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restrictions
Feb 20, 2012, Author: Mario Naim
A while back I wrote about proposed Multilateral Instrument 51-105 and wondered that quite a few Canadian
issuers with shares quoted on Pink Sheets would have to, somehow, privatize by de-quoting their stock. There
are a few ways to go about doing this, but only one that does not entail buying out all of the outstanding stock,
making extensive securities disclosures on both sides of the border and creating undesirable tax liabilities. I
propose that these Canadian issuers de-quote their securities from Pink Sheets by reclassifying their
outstanding securities into restricted shares of stock.
Assumptions
This is not a one-size fits-all solution; it responds to a precise set of legal, regulatory and financial constraints. It
only applies to Delaware corporations whose one class of outstanding common shares (Common Shares) are
held of record by less than 300 persons, and I will assume that these holders of record represent 1000
beneficial security holders. Furthermore, the issuer is neither a reporting issuer in a Canadian jurisdiction nor
currently a SEC reporting issuer, having filed a Form 15 to terminate a Section 12(g) registration under the
Securities Exchange Act of 1934 (Exchange Act) and suspend its Section 15(d) reporting requirements in relation
to the Common Shares. Although a majority of shareholders are resident in Canada, more than 40% of the
Common Shares are held by US residents, the majority of whom are not accredited investors.
Securities Act Rule 145, the merger is a registerable event under Section 5 of the Securities Act (I leave the
extended discussion of the notion of sale in Section 2(a)(3), Rule 145 and of the unavailability of the change of
domicile exception thereunder to another setting).
This type of conversion can be effected in a typical tiered structure. Under the terms of the agreement of
merger, at the effective time of the merger:
each share of Common Stock then held by a shareholder of record who as of the record date for the meeting of
shareholders (the Record Date) held x or more shares of Common Stock will be cancelled and converted into
the right to receive, at the election of the shareholder, either: (a) one share of the newly authorized restricted
New Common Stock, or (b) the per share cash consideration of $P;
each share of Common Stock then held by a shareholder of record who as of the Record Date held more
than y but less than xshares of Common Stock will be cancelled and converted into the right to receive, at the
election of the shareholder, either: (a) one share of the newly authorized restricted Class A Preferred Stock, or
(b) the per share cash consideration of $P;
each share of Common Stock then held by a shareholder of record who as of the Record Date held y or fewer
shares of Common Stock will be cancelled and converted into the right to receive, at the election of the
shareholder, either: (a) one share of the newly authorized restricted Class B Preferred Stock, or (b) the per
share cash consideration of $P.
As a result, after the broker-dealers cease to hold the shares in street name, the following will reflect the
distribution of shareholders of record per class of stock: