(d) the security distributed by the issuer is not either of the following:
(i) a speci;ed derivative;
(ii) a structured ;nance product.
(2.2) ;e prospectus exemption described in subsection (2.1) is
not available
(a) in Alberta, Nova Scotia and Saskatchewan, to an issuer that is
an investment fund, unless the issuer is a non-redeemable investment fund or a mutual fund that is a reporting issuer, or
(b) in New Brunswick, Ontario and Québec, to an issuer that is an
investment fund.
(2.3) ;e investment limits described in subparagraphs (2.1)(b)(ii)
and (iii) do not apply if the purchaser is
(a) an accredited investor, or
(b) a person described in subsection 2.5(1) [Family, friends and
business associates].
( 3) In Manitoba, Northwest Territories, Nunavut, Prince Edward
Island and Yukon, this section does not apply to a distribution of a
security to a person described in paragraph (a) of the de;nition of
"eligible investor" in section 1.1 [De;nitions] if that person was
created, or is used, solely to purchase or hold securities in reliance
on the exemption from the prospectus requirement set out in
subsection (2).
( 3.0.1) In Alberta, New Brunswick, Nova Scotia, Ontario, Québec
and Saskatchewan, this section does not apply to a distribution of
a security to a person that was created, or is used, solely to purchase
or hold securities in reliance on the exemption from the prospectus
requirement set out in subsection (2.1).
( 3.1) Subsections (1), (2) and (2.1) do not apply to a distribution
of a short-term securitized product.
( 4) No commission or ;nder's fee may be paid to any person,
other than a registered dealer, in connection with a distribution to
a purchaser in the Northwest Territories, Nunavut and Yukon
under subsection (2).
( 5) An o;ering memorandum delivered under this section must be
in the required form.
( 5.1) In Alberta, New Brunswick, Nova Scotia, Ontario, Québec
and Saskatchewan, an o;ering memorandum delivered under
subsection (2.1)
(a) must incorporate by reference, by way of a statement in the
o;ering memorandum, OM marketing materials related to each
distribution under the o;ering memorandum and delivered or
made reasonably available to a prospective purchaser before the
termination of the distribution, and
(b) is deemed to incorporate by reference OM marketing materials
related to each distribution under the o;ering memorandum and
delivered or made reasonably available to a prospective purchaser
before the termination of the distribution.
( 5.2) A portfolio manager, investment dealer or exempt market
dealer must not distribute OM marketing materials unless the
OM marketing materials have been approved in writing by the
issuer.
( 6) If the securities legislation where the purchaser is resident does
not provide a comparable right, an o;ering memorandum
delivered under this section must provide the purchaser with a
contractual right to cancel the agreement to purchase the security
by delivering a notice to the issuer not later than midnight on the
2nd business day after the purchaser signs the agreement to
purchase the security.
( 7) If the securities legislation where the purchaser is resident does
not provide statutory rights of action in the event of a misrepresentation in an o;ering memorandum delivered under this section,
the o;ering memorandum must contain a contractual right of
action against the issuer for rescission or damages that
(a) is available to the purchaser if the o;ering memorandum, or
any information or documents incorporated or deemed to be
incorporated by reference into the o;ering memorandum,
contains a misrepresentation, without regard to whether the
purchaser relied on the misrepresentation,
(b) is enforceable by the purchaser delivering a notice to the issuer
(i) in the case of an action for rescission, within 180 days after the
purchaser signs the agreement to purchase the security, or
(ii) in the case of an action for damages, before the earlier of
A) 180 days after the purchaser ;rst has knowledge of the facts
giving rise to the cause of action, or
B) 3 years after the date the purchaser signs the agreement to
purchase the security,
(c) is subject to the defence that the purchaser had knowledge of
the misrepresentation,
(d) in the case of an action for damages, provides that the amount
recoverable
(i) must not exceed the price at which the security was o;ered, and
(ii) does not include all or any part of the damages that the issuer
OFFERING MEMORANDUM EXEMPTION – BROADEN THE EXEMPTION
BRIEFING NOTE FOR THE PCMA’S PRESENTATION AT QUEEN'S PARK ON MARCH 9, 2017
