The TSX Venture Exchange recently announced significant changes to Capital Pool Company (“CPC”) program, which changes will be effective January 1, 2021.
The changes to the CPC program are intended to:
- Increase flexibility – new jurisdictions added, residency restrictions eased, spending restrictions simplified
- Reduce regulatory burden – relaxed requirements on shareholder distribution and shareholder approval, fewer restrictions on PRO subscriptions
- Improve economics – increased seed investment, finders fees, shorter escrow
Summary of Changes to the CPC Policy
The following is a summary of the most relevant changes:
- Increase in seed funding – the maximum amount of seed funding that a CPC is allowed to raise prior to its IPO (which funding is raised at a discount to the IPO price) is increased from $500,000 to $1,000,000.
- Increase in total funding – the total maximum amount which can be raised by a CPC is increased from $5,000,000 to $10,000,000.
- Elimination of 24 month deadline to complete a Qualifying Transaction – the rule requiring a CPC to complete a Qualifying Transaction within 24 months of listing, otherwise being subject to the cancellation of half of the seed shares, is eliminated.
- Director and officer qualifications – now only a majority of directors and officers (as opposed to all) must have public company experience and only a majority must be resident of Canada or the USA and one person can now act as CEO, CFO and Secretary simultaneously.
- Expenses – the CPC may now spend up to $3,000 per month on general administrative expenses – rather than the previous limit of the lesser of 30% of the gross proceeds from the sale of securities by the CPC and $210,000 – and there is an ease on restrictions of payments to Non-Arm’s Length Parties.
- Escrow – the escrow period following completion of Qualifying Transaction has been shortened to 18 months (with 25% releases on each of the date that the TSXV issues a bulletin for the Qualifying Transaction and 6, 12, 18 months following that date) for all Qualifying Transactions as opposed to 36 months for Tier 2 issuers and 18 months only for Tier 1 issuers.
- Stock Options – a CPC can now adopt a 10% rolling stock option plan where the number of options cannot exceed 10% of the common shares outstanding at the time of grant – as opposed to a fixed number plan – and the exercise price of stock options may be priced at a price no lower than the lowest price at which seed shares were issued. Options and shares issued on exercise of CPC stock options that is less than the IPO price will be subject to escrow.
- Distribution Requirements: CPC’s are now required to have no less than 150 public shareholders at the time of the CPC’s IPO – as opposed to 200 – but following completion of the Qualifying Transaction the issuer must have 200 public shareholders. In addition, the CPC in now only required to 500,000 shares in the public float – as opposed to 1,000,000 – but the public shareholders must hold at least 20% of the outstanding shares.
- Finder’s Fees: subject to certain criteria being satisfied, including disinterested shareholder approval, a Non-arm’s Length Party can receive a finder’s fee.
The new CPC policy contains certain transaction provisions which are applicable to: (i) issuers that have filed their CPC prospectus but that will not have not completed their initial public offering as at December 31, 2020; (ii) existing CPCs at January 1, 2021 including those on the NEX; and (iii) resulting issuers which will be listed after January 1, 2021.
A new CPC that has not completed its IPO by December 31, 2020 may elect to comply with the new policy, provided its prospectus and escrow agreement comply with the new policy; or they may file its final prospectus and complete its IPO in accordance with the former policy, and continue to be governed by the former policy, with the option to comply with the transition provisions applicable to existing CPCs detailed below.
For an existing CPC, certain changes including those listed below require disinterested shareholder approval at either a meeting of shareholders or by written consent of shareholders holding more than 50% of the issued listed shares:
- Removal of the 24 month Qualifying Transaction deadline
- Amendments to escrow terms
- Payment of a finder’s fee
- Permitting a payment of a finder’s fee to a non-arm’s length party; and
- Adopting a 10% rolling stock option plan.
Most other elements of the new CPC policy may be implemented by existing CPC’s once they become effective on January 1, 2021.
A resulting issuer can amend existing CPC Escrow Agreements to track the escrow terms permitted under the New Policy and the revised CPC Escrow Agreement, including the 18-month release schedule and the immediate release of escrow securities no longer subject to escrow, provided that the resulting issuer obtains disinterested shareholder approval at a meeting of shareholders or by written consent.
These are positive changes to the CPC program and should result in increased and renewed interest in the program. For more detailed advice on the CPC program and how to best implement it for you, please contact a member of out securities law group.