The Bank of Nova Scotia – s. 6.1 of NI 62-104 Take-Over Bids and Issuer Bids

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, at a discounted purchase price, up to 4,000,000 of its common shares from one of its shareholders – due to the discounted purchase price, proposed purchase cannot be made through the TSX trading system – but for the fact that the proposed purchase cannot be made through the TSX trading system, the Issuer could otherwise acquire the subject shares in accordance with the TSX rules governing normal course issuer bids, in reliance on the issuer bid exemption in subsection 4.8(2) of NI 62-104 – the selling shareholder did not purchase the subject shares in anticipation or contemplation of resale to the Issuer and no common shares have been purchased by the selling shareholder for a minimum of 30 days prior to the date of the application seeking the requested relief in anticipation or contemplation of a sale of common shares by the selling shareholder to the Issuer – no adverse economic impact on, or prejudice to, the Issuer or other security holders – proposed purchase exempt from the requirements applicable to issuer bids in Part 2 of NI 62-104, subject to conditions, including that the Issuer not purchase, in the aggregate, more than one-third of the maximum number of shares to be purchased under its normal course issuer bid by way of off-exchange block purchases, and that the Issuer not make the proposed purchase unless it has first obtained written confirmation from the selling shareholder that, between the date of the order and the date on which the proposed purchase is completed, the selling shareholder has not purchased, had purchased on its behalf, or otherwise accumulated, any common shares of the Issuer to re-establish its holdings of common shares which will have been reduced as a result of the sale of the subject shares pursuant to the proposed purchase.

Applicable Legislative Provisions

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

ORDER
(Section 6.1 of National Instrument 62-104)

                UPON the application (the “Application”) of The Bank of Nova Scotia (the “Issuer”) 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 purchase by the Issuer of up to 4,000,000 of its common shares (collectively, the “Subject Shares”) in one tranche from The Toronto-Dominion Bank (the “Selling Shareholder”);

                AND UPON considering the Application and the recommendation of staff of the Commission;

                AND UPON the Issuer (and the Selling Shareholder in respect of paragraphs 5, 6, 7, 8, 9, 10, 14, 24 and 25 as they relate to the Selling Shareholder) having represented to the Commission that:

1.             The Issuer is a Schedule I Canadian chartered bank 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 and the common shares of the Issuer (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 May 11, 2017, (a) 1,201,865,442 Common Shares; (b) 7,497,663 non-cumulative preferred shares series 18; (c) 6,302,337 non-cumulative preferred shares series 19; (d) 8,039,268 non-cumulative preferred shares series 20; (e) 5,960,732 non-cumulative preferred shares series 21; (f) 9,376,944 non-cumulative preferred shares series 22; (g) 2,623,056 non-cumulative preferred shares series 23; (h) 6,142,738 non-cumulative preferred shares series 30; (i) 4,457,262 non-cumulative preferred shares series 31; (j) 11,161,422 non-cumulative preferred shares series 32; (k) 5,184,345 non-cumulative preferred shares series 33; (l) 14,000,000 non-cumulative preferred shares series 34; (m) 20,000,000 non-cumulative preferred shares series 36; and (n) 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 purposes of the TSX NCIB Rules (as defined below).

5.             The registered and head office of the Selling Shareholder is located in the Province of Ontario.

6.             The Selling Shareholder does not, directly or indirectly, own more than 5% of the issued and outstanding Common Shares.

7.             The Selling Shareholder is the beneficial owner of at least 4,000,000 Common Shares. None of the Subject Shares were acquired by, or on behalf of, the Selling Shareholder in anticipation or contemplation of resale to the Issuer.

8.             No Common Shares were purchased by, or on behalf of, the Selling Shareholder on or after April 12, 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 to the Issuer.

9.             The Subject Shares are held by the Selling Shareholder in connection with arrangements to hedge client transactions in respect of the Common Shares. Between the date of this Order and the date on which a Proposed Purchase (as defined below) is to be completed, the Selling Shareholder will not purchase, have purchased on its behalf, or otherwise accumulate, any Common Shares to re-establish its holdings of Common Shares which will have been reduced as a result of the sale of the Subject Shares pursuant to the Proposed Purchase.

10.          The Selling Shareholder 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”). The Selling Shareholder is an “accre-dited investor” within the meaning of National Instrument 45-106 Prospectus Exemptions.

11.          The Issuer announced on May 30, 2017 the renewal of its normal course issuer bid (the “Normal Course Issuer Bid”) to purchase for cancellation, during the 12-month period beginning on June 2, 2017 and ending on June 1, 2018, up to 24,000,000 Common Shares, representing approximately 2% 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 submitted to, and accepted by, the TSX. The Notice specifies that purchases made under the Normal Course Issuer Bid are to be conducted through the facilities of the TSX or alternative trading systems, if eligible, or by such other means as may be permitted by the TSX or a securities regulatory authority in accordance with sections 628 to 629.3 of Part VI of the TSX Company Manual (the “TSX NCIB Rules”), including pursuant to private agreements (each, an “Off-Exchange Block Purchase”) or specific share repurchase programs under issuer bid exemption orders issued by securities regulatory authorities. The TSX has been advised of the Issuer’s intention to enter into the Proposed Purchase and has confirmed that it has no objection to the Proposed Purchase.

12.          The Issuer also announced on May 30, 2017 the renewal of its automatic share purchase plan (“ASPP”) to permit the Issuer to make purchases under its Normal Course Issuer Bid at such times when the Issuer would not be permitted to trade in the Common Shares, including during internal blackout periods (each such time, a “Blackout Period”). The ASPP was pre-cleared by the TSX and complies with the TSX NCIB Rules, applicable securities laws and this Order. Under the ASPP, at times it is not subject to blackout restrictions, the Issuer may, but is not required to, instruct the designated broker under the ASPP (the “ASPP Broker”) to make purchases under its Normal Course Issuer Bid in accordance with the terms of the ASPP. Such purchases will be determined by the ASPP Broker in its sole discretion based on parameters established by the Issuer prior to any Blackout Period in accordance with TSX rules, applicable securities laws (including this Order) and the terms of the agreement between the ASPP Broker and the Issuer. If the Issuer determines to instruct the ASPP Broker to make purchases under the ASPP during a particular Blackout Period, the Issuer will instruct the ASPP Broker not to conduct a block purchase (a “Block Purchase”) in reliance on the block purchase exception in clause 629(l)(7) of the TSX NCIB Rules in a calendar week in which either (a) the Issuer completed a Proposed Purchase, or (b) a Blackout Period ends and a new trading window of the Issuer opens.

13.          As at the date hereof, the Issuer has not repurchased for cancellation any Common Shares under the Normal Course Issuer Bid, whether through the facilities of a marketplace or pursuant to Off-Exchange Block Purchases.

14.          The Issuer and the Selling Shareholder intend to enter into an agreement of purchase and sale (the “Agreement”) pursuant to which the Issuer will agree to acquire some or all of the Subject Shares from the Selling Shareholder before October 10, 2017 (the “Proposed Purchase”) for a purchase price (the “Purchase Price”) that will be negotiated at arm's length between the Issuer and the Selling Shareholder. The Purchase Price will be at a discount to the prevailing market price and below the prevailing bid-ask price for the Common Shares on the TSX at the time of the Proposed Purchase.

15.          The Subject Shares acquired under the Proposed Purchase will constitute a “block” as that term is defined in section 628 of the TSX NCIB Rules.

16.          The purchase of any of the Subject Shares by the Issuer pursuant to the Agreement will constitute an “issuer bid” for the purposes of NI 62-104, to which the applicable Issuer Bid Requirements would apply.

17.          Because the Purchase Price will be at a discount to the prevailing market price and below the prevailing bid-ask price for the Common Shares on the TSX at the time of the Proposed Purchase, the Proposed Purchase cannot be made through the TSX trading system and, therefore, will not occur “through the facilities” of the TSX. As a result, the Issuer will be unable to acquire Subject Shares from the Selling Shareholder in reliance upon the exemption from the Issuer Bid Requirements that is available pursuant to subsection 4.8(2) of NI 62-104.

18.          But for the fact that the Purchase Price will be at a discount to the prevailing market price and below the prevailing bid-ask price for the Common Shares on the TSX at the time of the Proposed Purchase, the Issuer could otherwise acquire the applicable Subject Shares through the facilities of the TSX as a Block Purchase in accordance with the block purchase exception in section 629(l)7 of the TSX NCIB Rules and the exemption from the Issuer Bid Requirements that is available pursuant to subsection 4.8(2) of NI 62-104.

19.          The sale of any of the Subject Shares to the Issuer will not be a “distribution” (as defined in the Act).

20.          For the Proposed Purchase, the Issuer will be able to acquire the applicable Subject Shares from the Selling Shareholder without the Issuer being subject to the dealer registration requirements of the Act.

21.          Management of the Issuer is of the view that: (a) through the Proposed Purchase, the Issuer will be able to purchase the Subject Shares at a lower price than the price at which it would otherwise be able to purchase Common Shares under the Normal Course Issuer Bid in accordance with the TSX NCIB Rules and the exemption from the Issuer Bid Requirements available pursuant to subsection 4.8(2) of NI 62-104; and (b) the Proposed Purchase is an appropriate use of the Issuer's funds.

22.          The purchase of the Subject Shares will not adversely affect the Issuer or the rights of any of the Issuer's security holders and it will not materially affect the control of the Issuer. To the knowledge of the Issuer, the Proposed Purchase will not prejudice the ability of other security holders of the Issuer to otherwise sell Common Shares in the open market at the then-prevailing market price. The Proposed Purchase will be carried out at minimal cost to the Issuer.

23.          The Common Shares are “highly-liquid securities” within the meaning of section 1.1 of OSC Rule 48-501 Trading during Distributions, Formal Bids and Share Exchange Transactions and section 1.1 of the Universal Market Integrity Rules.

24.          Other than the Purchase Price, no fee or other consideration will be paid by the Issuer to the Selling Shareholder in connection with the Proposed Purchase.

25.          At the time that the Agreement is entered into by the Issuer and the Selling Shareholder and at the time of the Proposed Purchase, neither the Issuer, nor any member of the Equity Derivatives group of the Selling Shareholder, nor any personnel of the Selling Shareholder that negotiated the Agreement or made, participated in the making of, or provided advice in connection with, the decision to enter into the Agreement and sell the Subject Shares, will be aware of any “material change” or “material fact” (each as defined in the Act) in respect of the Issuer that has not been generally disclosed.

26.          The Issuer will not make the Proposed Purchase unless it has first obtained confirmation in writing from the Selling Shareholder that, between the date of the Order and the date on which the Proposed Purchase is to be completed, the Selling Shareholder has not purchased, had purchased on its behalf, or otherwise accumulated, any Common Shares to re-establish its holdings of Common Shares which will have been reduced as a result of the sale of Subject Shares pursuant to the Proposed Purchase.

27.          The Issuer will not purchase, pursuant to Off-Exchange Block Purchases, in the aggregate, more than one-third of the maximum number of Common Shares that the Issuer can purchase under the Normal Course Issuer Bid, such one-third being equal to 8,000,000 Common Shares as of the date of this Order.

28.          The Agreement will not be negotiated or entered into during a time when the Issuer would not be permitted to trade in the Common Shares, including during a Blackout Period. If a Blackout Period is in effect, the Issuer will not purchase Subject Shares pursuant to the Proposed Purchase until the later of (a) the end of such Blackout Period, and (b) the passage of two clear trading days from the date of the dissemination to the public of the Issuer’s financial results and/or any and all “material changes” or any “material facts” (each as defined in the Act) in respect of the Issuer or the Common Shares relating to such Blackout Period.

29.          Assuming completion of the purchase of the maximum number of Subject Shares, being 4,000,000 Common Shares, the Issuer will have purchased under the Normal Course Issuer Bid an aggregate of 4,000,000 Common Shares pursuant to Off-Exchange Block Purchases, representing one-sixth of the maximum of 24,000,000 Common Shares authorized to be purchased under the Normal Course Issuer Bid.

                AND UPON the Commission being satisfied 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 connection with the Proposed Purchase, provided that:

(a)           the Proposed Purchase will be taken into account by the Issuer when calculating the maximum annual aggregate limit that is imposed upon the Issuer's Normal Course Issuer Bid in accordance with the TSX NCIB Rules;

(b)           the Issuer will refrain from conducting either a Block Purchase in accordance with the TSX NCIB Rules or another Off-Exchange Block Purchase during the calendar week in which it completes the Proposed Purchase and will not make any further purchases under the Normal Course Issuer Bid for the remainder of the calendar day on which it completes the Proposed Purchase;

(c)           the Purchase Price in respect of each Proposed Purchase will be at a discount to the last “independent trade” (as that term is used in paragraph 629(l)1 of the TSX NCIB Rules) of a board lot of Common Shares immediately prior to the execution of such Proposed Purchase;

(d)           the Issuer will otherwise acquire any additional Common Shares pursuant to the Normal Course Issuer Bid in accordance with the Notice and the TSX NCIB Rules, including by means of open market transactions and by other means as may be permitted by the TSX, including under automatic trading plans and, subject to condition (i) below, by Off-Exchange Block Purchases;

(e)           immediately following the Proposed Purchase of Subject Shares from the Selling Shareholder, the Issuer will report the purchase of Subject Shares to the TSX;

(f)            at the time that the Agreement is entered into by the Issuer and the Selling Shareholder and at the time of the Proposed Purchase, neither the Issuer, nor any member of the Equity Derivatives group of the Selling Shareholder, nor any personnel of the Selling Shareholder that negotiated the Agreement or made, participated in the making of, or provided advice in connection with, the decision to enter into the Agreement and sell the Subject Shares, will be aware of any “material change” or “material fact” (each as defined in the Act) in respect of the Issuer that has not been generally disclosed;

(g)           in advance of the Proposed Purchase, the Issuer will issue a press release dis-closing (i) its intention to make the Proposed Purchase, and (ii) that informa-tion regarding the Proposed Purchase, including the number of Subject Shares purchased and the aggregate Purchase Price, will be available on the System for Electronic Document Analysis and Retrieval (“SEDAR”) following the com-pletion of the Proposed Purchase;

(h)           the Issuer will report information regard-ing the Proposed Purchase, including the number of Subject Shares purchased and the aggregate Purchase Price, on SEDAR before 5:00 p.m. (Toronto time) on the business day following such purchase;

(i)            the Issuer does not purchase, pursuant to Off-Exchange Block Purchases, in the aggregate, more than one-third of the maximum number of Common Shares the Issuer can purchase under its Normal Course Issuer Bid, such one-third being equal to, as of the date of this Order, 8,000,000 Common Shares; and

(j)            the Issuer will not make the Proposed Purchase unless it has first obtained confirmation in writing from the Selling Shareholder that between the date of this Order and the date on which the Proposed Purchase is to be completed, the Selling Shareholder has not purchased, had purchased on its behalf, or otherwise accumulated any Common Shares to re-establish its holdings of Common Shares which will have been reduced as a result of the sale of the Subject Shares pursuant to the Proposed Purchase.

                DATED at Toronto, Ontario this 2nd day of June, 2017.