Proposed National Instrument: NI - 54-101 - Communication with Beneficial Owners of Securities of a Reporting Issuer
Proposed National Instrument: NI - 54-101 - Communication with Beneficial Owners of Securities of a Reporting Issuer
TABLE OF CONTENTS
PART 1 DEFINITIONS AND INTERPRETATION
1.1 Definitions
1.2 Agents and Nominees
1.3 Holding of Security by Intermediary
1.4 Use of Required Forms
PART 2 REPORTING ISSUERS
2.1 Establishment of Meeting and Record Dates
2.2 Notification of Meeting and Record Dates
2.3 Intermediary Search Request - Request to Depositary
2.4 No Intermediary Search Request if Reporting Issuer has Electronic Access
2.5 Request for Beneficial Ownership Information
2.6 No Depositaries or Intermediaries are Registered Holders
2.7 Sending Proxy-Related Materials to Beneficial Owners
2.8 Other Securityholder Materials
2.9 Direct Sending of Proxy-Related Materials to NOBOs by Reporting Issuer
2.10 No Sending Securityholder Materials Against Instructions
2.11 Disclose How Information Obtained
2.12 Indirect Sending of Securityholder Materials by Reporting Issuer
2.13 Fee for Search
2.14 Fee for Sending Materials Indirectly
2.15 Adjournment or Change in Meeting
2.16 Explanation of Voting Rights
2.17 Request for Voting Instructions
2.18 Tabulation and Execution of Voting Instructions
PART 3 INTERMEDIARIES' OBLIGATIONS CONCERNINGTHE OBTAINING OF BENEFICIAL OWNER INSTRUCTIONS
3.1 Intermediary Information to Depositary
3.2 Instructions from New Clients
3.3 Transitional - Instructions from Existing Clients
3.4 Clients that are Intermediaries
3.5 No Cost Return of Client Instructions
3.6 Application of Instructions to Accounts
3.7 Non-receipt of Instructions
3.8 Client to Bear Cost of Confidentiality
PART 4 INTERMEDIARIES' OTHER OBLIGATIONS
4.1 Request for Beneficial Ownership Information - Response
4.2 Sending of Securityholder Materials to Beneficial Owners by Intermediaries
4.3 No Sending Securityholder Materials Against Instructions
4.4 Request for Voting Instructions
4.5 Tabulation and Execution of Voting Instructions
PART 5 DEPOSITARIES
5.1 Intermediary Master List
5.2 Index of Meeting and Record Dates
5.3 Depositary Response to Intermediary Search Request by Reporting Issuer5.4 Response to Intermediary Search Request - Request by Person or Company Other than Reporting Issuer
5.5 Depositary to send Participant Omnibus Proxy to Reporting Issuer
PART 6 USE BY OTHER PERSONS OR COMPANIES
6.1 Other Persons or Companies - Request for NOBO List
6.2 Provision of NOBO list to another Person or Company6.3 Restrictions on Use
6.4 Other Persons or Companies - Indirect Sending
PART 7 PROHIBITED USE
7.1 Use of NOBO List
7.2 Trafficking in Information Prohibited
PART 8 MISCELLANEOUS
8.1 Default of Party in Communication Chain
8.2 Right to Proxy
8.3 Free Return of Voting Instructions
PART 9 EXCEPTIONS AND EXEMPTIONS
9.1 Audited Annual Financial Statements or Annual Report
9.2 Exemptions
PART 10 EFFECTIVE DATES
10.1 Sending of Proxy-Related Materials
10.2 Sending of Other Securityholder Materials
PART 1 DEFINITIONS AND INTERPRETATION2
1.1 Definitions - In this Instrument
"affairs" means the relationship among a reporting issuer, its affiliates, and their securityholders, partners, directors and officers, other than the business carriedon by the reporting issuer;
"annual report" means an annual report of a reporting issuer that includes the audited annual financial statements of the reporting issuer, and any other documentrequired by Canadian securities legislation3 to be included in or sent with an annual report;4
"beneficial owner" means, for a security held by an intermediary, the person or company that is identified as providing the instructions contained in a clientresponse card or, if no instructions are provided, the person or company that has the authority to provide those instructions;
"beneficial owner determination date" means, for a meeting
(a) the record date for voting, or
(b) in the absence of a record date for voting, the record date for notice;
"business day" means a day other than a Saturday, Sunday or statutory holiday in the local jurisdiction8;
"CDS" means the Canadian Depository for Securities Limited or any successor to its depositary business;
"client" means a person or company on whose behalf an intermediary directly holds a security9;
"client response card" means the form of response card set out in the required form10;
"corporate law" means, for a reporting issuer, any legislation, constating instrument or agreement that governs the affairs of the reporting issuer;
"day" means a calendar day unless express reference is made to a business day;
"depositary" means CDS and any other person or company recognized as a depositary by the securities regulatory authority11 for the purpose of thisInstrument;12
"explanation to clients" means the form of explanation to clients set out in the required form13;
"intermediary" means a person or company that, in connection with its business, holds a security on behalf of another person or company14, other than
(a) a person or company that holds the security only as a custodian, or
(b) a depositary;
"intermediary master list" means a list of intermediaries that a depositary maintains under section 5.1;
"intermediary search request" means the request referred to in section 2.3;
"meeting" means a meeting of securityholders of a reporting issuer;
"NOBO" means a non-objecting beneficial owner;
"NOBO list" means a non-objecting beneficial owner list;
"nominee" means a person or company that acts as a passive title-holder to hold securities and does not carry on business in its own right;
"non-objecting beneficial owner" means a beneficial owner of securities that
(a) has provided instructions to an intermediary holding the securities on behalf of the beneficial owner that the beneficial owner does not object to theintermediary disclosing ownership information about the beneficial owner under this Instrument, or
(b) has not provided instructions to an intermediary holding the securities on behalf of the beneficial owner as to whether the beneficial owner objects to theintermediary disclosing ownership information about the beneficial owner under this Instrument;
"non-objecting beneficial owner list" means, for an intermediary, a list in the required form15 that includes ownership information concerning, NOBOs on whosebehalf the intermediary, or another intermediary holding directly or indirectly through the intermediary, holds securities and information regarding instructionsfrom those NOBOs concerning receipt of securityholder materials;
"notification of meeting and record dates" means the notification referred to in section 2.2;
"objecting beneficial owner" means a beneficial owner of securities that provides instructions to an intermediary holding the securities on behalf of the beneficialowner that the beneficial owner objects to the intermediary disclosing ownership information about the beneficial owner under this Instrument;
"OBO" means an objecting beneficial owner;
"omnibus proxy" means, for a meeting
(a) for a depositary, a proxy set out in the required form16, and
(b) for an intermediary, a proxy set out in the required form17;
"ownership information" means, for a beneficial owner of securities that holds the securities through an intermediary in an account of the intermediary, thebeneficial owner's name, address, holdings of the securities in the account and preferred language of communication;
"participant list" means a list of participants in a depositary;
"participant in a depositary" means a person or company for whom a depositary maintains an account in which entries may be made to effect a transfer or pledgeof a security;
"proximate intermediary" means, for a security
(a) a participant in a depositary holding the security; or
(b) an intermediary18 that is a registered holder of the security;
"proxy-related materials" means securityholder material relating to a meeting that the reporting issuer is required under corporate law or securities legislation19to send to the registered holders of the securities20;
"record date for notice" means, for a meeting, the date established in accordance with corporate law for the determination of the registered holders of securitiesthat are entitled to receive notice of the meeting;
"record date for voting" means, for a meeting, the date, if any, established in accordance with corporate law for the determination of the registered holders ofsecurities that are entitled to vote at the meeting;
"registered holder" means, for a security, the person or company shown as the holder of the security on the books or records of the reporting issuer;
"request for beneficial ownership information" means, for a security, a request for beneficial ownership information in the required form sent by a reporting issuerto a proximate intermediary holding the security21;
"request for voting instructions" means, for a security that carries that right to vote at a meeting
(a) if the request is made by the reporting issuer, a request for written22 voting instructions from a beneficial owner of the security that is a NOBO, set out in therequired form23, and
(b) if the request is made by an intermediary, a request for written voting instructions from the beneficial owner of the security on whose behalf the intermediaryholds the security, set out in the required form24;
"routine business" means, for a meeting
(a) consideration of the minutes of an earlier meeting,
(b) consideration of the financial statements of the reporting issuer or an auditor's report on the financial statements of the reporting issuer,
(c) election of directors of the reporting issuer, or
(d) appointment of the auditor of the reporting issuer;
"security" means a security of a reporting issuer;
"securityholder" means, for a security, the registered holder of the security, the beneficial owner of the security, or both, depending upon the context;
"securityholder materials" means, for a reporting issuer, materials that are sent to registered holders of securities of the reporting issuer; and
"send" means to deliver, send or forward or arrange to deliver, send or forward
(a) by prepaid mail or courier, or
(b) with the consent of the recipient, by electronic means or other form of delivery.
1.2 Agents and Nominees
(1) A reference in this Instrument to a depositary, intermediary or reporting issuer includes a nominee or agent of the depositary, intermediary or reporting issuer.
(2) A person or company that uses an agent remains fully responsible for its compliance with the requirements of this Instrument.
1.3 Holding of Security by Intermediary - In this Instrument, an intermediary is considered to hold a security if the security is held
(a) by the intermediary directly;
(b) by the intermediary indirectly through another person or company on behalf of the intermediary.
1.4 Use of Required Forms
(1) A person or company required to send or use a required form under this Instrument may substitute another form or document or combine the required formwith another form or document, so long as the other form or document requests or contains the same information as the required form.
(2) Subsection (1) does not apply to the required form of a NOBO list.
PART 2 REPORTING ISSUERS
2.1 Establishment of Meeting and Record Dates - A reporting issuer that is required to give notice of a meeting to the registered holders of any of its securitiesshall fix
(a) a date for the meeting;
(b) a record date for notice of the meeting, which shall be no fewer than 35 and no more than 60 days before the meeting date; and
(c) if required or permitted by corporate law, a record date for voting at the meeting.
2.2 Notification of Meeting and Record Dates
(1) At least eight business days25 before the record date for notice of a meeting, the reporting issuer shall send a notification of meeting and record dates to
(a) all depositaries;
(b) the securities regulatory authority in each jurisdiction26 in which the reporting issuer is a reporting issuer; and
(c) each stock exchange in Canada on which securities of the reporting issuer are listed.
(2) The notification of meeting and record dates referred to in subsection (1) shall specify
(a) the name of the reporting issuer;
(b) the date fixed for the meeting;
(c) the record date for notice;
(d) the record date for voting, if any;
(e) the classes or series of securities that carry the right to receive notice of the meeting;
(f) the classes or series of securities that carry the right to vote at the meeting;
(g) whether only routine business is to be conducted at the meeting; and
(h) the beneficial owner determination date.
2.3 Intermediary Search Request - Request to Depositary
(1) At the same time as a reporting issuer sends a notification of meeting and record dates for a meeting to a depositary, the reporting issuer shall request thedepositary to provide to the reporting issuer
(a) a list of all intermediaries and their nominees shown on the intermediary master list;
(b) subject to section 2.4, a list setting out the names, addresses and respective holdings of participants in the depositary of each class or series of securities thatentitle the holder to receive the securityholder materials relating to the meeting; and
(c) an omnibus proxy appointing, as the depositary's proxy, each participant on whose behalf, and to the extent that, the depositary holds securities that carry theright to vote at the meeting.
(2) In addition to making the request referred to in subsection (1) in connection with a meeting, a reporting issuer may request, at any time, a depositary toprovide the information referred to in either or both of paragraph (1)(a) and paragraph (1)(b) for any class or series of securities of the reporting issuer specifiedby the reporting issuer in the request.
2.4 No Intermediary Search Request if Reporting Issuer has Electronic Access - A reporting issuer shall not request from the depositary information referred toin paragraph 2.3(1)(a) or (b) if the information is included on a file maintained by the depositary in electronic format and the reporting issuer has access to thefile.
2.5 Request for Beneficial Ownership Information
(1) At least five business days27 before the record date for notice of a meeting, the reporting issuer, using information provided by depositaries under section 5.3or referred to in section 2.4, shall complete Part 1 of a request for beneficial ownership information28 and send it to all proximate intermediaries29 of thesecurities that carry the right to receive notice of the meeting or to vote at the meeting.
(2) In addition to making the request referred to in subsection (1) in connection with a meeting, a reporting issuer may make, at any time, a request for beneficialownership information in the manner referred to in subsection (1).
(3) A request for beneficial ownership information made under either subsection (1) or (2) that includes a request for a NOBO list shall include a writtenundertaking in the required form30 from the reporting issuer to the proximate intermediary.
2.6 No Depositaries or Intermediaries are Registered Holders - A reporting issuer is not subject to section 2.3, 2.5 or 2.7 if none of the registered holders of itssecurities are depositaries or intermediaries identified on the intermediary master register.
2.7 Sending Proxy-Related Materials to Beneficial Owners - A reporting issuer that is required by Canadian securities legislation to send proxy-related materialsto the registered holders of any class or series of its securities shall send, subject to sections 2.10 and 2.17, the proxy-related materials to each beneficial ownerof the securities, by either sending
(a) directly to NOBOs, and indirectly under section 2.12 to OBOs; or
(b) indirectly under section 2.12 to all beneficial owners.
2.8 Other Securityholder Materials - A reporting issuer may, but is not required to, send securityholder materials other than proxy- related materials to beneficialowners of its securities, by either sending
(a) directly to NOBOs, and indirectly under section 2.12 to OBOs; or
(b) indirectly under section 2.12 to all beneficial owners.
2.9 Direct Sending of Proxy-Related Materials to NOBOs by Reporting Issuer - A reporting issuer that included a request for a NOBO list in a request forbeneficial ownership information sent in connection with a meeting shall send the proxy-related materials for the meeting, subject to section 2.10, directly to theNOBOs on the NOBO list received in response to the request at least 21 days before the date fixed for the meeting.
2.10 No Sending Securityholder Materials Against Instructions - No reporting issuer that uses a NOBO list to send securityholder materials directly to NOBOson the NOBO list shall send the securityholder materials to NOBOs that are identified on the NOBO list as having chosen not to receive the securityholdermaterials.31
2.11 Disclose How Information Obtained - A reporting issuer that uses a NOBO list to send securityholder materials directly to NOBOs on the NOBO list shallinclude in the materials the following statement:
"These securityholder materials are being sent to both registered and non-registered beneficial owners of the securities. The names and addresses of beneficialowners of the securities that are not registered holders, and disclosure of their holdings of securities, have been obtained from intermediaries holding on behalf ofthe beneficial owners under applicable securities regulatory requirements."
2.12 Indirect Sending of Securityholder Materials by Reporting Issuer
(1) A reporting issuer sending securityholder materials indirectly to beneficial owners shall deliver to each proximate intermediary that responded to theapplicable request for beneficial ownership information the number of sets of those materials specified by that proximate intermediary
(a) at least three business days before the twenty-first day before the date fixed for the meeting, in the case of proxy- related materials; or
(b) on the day specified in the request for beneficial ownership information, in the case of securityholder materials that are not proxy-related materials.
(2) A reporting issuer may satisfy its obligation to send securityholder materials to an intermediary under this section by sending the securityholder materials to aperson or company designated by the intermediary as a person or company that will attend to the sending of the materials to appropriate beneficial owners withinthe time periods required by this section.32
(3) If a proximate intermediary in a foreign jurisdiction33 holds securities on behalf of NOBOs and the law in that foreign jurisdiction prohibits the reportingissuer from sending securityholder materials directly to the NOBOs, the reporting issuer shall send to the proximate intermediary the number of sets of thesecurityholder materials requested by the proximate intermediary.
2.13 Fee for Search - A reporting issuer shall pay a search fee in a reasonable amount to a proximate intermediary that responds to a request for beneficialownership information34 made by the reporting issuer.35
2.14 Fee for Sending Materials Indirectly - A reporting issuer that sends securityholder materials indirectly to beneficial owners through a proximate intermediaryshall pay to the proximate intermediary
(a) a fee in a reasonable amount; and
(b) the actual cost of any postage incurred by the proximate intermediary in sending the securityholder material to the beneficial owners in accordance with themailing instructions specified by the reporting issuer in the request for beneficial ownership information36, upon receipt by the reporting issuer of a certificate ofmailing or other satisfactory proof of sending.37
2.15 Adjournment or Change in Meeting - A reporting issuer that is required to give a notice of adjournment or other change for a meeting to registered holdersof its securities shall immediately send a notice of the adjournment or change, including any change in the beneficial owner determination date, to
(a) each of the persons or companies referred to in subsection 2.2(1) and to the proximate intermediaries for the securities; and
(b) the persons and companies to whom the reporting issuer sent the original notice of meeting under this Instrument.
2.16 Explanation of Voting Rights - Proxy-related materials sent to a beneficial owner of securities shall explain, in plain language, how the beneficial owner mayexercise voting rights attached to the securities.
2.17 Request for Voting Instructions - A reporting issuer that sends proxy-related materials that solicit votes or voting instructions directly to a NOBO shallprepare and include with the proxy-related materials, in substitution for the proxy otherwise contained in the proxy-related materials, a request for votinginstructions38 for the matters to which the proxy-related materials relate for return to the reporting issuer.
2.18 Tabulation and Execution of Voting Instructions - A reporting issuer shall
(a) tabulate the voting instructions received from NOBOs in response to a request for voting instructions referred to in section 2.17; and
(b) through the actions of management of the reporting issuer, execute the voting instructions as instructed by the NOBOs, to the extent that the management ofthe reporting issuer holds the corresponding proxy.
PART 3 INTERMEDIARIES' OBLIGATIONS CONCERNING THE OBTAINING OF BENEFICIAL OWNER INSTRUCTIONS
3.1 Intermediary Information to Depositary
(1) An intermediary shall send, by the later of the date the intermediary commences business and the date this Instrument comes into force, notice to eachdepositary of
(a) the intermediary's name and address;
(b) the name and address of each nominee of the intermediary in whose name the intermediary holds securities on behalf of beneficial owners; and
(c) the name, address, telephone number, fax number and any electronic mail address of a representative of the intermediary.
(2) An intermediary shall send notice to each depositary of a change in the information contained in a notice given under this section within five business daysafter the change.
3.2 Instructions from New Clients - Subject to sections 3.3 and 3.4, an intermediary that opens an account for a client shall, before the intermediary holdssecurities on behalf of the client in the account, send to the client an explanation to clients and a client response card39 and obtain instructions from the client onthe matters to which the client response card pertains.40
3.3 Transitional - Instructions from Existing Clients - An intermediary that holds securities on behalf of a client in an account that was opened before thisInstrument comes into force shall send to the client an explanation to clients and client response card and request the client to complete and return to theintermediary the client response card.41
3.4 Clients that are Intermediaries - A client that is itself an intermediary is not required to return any client response card received by it in connection withsecurities of which it is an intermediary.
3.5 No Cost Return of Client Instructions - An intermediary shall make all necessary arrangements to permit the instructions requested in a client response cardto be returned to the intermediary at no cost to the client.
3.6 Application of Instructions to Accounts - The instructions given to an intermediary by a beneficial owner under this Part apply in respect of all securities heldby the beneficial owner in the account of the intermediary identified in the client response card.
3.7 Non-receipt of Instructions
(1) A beneficial owner that does not provide instructions to the intermediary of which it is a client concerning disclosure of ownership information concerning thebeneficial owner is considered to have consented to the disclosure of ownership information under this Instrument.
(2) A beneficial owner that does not provide instructions to the intermediary of which it is a client concerning receipt of securityholder materials is considered tohave chosen, with respect to the securities in the beneficial owner's account with the intermediary, to receive all securityholder materials sent to beneficial holdersof securities under this Instrument other than
(a) proxy-related materials for meetings at which only routine business is to be conducted; and
(b) securityholder materials not required under securities legislation or corporate law to be sent to registered holders of securities.
3.8 Client to Bear Cost of Confidentiality - Except to the extent that a reporting issuer or other person or company is required under this Instrument to pay thecosts, including postage, of sending securityholder materials, an intermediary that sends securityholder materials to an OBO in accordance with this Instrument isentitled to recover from the OBO the reasonable costs, including postage, incurred by the intermediary in sending the securityholder materials to the OBO.42
PART 4 INTERMEDIARIES' OTHER OBLIGATIONS
4.1 Request for Beneficial Ownership Information - Response
(1) A proximate intermediary that receives a request for beneficial ownership information43 from a reporting issuer that pertains to the sending of securityholdermaterials but that does not pertain to a meeting shall, within three business days of receiving the request, provide to the reporting issuer, the information referredto in Part 2 of the request for beneficial ownership information.
(2) A proximate intermediary that receives a request for beneficial ownership information from a reporting issuer that pertains to a meeting shall provide to thereporting issuer
(a) within three business days of receiving the request, the information referred to in Part 2 of the request for beneficial ownership information other than Item 6;and
(b) if the request contained a request for a NOBO list, within three business days after the record date for notice of the meeting specified in the request
(i) in electronic format, the information referred to in Item 6 of Part 2 of the request for beneficial ownership information as at the beneficial owner determinationdate of the meeting, and
(ii) an omnibus proxy44 that appoints management of the reporting issuer as the proximate intermediary's proxy holder for the securities held, as of the beneficialownership determination date, on behalf of each NOBO identified on the NOBO list, in respect of which the proximate intermediary is either the registeredholder or proxy holder.
(3) A proximate intermediary that receives a request for beneficial ownership information from a reporting issuer that contains a request for a NOBO list butdoes not pertain to a meeting shall, within three business days of receiving the request, provide to the reporting issuer the information referred to in Part 2 of therequest for beneficial ownership information.
(4) The response of a proximate intermediary to a reporting issuer given under this section shall be a consolidated response relating to all beneficial owners ofeach class and series of securities specified in the request for beneficial ownership information that hold, directly or indirectly, through the proximateintermediary.
(5) An intermediary holding securities, directly or indirectly, through a proximate intermediary, shall take all necessary steps to ensure that the proximateintermediary is provided with the information required to enable it to satisfy its obligations under this section by the times required by this section.45
(6) An intermediary is not required under this Instrument to provide ownership information concerning an OBO to any person or company.
4.2 Sending of Securityholder Materials to Beneficial Owners by Intermediaries
(1) A proximate intermediary that receives securityholder materials from a reporting issuer for sending to beneficial holders shall send, subject to section 4.3,within three business days of receipt
(a) one set of the materials to each OBO that is a client of the proximate intermediary;
(b) one set of the materials to each NOBO of the relevant securities if the reporting issuer stated in the applicable request for beneficial ownership information, orotherwise advised the proximate intermediary, that the reporting issuer will send the materials to NOBOs indirectly through intermediaries; and
(c) appropriate quantities of materials to all intermediaries holding securities of the relevant class or series that are clients of the proximate intermediary, forforwarding by them under subsection (2).
(2) An intermediary that receives securityholder materials from another intermediary under this section shall send, within one business day of receipt
(a) one set of the materials to each OBO that is a client of the intermediary; and
(b) appropriate quantities of the materials to all intermediaries holding securities of the relevant class or series that are clients of the intermediary for forwardingby them under this subsection.
(3) The persons or companies to whom securityholder materials are sent under this section shall be determined
(a) as at the beneficial owner determination date, in the case of proxy-related materials; and
(b) as at the date specified in the relevant request for beneficial ownership information, in the case of securityholder materials not sent in connection with ameeting.
(4) An intermediary may satisfy its obligation to send securityholder materials to an intermediary under this section by sending the securityholder materials to aperson or company designated by the intermediary as a person or company that will attend to the sending of the materials to appropriate beneficial owners withinthe time periods required by this section.
4.3 No Sending Securityholder Materials Against Instructions - Except as required by securities legislation, an intermediary that receives securityholder materialsthat are to be sent to a beneficial owner of securities shall not send the securityholder materials to the beneficial owner if the beneficial owner has chosen inaccordance with this Instrument not to receive the securityholder materials.
4.4 Request for Voting Instructions - An intermediary that receives proxy-related materials that solicit votes or voting instructions from securityholders, forsending by the intermediary to beneficial owners of the securities, shall prepare and include with the proxy- related materials that it sends to the beneficialowners, in substitution for the proxy otherwise contained in the proxy-related materials, a request for voting instructions for the matters to which theproxy-related materials relate for return to the intermediary.
4.5 Tabulation and Execution of Voting Instructions - An intermediary shall
(1) tabulate voting instructions received from beneficial owners of securities in response to a request for voting instructions sent by the intermediary undersection 4.4; and
(2) for each beneficial owner, execute the voting instructions received from the beneficial owner to the extent that the intermediary holds a proxy directly givenby the registered holder, or indirectly given by the registered holder through one or more other proxy holders, in respect of the securities held by the intermediaryfor the beneficial owner.
PART 5 DEPOSITARIES
5.1 Intermediary Master List - A depositary shall maintain a current register of intermediaries containing the information received by the depositary fromintermediaries under section 3.1 and shall provide a copy of that register to any new depositary recognized under this Instrument.
5.2 Index of Meeting and Record Dates
(1) A depositary shall maintain an index of meetings containing the information that it receives from reporting issuers under section 2.2.
(2) A depositary shall arrange for the timely publication of the information it receives from a reporting issuer under section 2.2 in the national financial press andmay charge the reporting issuer a publication fee in a reasonable amount for the publication.46
5.3 Depositary Response to Intermediary Search Request by Reporting Issuer - Within two business days of its receipt of an intermediary search request from areporting issuer, a depositary shall send to the reporting issuer a report that
(a) specifies the total number of securities of the reporting issuer of the series or class specified in the request that are registered in the name of the depositary orin the names of nominees of the depositary;
(b) specifies the total number of securities of the reporting issuer of the series or class specified in the request that are held on behalf of the depositary by anotherperson or company and the identity of that other person or company;
(c) lists the names, addresses and respective holdings of participants in the depositary of securities of the series or class specified in the request, on whose behalfthe depositary holds securities; and
(d) contains a copy of the intermediary master list.
5.4 Response to Intermediary Search Request - Request by Person or Company Other than Reporting Issuer
(1) A person or company other than a reporting issuer may request from a depositary, by written application to the depositary, the information relating tosecurities of a series or class of a reporting issuer referred to in paragraphs 5.3(a), (b) or (c) or the information referred to in paragraph 5.3(d).
(2) The application referred to in subsection (1) shall include
(a) the name and address of the applicant; and
(b) the name and address for service of the applicant, if the applicant is not an individual.
(3) A person or company that sends an application to a depositary under subsection (1) shall send concurrently a copy of the application to the reporting issuer.
(4) The depositary shall furnish the information referred to in subsection (1) to the applicant, and provide a copy to the reporting issuer, within two business daysof the depositary's receipt of the application.
5.5 Depositary to send Participant Omnibus Proxy to Reporting Issuer
(1) Within two business days after the beneficial owner determination date specified in the notice of meeting and record dates sent by a reporting issuer to adepositary, the depositary shall send to the reporting issuer an omnibus proxy47, appointing each participant, on whose behalf, and to the extent that, thedepositary holds, as of the beneficial owner determination date, securities that entitle the holder to vote at the meeting, as the depositary's proxy holder in respectof the securities held by the depositary on behalf of the participants.
(2) The depositary shall provide to each of the participants named in an omnibus proxy referred to in subsection (1), at the same time as the depositary sends theomnibus proxy to the reporting issuer, written confirmation of the proxy given by that depositary.
PART 6 USE BY OTHER PERSONS OR COMPANIES
6.1 Other Persons or Companies - Request for NOBO List
(1) Any person or company may request a NOBO list from a reporting issuer in accordance with subsection (2) and section 6.2.48.
(2) A request for a NOBO list under subsection (1) shall be accompanied by payment of a search fee in a reasonable amount and an undertaking in the requiredform49 from the person or company making the request.
6.2 Provision of NOBO list to another Person or Company - Upon receipt by a reporting issuer of a request by a person or company for a NOBO list undersection 6.1, the reporting issuer shall
(a) within three business days of its receipt of the request, make a request for beneficial ownership information, in the manner provided in section 2.5; and
(b) provide the person or company that requested the NOBO list with a copy of the responses received under section 4.1 within three business days of thereporting issuer's receipt of the response.
6.3 Restrictions on Use - A person or company that has obtained a NOBO list under this Part is subject to sections 2.10 and 2.11 on the same basis as a reportingissuer.
6.4 Other Persons or Companies - Indirect Sending - A person or company may send securityholder materials to the beneficial owners of securities, indirectly,through the proximate intermediaries of the securities, in accordance with sections 2.12 and 2.14 on the same basis as a reporting issuer.
PART 7 PROHIBITED USE
7.1 Use of NOBO List - No reporting issuer or any other person or company shall use a NOBO list relating to the reporting issuer and obtained under thisInstrument, except in connection with
(a) sending securityholder materials to NOBOs in accordance with this Instrument;
(b) an effort to influence the voting of securityholders of the reporting issuer;
(c) an offer to acquire securities of the reporting issuer; or
(d) any other matter relating to the affairs of the reporting issuer.
7.2 Trafficking in Information Prohibited - Except as permitted by this Instrument, no reporting issuer or any other person or company shall offer for sale or sellor purchase or otherwise traffic in any information obtained under this Instrument.
PART 8 MISCELLANEOUS
8.1 Default of Party in Communication Chain - If a person or company fails to send information or materials in accordance with the requirements of thisInstrument, the person or company whose response or action is dependent upon receiving the information or materials shall use reasonable efforts to obtain theinformation or materials from the other person or company, and in so doing is exempt from the timing provisions of this Instrument in connection with theresponse or action to the extent that the delay arose from the failure of the other person or company.
8.2 Right to Proxy - Nothing in this Instrument shall be interpreted to restrict in any way
(a) a beneficial owner's right to demand and to receive from an intermediary a proxy enabling the beneficial owner to vote the securities directly at a meeting; or
(b) the right of a depositary or intermediary to vary an omnibus proxy in respect of securities to reflect a change in the registered or beneficial ownership of thesecurities.50
8.3 Free Return of Voting Instructions - A person or company requesting voting instructions from a beneficial owner under this Instrument shall makearrangements to ensure that there shall be no cost to the beneficial owner in providing the instructions.
PART 9 EXCEPTIONS AND EXEMPTIONS
9.1 Audited Annual Financial Statements or Annual Report - The time periods applicable to sending of proxy-related materials prescribed in this Instrument donot apply to the sending of the annual financial statements or annual report if the statements or report are sent by the reporting issuer to beneficial owners of thesecurities within the time limitations established in applicable corporate law and securities legislation for sending to registered holders of the securities.
9.2 Exemptions
(1) The regulator51 or the securities regulatory authority may grant an exemption from this Instrument, in whole or in part, subject to such conditions orrestrictions as may be imposed in the exemption.
(2) Despite subsection (1), in Ontario only the regulator may grant such an exemption.
PART 10 EFFECTIVE DATES
10.1 Sending of Proxy-Related Materials - This Instrument applies to the sending of proxy-related materials for a meeting
(a) held on or after January 1, 1999 and before March 1, 1999 unless those materials are sent in accordance with National Policy Statement No. 41 as if thatpolicy statement were still in force; and
(b) held on or after March 1, 1999.
10.2 Sending of Other Securityholder Materials - This Instrument applies to the sending of securityholder materials other than proxy- related materials on or afterJanuary 1, 1999.