As you may recall reading in our earlier bulletin articles, amendments to National Instrument 45-106 Prospectus Exemptions (NI 45-106) that took effect on March 8, 2023 (the Amendments) require issuers that rely on the offering memorandum (OM) prospectus exemption in Ontario to consider whether their OM needs to be updated. Updates may be necessary to include interim financials for the most recently completed six-month period where a distribution is ongoing, if more than 60 days have elapsed since the end of the second interim period. For issuers with a December 31 year end, this means considering whether the issuer’s June 30 financial statements trigger the need to update the OM by August 29. Amending an OM to include the semi-annual financials may necessitate updates to other disclosure in the OM to ensure that it continues to meet the OM form requirements as of the date the OM is amended. An exemption is available if the issuer appends an additional certificate to the OM certifying that:

  • the OM does not include a misrepresentation when read as of the date of the additional certificate;
  • there has been no material change in relation to the issuer that is not disclosed in the OM; and
  • the OM, when read as of the date of the additional certificate, provides a reasonable purchaser with sufficient information to make an informed investment decision.

In either case, the updated OM must be filed with the OSC and any other applicable regulators within 10 days of a distribution. If you have any questions about the application of this requirement to your offering memorandum, please contact us.

June 27, 2024