The title of BC Reg 21/2008 BEFORE amended by BC Reg 106/2016, effective May 9, 2016.
Multilateral Instrument 62-104 Take-Over Bids and Issuer Bids
Section 1.1 definition of "consultant" BEFORE amended by BC Reg B.C. Reg. 67/2015, effective May 5, 2015.
"consultant" has the same meaning as in National Instrument 45-106 Prospectus and Registration Exemptions;
Section 1.1 definition of "associate", paragraph (d) BEFORE amended by BC Reg 106/2016, effective May 9, 2016.
"associate", when used to indicate a relationship with a person, means
(a) an issuer of which the person beneficially owns or controls, directly or indirectly, voting securities entitling the person to more than 10% of the voting rights attached to outstanding securities of the issuer,
(b) any partner of the person,
(c) any trust or estate in which the person has a substantial beneficial interest or in respect of which a person serves as trustee or in a similar capacity, or
(d) a relative of that person, including
(i) the spouse or, in Alberta, adult interdependent partner of that person, or
(ii) a relative of the person's spouse or, in Alberta, adult interdependent partner
if the relative has the same home as that person;
Section 1.1 definitions "alternative transaction", "deposit period news release", "initial deposit period", "mandatory 10-day extension period" and "partial take-over bid" were added by BC Reg 106/2016, effective May 9, 2016.
Section 1.8 (1) BEFORE amended by BC Reg 106/2016, effective May 9, 2016.
(1) In this Instrument, in determining the beneficial ownership of securities of an offeror or of any person acting jointly or in concert with the offeror, at any given date, the offeror or the person is deemed to have acquired and to be the beneficial owner of a security, including an unissued security, if the offeror or the person
(a) is the beneficial owner of a security convertible into the security within 60 days following that date, or
(b) has a right or obligation permitting or requiring the offeror or the person, whether or not on conditions, to acquire beneficial ownership of the security within 60 days by a single transaction or a series of linked transactions.
Section 1.9 (1) BEFORE amended by BC Reg 106/2016, effective May 9, 2016.
(1) In this Instrument, it is a question of fact as to whether a person is acting jointly or in concert with an offeror and, without limiting the generality of the foregoing,
(a) the following are deemed to be acting jointly or in concert with an offeror:
(i) a person that, as a result of any agreement, commitment or understanding with the offeror or with any other person acting jointly or in concert with the offeror, acquires or offers to acquire securities of the same class as those subject to the offer to acquire;
(ii) an affiliate of the offeror;
(b) the following are presumed to be acting jointly or in concert with an offeror:
(i) a person that, as a result of any agreement, commitment or understanding with the offeror or with any other person acting jointly or in concert with the offeror, intends to exercise jointly or in concert with the offeror or with any person acting jointly or in concert with the offeror any voting rights attaching to any securities of the offeree issuer;
Section 1.11 (3) BEFORE amended by BC Reg 106/2016, effective May 9, 2016.
(3) Despite subsections (1) and (2) for the purposes of section 4.1, if an offeror acquires securities on a published market, the market price for those securities is the price of the last standard trading unit of securities of that class purchased, before the acquisition by the offeror, by a person who was not acting jointly or in concert with the offeror.
Section 2.12 (1), (4), and (5) BEFORE amended by BC 106/2016, effective May 9, 2016.
(1) If there is a variation in the terms of a take-over bid or an issuer bid, including any extension of the period during which securities may be deposited under the bid, and whether or not that variation results from the exercise of any right contained in the bid, the offeror must promptly
(a) issue and file a news release, and
(b) send a notice of variation to every person to whom the bid was required to be sent under section 2.8 and whose securities were not taken up before the date of the variation.
(4) Subsections (1) and (3) do not apply to a variation in the terms of a bid consisting solely of the waiver of a condition in the bid and any extension of the bid resulting from the waiver where the consideration offered for the securities consists solely of cash, but in that case the offeror must promptly issue and file a news release announcing the waiver.
(5) A variation in the terms of a take-over bid or an issuer bid, other than a variation that is the waiver by the offeror of a condition that is specifically stated in the bid as being waivable at the sole option of the offeror, must not be made after the expiry of the period, including any extension of the period, during which the securities may be deposited under the bid.
Section 2.12 (1.1), (3.1) and (6) were added by BC Reg 106/2016, effective May 9, 2016.
Section 2.17 (3) BEFORE amended by BC Reg 106/2016, effective May 9, 2016.
(3) If a take-over bid is commenced by means of an advertisement in accordance with paragraph 2.9 (1) (a), a bid, bid circular, notice of change or notice of variation is deemed to have been dated as of the date of first publication of the relevant advertisement.
Section 2.26 (1) BEFORE amended by BC Reg 106/2016, effective May 9, 2016.
(1) If a take-over bid or an issuer bid is made for less than all of the class of securities subject to the bid and a greater number of securities is deposited under the bid than the offeror is bound or willing to acquire under the bid, the offeror must take up and pay for the securities proportionately, disregarding fractions, according to the number of securities deposited by each security holder.
Section 2.26 (4) BEFORE repealed by BC Reg 106/2016, effective May 9, 2016.
(4) For the purposes of subsection (1), any securities acquired in a pre-bid transaction to which subsection 2.4 (1) applies are deemed to have been deposited under the take-over bid by the person who was the seller in the pre-bid transaction.
Section 2.30 (1.1) was added by BC Reg 106/2016, effective May 9, 2016.
Section 2.30 (2) BEFORE amended by BC Reg 106/2016, effective May 9, 2016.
(2) The right of withdrawal under paragraph (1) (b) does not apply if
(a) the securities have been taken up by the offeror before the date of the notice of change or notice of variation, or
(b) one or both of the following circumstances occur:
(i) a variation in the terms of the bid consisting solely of an increase in consideration offered for the securities and an extension of the time for deposit to not later than 10 days after the date of the notice of variation;
(ii) a variation in the terms of the bid consisting solely of the waiver of one or more of the conditions of the bid where the consideration offered for the securities subject to the take-over bid or the issuer bid consists solely of cash.
Section 2.31 BEFORE re-enacted by BC Reg 106/2016, effective May 9, 2016.
Effect of market purchases
2.31 If an offeror purchases securities as permitted by subsection 2.2 (3), those purchased securities must be counted in determining whether a condition as to the minimum number of securities to be deposited under a take-over bid has been fulfilled, but must not reduce the number of securities the offeror is bound to take up under the bid.
Section 2.32 BEFORE amended by BC Reg 106/2016, effective May 9, 2016.
Obligation to take up and pay for deposited securities
2.32 (1) If all the terms and conditions of a take-over bid or an issuer bid have been complied with or waived, the offeror must take up and pay for securities deposited under the bid not later than 10 days after the expiry of the bid or at the time required by subsection (2) or (3), whichever is earliest.
(2) An offeror must pay for any securities taken up under a take-over bid or an issuer bid as soon as possible, and in any event not later than 3 business days after the securities deposited under the bid are taken up.
(3) Securities deposited under a take-over bid or an issuer bid subsequent to the date on which the offeror first takes up securities deposited under the bid must be taken up and paid for by the offeror not later than 10 days after the deposit of the securities.
(4) An offeror may not extend its take-over bid or issuer bid if all the terms and conditions of the bid have been complied with or waived, unless the offeror first takes up all securities deposited under the bid and not withdrawn.
(5) Despite subsections (3) and (4), if a take-over bid or an issuer bid is made for less than all of the class of securities subject to the bid, an offeror is only required to take up, by the times specified in those subsections, the maximum number of securities that the offeror can take up without contravening section 2.23 or section 2.26 at the expiry of the bid.
(6) Despite subsection (4), if the offeror waives any terms or conditions of a take-over bid or an issuer bid and extends the bid in circumstances where the rights of withdrawal conferred by paragraph 2.30 (1) (b) are applicable, the bid must be extended without the offeror first taking up the securities which are subject to the rights of withdrawal.
Section 3.2 (5) and (6) BEFORE amended by BC Reg 140/2023, effective June 9, 2023.
(5) If a document required to be filed under subsection (1) or (2) has already been filed in electronic format under National Instrument 13-101 System for Electronic Data Analysis and Retrieval (SEDAR), the requirement to file the document may be satisfied by filing a letter describing the document and stating the filing date and project number.
(6) A document dated before March 30, 2004 that is required to be filed under subsection (1) or (2) may be filed in paper format if it does not exist in an acceptable electronic format under National Instrument 13-101 System for Electronic Data Analysis and Retrieval (SEDAR).
Part 5 BEFORE re-enacted by 106/2016, effective May 9, 2016.
Part 5 — Reports and Announcements of Acquisitions
Definitions
5.1 In this Part,
(a) "acquiror" means a person who acquires a security, other than by way of a take-over bid or an issuer bid made in compliance with >Part 2, and
(b) "acquiror'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 acquiror or any person acting jointly or in concert with the acquiror.
Early warning
5.2 (1) Every acquiror who acquires beneficial ownership of, or control or direction over, voting or equity securities of any class of a reporting issuer or securities convertible into voting or equity securities of any class of a reporting issuer that, together with the acquiror's securities of that class, would constitute 10% or more of the outstanding securities of that class, must
(a) promptly issue and file a news release containing the information required by section 3.1 of National Instrument 62-103 The Early Warning System and Related Take-Over Bid and Insider Reporting Issues, and
(b) within 2 business days from the day of the acquisition, file a report containing the information required by section 3.1 of National Instrument 62-103 The Early Warning System and Related Take-Over Bid and Insider Reporting Issues.
(2) An acquiror must issue an additional news release and file a report in accordance with subsection (1) each time any of the following events occur:
(a) the acquiror or any person acting jointly or in concert with the acquiror acquires beneficial ownership of, or control or direction over,
(i) an additional 2% or more of the outstanding securities of the class of securities that was the subject of the most recent report required to be filed by the acquiror under this section, or
(ii) securities convertible into an additional 2% or more of the outstanding securities referred to in subparagraph (i);
(b) there is a change in a material fact contained in the report required under subsection (1) or paragraph (a) of this subsection.
(3) During the period beginning on the occurrence of an event in respect of which a report or further report is required to be filed under this section and ending on the expiry of one business day after the date that the report or further report is filed, the acquiror required to file the report or any person acting jointly or in concert with the acquiror must 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.
(4) Subsection (3) does not apply to an acquiror that has beneficial ownership of, or control or direction over, securities that, together with the acquiror's securities of that class, constitute 20% or more of the outstanding securities of that class.
Acquisitions during bid
5.3 (1) If, after a take-over bid or an issuer bid has been made under Part 2 for voting or equity securities of a reporting issuer and before the expiry of the bid, an acquiror acquires beneficial ownership of, or control or direction over, securities of the class subject to the bid which, when added to the acquiror's securities of that class, constitute 5% or more of the outstanding securities of that class, the acquiror must, before the opening of trading on the next business day, issue and file a news release containing the information required by subsection (3).
(2) An acquiror must issue and file an additional news release in accordance with subsection (3) before the opening of trading on the next business day each time the acquiror, or any person acting jointly or in concert with the acquiror, acquires beneficial ownership of, or control or direction over, in aggregate, an additional 2% or more of the outstanding securities of the class of securities that was the subject of the most recent news release required to be filed by the acquiror under this section.
(3) A news release or further news release required under subsection (1) or (2) must set out
(b) the number of securities of the offeree issuer that were beneficially acquired, or over which control or direction was acquired, in the transaction that gave rise to the requirement under subsection (1) or (2) to issue the news release,
(c) the number of securities and the percentage of outstanding securities of the offeree issuer that the acquiror and all persons acting jointly or in concert with the acquiror, have beneficial ownership of, or control or direction over, immediately after the acquisition described in paragraph (b),
(d) the number of securities of the offeree issuer that were beneficially acquired, or over which control or direction was acquired, by the acquiror and all persons acting jointly or in concert with the acquiror, since the commencement of the bid,
(e) the name of the market in which the acquisition described in paragraph (b) took place, and
(f) the purpose of the acquiror and all persons acting jointly or in concert with the acquiror in making the acquisition described in paragraph (b), including any intention of the acquiror and all persons acting jointly or in concert with the acquiror to increase the beneficial ownership of, or control or direction over, any of the securities of the offeree issuer.
Section 5.3 (2) BEFORE amended editorially, effective February 1, 2008.
(2) An acquiror must issue and file an additional news release in accordance with subsection (3) before the opening of trading on the next business day each time the acquirer, or any person acting jointly or in concert with the acquiror, acquires beneficial ownership of, or control or direction over, in aggregate, an additional 2% or more of the outstanding securities of the class of securities that was the subject of the most recent news release required to be filed by the acquiror under this section.
Section 6.2 BEFORE renumbered as 6.2 (1) and (2) was added by BC Reg 106/2016, effective May 9, 2016.
Form 62-104F1, paragraph (a) BEFORE amended by BC Reg 106/2016, effective May 9, 2016.
(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.
Form62-104F1, item 9.1 was added by BC Reg 106/2016, effective May 9, 2016.
Form 62-104F1, Part 1, paragraph (b) BEFORE amended by BC Reg 140/2023, effective June 9, 2023.
(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 19 to be included in your take-over bid circular by reference to another document. Clearly identify the referenced document or any excerpt of it that you incorporate into your take-over bid circular. Unless you have already filed the referenced document, you must file it with your take-over 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 offeree issuer.
Form 62-104F2, Item 19 BEFORE amended BC Reg 383/2010, effective January 1, 2011.
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.
Form 62-104F2, paragraph (a) BEFORE amended by BC Reg 106/2016, effective May 9, 2016.
(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.
Form 62-104F2, Part 1, paragraph (b) BEFORE amended by BC Reg 140/2023, effective June 9, 2023.
(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.
Form 62-104F3, Item 13 BEFORE amended BC Reg 383/2010, effective January 1, 2011.
State the particulars of any information known to any of the directors or officers of the offeree issuer that indicates any material change in the affairs of the offeree issuer since the date of the last published interim or annual financial statement of the offeree issuer.
Form 62-104F3, paragraph (a) BEFORE amended by BC Reg 106/2016, effective May 9, 2016.
(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.
Form 62-104F4, Item 11 BEFORE amended BC Reg 383/2010, effective January 1, 2011.
State the particulars of any information known to the director or officer that indicates any material change in the affairs of the offeree issuer since the date of the last published interim or annual financial statement of the offeree issuer and not generally disclosed or in the opinion of the director or officer not adequately disclosed in the take-over bid circular or directors' circular.
Form 62-104F4, paragraph (a) BEFORE amended by BC Reg 106/2016, effective May 9, 2016.
(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.
Form 104F5, paragraph (a) BEFORE amended by BC Reg 106/2016, effective May 9, 2016.
(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.
Form 62-104F5, under item 3 (2), paragraph (a.1) was added by BC Reg 106/2016, effective May 9, 2016.