Telus Corporation - s. 104(2)(c)
Headnote
Clause 104(2)(c) -- Issuer bid -- relief from issuer bid requirements in sections 94 to 94.8 and 97 to 98.7 of the Act -- Issuer proposes to purchase, at a discounted purchase price, up to a total of 5,332,000 common shares from three of its shareholders -- due to discounted purchase price, proposed purchases cannot be made through TSX trading system -- but for the fact that the proposed purchases cannot be made through the TSX trading system, the Issuer could otherwise acquire the subject shares in reliance upon the issuer bid exemption available under section 101.2 of the Act and in accordance with the TSX rules governing normal course issuer bid purchases -- no adverse economic impact on or prejudice to issuer or public shareholders -- proposed purchases exempt from issuer bid requirements in sections 94 to 94.8 and 97 to 98.7 of the Act, 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.
Applicable Legislative Provisions
Securities Act, R.S.O. 1990, c. S.5, as am., ss. 94 to 94.8, 97 to 98.7, 104(2)(c).
IN THE MATTER OF THE SECURITIES ACT, R.S.O. 1990, c. S.5, AS AMENDED (the "Act")
AND
IN THE MATTER OF TELUS CORPORATION
ORDER
(Clause 104(2)(c))
IN THE MATTER OF TELUS CORPORATION
ORDER
(Clause 104(2)(c))
(Clause 104(2)(c))
UPON the application (the Application) of TELUS Corporation (the Issuer) to the Ontario Securities Commission (the Commission) for an order pursuant to clause 104(2)(c) of the Act exempting the Issuer from the requirements of sections 94 to 94.8 and 97 to 98.7 of the Act (the Issuer Bid Requirements) in respect of the proposed purchases by the Issuer of: (i) up to 1,445,000 (the BMO Subject Shares) of its Common Shares (the Common Shares) in one or more trades from BMO Nesbitt Burns Inc. (the BMO Selling Shareholder), (ii) up to 3,400,000 (the Royal Bank Subject Shares) of its Common Shares in one or more trades from Royal Bank of Canada (theRoyal Bank Selling Shareholder), and (iii) up to 487,000 (the National Bank Subject Shares, and collectively with the BMO Subject Shares and the Royal Bank Subject Shares, the Subject Shares) of its Common Shares in one or more trades from National Bank of Canada (the National Bank Selling Shareholder, and collectively with the BMO Selling Shareholder and the Royal Bank Selling Shareholder, the Selling Shareholders, and each a Selling Shareholder).
AND UPON considering the Application and the recommendation of staff of the Commission;
AND UPON the Issuer (and (i) the BMO Selling Shareholder in respect of paragraphs 5, 6, 7, 8, 12, 26 and 27, as they relate to the BMO Selling Shareholder, (ii) the Royal Bank Selling Shareholder in respect of paragraphs 5, 6, 7, 8, 13, 26 and 28, as they relate to the Royal Bank Selling Shareholder, and (iii) the National Bank Selling Shareholder in respect of paragraphs 5, 6, 7, 8, 14, 26 and 29, as they relate to the National Bank Selling Shareholder) having represented to the Commission that:
1. The Issuer is a corporation governed by theBusiness Corporations Act (British Columbia).
2. The Issuer maintains its registered office at Floor 5, 3777 Kingsway, Burnaby, British Columbia and its executive office at Floor 8, 555 Robson, Vancouver, British Columbia.
3. The Issuer is a reporting issuer in each of the provinces of Canada and the Common Shares of the Issuer are listed for trading on the Toronto Stock Exchange (the TSX) and the New York Stock Exchange (the NYSE). 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 4,000,000,000 shares, divided into: (i) 2,000,000,000 Common Shares without par value; (ii) 1,000,000,000 First Preferred shares without par value; and (iii) 1,000,000,000 Second Preferred shares without par value. As at January 29, 2014, 623,048,532 Common Shares, no First Preferred Shares and no Second Preferred Shares were issued and outstanding.
5. The corporate headquarters of each of the Royal Bank Selling Shareholder and the BMO Selling Shareholder are located in the Province of Ontario. The corporate headquarters of the National Bank Selling Shareholder are located in the Province of Quebec. The trades contemplated by this application will be executed and settled in the Province of Ontario. The Issuer has been advised that the National Bank Selling Shareholder's Toronto branch office located in the Province of Ontario intends to undertake the negotiation, execution and delivery of the National Bank Agreement (defined below) and the execution and settlement of trades contemplated thereunder.
6. Each Selling Shareholder has advised the Issuer that it does not directly or indirectly own more than 5% of the issued and outstanding Common Shares.
7. Each of the BMO Selling Shareholder, the Royal Bank Selling Shareholder and the National Bank Selling Shareholder has advised the Issuer that it is the beneficial owner of at least 1,445,000 Common Shares, 3,400,000 Common Shares and 487,000 Common Shares, respectively, and that the BMO Subject Shares, the Royal Bank Subject Shares and the National Bank Subject Shares, respectively, were not acquired in anticipation of resale to the Issuer pursuant to private agreements under an issuer bid exemption order issued by a securities regulatory authority (Off-Exchange Block Purchases).
8. Each Selling Shareholder is at arm's length to the Issuer and is not an "insider" of the Issuer or an "associate" of an "insider" of the Issuer, or an "associate" or "affiliate" of the Issuer, as such terms are defined in the Act. Each Selling Shareholder is an "accredited investor" within the meaning of National Instrument 45-106 Prospectus and Registration Exemptions (NI 45-106).
9. Pursuant to a "Notice of Intention to Make a Normal Course Issuer Bid" filed with the TSX as of December 11, 2013 (the Notice), the Issuer is permitted to make normal course issuer bid (the Normal Course Issuer Bid) purchases for up to 16,000,000 Common Shares subject to a maximum aggregate purchase price consideration of $500.0 million. In accordance with the Notice, the Normal Course Issuer Bid is conducted through the facilities of the TSX, the NYSE or alternative Canadian trading platforms, or 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, private agreements under an issuer bid exemption order issued by a securities regulatory authority.
10. On December 31, 2013 the Issuer entered into an automatic repurchase plan (ARP) with a broker providing for automatic purchases of Common Shares to be conducted by the broker on the TSX or alternative Canadian trading platforms within pre-determined parameters as part of the Normal Course Issuer Bid at such times when the Issuer would not be permitted to trade in its shares during internal blackout periods, including regularly scheduled quarterly blackout periods. Under the ARP, at times it is not subject to blackout restrictions, the Issuer may, but is not required to, instruct the designated broker to make purchases under its Normal Course Issuer Bid in accordance with the terms of the ARP. Such purchases will be determined by the 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 broker and TELUS. The ARP has been approved by the TSX and has been implemented on January 2, 2014.
11. Assuming completion of the purchase of the Subject Shares, the Issuer will have purchased under the Normal Course Issuer Bid an aggregate of 5,332,000 Common Shares pursuant to Off-Exchange Block Purchases, representing approximately 33.325% of the 16,000,000 Common Shares authorized to be purchased under the Normal Course Issuer Bid.
12. The Issuer and the BMO Selling Shareholder intend to enter into one or more agreements of purchase and sale (each, a BMO Agreement) pursuant to which the Issuer will agree to acquire some or all of the BMO Subject Shares from the BMO Selling Shareholder by one or more purchases each occurring on or before September 30, 2014 (each such purchase, a BMO Proposed Purchase) for a purchase price (each, aBMO Purchase Price) that will be negotiated at arm's length between the Issuer and the BMO Selling Shareholder. The BMO Purchase Price will be at a discount to the prevailing market price of the Common Shares on the TSX and below the bid-ask price for the Common Shares at the time of each BMO Proposed Purchase.
13. The Issuer and the Royal Bank Selling Shareholder intend to enter into one or more agreements of purchase and sale (each, a Royal Bank Agreement) pursuant to which the Issuer will agree to acquire some or all of the Royal Bank Subject Shares from the Royal Bank Selling Shareholder by one or more purchases each occurring on or before September 30, 2014 (each such purchase, aRoyal Bank Proposed Purchase) for a purchase price (each, aRoyal Bank Purchase Price) that will be negotiated at arm's length between the Issuer and the Royal Bank Selling Shareholder. The Royal Bank Purchase Price will be at a discount to the prevailing market price of the Common Shares on the TSX and below the bid-ask price for the Common Shares at the time of each Royal Bank Proposed Purchase.
14. The Issuer and the National Bank Selling Shareholder intend to enter into one or more agreements of purchase and sale (each, a National Bank Agreement, and each of a BMO Agreement, a Royal Bank Agreement and a National Bank Agreement, an Agreement) pursuant to which the Issuer will agree to acquire some or all of the National Bank Subject Shares from the National Bank Selling Shareholder by one or more purchases each occurring on or before September 30, 2014 (each such purchase, a National Bank Proposed Purchase, and each of a BMO Proposed Purchase, a Royal Bank Proposed Purchase and a National Bank Proposed Purchase, a Proposed Purchase) for a purchase price (each, a National Bank Purchase Price, and each of a BMO Purchase Price, a Royal Bank Purchase Price and a National Bank Purchase Price, a Purchase Price) that will be negotiated at arm's length between the Issuer and the National Bank Selling Shareholder. The National Bank Purchase Price will be at a discount to the prevailing market price of the Common Shares on the TSX and below the bid-ask price for the Common Shares at the time of each National Bank Proposed Purchase.
15. The Subject Shares acquired under each Proposed Purchase will constitute a "block" as that term is defined in section 628 of the TSX NCIB Rules.
16. The purchase of the Subject Shares by the Issuer pursuant to each Agreement will constitute an "issuer bid" for purposes of the Act to which the Issuer Bid Requirements would apply.
17. Because the Purchase Price will be at a discount to the prevailing market price and below the bid-ask price for the Common Shares at the time of each Proposed Purchase, each 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 the Subject Shares from the Selling Shareholders in reliance upon the exemption from the Issuer Bid Requirements that is available pursuant to section 101.2(1) of the Act.
18. But for the fact that the Purchase Price will be at a discount to the prevailing market price and below the bid-ask price for the Common Shares at the time of each Proposed Purchase, the Issuer could otherwise acquire the Subject Shares as a "block purchase" (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 section 101.2(1) of the Act.
19. The sale of any of the Subject Shares to the Issuer will not be a "distribution" (as defined in the Act).
20. The Notice contemplates that purchases under the Normal Course Issuer Bid may be made by such other means as may be permitted by the TSX or a securities regulatory authority, including, private agreements under an issuer bid exemption order issued by a securities regulatory authority.
21. For each Proposed Purchase, the Issuer will be able to acquire the Subject Shares from the Selling Shareholder without the Issuer being subject to the dealer registration requirements of the Act.
22. The Issuer is of the view that it will be able to purchase the Subject Shares at a lower price than the price at which it would be able to purchase the Common Shares under the Normal Course Issuer Bid through the facilities of the TSX and the Issuer is of the view that this is an appropriate use of the Issuer's funds on hand.
23. The purchase of the Subject Shares will not adversely affect the Issuer or the rights of any of the Issuer's securityholders and it will not materially affect the control of the Issuer. To the knowledge of the Issuer, the Proposed Purchases will not prejudice the ability of other shareholders of the Issuer to otherwise sell Common Shares in the open market at the prevailing market price. The Proposed Purchases will be carried out with a minimum of cost to the Issuer.
24. To the best of the Issuer's knowledge, as of January 29, 2014, the "public float" for the Common Shares represented more than 99.65% of all issued and outstanding Common Shares for purposes of the TSX NCIB Rules.
25. 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.
26. Other than the Purchase Price, no additional fee or other consideration will be paid in connection with the Proposed Purchases.
27. At the time that each BMO Agreement is entered into by the Issuer and the BMO Selling Shareholder and at the time of each BMO Proposed Purchase, neither the Issuer nor the trading group of, nor personnel of, the BMO Selling Shareholder that have negotiated the BMO Agreement or have made, or participated in the making of, or provided advice in connection with, the decision to enter into the BMO Agreement and sell the BMO Subject Shares, will be aware of any "material change" or any "material fact" (each as defined in the Act) in respect of the Issuer that has not been generally disclosed.
28. At the time that each Royal Bank Agreement is entered into by the Issuer and the Royal Bank Selling Shareholder and at the time of each Royal Bank Proposed Purchase, neither the Issuer nor the trading group of, nor personnel of, the Royal Bank Selling Shareholder that have negotiated the Royal Bank Agreement or have made, or participated in the making of, or provided advice in connection with, the decision to enter into the Royal Bank Agreement and sell the Royal Bank Subject Shares, will be aware of any "material change" or any "material fact" (each as defined in the Act) in respect of the Issuer that has not been generally disclosed.
29. At the time that each National Bank Agreement is entered into by the Issuer and the National Bank Selling Shareholder and at the time of each National Bank Proposed Purchase, neither the Issuer nor the trading group of, nor personnel of, the National Bank Selling Shareholder that have negotiated the National Bank Agreement or have made, or participated in the making of, or provided advice in connection with, the decision to enter into the National Bank Agreement and sell the National Bank Subject Shares, will be aware of any "material change" or any "material fact" (each as defined in the Act) in respect of the Issuer that has not been generally disclosed.
30. The issuer will not purchase, pursuant to private agreements under an issuer bid exemption order by a securities regulatory authority, in the aggregate, more than one-third of the maximum number of Common Shares that the Issuer can purchase under its Normal Course Issuer Bid.
31. The Issuer will not purchase Common Shares pursuant to the Proposed Purchases during designated blackout periods administered in accordance with the Issuer's corporate policies.
AND UPON the Commission being satisfied to do so would not be prejudicial to the public interest;
IT IS ORDERED pursuant to clause 104(2)(c) of the Act that the Issuer be exempt from the Issuer Bid Requirements in connection with each Proposed Purchase, provided that:
a) the Proposed Purchases 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 a Block Purchase in accordance with the TSX NCIB Rules during the calendar week that it completes each Proposed Purchase and may not make any further purchases under the Normal Course Issuer Bid for the remainder of that calendar day on which it completes each Proposed Purchase;
c) the Purchase Price is not higher than 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 each 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, as applicable;
e) immediately following each Proposed Purchase of the Subject Shares from a Selling Shareholder, the Issuer will report the purchase of the Subject Shares to the TSX;
f) at the time that each Agreement is entered into by the Issuer and a Selling Shareholder and at the time of each Proposed Purchase, neither the Issuer, nor the trading group of, nor personnel of, that Selling Shareholder that have negotiated the Agreement or have made, or 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 any "material fact" (each as defined in the Act) in respect of the Issuer that has not been generally disclosed;
g) the Issuer will issue a press release disclosing (i) its intention to make the Proposed Purchases; and (ii) that information regarding each Proposed Purchase, including the number of Common Shares purchased and the aggregate purchase price, will be available on the System for Electronic Document Analysis and Retrieval (SEDAR) following the completion of each Proposed Purchase;
h) the Issuer will report information regarding each Proposed Purchase, including the number of Common Shares purchased and the aggregate purchase price, on SEDAR before 5:00 p.m. (Toronto time) on the business day following such purchase; and
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 the Normal Course Issuer Bid.
DATED at Toronto this 14th day of February, 2014.