designated rating organization or its DRO affiliate, of which the issuer is or ought reasonably to be aware, that the designated rating given by the organization may be down-graded to a rating category that would not be a designated rating, and
        3. have not received a rating lower than a designated rating from any designated rating organization or its DRO affiliate, and
      2. the securities to be issued by the issuer
        1. have received a designated rating on a provisional basis,
        2. have not been the subject of an announcement by a designated rating organization or its DRO affiliate, of which the issuer is or ought reasonably to be aware, that the designated rating given by the organization may be down-graded to a rating category that would not be a designated rating, and
        3. have not received a provisional or final rating lower than a designated rating from any designated rating organization or its DRO affiliate.

(2)          Subparagraph (1)(c)(ii) does not apply to an issuer filing a short form prospectus that is a base shelf prospectus under NI 44-102.

Alternative Qualification Criteria for Issuers of Guaranteed Convertible Debt Securities or Preferred Shares

2.5         An issuer is qualified to file a prospectus in the form of a short form prospectus for a distribution of convertible debt securities or convertible preferred shares in the local jurisdiction, if the following criteria are satisfied:

    1. the debt securities or the preferred shares are convertible into securities of a credit supporter that has provided full and unconditional credit support for the securities being distributed;
    2. the credit supporter satisfies the criteria in section 2.2 if the word "issuer" is replaced with "credit supporter" wherever it occurs.

Alternative Qualification Criteria for Issuers of Asset-Backed Securities

2.6 (1)    An issuer established in connection with a distribution of asset-backed securities is qualified to file a prospectus in the form of a short form prospectus for a distribution of asset-backed securities in the local jurisdiction, if the following criteria are satisfied:

    1. the issuer is an electronic filer under NI 13-101;
    2. the issuer has, in at least one jurisdiction of Canada,
      1. current annual financial statements, and
      2. a current AIF;
    3. the asset-backed securities to be distributed
      1. have received a designated rating on a provisional basis,
      2. have not been the subject of an announcement by a designated rating organization or its DRO affiliate, of which the issuer is or ought reasonably to be aware, that the designated rating given by the organization may be down-graded to a rating category that would not be a designated rating, and
      3. have not received a provisional or final rating lower than a designated rating from any designated rating organization or its DRO affiliate.

(2)          Paragraph (1)(c) does not apply to an issuer filing a short form prospectus that is a base shelf prospectus under NI 44-102.

Exemptions for Reporting Issuers that Previously Filed a Prospectus and Successor Issuers

2.7 (1)    Paragraphs 2.2(d), 2.3(1)(d) and 2.6(1)(b) do not apply to an issuer if

    1. the issuer is not exempt from the requirement in the applicable CD rule to file annual financial statements within a prescribed period after its financial year end, but the issuer has not yet been required under the applicable CD rule to file any annual financial statements, and
    2. unless the issuer is seeking qualification under section 2.6, the issuer has filed and obtained a receipt for a final prospectus that included the issuer's or each predecessor entity's comparative annual financial statements for its most recently completed financial year or the financial year immediately preceding its most recently completed financial year, together with the auditor's report accompanying those financial statements and, if there has been a change of auditors since the comparative period, an auditor's report on the financial statements for the comparative period.

(1.1)       Subparagraphs 2.2(d)(ii), 2.3(1)(d)(ii) and 2.6(1)(b)(ii) do not apply to an issuer if

    1. the issuer has filed annual financial statements as required under the applicable CD rule, and
    2. unless the issuer is seeking qualification under section 2.6, the issuer has filed and obtained a receipt for a final prospectus that included the issuer’s or each predecessor entity’s comparative annual financial statements for its most recently completed financial year or the financial year immediately preceding its most recently completed financial year, together with the auditor’s report accompanying those financial statements and, if there has been a change of auditors since the comparative period, an auditor’s report on the financial statements for the comparative period.

(2)          Paragraphs 2.2(d), 2.3(1)(d) and 2.6(1)(b) do not apply to a successor issuer if

    1. the successor issuer is not exempt from the requirement in the applicable CD rule to file annual financial statements within a prescribed period after its financial year end, but the successor issuer has not yet, since the completion of the restructuring transaction or the reorganization described in paragraph (b) of the definition of “successor issuer”, which resulted in the successor issuer, been required under the applicable CD rule to file annual financial statements, and
    2. an information circular relating to the restructuring transaction or the reorganization described in paragraph (b) of the definition of “successor issuer”, in which the successor issuer participated or which resulted in the successor issuer was filed by the successor issuer or an issuer that was a party to the restructuring transaction or reorganization, and such information circular
      1. complied with applicable securities legislation, and
      2. in the case of a restructuring transaction, included disclosure in accordance with section 14.2 or 14.5 of Form 51-102F5 for the successor issuer.

(3)          Paragraphs 2.2(d), 2.3(1)(d) and 2.6(1)(b) do not apply to an issuer if

    1. the issuer is not exempt from the requirement in the applicable CD rule to file annual financial statements within a prescribed period after its financial year end, but the issuer has not yet, since the completion of a qualifying transaction or reverse takeover (as both terms are defined in the TSX Venture Exchange Corporate Finance Manual, as amended from time to time) been required under the applicable CD rule to file annual financial statements, and
    2. a CPC filing statement as defined in the TSX Venture Exchange Corporate Finance Manual as amended from time to time, or other filing statement of the TSX Venture Exchange was filed by the issuer and,
      1. in the case of a CPC filing statement, the statement
        1. was filed in connection with a qualifying transaction, and
        2. complied with the TSX Venture Exchange Corporate Finance Manual, as amended from time to time, in respect of the qualifying transaction; or
      2. in the case of a TSX Venture Exchange filing statement, other than a CPC filing statement, the statement
        1. was filed in connection with a reverse takeover, and
        2. complied with TSX Venture Exchange Corporate Finance Manual, as amended from time to time, in respect of the reverse takeover.

Notice of Intention and Transition

2.8 (1)    An issuer is not qualified to file a short form prospectus under this Part unless it has filed a notice declaring its intention to be qualified to file a short form prospectus at least 10 business days prior to the issuer filing its first preliminary short form prospectus after the notice

    1. with its notice regulator, and
    2. in substantially the form of Appendix A.

(2)          The notice under subsection (1) is effective until withdrawn.

(3)          For the purposes of subsection (1), "notice regulator" means, as determined on the date the notice is filed, the securities regulatory authority or regulator of the jurisdiction of Canada

    1. in which the issuer's head office is located, if the issuer is not an investment fund and the issuer is a reporting issuer in that jurisdiction,
    2. in which the investment fund manager's head office is located, if the issuer is an investment fund and the issuer is a reporting issuer in that jurisdiction, or
    3. with which the issuer has determined that it has the most significant connection, if paragraphs (a) and (b) do not apply to the issuer.

(4)          For the purposes of this section, if, on December 29, 2005, an issuer had a current AIF under National Instrument 44-101 Short Form Prospectus Distributions that was in force on December 29, 2005, the issuer is deemed to have filed a notice on December 14, 2005 declaring its intention to be qualified to file a short form prospectus.

(5)          [Repealed]

(6)          The 10 business day period referred to in subsection (1) does not apply if

    1. an issuer is relying on section 2.4 or 2.5 and the following requirements are met:
      1. the issuer satisfies section 2.4 or 2.5, as applicable, at the time of filing its short form prospectus;
      2. the issuer files its notice of intention before or concurrently with the filing of its preliminary short form prospectus; and
      3. the issuer’s credit supporter
        1. previously filed a notice of intention under subsection (1) which has not been withdrawn; or
        2. is deemed to have filed a notice of intention under subsection (4); or
    2. an issuer is a successor issuer and the following requirements are met:
      1. the issuer satisfies
        1. section 2.2, 2.3 or 2.6, and
        2. subsection 2.7(2);
      2. the issuer files its notice of intention before or concurrently with the filing of its preliminary short form prospectus; and
      3. the issuer has acquired substantially all of its business from a person or company that
        1. previously filed a notice of intention under subsection (1) which has not been withdrawn; or
        2. is deemed to have filed a notice of intention under subsection (4).

Part 3
Deemed Incorporation by Reference

Deemed Incorporation by Reference of Filed Documents

3.1         If an issuer does not incorporate by reference in its short form prospectus a document required to be incorporated by reference under section 11.1 or 12.1 of Form 44-101F1, the document is deemed for purposes of securities legislation to be incorporated by reference in the issuer's short form prospectus as of the date of the short form prospectus to the extent not otherwise modified or superseded by a statement contained in the short form prospectus or in any other subsequently filed document that also is, or is deemed to be, incorporated by reference in the short form prospectus.

Deemed Incorporation by Reference of Subsequently Filed Documents

3.2         If an issuer does not incorporate by reference in its short form prospectus a subsequently filed document required to be incorporated by reference under section 11.2 or 12.1 of Form 44-101F1, the document is deemed for purposes of securities legislation to be incorporated by reference in the issuer's short form prospectus as of the date the issuer filed the document to the extent not otherwise modified or superseded by a statement contained in the short form prospectus or in any other subsequently filed document that also is, or is deemed to be, incorporated by reference in the short form prospectus.

Incorporation by Reference

3.3         A document deemed by this Instrument to be incorporated by reference in another document is deemed for purposes of securities legislation to be incorporated by reference in the other document.

Part 4
Filing Requirements for a Short Form Prospectus

Required Documents for Filing a Preliminary Short Form Prospectus

4.1 (1)    An issuer that files a preliminary short form prospectus shall

    1. file the following with the preliminary short form prospectus:
      1. Signed Copy - a signed copy of the preliminary short form prospectus;
      2. Qualification Certificate - a certificate, dated as of the date of the preliminary short form prospectus, executed on behalf of the issuer by one of its executive officers
        1. specifying which of the qualification criteria set out in Part 2 the issuer is relying on in order to be qualified to file a prospectus in the form of a short form prospectus, and
        2. certifying that

(I)           all of those qualification criteria have been satisfied, and

(II)          all of the material incorporated by reference in the preliminary short form prospectus and not previously filed is being filed with the preliminary short form prospectus;

      1. Material Incorporated by Reference - copies of all material incorporated by reference in the preliminary short form prospectus and not previously filed;
      2. Documents Affecting the Rights of Securityholders – a copy of any document required to be filed under subsection 12.1(1) of NI 51-102 or section 16.4 of NI 81-106, as applicable, that relates to the securities being distributed, and that has not previously been filed;

(iv.1)      Material Contracts – a copy of any material contract required to be filed under section 12.2 of NI 51-102 or section 16.4 of NI 81-106 that has not previously been filed;

      1. Mining Reports - if the issuer has a mineral project, the technical reports required to be filed with a preliminary short form prospectus under NI 43-101;
      2. Reports and Valuations - a copy of each report or valuation referred to in the preliminary short form prospectus for which a consent is required to be filed under section 10.1 of NI 41-101 and that has not previously been filed, other than a technical report that
        1. deals with a mineral project or oil and gas activities, and
        2. is not otherwise required to be filed under paragraph (v); and
      3. Marketing Materials – a copy of any template version of the marketing materials required to be filed under paragraph 7.6(1)(e) of this Instrument or paragraph 13.7(1)(e) of NI 41-101 that has not previously been filed; and
    1. deliver to the regulator, concurrently with the filing of the preliminary short form prospectus, the following:
      1. Personal Information Form and Authorization to Collect, Use and Disclose Personal Information – a completed personal information form for,
        1. each director and executive officer of an issuer;
        2. if the issuer is an investment fund, each director and executive officer of the manager of the issuer;
        3. each promoter of the issuer; and
        4. if the promoter is not an individual, each director and executive officer of the promoter;
        5. [Repealed]
        6. [Repealed]
        7. [Repealed]
      2. Auditor's Comfort Letter Regarding Audited Financial Statements -if a financial statement of an issuer or a business included in, or incorporated by reference into, a preliminary short form prospectus is accompanied by an unsigned auditor's report, a signed letter addressed to the regulator from the auditor of the issuer or of the business, as applicable, prepared in accordance with the form suggested for this circumstance in the Handbook; and
      3. Marketing Materials – a copy of any template version of the marketing materials required to be delivered under paragraph 7.6(4)(c) or 7.8(2)(c) of this Instrument or paragraph 13.7(4)(c) or 13.12(2)(c) of NI 41-101 that has not previously been delivered.

(2)          Despite subparagraph (1)(b)(i), an issuer is not required to deliver to the regulator a personal information form for an individual if the issuer, another issuer or, if the issuer is an investment fund, the manager of the investment fund issuer or another investment fund issuer, previously delivered a personal information form for the individual and all of the following are satisfied:

    1. the certificate and consent included in or attached to the personal information form was executed by the individual within three years preceding the date of filing of the preliminary short form prospectus;
    2. the responses given by the individual to questions 6 through 10 of the individual’s personal information form are correct as at a date that is within 30 days of the filing of the preliminary short form prospectus;
    3. if the personal information form was previously delivered to the regulator by another issuer, the issuer delivers to the regulator, concurrently with the filing of the preliminary short form prospectus, a copy of the previously delivered personal information form, or alternative information that is satisfactory to the regulator.

(3)          Until May 14, 2016, subparagraph (1)(b)(i) does not apply to an issuer in respect of the delivery of a personal information form for an individual if the issuer or, if the issuer is an investment fund, the manager of the investment fund issuer, previously delivered to the regulator a predecessor personal information form for the individual and all of the following are satisfied:

    1. the certificate and consent included in or attached to the predecessor personal information form was executed by the individual within three years preceding the date of filing of the preliminary short form prospectus;
    2. the responses given by the individual to questions 4(B) and (C) and questions 6 through 9 or, in the case of a TSX/TSXV personal information form in effect after September 8, 2011, questions 6 through 10, of the individual’s predecessor personal information form are correct as at a date that is within 30 days of the filing of the preliminary short form prospectus.

Required Documents for Filing a Short Form Prospectus

4.2         An issuer that files a short form prospectus shall

    1. file the following with the short form prospectus:
      1. Signed Copy - a signed copy of the short form prospectus;
      2. Material Incorporated by Reference - copies of all material incorporated by reference in the short form prospectus and not previously filed;
      3. Documents Affecting the Rights of Securityholders – a copy of any document described under subparagraph 4.1(a)(iv) that has not previously been filed;

(iii.1)       Material Contracts – a copy of any material contract described under subparagraph 4.1(a)(iv.1) that has not previously been filed;

      1. Other Reports and Valuations - a copy of any report or valuation referred to in the short form prospectus, for which a consent is required to be filed under section 10.1 of NI 41-101 and that has not previously been filed, other than a technical report that
        1. deals with a mineral project or oil and gas activities of the issuer, and
        2. is not otherwise required to be filed under subparagraph 4.1(a)(v) or (vi);
      2. Issuer's Submission to Jurisdiction - a submission to jurisdiction and appointment of agent for service of process of the issuer in the form set out in Appendix B of NI 41-101, if an issuer is incorporated or organized in a foreign jurisdiction and does not have an office in Canada;
      3. Non-Issuer's Submission to Jurisdiction - a submission to jurisdiction and appointment of agent for service of process of
        1. each selling securityholder,

(A.1)      each director of the issuer, and

        1. any other person or company that provides or signs a certificate under Part 5 of NI 41-101 or other securities legislation, other than an issuer,

in the form set out in Appendix C of NI 41-101, if the person or company is incorporated or organized under a foreign jurisdiction and does not have an office in Canada or is an individual who resides outside of Canada;

      1. Expert's Consents - the consents required to be filed under section 10.1 of NI 41-101;
      2. Credit Supporter's Consent - the written consent of the credit supporter to the inclusion of its financial statements in the short form prospectus, if financial statements of a credit supporter are required under section 12.1 of Form 44-101F1 to be included in a short form prospectus and a certificate of the credit supporter is not required under section 5.12 of NI 41-101 to be included in the short form prospectus;
      3. Undertaking in Respect of Credit Supporter Disclosure – an undertaking of the issuer to file the periodic and timely disclosure of a credit supporter similar to the disclosure provided under section 12.1 of Form 44-101F1, for so long as the securities being distributed are issued and outstanding;
      4. Undertaking to File Agreements, Contracts and Material Contracts – if an agreement or contract referred to in subparagraph (iii) or a material contract under subparagraph (iii.1) has not been executed before the filing of the final short form prospectus but will be executed on or before the completion of the distribution, the issuer must file with the securities regulatory authority, no later than the time of filing of the final short form prospectus, an undertaking of the issuer to the securities regulatory authority to file the agreement, contract or material contract promptly and in any event no later than seven days after the execution of the agreement, contract or material contract;

(x.1)       Undertaking to File Unexecuted Documents – if a document referred to in subparagraph (iii) does not need to be executed in order to become effective and has not become effective before the filing of the final short form prospectus, but will become effective on or before the completion of the distribution, the issuer must file with the securities regulatory authority, no later than the time of filing of the final short form prospectus, an undertaking of the issuer to the securities regulatory authority to file the document promptly and in any event no later than seven days after the document becomes effective;

      1. Undertaking in Respect of Restricted Securities – for distributions of non-voting securities an undertaking of the issuer to give notice to holders of non-voting securities of a meeting of securityholders if a notice of such meeting is given to its registered holders of voting securities; and
      2. Marketing Materials – a copy of any template version of the marketing materials required to be filed under paragraph 7.6(1)(e) or 7.6(7)(a) of this Instrument or paragraph 13.7(1)(e), 13.7(7)(a) or 13.8(1)(e) of NI 41-101 that has not previously been filed; and
    1. deliver the following to the regulator, no later than the filing of the short form prospectus,
      1. a copy of the short form prospectus, blacklined to show changes from the preliminary short form prospectus,
      2. if the issuer has made an application to list the securities being distributed on an exchange in Canada, a copy of a communication in writing from the exchange stating that the application for listing has been made and has been accepted subject to the issuer meeting the requirements for listing of the exchange,
      3. a copy of any template version of the marketing materials required to be delivered under paragraph 7.6(4)(c) or 7.8(2)(c) of this Instrument or paragraph 13.7(4)(c) or 13.12(2)(c) of NI 41-101 that has not previously been delivered,
      4. the evidence of financial ability required to be delivered under section 8A.4 of NI 41-101 if it has not previously been delivered, and
      5. the evidence of fair value required to be delivered under subsection 8A.2(2) of NI 41-101 if it has not previously been delivered.

Alternative Consent

4.2.1 (1) Despite subparagraph 4.2(a)(vii), if the expert whose consent is required is a "qualified person" as defined in NI 43-101, the issuer is not required to file the consent of the qualified person if

    1. the qualified person's consent is required in connection with a technical report that was not required to be filed with the preliminary short form prospectus,
    2. the qualified person was employed by a person or company at the date of signing the technical report,
    3. the principal business of the person or company is providing engineering or geoscientific services, and
    4. the issuer files the consent of the person or company.

(2)          A consent filed under subsection (1) must be signed by an individual who is an authorized signatory of the person or company and who falls within paragraphs (a), (b), (d) and (e) of the definition of "qualified person" in NI 43-101.

Review of Unaudited Financial Statements

4.3 (1)    Subject to subsection (2), any unaudited financial statements, other than pro forma financial statements, included in, or incorporated by reference into, a short form prospectus must have been reviewed in accordance with the relevant standards set out in the Handbook for a review of financial statements by the person or company's auditor or a public accountant's review of financial statements.

(2)          If NI 52-107 permits the financial statements of the person or company in subsection (1) to be audited in accordance with

    1. U.S. AICPA GAAS, the unaudited financial statements may be reviewed in accordance with the review standards issued by the American Institute of Certified Public Accountants,

(a.1)       U.S. PCAOB GAAS, the unaudited financial statements may be reviewed in accordance with the review standards issued by the Public Company Accounting Oversight Board (United States of America),

    1. International Standards on Auditing, the unaudited financial statements may be reviewed in accordance with International Standards on Review Engagement issued by the International Auditing and Assurance Standards Board, or
    2. auditing standards that meet the foreign disclosure requirements of the designated foreign jurisdiction to which the issuer is subject, the unaudited financial statements
      1. may be reviewed in accordance with review standards that meet the foreign disclosure requirements of the designated foreign jurisdiction, or
      2. do not have to be reviewed if
        1. the designated foreign jurisdiction does not have review standards for unaudited financial statements, and
        2. the short form prospectus includes disclosure that the unaudited financial statements have not been reviewed.

4.4         [Repealed]

4.5         [Repealed]

Part 5
[Repealed]

Part 6
[Repealed]

Part 7
Solicitations of Expressions of Interest

Definitions and Interpretations

7.1 (1)    In this Part:

“bought deal agreement” means a written agreement

    1. under which one or more underwriters has agreed to purchase all securities of an issuer that are to be offered in a distribution under a short form prospectus on a firm commitment basis, other than securities issuable on the exercise of an over-allotment option,
    2. that does not have a market-out clause,
    3. that, other than an over-allotment option, does not provide an option for any party to increase the number of securities to be purchased, and
    4. that, other than what is agreed to under a confirmation clause that complies with section 7.4, is not conditional on one or more additional underwriters agreeing to purchase any of the securities offered;

“comparables” means information that compares an issuer to other issuers;

“confirmation clause” means a provision in a bought deal agreement that provides that the agreement is conditional on the lead underwriter confirming that one or more additional underwriters has agreed to purchase certain of the securities offered;

“market-out clause” means a provision in an agreement which permits an underwriter to terminate its commitment, or underwriters to terminate their commitment, to purchase securities in the event that the securities cannot be marketed profitably due to market conditions;

“U.S. cross-border offering” means an offering of securities of an issuer being made contemporaneously in the United States of America and Canada by way of a prospectus filed with a securities regulatory authority in a jurisdiction of Canada and a U.S. prospectus filed with the SEC;

“U.S. prospectus” means a prospectus that has been prepared in accordance with the disclosure and other requirements of U.S. federal securities law for an offering of securities registered under the 1933 Act.

(2)          In this Part, for greater certainty, a reference to “provides” includes showing a document to a person without allowing the person to retain or make a copy of the document.

Solicitations of Expressions of Interest

7.2         Subject to subsection 7.4(2), the prospectus requirement does not apply to a solicitation of an expression of interest made before the issuance of a receipt for a preliminary short form prospectus for securities to be qualified for distribution under a short form prospectus pursuant to this Instrument or for securities to be issued or transferred pursuant to an over-allotment option that are qualified for distribution under a short form prospectus pursuant to this Instrument, if

    1. before the solicitation,
      1. the issuer has entered into a bought deal agreement;
      2. the bought deal agreement has fixed the terms of the distribution, including, for greater certainty, the number and type of securities and the price per security, and requires that the issuer file a preliminary short form prospectus for the securities not more than four business days after the date that the bought deal agreement was entered into; and
      3. immediately upon entering into the bought deal agreement, the issuer issued and filed a news release announcing the agreement,
    2. the issuer files a preliminary short form prospectus for the securities pursuant to this Instrument within four business days after the date that the bought deal agreement was entered into,
    3. upon issuance of a receipt for the preliminary short form prospectus, a copy of the preliminary short form prospectus is sent to each person or company that, in response to the solicitation, expressed an interest in acquiring the securities, and
    4. except for a bought deal agreement under paragraph (a) or a more extended form of underwriting agreement referred to in subsection 7.3(6), no agreement of purchase and sale for the securities is entered into until the short form prospectus has been filed and a receipt has been issued.

Amendment or Termination of Bought Deal Agreement

7.3 (1)    Except as provided in subsections (2) to (7), a party to a bought deal agreement referred to in paragraph 7.2(a) must not agree to modify the terms of a distribution provided for under a bought deal agreement.

(2)          The parties to a bought deal agreement referred to in paragraph 7.2(a) may increase the number of securities to be purchased by an underwriter or underwriters, if

    1. the number of additional securities to be purchased does not exceed 100% of the total of the base offering contemplated by the original agreement plus any securities that would be acquired upon the exercise of an over-allotment option;
    2. the type of securities to be purchased, and the price per security, is the same as under the original agreement;
    3. the issuer files a preliminary short form prospectus for the increased number of securities in accordance with this Instrument within four business days after the date that the original agreement was entered into;
    4. immediately upon agreeing to change the number of securities to be purchased, the issuer issued and filed a news release announcing the amendment;
    5. no previous amendment has been made to the original agreement to increase the number of securities to be purchased; and
    6. the amended agreement is a bought deal agreement and the conditions in section 7.2 are complied with.

(3)          The parties to a bought deal agreement referred to in paragraph 7.2(a) may reduce the number of securities to be purchased, or the price of the securities, if the amendment is made on or after the date which is four business days after the date the original agreement was entered into.

(4)          The parties to a bought deal agreement referred to in paragraph 7.2(a) may provide for a different type of securities to be purchased by the underwriter or underwriters, and a different price for the securities, if

    1. in the case where a different type of securities is to be substituted in whole or in part for the securities that were the subject of the original agreement, or offered in addition to the securities that were the subject of the original agreement, the aggregate dollar amount of the securities to be purchased by the underwriter or underwriters on a firm commitment basis under the amended agreement is the same as the aggregate dollar amount of the securities that were to be purchased by the underwriter or underwriters on a firm commitment basis under the original agreement or under an agreement amended in accordance with subsection (2);
    2. before a solicitation of an expression of interest in the different type of securities and immediately upon entering into the amendment to the original agreement, the issuer issued and filed a news release announcing the amendment;
    3. the issuer files a preliminary short form prospectus for the different type of securities pursuant to this Instrument within four business days after the date that the original agreement was entered into;
    4. no previous amendment has been made to the original agreement to provide for a different type of securities to be purchased; and
    5. the amended agreement is a bought deal agreement and the conditions in section 7.2 are complied with.

(5)          The parties to a bought deal agreement referred to in paragraph 7.2(a) may add or remove an underwriter or adjust the number of securities to be purchased by each underwriter on a proportionate basis, if

    1. the aggregate dollar amount of the securities to be purchased by the underwriter or underwriters on a firm commitment basis under the amended agreement is the same as the aggregate dollar amount of the securities that were to be purchased by the underwriter or underwriters on a firm commitment basis under the original agreement or under an agreement amended in accordance with subsection (2); and
    2. the amended agreement is a bought deal agreement and the conditions in section 7.2 are complied with.

(6)          The parties to a bought deal agreement referred to in paragraph 7.2(a) may replace the bought deal agreement with a more extended form of underwriting agreement that includes, without limitation, termination rights, if the more extended form of underwriting agreement complies with the terms and conditions that apply to a bought deal agreement under this Part.

(7)          The parties to a bought deal agreement referred to in paragraph 7.2(a) may agree to terminate the agreement if the parties decide not to proceed with the distribution.

Confirmation Clause

7.4 (1)    A bought deal agreement referred to in paragraph 7.2(a) must not contain a confirmation clause unless

    1. under the bought deal agreement, the lead underwriter must provide the issuer with a copy of the agreement that has been signed by the lead underwriter;
    2. the issuer signs the bought deal agreement on the same day that the lead underwriter provides the agreement in accordance with paragraph (a);
    3. the lead underwriter has discussions with other investment dealers regarding their participation in the distribution as additional underwriters; and
    4. on the business day after the day that the lead underwriter provides the agreement in accordance with paragraph (a), the lead underwriter provides notice in writing to the issuer that
      1. the lead underwriter has confirmed the terms of the bought deal agreement, or
      2. the lead underwriter will not be confirming the terms of the bought deal agreement and the agreement has been terminated.

(2)          Where an issuer has entered into a bought deal agreement that has been confirmed in accordance with subsection (1), the prospectus requirement does not apply to a solicitation of an expression of interest made before the issuance of a receipt for a preliminary short form prospectus for securities to be qualified for distribution under a short form prospectus pursuant to this Instrument, or for securities to be issued or transferred pursuant to an over-allotment option that are qualified for distribution under a short form prospectus pursuant to this Instrument, if

    1. before the solicitation,
      1. the bought deal agreement has fixed the terms of the distribution, including, for greater certainty, the number and type of securities and the price per security, and requires that the issuer file a preliminary short form prospectus for the securities not more than four business days after the date that the lead underwriter provides the notice in accordance with subparagraph (1)(d)(i); and
      2. immediately after the lead underwriter provides the notice in accordance with subparagraph (1)(d)(i), the issuer issues the news release referred to in subparagraph 7.2(a)(iii),
    2. the issuer files a preliminary short form prospectus for the securities pursuant to this Instrument within four business days after the date that the lead underwriter provides the notice in accordance with subparagraph (1)(d)(i),
    3. upon issuance of a receipt for the preliminary short form prospectus, a copy of the preliminary short form prospectus is sent to each person or company that, in response to the solicitation, expressed an interest in acquiring the securities, and
    4. except for a bought deal agreement under paragraph 7.2(a), no agreement of purchase and sale for the securities is entered into until the short form prospectus has been filed and a receipt has been issued.

Standard Term Sheets after Announcement of Bought Deal but before a Receipt for a Preliminary Short Form Prospectus

7.5 (1)    An investment dealer that provides a standard term sheet to a potential investor before the issuance of a receipt for a preliminary short form prospectus is exempt from the prospectus requirement with respect to providing the standard term sheet if

    1. the standard term sheet complies with subsections (2) and (3);
    2. the issuer is relying on the exemption in section 7.2 and has complied with paragraph 7.2(a);
    3. other than contact information for the investment dealer or underwriters, all information in the standard term sheet concerning the issuer, the securities or the offering
      1. is disclosed in, or derived from,
        1. the news release described in subparagraph 7.2(a)(iii), or
        2. a document referred to in subsection 11.1(1) of Form 44-101F1 that the issuer has filed, or
      2. will be disclosed in, or derived from, the preliminary short form prospectus that is subsequently filed; and
    4. the preliminary short form prospectus will be filed in the local jurisdiction.

(2)          A standard term sheet provided under subsection (1) must be dated and include the following legend, or words to the same effect, on the first page:

A preliminary short form prospectus containing important information relating to the securities described in this document has not yet been filed with the securities regulatory authorit[y/ies] in [each of/certain of the provinces/provinces and territories of Canada].

Copies of the preliminary short form prospectus may be obtained from [insert contact information for the investment dealer or underwriters]. There will not be any sale or any acceptance of an offer to buy the securities until a receipt for the final short form prospectus has been issued.

This document does not provide full disclosure of all material facts relating to the securities offered. Investors should read the preliminary short form prospectus, final short form prospectus and any amendment, for disclosure of those facts, especially risk factors relating to the securities offered, before making an investment decision.

(3)          A standard term sheet provided under subsection (1) may contain only the information referred to in subsection (2) and the information referred to in subsection 13.5(3) of NI 41-101.

Marketing Materials after Announcement of Bought Deal but before a Receipt for a Preliminary Short Form Prospectus

7.6 (1)    An investment dealer that provides marketing materials to a potential investor before the issuance of a receipt for a preliminary short form prospectus is exempt from the prospectus requirement with respect to providing the marketing materials if

    1. the marketing materials comply with subsections (2) to (8);
    2. the issuer is relying on the exemption in section 7.2 and has complied with paragraph 7.2(a);
    3. other than contact information for the investment dealer or underwriters and any comparables, all information in the marketing materials concerning the issuer, the securities or the offering
      1. is disclosed in, or derived from,
        1. the news release described in subparagraph 7.2(a)(iii), or
        2. a document referred to in subsection 11.1(1) of Form 44-101F1 that the issuer has filed, or
      2. will be disclosed in, or derived from, the preliminary short form prospectus that is subsequently filed;
    4. a template version of the marketing materials is approved in writing by the issuer and the lead underwriter before the marketing materials are provided;
    5. a template version of the marketing materials is filed on or before the day that the marketing materials are first provided;
    6. the preliminary short form prospectus will be filed in the local jurisdiction; and
    7. upon issuance of a receipt for the preliminary short form prospectus, a copy of the preliminary short form prospectus is sent to each person or company that received the marketing materials and expressed an interest in acquiring the securities.

(2)          If a template version of the marketing materials is approved in writing by the issuer and lead underwriter under paragraph (1)(d) and filed under paragraph (1)(e), an investment dealer may provide a limited-use version of the marketing materials that

    1. has a date that is different than the template version;
    2. contains a cover page referring to the investment dealer or underwriters or a particular investor or group of investors;
    3. contains contact information for the investment dealer or underwriters; or
    4. has text in a format, including the type’s font, colour or size, that is different than the template version.

(3)          If a template version of the marketing materials is divided into separate sections for separate subjects and is approved in writing by the issuer and lead underwriter under paragraph (1)(d), and that template version is filed under paragraph (1)(e), an investment dealer may provide a limited-use version of the marketing materials that includes only one or more of those separate sections.

(4)          The issuer may remove any comparables, and any disclosure relating to those comparables, from the template version of the marketing materials before filing it under paragraph (1)(e) or (7)(a) if

    1. the comparables, and any disclosure relating to the comparables, are in a separate section of the template version of the marketing materials;
    2. the template version of the marketing materials that is filed contains a note advising that the comparables, and any disclosure relating to the comparables, were removed in accordance with this subsection, provided that the note appears immediately after where the removed comparables and related disclosure would have been;
    3. if the preliminary short form prospectus is subsequently filed in the local jurisdiction, a complete template version of the marketing materials is delivered to the securities regulatory authority; and
    4. the complete template version of the marketing materials contains the disclosure referred to in paragraph 13.7(4)(d) of NI 41-101.

(5)          Marketing materials provided under subsection (1) must be dated and include the following legend, or words to the same effect, on the first page:

A preliminary short form prospectus containing important information relating to the securities described in this document has not yet been filed with the securities regulatory authorit[y/ies] in [each of/certain of the provinces/provinces and territories of Canada]. A copy of the preliminary short form prospectus is required to be delivered to any investor that received this document and expressed an interest in acquiring the securities.

There will not be any sale or any acceptance of an offer to buy the securities until a receipt for the final short form prospectus has been issued.

This document does not provide full disclosure of all material facts relating to the securities offered. Investors should read the preliminary short form prospectus, final short form prospectus and any amendment, for disclosure of those facts, especially risk factors relating to the securities offered, before making an investment decision.

(6)          If marketing materials are provided before the issuance of a receipt for a preliminary short form prospectus under subsection (1), the issuer must include the template version of the marketing materials filed under paragraph (1)(e) in its final short form prospectus or incorporate by reference the template version of the marketing materials filed under paragraph (1)(e) into its final short form prospectus in the manner described in subsection 11.6(1) of Form 44-101F1.

(7)          If the final short form prospectus or any amendment modifies a statement of a material fact that appeared in marketing materials provided before the issuance of a receipt for the preliminary short form prospectus under subsection (1), the issuer must

    1. prepare and file, at the time the issuer files the final short form prospectus or any amendment, a revised template version of the marketing materials that is blacklined to show the modified statement, and
    2. include in the final short form prospectus, or any amendment, the disclosure required by subsection 11.6(3) of Form 44-101F1.

(8)          A revised template version of the marketing materials filed under subsection (7) must comply with section 13.8 of NI 41-101.

(9)          If marketing materials are provided before the issuance of a receipt for a preliminary short form prospectus under subsection (1) but the issuer does not comply with subsection (6), the marketing materials are deemed for purposes of securities legislation to be incorporated into the issuer’s final short form prospectus as of the date of the final short form prospectus to the extent not otherwise expressly modified or superseded by a statement contained in the final short form prospectus.

Road Shows after Announcement of Bought Deal but before a Receipt for a Preliminary Short Form Prospectus

7.7 (1)    An investment dealer that conducts a road show for potential investors before the issuance of a receipt for a preliminary short form prospectus is exempt from the prospectus requirement with respect to the road show if

    1. the road show complies with subsections (2) to (4);
    2. the issuer is relying on the exemption in section 7.2 and has complied with paragraph 7.2(a); and
    3. the preliminary short form prospectus will be filed in the local jurisdiction.

(2)          Subject to section 7.8, an investment dealer must not provide marketing materials to an investor attending a road show conducted under subsection (1) unless the marketing materials are provided in accordance with section 7.6.

(3)          If an investment dealer conducts a road show, the investment dealer must establish and follow reasonable procedures to

    1. ask any investor attending the road show in person, by telephone conference call, on the internet or by other electronic means to provide their name and contact information;
    2. keep a record of any information provided by the investor; and
    3. upon issuance of a receipt for the preliminary prospectus, provide the investor with a copy of the preliminary prospectus and any amendment.

(4)          If an investment dealer permits an investor, other than an accredited investor, to attend a road show, the investment dealer must commence the road show with the oral reading of the following statement or a statement to the same effect:

This presentation does not provide full disclosure of all material facts relating to the securities offered. Investors should read the preliminary prospectus, the final prospectus and any amendment for disclosure of those facts, especially risk factors relating to the securities offered, before making an investment decision.

Exception from Filing and Incorporation Requirements for Road Shows for Certain U.S. Cross-border Offerings

7.8 (1)    Subject to subsections (2) to (4), if an investment dealer provides marketing materials to a potential investor in connection with a road show for a U.S. cross-border offering, the following provisions do not apply to the template version of the marketing materials relating to the road show:

    1. paragraph 7.6(1)(e);
    2. subsections 7.6(6) to (9);
    3. paragraphs 11.6(1)(b) and (c), paragraph 11.6(3)(b) and subsection 11.6(4) of Form 44-101F1.

(2)          Subsection (1) does not apply unless

    1. the underwriters have a reasonable expectation that the securities offered under the U.S. cross-border offering will be sold primarily in the United States of America;
    2. the issuer and the underwriters who sign the final short form prospectus filed in the local jurisdiction provide a contractual right containing the language set out in subsection 36A.1(5) of Form 41-101F1, or words to the same effect, except that the language may specify that the contractual right does not apply to any comparables provided in accordance with subsection (3); and
    3. if the prospectus is filed in the local jurisdiction, the template version of the marketing materials relating to the road show is delivered to the securities regulatory authority.

(3)          If the template version of the marketing materials relating to the road show contains comparables, the template version of the marketing materials must contain the disclosure referred to in paragraph 13.7(4)(d) of NI 41-101.

(4)          For greater certainty, subsection (1) does not apply to marketing materials other than the marketing materials provided in connection with the road show.

Part 8
Exemption

Exemption

8.1 (1)    The regulator or the securities regulatory authority may grant an exemption from the provisions of this Instrument, in whole or in part, subject to such conditions or restrictions as may be imposed in the exemption.

(2)          Despite subsection (1), in Ontario only the regulator may grant such an exemption.

(3)          An application made to the securities regulatory authority or regulator for an exemption from the provisions of this Instrument shall include a letter or memorandum describing the matters relating to the exemption, and indicating why consideration should be given to the granting of the exemption.

(4)          Except in Alberta and Ontario, an exemption referred to in subsection (1) is granted under the statute referred to in Appendix B of National Instrument 14-101 Definitions opposite the name of the local jurisdiction.

Evidence of Exemption

8.2 (1)    Subject to subsection (2) and without limiting the manner in which an exemption under this Part may be evidenced, the granting under this Part of an exemption, other than an exemption, in whole or in part, from Part 2, may be evidenced by the issuance of a receipt for a short form prospectus or an amendment to a short form prospectus.

(2)          The issuance of a receipt for a final short form prospectus or an amendment to a final short form prospectus is not evidence that the exemption has been granted unless

    1. the person or company that sought the exemption sent to the regulator
      1. the letter or memorandum referred to in subsection 8.1(3), on or before the date of the filing of the preliminary short form prospectus, or
      2. the letter or memorandum referred to in subsection 8.1(3) after the date of the filing of the preliminary short form prospectus and received a written acknowledgement from the regulator that the exemption may be evidenced in the manner set out in subsection (1), and
    2. the regulator has not before, or concurrently with, the issuance of the receipt sent notice to the person or company that sought the exemption, that the exemption sought may not be evidenced in the manner set out in subsection (1).

Part 9
Transition, Repeal and Effective Date

Applicable Rules

9.1         A short form prospectus may, at the issuer's option be prepared in accordance with securities legislation in effect at either the date of issuance of a receipt for the preliminary short form prospectus or the date of issuance of a receipt for the short form prospectus.

Repeal

9.2         National Instrument 44-101 Short Form Prospectus Distributions and Form 44-101F3 Short Form Prospectus, both of which came into force on December 31, 2000, are repealed on December 30, 2005.

Effective Date

9.3         This Instrument comes into force on December 30, 2005.

 

Appendix A - Notice Declaring Intention to be Qualified under National Instrument 44-101 Short Form Prospectus Distributions ("NI 44-101")

[date]

To:         [the issuer's notice regulator (as defined in subsection 2.8(2) of NI 44-101), and any other securities regulatory authority or regulator of a jurisdiction of Canada with whom the issuer may voluntarily file this notice]

[name of issuer] (the "Issuer") intends to be qualified to file a short form prospectus under NI 44-101. The Issuer acknowledges that it must satisfy all applicable qualification criteria prior to filing a preliminary short form prospectus. This notice does not evidence the Issuer's intent to file a short form prospectus, to enter into any particular financing or transaction or to become a reporting issuer in any jurisdiction. This notice will remain in effect until withdrawn by the Issuer.

[signature of Issuer]

[name and title of duly authorized signing officer of Issuer]

 

Appendix B - Authorization of Indirect Collection, Use and Disclosure of Personal Information
[Repealed]

 

 

Appendix D - Non-Issuer Form of Submission to Jurisdiction and Appointment of Agent for Service of Process
[Repealed]