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Accredited Investors as JV Partners

OlegP

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HI All,

I met an accredited investor, who wants to do some joint venturing.

Does the fact that he is an accredited investor add any layers in terms of due diligence that I have to do on him? Also, does it add any complexity as far as Securities law is concerned?

I understand that accredited investors are likely more sophisticated (he seems to be), and my proposed deals will be scrutinized heavily. I am just trying to find out if there are any considerations in addition to joint venturing with non-accredited investors that I should be aware of.

Thanks in advance.
Oleg
 

Dan_Eisenhauer

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What is an Accredited Investor?

I assume, but may be wrong, which is why I ask, that he is exempted from the various securities legislation because of one or more of his financial capabilities.

Whatever your answer is, you should not do your due diligence short shift. You need to know what kind of person he is, and what kind of partner he will make. You are considering a marriage... a marriage of fairly short duration, but still a marriage. You need to be able to trust and like each other.
 

NorthernAlex

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QUOTE (Dan_Eisenhauer @ Jan 22 2009, 01:35 AM) What is an Accredited Investor?...

I asked myself the same question and googled for it. Wikipedia said this.

On the other hand, dealing with an Accredited Investor should make it easier for the thread starter, because knowledge wise there maybe won`t be so much explanation needed.

Best regards,

Alex.
 

Thomas Beyer

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QUOTE (NorthernAlex @ Jan 22 2009, 08:07 AM) I asked myself the same question and googled for it. Wikipedia said this.Assuming it is Canada, Wikipedia`s US definition is close, but WRONG.
Here is the definition .. with the most relevant in BOLD, i.e. financial asset besides their own home exceeding $1M or income over $200,000 (or $300,000 with a spouse)


long version from one of our offering memorandums here:

Accredited Investor (defined in National Instrument 45-106) means:
(a) a Canadian financial institution, or a Schedule III bank; or
(b) the Business Development Bank of Canada incorporated under the Business Development Bank of Canada Act (Canada); or
 a subsidiary of any person referred to in paragraphs (a) or (b), if the person owns all of the voting securities of the subsidiary, except the voting securities required by law to be owned by directors of that subsidiary; or
(d) a person registered under the securities legislation of a jurisdiction of Canada as an adviser or dealer, other than a person registered solely as a limited market dealer under one or both of the Securities Act (Ontario) or the Securities Act (Newfoundland and Labrador); or
(e) an individual registered or formerly registered under the securities legislation of a jurisdiction of Canada as a representative of a person referred to in paragraph (d); or
(f) the Government of Canada or a jurisdiction of Canada, or any crown corporation, agency or wholly owned entity of the Government of Canada or a jurisdiction of Canada; or
(g) a municipality, public board or commission in Canada and a metropolitan community, school board, the Comité de gestion de la taxe scolaire de l`île de Montréal or an intermunicipal management board in Québec; or
(h) any national, federal, state, provincial, territorial or municipal government of or in any foreign jurisdiction, or any agency of that government; or
(i) a pension fund that is regulated by either the Office of the Superintendent of Financial Institutions (Canada) or a pension commission or similar regulatory authority of a jurisdiction of Canada; or

(j) an individual who, either alone or with a spouse, beneficially owns, directly or indirectly, financial assets having an aggregate realizable value that before taxes, but net of any related liabilities, exceeds $1,000,000; or
(k) an individual whose net income before taxes exceeded $200,000 in each of the two most recent calendar years or whose net income before taxes combined with that of a spouse exceeded $300,000 in each of the two most recent calendar years and who, in either case, reasonably expects to exceed that net income level in the current calendar year; or
(l) an individual who, either alone or with a spouse, has net assets of at least $5,000,000; or
(Note: if individual accredited investors wish to purchase through wholly-owned holding companies or similar entities, such purchasing entities must qualify under section (t) below, which must be initialled.)
(m) a person, other than an individual or investment fund, that has net assets of at least $5,000,000 as shown on its most recently prepared financial statements; or

(n) an investment fund that distributes or has distributed its securities only to
(i) a person that is or was an accredited investor at the time of the distribution,
(ii) a person that acquires or acquired securities in the circumstances referred to in sections 2.10 and 2.19 of National Instrument 45-106, or
(iii) a person described in paragraph (i) or (ii) that acquires or acquired securities under section 2.18 of National Instrument 45-106; or
(o) an investment fund that distributes or has distributed securities under a prospectus in a jurisdiction of Canada for which the regulator or, in Québec, the securities regulatory authority, has issued a receipt; or
(p) a trust company or trust corporation registered or authorized to carry on business under the Trust and Loan Companies Act (Canada) or under comparable legislation in a jurisdiction of Canada or a foreign jurisdiction, acting on behalf of a fully managed account managed by the trust company or trust corporation, as the case may be; or
(q) a person acting on behalf of a fully managed account managed by that person, if that person
(i) is registered or authorized to carry on business as an adviser or the equivalent under the securities legislation of a jurisdiction of Canada or a foreign jurisdiction, and
(ii) in Ontario, is purchasing a security that is not a security of an investment fund; or
 a registered charity under the Income Tax Act (Canada) that, in regard to the trade, has obtained advice from an eligibility adviser or an adviser registered under the securities legislation of the jurisdiction of the registered charity to give advice on the securities being traded; or
(s) an entity organized in a foreign jurisdiction that is analogous to any of the entities referred to in paragraphs (a) to (d) or paragraph (i) in form and function; or

(t) a person in respect of which all of the owners of interests, direct, indirect or beneficial, except the voting securities required by law to be owned by directors, are persons that are accredited investors (as defined in National Instrument 45 106); or
(u) an investment fund that is advised by a person registered as an adviser or a person that is exempt from registration as an adviser; or
(v) a person that is recognized or designated by the securities regulatory authority or, except in Ontario and Québec, the regulator as
(i) an accredited investor, or
(ii) an exempt purchaser in Alberta or British Columbia and confirmation of such status is being provided to the Partnership.

For the purposes hereof:
(a) "affiliate" means an issuer connected with another issuer because:
(i) one of them is the subsidiary of the other; or
(ii) each of them is controlled by the same person;
(b) "Canadian financial institution" means
(i) an association governed by the Cooperative Credit Associations Act (Canada) or a central cooperative credit society for which an order has been made under section 473(1) of that Act, or
(ii) a bank, loan corporation, trust company, trust corporation, insurance company, treasury branch, credit union, caisse populaire, financial services cooperative, or league that, in each case, is authorized by an enactment of Canada or a jurisdiction of Canada to carry on business in Canada or a jurisdiction of Canada;
 "consultant" means, for an issuer, a person, other than an employee, executive officer, or director of the issuer or of a related entity of the issuer, that
(i) is engaged to provide services to the issuer or a related entity of the issuer, other than services provided in relation to a distribution;
(ii) provides the services under a written contract with the issuer or a related entity of the issuer; and
(iii) spends or will spend a significant amount of time and attention on the affairs and business of the issuer or a related entity of the issuer;
and includes, for an individual consultant, a corporation of which the individual consultant is an employee or shareholder, and a partnership of which the individual consultant is an employee or partner;
(d) "control person" has the same meaning as in securities legislation except in Manitoba, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, Ontario, Prince Edward Island and Québec where control person means any person that holds or isone of a combination of persons that holds
(i) a sufficient number of any of the securities of an issuer so as to affect materially the control of the issuer, or
(ii) more than 20% of the outstanding voting securities of an issuer except where there is evidence showing that the holding of those securities does not affect materially the control of the issuer;
(e) "director" means:
(i) a member of the board of directors of a company or an individual who performs similar functions for a company, and
(ii) with respect to a person that is not a company, an individual who performs functions similar to those of a director of a company;
(f) "eligibility adviser" means:
(i) a person that is registered as an investment dealer or in an equivalent category of registration under the securities legislation of the jurisdiction of a purchaser and authorized to give advice with respect to the type of security being distributed, and
(ii) in Saskatchewan and Manitoba, also means a lawyer who is a practicing member in good standing with a law society of a jurisdiction of Canada or a public accountant who is a member in good standing of an institute or association of chartered accountants, certified general accountants or certified management accountants in a jurisdiction of Canada provided that the lawyer or public accountant must not
(A) have a professional, business or personal relationship with the issuer, or any of its directors, executive officer, founders, or control persons, and
(B) have acted for or been retained personally or otherwise as an employee, executive officer, director, associate or partner of a person that has acted for or been retained by the issuer or any of its directors, executive officers, founders or control persons within the previous 12 months;
(g) "executive officer" means, for an issuer, an individual who is
(i) a chair, vice-chair or president,
(ii) a vice-president in charge of a principal business unit, division or function including sales, finance or production,
(iii) an officer of the issuer or any of its subsidiaries and who performs a policy-making function in respect of the issuer, or
(iv) performing a policy-making function in respect of the issuer;
(h) "financial assets" means:
(i) cash,
(ii) securities, or
(iii) a contract of insurance, a deposit or an evidence of a deposit that is not a security for the purposes of securities legislation;
(i) "foreign jurisdiction" means a country other than Canada or a political subdivision of a country other than Canada;
(j) "founder" means, in respect of an issuer, a person who,
(i) acting alone, in conjunction, or in concert with one or more persons, directly or indirectly, takes the initiative in founding, organizing or substantially reorganizing the business of the issuer, and
(ii) at the time of the trade is actively involved in the business of the issuer;
(k) "fully managed account" means an account of a client for which a person makes the investment decisions if that person has full discretion to trade in securities for the account without requiring the client`s express consent to a transaction;
(l) "investment fund" means a mutual fund or a non redeemable investment fund;
(m) "jurisdiction" means a province or territory of Canada except when used in the term foreign jurisdiction;
(n) "local jurisdiction" means the jurisdiction in which the Canadian securities regulatory authority is situate;
(o) "non-redeemable investment fund" means an issuer,
(i) whose primary purpose is to invest money provided by its securityholders,
(ii) that does not invest,
 for the purpose of exercising or seeking to exercise control of an issuer, other than an issuer that is a mutual fund or a non-redeemable investment fund, or
(D) for the purpose of being actively involved in the management of any issuer in which it invests, other than an issuer that is a mutual fund or a non-redeemable investment fund, and
(iii) that is not a mutual fund;
(p) "person" includes an individual, a corporation, a partnership, trust, fund and an association, syndicate, organization or other organized group of persons, whether incorporated or not, and an individual or other person in that person`s capacity as a trustee, executor, administrator or personal or other legal representative;
(q) "regulator" means, for the local jurisdiction, the Executive Director as defined under securities legislation of the local jurisdiction;
 "related entity" means for an issuer, a person that controls or is controlled by the issuer or that is controlled by the same person that controls the issuer;
(s) "related liabilities" means
(i) liabilities incurred or assumed for the purpose of financing the acquisition or ownership of financial assets, or
(ii) liabilities that are secured by financial assets;
(t) "Schedule III bank" means an authorized foreign bank named in Schedule III of the Bank Act (Canada);
(u) "spouse" means, an individual who,
(i) is married to another individual and is not living separate and apart within the meaning of the Divorce Act (Canada), from the other individual,
(ii) is living with another individual in a marriage-like relationship, including a marriage-like relationship between individuals of the same gender, or
(iii) in Alberta, is an individual referred to in paragraph (i) or (ii) above, or is an adult interdependent partner within the meaning of the Adult Interdependent Relationships Act (Alberta); and
(v) "subsidiary" means an issuer that is controlled directly or indirectly by another issuer and includes a subsidiary of that subsidiary.
 

Dan_Eisenhauer

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Thomas, you must have been typing that out all night.


Thanks for the explanation.
 

OlegP

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QUOTE (Dan_Eisenhauer @ Jan 22 2009, 10:37 AM) Thomas, you must have been typing that out all night.


Thanks for the explanation.

Gentlemen! Thank you very much for such detailed information.
 

Thomas Beyer

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QUOTE (Dan_Eisenhauer @ Jan 22 2009, 09:37 AM) Thomas, you must have been typing that out all night.


Thanks for the explanation.
cut and paste from a word file is a wonderful thing ... and it does NOT take all night .. just a lawyer @ $450/h (or so they pretend and cut and past from a previous client ...) !!
 

HarveyJaehnAxis

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QUOTE (OlegP @ Jan 21 2009, 09:00 PM) HI All,
I met an accredited investor, who wants to do some joint venturing.

Does the fact that he is an accredited investor add any layers in terms of due diligence that I have to do on him? Also, does it add any complexity as far as Securities law is concerned?

I understand that accredited investors are likely more sophisticated (he seems to be), and my proposed deals will be scrutinized heavily. I am just trying to find out if there are any considerations in addition to joint venturing with non-accredited investors that I should be aware of.

Thanks in advance.
Oleg


I agree with Thomas` comments and wish to add (re: ~layers of due diligence~) that when one is to engage working with an AIthey may need to sign a disclosure form that states they are applicable under the noted exemption. That also depends on what your project is and how it is structured. The thinking is that the AI, with their net worth, income and investment capital that they are "sophisticated" enough to rely upon their own decisions. Regarding "non-acredited" investors, be careful about how advertising is done; keep it close to relatives, friends and business acqaintances or local. In any case, one always needs to expect that all potential JV partners will do a thorough job of due diligence. Additionally, it`s always a good idea to get further legal advice in this regard.

Harv Jaehn
Axis Partnerships

"Partners Building Generational Wealth with Maximized Commercial Real Estate Investments"
Tel: 780 997 0377 Fax: 780 997 0587
 

Thomas Beyer

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QUOTE (OlegP @ Jan 21 2009, 10:00 PM) Does the fact that he is an accredited investor add any layers in terms of due diligence that I have to do on him? Also, does it add any complexity as far as Securities law is concerned?
no.
 

NorthernAlex

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I am curious:

Why does someone need to be "an accredited investor"? Which benefit does he have expect that we know that he has min. $200k/annually or 1Mil$ in liquid assets and which benefit does the JV partner have?

 

GarthChapman

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It largely means that they are expected to be sophisticated enough to make investment decisions. Perhaps less obligation for you...
 

HarveyJaehnAxis

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QUOTE (NorthernAlex @ May 21 2009, 08:24 PM) I am curious:

Why does someone need to be "an accredited investor"? Which benefit does he have expect that we know that he has min. $200k/annually or 1Mil$ in liquid assets and which benefit does the JV partner have?


Companies who are seeking investment capital would normally need to receive permission from an applicable provincial authority called a Securities Commission before they can solicit (advertise) openly to the general public seeking investment capital. Such authorization can only be provided after the company files what is called an "Offering Memorandum" (OE). The cost to prepare and file an OE can be quite significant (5-figures) so such an effort is not justified unless substantial investment is required (6-figures+). Another way to seek investment capital publically is to offer the investment only to accredited investors who have or exceed the minimum requirements of income and net worth...the thinking is that such investors are able to conduct sufficient due diligence and accept such resposibility/risk/potential loss on their own. This is an exemption for/to accredited investors. You can Google rule 45-106.

The exemption allows this
 

Thomas Beyer

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QUOTE (HarveyJaehnAxis @ May 21 2009, 09:42 PM) Companies who are seeking investment capital would normally need to receive permission from an applicable provincial authority called a Securities Commission before they can solicit ...
not quite ..

you do not need permission !

you need to follow the law !

If you are selling securities you have to file a prospectus (as a so called reporting issuer)

You can use an exemption as a non-reporting issuer if you
a) raise money from accredited investors, or
b) file an offering memorandum
c) do business with friends and/or close business associates
 
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