CAE Inc. – 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, at a discounted purchase price, up to 600,000 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.

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

CAE INC.

ORDER

(Section 6.1 of National Instrument 62-104)

UPON the application (the Application) of CAE Inc. (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 an aggregate of 600,000 common shares of the Issuer (collectively, the Subject Shares) in one tranche from The Bank of Nova Scotia (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, 25 and 26, as they relate to the Selling Shareholder) having represented to the Commission that:

1.             The Issuer is a corporation governed by the Business Corporations Act (Québec).

2.             The head office and registered office of the Issuer is located at 8585 Cote-de-Liesse, Saint Laurent, Quebec, H4T 1G6.

3.             The Issuer is a reporting issuer in each of the provinces of Canada and the common shares of the Issuer (the Common Shares) are listed for trading on the Toronto Stock Exchange (the TSX) under the symbol “CAE”. 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 capital stock of the Issuer consists of an unlimited number of Common Shares, and an unlimited number of preferred shares. As at November 30, 2017, there were 268,051,323 Common Shares and no preferred shares issued and outstanding.

5.             The executive offices of the Selling Shareholder are located in the Province of Ontario.

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

7.             The Selling Shareholder is the beneficial owner of at least 600,000 Common Shares. All of the Subject Shares are held by the Selling Shareholder in the Province of Ontario. The negotiation, execution and delivery of the Agreement (as defined below) and the execution and settlement of the trade contemplated thereunder will be undertaken by members of the Global Equity Derivatives group of the Selling Shareholder who are in the Province of Ontario. 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 November 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 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 the 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 “accredited investor” within the meaning of National Instrument 45-106 Prospectus Exemptions.

11.          Pursuant to the terms of a “Notice of Intention to Make a Normal Course Issuer Bid” (the Notice) that was submitted to, and accepted by, the TSX, the Issuer is permitted to make a normal course issuer bid (the Normal Course Issuer Bid) to purchase for cancellation, during the 12-month period beginning on February 23, 2017 and ending on February 22, 2018, up to 5,366,756 Common Shares, representing approximately 2.0% of the issued and outstanding Common Shares as of the date specified in the Notice. In accordance with the Notice, the Normal Course Issuer Bid is being conducted through the facilities of the TSX 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 NCIB Rules), or by securities regulatory authorities, including pursuant to private agreements under issuer bid exemption orders issued by securities regulatory authorities (each, an Off-Exchange Block Purchase). 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 has established an automatic share repurchase plan (the ASRP) 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 ASRP was pre-cleared by the TSX and complies with the TSX NCIB Rules, applicable securities laws and this Order. Under the ASRP, at times it is not subject to blackout restrictions, the Issuer may, but is not required to, instruct the designated broker under the ASRP (the ASRP Broker) to make purchases under its Normal Course Issuer Bid in accordance with the terms of the ASRP. Such purchases will be determined by the ASRP 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 ASRP Broker and the Issuer. If the Issuer determines to instruct the ASRP Broker to make purchases under the ASRP during a particular Blackout Period, the Issuer will instruct the ASRP 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 of December 6, 2017, the Issuer has purchased for cancellation an aggregate of 1,398,600 Common Shares pursuant to the Normal Course Issuer Bid, none of which were purchased 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 February 22, 2018 (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 of the Common Shares on the TSX 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 the Subject Shares from the Selling Shareholder in reliance on the exemption from the Issuer Bid Requirements set out in 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 Subject Shares through the facilities of the TSX as a Block Purchase in accordance with the block purchase exception in clause 629(l)7 of the TSX NCIB Rules and the exemption from the Issuer Bid Requirements set out in 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.          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.

21.          Management of the Issuer is of the view that (a) the Issuer will be able to purchase the Subject Shares pursuant to the Proposed Purchase 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 set out in subsection 4.8(2) of NI 62-104, and (b) the Proposed Purchase is an appropriate use of the Issuer’s funds on hand.

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 will not materially affect 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.          To the best of the Issuer’s knowledge, as of November 30, 2017, the “public float” of the Common Shares represented approximately 99% of all the issued and outstanding Common Shares for the purposes of the TSX NCIB Rules.

24.          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.

25.          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.

26.          At the time that the Agreement is negotiated or 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 Global 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 any "material fact" (each as defined in the Act) in respect of the Issuer that has not been generally disclosed.

27.          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.

28.          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 1,788,918 Common Shares as of the date of this Order.

29.          The Agreement will not be negotiated or entered into during any 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.

30.          Assuming completion of the purchase of the maximum number of Subject Shares, being 600,000 Common Shares, the Issuer will have purchased under the Normal Course Issuer Bid an aggregate of 600,000 Common Shares pursuant to Off-Exchange Block Purchases, representing approximately 11.18% of the 5,366,756 Common Shares authorized to be purchased under the Normal Course Issuer Bid.

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 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 the 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 the 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, 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 such Subject Shares to the TSX;

(f)            at the time that the Agreement is negotiated or 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 Global 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 any "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 disclosing (i) its intention to make the Proposed Purchase, and (ii) that information 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 completion of the Proposed Purchase;

(h)           the Issuer will report information regarding 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 the completion of the Proposed 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 the Normal Course Issuer Bid, such one third being equal to, as of the date of this Order, 1,788,918 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 this 21st day of December, 2017.

“Naizam Kanji”

Director, Office of Mergers & Acquisitions