62-104F2 - Issuer Bid Circular [F Advance Notice - Lapsed]
- BCN 2007/35 - Advance Notice of Multilateral Instrument 62-104 Take-Over Bids and Issuer Bids, related forms and National Policy 62-203 Take-Over Bids and Issuer Bids [BCN - Lapsed]
Part 1 General Provisions
(a) Defined terms
If a term is used but not defined in this Form, refer to Part 1 of Multilateral Instrument 62-104 Take-Over Bids and Issuer Bids (the Instrument) and to National Instrument 14-101 Definitions.
(b) Incorporating information by reference
If you are qualified to file a short form prospectus under sections 2.2 to 2.7 of National Instrument 44-101 Short Form Prospectus Distributions, or by reason of an exemption granted by a securities regulatory authority, you may incorporate information required under item 21 to be included in your issuer bid circular by reference to another document. Clearly identify the referenced document or any excerpt of it that you incorporate into your issuer bid circular. Unless you have already filed the referenced document, you must file it with your issuer bid circular. You must also disclose that the document is on SEDAR at www.sedar.com and that, on request, you will promptly provide a copy of the document free of charge to a security holder of the issuer.
(c) Plain language
Write the issuer bid circular so that readers are able to understand it and make informed investment decisions. Issuers should apply plain language principles when they prepare an issuer bid circular including:
- using short sentences;
- using definite everyday language;
- using the active voice;
- avoiding superfluous words;
- organizing the document into clear, concise sections, paragraphs and sentences;
- avoiding jargon;
- using personal pronouns to speak directly to the reader;
- avoiding reliance on glossaries and defined terms unless it facilitates understanding of the disclosure;
- avoiding vague boilerplate wording;
- avoiding abstract terms by using more concrete terms or examples;
- avoiding multiple negatives;
- using technical terms only when necessary and explaining those terms;
- using charts, tables and examples where it makes disclosure easier to understand.
If you use technical terms, explain them in a clear and concise manner.
(d) Numbering and headings
The numbering, headings and ordering of items included in this Form are guidelines only. You do not need to include the heading or numbering or follow the order of items in this Form. You do not need to refer to inapplicable items and, unless otherwise required in this Form, you may omit negative answers to items. Disclosure provided in response to any item need not be repeated elsewhere in the circular.
Part 2 Contents of Issuer Bid Circular
Item 1. Name of issuer
State the corporate name of the issuer or, if the issuer is an unincorporated entity, the full name under which it exists and carries on business.
Item 2. Securities subject to the bid
State the class and number of securities that are the subject of the issuer bid and a description of the rights of the holders of any other class of securities that have a right to participate in the offer. Where the number of securities sought under the bid is subject to additional purchases by the issuer for the purpose of preventing security holders from being left with less than a standard trading unit, disclose this fact.
Where the issuer intends to rely on the exception from the proportionate take up and payment requirements found in subsection 2.26(3) of the Instrument relating to "dutch auctions", the issuer is not required to disclose the number of securities that are the subject of the issuer bid if the issuer discloses a maximum amount the issuer intends to spend making purchases pursuant to the bid.
Item 3. Time period
State the dates on which the issuer bid will commence and expire.
Item 4. Consideration
State the consideration to be offered. If the consideration includes securities, state the particulars of the designation, rights, privileges, restrictions and conditions attaching to those securities.
Item 5. Payment for deposited securities
State the particulars of the method and time of payment of the consideration.
Item 6. Right to withdraw deposited securities
Describe the right to withdraw securities deposited under the issuer bid. State that the withdrawal is made by sending a written notice to the designated depository and becomes effective on its receipt by the depository.
Item 7. Source of funds
State the source of any funds to be used for payment of deposited securities. If the funds are to be borrowed, state
(a) the name of the lender,
(b) the terms and financing conditions of the loan,
(c) the circumstances under which the loan must be repaid, and
(d) the proposed method of repayment.
Item 8. Participation
If the issuer bid is for less than all of the outstanding securities of that class, state that if a greater number or principal amount of the securities are deposited than the issuer is bound or willing to take up and pay for, the issuer will take up as nearly as may be proportionately, disregarding fractions, according to the number or principal amount of the securities deposited. To the extent that this is not the case, as permitted by securities legislation, the response to this item should be modified accordingly.
If an issuer intends to rely on one or both of the exceptions from the proportionate take up and payment requirements found in subsections 2.26 (2) and (3) of the Instrument relating to standard trading units and "dutch auctions", describe the mechanism under which securities would be deposited and taken up without proration.
Item 9. Purpose of the bid
State the purpose for the issuer bid, and if it is anticipated that the issuer bid will be followed by a going private transaction or other transaction such as a business combination, describe the proposed transaction.
Item 10. Trading in securities to be acquired
Provide a summary showing
(a) the name of each principal market on which the securities sought are traded,
(b) any change in a principal market that is planned following the issuer bid,
(c) where reasonably ascertainable, in reasonable detail, the volume of trading and price range of the class of the securities in the 6-month period preceding the date of the issuer bid, or, in the case of debt securities, the prices quoted on each principal market, and
(d) the date that the issuer bid to which the circular relates was announced to the public and the market price of the securities of the issuer immediately before that announcement.
Item 11. Ownership of securities of issuer
State the number, designation and the percentage of the outstanding securities of any class of securities of the issuer beneficially owned or over which control or direction is exercised
(a) by each director and officer of the issuer, and
(b) if known after reasonable enquiry, by
(i) each associate or affiliate of an insider of the issuer,
(ii) each associate or affiliate of the issuer,
(iii) an insider of the issuer, other than a director or officer of the issuer, and
(iv) each person acting jointly or in concert with the issuer.
In each case where no securities are owned, directed or controlled, state this fact.
Item 12. Commitments to acquire securities of issuer
Disclose all agreements, commitments or understandings made by the issuer and, if known after reasonable enquiry, by the persons referred to in item 11, to acquire securities of the issuer, and the terms and conditions of those agreements, commitments or understandings.
Item 13. Acceptance of issuer bid
If known after reasonable enquiry, state the name of every person named in item 11 who has accepted or intends to accept the issuer bid and the number of securities in respect of which the person has accepted or intends to accept the issuer bid.
Item 14. Benefits from the bid
State the direct or indirect benefits to any of the persons named in item 11 of accepting or refusing the issuer bid.
Item 15. Material changes in the affairs of issuer
Disclose the particulars of any plans or proposals for material changes in the affairs of the issuer, including, for example, any contract or agreement under negotiation, any proposal to liquidate the issuer, to sell, lease or exchange all or a substantial part of its assets, to amalgamate it or to make any material changes in its business, corporate structure (debt or equity), management or personnel.
Item 16. Other benefits
If any material changes or subsequent transactions are contemplated, as described in item 9 or 15, state any specific benefit, direct or indirect, as a result of such changes or transactions to any of the persons named in item 11.
Item 17. Arrangements between the issuer and security holders
(1) Disclose the particulars of any agreement, commitment or understanding made or proposed to be made between the issuer and a security holder of the issuer relating to the bid, including a description of its purpose, its date, the identity of the parties, and its terms and conditions. Disclosure with respect to each agreement, commitment or understanding, other than an agreement that a security holder will tender securities to an issuer bid, must include
(a) a detailed explanation as to how the issuer determined entering into it was not prohibited by section 2.24 of the Instrument, or
(b) disclosure of the exception to, or exemption from, the prohibition against collateral agreements relied on by the issuer and the facts supporting that reliance.
(2) If the issuer is relying on an exception to the prohibition against collateral agreements under subparagraph 2.25(1)(b)(ii) of the Instrument, and if the information is available to the issuer, disclose the review process undertaken by the independent committee of directors of the issuer and the basis on which the independent committee made its determination under clause 2.25(1)(b)(ii)(A) or (B) of the Instrument.
Item 18 Previous purchases and sales
State the following information about any securities of the issuer purchased or sold by the issuer during the twelve months preceding the date of the issuer bid, excluding securities purchased or sold pursuant to the exercise of employee stock options, warrants and conversion rights:
(a) the description of the security,
(b) the number of securities purchased or sold,
(c) the purchase or sale price of the security, and
(d) the date and purpose of each transaction.
If no securities were purchased or sold, state this fact.
Item 19. Financial statements
If the most recently available interim financial statements are not included, include a statement that the most recent interim financial statements will be sent without charge to any security holder requesting them.
Item 20. Valuation
If a valuation is required by applicable securities legislation, include the disclosure regarding valuations required by securities legislation.
Item 21. Securities of issuer to be exchanged for others
If an issuer bid provides that the consideration for the securities of the issuer is to be, in whole or in part, different securities of the issuer, include the financial and other information prescribed for a prospectus of the issuer.
Item 22. Approval of issuer bid circular
State that the issuer bid circular has been approved by the issuer's directors, disclosing the name of any individual director of the issuer who has informed the directors in writing of their opposition to the issuer bid and that the delivery of the issuer bid circular to the security holders of the issuer has been authorized by the issuer's directors.
If the issuer bid is part of a transaction or to be followed by a transaction required to be approved by minority security holders, state the nature of the approval required.
Item 23. Previous distribution
If the securities of the class subject to the issuer bid were distributed during the 5 years preceding the issuer bid, state the distribution price per share and the aggregate proceeds received by the issuer or selling security holder.
Item 24. Dividend policy
State the frequency and amount of dividends with respect to shares of the issuer during the 2 years preceding the date of the issuer bid, any restrictions on the issuer's ability to pay dividends and any plan or intention to declare a dividend or to alter the dividend policy of the issuer.
Item 25. Tax consequences
Provide a general description of the income tax consequences in Canada of the issuer bid to the issuer and to the security holders of any class affected.
Item 26. Expenses of bid
Provide a statement of the expenses incurred or to be incurred in connection with the issuer bid.
Item 27. Right of appraisal and acquisition
State any rights of appraisal the security holders of the issuer have under the laws or constating documents governing, or contracts binding, the issuer and state whether or not the issuer intends to exercise any right of acquisition the issuer may have.
Item 28. Statement of rights
Include the following statement of rights provided under the securities legislation of the jurisdictions relating to this circular:
Securities legislation in the provinces and territories of Canada provides security holders of the offeree issuer with, in addition to any other rights they may have at law, one or more rights of rescission, price revision or to damages, if there is a misrepresentation in a circular or notice that is required to be delivered to those security holders. However, such rights must be exercised within prescribed time limits. Security holders should refer to the applicable provisions of the securities legislation of their province or territory for particulars of those rights or consult a lawyer.
Item 29. Other material facts
(a) any material facts concerning the securities of the issuer, and
(b) any other matter not disclosed in the issuer bid circular that has not previously been generally disclosed, is known to the issuer, and that would reasonably be expected to affect the decision of the security holders of the issuer to accept or reject the offer.
Item 30. Solicitations
Disclose any person retained by or on behalf of the issuer to make solicitations in respect of the issuer bid and the particulars of the compensation arrangements.
Item 31. Certificate
An issuer bid circular certificate form must state:
The foregoing contains no untrue statement of a material fact and does not omit 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.
Item 32. Date of issuer bid circular
Specify the date of the issuer bid circular.