British Columbia Gazette Part II — B.C. Reg. 106/2016
B.C. Reg. 106/2016
British Columbia — Gazette
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Volume 59, No. 8
106/2016
The British Columbia Gazette,
Part II
May 17, 2016
B.C. Reg. 106/2016 , deposited May 6, 2016, under the SECURITIES ACT [section 184]. Rule of the British Columbia Securities Commission, dated May 6, 2016.
The British Columbia Securities Commission orders that, effective May 9, 2016,
(
a) National Instrument 62-103 The Early Warning System and Related Take-Over Bid and Insider Reporting Issues , B.C. Reg. 83/2000, is amended as set out in
Schedule A,
(
b) Multilateral Instrument 62-104 Take-Over Bids and Issuer Bids , B.C. Reg. 21/2008, is amended as set out in
Schedule B,
(
c) Multilateral Instrument 11-102 Passport System , B.C. Reg. 58/2008, is amended as set out in
Schedule C,
(
d) Multilateral Instrument 13-102 System Fees for SEDAR and NRD , B.C. Reg. 210/2013, is amended as set out in
Schedule D,
(
e) National Instrument 43-101 Standards of Disclosure for Mineral Projects , B.C. Reg. 86/2011, is amended as set out in
Schedule E,
(
f) Multilateral Instrument 51-105 Issuers Quoted in the U.S. Over-the-Counter Markets , B.C. Reg. 235/2012, is amended as set out in
Schedule F,
(
g) Rule 71-801 Implementing the Multijurisdictional Disclosure System under National Instrument
71-101 , B.C. Reg. 344/98, is amended as set out in
Schedule G, and
(
h) Securities Rules , B.C. Reg. 194/97, is amended as set out in
Schedule H.
— B. LEONG, British Columbia Securities Commission .
Schedule A
1 National Instrument 62-103 The Early Warning System and Related Take-Over Bid and Insider Reporting Issues , B.C. Reg. 83/2000, is amended as set out in this Schedule.
Section 1.1 is amended by:
(
a) adding the following
definitions:
“acquiror” has the meaning ascribed to that term in
Part 5 of NI 62-104;
“acquiror’s securities” has the meaning ascribed to that term in
Part 5 of NI 62-104;
“economic exposure” has the meaning ascribed to that term in NI 55-104;
“NI 62-104” means National Instrument 62-104 Take-Over Bids and Issuer Bids ;
“securities lending arrangement” has the meaning ascribed to that term in
Part 5 of NI 62-104; ,
(
b) replacing “ offeror ” with “ acquiror ” in the definition of “acquisition announcement provisions” ,
(
c) replacing “ MI ” with “ NI ” and deleting “ and, in Ontario, has the meaning ascribed under paragraphs (a.1) to (
f) of the
definition of “associate” in subsection 1 (1) of the Securities Act (Ontario) ” in the definition of “associate” ,
(
d) replacing the definition of “early warning requirements” with the following:
“early warning requirements” means the requirements set out in
section 5.2 of NI 62-104; ,
(
e) replacing the definition of “formal bid” with the following:
“formal bid” means a take-over bid or issuer bid made in accordance with
Part 2 of NI 62-104; ,
(
f) repealing the definition of “MI 62-104” ,
(
g) replacing the definition of “moratorium provisions” with the following:
“moratorium provisions” means the provisions set out in subsection 5.3 (1) of NI 62-104; , and
(
h) deleting the
definitions of “offeror” and “offeror’s securities” .
Section 3.1 is repealed and the following substituted:
3.1 Contents of News Releases and Reports
(1) A news release and report required under the early warning requirements shall
contain the information required by Form 62-103F1 Required Disclosure under the Early Warning Requirements .
(2) Despite subsection (1), a news release required under the early warning requirements
may omit the information otherwise required by Items 2.3, 3.3, 3.5 through 3.8, 4.2,
4.3, 6 and 9, and Item 7 to the extent that the information relates to those sections
and items, of Form 62-103F1 Required Disclosure under the Early Warning Requirements , if
(
a) the omitted information is included in the corresponding report required by
the early warning requirements, and
(
b) the news release indicates the name and telephone number of an individual
to contact to obtain a copy of the report.
(3) The acquiror shall send a copy of the report referred to in paragraph (2)
(
a) promptly to any entity requesting it.
Section 3.2 is amended by replacing “ offeror ” with “ acquiror ” wherever it occurs.
Section 4.2 is amended by adding “ (1) ” before “ An ”, by deleting “ or ” at the end of paragraph (a), by replacing “ . ” with “ ; or ” at the end of paragraph (
b) and by adding the following paragraph and subsection:
(
c) solicits proxies from securityholders of the reporting issuer in any of the
following circumstances:
(
i) in support of the election of one or more persons as directors of the reporting
issuer other than the persons proposed to be nominated by management of the reporting
issuer;
(ii) in support for a reorganization, amalgamation, merger, arrangement or other
similar corporate action involving the securities of the reporting issuer if that
action is not supported by management of the reporting issuer;
(iii) in opposition to a reorganization, amalgamation, merger, arrangement or
other similar corporate action involving the securities of the reporting issuer if
that action is proposed by management of the reporting issuer.
(2) For the purposes of this section, “solicit” has the meaning ascribed to that
term in National Instrument 51-102 Continuous Disclosure Obligations .
6 Subsection 4.3 (2) is amended by replacing “ Appendix F ” with “ Form 62-103F2 Required Disclosure by an Eligible Institutional Investor under
Section 4.3 ”.
7 Subsection 4.7 (1) is amended by replacing “ Appendix G ” with “ Form 62-103F3 Required Disclosure by an Eligible Institutional Investor under
Part 4 ”.
Section 5.1 is amended by replacing “ offeror ” with “ acquiror ” in paragraph (b).
Section 8.2 is amended by deleting “ (1) ”.
Section 9.1 is amended by deleting “ (3), ” in subsection (1) and by repealing subsection (3).
11 Appendix D is amended by
(
a) replacing “ MI 62-104 ” with “ NI 62-104 ” wherever it occurs, and
(
b) replacing “ Subsections 1 (5) and (6) and sections 90 and 91 of the Securities Act (Ontario) ” with “ Subsections 1 (5) and 1 (6) of the Securities Act (Ontario) and sections 1.8 and 1.9 of NI 62-104 ”.
12 Appendices E, F and G are repealed.
13 The following forms are added:
Form 62-103F1
Required Disclosure under the Early Warning Requirements
State if this report is filed to amend information disclosed in an earlier report.
Indicate the date of the report that is being amended.
Item 1 – Security and Reporting Issuer
1.1 State the designation of securities to which this report relates and the name
and address of the head office of the issuer of the securities.
1.2 State the name of the market in which the transaction or other occurrence that
triggered the requirement to file this report took place.
Item 2 – Identity of the Acquiror
2.1 State the name and address of the acquiror.
2.2 State the date of the transaction or other occurrence that triggered the requirement
to file this report and briefly describe the transaction or other occurrence.
2.3 State the names of any joint actors.
INSTRUCTION
If the acquiror is a corporation, general partnership, limited partnership, syndicate
or other group of persons, provide its name, the address of its head office, its jurisdiction
of incorporation or organization, and its principal business.
Item 3 – Interest in Securities of the Reporting Issuer
3.1 State the designation and number or principal amount of securities acquired
or disposed of that triggered the requirement to file this report and the change in
the acquiror’s securityholding percentage in the class of securities.
3.2 State whether the acquiror acquired or disposed ownership of, or acquired or
ceased to have control over, the securities that triggered the requirement to file
this report.
3.3 If the transaction involved a securities lending arrangement, state that fact.
3.4 State the designation and number or principal amount of securities and the
acquiror’s securityholding percentage in the class of securities, immediately before
and after the transaction or other occurrence that triggered the requirement to file
this report.
3.5 State the designation and number or principal amount of securities and the
acquiror’s securityholding percentage in the class of securities referred to in Item
3.4 over which
(
a) the acquiror, either alone or together with any joint actors, has ownership
and control,
(
b) the acquiror, either alone or together with any joint actors, has ownership
but control is held by persons or companies other than the acquiror or any joint actor,
and
(
c) the acquiror, either alone or together with any joint actors, has exclusive
or shared control but does not have ownership.
3.6 If the acquiror or any of its joint actors has an interest in, or right or
obligation associated with, a related financial instrument involving a security of
the class of securities in respect of which disclosure is required under this item,
describe the material terms of the related financial instrument and its impact on
the acquiror’s securityholdings.
3.7 If the acquiror or any of its joint actors is a party to a securities lending
arrangement involving a security of the class of securities in respect of which disclosure
is required under this item, describe the material terms of the arrangement including
the duration of the arrangement, the number or principal amount of securities involved
and any right to recall the securities or identical securities that have been transferred
or lent under the arrangement.
State if the securities lending arrangement is subject to the exception provided
section 5.7 of NI 62-104.
3.8 If the acquiror or any of its joint actors is a party to an agreement, arrangement
or understanding that has the effect of altering, directly or indirectly, the acquiror’s
economic exposure to the security of the class of securities to which this report
relates, describe the material terms of the agreement, arrangement or understanding.
INSTRUCTIONS
(i) “Related financial instrument” has the meaning ascribed to that term in NI 55-104.
Item 3.6 encompasses disclosure of agreements, arrangements or understandings where
the economic interest related to a security beneficially owned or controlled has been
altered.
(ii) For the purposes of Items 3.6, 3.7 and 3.8, a material term of an agreement,
arrangement or understanding does not include the identity of the counterparty or
proprietary or commercially sensitive information.
(iii) For the purposes of Item 3.8, any agreements, arrangements or understandings
that have been disclosed under other items in this Form do not have to be disclosed
under this item.
Item 4 – Consideration Paid
4.1 State the value, in Canadian dollars, of any consideration paid or received
per security and in total.
4.2 In the case of a transaction or other occurrence that did not take place on
a stock exchange or other market that represents a published market for the securities,
including an issuance from treasury, disclose the nature and value, in Canadian dollars,
of the consideration paid or received by the acquiror.
4.3 If the securities were acquired or disposed of other than by purchase or sale,
describe the method of acquisition or disposition.
Item 5 – Purpose of the Transaction
State the purpose or purposes of the acquiror and any joint actors for the acquisition
or disposition of securities of the reporting issuer. Describe any plans or future
intentions which the acquiror and any joint actors may have which relate to or would
result in any of the following:
(
a) the acquisition of additional securities of the reporting issuer, or the disposition
of securities of the reporting issuer;
(
b) a corporate transaction, such as a merger, reorganization or liquidation,
involving the reporting issuer or any of its subsidiaries;
(
c) a sale or transfer of a material amount of the assets of the reporting issuer
or any of its subsidiaries;
(
d) a change in the board of directors or management of the reporting issuer,
including any plans or intentions to change the number or term of directors or to
fill any existing vacancy on the board;
(
e) a material change in the present capitalization or dividend policy of the
reporting issuer;
(
f) a material change in the reporting issuer’s business or corporate structure;
(
g) a change in the reporting issuer’s charter, bylaws or similar instruments
or another action which might impede the acquisition of control of the reporting issuer
by any person or company;
(
h) a class of securities of the reporting issuer being delisted from, or ceasing
to be authorized to be quoted on, a marketplace;
(
i) the issuer ceasing to be a reporting issuer in any jurisdiction of Canada;
(
j) a solicitation of proxies from securityholders;
(
k) an action similar to any of those enumerated above.
Item 6 – Agreements, Arrangements, Commitments or Understandings With Respect to
Securities of the Reporting Issuer
Describe the material terms of any agreements, arrangements, commitments or understandings
between the acquiror and a joint actor and among those persons and any person with
respect to securities of the class of securities to which this report relates, including
but not limited to the transfer or the voting of any of the securities, finder’s fees,
joint ventures, loan or option arrangements, guarantees of profits, division of profits
or loss, or the giving or withholding of proxies. Include such information for any
of the securities that are pledged or otherwise subject to a contingency, the occurrence
of which would give another person voting power or investment power over such securities,
except that disclosure of standard default and similar provisions contained in loan
agreements need not be included.
INSTRUCTIONS
(
i) Agreements, arrangements or understandings that are described under Item 3
do not have to be disclosed under this item.
(ii) For the purposes of Item 6, the description of any agreements, arrangements,
commitments or understandings does not include naming the persons with whom those
agreements, arrangements, commitments or understandings have been entered into, or
proprietary or commercially sensitive information.
Item 7 – Change in Material Fact
If applicable, describe any change in a material fact set out in a previous report
filed by the acquiror under the early warning requirements or
Part 4 in respect of
the reporting issuer’s securities.
Item 8 – Exemption
If the acquiror relies on an exemption from requirements in securities legislation
applicable to formal bids for the transaction, state the exemption being relied on
and describe the facts supporting that reliance.
Item 9 – Certification
The acquiror must certify that the information in this report is true and complete
in every respect. In the case of an agent, the certification is based on the agent’s
best knowledge, information and belief but the acquiror is still responsible for ensuring
that the information filed by the agent is true and complete.
This report must be signed by each person on whose behalf the report is filed or
his or her authorized representative.
It is an offence to submit information that, in a material respect and at the time
and in the light of the circumstances in which it is submitted, is misleading or untrue.
Certificate
The certificate must state the following:
I, as the acquiror, certify, or I, as the agent filing this report on behalf of
an acquiror, certify to the best of my knowledge, information and belief, that the
statements made in this report are true and complete in every respect.
…………………………………………
Date
…………………………………………
Signature
…………………………………………
Name/Title
Form 62-103F2
Required Disclosure by an Eligible Institutional Investor under
Section 4.3
State if this report is filed to amend information disclosed in an earlier report.
Indicate the date of the report that is being amended.
Item 1 – Security and Reporting Issuer
1.1 State the designation of securities to which this report relates and the name
and address of the head office of the issuer of the securities.
1.2 State the name of the market in which the transaction or other occurrence that
triggered the requirement to file this report took place.
Item 2 – Identity of the Eligible Institutional Investor
2.1 State the name and address of the eligible institutional investor.
2.2 State the date of the transaction or other occurrence that triggered the requirement
to file this report and briefly describe the transaction or other occurrence.
2.3 State that the eligible institutional investor is ceasing to file reports under
Part 4 for the reporting issuer.
2.4 Disclose the reasons for doing so.
2.5 State the names of any joint actors.
Item 3 – Interest in Securities of the Reporting Issuer
3.1 State the designation and number or principal amount of securities and the
eligible institutional investor’s securityholding percentage in the class of securities
immediately before and after the transaction or other occurrence that triggered the
requirement to file this report.
3.2 State whether the acquiror acquired or disposed ownership of, or acquired or
ceased to have control over, the securities that triggered the requirement to file
this report.
3.3 If the transaction involved a securities lending arrangement, state that fact.
3.4 State the designation and number or principal amount of securities and the
eligible institutional investor’s securityholding percentage in the class of securities,
immediately before and after the transaction or other occurrence that triggered the
requirement to file this report and over which
(
a) the eligible institutional investor, either alone or together with any joint
actors, has ownership and control,
(
b) the eligible institutional investor, either alone or together with any joint
actors, has ownership but control is held by persons or companies other than the eligible
institutional investor or any joint actor, and
(
c) the eligible institutional investor, either alone or together with any joint
actors, has exclusive or shared control but does not have ownership.
3.5 If the eligible institutional investor or any of its joint actors has an interest
in, or right or obligation associated with, a related financial instrument involving
a security of the class of securities in respect of which disclosure is required under
this item, describe the material terms of the related financial instrument and its
impact on the eligible institutional investor’s securityholdings.
3.6 If the eligible institutional investor or any of its joint actors is a party
to a securities lending arrangement involving a security of the class of securities
in respect of which disclosure is required under this item, describe the material
terms of the arrangement including the duration of the arrangement, the number or
principal amount of securities involved and any right to recall the securities or
identical securities that have been transferred or lent under the arrangement.
State if the securities lending arrangement is subject to the exception provided
section 5.7 of NI 62-104.
3.7 If the eligible institutional investor or any of its joint actors is a party
to an agreement, arrangement or understanding that has the effect of altering, directly
or indirectly, the eligible institutional investor’s economic exposure to the security
of the class of securities to which this report relates, describe the material terms
of the agreement, arrangement or understanding.
INSTRUCTIONS
(i) “Related financial instrument” has the meaning ascribed to that term in NI 55-104.
Item 3.5 encompasses disclosure of agreements, arrangements or understandings where
the economic interest related to a security beneficially owned or controlled has been
altered.
(ii) For the purposes of Items 3.5, 3.6 and 3.7, a material term of an agreement,
arrangement or understanding does not include the identity of the counterparty or
proprietary or commercially sensitive information.
(iii) For the purposes of Item 3.7, any agreements, arrangements or understandings
that have been disclosed under other items in this Form do not have to be disclosed
under this item.
Item 4 – Consideration Paid
4.1 State the value, in Canadian dollars, of any consideration paid or received
per security and in total.
4.2 In the case of a transaction or other occurrence that did not take place on
a stock exchange or other market that represents a published market for the securities,
including an issuance from treasury, disclose the nature and value, in Canadian dollars,
of the consideration paid or received by the eligible institutional investor.
4.3 If the securities were acquired or disposed of other than by purchase or sale,
describe the method of acquisition or disposition.
Item 5 – Purpose of the Transaction
State the purpose or purposes of the eligible institutional investor and any joint
actors for the acquisition or disposition of securities of the reporting issuer. Describe
any plans or future intentions which the eligible institutional investor and any joint
actors may have which relate to or would result in any of the following:
(
a) the acquisition of additional securities of the reporting issuer, or the disposition
of securities of the reporting issuer;
(
b) a corporate transaction, such as a merger, reorganization or liquidation,
involving the reporting issuer or any of its subsidiaries;
(
c) a sale or transfer of a material amount of the assets of the reporting issuer
or any of its subsidiaries;
(
d) a change in the board of directors or management of the reporting issuer,
including any plans or intentions to change the number or term of directors or to
fill any existing vacancy on the board;
(
e) a material change in the present capitalization or dividend policy of the
reporting issuer;
(
f) a material change in the reporting issuer’s business or corporate structure;
(
g) a change in the reporting issuer’s charter, bylaws or similar instruments
or another action which might impede the acquisition of control of the reporting issuer
by any person;
(
h) a class of securities of the reporting issuer being delisted from, or ceasing
to be authorized to be quoted on, a marketplace;
(
i) the issuer ceasing to be a reporting issuer in any jurisdiction of Canada;
(
j) a solicitation of proxies from securityholders;
(
k) an action similar to any of those enumerated above.
Item 6 – Agreements, Arrangements, Commitments or Understandings With Respect to
Securities of the Reporting Issuer
Describe the material terms of any agreements, arrangements, commitments or understandings
between the eligible institutional investor and a joint actor and among those persons
and any person with respect to any securities of the reporting issuer, including but
not limited to the transfer or the voting of any of the securities, finder’s fees,
joint ventures, loan or option arrangements, guarantees of profits, division of profits
or loss, or the giving or withholding of proxies. Include such information for any
of the securities that are pledged or otherwise subject to a contingency, the occurrence
of which would give another person voting power or investment power over such securities,
except that disclosure of standard default and similar provisions contained in loan
agreements need not be included.
INSTRUCTIONS
(
i) Agreements, arrangements or understandings that are described under Item 3
do not have to be disclosed under this item.
(ii) For the purposes of Item 6, the description of any agreements, arrangements,
commitments or understandings does not include naming the persons with whom those
agreements, arrangements, commitments or understandings have been entered into, or
proprietary or commercially sensitive information.
Item 7 – Change in Material Fact
If applicable, describe any change in a material fact set out in a previous report
filed by the eligible institutional investor under the early warning requirements
Part 4 in respect of the reporting issuer’s securities.
Item 8 – Exemption
If the eligible institutional investor relies on an exemption from the requirement
in securities legislation applicable to formal bids for the transaction, state the
exemption being relied on and describe the facts supporting that reliance.
Item 9 – Certification
The eligible institutional investor must certify that the information in this report
is true and complete in every respect. In the case of an agent, the certification
is based on the agent’s best knowledge, information and belief but the eligible institutional
investor is still responsible for ensuring that the information filed by the agent
is true and complete.
This report must be signed by each person on whose behalf the report is filed or
his or her authorized representative.
It is an offence to submit information that, in a material respect and at the time
and in the light of the circumstances in which it is submitted, is misleading or untrue.
Certificate
The certificate must state the following:
I, as the eligible institutional investor, certify, or I, as the agent filing this
report on behalf of the eligible institutional investor, certify to the best of my
knowledge, information and belief, that the statements made in this report are true
and complete in every respect.
…………………………………………
Date
…………………………………………
Signature
…………………………………………
Name/Title
Form 62-103F3
Required Disclosure by an Eligible Institutional Investor under
Part 4
State if this report is filed to amend information disclosed in an earlier report.
Indicate the date of the report that is being amended.
Item 1 – Security and Reporting Issuer
1.1 State the designation of securities to which this report relates and the name
and address of the head office of the issuer of the securities.
1.2 State the name of the market in which the transaction or other occurrence that
triggered the requirement to file this report took place.
Item 2 – Identity of the Eligible Institutional Investor
2.1 State the name and address of the eligible institutional investor.
2.2 State the date of the transaction or other occurrence that triggered the requirement
to file this report and briefly describe the transaction or other occurrence.
2.3 State the name of any joint actors.
2.4 State that the eligible institutional investor is eligible to file reports
under
Part 4 in respect of the reporting issuer.
Item 3 – Interest in Securities of the Reporting Issuer
3.1 State the designation and the net increase or decrease in the number or principal
amount of securities, and in the eligible institutional investor’s securityholding
percentage in the class of securities, since the last report filed by the eligible
institutional investor under
Part 4 or the early warning requirements.
3.2 State the designation and number or principal amount of securities and the
eligible institutional investor’s securityholding percentage in the class of securities
at the end of the month for which the report is made.
3.3 If the transaction involved a securities lending arrangement, state that fact.
3.4 State the designation and number or principal amount of securities and the
percentage of outstanding securities of the class of securities to which this report
relates and over which
(
a) the eligible institutional investor, either alone or together with any joint
actors, has ownership and control,
(
b) the eligible institutional investor, either alone or together with any joint
actors, has ownership but control is held by persons or companies other than the eligible
institutional investor or any joint actor, and
(
c) the eligible institutional investor, either alone or together with any joint
actors, has exclusive or shared control but does not have ownership.
3.5 If the eligible institutional investor or any of its joint actors has an interest
in, or right or obligation associated with, a related financial instrument involving
a security of the class of securities in respect of which disclosure is required under
this item, describe the material terms of the related financial instrument and its
impact on the eligible institutional investor’s securityholdings.
3.6 If the eligible institutional investor or any of its joint actors is a party
to a securities lending arrangement involving a security of the class of securities
in respect of which disclosure is required under this item, describe the material
terms of the arrangement including the duration of the arrangement, the number or
principal amount of securities involved and any right to recall the securities or
identical securities that have been transferred or lent under the arrangement.
State if the securities lending arrangement is subject to the exception provided
section 5.7 of NI 62-104.
3.7 If the eligible institutional investor or any of its joint actors is a party
to an agreement, arrangement or understanding that has the effect of altering, directly
or indirectly, the eligible institutional investor’s economic exposure to the security
of the class of securities to which this report relates, describe the material terms
of the agreement, arrangement or understanding.
INSTRUCTIONS
(i) “Related financial instrument” has the meaning ascribed to that term in NI 55-104.
Item 3.5 encompasses disclosure of agreements, arrangements or understandings where
the economic interest related to a security beneficially owned or controlled has been
altered.
(ii) An eligible institutional investor may omit the securityholding percentage
from a report if the change in percentage is less than 1% of the class.
(iii) For the purposes of Items 3.5, 3.6 and 3.7, a material term of an agreement,
arrangement or understanding does not include the identity of the counterparty or
proprietary or commercially sensitive information.
(iv) For the purposes of Item 3.7, any agreements, arrangements or understandings
that have been disclosed under other items in this Form do not have to be disclosed
under this item.
Item 4 – Purpose of the Transaction
State the purpose or purposes of the eligible institutional investor and any joint
actors for the acquisition or disposition of securities of the reporting issuer. Describe
any plans or future intentions which the eligible institutional investor and any joint
actors may have which relate to or would result in any of the following:
(
a) the acquisition of additional securities of the reporting issuer, or the disposition
of securities of the issuer;
(
b) a sale or transfer of a material amount of the assets of the reporting issuer
or any of its subsidiaries;
(
c) a change in the board of directors or management of the reporting issuer,
including any plans or intentions to change the number or term of directors or to
fill any existing vacancy on the board;
(
d) a material change in the present capitalization or dividend policy of the
reporting issuer;
(
e) a material change in the reporting issuer’s business or corporate structure;
(
f) a change in the reporting issuer’s charter, bylaws or similar instruments
or another action which might impede the acquisition of control of the reporting issuer
by any person;
(
g) a class of securities of the reporting issuer being delisted from, or ceasing
to be authorized to be quoted on, a marketplace;
(
h) the issuer ceasing to be a reporting issuer in any jurisdiction of Canada;
(
i) a solicitation of proxies from securityholders;
(
j) an action similar to any of those enumerated above.
Item 5 – Agreements, Arrangements, Commitments or Understandings With Respect to
Securities of the Reporting Issuer
Describe the material terms of any agreements, arrangements, commitments or understandings
between the eligible institutional investor and a joint actor and among those persons
and any person with respect to securities of the class of securities to which this
report relates, including but not limited to the transfer or the voting of any of
the securities, finder’s fees, joint ventures, loan or option arrangements, puts or
calls, guarantees of profits, division of profits or loss, or the giving or withholding
of proxies. Include such information for any of the securities that are pledged or
otherwise subject to a contingency, the occurrence of which would give another person
voting power or investment power over such securities except that disclosure of standard
default and similar provisions contained in loan agreements need not be included.
INSTRUCTIONS
(
i) Agreements, arrangements or understandings that are described under Item 3
do not have to be disclosed under this item.
(ii) For the purposes of Item 5, the description of any agreements, arrangements,
commitments or understandings does not include naming the persons with whom those
agreements, arrangements, commitments or understandings have been entered into, or
proprietary or commercially sensitive information.
Item 6 – Change in Material Fact
If applicable, describe any change in a material fact set out in a previous report
filed by the eligible institutional investor under the early warning requirements
Part 4 in respect of the reporting issuer’s securities.
Item 7 – Certification
The eligible institutional investor must certify that the information in this report
is true and complete in every respect. In the case of an agent, the certification
is based on the agent’s best knowledge, information and belief but the eligible institutional
investor is still responsible for ensuring that the information filed by the agent
is true and complete.
This report must be signed by each person on whose behalf the report is filed or
his or her authorized representative.
It is an offence to submit information that, in a material respect and at the time
and in the light of the circumstances in which it is submitted, is misleading or untrue.
Certificate
The certificate must state the following:
I, as the eligible institutional investor, certify, or I, as the agent filing this
report on behalf of the eligible institutional investor, certify to the best of my
knowledge, information and belief, that the statements made in this report are true
and complete in every respect.
…………………………………………
Date
…………………………………………
Signature
…………………………………………
Name/Title
Schedule B
1 Multilateral Instrument 62-104 Take-Over Bids and Issuer Bids , B.C. Reg. 21/2008, is amended as set out in this Schedule.
2 The title of Multilateral Instrument 62-104 Take-Over Bids and Issuer Bids is amended by striking out “ Multilateral ” and substituting “ National ”.
Section 1.1 is amended
(
a) by adding the following definition:
“alternative transaction” means, for an issuer:
(
a) an amalgamation, merger, arrangement, consolidation, or any other transaction
of the issuer, or an amendment to the terms of a class of equity securities of the
issuer, as a consequence of which the interest of a holder of an equity security of
the issuer may be terminated without the holder’s consent, regardless of whether the
equity security is replaced with another security, but does not include
(
i) a consolidation of securities that does not have the effect of terminating
the interests of holders of equity securities of the issuer in those securities without
their consent, except to an extent that is nominal in the circumstances,
(ii) a circumstance in which the issuer may terminate a holder’s interest in a
security, under the terms attached to the security, for the purpose of enforcing an
ownership or voting constraint that is necessary to enable the issuer to comply with
legislation, lawfully engage in a particular activity or have a specified level of
Canadian ownership, or
(iii) a transaction solely between or among the issuer and one or more subsidiaries
of the issuer,
(
b) a sale, lease or exchange of all or substantially all the property of the
issuer if the sale, lease or exchange is not in the ordinary course of business of
the issuer, but does not include a sale, lease or exchange solely between or among
the issuer and one or more subsidiaries of the issuer; ,
(
b) in the definition of “associate” by
(
i) adding “ or ” at the end of paragraph (c), and
(ii) repealing paragraph (
d) and substituting the following:
(
d) a relative of that person, if the relative has the same home as that person,
including
(
i) the spouse or, in Alberta, adult interdependent partner of that person, or
(ii) a relative of the person’s spouse or, in Alberta, adult interdependent partner; , and
(
c) by adding the following
definitions:
“deposit period news release” means a news release issued by an offeree issuer in respect of a proposed or commenced
take-over bid for the securities of the offeree issuer and stating an initial deposit
period for the bid of not more than 105 days and not less than 35 days, expressed
as a number of days from the date of the bid;
“initial deposit period” means the period, including any extension, during which securities may be deposited
under a take-over bid but does not include
(
a) a mandatory 10-day extension period, or
(
b) any extension to the period during which securities may be deposited if the
extension is made after a mandatory 10-day extension period;
“mandatory 10-day extension period” means the period referred to in paragraph 2.31.1 (a);
“partial take-over bid” means a take-over bid for less than all of the outstanding securities of the class
of securities subject to the bid; .
4 Subsection 1.8 (1) is repealed and the following substituted:
1.8
(1) In this Instrument, in determining the beneficial ownership of securities of
an offeror, of an acquiror or of any person acting jointly or in concert with the
offeror or the acquiror, at any given date, the offeror, the acquiror or the person
is deemed to have acquired and to be the beneficial owner of a security, including
an unissued security, if the offeror, the acquiror or the person
(
a) is the beneficial owner of a security convertible into the security within
60 days following that date, or
(
b) has a right or obligation permitting or requiring the offeror, the acquiror
or the person, whether or not on conditions, to acquire beneficial ownership of the
security within 60 days by a single transaction or a series of linked transactions.
5 Subsection 1.9 (1) is repealed and the following substituted:
1.9
(1) In this Instrument, it is a question of fact as to whether a person is acting
jointly or in concert with an offeror or an acquiror and, without limiting the generality
of the foregoing,
(
a) the following are deemed to be acting jointly or in concert with an offeror
or an acquiror:
(
i) a person that, as a result of any agreement, commitment or understanding with
the offeror, the acquiror or with any other person acting jointly or in concert with
the offeror or the acquiror, acquires or offers to acquire securities of the same
class as those subject to the offer to acquire;
(ii) an affiliate of the offeror or the acquiror;
(
b) the following are presumed to be acting jointly or in concert with an offeror
or an acquiror:
(
i) a person that, as a result of any agreement, commitment or understanding with
the offeror, the acquiror or with any other person acting jointly or in concert with
the offeror or the acquiror, intends to exercise jointly or in concert with the offeror,
the acquiror or with any person acting jointly or in concert with the offeror or the
acquiror any voting rights attaching to any securities of the offeree issuer;
(ii) an associate of the offeror or the acquiror.
6 Subsection 1.11 (3) is amended by adding “ and subsection 4.8 (3) ” after “
section 4.1 ”.
Section 2.11 is amended by adding the following subsections:
(1.1) Despite paragraph (1) (b), an offeror is not required to send a notice of
change to a security holder if, under paragraph 2.30 (2) (a.1), the security holder
is restricted from withdrawing securities that have been deposited under the bid.
(5) If, under subsection (1), an offeror is required to send a notice of change
before the expiry of the initial deposit period,
(
a) the initial deposit period for the offeror’s take-over bid must not expire
before 10 days after the date of the notice of change, and
(
b) the offeror must not take up securities deposited under the bid before 10 days
after the date of the notice of change.
Section 2.12 is amended
(
a) in subsection (1) by adding “ any reduction of the period during which securities may be deposited under the
bid pursuant to
section 2.28.2 or
section 2.28.3, or ” before “ any extension ”,
(
b) by adding the following subsections:
(1.1) Despite paragraph (1) (b), an offeror is not required to send a notice of
variation to a security holder if, under paragraph 2.30 (2) (a.1), the security holder
is restricted from withdrawing securities that have been deposited under the bid.
(3.1) If, under subsection (1), an offeror is required to send a notice of variation
before the expiry of the initial deposit period,
(
a) the initial deposit period for the offeror’s take-over bid must not expire
before 10 days after the date of the notice of variation, and
(
b) the offeror must not take up securities deposited under the bid before 10
days after the date of the notice of variation. ,
(
c) in subsection (4) by replacing “ and (3) ” with “ , (3) and (3.1) ” and adding “ , other than an extension in respect of the mandatory 10-day extension period, ” before “ resulting from the waiver ”,
(
d) in subsection (5) by replacing “ A variation ” with “ An offeror must not make a variation ”, deleting “ a take-over bid or ”, and deleting “ must not be made ”, and
(
e) by adding the following subsection:
(6) An offeror must not make a variation in the terms of a take-over bid, other
than a variation to extend the time during which securities may be deposited under
the bid or a variation to increase the consideration offered for the securities subject
to the bid, after the offeror becomes obligated to take up securities deposited under
the bid in accordance with
section 2.32.1.
9 Subsection 2.17 (3) is amended by replacing “ period during which securities may be deposited under the bid ” with “ initial deposit period ”.
Section 2.26 is amended
(
a) in subsection (1) by deleting “ a take-over bid or ”, and
(
b) by repealing subsection (4).
11 The following
section is added:
Proportionate take up and payment – take-over bids
2.26.1
(1) If a greater number of securities is deposited under a partial take-over bid
than the offeror is bound or willing to acquire under the bid, the offeror must take
up and pay for the securities proportionately, disregarding fractions, according to
the number of securities deposited by each security holder.
(2) For the purposes of subsection (1), any securities acquired in a pre-bid transaction
to which subsection 2.4 (1) applies are deemed to have been deposited under the take-over
bid by the person who was the seller in the pre-bid transaction.
Section 2.28 is amended by replacing “ under a take-over bid or an issuer bid for ” with “ under an issuer bid for a minimum deposit period of ”.
13 The following sections are added:
Minimum deposit period – take-over bids
2.28.1 An offeror must allow securities to be deposited under a take-over bid for an initial
deposit period of at least 105 days from the date of the bid.
Shortened deposit period – deposit period news release
2.28.2
(1) Despite
section 2.28.1, if at or after the time an offeror announces a take-over
bid, the offeree issuer issues a deposit period news release in respect of the offeror’s
take-over bid, the offeror must allow securities to be deposited under its take-over
bid for an initial deposit period of at least the number of days from the date of
the bid as stated in the deposit period news release.
(2) Despite
section 2.28.1, an offeror, other than an offeror under subsection
(1), must allow securities to be deposited under its take-over bid for an initial
deposit period of at least the number of days from the date of the bid as stated in
the deposit period news release if either of the following applies:
(
a) the offeror commenced the take-over bid in respect of securities of the offeree
issuer before the issuance of the deposit period news release referred to in subsection
(1) and the bid has yet to expire;
(
b) the offeror, after the issuance of the deposit period news release referred
to in subsection (1), commences a take-over bid in respect of securities of the offeree
issuer and the bid is commenced before one of the following:
(
i) the date of expiry of the take-over bid referred to in subsection (1);
(ii) the date of expiry of another take-over bid referred to in paragraph (a).
(3) For the purposes of subsections (1) and (2), an offeror must not allow securities
to be deposited under its take-over bid for an initial deposit period of less than
35 days from the date of the bid.
Shortened deposit period – alternative transaction
2.28.3 Despite
section 2.28.1, if an issuer issues a news release announcing that it intends
to effect an alternative transaction, whether pursuant to an agreement or otherwise,
an offeror must allow securities to be deposited under its take-over bid for an initial
deposit period of at least 35 days from the date of the bid if either of the following
applies:
(
a) the offeror commenced the take-over bid in respect of securities of the offeree
issuer before the issuance of the news release and the bid has yet to expire;
(
b) the offeror, after the issuance of the news release, commences a take-over
bid in respect of securities of the offeree issuer and the bid is commenced before
one of the following:
(
i) the date of completion or abandonment of the alternative transaction;
(ii) the date of expiry of another take-over bid referred to in paragraph (a).
Section 2.29 is amended by deleting “ a take-over bid or ”.
15 The following
section is added:
Restriction on take up – take-over bids
2.29.1 An offeror must not take up securities deposited under a take-over bid unless all
of the following apply:
(
a) a period of 105 days, or the number of days determined in accordance with
section 2.28.2 or
section 2.28.3, has elapsed from the date of the bid;
(
c) more than 50% of the outstanding securities of the class that are subject
to the bid, excluding securities beneficially owned, or over which control or direction
is exercised, by the offeror or by any person acting jointly or in concert with the
offeror, have been deposited under the bid and not withdrawn.
Section 2.30 is amended
(
a) by adding the following subsection:
(1.1) Despite paragraph (1) (a), if an offeror that has made a partial take-over
bid becomes obligated to take up securities under subsection 2.32.1 (1), a security
holder must not withdraw securities deposited before the expiry of the initial deposit
period and not taken up by the offeror in reliance on subsection 2.32.1 (6) during
the period
(
a) commencing at the time the offeror became obligated to take up securities
under subsection 2.32.1 (1), and
(
b) ending at the time the offeror becomes obligated under either subsection 2.32.1
(7) or (8) to take up securities not taken up by the offeror in reliance on subsection
2.32.1 (6). ,
(
b) in subsection (2) by replacing “ The right of withdrawal under paragraph (1) (
b) does not apply ” with “ Despite paragraph (1) (b), a security holder must not withdraw securities deposited ”,
(
c) by adding the following paragraph after paragraph 2 (a):
(a.1) in the case of a partial take-over bid, the securities were deposited before
the expiry of the initial deposit period and not taken up by the offeror in reliance
on subsection 2.32.1 (6) and the date of the notice of change or notice of variation
is after the date that the offeror became obligated to take up securities under subsection 2.32.1 (1),
or ,
(
d) in paragraph (2) (
b) by
(
i) replacing “ one or both of the following circumstances occur ” with “ any of the following apply ”,
(ii) replacing “ a variation in the terms of the bid ” with “ there is a variation in the terms of a take-over bid or issuer bid ” in subparagraphs (
i) and (ii), and
(iii) adding the following subparagraph:
(iii) in the case of a take-over bid, there is a variation in the terms after
the expiry of the initial deposit period consisting of either an increase in the consideration
offered for the securities subject to the bid or an extension of the time for deposit
to not later than 10 days from the date of the notice of variation.
Section 2.31 is repealed and the following substituted:
Effect of market purchases
2.31 If an offeror purchases securities under subsection 2.2 (3), the purchased securities
must not be counted in determining whether the minimum tender requirement in paragraph 2.29.1 (
c) is satisfied and the purchase does not reduce the number of securities the offeror
is bound to take up under the take-over bid.
18 The following sections are added:
Mandatory 10-day extension period – take-over bids
2.31.1 If, at the expiry of the initial deposit period, an offeror is obligated to take
up securities deposited under a take-over bid pursuant to subsection 2.32.1 (1), the
offeror must
(
a) extend the period during which securities may be deposited under the bid for
a period of at least 10 days, and
(
b) promptly issue and file a news release disclosing the following:
(
i) that the minimum tender requirement specified in paragraph 2.29.1 (
c) has
been satisfied,
(ii) the number of securities deposited and not withdrawn as at the expiry of
the initial deposit period,
(iii) that the period during which securities may be deposited under the bid has
been extended for the mandatory 10-day extension period, and
(iv) in the case of a take-over bid that
(
A) is not a partial take-over bid, that the offeror will immediately take up
the deposited securities and pay for securities taken up as soon as possible, and
in any event not later than 3 business days after the securities are taken up, or
(
B) is a partial take-over bid, that the offeror will take up and pay for the
deposited securities proportionately in accordance with applicable securities legislation,
and in any event will take up the deposited securities not later than one business
day after the expiry of the mandatory 10-day extension period, and pay for securities
taken up as soon as possible, and in any event not later than 3 business days after
the securities are taken up.
Time limit on extension – partial take-over bids
2.31.2 In the case of a partial take-over bid,
(
a) the mandatory 10-day extension period must not exceed 10 days, and
(
b) the bid must not be extended after the expiry of the mandatory 10-day extension
period.
Section 2.32 is amended
(
a) in subsection (1) by deleting “ a take-over bid or ”,
(
b) in subsection (2) by
(
i) deleting “ a take-over bid or ”, and
(ii) deleting “ the ” before “ securities deposited ”,
(
c) in subsection (3) by
(
i) deleting “ a take-over bid or ”, and
(ii) deleting “ the ” after “ the deposit of ”,
(
d) in subsection (4) by replacing “ An offeror may not extend its take-over bid or ” with “ An offeror must not extend its ”,
(
e) in subsection (5) by
(
i) deleting “ a take-over bid or ”,
(ii) deleting “ only ” before “ required to take up ”, and
(iii) adding “ only ” before “ the maximum number of securities ”, and
(
f) in subsection (6) by deleting “ a take-over bid or ”.
20 The following
section is added:
Obligation to take up and pay for deposited securities – take-over bids
2.32.1
(1) An offeror must immediately take up securities deposited under a take-over bid
if, at the expiry of the initial deposit period, all of the following apply:
(
a) the deposit period referred to in
section 2.28.1,
section 2.28.2 or
section 2.28.3,
as applicable, has elapsed;
(
c) the requirement in paragraph 2.29.1 (
c) is satisfied.
(2) An offeror must pay for any securities taken up under a take-over bid as soon
as possible, and in any event not later than 3 business days after the securities
deposited under the bid are taken up.
(3) In the case of a take-over bid that is not a partial take-over bid, securities
deposited under the bid during the mandatory 10-day extension period, or an extension
period made after the mandatory 10-day extension period, must be taken up and paid
for by the offeror not later than 10 days after the deposit of securities.
(4) In the case of a take-over bid that is not a partial take-over bid, an offeror
must not extend its bid beyond the expiry of the mandatory 10-day extension period
unless the offeror first takes up all securities deposited under the bid and not withdrawn.
(5) Despite subsection (4), if the offeror extends the bid in circumstances where
the rights of withdrawal conferred by paragraph 2.30 (1) (
b) are applicable, the offeror
must extend the bid without the offeror first taking up the securities which are subject
to the rights of withdrawal.
(6) Despite subsection (1), an offeror that has made a partial take-over bid is
required to take up, by the time specified in that subsection, only the maximum number
of securities that the offeror can take up without contravening
section 2.23 or
section
2.26.1 at the expiry of the bid.
(7) In the case of a partial take-over bid, securities deposited before the expiry
of the initial deposit period and not taken up by the offeror in reliance on subsection
(6), and securities deposited during the mandatory 10-day extension period, must be
taken up by the offeror, in the manner required under
section 2.26.1, not later than
one business day after the expiry of the mandatory 10-day extension period.
(8) Despite subsection (7), if at the expiry of the mandatory 10-day extension
period rights of withdrawal conferred by paragraph 2.30 (1) (
b) are applicable, securities
deposited before the expiry of the initial deposit period and not taken up by the
offeror in reliance on subsection (6), and securities deposited during the mandatory
10-day extension period, must be taken up by the offeror, in the manner required under
section 2.26.1, not later than one business day after the expiry of the withdrawal
period conferred by paragraph 2.30 (1) (b).
Part 5 is repealed and the following substituted:
Part 5 – Reports and Announcements of Acquisitions
Definitions and
interpretation
5.1
(1) In this Part,
“acquiror” means a person who acquires a security, other than by way of a take-over bid or an
issuer bid made in compliance with
Part 2;
“acquiror’s securities” means securities of an issuer beneficially owned, or over which control or direction
is exercised, on the date of the acquisition or disposition, by an acquiror or any
person acting jointly or in concert with the acquiror;
“securities lending arrangement” means an arrangement between a lender and a borrower with respect to which both of
the following apply:
(
a) the lender transfers or lends a security to the borrower;
(
b) at the time that the security is lent or transferred, the lender and the borrower
reasonably expect that the borrower will, at a later date, transfer or return to the
lender the security or an identical security.
“specified securities lending arrangement” means a securities lending arrangement if all of the following apply:
(
a) the material terms of the securities lending arrangement are set out in a
written agreement;
(
b) the securities lending arrangement requires the borrower to pay to the lender
amounts equal to all dividends or interest payments, if any, paid on the security
that would have been received by the lender if the lender had held the security throughout
the period beginning at the date of the transfer or loan and ending at the time the
security or an identical security is transferred or returned to the lender;
(
c) the lender has established policies and procedures that require the lender
to maintain a record of all securities that it has transferred or lent under securities
lending arrangements;
(
d) the written agreement referred to in paragraph (
a) provides for any of the
following:
(
i) the lender has an unrestricted right to recall all securities that it has
transferred or lent under the securities lending arrangement, or an equal number of
identical securities, before the record date for voting at any meeting of securityholders
at which the securities may be voted;
(ii) the lender requires the borrower to vote the securities transferred or lent
in accordance with the lender’s instructions;
(2) For the purposes of this Part, if an acquiror and one or more persons acting
jointly or in concert with the acquiror acquire or dispose of securities, the securities
are deemed to be acquired or disposed of, as applicable, by the acquiror.
Early warning
5.2
(1) An acquiror who acquires beneficial ownership of, or control or direction over,
voting or equity securities of any class of a reporting issuer, or securities convertible
into voting or equity securities of any class of a reporting issuer, that, together
with the acquiror’s securities of that class, constitute 10% or more of the outstanding
securities of that class, must
(
a) promptly, and, in any event, no later than the opening of trading on the business
day following the acquisition, issue and file a news release containing the information
required by
section 3.1 of National Instrument 62-103 The Early Warning System and Related Take-Over Bid and Insider Reporting Issues , and
(
b) promptly, and, in any event, no later than 2 business days from the date of
the acquisition, file a report containing the information required by
section 3.1
of National Instrument 62-103 The Early Warning System and Related Take-Over Bid and Insider Reporting Issues .
(2) An acquiror who is required to make disclosure under subsection (1) must make
further disclosure, in accordance with subsection (1), each time any of the following
events occur:
(
a) the acquiror or any person acting jointly or in concert with the acquiror,
acquires or disposes beneficial ownership of, or acquires or ceases to have control
or direction over, either of the following:
(
i) securities in an amount equal to 2% or more of the outstanding securities
of the class of securities that was the subject of the most recent report required
to be filed by the acquiror under subsection (1) or under this subsection;
(ii) securities convertible into 2% or more of the outstanding securities referred
to in subparagraph (i);
(
b) there is a change in a material fact contained in the most recent report required
to be filed under paragraph (1) (
b) or under paragraph (
a) of this subsection.
(3) An acquiror must issue and file a news release and file a report in accordance
with subsection (1) if beneficial ownership of, or control or direction over, the
outstanding securities of the class of securities that was the subject of the most
recent report required to be filed by the acquiror under this
section decreases to
less than 10%.
(4) If an acquiror issues and files a news release and files a report under subsection
(3), the requirements under subsection (2) do not apply unless subsection (1) applies
in respect of a subsequent acquisition of beneficial ownership of, or control or direction
over, voting or equity securities of any class of a reporting issuer, or securities
convertible into voting or equity securities of any class of a reporting issuer, that,
together with the acquiror’s securities of that class, constitute 10% or more of the
outstanding securities of that class.
Moratorium provisions
5.3
(1) During the period beginning on the occurrence of an event in respect of which
a report is required to be filed under
section 5.2 and ending on the expiry of the
first business day following the date that the report is filed, an acquiror, or any
person acting jointly or in concert with the acquiror, must not acquire or offer to
acquire beneficial ownership of, or control or direction over, any securities of the
class in respect of which the report is required to be filed or any securities convertible
into securities of that class.
(2) Subsection (1) does not apply to an acquiror that has beneficial ownership
of, or control or direction over, securities that, together with the acquiror’s securities
of that class, constitute 20% or more of the outstanding securities of that class.
Acquisitions during bid
5.4
(1) If, after a take-over bid or an issuer bid has been made under
Part 2 for voting
or equity securities of a reporting issuer and before the expiry of the bid, an acquiror
acquires beneficial ownership of, or control or direction over, securities of the
class subject to the bid which, when added to the acquiror’s securities of that class,
constitute 5% or more of the outstanding securities of that class, the acquiror must,
before the opening of trading on the next business day, issue and file a news release
containing the information required by subsection (3).
(2) An acquiror must issue and file an additional news release in accordance with
subsection (3) before the opening of trading on the next business day each time the
acquiror, or any person acting jointly or in concert with the acquiror, acquires beneficial
ownership of, or control or direction over, in aggregate, an additional 2% or more
of the outstanding securities of the class of securities that was the subject of the
most recent news release required to be filed by the acquiror under this section.
(3) A news release or further news release required under subsection (1) or (2)
must set out
(
a) the name of the acquiror,
(
b) the number of securities of the offeree issuer that were beneficially acquired,
or over which control or direction was acquired, in the transaction that gave rise
to the requirement under subsection (1) or (2) to issue the news release,
(
c) the number of securities and the percentage of outstanding securities of the
offeree issuer that the acquiror and all persons acting jointly or in concert with
the acquiror, have beneficial ownership of, or control or direction over, immediately
after the acquisition described in paragraph (b),
(
d) the number of securities of the offeree issuer that were beneficially acquired,
or over which control or direction was acquired, by the acquiror and all persons acting
jointly or in concert with the acquiror, since the commencement of the bid,
(
e) the name of the market in which the acquisition described in paragraph (
b) took place, and
(
f) the purpose of the acquiror and all persons acting jointly or in concert with
the acquiror in making the acquisition described in paragraph (b), including any intention
of the acquiror and all persons acting jointly or in concert with the acquiror to
increase the beneficial ownership of, or control or direction over, any of the securities
of the offeree issuer.
Duplicate news release not required
5.5 If the facts in respect of which a news release is required to be filed under sections
5.2 and 5.4 are identical, a news release is required only under the provision requiring
the earlier news release.
Copies of news release and report
5.6 An acquiror that files a news release or report under
section 5.2 or 5.4 must promptly
send a copy of each filing to the reporting issuer.
Exception
5.7 Sections 5.2, 5.3 and 5.4 do not apply to either of the following:
(
a) an acquiror that is a lender in respect of securities transferred or lent
pursuant to a specified securities lending arrangement;
(
b) an acquiror that is a borrower in respect of securities or identical securities
borrowed, disposed of or acquired in connection with a securities lending arrangement
if all of the following apply:
(
i) the borrowed securities are disposed of by the borrower no later than 3 business
days from the date of the transfer or loan;
(ii) the borrower will at a later date acquire the securities or identical securities
and transfer or return those securities to the lender;
(iii) the borrower does not intend to vote and does not vote the securities or
identical securities during the period beginning on the date of the transfer or loan
and ending at the time the securities or identical securities are transferred or returned
to the lender.
Section 6.1 is repealed and the following substituted:
Exemption – general
6.1
(1) The regulator or the securities regulatory authority may grant an exemption from
the provisions of this Instrument, in whole or in part, subject to such conditions
or restrictions as may be imposed in the exemption.
(2) Despite subsection (1), in Ontario, only the regulator may grant such an exemption.
(3) Except in Alberta and Ontario, an exemption referred to in subsection
(1) is granted under the statute referred to in Appendix B of National Instrument 14-101
Definitions opposite the name of the local jurisdiction.
Section 6.2 is amended by renumbering it as subsection 6.2 (1) and by adding
the following subsection:
(2) Despite subsection (1), in Ontario, only the regulator may make such a decision.
24 The following
section is added:
Transition
7.3 The take-over bid or issuer bid provisions in securities legislation that were in
force immediately before May 9, 2016 continue to apply in respect of
(
a) every take-over bid and issuer bid commenced, but not completed, before May
9, 2016,
(
b) any take-over bid, in respect of the securities of an offeree issuer subject
to a take-over bid referred to in paragraph (a), commenced on or subsequent to May
9, 2016 but prior to the date of the expiry of a take-over bid referred to in paragraph
(a), and
(
c) any take-over bid, in respect of the securities of an issuer that issued a
news release before May 9, 2016 announcing that it intends to effect an alternative
transaction whether pursuant to an agreement or otherwise, commenced on or subsequent
to May 9, 2016 but prior to the date of completion or abandonment of the alternative
transaction.
25 Form 62-104F1 is amended by replacing “ Multilateral ” with “ National ” in paragraph (
a) of the General Provisions in
Part 1.
26 Form 62-104F1 is amended by adding the following item:
Item 9.1. Minimum tender requirement and mandatory extension period
State the following in italics and boldface type at the top of the cover page of
the take-over bid circular:
No securities tendered to this bid will be taken up until (
a) more than 50% of
the outstanding securities of the class sought (excluding those securities beneficially
owned, or over which control or direction is exercised by the offeror or any person
acting jointly or in concert with the offeror) have been tendered to the bid, (
b) the minimum deposit period required under applicable securities laws has elapsed,
and (
c) any and all other conditions of the bid have been complied with or waived,
as applicable. If these criteria are met, the offeror will take up securities deposited
under the bid in accordance with applicable securities laws and extend its bid for
an additional minimum period of 10 days to allow for further deposits of securities.
27 Form 62-104F2 is amended by replacing “ Multilateral ” with “ National ” in paragraph (
a) of the General Provisions in
Part 1.
28 Form 62-104F3 is amended by replacing “ Multilateral ” with “ National ” in paragraph (
a) of the General Provisions in
Part 1.
29 Form 62-104F4 is amended by replacing “ Multilateral ” with “ National ” in paragraph (
a) of the General Provisions in
Part 1.
30 Form 62-104F5 is amended by replacing “ Multilateral ” with “ National ” in paragraph (
a) of the General Provisions in
Part 1.
31 Form 62-104F5 is amended by adding the following paragraph under subsection
(2) of item 3:
(a.1) if one of the terms referred to in paragraph (
a) is the mandatory 10-day
extension period required pursuant to paragraph 2.31.1 (
a) of the Instrument, the
number of securities deposited under the take-over bid and not withdrawn as at the
date of the variation, .
Schedule C
1 Multilateral Instrument 11-102 Passport System , B.C. Reg. 58/2008, is amended as set out in this Schedule.
2 Appendix D is amended by replacing the following items:
Take-over bids and issuer bid requirements (TOB/IB) – Restrictions on acquisitions
during take-over bid
s. 2.2 (1) of MI 62-104
s. 93.1
(1) TOB/IB – Restrictions on acquisitions during issuer bid
s. 2.3 (1) of MI 62-104
s. 93.1
(4) TOB/IB – Restrictions on acquisitions before take-over bid
s. 2.4 (1) of MI 62-104
s. 93.2
(1) TOB/IB – Restrictions on acquisitions after bid
s. 2.5 of MI 62-104
s. 93.3
(1) TOB/IB – Restrictions on sales during formal bid
s. 2.7 (1) of MI 62-104
s. 97.3
(1) TOB/IB – Duty to make bid to all security holders
s. 2.8 of MI 62-104
s. 94
TOB/IB – Commencement of bid
s. 2.9 of MI 62-104
s. 94.1 (1) and
(2) TOB/IB – Offeror’s circular
s. 2.10 of MI 62-104
s. 94.2 (1) - (4) of Securities Act and s. 3.1 of OSC Rule 62-504
TOB/IB – Change in information
s. 2.11 (1) of MI 62-104
s. 94.3
(1) TOB/IB – Notice of change
s. 2.11 (4) of MI 62-104
s. 94.3 (4) of Securities Act and s. 3.4 of OSC Rule 62-504
TOB/IB – Variation of terms
s. 2.12 (1) of MI 62-104
s. 94.4
(1) TOB/IB – Notice of variation
s. 2.12 (2) of MI 62-104
s. 94.4 (2) of Securities Act and s. 3.4 of OSC Rule 62-504
TOB/IB – Expiry date of bid if notice of variation
s. 2.12 (3) of MI 62-104
s. 94.4
(3) TOB/IB – No variation after expiry
s. 2.12 (5) of MI 62-104
s. 94.4
(5) TOB/IB – Filing and sending notice of change or notice of variation
s. 2.13 of MI 62-104
s. 94.5
TOB/IB – Change or variation in advertised take-over bid
s. 2.14 (1) of MI 62-104
s. 94.6
(1) TOB/IB – Consent of expert – bid circular
s. 2.15 (2) of MI 62-104
s. 94.7
(1) TOB/IB – Delivery and date of bid documents
s. 2.16 (1) of MI 62-104
s. 94.8
(1) TOB/IB – Duty to prepare and send directors’ circular
s. 2.17 of MI 62-104
s. 95 (1) - (4) of Securities Act and s. 3.2 of OSC Rule 62-504
TOB/IB – Notice of change
s. 2.18 of MI 62-104
s. 95.1 (1) and (2) of Securities Act and s. 3.4 of OSC Rule 62-504
TOB/IB – Filing directors’ circular or notice of change
s. 2.19 of MI 62-104
s. 95.2
TOB/IB – Change in information in director’s or officer’s circular or notice of
change
s. 2.20 (2) of MI 62-104
s. 96 (2)
TOB/IB – Form of director’s or officer’s circular
s. 2.20 (3) of MI 62-104
s. 96 (3) of Securities Act and s. 3.3 of OSC Rule 62-504
TOB/IB – Send director’s or officer’s circular or notice of change to securityholders
s. 2.20 (5) of MI 62-104
s. 96 (5)
TOB/IB – File and send to offeror director’s or officer’s circular or notice of
change
s. 2.20 (6) of MI 62-104
s. 96 (6)
TOB/IB – Form of notice of change for director’s or officer’s circular
s. 2.20 (7) of MI 62-104
s. 96 (7) of Securities Act and s. 3.4 of OSC Rule 62-504
TOB/IB – Consent of expert, directors’ circular, etc.
s. 2.21 of MI 62-104
s. 96.1
TOB/IB – Delivery and date of offeree issuer’s documents
s. 2.22 (1) of MI 62-104
s. 96.2
(1) TOB/IB – Consideration
s. 2.23 (1) of MI 62-104
s. 97 (1)
TOB/IB – Variation of consideration
s. 2.23 (3) of MI 62-104
s. 97 (3)
TOB/IB – Prohibition against collateral agreements
s. 2.24 of MI 62-104
s. 97.1
(1) TOB/IB – Proportionate take up and payment
s. 2.26 (1) of MI 62-104
s. 97.2
(1) TOB/IB – Financing arrangements
s. 2.27 (1) of MI 62-104
s. 97.3
(1) TOB/IB – Minimum deposit period
s. 2.28 of MI 62-104
s. 98 (1)
TOB/IB – Prohibition on take up
s. 2.29 of MI 62-104
s. 98 (2)
TOB/IB – Obligation to take up and pay for deposited securities
s. 2.32 of MI 62-104
s. 98.3
TOB/IB – Return of deposited securities
s. 2.33 of MI 62-104
s. 98.5
TOB/IB – News release on expiry of bid
s. 2.34 of MI 62-104
s. 98.6
TOB/IB – Language of bid documents
s. 3.1 of MI 62-104
n/a
TOB/IB – Filing of documents by offeror
s. 3.2 (1) of MI 62-104
s. 98.7 of Securities Act and s. 5.1 (1) of OSC Rule 62-504
TOB/IB – Filing of documents by offeree issuer
s. 3.2 (2) of MI 62-104
s. 5.1 (2) of OSC Rule 62-504
TOB/IB – Time period for filing
s. 3.2 (3) of MI 62-104
s. 5.1 (3) of OSC Rule 62-504
TOB/IB – Filing of subsequent agreement
s. 3.2 (4) of MI 62-104
s. 5.1 (4) of OSC Rule 62-504
TOB/IB – Certification of bid circulars
s. 3.3 (1) of MI 62-104
s. 99 (1)
TOB/IB – All directors and officers sign
s. 3.3 (2) of MI 62-104
s. 99 (2)
TOB/IB – Certification of directors’ circular
s. 3.3 (3) of MI 62-104
s. 99 (3)
TOB/IB – Certification of individual director’s or officer’s circular
s. 3.3 (4) of MI 62-104
s. 99 (4)
TOB/IB – Obligation to provide security holder list
s. 3.4 (1) of MI 62-104
s. 99.1
(1) TOB/IB – Application of
Canada Business Corporations Act
s. 3.4 (2) of MI 62-104
s. 99.1
(2) TOB/IB – Early Warning
s. 5.2 of MI 62-104
s. 102.1 (1) - (4) of Securities Act and s. 7.1 of OSC Rule 62-504
TOB/IB – Acquisitions during bid
s. 5.3 of MI 62-104
s. 102.2 (1) and (2) of Securities Act and s. 7.2 (1) of OSC Rule 62-504
TOB/IB – Copies of news release and report
s. 5.5 of MI 62-104
s. 7.2 (3) of OSC Rule 62-504
with the following item:
Take-over bid and issuer bid requirements
NI 62-104
Schedule D
1 Multilateral Instrument 13-102 System Fees for SEDAR and NRD , B.C. Reg. 210/2013, is amended as set out in this Schedule.
2 Subsection 1 (1) is amended
(
a) by replacing the definition of “issuer bid” with the following:
“issuer bid” means an issuer bid to which
Part 2 of National Instrument 62-104 Take-Over Bids and Issuer Bids applies; , and
(
b) by replacing the definition of “take-over bid” with the following:
“take-over bid” means a take-over bid to which
Part 2 of National Instrument 62-104 Take-Over Bids and Issuer Bids applies.
Schedule E
1 National Instrument 43-101 Standards of Disclosure for Mineral Projects , B.C. Reg. 86/2011, is amended as set out in this Schedule.
Section 1.1 is amended by adding the following definition:
“initial deposit period” has the meaning ascribed to that term in
section 1.1 of National Instrument 62-104
Take-Over Bids and Issuer Bids ; .
3 Subparagraph 4.2 (5) (a) (ii) is amended by replacing “ expiry of the take-over bid ” with “ the expiry of the initial deposit period ”.
Schedule F
1 Multilateral Instrument 51-105 Issuers Quoted in the U.S. Over-the-Counter Markets , B.C. Reg. 235/2012, is amended as set out in this Schedule.
Section 16 is amended by replacing “ Multilateral ” with “ National ”.
Schedule G
1 Rule 71-801 Implementing the Multijurisdictional Disclosure System under National Instrument
71-101 , B.C. Reg. 344/98, is amended as set out in this Schedule.
2 Paragraph 1.1 (c.1) is amended by repealing the definition of “MI 62-104” and substituting “ “NI 62-104” means National Instrument 62-104, ”.
3 Paragraph 1.1 (
g) is amended by replacing “ MI ” with “ NI ”.
4 Subsection 3.1 (1) is amended by replacing “ MI ” with “ NI ”.
5 Paragraphs 3.1 (1) (
a) and (
b) are repealed and the following substituted:
(
a) sections 1.6, 2.1, 2.2, 2.3, 2.6, 2.7, 2.9, 2.13 to 2.16, 2.23 to 2.34 and 3.2,
(
b) subsections 2.10 (2), 2.10 (3), 2.10 (4), 2.11 (1), 2.11 (1.1), 2.11 (4),
2.11 (5), 2.12 (1.1), 2.12 (3), 2.12 (3.1), 2.12 (4), 2.12 (5), 2.12 (6) and 3.3 (1), .
6 Paragraph 3.1 (1) (
c) is amended by replacing “ , 2.5 and subsection 2.26 (4) ” with “ and 2.5 ”.
7 Subsection 3.2 (1) is amended by replacing “ MI ” with “ NI ” wherever it occurs.
8 Paragraph 3.2 (1) (
c) is amended by replacing “ and ” with “ , ” after “ 2.18 (2) ” and adding “ , 2.21 and 2.22 ” after “ 2.20 (2) to (7) ”.
Schedule H
1 Securities Rules, B.C. Reg. 194/97, is amended as set out in this Schedule.
2 Subsection 185.3 (2) is amended by replacing “ Multilateral ” with “ National ” in both instances.
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