Securities Law & Instruments

Headnote

 

National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions – exemption from the requirements of paragraph 2.2(d) of National Instrument 44-101 Short Form Prospectus Distributions requiring an issuer to have current annual financial statements and a current AIF in order to be eligible to file a short form prospectus.

 

Applicable Legislative Provisions

 

National Instrument 44-101 Short Form Prospectus Distributions, ss. 2.2(d), 8.1.

 

October 31, 2016

 

IN THE MATTER OF

THE SECURITIES LEGISLATION OF

ALBERTA, BRITISH COLUMBIA, MANITOBA, NEW BRUNSWICK,

NEWFOUNDLAND, NOVA SCOTIA, ONTARIO, PRINCE EDWARD ISLAND,

QUÉBEC AND SASKATCHEWAN

(THE JURISDICTIONS)

 

AND

 

IN THE MATTER OF

THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS

IN MULTIPLE JURISDICTIONS

 

AND

 

IN THE MATTER OF

ECN CAPITAL CORP.

(ECN Capital or the Filer)

 

DECISION

 

Background

 

The securities regulatory authority in Ontario (the Decision Maker) has received an application (the Application) from the Filer for a decision under the securities legislation of the Jurisdictions (the Legislation) exempting the Filer from:

 

Section 2.2(d) of National Instrument 44-101 – Short-Form Prospectus Distributions (NI 44-101) (the Short Form Prospectus Issuer Exemption Sought), which requires the Filer to have “current annual financial statements” and a “current AIF”, as such terms are defined in NI 44-101, in at least one jurisdiction in which the Filer is a reporting issuer, in order to satisfy the qualification criteria for short form prospectus eligibility in respect of any prospectus filed by the Filer (the AIF and Annual Financial Statement Requirement).

 

Furthermore, the Decision Maker has received a request from the Filer for a decision that the Application and this decision be kept confidential and not be made public until the earlier of: (a) the date on which the Filer issues a news release announcing that the Filer has entered into an agreement relating to an offering of securities under a preliminary short form prospectus or a short form prospectus; (b) the date on which the Filer otherwise publicly announces an offering of securities under a preliminary short form prospectus or a short form prospectus; (c) the date on which the Filer files a preliminary short form prospectus or a short form prospectus relating to an offering of securities; (d) the date on which the Filer files a preliminary short form base shelf prospectus or a short form base shelf prospectus relating to the qualification of securities of the Filer; (e) the date on which the Filer files a notice declaring its intention to be qualified to file a short form prospectus; (f) the date on which the

 

Filer advises the principal regulator that there is no longer any need for the Application and the decision document to remain confidential; and (g) the date that is 90 days after the date of the decision document (the Confidentiality Sought).

 

Under the Process for Exemptive Relief Applications in Multiple Jurisdictions:

 

(a)           The Ontario Securities Commission is the principal regulator for the Application; and

 

(b)           The Filer has provided notice that Section 4.7(1)(c) of Multilateral Instrument 11-102 – Passport System (MI 11-102) is intended to be relied upon in each of Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland, Nova Scotia, Prince Edward Island, Québec and Saskatchewan.

 

Interpretation

 

Terms defined in National Instrument 14-101 – Definitions or NI 44-101 have the same meanings if used in this decision, unless otherwise defined herein.

 

Representations

 

The decision is based on the following facts represented by the Filer:

 

The Filer

 

1.             The Filer is incorporated under the Business Corporations Act (Ontario).

 

2.             The principal and head office of the Filer is located in the City of Toronto in the Province of Ontario.

 

3.             The financial year end of the Filer is December 31.

 

4.             On July 22, 2016, ECN Capital was incorporated under the Business Corporations Act (Ontario) to carry out the Element Arrangement (as defined herein). Prior to the Element Arrangement, ECN Capital had no assets or liabilities, conducted no operations and did not issue any shares in its capital stock.

 

5.             ECN Capital’s authorized capital consists of an unlimited number of common shares (the ECN Capital Common Shares) and an unlimited number of preferred shares.

 

6.             As of October 25, 2016, there are 386,704,197 ECN Capital Common Shares outstanding and there are no preferred shares outstanding. The ECN Capital Common Shares are listed for trading on the Toronto Stock Exchange (the TSX) under the symbol “ECN”.

 

7.             Pursuant to the Arrangement Agreement (as defined herein), Element Financial Corporation (renamed Element Fleet Management Corp. following completion of the Element Arrangement) (Element) completed a spin-out of its commercial finance business to Element shareholders by way of a plan of arrangement, as a result of which the Filer became a reporting issuer in each of the Jurisdictions and the Filer’s shares were listed on the TSX.

 

8.             The Filer has a current and complete continuous disclosure record of a reporting issuer except for the AIF and Annual Financial Statement Requirement (as it was formed on July 22, 2016 and has not yet completed a financial year since becoming a reporting issuer).

 

Element Arrangement

 

9.             On July 25, 2016, Element entered into an arrangement agreement with ECN Capital, INFOR Acquisition Corp. (IAC) and 2510204 Ontario Inc. (the Arrangement Agreement), pursuant to which Element, among other things, completed a spin-out transaction by way of plan of arrangement under Section 182 of the Business Corporations Act (Ontario) (the Element Arrangement).

 

10.          Pursuant to the Element Arrangement, the Filer acquired the commercial finance businesses carried on by Element and its affiliates consisting of, among other things, the commercial and vendor finance, the rail finance, and aviation finance businesses, and the assets and liabilities pertaining thereto held by Element and any of its affiliates immediately prior to the effective date of the Element Arrangement (the Acquired Assets).

 

11.          Pursuant to the Element Arrangement, each participating shareholder of Element received one ECN Capital Common Share and one common share of Element Fleet Management Corp. for each Element common share held.

 

12.          The Acquired Assets form the primary business of the Filer pursuant to Section 32.1(1)(b) of Form 41-101F1 – Information Required in a Prospectus (Form 41-101F1).

 

13.          In accordance with National Instrument 51-102 – Continuous Disclosure Obligations (NI 51-102), Element prepared and mailed a management information circular dated July 28, 2016 (the Management Information Circular) to Element’s shareholders.

 

14.          The Ontario Superior Court of Justice (Commercial List) (the Court) hearing to obtain the interim order in connection with the Element Arrangement was held on July 28, 2016. Following receipt of such order, the Management Information Circular was provided in connection with the special meeting of shareholders (the Element Meeting) to approve, among other matters, the Element Arrangement. At the Element Meeting held on September 20, 2016, Element shareholders approved the Element Arrangement, with 99.5% of shares represented at the Element Meeting voting in favour of the Element Arrangement. The final order of the Court in connection with the Element Arrangement was obtained on September 21, 2016. The effective date and closing of the Element Arrangement was October 3, 2016.

 

15.          The Management Information Circular provides full, true and plain disclosure of all material facts related to the Filer and the Acquired Assets, which themselves have been the subject of continuous disclosure on an ongoing basis in accordance with Element’s responsibilities as a reporting issuer in the Jurisdictions. The Management Information Circular includes (i) all of the financial statements which were required to be included in the Management Information Circular by Section 14.2 of Form 51-102F5 – Information Circular (Form 51-102F5) and, by extension, Form 41-101F1; and (ii) the information that would have otherwise been required to be included in a current AIF filed by an issuer who owned the Acquired Assets as at, and for the year ended, December 31, 2015. The following relevant ECN Capital financial disclosure was included in the Management Information Circular:

 

a)            the ECN Capital interim condensed carve-out combined financial statements as of March 31, 2016 and for the three-month periods ended March 31, 2016 and 2015, together with the related notes thereto, consisting of the: (i) combined statements of financial position as at March 31, 2016 and December 31, 2015; (ii) combined statements of operations for the three-month periods ended March 31, 2016 and 2015; (iii) combined statements of comprehensive income (loss) for the three-month periods ended March 31, 2016 and 2015; (iv) combined statements of net investment as at March 31, 2016 and 2015; and (v) combined statements of cash flows for the three-month periods ended March 31, 2016 and 2015 (the ECN Capital Q1 Carve-out Financial Statements)

 

b)            management’s discussion and analysis of financial condition and results of operations of the Filer in respect of the ECN Capital Q1 Carve-out Financial Statements;

 

c)             audited annual carve-out combined financial statements of the Filer for the years ended December 31, 2015, 2014 and 2013, and the audit report thereon and the related notes thereto, consisting of the: (i) combined statements of financial position as at December 31, 2015 and 2014; (ii) combined statements of operations for the years ended December 31, 2015, 2014 and 2013; (iii) combined statements of comprehensive income for the years ended December 31, 2015, 2014 and 2013; (iv) combined statements of net investment as at December 31, 2015, 2014 and 2013; and (v) combined statements of cash flows for the years ended December 31, 2015, 2014 and 2013 (the ECN Capital Annual Audited Carve-out Financial Statements);

 

d)            management’s discussion and analysis of financial condition and results of operations of Filer in respect of the ECN Capital Annual Audited Carve-out Financial Statements (the ECN Capital Annual Carve-out MD&A);

 

e)            the unaudited pro forma consolidated financial statements of the Filer, after giving effect to the Element Arrangement and to the acquisition of IAC (as defined herein) by the Filer, as at and for the three-month period ended March 31, 2016 and as at and for the year ended December 31, 2015, together with the notes and assumptions thereto; and

 

f)             the narrative description of ECN Capital and its business, contained in Appendix “L” – “ECN Capital Corp. Following the Arrangements” (the Alternative AIF Disclosure).

 

16.          In accordance with Item 14.2 of 51-102F5, the Management Information Circular includes prospectus-level disclosure for the Filer, including financial statements, required under National Instrument 41-101 – General Prospectus Requirements and Form 41-101F1, which is the form of prospectus that the Filer would have been eligible to use immediately prior to the sending and filing of the Management Information Circular, for a distribution of securities in the Jurisdictions.

 

17.          A copy of the Management Information Circular was filed on Element’s SEDAR profile on August 8, 2016.

 

IAC Arrangement

 

18.          Pursuant to the Arrangement Agreement, the Filer also agreed, conditional upon completion of the Element Arrangement, to acquire all of the issued and outstanding shares of IAC (other than shares of IAC owned by the Filer or any of its affiliates) in exchange for ECN Capital Common Shares by way of plan of arrangement under Section 182 of the Business Corporations Act (Ontario) (the IAC Arrangement).


19.          As the IAC Arrangement would have constituted IAC’s “qualifying acquisition” under applicable TSX rules, IAC filed a preliminary long form non-offering prospectus dated August 8, 2016 (the IAC Preliminary Prospectus) in each of the Provinces and Territories of Canada in connection with the IAC Arrangement.

 

20.          Pursuant to TSX rules and applicable Canadian securities laws, the IAC Preliminary Prospectus contained disclosure regarding the Filer, as the resulting issuer, assuming completion of the Element Arrangement and IAC Arrangement, required under National Instrument 41-101 – General Prospectus Requirements and Form 41-101F1. This disclosure included:

 

a)            the ECN Capital Annual Audited Carve-out Financial Statements;

 

b)            the ECN Capital Annual Carve-out MD&A;

 

c)             the ECN Capital interim condensed carve-out combined financial statements as of June 30, 2016 and for the three- and six-month periods ended June 30, 2016 and 2015, together with the related notes thereto, consisting of the: (i) combined statements of financial position as at June 30, 2016 and December 31, 2015; (ii) combined statements of operations for the three- and six-month periods ended June 30, 2016 and 2015; (iii) combined statements of comprehensive income (loss) for the three- and six-month periods ended June 30, 2016 and 2015; (iv) combined statements of net investment as at June 30, 2016 and 2015; and (v) combined statements of cash flows for the six-month periods ended June 30, 2016 and 2015 (the ECN Capital Q2 Carve-out Financial Statements);

 

d)            management’s discussion and analysis of financial condition and results of operations of the Filer in respect of the ECN Capital Q2 Carve-out Financial Statements (the ECN Capital Q2 Carve-out MD&A); and

 

e) the Alternative AIF Disclosure.

 

21.          Following the review of the IAC Preliminary Prospectus by the Decision Maker, as principal regulator, the ECN Capital Annual Carve-out MD&A and the Alternative AIF Disclosure were updated to reflect comments received from the Decision Maker (the Revised ECN Capital Annual Carve-out MD&A and the Revised Alternative AIF Disclosure, respectively).

 

22.          On September 23, 2016, following the review of the IAC Preliminary Prospectus by the Decision Maker, as principal regulator, and settlement of all comments, IAC filed and obtained a receipt for the final long form non-offering prospectus (the IAC Prospectus) which, for greater certainty, contained, among other items, the ECN Capital Annual Audited Carve-out Financial Statements, the Revised ECN Capital Annual Carve-out MD&A, the ECN Capital Q2 Carve-out Financial Statements, the ECN Capital Q2 Carve-out MD&A, and the Revised Alternative AIF Disclosure.

 

23.          On October 12, 2016, the Filer, IAC and Element mutually agreed to terminate the Arrangement Agreement solely as it relates to the IAC Arrangement and the parties’ respective rights, duties and obligations thereunder with respect to the IAC Arrangement.

 

ECN Capital Information and Disclosure

 

24.          In connection with the Element Arrangement, the Filer has filed the following documents on its SEDAR profile:

 

a)            the joint press release of the Filer and Element, announcing closing of the Element Arrangement;

 

b)            the press release of the Filer, announcing, among other things: (i) the establishment of an initial dividend policy; (ii) the Filer’s investment grade ratings from both DBRS Limited and Kroll Bond Rating Agency; and (iii) the determination of the Filer’s fair market value;

 

c)             the press release of the Filer: (i) announcing the mutual agreement of the Filer, IAC and Element to terminate the IAC Arrangement; and (ii) confirming the Filer’s growth and capital strategy;

 

d)            a Notice of Change in Corporate Structure of the Filer in connection with the closing of the Element Arrangement; and

 

e)            certain excerpts from each of the Management Information Circular and IAC Prospectus, with such additions, deletions, revisions and updates necessary to file such excerpts on a stand-alone basis (which include the addition of glossaries, updating of certain cross-references within documents, the deletion of duplicative disclosure that is otherwise included in other of the ECN Capital Information and Disclosure documents separately filed), as applicable, that contain applicable information relating to the Filer, including (collectively, the ECN Capital Information and Disclosure):

 

i)              the ECN Capital Annual Audited Carve-out Financial Statements;

 

ii)             the Revised ECN Capital Annual Carve-out MD&A;

 

iii)            the ECN Capital Q2 Carve-out Financial Statements;

 

iv)            the ECN Capital Q2 Carve-out MD&A; and

 

v)             the Revised Alternative AIF Disclosure.

 

Qualification to File Short Form Prospectus

 

25.          With the completion of the Element Arrangement and the termination of the IAC Arrangement, the Filer believes that it is favourably positioned to access external funding sources and may wish to complete a public offering of its securities in the near term should market conditions permit. In light of the short time frames associated with financings undertaken in current market conditions, and based on input provided to the Filer by investment dealers regarding the need for expedited time periods between the launching and closing of an offering, the Filer wishes to be eligible to file short form prospectuses under NI 44-101. The qualification criteria for short form prospectus eligibility are outlined in Section 2.2 of NI 44-101.

 

26.          The Filer satisfies all of the qualification criteria for short form prospectus eligibility in Section 2.2 of NI 44-101, with the exception of Subsection 2.2(d) which requires ECN Capital to have filed “current annual financial statements” and a “current AIF” as such terms are defined in NI 44-101.

 

27.          ECN Capital is an electronic filer under National Instrument 13-101 – System for Electronic Document Analysis and Retrieval (SEDAR).

 

28.          ECN Capital is currently a reporting issuer in each of the Jurisdictions.

 

29.          ECN Capital has filed with the securities regulatory authority of each of the Jurisdictions all periodic and timely disclosure documents that ECN Capital is required to file in that Jurisdiction: (i) under applicable securities legislation; (ii) pursuant to an order issued by the securities regulatory authority; or (iii) pursuant to an undertaking to the securities regulatory authority.

 

30.          The ECN Capital Common Shares are listed on the TSX and the Filer is not an issuer: (i) whose operations have ceased or (ii) whose principal asset is cash, cash equivalents or its exchange listing.

 

31.          Pursuant to NI 51-102, the Filer is not required to file annual financial statements nor an AIF until 90 days after the Filer’s first completed financial year, being the year ending December 31, 2016. Therefore, the Filer may wish to file a short form prospectus or short form prospectuses under NI 44-101 prior to the point at which it will meet the AIF and Annual Financial Statement Requirement.

 

32.          ECN Capital has filed the ECN Capital Annual Audited Carve-out Financial Statements and the Revised Alternative AIF Disclosure, which contain the Filer’s material information in lieu of the Filer not satisfying the AIF and Annual Financial Statement Requirement under Subsection 2.2(d) of NI 44-101.

 

33.          ECN Capital is not eligible for the exemption for new reporting issuers under Subsection 2.7(1) of NI 44-101 because it has not filed a long form prospectus.

 

34.          ECN Capital is not eligible for the exemption for successor issuers under Subsection 2.7(2) of NI 44-101 because the Acquired Assets were only a portion of Element’s business prior to the completion of the Element Arrangement.

 

35.          Except for not meeting the AIF and Annual Financial Statement Requirement, the Filer would otherwise be qualified to file a prospectus in the form of a short form prospectus pursuant to, and in accordance with, NI 44-101.

 

Decision

 

The Decision Maker is satisfied that the decision meets the test set out in the Legislation for the Decision Maker to make the decision.

 

The decision of the Decision Maker under the Legislation is that the Short Form Prospectus Issuer Exemption Sought is granted, provided that:

 

(a)           The Filer is not exempt from the requirements in NI 51-102 to file annual financial statements or to file an AIF, within the prescribed period after its financial year end;

 

(b)           The Filer has not yet been required to file annual financial statements or an AIF under NI 51-102;

 

(c)           The Filer has not yet filed annual financial statements or an AIF under NI 51-102;

 

(d)           The Filer includes or incorporates by reference in each preliminary short form prospectus and short form prospectus, if either is filed, the ECN Capital Information and Disclosure that would otherwise have been required to have been included in a current AIF, which for greater certainty includes the Revised Alternative AIF Disclosure;

 

(e)           The Filer will, prior to the filing by the Filer of “current annual financial statements” and related management’s discussion and analysis for the year ended December 31, 2016, incorporate by reference in any preliminary short form prospectus filed by the Filer the ECN Capital Annual Audited Carve-out Financial Statements and the Revised Capital Annual Carve-out MD&A, in lieu of the “current annual financial statements” and related management’s discussion and analysis for the year ended December 31, 2015;

 

(f)            If the Filer files a short form prospectus before the Filer’s financial statements for the period ended September 30, 2016 are required to be filed, then the ECN Capital Q2 Carve-out Financial Statements will be incorporated by reference into the Filer’s short form prospectus; and

 

(g)           If the Filer files a short form prospectus after the Filer’s financial statements for the period ended September 30, 2016 are required to be filed and before the Filer’s financial statements for the year ended December 31, 2016 are required to be filed, then the following financial statements for the interim period ended September 30, 2016 will be included in or incorporated by reference into the Filer’s short form prospectus:

 

i.              the unaudited interim condensed carve-out combined financial statements of the Filer as at and for the three- and nine-month periods ended September 30, 2016 and 2015, together with the notes thereto consisting of the: (i) combined statements of financial position as at September 30, 2016 and December 31, 2015; (ii) combined statements of operations for the three- and nine-month periods ended September 30, 2016 and 2015; (iii) combined statements of comprehensive income (loss) for the three- and nine-month periods ended September 30, 2016 and 2015; (iv) combined statements of net investment as at September 30, 2016 and 2015; and (v) combined statements of cash flows for the nine-month periods ended September 30, 2016 and 2015; and

 

ii.             the unaudited interim condensed combined financial statements of the Filer as at September 30, 2016 and for the period from July 22, 2016 (the Filer’s date of formation) to September 30, 2016, together with the notes thereto.

 

Furthermore, the decision of the principal regulator is that the Confidentiality Sought is granted.

 

“Michael Balter”

Manager, Corporate Finance

Ontario Securities Commission