Tobias Lütke

Decision

Headnote

National Policy 11-201 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Application for relief from the prospectus requirement for trades by a control person of an issuer under automatic securities disposition plans -- Applicant intends to annually establish an automatic securities disposition plan (ASDP) in accordance with the guidance provided under CSA Staff Notice 55-317 Automatic Securities Disposition Plans and make orderly sales of securities of the issuer under the ASDP -- Trades by the applicant as a control person under the ASDP deemed to be a distribution attracting the prospectus requirement -- Applicant cannot rely on the prospectus exemption for a trade by a control person in s. 2.8 of NI 45-102 because the seven-day waiting period requirement in paragraph 2.8(3)(b) and the 30-day expiry provision in paragraph 2.8(4)(a) of NI 45-102 would prevent continued or successive dispositions under the ASDP by requiring the applicant to refile a Form 45-102F1 every 30 days and wait at least seven days before making the first trade after each filing of a Form 45-102F1 -- Compliance with all conditions of s. 2.8 of NI 45-102 would impede applicant's ability to establish, and effect orderly trades under, an ASDP -- Relief granted from the prospectus requirement for trades effected by the control person under the ASDP subject to conditions consistent with the policy rationale underlying section 2.8 of NI 45-102 -- Relief expires on December 31, 2025.

Applicable Legislative Provisions

Securities Act, R.S.O. 1990, c. S.5, as am., ss. 53(1) and 74(1).

National Instrument 45-102 Resale of Securities, s. 2.8.

June 10, 2024

IN THE MATTER OF
THE SECURITIES LEGISLATION OF ONTARIO
(the Jurisdiction)

AND

IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS
IN MULTIPLE JURISDICTIONS

AND

IN THE MATTER OF
TOBIAS LÜTKE
(the Filer)

DECISION

Background

The principal regulator in the Jurisdiction has received an application (the Application) from the Filer for a decision under the securities legislation of the Jurisdiction of the principal regulator (the "Legislation") granting an exemption from the prospectus requirement under the Legislation in connection with the sale of Class A Shares (as defined below) of Shopify Inc. (the Issuer) by the Filer under a Filer ASDP (as defined below) (the Exemption Sought).

Furthermore, the principal regulator has also received a request from the Filer for a decision that the Application and this decision be kept confidential until the earlier of: (i) the public disclosure by the Filer of the establishment of a new Filer ASDP; and (ii) 90 days from the date of this decision (the Confidentiality Relief).

Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):

(a) the Ontario Securities Commission is the principal regulator for this application; and

(b) the Filer has provided notice that section 4.7(1) of Multilateral Instrument 11-102 Passport System is intended to be relied upon in each of the provinces and territories of Canada, other than Ontario (together with Ontario, the Jurisdictions).

Interpretation

Terms defined in National Instrument 14-101 Definitions have the same meaning if used in this decision, unless otherwise defined.

Representations

This decision is based on the following facts represented by the Filer:

1. The Issuer is a corporation incorporated under the Canada Business Corporations Act.

2. The Issuer's authorized share capital consists of: (i) an unlimited number of Class A subordinate voting shares (the Class A Shares), (ii) an unlimited number of Class B restricted voting shares (the Class B Shares), (iii) one founder share (the Founder Share and together with the Class A Shares and the Class B Shares, the Shares), and (iv) an unlimited number of preferred shares, issuable in series (the Preferred Shares).

3. On June 28, 2022, the Issuer amended its articles, to subdivide each Class A Share and each Class B Share on a ten-for-one (10:1) basis (the Share Split).

4. Holders of Class A Shares have one vote for every Class A Share. Holders of Class B Shares have ten votes for every Class B Share. The Class B Shares are convertible into Class A Shares on a one-for-one basis at any time at the option of the holders thereof and automatically in certain other circumstances. The Founder Share is held by the Filer and has a variable number of votes that represents, when combined with the votes attached to certain other shares of the Issuer beneficially held by the Filer and certain of his affiliates, at least 40% of the voting power attached to all of the Issuer's outstanding voting shares, provided that such variable number of votes does not cause the Filer and certain of his affiliates to exceed 49.9% of the aggregate voting power attached to all of the Issuer's outstanding voting shares. The Founder Share may not be directly or indirectly transferred by the Filer.

5. As of May 2, 2024, 1,209,425,431 Class A Shares, 79,258,749 Class B Shares, the Founder Share and no Preferred Shares were issued and outstanding. The Class A Shares represented 59.83% of the aggregate voting rights attached to all of the Issuer's outstanding Shares, the Class B Shares represented 39.21% of the aggregate voting rights attached to all of the Issuer's outstanding Shares and the Founder Share represented approximately 0.96% of the aggregate voting rights attached to all of the Issuer's outstanding Shares.

6. The Class A Shares are listed on the New York Stock Exchange and on the Toronto Stock Exchange under the symbol "SHOP".

7. The Issuer issued US$920,000,000 aggregate principal amount of 0.125% senior convertible notes (the Senior Notes) in each of the provinces and territories in Canada, other than Quebec, by way of prospectus supplement dated September 15, 2020 to the Issuer's short form base shelf prospectus dated August 6, 2020. The Senior Notes are convertible into Class A Shares, at an initial conversion rate of 0.6944 Class A Shares (following the Share Split, the initial conversion rate is equal to 6.944 Class A Shares) per $1,000 aggregate principal amount of Senior Notes and mature on November 1, 2025 unless redeemed, repurchased, or converted prior to maturity.

8. The Issuer is a reporting issuer in each of the Jurisdictions and is not in default of the securities legislation in any Jurisdiction.

9. The Filer is the Chief Executive Officer and Chair of the Board of the Issuer.

10. On August 26, 2015, the Filer established an automatic securities disposition plan (the Filer's Original ASDP) which terminated on December 31, 2016.

11. Pursuant to a decision of the OSC dated November 15, 2016 (the Original Exemption for Tobias Lütke), the Filer was granted exemptive relief to establish new automatic securities disposition plans, annually, in order to continue to allow the Filer to make orderly sales of Class A Shares from the Filer's holdings over time (each, a Annual Filer ASDP) following termination of the Filer's Original ASDP on December 31, 2016, and subsequently once each Annual Filer ASDP terminated, on December 31 of each year. The Original Exemption for Tobias Lütke expired on January 1, 2020.

12. Pursuant to a decision of the OSC dated December 6, 2019 (the 2019 Exemption for Tobias Lütke), the Filer was granted exemptive relief to establish an Annual Filer ASDP following termination of the Filer's Original ASDP on December 31, 2016. The 2019 Exemption for Tobias Lütke expired on January 1, 2021.

13. Pursuant to a decision of the OSC dated December 1, 2020 (the 2020 Exemption for Tobias Lütke), the Filer was granted exemptive relief to establish an Annual Filer ASDP following termination of the Filer's 2019 ASDP on December 31, 2020. The 2020 Exemption for Tobias Lütke expired on January 1, 2022.

14. The Filer had, beginning on August 26, 2015 and ending on January 1, 2022, continually established ASDPs in order to be able to continue to make orderly sales of Class A Shares from the Filer's holdings from time-to-time and may continue to establish ASDPs in the future for the same reason (each a "Filer ASDP")

15. As of May 2, 2024, the Filer directly or indirectly owned, in aggregate, 646,932 Class A Shares (the Filer Class A Shares), 78,918,520 Class B Shares (the Filer Class B Shares) and the Founder Share. The Filer Class A Shares represent approximately 0.05% of the outstanding Class A Shares, the Filer Class B Shares represent approximately 99.57% of the outstanding Class B Shares and the Filer holds the only Founder Share. As a result, the Filer owns, directly or indirectly, or exercises control or direction over shares representing 40.03% of the aggregate voting power attached to all of the Issuer's outstanding voting Shares. In addition, the Filer has been granted 432,513 restricted share units (the RSUs) and 5,024,835 share purchase options (the Options), that entitle the Filer to 5,457,348 Class A Shares upon vesting, and in the case of the Options, payment of the exercise price therefor and, in each case, subject to the conditions thereof.

16. The Filer is currently deemed to be a control person of the Issuer under the Legislation and the securities legislation of the Jurisdictions in which the Issuer is a reporting issuer.

17. The Filer is not in default of the securities legislation in any Jurisdiction.

Automatic Securities Disposition Plan

18. The Filer intends to establish a new Filer ASDP.

19. The Filer ASDP will be established in accordance with applicable securities legislation and staff guidance, including Canadian Securities Administrators Staff Notice 55-317 Automatic Securities Disposition Plans (Staff Notice 55-317), including the following:

i. the Issuer will oversee the establishment and use of each Filer ASDP;

ii. a Filer ASDP will include provisions prohibiting the commencement of sales under the Filer ASDP until after the filing of the Issuer's next interim financial report or annual financial statements;

iii. a Filer ASDP will include clear written trading parameters and other instructions, in the form of a written plan document, to the securities dealer appointed in connection with the Filer ASDP. The Filer ASDP will either include a formula or specify the number of securities to be sold, and set out any minimum trade price, if any, and any date or frequency of sales;

iv. a Filer ASDP will provide for a term that is sufficiently long to avoid any potential use of Material Undisclosed Information (as defined below);

v. a Filer ASDP will include meaningful restrictions on the ability of the Filer to amend, suspend or terminate such Filer ASDP;

vi. a Filer ASDP will include provisions prohibiting the securities dealer from consulting with the Filer regarding any sales under the Filer ASDP and the Filer from disclosing information to the securities dealer concerning the Issuer that might influence the execution;

vii. the Issuer will oversee the establishment and use of the Filer ASDP through application of its internal policies;

viii. at the time the Filer enters into a Filer ASDP, the Filer will not possess any knowledge of a material fact or material change with respect to the Issuer that has not been generally disclosed (collectively, Material Undisclosed Information) and the Filer ASDP will be entered into in accordance with the Issuer's insider trading policy;

ix. a Filer ASDP will be entered into in good faith and not as part of a plan or scheme to evade the prohibitions of securities legislation in any jurisdiction or any other applicable securities laws;

x. an establishment of a Filer ASDP will be disclosed by way of a news release of all relevant information on the System for Electronic Document Analysis and Retrieval (SEDAR+); and

xi. the Filer will file an insider report on the System for Electronic Disclosure by Insiders (SEDI) each time a trade is made under the Filer ASDP, specifying that such trade was made under the Filer ASDP.

20. It is anticipated that pursuant to the terms of a Filer ASDP, among other things:

i. all sales of Class A Shares will be conducted by a securities dealer on behalf of the Filer, with no participation by or direction or advice from the Filer;

ii. the total number of Class A Shares sold in the Sales Period (as defined below) under the Filer ASDP in reliance on the Exemption Sought will not exceed 2% of the total number of Class A Shares outstanding, as of the date of the establishment of such Filer ASDP; and

iii. all sales of Class A Shares will be conducted over a period (the Sales Period) that is specified in the corresponding Form 45-102F1 Notice of Intention to Distribute Securities (a Form 45-102F1) under Section 2.8 of National Instrument 45-102 Resale of Securities filed after the Filer ASDP is entered into as further described herein.

21. It is the intention of the Filer and the Issuer to rely on the exemption from the insider trading restriction available to trades conducted under automatic plans in the Legislation and corresponding law and regulation in the Jurisdictions for trades conducted under automatic plans.

22. Under the Filer ASDP intended to be effective on or around, June 10, 2024 (the Effective Date) it is currently the intention of the Filer to sell up to approximately 2,564,964 Class A Shares, which may include Class A Shares currently, directly or indirectly, held by Filer, Class A Shares issued to the Filer upon conversion of Class B Shares, Class A Shares issued to the Filer upon the vesting and/or exercise of the RSUs and/or Options of the Issuer, and/or Class A Shares owned by holding entities or charitable foundations over which the Filer may be considered to have, or share in the exercise of, control or direction.

23. If the Filer is deemed to be a control person of the Issuer, any sale of the Filer Class A Shares would be considered a "control distribution" (as such term is defined in National Instrument 45-102 Resale of Securities (NI 45-102)), and the Filer would either have to comply with the prospectus requirement or satisfy the conditions of the exemption from the prospectus requirement for trades by a control person in section 2.8 of NI 45-102 (the Prospectus Exemption for Control Trades).

24. The Filer's compliance with each of the conditions of the Prospectus Exemption for Control Trades would impede the implementation and operation of a Filer ASDP because the seven-day waiting period requirement in paragraph 2.8(3)(b) and the 30-day expiry provision in paragraph 2.8(4)(a) of NI 45-102 would prevent continued or successive dispositions under the Filer ASDP by requiring that the Filer refile a Form 45-102F1 respecting the proposed sales of Class A Shares every 30 days over the course of the duration of a Filer ASDP and that the Filer wait at least seven days before making the first trade after each filing of a Form 45-102F1. Compliance with these requirements would effectively limit the Filer's ability to conduct sales of Class A Shares to intermittent 23-day windows, separated by seven-day waiting periods, which would have a material detrimental impact on the Filer's ability to implement a Filer ASDP.

25. In absence of the Filer's compliance with each of the conditions of the Prospectus Exemption for Control Trades, the Filer requests the Exemption Sought in order to relieve the Filer from the prospectus requirement in connection with each disposition of Filer Class A Shares under a Filer ASDP and enable the establishment of a Filer ASDP in accordance with Staff Notice 55-317, while still providing timely and meaningful public disclosure of the intended and completed sales by the Filer of Class A Shares consistent with the policy rationale underlying section 2.8 of NI 45-102.

Decision

The principal regulator is satisfied that the decision meets the test set out in the Legislation for the principal regulator to make the decision.

The decision of the principal regulator under the Legislation is that the Exemption Sought is granted provided that:

(a) each Filer ASDP includes provisions restricting the commencement of sales under a Filer ASDP until after the filing of the Issuer's next interim financial report or annual financial statements;

(b) each Filer ASDP includes meaningful restrictions on the ability of the Filer to amend, suspend, or terminate the Filer ASDP;

(c) all sales of Class A Shares under a Filer ASDP are conducted by a securities dealer with no participation by or direction or advice from the Filer;

(d) at the time the Filer enters into a Filer ASDP, the Filer does not possess any Material Undisclosed Information;

(e) the total number of the Class A Shares sold under a Filer ASDP does not exceed 2% of the total number of Class A Shares outstanding, as of the date of the establishment of such Filer ASDP;

(f) the Filer files a completed and signed notice in the form of Form 45-102F1 (a "Notice") in accordance with NI 45-102 at least seven days prior to the first trade of Class A Shares under any Filer ASDP that discloses the aggregate number of Class A Shares intended to be sold under the Filer ASDP, and the Sales Period for the sale of Class A Shares under the Filer ASDP;

(g) the Filer files insider reports within three days of the completion of each sale under a Filer ASDP in accordance with the insider reporting obligation applicable to trades by a control person in paragraph 2.8(3)(c) of NI 45-102;

(h) the Sales Period under any Filer ASDP is equal to a minimum of 12 months;

(i) the Notice for a Filer ASDP is signed no earlier than one business day before it is filed;

(j) the Notice filed in connection with trades under any Filer ASDP expires on the earlier of:

i. the end of the applicable Sales Period; and

ii. the date that the Filer files the last of the insider reports reflecting the sale of all Class A Shares referred to in the Notice;

(k) the Filer does not conduct further sales of Class A Shares under a Filer ASDP following the expiry of the Notice for that Filer ASDP;

(l) the Filer does not conduct sales of Class A Shares under a Filer ASDP prior to the expiry of the Notice for any previously commenced Filer ASDP;

(m) the Issuer is and has been a reporting issuer in the jurisdiction of Canada for the four months immediately preceding each trade under any Filer ASDP;

(n) the Filer has held any Class A Shares, or securities or related financial instruments that were converted into or exercised or settled for such Class A Shares, sold under a Filer ASDP for at least four months prior to the trade of such Class A Shares;

(o) no unusual effort is made to prepare the market or to create a demand for the Class A Shares;

(p) no extraordinary commission or consideration is paid to a person or company in respect of the trade;

(q) the Issuer is not in default of securities legislation; and

(r) the Exemption Sought shall terminate on December 31, 2025.

Furthermore, the decision of the principal regulator under the Legislation is that the Confidentiality Relief is granted.

"Erin O'Donovan"
Manager, Corporate Finance
Ontario Securities Commission

OSC File #: 2024/0185