Royal Bank of Canada and BMO Nesbitt Burns 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, 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

ROYAL BANK OF CANADA AND

BMO NESBITT BURNS INC.

ORDER

(Section 6.1 of National Instrument 62-104)

UPON the application (the “Application”) of Royal Bank of Canada (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 3,500,000 (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 21, inclusive, 23 to 30, inclusive, 34, 36, 38, 39, 40, 42 and 43;

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, 21 to 24, inclusive, 29, 31 to 35, inclusive, 37, 41, 43 and 44 as they relate to the BMO Entities;

1.             The Issuer is a Schedule I bank governed by the Bank Act (Canada).

2.             The Issuer’s corporate headquarters are located at Royal Bank Plaza, 200 Bay Street, Toronto, Ontario, Canada, M5J 2J1 and its head office is located at 1 Place Ville-Marie, Montreal, Quebec, Canada.

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”), the New York Stock Exchange (the “NYSE”) and the SIX Swiss Exchange under the symbols “RY”,”RY:US” and “RY”, respectively. The Issuer is not in default of any requirement of securities legislation in the jurisdictions in which it is a reporting issuer.

4.             The authorized share capital of the Issuer consists of (a) an unlimited number of Common Shares without nominal or par value, and (b) an unlimited number of first preferred shares and second preferred shares without nominal or par value, issuable in series and whose classes may be issued for maximum consideration of $20 billion and $5 billion, respectively. As at December 11, 2017, the Issuer had the following shares outstanding:

5.             BMO Nesbitt is registered as an investment dealer under the securities legislation of each 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 3,500,000 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 and all purchases of Inventory Shares by the Issuer from BMO Nesbitt will be executed and settled in the Province of Ontario. No Common Shares were purchased by, or on behalf of, BMO Nesbitt on or after November 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 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.             Pursuant to a Notice of Intention to Make a Normal Course Issuer Bid (the “Notice”) which was accepted by the TSX effective March 9, 2017, the Issuer is permitted to make a normal course issuer bid (the “NCIB”) to purchase for cancellation, during the 12-month period beginning on March 14, 2017 and ending on March 10, 2018, up to 30,000,000 Common Shares, representing approximately 2% of the issued and outstanding Common Shares as of the date specified in the Notice. The Notice specifies that purchases under the NCIB will be conducted through the facilities of the TSX, the NYSE and other designated exchanges and Canadian alternative trading systems, if eligible, 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”), a securities regulatory authority, or applicable securities laws and regulations, including under automatic purchase plans and by private agreements or share repurchase programs under issuer bid exemption orders issued by securities regulatory authorities.

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 the NYSE and other permitted published markets (collectively with the NYSE, 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 RBC Dominion Securities Inc. as its designated broker in respect of the NCIB (the “Responsible Broker”).

13.          The Notice states that the Issuer may implement an automatic repurchase plan (an “ARP”) 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 regularly scheduled quarterly blackout periods and other internal blackout periods (each such time, a “Blackout Period”). No ARP has been implemented at this time and no ARP will be implemented or operative during the Program Term (as defined below).

14.          The Notice also provides that, during the course of the NCIB, Common Shares may be purchased by trustees or administrators that are not independent of the Issuer (a “Plan Trustee”) in the open market to satisfy net requirements of employee plans that have been specifically identified in the Notice (the Common Shares purchased under such specified plans, the “Plan Common Shares”). The maximum number of Common Shares that the Issuer is permitted to repurchase under the NCIB, being 30,000,000, will be reduced by the number of Plan Common Shares. In the event that the acquisition of Plan Common Shares is required during the Program Term, the Issuer will not provide instructions to BMO pursuant to the Program in respect of the relevant Trading Day (as defined below) unless such instructions include the number of Plan Common Shares that will be acquired on that Trading Day.

15.          The TSX granted the Issuer relief on December 1, 2003 from the applicable provisions of the TSX Rules in respect of NCIBs that deem six specified employee share purchase plans of the Issuer to have non-independent trustees (the “Exempted Plans”). As a result, any Common Shares purchased by Plan Trustees pursuant to Exempted Plans (the “Exempted Plan Purchases”) do not count towards the Issuer’s NCIB and the limits applicable thereto.

16.          To the best of the Issuer’s knowledge the “public float” (calculated in accordance with the TSX Rules) for the Common Shares as at October 31, 2017 consisted of 1,452,371,214 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”).

17.          On March 9, 2017, the Commission granted the Issuer two orders pursuant to section 6.1 of NI 62-104. The first of these orders was to the Issuer and The Toronto-Dominion Bank (“TD”) exempting the Issuer from the Issuer Bid Requirements in connection with proposed purchases by the Issuer of up to 10,000,000 Common Shares from TD pursuant to a share repurchase program (the “TD Program”). The Issuer purchased 10,000,000 Common Shares under the TD Program, which terminated on March 31, 2017. The second of these orders was to the Issuer and The Bank of Nova Scotia (“Scotia”) exempting the Issuer from the Issuer Bid Requirements in connection with proposed purchases by the Issuer of up to 5,000,000 Common Shares from Scotia pursuant to a share repurchase program (the “Scotia Program”). The Issuer purchased 5,000,000 Common Shares under the Scotia Program, which terminated on April 28, 2017.

18.          On October 11, 2017, the Commission granted the Issuer and BMO Nesbitt an order pursuant to section 6.1 of NI 62-104 exempting the Issuer from the Issuer Bid Requirements in connection with proposed purchases by the Issuer of up to 5,000,000 Common Shares from BMO Nesbitt pursuant to a share repurchase program (the “Prior BMO Nesbitt Program”, and collectively with the TD Program and the Scotia Program, the “Prior Programs”). The Issuer purchased 5,000,000 Common Shares from BMO Nesbitt under the Prior BMO Nesbitt Program, which terminated on October 30, 2017.

19.          Concurrently with the Application, the Issuer filed an additional application with the Commission for exemptive relief from the Issuer Bid Requirements in connection with proposed purchases by the Issuer of up to 5,799,378 Common Shares (the “CIBC Program Maximum”) from Canadian Imperial Bank of Commerce pursuant to a share repurchase program (the “CIBC Program”, and together with the Program, the “Programs”). The CIBC Program will begin on the Trading Day (as defined below) following the completion or termination of the Program and will terminate on the earlier of (a) January 31, 2018, and (b) the date on which the Issuer will have purchased the CIBC Program Maximum (the “CIBC Program Term”).

20.          As at December 11, 2017, the Issuer has purchased for cancellation a total of 20,652,000 Common Shares under the NCIB, including 20,000,000 Common Shares under the Prior Programs.

21.          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.

22.          Pursuant to the terms of the Program Agreement (as defined below), BMO Nesbitt will be 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 a market that is not a Canadian Market.

23.          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.

24.          The Program will terminate on the earlier of: (a) January 31, 2018; and (b) 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 under the Program Agreement or to the Issuer or either of the BMO Entities.

25.          At least two clear Trading Days prior to the commencement of the Program, the Issuer will issue and file a press release that has been pre-cleared by the TSX that: (a) describes the material features of the Programs, including the Program Term and the CIBC Program Term; (b) discloses the Issuer’s intention to participate in the Programs during the NCIB; (c) states that it is the Issuer’s current intention to purchase the Program Maximum and the CIBC Program Maximum, but that the number of Common Shares purchased pursuant to the Programs may be less than the Program Maximum and the CIBC Program Maximum, respectively; (d) provides an explanation as to why less than the Program Maximum and the CIBC Program Maximum may be purchased; and (e) states that, immediately following the completion of the Program, the Issuer will issue and file the Completion Press Release (as defined below) (the “Commencement Press Release”).

26.          The Program Maximum, together with the CIBC Program Maximum, will be no greater 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.

27.          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 will cease immediately and will not recommence until following the expiration of the Blackout Period.

28.          The TSX has: (a) been advised of the Issuer’s intention to enter into the Program; (b) been provided with drafts of the Program Agreement and the Commencement Press Release; and (c) confirmed that it has no objection to the Issuer conducting the Program as part of the NCIB.

29.          During the Program Term, BMO Nesbitt will purchase Common Shares on the applicable Trading Day in accordance with instructions received by BMO from the Issuer on such day, which instructions will be relayed by BMO to BMO Nesbitt without modification and 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.

30.          The Issuer will not give purchase instructions in respect of the Program to BMO at any time that the Issuer is aware of Undisclosed Information (as defined below).

31.          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 the 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 and any Plan Trustees (other than Exempted Plan Purchases) 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 and any Plan Trustees (other than Exempted Plan Purchases) 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.

32.          The aggregate number of Common Shares that will be 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.

33.          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 established in the instructions received by BMO from the Issuer on such day, it being noted that such number of Common Shares, when taken together with the number of Plan Common Shares specified in the instructions and representing the number of Plan Common Shares that will be acquired on that Trading Day, will not exceed the Modified Maximum Daily Limit;

(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.

34.          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 Trading Day immediately thereafter (or such other Trading Day as agreed to between the parties to the Program Agreement), and the Issuer will pay BMO Nesbitt a purchase price equal to the Discounted Price for each such Inventory Share on the date of delivery thereof. Each Inventory Share purchased by the Issuer under the Program will be cancelled upon delivery to the Issuer.

The “Discounted Price” per Common Share will be equal to: (a) 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 (b) 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.

35.          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.

36.          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; (c) prohibit any Plan Trustee from acquiring a number of Plan Common Shares in excess of the number of Plan Common Shares specified in the instructions provided to BMO pursuant to the Program in respect of the relevant Trading Day; and (d) not implement an ARP.

37.          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.

38.          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) issue and file a press release that announces the completion of the Program and sets out the number of Common Shares acquired under the Program and the aggregate dollar amount paid for such Common Shares (the “Completion Press Release”).

39.          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 an appropriate use of the Issuer’s funds.

40.          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 will not materially affect control of the Issuer.

41.          The sale of Inventory Shares to the Issuer by BMO Nesbitt will not be a “distribution” (as defined in the Act).

42.          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.

43.          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”).

44.          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, the Program Agreement 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, the Program Agreement and 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 and files the Commencement 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 31 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, the 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; (iii) the number of Plan Common Shares acquired by any Plan Trustee does not exceed the number of Plan Common Shares specified in the instructions provided to BMO pursuant to the Program in respect of a relevant Trading Day; and (iv) no ARP is implemented or operative;

(d)           the number of Common Shares purchased by BMO Nesbitt under the Program on a particular Trading Day, when taken together with the number of Plan Common Shares specified in the instructions provided to BMO pursuant to the Program and representing the number of Plan Common Shares that will be acquired on that Trading Day, does not exceed the Modified Maximum Daily Limit;

(e)           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;

(f)            no hedging activity is engaged in by the BMO Entities in connection with the conduct of the Program;

(g)           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;

(h)           no purchase instructions in respect of the Program are given by the Issuer to BMO at any time that the Issuer is aware of Undisclosed Information;

(i)            no purchases of Common Shares under the Program will occur during a Blackout Period;

(j)            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

(k)           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) issue and file the Completion Press Release.

DATED at Toronto, Ontario, this 10th day of January, 2018.