The Bank of Nova Scotia and BMO Nesbitt Burns – s. 6.1 of NI 62-104 Take-Over Bids and Issuer Bids
Headnote
Section 6.1 of NI 62-104 – Issuer bid – relief from the requirements applicable to issuer bids in Part 2 of NI 62-104 – issuer proposes to purchase, pursuant to a repurchase program and at a discounted purchase price, up to a specified number of its common shares under its normal course issuer bid from a third party – the third party will abide by the requirements governing normal course issuer bids as though it was the issuer, subject to certain modifications, including that the third party will not make any purchases under the program pursuant to a pre-arranged trade – common shares delivered to the issuer for cancellation will be common shares from the third party's existing inventory – due to the discounted purchase price, the common shares cannot be acquired through the TSX trading system – but for the fact that the common shares cannot be acquired through the TSX trading system, the Issuer could otherwise acquire such shares in accordance with TSX rules and in reliance upon the issuer bid exemption available under section 4.8 of NI 62-104 – the third party will purchase common shares under the program on the same basis as if the issuer had conducted the bid in reliance on the normal course issuer bid exemptions set out in securities legislation – no adverse economic impact on, or prejudice to the issuer or its security holders – acquisition of securities exempt from the requirements applicable to issuer bids in Part 2 of NI 62-104, subject to conditions, including that the number of common shares transferred by the third party from its existing inventory to the issuer for purchase under the program be equivalent to the number of common shares that the third party has purchased, or had purchased on its behalf, on Canadian markets.
Statutes Cited
National Instrument 62-104 Take-Over Bids and Issuer Bids, Part 2 and s. 6.1.
IN THE MATTER OF
THE SECURITIES ACT,
R.S.O. 1990, c.S.5, AS AMENDED
AND
IN THE MATTER OF
THE BANK OF NOVA SCOTIA AND
BMO NESBITT BURNS INC.
ORDER
(Section 6.1 of National Instrument 62-104)
UPON the application (the “Application”) of The Bank of Nova Scotia (the “Issuer”) and BMO Nesbitt Burns Inc. (“BMO Nesbitt”, and together with the Issuer, the “Filers”) to the Ontario Securities Commission (the “Commission”) for an order pursuant to section 6.1 of National Instrument 62-104 Take-Over Bids and Issuer Bids (“NI 62-104”) exempting the Issuer from the requirements applicable to issuer bids in Part 2 of NI 62-104 (the “Issuer Bid Requirements”) in respect of the proposed purchases by the Issuer of up to 5,500,000 (the “Program Maximum”) of its common shares (the “Common Shares”) from BMO Nesbitt pursuant to a share repurchase program (the “Program”);
AND UPON considering the Application and the recommendation of staff of the Commission;
AND UPON the Issuer having represented to the Commission the matters set out in paragraphs 1 to 4, inclusive, 9 to 27, inclusive, 31, 33, 35 to 37, inclusive, 39, and 40;
AND UPON BMO Nesbitt and Bank of Montreal (“BMO”, and together with BMO Nesbitt, the “BMO Entities”) having represented to the Commission the matters set out in paragraphs 5 to 8, inclusive, 18 to 20, inclusive, 22, 26, 28 to 32, inclusive, 34, 38, 40, and 41 as they relate to the BMO Entities;
1. The Issuer is a Schedule I bank under, and is governed by, the Bank Act (Canada).
2. The Issuer’s registered and head office is located at 1709 Hollis Street, Halifax, Nova Scotia, B3J 1W1 and its executive offices are at 44 King Street West, Toronto, Ontario, M5H 1H1.
3. The Issuer is a reporting issuer in each of the provinces and territories of Canada (the “Jurisdictions”) and the Common Shares are listed for trading on the Toronto Stock Exchange (the “TSX”) and the New York Stock Exchange under the symbol “BNS”. The Issuer is not in default of any requirement of the securities legislation in the jurisdictions in which it is a reporting issuer.
4. The authorized share capital of the Issuer consists of an unlimited number of Common Shares and an unlimited number of preferred shares, issuable in series. As of February 28, 2017: (a) 1,209,265,058 Common Shares; (b) 9,200,000 non-cumulative preferred shares series 17; (c) 7,497,663 non-cumulative preferred shares series 18; (d) 6,302,337 non-cumulative preferred shares series 19; (e) 8,039,268 non-cumulative preferred shares series 20; (f) 5,960,732 non-cumulative preferred shares series 21; (g) 9,376,337 non-cumulative preferred shares series 22; (h) 2,623,056 non-cumulative preferred shares series 23; (i) 6,142,738 non-cumulative preferred shares series 30; (j) 4,457,262 non-cumulative preferred shares series 31; (k) 11,161,422 non-cumulative preferred shares series 32; (l) 5,184,345 non-cumulative preferred shares series 33; (m) 14,000,000 non-cumulative preferred shares series 34; (n) 20,000,000 non-cumulative preferred shares series 36; and (o) 20,000,000 non-cumulative preferred shares series 38, were issued and outstanding. To the best of the Issuer’s knowledge, as of February 28, 2017, the “public float” for the Common Shares represented approximately 99.948% of all the issued and outstanding Common Shares for the purposes of the TSX Rules (as defined below).
5. BMO Nesbitt is registered as an investment dealer under the securities legislation of the Jurisdictions. It is also registered as: (a) a futures commission merchant under the Commodity Futures Act (Ontario); (b) a derivatives dealer under the Derivatives Act (Québec); and (c) a dealer (futures commission merchant) under The Commodity Futures Act (Manitoba). BMO Nesbitt is a member of the Investment Industry Regulatory Organization of Canada (“IIROC”) and the Canadian Investor Protection Fund, a participating organization or member of the TSX, TSX Venture Exchange and Canadian Securities Exchange, and an approved participant of the Bourse de Montréal. The head office of BMO Nesbitt is located in Toronto, Ontario.
6. BMO Nesbitt does not own, directly or indirectly, more than 5% of the issued and outstanding Common Shares.
7. BMO Nesbitt is the beneficial owner of at least 5,500,000 Common Shares, none of which were acquired by, or on behalf of, BMO Nesbitt in anticipation or contemplation of resale to the Issuer (such Common Shares over which BMO Nesbitt has beneficial ownership, the “Inventory Shares”). All of the Inventory Shares are held by BMO Nesbitt in the Province of Ontario. No Common Shares were purchased by, or on behalf of, BMO Nesbitt on or after February 6, 2017, being the date that was 30 days prior to the date of the Application, in anticipation or contemplation of a sale of Common Shares by BMO Nesbitt to the Issuer.
8. BMO Nesbitt is at arm’s length to the Issuer and is not an “insider” of the Issuer, an “associate” of an “insider” of the Issuer, or an “associate” or “affiliate” of the Issuer, as such terms are defined in the Securities Act (Ontario) (the “Act”). BMO Nesbitt is an “accredited investor” within the meaning of National Instrument 45-106 Prospectus Exemptions.
9. The Issuer announced on May 31, 2016 the renewal of its normal course issuer bid (the “NCIB”) to purchase for cancellation, during the 12-month period beginning on June 2, 2016 and ending on June 1, 2017, up to 12,000,000 Common Shares, representing approximately 1% of the issued and outstanding Common Shares as of the date specified in the Notice of Intention to Make a Normal Course Issuer Bid (the “Notice”), which was accepted by the TSX. An amendment to the Notice to provide for the ability of the Issuer to purchase Common Shares under the NCIB pursuant to private agreements under issuer bid exemption orders issued by securities regulatory authorities was accepted by the TSX on January 4, 2017. A further amendment to the Notice to provide for the ability of the Issuer to purchase Common Shares under the NCIB pursuant to share repurchase programs under issuer bid exemption orders issued by securities regulatory authorities (such as the Program) was accepted by the TSX on March 17, 2017. The Notice, as amended, specifies that purchases made under the NCIB are to be conducted through the facilities of the TSX as well as other designated exchanges and published markets in Canada, or by such other means as may be permitted by the TSX in accordance with sections 628 to 629.3 of Part VI of the TSX Company Manual (the “TSX Rules”) or a securities regulatory authority.
10. The NCIB is being conducted in reliance upon the exemption from the Issuer Bid Requirements set out in subsection 4.8(2) of NI 62-104 (the “Designated Exchange Exemption”).
11. The NCIB is also being conducted in the normal course on published markets other than the TSX (such other published markets, collectively, the “Other Published Markets”) in reliance upon the exemption from the Issuer Bid Requirements set out in subsection 4.8(3) of NI 62-104 (the “Other Published Markets Exemption”, and together with the Designated Exchange Exemption, the “Exemptions”).
12. Pursuant to the TSX Rules, the Issuer has appointed Scotia Capital Inc. as its designated broker in respect of the NCIB (the “Responsible Broker”).
13. Effective May 31, 2016, the Issuer implemented an automatic share purchase plan (“ASPP”) to permit the Issuer to make purchases under the NCIB at such times when the Issuer would not be permitted to trade in its securities, including internal blackout periods (each such time, a “Blackout Period”). The ASPP was approved by the TSX and is in compliance with the TSX Rules and applicable securities laws. The ASPP will not be in effect during the Program Term (as defined below). The maximum number of Common Shares that the Issuer is permitted to repurchase under the NCIB will be reduced by the number of purchases under the ASPP, if any.
14. The Issuer does not and will not have any arrangements pursuant to which it is, or will be, required to acquire and deliver Common Shares during the Program Term.
15. To the best of the Issuer’s knowledge, the “public float” (calculated in accordance with the TSX Rules) for the Common Shares as at February 28, 2017 consisted of 1,208,734,050 Common Shares. The Common Shares are “highly-liquid securities” as that term is defined in section 1.1 of OSC Rule 48-501 Trading during Distributions, Formal Bids and Share Exchange Transactions (“OSC Rule 48-501”) and section 1.1 of the Universal Market Integrity Rules (“UMIR”).
16. The Commission granted the Issuer an order on January 6, 2017 pursuant to section 6.1 of NI 62-104 exempting the Issuer from the Issuer Bid Requirements in connection with the proposed purchases by the Issuer of up to 3,000,000 Common Shares from The Toronto-Dominion Bank (the “Prior Order”). The Issuer completed the purchase of 3,000,000 Common Shares under the Prior Order on March 6, 2017.
17. As at March 8, 2017, the Issuer has purchased a total of 4,500,000 Common Shares pursuant to the NCIB, including 3,000,000 Common Shares under the Prior Order.
18. The Filers wish to participate in the Program during, and as part of, the NCIB to enable the Issuer to purchase from BMO Nesbitt, and for BMO Nesbitt to sell to the Issuer, that number of Common Shares equal to the Program Maximum.
19. Pursuant to the terms of the Program Agreement (as defined below), BMO Nesbitt has been retained by BMO to acquire Common Shares through the facilities of the TSX and on Other Published Markets in Canada (each, a “Canadian Other Published Market” and collectively with the TSX, the “Canadian Markets”) under the Program. No Common Shares will be acquired under the Program on any Other Published Markets other than Canadian Other Published Markets.
20. The Program will be governed by, and conducted in accordance with, the terms and conditions of a Share Repurchase Program Agreement (the “Program Agreement”) that will be entered into among the Filers and BMO prior to the commencement of the Program and a copy of which will be delivered by the Filers to the Commission promptly thereafter.
21. The TSX has: (a) been advised of the Issuer's intention to enter into the Program; (b) been provided with a copy of the Program Agreement and a draft of the Press Release (as defined below); and (c) confirmed that it has no objection to the Issuer conducting the Program as part of the NCIB.
22. The Program will begin at least two clear Trading Days (as defined below) after the issuance of the Press Release (as defined below) and will terminate on the earlier of April 10, 2017 and the date on which the Issuer will have purchased the Program Maximum under the Program (the “Program Term”). Neither the Issuer nor any of the BMO Entities may unilaterally terminate the Program Agreement during the Program Term, except in the case of an event of default by a party thereunder, or a change in law or announced change in law that would have adverse consequences to the transactions contemplated thereunder or to the Issuer or the BMO Entities.
23. The Issuer will issue a press release that has been pre-cleared by the TSX that describes the material features of the Program and discloses the Issuer’s intention to participate in the Program during the NCIB (the “Press Release”).
24. The Program Maximum will be less than the number of Common Shares remaining that the Issuer is entitled to acquire under the NCIB, calculated as at the date of the Program Agreement.
25. The Program Term will not include a Blackout Period. In the event that a Blackout Period should arise during the Program Term, purchasing under the Program would immediately cease and would not be recommenced until following the expiration of the Blackout Period.
26. During the Program Term, BMO Nesbitt will purchase Common Shares on the applicable Trading Day in accordance with instructions received by BMO Nesbitt from the Issuer prior to the opening of trading on such day, which instructions will be the same instructions that the Issuer would have given to the Responsible Broker, as its designated broker in respect of the NCIB, if the Issuer was conducting the NCIB in reliance on the Exemptions.
27. The Issuer will not give purchase instructions in respect of the Program to BMO Nesbitt at any time that the Issuer is aware of Undisclosed Information (as defined below).
28. All Common Shares acquired for the purposes of the Program by BMO Nesbitt on a day during the Program Term on which Canadian Markets are open for trading (each, a “Trading Day”) must be acquired on Canadian Markets in accordance with the TSX Rules and any by-laws, rules, regulations or policies of any Canadian Markets upon which purchases are carried out (collectively, the “NCIB Rules”) that would be applicable to the Issuer in connection with the NCIB, provided that:
(a) the aggregate number of Common Shares to be acquired on Canadian Markets by BMO Nesbitt on each Trading Day shall not exceed the maximum daily limit that is imposed upon the NCIB pursuant to the TSX Rules, determined with reference to an average daily trading volume that is based on the trading volume of the Common Shares on all Canadian Markets rather than being limited to the trading volume on the TSX only (the “Modified Maximum Daily Limit”), it being understood that the aggregate number of Common Shares to be acquired on the TSX by BMO Nesbitt on each Trading Day will not exceed the maximum daily limit that is imposed on the NCIB pursuant to the TSX Rules; and
(b) notwithstanding the block purchase exception provided for in the TSX Rules, no purchases will be made by BMO Nesbitt on any Canadian Markets pursuant to a pre-arranged trade.
29. The aggregate number of Common Shares acquired by BMO Nesbitt in connection with the Program:
(a) shall not exceed the Program Maximum; and
(b) on Canadian Other Published Markets, shall not exceed that number of Common Shares remaining eligible for purchase by the Issuer pursuant to the Other Published Markets Exemption, calculated as at the date of the Program Agreement.
30. On every Trading Day, BMO Nesbitt will purchase the Number of Common Shares. The “Number of Common Shares” will be no greater than the least of:
(a) the maximum number of Common Shares set out in the instructions received by BMO Nesbitt from the Issuer prior to the opening of trading on such day;
(b) the Program Maximum less the aggregate number of Common Shares previously purchased by BMO Nesbitt under the Program;
(c) on a Trading Day where trading ceases on the TSX or some other event that would impair BMO Nesbitt’s ability to acquire Common Shares on Canadian Markets occurs (a “Market Disruption Event”), the number of Common Shares acquired by BMO Nesbitt on such Trading Day up until the time of the Market Disruption Event; and
(d) the Modified Maximum Daily Limit.
The “Discounted Price” per Common Share will be equal to (i) the volume weighted average price of the Common Shares on the Canadian Markets on the Trading Day on which purchases were made less an agreed upon discount, or (ii) upon the occurrence of a Market Disruption Event, the volume weighted average price of the Common Shares on the Canadian Markets at the time of the Market Disruption Event less an agreed upon discount.
31. BMO Nesbitt will deliver to the Issuer that number of Inventory Shares equal to the number of Common Shares purchased by BMO Nesbitt on a Trading Day under the Program on the first Trading Day thereafter, and the Issuer will pay BMO Nesbitt a purchase price equal to the Discounted Price for each such Inventory Share. Each Inventory Share purchased by the Issuer under the Program will be cancelled upon delivery to the Issuer.
32. BMO Nesbitt will not sell any Inventory Shares to the Issuer unless BMO Nesbitt has purchased the equivalent number of Common Shares on Canadian Markets under the Program. The number of Common Shares that are purchased by BMO Nesbitt on Canadian Markets under the Program on a Trading Day will be equal to the Number of Common Shares for such Trading Day. BMO Nesbitt will provide the Issuer with a daily written report of BMO Nesbitt’s purchases, which report will indicate, inter alia, the aggregate number of Common Shares acquired under the Program, the Canadian Market on which such Common Shares were acquired, and the Modified Maximum Daily Limit.
33. During the Program Term, the Issuer will: (a) not purchase, directly or indirectly, any Common Shares (other than Inventory Shares purchased under the Program); (b) prohibit the Responsible Broker from acquiring any Common Shares on its behalf; and (c) prohibit the designated broker under the ASPP from acquiring any Common Shares on its behalf.
34. All purchases of Common Shares under the Program will be made by BMO Nesbitt and neither of the BMO Entities will engage in any hedging activity in connection with the conduct of the Program.
35. The Issuer will report its purchases of Common Shares under the Program to the TSX in accordance with the TSX Rules. In addition, immediately following the completion of the Program, the Issuer will: (a) report the total number of Common Shares acquired under the Program to the TSX and the Commission; and (b) file a notice on the System for Electronic Document Analysis and Retrieval (“SEDAR”) disclosing the number of Common Shares acquired under the Program and the aggregate dollar amount paid for such Common Shares.
36. The Issuer is of the view that: (a) it will be able to purchase Common Shares from BMO Nesbitt at a lower price than the price at which it would be able to purchase an equivalent quantity of Common Shares under the NCIB in reliance on the Exemptions; and (b) the purchase of Common Shares pursuant to the Program is in the best interests of the Issuer and constitutes a desirable use of the Issuer’s funds.
37. The entering into of the Program Agreement, the purchase of Common Shares by BMO Nesbitt in connection with the Program, and the sale of Inventory Shares by BMO Nesbitt to the Issuer will not adversely affect the Issuer or the rights of any of the Issuer’s security holders and it will not materially affect control of the Issuer.
38. The sale of Inventory Shares to the Issuer by BMO Nesbitt will not be a “distribution” (as defined in the Act).
39. The Issuer will be able to acquire the Inventory Shares from BMO Nesbitt without the Issuer being subject to the dealer registration requirements of the Act.
40. At the time that the Issuer and the BMO Entities enter into the Program Agreement, neither the Issuer, nor any member of the Trading Products Group of BMO Nesbitt, nor any personnel of either of the BMO Entities that negotiated the Program Agreement or made, participated in the making of, or provided advice in connection with, the decision to enter into the Program Agreement and sell the Common Shares, will be aware of any “material change” or “material fact” (each as defined in the Act) with respect to the Issuer or the Common Shares that has not been generally disclosed (the “Undisclosed Information”).
41. Each of the BMO Entities:
(a) has policies and procedures in place to ensure that the Program will be conducted in accordance with, among other things, the Program Agreement and this Order, and to preclude those persons responsible for administering the Program from acquiring any Undisclosed Information during the conduct of the Program; and
(b) will, prior to entering into the Program Agreement, (i) ensure that its systems are capable of adhering to, and performing in accordance with, the requirements of the Program and this Order, and (ii) provide all necessary training and take all necessary actions to ensure that the persons administering and executing the purchases under the Program are aware of, and understand the terms of, this Order.
AND UPON the Commission being satisfied that to do so would not be prejudicial to the public interest;
IT IS ORDERED pursuant to section 6.1 of NI 62-104 that the Issuer be exempt from the Issuer Bid Requirements in respect of the purchase of Inventory Shares from BMO Nesbitt pursuant to the Program, provided that:
(a) at least two clear Trading Days prior to the commencement of the Program, the Issuer issues the Press Release;
(b) all purchases of Common Shares under the Program are made on Canadian Markets by BMO Nesbitt, and are:
(i) made in accordance with the NCIB Rules applicable to the NCIB, as modified by paragraph 28 of this Order;
(ii) taken into account by the Issuer when calculating the maximum annual aggregate limits that are imposed upon the NCIB in accordance with the TSX Rules, with those Common Shares purchased on Canadian Other Published Markets being taken into account by the Issuer when calculating the maximum aggregate limits that are imposed upon the Issuer in accordance with the Other Published Markets Exemption;
(iii) marked with such designation as would be required by the applicable marketplace and UMIR for trades made by an agent of the Issuer; and
(iv) monitored by the BMO Entities on a continual basis for the purposes of ensuring compliance with the terms of this Order, NCIB Rules, and applicable securities law;
(c) during the Program Term, (i) the Issuer does not purchase, directly or indirectly, any Common Shares (other than Inventory Shares purchased under the Program), (ii) no Common Shares are purchased on behalf of the Issuer by the Responsible Broker, and (iii) no Common Shares are acquired on behalf of the Issuer by the designated broker under the ASPP;
(d) the number of Inventory Shares transferred by BMO Nesbitt to the Issuer for purchase under the Program in respect of a particular Trading Day is equal to the number of Common Shares purchased by BMO Nesbitt on Canadian Markets under the Program in respect of the Trading Day;
(e) no hedging activity is engaged in by the BMO Entities in connection with the conduct of the Program;
(f) at the time that the Program Agreement is entered into by the Filers and BMO:
(i) the Common Shares are “highly liquid securities”, as that term is defined in section 1.1 of OSC Rule 48-501 and section 1.1 of UMIR; and
(ii) none of the Issuer, any member of the Trading Products Group of BMO Nesbitt, or any personnel of either of the BMO Entities that negotiated the Program Agreement or made, participated in the making of, or provided advice in connection with, the decision to enter into the Program Agreement and sell the Common Shares, was aware of any Undisclosed Information;
(g) no purchase instructions in respect of the Program are given by the Issuer to BMO Nesbitt at any time that the Issuer is aware of Undisclosed Information;
(h) no purchases of Common Shares under the Program will occur during a Blackout Period;
(i) the BMO Entities maintain records of all purchases of Common Shares that are made by BMO Nesbitt pursuant to the Program, which will be available to the Commission and IIROC upon request; and
(j) in addition to reporting its purchases of Common Shares under the Program to the TSX in accordance with the TSX Rules, immediately following the completion of the Program, the Issuer will: (i) report the total number of Common Shares acquired under the Program to the TSX and the Commission; and (ii) file a notice on SEDAR disclosing the number of Common Shares acquired under the Program and the aggregate dollar amount paid for such Common Shares.
DATED at Toronto, Ontario, this 21st day of March, 2017.
“Naizam Kanji”
Director, Office of Mergers & Acquisitions
Ontario Securities Commission