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S.M. 1986-87, c. 33
An Act to amend The Securities Act
(Assented to September 10, 1986)
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
Subsection 1(1) of The Securities Act, being Chapter S50 of the Continuing Consolidation of the Statutes of Manitoba, is amended by adding thereto, immediately after clause (11) thereof, the following clause:
(11.1) "issuer" means a person or company who has outstanding, issues or proposes to issue, a security.
Clause 19(l)(10) of the Act is amended
(a) by adding the word "or" at the end of sub-clause (i) thereof;
(b) by striking out the word "or" at the end of sub-clause (ii) thereof; and
(c) by striking out sub-clause (iii) thereof.
Clause 19(l)(10.1) of the Act is repealed and the following clause is substituted therefor:
(10.1) A trade in a security
(i) of an issuer that is exchanged by or for the account of the issuer with the security holders of another issuer in connection with a take-over bid as defined in Part IX; or
(ii) to a person or company pursuant to a take-over bid or issuer bid made by that person or company.
Part IX of the Act is repealed and the following Part is substituted therefor:
TAKE-OVER BIDS AND ISSUER BIDS
In this Part,
"business day" means a day other than a Saturday or a holiday; ("jour ouvrable")
"class of securities" includes a series of a class of securities; ("catégorie de valeurs mobilières")
"file" means file with the commission; ("déposer")
"equity security" means any security of an issuer that carries a residual right to participate in the earnings of the issuer and, upon the liquidation or winding up of the issuer, in its assets; ("valeur mobilière participante")
"formal bid" means
(i) a take-over bid or an issuer bid to which section 86 applies, or
(ii) a take-over bid that is exempted from sections 86 to 91 or an issuer bid that is exempted from sections 86, 87, 88, 89 and 91,
(A) by reason of an exemption under clause 84(1)(a) or 84(3)(e), if the offeror is required to deliver to every security holder whose last address as shown on the books of the offeree issuer is in Manitoba a disclosure document of the type contemplated by subsection 97(10), or
(B) by reason of an exemption under clause 84(1)(e) or 84(3)(h), if the offeror is required to deliver disclosure material relating to the bid to holders of the class of securities subject to the bid; ("offre publique formelle")
"interested person" means, for the purposes of sections 95 and 96,
(i) an offeree issuer,
(ii) a security holder, director or officer of an offeree issuer,
(iii) an offeror, (iv) the Director, and (v) any person or company not referred to in sub-clauses (i) to (iv) who in the opinion of the commission or the court, as the case may be, is a proper person to make an application under section 95 or 96, as the case may be; ("intéressé")
"issuer bid" means an offer to acquire or redeem securities of an issuer made by the issuer to any person or company who is in Manitoba or to any security holder of the issuer whose last address as shown on the books of the issuer is in Manitoba and includes a purchase, redemption or other acquisition of securities of the issuer by the issuer from any such person or company, but does not include an offer to acquire or redeem debt securities that are not convertible into securities other than debt securities; ("offre publique de rachat")
"material fact" where used in relation to securities issued or proposed to be issued means a fact that significantly affects, or would reasonably be expected to have a significant effect on, the market price or value of such securities; ("fait important")
"misrepresentation" means,
(i) an untrue statement of material fact, or
(ii) an omission to state a material fact that is required to be stated or that is necessary to make a statement not misleading in the light of the circumstances in which it was made; ("information fausse et trompeuse")
"offer to acquire" includes,
(i) an offer to purchase, or a solicitation of an offer to sell, securities,
(ii) an acceptance of an offer to sell securities, whether or not such offer to sell has been solicited, or any combination thereof, and the person or company accepting an offer to sell shall be deemed to be making an offer to acquire to the person or company that made the offer to sell; ("offre d'acquisition")
"offeree issuer" means an issuer whose securities are the subject of a take-over bid, an issuer bid or an offer to acquire; ("émetteur pollicité")
"offeror" means a person or company who makes a take-over bid, an issuer bid or an offer to acquire; ("pollicitant")
"offeror's securities" means securities of an offeree issuer beneficially owned, or over which control or direction is exercised, on the date of an offer to acquire, by an offeror or any person or company acting jointly or in concert with the offeror; ("valeurs mobilières du pollicitant")
"published market" means, as to any class of securities, any market on which such securities are traded if the prices at which they have been traded on that market are regularly published in a bona fide newspaper or business or financial publication of general and regular paid circulation; ("marché publié")
"reporting issuer" means an issuer that is
(i) a corporation as defined in The Corporations Act, other than one described in section 3 of that Act, and has made, for the purposes of that Act, a distribution to the public,
(ii) a corporation as defined in clause 118(1)(b), or
(iii) a person subject to Part XII by virtue of subsection 118(2) or (3); ("émetteur assujetti")
"take-over bid" means an offer to acquire outstanding voting or equity securities of a class made to any person or company who is in Manitoba or to any security holder of the offeree issuer whose last address as shown on the books of the offeree issuer is in Manitoba, where the securities subject to the offer to acquire, together with the offeror's securities, constitute in the aggregate 20% or more of the outstanding securities of that class of securities at the date of the offer to acquire; ("offre publique d'achat") and
"voting security" means any security other than a debt security of an issuer carrying a voting right either under all circumstances or under circumstances that have occurred and are continuing. ("valeur mobilière comportant droit de vote")
Computation of time, expiry of bid.
For the purposes of this Part,
(a) a period of days shall be computed as commencing on the day next following the event which began the period and terminating at midnight on the last day of the period, except that if the last day of the period does not fall on a business day, the period terminates at midnight on the next business day; and
(b) a take-over bid or an issuer bid expires at the later of,
(i) the end of the period, including any extension, during which securities may be deposited pursuant to the bid, and
(ii) the time at which the offeror becomes obligated by the terms of the bid to take-up or reject securities deposited thereunder.
For the purposes of this Part,
(a) a security shall be deemed to be convertible into a security of another class if, whether or not on conditions, it is or may be convertible into or exchangeable for, or if it carries the right or obligation to acquire, a security of the other class, whether of the same or another issuer; and
(b) a security that is convertible into a security of another class shall be deemed to be convertible into a security or securities of each class into which the second- mentioned security may be converted, either directly or through securities of one or more other classes of securities that are themselves convertible.
For the purposes of this Part, in determining the beneficial ownership of securities of an offeror or of any person or company acting jointly or in concert with the offeror, at any given date, the offeror, person or company shall be deemed to have acquired and be the beneficial owner of a security, including an unissued security, if the offeror, person or company is the beneficial owner of any security convertible within 60 days following such date into such a security or has the right or obligation, whether or not on conditions, to acquire within such 60 days beneficial ownership of the security whether through the exercise of an option, warrant, right or subscription privilege or otherwise.
Calculation of holdings, joint offers.
Where two or more offerors acting jointly or in concert make one or more offers to acquire securities of a class, the securities subject to any such offer or offers to acquire shall be deemed to be securities subject to the offer to acquire of each such offeror for the purpose of determining whether any such offeror is making a take-over bid.
Unissued securities deemed outstanding.
Where an offeror or any person or company acting jointly or in concert with the offeror is deemed by reason of subsection (1) to be the beneficial owner of unissued securities, the securities shall be deemed to be outstanding for the purpose of calculating the number of outstanding securities of that class in respect of that offeror's offer to acquire.
For the purposes of this Part, it is a question of fact as to whether a person or company is acting jointly or in concert with an offeror and, without limiting the generality of the foregoing, the following shall be presumed to be acting jointly or in concert with an offeror:
(a) Every person or company who, as a result of any agreement, commitment or understanding, whether formal or informal, with the offeror or with any other person or company acting jointly or in concert with the offeror, acquires or offers to acquire securities of the issuer of the same class as those subject to the offer to acquire.
(b) Every person or company who, as a result of any agreement, commitment or understanding, whether formal or informal, with the offeror or with any other person or company acting jointly or in concert with the offeror, intends to exercise jointly or in concert with the offeror or with any other person or company acting jointly or in concert with the offeror any voting rights attaching to any securities of the offeree issuer.
(c) Every associate or affiliate of the offeror.
Notwithstanding subsection (1), a registered dealer acting solely in an agency capacity for the offeror in connection with a takeover bid or an issuer bid and not executing principal transactions for its own account in the class of securities subject to the offer to acquire or performing services beyond customary dealer's functions shall not be presumed solely by reason of such agency relationship to be acting jointly or in concert with the offeror in connection with the bid.
Application to direct and indirect offers, etc.
For the purposes of this Part, a reference to an offer to acquire or to the acquisition or ownership of securities or to control or direction over securities shall be construed to include a direct or indirect offer to acquire or the direct or indirect acquisition or ownership of securities, or the direct or indirect control or direction over securities, as the case may be.
Subject to the regulations, a take-over bid is exempt from sections 86 to 91 if
(a) the bid is made through the facilities of a stock exchange recognized by the commission for the purposes of this clause;
(b) the bid is for not more than 5% of the outstanding securities of a class of securities of the issuer and
(i) the aggregate number of securities acquired by the offeror and any person or company acting jointly or in concert with the offeror within any period of 12 months in reliance upon the exemption provided by this clause does not, when aggregated with acquisitions otherwise made by the offeror and any person or company acting jointly or in concert with the offeror within the same 12 month period, constitute in excess of 5% of the outstanding securities of that class of the issuer at the commencement of the 12 months period, and
(ii) if there is a published market for the securities acquired, the value of the consideration paid for any of the securities acquired is not in excess of the market price at the date of acquisition determined in accordance with the regulations plus reasonable brokerage fees or commissions actually paid;
(c) all of the following conditions apply,
(i) purchases are made from not more than 5 persons or companies in the aggregate, including persons or companies outside of Manitoba,
(ii) the bid is not made generally to security holders of the class of securities that is the subject of the bid, and
(iii) the value of the consideration paid for any of the securities, including brokerage fees or commissions, does not exceed 115% of the market price of securities of that class at the date of the bid determined in accordance with the regulations;
(d) the offeree issuer is not a reporting issuer, there is not a published market in respect of the securities that are the subject of the bid, and the number of holders of securities of that class is not more than 50, exclusive of holders who are in the employment of the offeree issuer or an affiliate of the offeree issuer, and exclusive of holders who were formerly in the employment of the offeree issuer or an affiliate of the offeree issuer and who while in that employment were, and have continued after that employment to be, security holders of the offeree issuer;
(e) the number of holders, whose last address as shown on the books of the offeree issuer is in Manitoba, of securities of the class subject to the bid is fewer than 50 and the securities held by such holders constitute, in the aggregate, less than 2% of the outstanding securities of that class, the bid is made in compliance with the laws of a jurisdiction that is recognized for the purposes of this clause by the commission, and all material relating to the bid that is sent by the offeror to holders of securities of the class that is subject to the bid is concurrently sent to all holders of such securities whose last address as shown on the books of the offeree issuer is in Manitoba and filed; or
(f) it is exempted by the regulations.
Determination of number of security holders.
For the purposes of clause (1)(c), where an offeror makes an offer to acquire securities from a person or company and the offeror knows or ought to know after reasonable enquiry that,
(a) one or more other persons or companies on whose behalf that person or company is acting as nominee, agent, trustee, executor, administrator or other legal representative has a direct beneficial interest in those securities, then each of such others shall be included in the determination of the number of persons and companies to whom the offer to acquire has been made, but, where an inter vivos trust has been established by a single settlor or where an estate has not vested in all persons beneficially entitled thereto, the trust or estate shall be considered a single security holder in such determination; or
(b) the person or company acquired the securities in order that the offeror might make use of the exemption provided by clause (1)(c), then each person or company from whom those securities were acquired shall be included in the determination of the number of persons and companies to whom the offer to acquire has been made.
Subject to the regulations, an issuer bid is exempt from sections 86, 87, 88, 89 and 91 if
(a) the securities are purchased, redeemed or otherwise acquired in accordance with terms and conditions attaching thereto that permit the purchase, redemption or acquisition of the securities by the issuer without the prior agreement of the owners of the securities, or where the securities are acquired to meet sinking fund or purchase fund requirements;
(b) the purchase, redemption or other acquisition is required by the instrument creating or governing the class of securities or by the statute under which the issuer was incorporated, organized or continued;
(c) the securities carry with them or are accompanied by a right of the owner of the securities to require the issuer to redeem or repurchase the securities and the securities are acquired pursuant to the exercise of such right;
(d) the securities are acquired from a current or former employee of the issuer or of an affiliate of the issuer, and if there is a published market in respect of the securities,
(i) the value of the consideration paid for any of the securities acquired does not exceed the market price of the securities at the date of the acquisition determined in accordance with the regulations, and
(ii) the aggregate number or, in the case of convertible debt securities, the aggregate principal amount of securities acquired by the issuer within a period of 12 months in reliance on the exemption provided by this clause does not exceed 5% of the securities of that class issued and outstanding at the commencement of the period;
(e) the bid is made through the facilities of a stock exchange recognized by the commission for the purpose of this clause;
(f) following the publication of a notice of intention in the form and manner prescribed by the regulations, the issuer purchases securities in the normal course in the open market, including through the facilities of a stock exchange, if the aggregate number, or, in the case of convertible debt securities, the aggregate principal amount, of securities acquired by the issuer within a period of 12 months in reliance on the exemption provided by this clause does not exceed 5% of the securities of that class issued and outstanding at the commencement of the period;
(g) the issuer is not a reporting issuer, there is not a published market in respect of the securities that are the subject of the bid and the number of holders of securities of the issuer is not more than 50, exclusive of holders who are in the employment of the issuer or an affiliate of the issuer, and exclusive of holders who were formerly in the employment of the issuer or an affiliate of the issuer and who while in that employment were, and have continued after the employment to be, security holders of the issuer;
(h) the number of holders, whose last address as shown on the books of the issuer is in Manitoba, of securities of the class subject to the bid is fewer than 50 and the securities held by such holders constitute, in the aggregate, less than 2% of the outstanding securities of that class, the bid is made in compliance with the laws of a jurisdiction that is recognized for the purposes of this clause by the commission, and all material relating to the bid that is sent by the offeror to holders of securities of the class that is subject to the bid is concurrently sent to all holders of such securities whose last address as shown on the books of the issuer is in Manitoba and filed; or
(i) it is exempted by the regulations.
A bid that is made in reliance upon any exemption in this section through the facilities of a stock exchange shall be made in accordance with the by-laws, regulations and policies of the exchange.
In this section "offeror" means,
(a) an offeror making a formal bid other than a bid referred to in clause 84(1)(e) or 84(3)(h);
(b) a person or company acting jointly or in concert with an offeror referred to in clause (a); or
(c) a security holder of an offeror referred to in clause (a) who, as regards the offeror, is a person or company or a member of a combination of persons or companies referred to in sub-clause l(l)(16)(ii) or an associate or affiliate of such security holder.
Restrictions on acquisitions during bid.
An offeror shall not offer to acquire, or make or enter into any agreement, commitment or understanding to acquire beneficial ownership of any securities of the class that are subject to a take-over bid otherwise than pursuant to the bid on and from the day of the announcement of the offeror's intention to make the bid until its expiry.
Permitted purchases during take-over bid.
Notwithstanding subsection (2), an offeror making a take-over bid may purchase, through the facilities of a stock exchange recognized by the commission for the purpose of clause 84(1)(a), securities of the class that are subject to the bid and securities convertible into securities of that class commencing on the third business day following the date of the bid until the expiry of the bid, if,
(a) the intention to make such purchases is stated in the take-over bid circular;
(b) the aggregate number of securities acquired under this subsection does not constitute in excess of 5% of the outstanding securities of that class as at the date of the bid; and
(c) the offeror issues and files a press release forthwith after the close of business of the exchange on each day on which securities have been purchased under this subsection disclosing the information prescribed by the regulations.
Restrictions on acquisition during issuer bid.
An offeror making an issuer bid shall not offer to acquire, or make or enter into any agreement, commitment or understanding to acquire, beneficial ownership of any securities of the class that are subject to the bid otherwise than pursuant to the bid on and from the day of the announcement of the offeror's intention to make the bid until the bid's expiry, but this subsection does not apply so as to prevent the offeror from purchasing, redeeming or otherwise acquiring any such securities during such period in reliance on an exemption under clause 84(3)(a), (b) or (c).
Integration with pre-bid private transactions.
Where a take-over bid that is a formal bid is made by an offeror and, within the period of 90 days immediately preceding the bid, the offeror acquired beneficial ownership of securities of the class subject to the bid pursuant to a transaction not generally available on identical terms to holders of that class of securities,
(a) the offeror shall offer consideration for securities deposited under the bid at least equal to the highest consideration that was paid on a per security basis under any of such prior transactions or the offeror shall offer at least the cash equivalent of such consideration; and
(b) the offeror shall offer to acquire under the bid that percentage of securities of the class subject to the bid that is at least equal to the highest percentage that the number of securities acquired from a seller in such a prior transaction was of the total number of securities of that class beneficially owned by such seller at the time of the prior transaction.
Restriction on post-bid acquisition.
An offeror shall not acquire beneficial ownership of securities of the class that was subject to the bid by way of a transaction that is not generally available on identical terms to holders of that class of securities during the period beginning with the expiry of the bid and ending at the end of the 20th business day thereafter, and whether or not any securities are taken up under the bid.
Exceptions, normal course trades.
Subsections (5) and (6) do not apply to trades effected in the normal course on a published market, so long as,
(a) any broker acting for the purchaser or seller does not perform services beyond the customary broker's function and does not receive more than reasonable fees or commissions;
(b) the purchaser or any person or company acting for the purchaser does not solicit or arrange for the solicitation of offers to sell securities of the class subject to the bid; and
(c) the seller or any person or company acting for the seller does not solicit or arrange for the solicitation of offers to buy securities of the class subject to the bid.
An offeror shall not, except pursuant to the bid, sell or make or enter into any agreement, commitment or understanding to sell any securities of the class subject to the bid on and from the day of the announcement of the offeror's intention to make the bid until its expiry.
Notwithstanding subsection (8), an offeror, before the expiry of a bid, may make or enter into an arrangement, commitment or understanding to sell securities that may be taken up by the offeror pursuant to a bid, after the expiry of the bid, if the intention to sell is disclosed in the take-over bid circular or issuer bid circular, as the case may be.
Subject to the regulations, the following rules apply to every take-over bid and issuer bid:
(a) The bid shall be made to all holders of securities of the class that is subject to the bid who are in Manitoba, and delivered by the offeror to all holders, whose last address as shown on the books of the offeree issuer is in Manitoba, of securities of that class and of securities that, before the expiry of the bid, are convertible into securities of that class.
(b) The offeror shall allow at least 21 days from the date of the bid during which securities may be deposited pursuant to the bid.
(c) No securities deposited pursuant to the bid shall be taken up by the offeror until the expiration of 21 days from the date of the bid.
(d) Securities deposited pursuant to the bid may be withdrawn by or on behalf of a depositing security holder,
(i) at any time before the expiration of 21 days from the date of the bid,
(ii) at any time before the expiration of 10 days from the date of a notice of change or variation under section 89, and
(iii) where the securities have not been taken up and paid for by the offeror, after 45 days from the date of the bid.
(e) The right of withdrawal conferred by subclause (d)(ii) does not apply,
(i) where the securities have been taken up by the offeror at the date of the notice,
(ii) where a variation in the terms of a bid consists solely of an increase in the consideration offered for the securities subject to the bid and the time for deposit is not extended for a period greater than that required by subsection 89(5), or
(iii) in the circumstances described in subsection 89(6).
(f) Notice of withdrawal of any securities under clause (d) shall be made by or on behalf of the depositing security holder by a method that provides the depositary designated under the bid with a written or printed copy and, to be effective, the notice must be actually received by the depositary and, where notice is given in accordance with this clause, the offeror shall return the securities to the depositing security holder.
(g) Where the bid is made for less than all of the class of securities subject to the bid and where a greater number of securities is deposited pursuant thereto than the offeror is bound or willing to acquire under the bid, the securities shall be taken up and paid for by the offeror, as nearly as may be pro rata, disregarding fractions, according to the number of securities deposited by each depositing security holder.
(h) Where an offeror purchases securities as permitted by subsection 85(3), the securities so purchased shall be counted in the determination of whether a condition as to the minimum number of securities to be deposited in the bid has been fulfilled, but shall not reduce the number of securities the offeror is bound under the bid to take up.
(i) Subject to clauses (j) and (k), the offeror shall take up and pay for securities deposited under the bid, where all the terms and conditions of the bid have been complied with or waived, not later than 10 days after the expiry of the bid.
(j) Any securities that are taken up by the offeror under the bid shall be paid for by the offeror within 10 days following the taking up of such securities.
(k) Any securities deposited pursuant to the bid subsequent to the date on which the offeror first takes up securities deposited under the bid shall be taken up and paid for by the offeror within 10 days of the deposit of the securities.
(l) A bid may not be extended by the offeror, where all the terms and conditions thereof have been complied with except those waived by the offeror, unless the offeror first takes up and pays for all securities deposited thereunder and not withdrawn.
(m) Where all the terms and conditions of the bid have been complied with or waived, the offeror shall forthwith issue a notice by press release to that effect, which press release shall disclose the approximate number of securities deposited and the approximate number that will be taken up.
Where a take-over bid or issuer bid provides that the consideration for the securities deposited pursuant to the bid is to be paid in cash or partly in cash, the offeror shall make adequate arrangements prior to the bid to ensure that the required funds are available to effect payment in full for all securities that the offeror has offered to acquire.
Subject to the regulations, where a take-over bid or issuer bid is made, all holders of the same class of securities shall be offered identical consideration.
If an offeror makes or intends to make a take-over bid or issuer bid, neither the offeror nor any person or company acting jointly or in concert with the offeror shall enter into any collateral agreement, commitment or understanding with any holder or beneficial owner of securities of the offeree issuer that has the effect of providing to the holder or owner a consideration of greater value than that offered to the other holders of the same class of securities.
Where a variation in the terms of a take-over bid or issuer bid before the expiry of the bid increases the value of the consideration offered for the securities subject to the bid, the offeror shall pay such increased consideration to each person or company whose securities are taken up pursuant to the bid, whether or not such securities were taken up by the offeror before the variation.
An offeror shall deliver, with or as part of a take-over bid or issuer bid, a take-over bid circular or issuer bid circular, as the case may be.
Notice of change in information.
Where, before the expiry of a take-over bid or issuer bid or after the expiry of the bid but before the expiry of all rights to withdraw the relevant securities, a change has occurred in the information contained in a take-over bid circular or issuer bid circular or in any notice of change or notice of variation that would reasonably be expected to affect the decision of the holders of the securities of the offeree issuer to accept or reject the bid, a notice of the change shall be delivered to every person or company to whom the circular was required to be delivered and whose securities were not taken up at the date of the occurrence of the change.
Changes not within control of offeror.
Subsection (2) does not apply to a change that is not within the control of the offeror or of an affiliate of the offeror unless it is a change in a material fact relating to the securities being offered in exchange for securities of the offeree issuer.
Where there is a variation in the terms of a take-over bid or issuer bid, including any extension of the period during which securities may be deposited thereunder and whether or not the variation results from the exercise of any right contained in the bid, a notice of the variation shall be delivered to every person or company to whom the take-over bid circular or issuer bid circular was required to be delivered and whose securities were not taken up at the date of the variation.
Subject to subsection (6), where there is a variation in the terms of a take-over bid or issuer bid, the period during which securities may be deposited pursuant to the bid shall not expire before 10 days after the notice of variation has been delivered.
Subsection (5) does not apply to a variation in the terms of a bid consisting solely of the waiver of a condition in the bid where the consideration offered for the securities that are subject to the bid Consists solely of cash.
A take-over bid circular, issuer bid circular, notice of change and notice of variation shall be in the form and shall contain the information required by this Part and the regulations.
Where a take-over bid has been made, a directors' circular shall be prepared and delivered by the board of directors of an offeree issuer to every person and company to whom a take-over bid must be delivered under clause 86(a), not later than 10 days after the date of the bid.
The board of directors shall include in a directors' circular either a recommendation to accept or to reject a take-over bid and the reasons for their recommendation, or a statement that they are unable to make or are not making a recommendation and if no recommendation is made, the reasons for not making a recommendation.
Individual officer's or director's circular.
An individual director or officer may recommend acceptance or rejection of a take-over bid if the director or officer delivers with the recommendation a circular prepared in accordance with the regulations.
Where a board of directors is considering recommending acceptance or rejection of a take- over bid, it shall, at the time of sending or delivering a directors' circular, advise the security holders of this fact and may advise them not to tender their securities until further communication is received from the directors.
Advising of decision of directors.
Where subsection (4) applies, the board of directors shall deliver the recommendation or the decision not to make a recommendation at least 7 days before the scheduled expiry of the period during which securities may be deposited under the bid.
Where, before the expiry of a take-over bid or after the expiry of the bid but before the expiry of all rights to withdraw the securities that have been deposited under the bid,
(a) a change has occurred in the information contained in a directors' circular or in any notice of change to a directors' circular that would reasonably be expected to affect the decision of the holders of the securities to accept or reject the bid, the board of directors of the offeree issuer shall forthwith deliver a notice of the change to every person or company to whom the circular was required to be sent disclosing the nature and substance of the change; or
(b) a change has occurred in the information contained in an individual director's or officer's circular or any notice of change thereto that would reasonably be expected to affect the decision of the holders of the securities to accept or reject the bid, other than a change that is not within the control of the individual director or officer, as the case may be, the individual director or officer, as the case may be, shall forthwith deliver a notice of change in relation thereto to the board of directors.
Circulation of individual circulars and notices.
Where an individual director or officer submits a circular under subsection (3) or a notice of change under clause (6)(b) to the board of directors, the board, at the offeree issuer's expense, shall deliver a copy of the circular or notice to the persons and companies referred to in subsection (1).
A directors' circular, director's or officer's circular and a notice of change shall be in the form and contain the information required by this Part and the regulations.
A take-over bid and any notice of change or variation shall be filed and delivered to the offeree issuer at its principal office and an issuer bid and any notice of change or variation shall be filed on the day such bid or notice is delivered to holders of securities of the offeree issuer, or as soon as practicable thereafter.
Delivery to offeree issuer and commission.
Every directors' circular and every individual director's or officer's circular or any notice of change in relation thereto that is delivered to security holders of an offeree issuer shall be filed and shall be delivered to the offeror at its principal office on the day the directors' circular or individual director's or officer's circular or the notice of change is delivered to the holders of securities of the offeree issuer, or as soon as practicable thereafter.
Delivery and date of bid, etc.
A take-over bid or issuer bid, a takeover bid circular, an issuer bid circular, a directors' circular, an individual director's or officer's circular and every notice of change or variation in any such bid or circular shall be mailed by prepaid first class mail or delivered by personal delivery or in such other manner as the Director may approve to the intended recipient and any bid, circular or notice so mailed or delivered shall be deemed to have been delivered and such bid, circular or notice shall be deemed conclusively for the purposes of sections 86, 89 and 90 and this section to have been dated as of the date on which it was so mailed or delivered to all or substantially all of the persons and companies entitled to receive it.
Securities, reports of acquisitions.
Every person or company that, other than by means of a formal bid, acquires beneficial ownership of, or the power to exercise control or direction over, voting or equity securities of any class of a reporting issuer that, together with such person's or company's securities of that class, would constitute 10% or more of the outstanding securities of that class,
(a) shall issue and file forthwith a press release containing the information prescribed by the regulations; and
(b) within 2 business days, shall file a report containing the same information as is contained in the press release issued under clause (a).
Where a person or company is required to file a report under subsection (1) or a further report under this subsection and the person or company acquires beneficial ownership of, or the power to exercise control or direction over, an additional 2% or more of the outstanding securities of the class or there is a change in any other material fact in such a report, the person or company that made the filing,
(a) shall issue and file forthwith a press release containing the information prescribed by the regulations; and
(b) within 2 business days, shall file a report containing the same information as is contained in the press release issued under clause (a).
During the period commencing on the occurrence of an event in respect of which a report or further report is required to be filed under this section and terminating on the expiry of 1 business day from the date that the report or further report is filed, the person or company required to file the report or further report and persons and companies acting jointly or in concert with such first mentioned person or company shall not acquire or offer to acquire beneficial ownership of any securities of the class in respect of which the report or further report is required to be filed or any securities convertible into securities of that class.
Subsection (3) does not apply to an offeror that is the beneficial owner of, or has the power to exercise control or direction over, securities that constitute 20% of more of the outstanding securities of that class.
Press release re: acquisitions by person other than offeror during bid.
Where, after a formal bid has been made for voting or equity securities of an offeree issuer that is a reporting issuer and before the expiry of the bid, an offeror, other than the person or company making the bid, acquires beneficial ownership of, or the power to exercise control or direction over, securities of the class subject to the bid which, when added to such offeror's securities of that class, constitute 5% or more of the outstanding securities of that class, the offeror shall, not later than the opening of trading on the next business day, issue a press release containing the information prescribed by the regulations and, forthwith, the offeror shall file a copy of the press release.
Where an offeror that has filed a press release under subsection (1) or a further press release under this subsection or any person or company acting jointly or in concert with the offeror acquires beneficial ownership of, or control or direction over, securities of the class subject to the bid which, when added to the securities of that class acquired after the filing of the press release by the offeror and any person or company acting jointly or in concert with the offeror, aggregates an additional 2% or more of the class of outstanding securities, the offeror shall, not later than the opening of trading on the next business day, issue a further press release containing the information prescribed by the regulations and, forthwith, the offeror shall file a copy of the press release.
Where the facts required to be reported or in respect of which a press release is required to be filed under sections 92 and 93 are identical, a report or press release is required only under the provision requiring the earlier report or press release, as the case may be.
Applications to the commission.
Where, on the application of an interested person, it appears to the commission that a person or company has not complied or is not complying with this Part or the regulations under this Part, it may issue, subject to such terms and conditions as it may impose, an order,
(a) restraining the distribution of any document used or issued in connection with a take-over bid or issuer bid;
(b) requiring an amendment to or variation of any document used or issued in connection with a take-over bid or issuer bid and requiring the distribution of any amended, varied or corrected document; and
(c) directing any person or company to comply with this Part or the regulations under this Part or restraining any person or company from contravening this Part or the regulations under this Part and directing the directors and senior officers of the person or company to cause the person or company to comply with or to cease contravening this Part or the regulations under this Part.
Commission may vary conditions.
Upon an application by any interested person, the commission may, subject to such terms and conditions as it may impose,
(a) decide for the purposes of subsection 88(2) that an agreement, commitment or understanding with a selling security holder is made for reasons other than to increase the value of the consideration paid to the selling security holder for the securities of the selling security holder and that the agreement, commitment or understanding may be entered into notwithstanding that subsection;
(b) vary any time period set out in this Part and the regulations under this Part; and
(c) exempt any person or company from any of the requirements of this Part or the regulations under this Part where the commission is satisfied that to do so would not be prejudicial to the public interest.
Applications to the Court of Queen's Bench.
An interested person may apply to the Court of Queen's Bench for an order under this section.
Where, on an application under subsection (1), the judge hearing the application is satisfied that a person or company has not complied with this Part or the regulations under this Part, the judge may make such interim or final order as the judge thinks fit, including, without limiting the generality of the foregoing,
(a) an order compensating any interested person, who is a party to the application for damages suffered as a result of a contravention of this Part or the regulations under this Part;
(b) an order rescinding a transaction with any interested person, including the issue of a security or a purchase and sale of a security;
(c) an order requiring any person or company to dispose of any securities acquired pursuant to or in connection with a take-over bid or an issuer bid;
(d) an order prohibiting any person or company from exercising any or all of the voting rights attaching to any securities; and
(e) an order requiring the trial of an issue.
Liability for misrepresentation in circular.
Where a take-over bid circular sent to the security holders of an offeree issuer as required by this Part or any notice of change or variation in respect thereof contains a misrepresentation, every such security holder shall be deemed to have relied on the misrepresentation and may elect to exercise a right of action for rescission or damages against the offeror or a right of action for damages against,
(a) every person who at the time the circular or notice, as the case may be, was signed was a director of the offeror;
(b) every person or company whose consent in respect of the circular or notice, as the case may be, has been filed pursuant to a requirement of the regulations but only with respect to reports, opinions or statements that have been made by the person or company; and
(c) each person who signed a certificate in the circular or notice, as the case may be, other than the persons included in clause (a).
Where a directors' circular or a director's or officer's circular delivered to the security holders of an offeree issuer as required by this Part or any notice of change or variation in respect thereof contains a misrepresentation, every such security holder shall be deemed to have relied on such misrepresentation and has a right of action for damages against every director or officer who signed the circular or notice that contained the misrepresentation.
Application of subsec. (1) with modifications.
Subsection (1) applies with necessary modifications where an issuer bid circular or any notice of change or variation in respect thereof contains a misrepresentation.
No person or company is liable under subsection (1), (2) or (3) if the person or company proves that the security holder had knowledge of the misrepresentation.
No person or company, other than the offeror, is liable under subsection (1), (2) or (3) if the person or company proves,
(a) that the take-over bid circular, issuer bid circular, directors' circular or director's or officer's circular, as the case may be, was sent without the knowledge or consent of the person or company and that, on becoming aware of it, the person or company, as the case may be, forthwith gave reasonable general notice that it was so sent;
(b) that, after the sending of the take-over bid circular, issuer bid circular, directors' circular or director's or officer's circular, as the case may be, on becoming aware of any misrepresentation in the take-over bid circular, issuer bid circular, directors' circular or director's or officer's circular, the person or company, as the case may be, withdrew the consent thereto and gave reasonable general notice of the withdrawal and the reason therefor;
(c) that, with respect to any part of the circular purporting to be made on the authority of an expert or purporting to be a copy of or an extract from a report, opinion or statement of an expert, the person or company had no reasonable grounds to believe and did not believe that there had been a misrepresentation or that such part of the circular did not fairly represent the report, opinion or statement of the expert or was not a fair copy of or extract from the report, opinion or statement of the expert;
(d) that, with respect to any part of the circular purporting to be made on the authority of that person or company as an expert or purporting to be a copy of or an extract from the report, opinion or statement of that person or company as an expert, but that contains a misrepresentation attributable to failure to represent fairly the report, opinion or statement as an expert,
(i) the person or company had, after reasonable investigation, reasonable grounds to believe and did believe that such part of the circular fairly represented the report, opinion or statement as an expert, or
(ii) on becoming aware that such part of the circular did not fairly represent the report, opinion or statement of that person or company as an expert, the person or company forthwith advised the commission and gave reasonable general notice that such use had been made and that the person or company would not be responsible for that part of the circular; or
(e) that, with respect to a false statement purporting to be a statement made by an official or contained in what purports to be a copy of or extract from a public official document, it was a correct and fair representation of the statement or copy of or extract from the document and that reasonable grounds existed to believe and that person did believe that the statement was true.
No person or company, other than the offeror, is liable under subsection (1), (2) or (3) with respect to any part of the circular purporting to be made on the authority of that person or company as an expert or purporting to be a copy of or an extract from such a report, opinion or statement as an expert unless the person or company
(a) failed to conduct such reasonable investigation as to provide reasonable grounds for a belief that there had been no misrepresentation; or
(b) believed there had been a misrepresentation.
Liability for non-expert representations.
No person or company, other than the offeror, is liable under subsection (1), (2) or (3) with respect to any part of the circular not purporting to be made on the authority of an expert and not purporting to be a copy of or an extract from a report, opinion or statement of an expert unless the person or company
(a) failed to conduct such reasonable investigation as to provide reasonable grounds for a belief that there had been no misrepresentation; or
(b) believed there had been a misrepresentation.
All or any one or more of the persons or companies specified in subsection (1), (2) or (3) are jointly and severally liable, and every person or company who becomes liable to make any payment under this section may recover a contribution from any person or company who, if sued separately, would have been liable to make the same payment provided that the court may deny the right to recover such contribution where, in all the circumstances of the case, it is satisfied that to permit recovery of such contribution would not be just and equitable.
In an action for damages pursuant to subsection (1), (2) or (3) based on a misrepresentation affecting a security offered by the offeror company in exchange for securities of the offeree company, the defendant is not liable for all or any portion of such damages that the defendant proves do not represent the depreciation in value of the security as a result of the misrepresentation.
Deemed take-over bid circular or issuer bid circular.
Where the offeror,
(a) in a take-over bid exempted from this Part by clause 84(1)(a); or
(b) in an issuer bid that is exempted from this Part by clause 84(3)(e), is required, by the by-laws, regulations or policies of the stock exchange through the facilities of which the take-over bid or issuer bid is made, to file with it or to deliver to security holders of the offeree issuer a disclosure document, the disclosure document shall be deemed, for the purposes of this section, to be a take-over bid circular or issuer bid circular, as the case may be, delivered to the security holders as required by this Part.
The right of action for rescission or damages conferred by this section is in addition to and without derogation from any other right the security holders of the offeree issuer may have at law.
In determining what constitutes reasonable investigation or reasonable grounds for belief for the purposes of this section, the standard of reasonableness shall be that required of a prudent man in the circumstances of the particular case.
A security holder to whom a take-over bid and a take-over bid circular or an issuer bid and an issuer bid circular, or any notice of change or variation to any such bid or circular, were required to be delivered but were not delivered in compliance with section 86 or section 89 has a right of action for rescission or damages against the offeror who failed to comply with the applicable requirement.
No action shall be commenced to enforce a right created by this Part more than,
(a) in the case of an action for rescission, 180 days after the date of the transaction that gave rise to the cause of action; or
(b) in the case of any action, other than an action for rescission, the earlier of,
(i) 180 days after the plaintiff first had knowledge of the facts giving rise to the cause of action, or
(ii) 3 years after the date of the transaction that gave rise to the cause of action.
Section 109.1 of the Act is repealed.
Section 141.1 of the Act is repealed.
Section 144 of the Act is amended by adding thereto, immediately after clause (t) thereof, the following clauses:
(u) prescribing exemptions or restrictions to the exemptions in addition to those set out in subsections 84(1) and (3);
(v) prescribing rules in addition to those set out in section 86 or varying any of the rules set out in that section;
(w) prescribing the form and content of any circular, report or other document required to be delivered or filed;
(x) prescribing the information to be contained in any press release required under Part IX;
(y) respecting any other matter necessary or advisable to carry out effectively the intent and purpose of Part IX.
Part IX and section 141.1 of the Act and the regulations relating thereto, as they read immediately before the coming into force of section 4 of this Act, shall continue to apply in respect of every take- over bid and issuer bid commenced before the coming into force of section 4 of this Act.
This Act comes into force on a day fixed by proclamation.