TMX Group Inc. - 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, approximately 1,000,000 of its common shares from one shareholder -- 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.
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).
February 2, 2009
IN THE MATTER OF
THE SECURITIES ACT,
R.S.O. 1990, c. S.5, AS AMENDED
AND
IN THE MATTER OF
TMX GROUP INC.
ORDER
(Clause 104(2)(c))
UPON the application (the "Application") of TMX Group Inc. (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 connection with the proposed purchases ("Proposed Purchases") by the Issuer of up to 1,000,000 (the "Subject Shares") of its common shares (the "Shares") from Royal Bank of Canada and/or its affiliates (the "Selling Shareholder");
AND UPON considering the Application and the recommendation of staff of the Commission;
AND UPON the Issuer having represented to the Commission that:
1. The Issuer is a corporation governed by the Business Corporations Act (Ontario).
2. The head office of the Issuer is located at 130 King Street West, Toronto, Ontario, M5X 1J2.
3. The Issuer is a reporting issuer in each of the provinces of Canada and the Shares are listed for trading on Toronto Stock Exchange ("TSX"). 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 common share capital of the Issuer consists of an unlimited number of Shares, of which 74,403,577 were issued and outstanding as of December 31, 2008.
5. The corporate headquarters of the Selling Shareholder is located in Toronto, Ontario.
6. The Selling Shareholder has advised the Issuer that they do not directly or indirectly own more than 5% of the issued and outstanding Shares.
7. The Selling Shareholder has advised the Issuer that they are the beneficial owners of at least 1,000,000 Shares.
8. To the knowledge of the Issuer after reasonable inquiry, the Selling Shareholder owns the Subject Shares and the Subject Shares were not acquired in anticipation of resale pursuant to the Proposed Purchases.
9. Pursuant to a "Notice of Intention to Make a Normal Course Issuer Bid" filed with TSX and dated August 14, 2008 (the "Notice"), the Issuer is permitted to make normal course issuer bid (the "Bid") purchases (each, a "Bid Purchase") to a maximum of 7,595,585 Shares in accordance with sections 628 to 629.3 of Part VI of the TSX Company Manual (the "TSX Rules"). As of December 31, 2008, 3,082,060 Shares have been purchased under the Bid.
10. In addition to making Bid Purchases by means of open market transactions, the Notice contemplates that the Issuer may purchase Shares by way of exempt offer.
11. The Issuer and the Selling Shareholder intend to enter into one or more agreements of purchase and sale (each, an "Agreement") pursuant to which the Issuer will agree to acquire, by one or more trades occurring within 30 days of the date of this Order, the Subject Shares from the Selling Shareholder 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 bid-ask price for the Shares.
12. The purchase of the Subject Shares by the Issuer pursuant to the Agreement will constitute an "issuer bid" for purposes of the Act, to which the applicable issuer bid requirements in Sections 94 to 94.8 and 97 to 98.7 of the Act would apply (the "Issuer Bid Requirements").
13. Because the Purchase Price will be at a discount to the prevailing market price and below the bid-ask price for the Shares at the time of each trade, the Proposed Purchases cannot be made through TSX's trading system and, therefore, will not occur "through the facilities" of TSX. As a result, the Issuer will be unable to acquire the Subject Shares from the Selling Shareholder in reliance upon the exemption from the Issuer Bid Requirements that is available pursuant to Section 101.2(1) of the Act.
14. 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 Shares at the time of the trade, the Issuer could otherwise acquire the Subject Shares as a "block purchase" (a "Block Purchase") in accordance with Section 629(1)7 of the TSX Rules and Section 101.2(1) of the Act.
15. 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 Act. In addition, the Selling Shareholder is an "accredited investor" within the meaning of National Instrument 45-106 Prospectus and Registration Exemptions ("NI 45-106").
16. The Issuer will be able to acquire the Subject Shares from the Selling Shareholder in reliance upon the exemption from the dealer registration requirements of the Act that is available as a result of the combined effect of section 2.16 of NI 45-106 and Section 4.1(a) of Commission Rule 45-501 Ontario Prospectus and Registration Exemptions.
17. Management is of the view that the Issuer will be able to purchase the Subject Shares at a lower price than the price at which the Issuer will be able to purchase the Shares under the Bid and management is of the view that this is an appropriate use of the Issuer's funds.
18. The purchase of Subject Shares will not adversely affect the Issuer or the rights of any of the Issuer's securityholders and the Proposed Purchases will not affect control of the Issuer. The Proposed Purchases will be carried out with a minimum of cost to the Issuer.
19. To the best of the Issuer's knowledge, as of December 18, 2008 the public float for the Shares consisted of approximately 98% for purposes of the TSX Rules.
20. The market for the Shares is a "liquid market" within the meaning of Section 1.2 of Multilateral Instrument 61-501 Protection of Minority Security Holders.
21. Other than the Purchase Price, no additional fee or other consideration will be paid in connection with the Proposed Purchases.
22. At the time that the Agreement is entered into by the Issuer and the Selling Shareholder, neither the Issuer nor the Selling Shareholder will be aware of any undisclosed "material change" or any undisclosed "material fact" (each as defined in the Act) in respect of the Issuer.
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 the Proposed Purchases, provided that:
(a) the Proposed Purchases will be taken into account by the Issuer when calculating the maximum annual aggregate limit for the Bid Purchases in accordance with the TSX Rules;
(b) the Issuer will refrain from conducting a Block Purchase in accordance with the TSX Rules during the calendar week it completes each Proposed Purchase and may not make any further Bid Purchases for the remainder of that calendar day;
(c) the Purchase Price is not higher than the last "independent trade" (as that term is used in paragraph 629(1)1 of the TSX Rules) of a board lot of Shares immediately prior to the execution of each Proposed Purchase;
(d) the Issuer will otherwise acquire any additional Shares pursuant to the Bid and in accordance with the TSX Rules;
(e) immediately following its purchase of the Subject Shares from the 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 the Selling Shareholder, neither the Issuer nor the Selling Shareholder will be aware of any undisclosed "material change" or any undisclosed "material fact" (each as defined in the Act) in respect of the Issuer; and
(g) the Issuer will issue a press release in connection with the Proposed Purchases.