71-102 - Continuous Disclosure and Other Exemptions Relating to Foreign Issuers [NI - Rescinded]
Published Date: | 2004-03-30 |
---|---|
Effective Date: | 2004-03-30 |
Rescinded Date: | 2005-06-01 |
Concurrently Published:
- 71-102CP - Continuous Disclosure and other Exemptions relating to Foreign Issuers [CP - Rescinded]
- BCN 2004/16 - Adoption of National Instrument 51-102 Continuous Disclosure Obligations, National Instrument 71-102 Continuous Disclosure and Other Exemptions Relating to Foreign Issuers, and Related Instruments effective March 30, 2004 [BCN - Lapsed]
March 30, 2004
Douglas M. Hyndman
Chair
________________________________________________________________
(This part is for administrative purposes only and is not part of the Order)
Authority under which Order is made:
Act and sections: Securities Act, sections 91, 114(2) and 119
Other (specify): National Instrument 51-102 Continuous Disclosure Obligations, section 13.1
National Instrument 71-102
Continuous Disclosure and Other Exemptions Relating
to Foreign Issuers
Table of Contents
PART 1 DEFINITIONS AND INTERPRETATION
1.1 Definitions and Interpretation
1.2 Determination of Canadian Shareholders
1.3 Timing for Calculation of Designated Foreign Issuer and Foreign Reporting Issuer
PART 2 LANGUAGE OF DOCUMENTS
2.1 French or English
2.2 Filings Prepared in a Language other than French or English
PART 3 FILING AND SENDING OF DOCUMENTS
3.1 Timing of Filing of Documents
3.2 Sending of Documents to Canadian Securityholders
PART 4 SEC FOREIGN ISSUERS
4.1 Amendments and Supplements
4.2 Material Change Reporting
4.3 Financial Statements
4.4 AIFs and MD&A
4.5 Business Acquisition Reports
4.6 Proxies and Proxy Solicitation by the Issuer and Information Circulars
4.7 Proxy Solicitation by Another Person or Company
4.8 Disclosure of Voting Results
4.9 Filing of Certain News Releases
4.10 Filing of Certain Documents
4.11 Early Warning
4.12 Insider Reporting
4.13 Communication with Beneficial Owners of Securities
4.14 Going Private Transactions and Related Party Transactions
4.15 Change of Auditor
4.16 Restricted Securities
PART 5 DESIGNATED FOREIGN ISSUERS
5.1 Amendments and Supplements
5.2 Mandatory Annual Disclosure by Designated Foreign Issuer
5.3 Material Change Reporting
5.4 Financial Statements
5.5 AIFs & MD&A
5.6 Business Acquisition Reports
5.7 Proxies and Proxy Solicitation by the Issuer and Information Circulars
5.8 Proxy Solicitation by Another Person or Company
5.9 Disclosure of Voting Results
5.10 Filing of Certain News Releases
5.11 Filing of Certain Documents
5.12 Early Warning
5.13 Insider Reporting
5.14 Communication with Beneficial Owners of Securities
5.15 Going Private Transactions and Related Party Transactions
5.16 Change in Year-End
5.17 Change of Auditor
5.18 Restricted Securities
PART 6 FOREIGN TRANSITION ISSUERS
6.1 Application
6.2 Definition
6.3 Transitional Exemptions
PART 7 EFFECTIVE DATE
7.1 Effective Date
Continuous Disclosure and Other Exemptions Relating
to Foreign Issuers
Part 1 DEFINITIONS AND INTERPRETATION
1.1 Definitions and Interpretation
In this Instrument:
“board of directors” means, for a person or company that does not have a board of directors, an individual or group that acts in a capacity similar to a board of directors;
“business acquisition report” means a completed Form 51-102F4 Business Acquisition Report;
“class” includes a series of a class;
“convertible security” means a security of an issuer that is convertible into, or carries the right of the holder to acquire, or of the issuer to cause the acquisition of, a security of the same issuer;
“designated foreign issuer” means a foreign reporting issuer
(a) that does not have a class of securities registered under section 12 of the 1934 Act and is not required to file reports under section 15(d) of the 1934 Act;
(b) that is subject to foreign disclosure requirements; and
(c) for which the total number of equity securities owned, directly or indirectly, by residents of Canada does not exceed 10 per cent, on a fully-diluted basis, of the total number of equity securities of the issuer, calculated in accordance with sections 1.2 and 1.3;
“designated foreign jurisdiction” means Australia, France, Germany, Hong Kong, Italy, Japan, Mexico, the Netherlands, New Zealand, Singapore, South Africa, Spain, Sweden, Switzerland or the United Kingdom of Great Britain and Northern Ireland;
“exchangeable security” means a security of an issuer that is exchangeable for, or carries the right of the holder to acquire, or of the issuer to cause the acquisition of, a security of another issuer;
“exchange-traded security” means a security that is listed on a recognized exchange or is quoted on a recognized quotation and trade reporting system or is listed on an exchange or quoted on a quotation and trade reporting system that is recognized for the purposes of National Instrument 21-101 Marketplace Operation and National Instrument 23-101 Trading Rules;
“executive officer” of a reporting issuer means an individual who is
(a) a chair of the reporting issuer;
(b) a vice-chair of the reporting issuer;
(c) the president of the reporting issuer;
(d) a vice-president of the reporting issuer in charge of a principal business unit, division or function including sales, finance or production;
(e) an officer of the reporting issuer or any of its subsidiaries who performed a policy-making function in respect of the reporting issuer; or
(f) any other individual who performed a policy-making function in respect of the reporting issuer;
“foreign disclosure requirements” means the requirements to which a foreign reporting issuer is subject concerning the disclosure made to the public, to securityholders of the issuer or to a foreign regulatory authority
(a) relating to the foreign reporting issuer and the trading in its securities; and
(b) that is made publicly available in the foreign jurisdiction under
(i) the securities laws of the foreign jurisdiction in which the principal trading market of the foreign reporting issuer is located; or
(ii) the rules of the marketplace that is the principal trading market of the foreign reporting issuer;
“foreign regulatory authority” means a securities commission, exchange or other securities market regulatory authority in a designated foreign jurisdiction;
“foreign reporting issuer” means a reporting issuer, other than an investment fund, that is incorporated or organized under the laws of a foreign jurisdiction, unless
(a) outstanding voting securities carrying more than 50 per cent of the votes for the election of directors are owned, directly or indirectly, by residents of Canada; and
(b) any one or more of the following is true:
(c) the majority of the executive officers or directors of the issuer are residents of Canada;
(d) more than 50 per cent of the consolidated assets of the issuer are located in Canada; or
(e) the business of the issuer is administered principally in Canada;
“interim period” means,
(a) in the case of a year other than a transition year, a period commencing on the first day of the financial year and ending nine, six or three months before the end of the financial year, or
(b) in the case of a transition year, a period commencing on the first day of the transition year and ending
(ii) twelve, nine, six or three months, if applicable, before the end of the transition year;
“marketplace” means
(a) an exchange;
(b) a quotation and trade reporting system;
(c) a person or company not included in paragraph (a) or (b) that
(ii) brings together the orders for securities of multiple buyers and sellers; and
(iii) uses established, non-discretionary methods under which the orders interact with each other, and the buyers and sellers entering the orders agree to the terms of a trade; or
but does not include an inter-dealer bond broker;
“MD&A” means a completed Form 51-102F1 Management’s Discussion & Analysis or, in the case of an SEC foreign issuer, a completed Form 51-102F1 or management’s discussion and analysis prepared in accordance with Item 303 of Regulation S-K or Item 303 of Regulation S-B under the 1934 Act;
“multiple convertible security” means a security of an issuer that is convertible into, or exchangeable for, or carries the right of the holder to acquire, or of the issuer to cause the acquisition of, a convertible security, an exchangeable security or another multiple convertible security;
“Nasdaq” means Nasdaq National Market and Nasdaq SmallCap Market;
“NI 52-107” means National Instrument 52-107 Acceptable Accounting Principles, Auditing Standards and Reporting Currency;
“non-redeemable investment fund” means any issuer
(a) where contributions of securityholders are pooled for investment;
(b) where securityholders do not have day-to-day control over the management and investment decisions of the issuer, whether or not they have the right to be consulted or to give directions; and
(c) whose securities do not entitle the securityholder to receive on demand, or within a specified period after demand, an amount computed by reference to the value of a proportionate interest in the whole or in part of the net assets of the issuer;
“principal trading market” means the published market on which the largest trading volume in the equity securities of the issuer occurred during the issuer’s most recent financial year that ended before the date the determination is being made;
“published market” means, for a class of securities, a marketplace on which the securities have traded that discloses regularly in a publication of general and regular paid circulation or in a form that is broadly distributed by electronic means the prices at which those securities have traded;
“recognized exchange” means
(a) in Ontario, an exchange recognized by the securities regulatory authority to carry on business as a stock exchange; and
(b) in every other jurisdiction, an exchange recognized by the securities regulatory authority as an exchange, self-regulatory organization or self-regulatory body;
(a) in every jurisdiction other than British Columbia, a quotation and trade reporting system recognized by the securities regulatory authority under securities legislation to carry on business as a quotation and trade reporting system; and
(b) in British Columbia, a quotation and trade reporting system recognized by the securities regulatory authority under securities legislation as a quotation and trade reporting system or as an exchange;
(a) has a class of securities registered under section 12 of the 1934 Act or is required to file reports under section 15(d) of the 1934 Act; and
(b) is not registered or required to be registered as an investment company under the Investment Company Act of 1940 of the United States of America, as amended;
“transition year” means the financial year of reporting issuer in which the issuer changes its financial year-end;
“TSX” means the Toronto Stock Exchange;
“underlying security” means a security issued or transferred, or to be issued or transferred, in accordance with the terms of a convertible security, an exchangeable security or a multiple convertible security;
“U.S. market” means an exchange in the United States of America or Nasdaq; and
“U.S. market requirements” means the requirements of the U.S. market on which the reporting issuer’s securities are listed or quoted.
(1) For the purposes of section 4.14 and paragraph (c) of the definition of “designated foreign issuer”, a reference to equity securities owned, directly or indirectly, by residents of Canada, includes
(a) the underlying securities that are equity securities of the foreign reporting issuer; and
(b) the equity securities of the foreign reporting issuer represented by an American depositary receipt or an American depositary share issued by a depositary holding equity securities of the foreign reporting issuer.
(2) For the purposes of paragraph (a) of the definition of “foreign reporting issuer”, securities represented by American depositary receipts or American depositary shares issued by a depositary holding voting securities of the foreign reporting issuer must be included as outstanding in determining both the number of votes attached to securities owned, directly or indirectly, by residents of Canada and the number of votes attached to all of the issuer’s outstanding voting securities.
1.3 Timing for Calculation of Designated Foreign Issuer and Foreign Reporting Issuer
(b) for all other issuers,
(i) for the purpose of financial statement and MD&A filings under this Instrument, on the first day of the most recent financial year or year-to-date interim period for which operating results are presented in the financial statements or MD&A; and
(ii) for the purpose of other continuous disclosure filing obligations under this Instrument, on the first day of the issuer’s current financial year.
Part 2 LANGUAGE OF DOCUMENTS
2.1 French or English
(1) A person or company must file a document required to be filed under this Instrument in either French or English.
(2) Notwithstanding subsection (1), if a person or company files a document only in French or only in English but delivers to securityholders of an issuer a version of the document in the other language, the person or company must file that other version not later than when it is first delivered to securityholders.
(3) In Québec, a reporting issuer must comply with linguistic obligations and rights prescribed by Québec law.
2.2 Filings Prepared in a Language other than French or English
(1) If a person or company files a document that is required to be filed under this Instrument that is a translation of a document prepared in a language other than French or English, the person or company must file the document upon which the translation was based.
(2) A foreign reporting issuer filing a document upon which the translation was based under subsection (1) must attach to the document a certificate as to the accuracy of the translation.
Part 3 FILING AND SENDING OF DOCUMENTS
3.1 Timing of Filing of Documents
4.1 Amendments and Supplements
(b) complies with foreign disclosure requirements for making public disclosure of material information on a timely basis, if securities of the issuer are not listed or quoted on a U.S. market;
(c) promptly files each news release issued by it for the purpose of complying with the requirements referred to in paragraph (a) or (b);
(d) complies with the requirements of U.S. federal securities law for filing or furnishing current reports to the SEC; and
(e) files the current reports filed with or furnished to the SEC.
4.3 Financial Statements
(b) complies with the U.S. market requirements relating to interim financial statements and annual financial statements, if securities of the issuer are listed or quoted on a U.S. market;
(c) files the interim financial statements, annual financial statements and auditor’s reports on annual financial statements filed with or furnished to the SEC or a U.S. market;
(d) complies with section 3.2 of this Instrument; and
(e) complies with NI 52-107 as it relates to financial statements of the issuer that are included in any documents specified in paragraph (c).
4.4 AIFs and MD&A
(b) files each annual report, quarterly report, current report and management’s discussion and analysis filed with or furnished to the SEC;
(c) complies with section 3.2 of this Instrument; and
(d) complies with NI 52-107 as it relates to financial statements of the issuer that are included in any documents specified in paragraph (b).
4.5 Business Acquisition Reports
(b) files each business acquisition report filed with or furnished to the SEC;
(c) complies with section 3.2 of this Instrument; and
(d) complies with NI 52-107 as it relates to financial statements that are included in any documents specified in paragraph (b).
4.6 Proxies and Proxy Solicitation by the Issuer and Information Circulars
(b) files all material relating to a meeting of securityholders that is filed with or furnished to the SEC;
(c) sends each document filed under paragraph (b) to securityholders in the local jurisdiction in the manner and at the time required by U.S. federal securities laws and U.S. market requirements; and
(d) complies with NI 52-107 as it relates to financial statements of the issuer that are included in any documents specified in paragraph (b).
4.7 Proxy Solicitation by Another Person or Company
(1) A person or company, other than the SEC foreign issuer, satisfies securities legislation requirements relating to information circulars, proxies and proxy solicitation with respect to an SEC foreign issuer if the person or company complies with the requirements of subsection 4.6.
(2) If a proxy solicitation is made with respect to an SEC foreign issuer by a person or company other than the SEC foreign issuer and the person or company soliciting proxies lacks access to the relevant list of securityholders of the SEC foreign issuer, the exemption in subsection (1) is not available, if
(a) the aggregate published trading volume of the class on the TSX and the TSX Venture Exchange exceeded the aggregate published trading volume of the class on all U.S. markets
(i) for the 12 calendar month period before commencement of the proxy solicitation, if there is no other proxy solicitation for securities of the same class in progress, or
(ii) for the 12 calendar month period before commencement of the first proxy solicitation, if another proxy solicitation for securities of the same class is already in progress;
(b) the information disclosed by the SEC foreign issuer in its most recent Form 10-K, Form 10-KSB or Form 20-F filed with the SEC under the 1934 Act demonstrated that paragraph (a) of the definition of “foreign reporting issuer” applied to the SEC foreign issuer; or
(c) the person or company soliciting proxies reasonably believes that paragraph (a) of the definition of “foreign reporting issuer” applies to the SEC foreign issuer.
4.8 Disclosure of Voting Results
(b) files a copy of all disclosure of securityholder voting results filed with or furnished to the SEC.
4.9 Filing of Certain News Releases
(b) files a copy of each news release disclosing financial information that is filed with or furnished to the SEC.
4.10 Filing of Certain Documents
(b) files each report of beneficial ownership that is filed with or furnished to the SEC.
4.12 Insider Reporting
(b) the insider complies with the requirements of U.S. federal securities law relating to insider reporting.
4.13 Communication with Beneficial Owners of Securities
(b) complies with the requirements of National Instrument 54-101 Communication with Beneficial Owners of Securities of a Reporting Issuer with respect to fees payable to intermediaries, for any depositary and any intermediary whose last address as shown on the books of the issuer is in Canada.
4.14 Going Private Transactions and Related Party Transactions
(b) files a copy of all materials relating to a change of auditor that are filed with or furnished to the SEC.
4.16 Restricted Securities
(1) Securities legislation continuous disclosure requirements relating to restricted securities do not apply in respect of SEC foreign issuers.
(2) Securities legislation minority approval requirements relating to restricted securities do not apply in respect of SEC foreign issuers.
Part 5 DESIGNATED FOREIGN ISSUERS
5.1 Amendments and Supplements
(b) that it is subject to the foreign regulatory requirements of a foreign regulatory authority; and
(c) the name of the foreign regulatory authority referred to in paragraph (b).
5.3 Material Change Reporting
(b) promptly files each news release issued by it for the purpose of complying with the requirements referred to in paragraph (a); and
(c) files the documents disclosing the material information filed with or furnished to the foreign regulatory authority or disseminated to the public or securityholders of the issuer.
5.4 Financial Statements
(b) files the interim financial statements, annual financial statements and auditor’s reports on annual financial statements required to be filed with or furnished to the foreign regulatory authority;
(c) complies with section 3.2 of this Instrument; and
(d) complies with NI 52-107 as it relates to financial statements of the issuer that are included in any documents specified in paragraph (b).
5.5 AIFs & MD&A
(b) files each annual report, quarterly report and management’s discussion and analysis required to be filed with or furnished to the foreign regulatory authority;
(c) complies with section 3.2 of this Instrument; and
(d) complies with NI 52-107 as it relates to financial statements of the issuer that are included in any documents specified in paragraph (b).
5.6 Business Acquisition Reports
(b) files each report in respect of a business acquisition required to be filed with or furnished to the foreign regulatory authority;
(c) complies with section 3.2 of this Instrument; and
(d) complies with NI 52-107 as it relates to financial statements that are included in any documents specified in paragraph (b).
5.7 Proxies and Proxy Solicitation by the Issuer and Information Circulars
(b) files all material relating to a meeting of securityholders that is filed with or furnished to the foreign regulatory authority;
(c) complies with section 3.2 of this Instrument; and
(d) complies with NI 52-107 as it relates to financial statements of the issuer that are included in any documents specified in paragraph (b).
5.8 Proxy Solicitation by Another Person or Company
(1) A person or company, other than the designated foreign issuer, satisfies securities legislation requirements relating to information circulars, proxies and proxy solicitation with respect to a designated foreign issuer if the person or company satisfies the requirements of section 5.7.
(2) If a proxy solicitation is made with respect to a designated foreign issuer by a person or company other than the designated foreign issuer and the person or company soliciting proxies lacks access to the relevant list of securityholders of the designated foreign issuer, the exemption in subsection (1) is not available, if
(a) the aggregate published trading volume of the class on the TSX and the TSX Venture Exchange exceeded the aggregate trading volume on securities marketplaces outside Canada
(i) for the 12 calendar months before commencement of the proxy solicitation, if there is no other proxy solicitation for securities of the same class in progress, or
(ii) for the 12 calendar month period before the commencement of the first proxy solicitation, if another proxy solicitation for securities of the same class is already in progress;
(b) the information disclosed by the designated foreign issuer in a document filed within the previous 12 months with a foreign regulatory authority, demonstrated that paragraph (a) of the definition of “foreign reporting issuer” applied to the designated foreign issuer; or
(c) the person or company soliciting proxies reasonably believes that paragraph (a) of the definition of “foreign reporting issuer” applies to the designated foreign issuer.
5.9 Disclosure of Voting Results
(b) files each report disclosing securityholder voting results that is filed with or furnished to a foreign regulatory authority.
5.10 Filing of Certain News Releases
(b) files a copy of each news release disclosing financial information that is filed with or furnished to a foreign regulatory authority.
5.11 Filing of Certain Documents
(b) files each report of beneficial ownership that is filed with or furnished to the foreign regulatory authority.
5.13 Insider Reporting
(b) the insider complies with the foreign disclosure requirements relating to insider reporting.
5.14 Communication with Beneficial Owners of Securities
(b) complies with the requirements of National Instrument 54-101 Communication with Beneficial Owners of Securities of a Reporting Issuer with respect to fees payable to intermediaries, for any depositary and any intermediary whose last address as shown on the books of the issuer is in Canada.
5.15 Going Private Transactions and Related Party Transactions
(b) files a copy of all filings made under foreign disclosure requirements relating to the change in year-end.
5.17 Change of Auditor
(b) files a copy of all filings made under foreign disclosure requirements relating to the change of auditor.
5.18 Restricted Securities
(1) Securities legislation continuous disclosure requirements relating to restricted securities do not apply in respect of designated foreign issuers.
(2) Securities legislation minority approval requirements relating to restricted securities do not apply in respect of designated foreign issuers.
Part 6 FOREIGN TRANSITION ISSUERS
6.1 Application
(b) that is not an SEC foreign issuer or a designated foreign issuer;
(c) that became a reporting issuer solely by listing securities on the TSX before March 30, 2004;
(d) of which the total number of securities of the class listed on the TSX registered in the names of residents of Canada does not exceed 5 per cent of the total number of issued and outstanding securities of the class; and
(e) of which the total number of holders of securities of the class listed on the TSX registered in the names of residents of Canada does not exceed 300.
6.3 Transitional Exemptions
(b) securities legislation requirements relating to the preparation, approval and filing of annual financial statements and auditor’s reports thereon if the annual financial statements are
(i) prepared in compliance with the laws of the foreign jurisdiction of incorporation or organization of the issuer; and
(ii) filed not later than the earlier of
(A) promptly after they are filed with any other governmental agency or securities market regulatory authority; and
(B) 140 days after the end of the financial year; and
(c) securities legislation requirements relating to the preparation, approval and filing of interim financial statements, if the interim financial statements are
(i) prepared in compliance with the laws of the foreign jurisdiction of incorporation or organization of the issuer; and
(ii) filed not later than the earlier of
(A) promptly after they are filed with any other governmental agency or securities market regulatory authority; and
(B) 60 days after the end of the interim period.
Part 7 EFFECTIVE DATE
7.1 Effective Date