In our previous blog, we provided an introduction to normal course issuer bids (“NCIBs”) for issuers listed on the Toronto Stock Exchange (“TSX”). This week, we’ll cover the NCIB requirements of the TSX Venture Exchange (“TSXV”), the NEO Exchange (“NEO”) and the Canadian Securities Exchange (“CSE”).
NCIBs on the TSXV
NCIBs are subject to TSXV Policy 5.6, which defines an NCIB as an issuer bid where the purchases:
- do not exceed 2% of the total issued and outstanding securities of that class at the time the purchases are made, when aggregated with the total of all other purchases in the preceding 30 days (through the TSXV or otherwise); and
- over a 12-month period beginning on the date specified in the notice of the bid, are not greater than:
- 10% of the public float; or
- 5% of that class of issued and outstanding securities on the first day of the 12-month period.
A TSXV NCIB must not extend beyond one year after purchases begin.
Commencing a TSXV NCIB
Before you begin purchasing securities under an NCIB, you must submit a Notice of Intention to Make a Normal Course Issuer Bid (“Form 5G Notice”), issue a news release and provide shareholders with a summary of the material information in the Form 5G Notice.
Similar to the requirements of the TSX, you must submit a draft of your Form 5G Notice and news release to the TSXV before submitting and releasing them in their final form.
You are required to submit the following to the TSXV when seeking acceptance of an NCIB:
- a draft Form 5G Notice;
- a draft press release announcing the NCIB;
- a draft Automated Security Purchase Plan (ASPP), if you intend to enter an ASPP as part of the NCIB;
- confirmation that you have complied in all respects with the corporate legislation of your jurisdiction of incorporation;
- disclosure of the member that will be conducting the NCIB on your behalf;
- confirmation of the date you will mail documentation relating to the NCIB to your shareholders; and
- applicable filing fees.
Form 5G Notice
The Form 5G Notice sets out the number of shares your board has determined to acquire (and similar to the TSX, this should not simply be the maximum number of shares that may be purchased). The Form 5G Notice also includes your particulars, the duration of the NCIB, the method of acquiring the securities, the reason for the NCIB, a summary of any of your appraisals or valuations, previous purchases, and any benefits received by insiders, affiliates and associates.
Once the Form 5G Notice is accepted, an officer or director must complete a standard certificate and undertaking certifying that the information provided is full, true and plain disclosure of the NCIB.
Like the TSX, the TSXV will not accept a Form 5G Notice if you will not meet continued listing requirements after making all purchases contemplated in the Form 5G Notice.
Once the final Form 5G Notice is accepted, the TSXV will publish an Exchange Bulletin announcing the NCIB.
You must issue a news release indicating your intention to make an NCIB, subject to regulatory approval, before the TSXV accepts the executed Form 5G Notice. The news release should summarize the material aspects of the Form 5G Notice, including the name of the member conducting the NCIB on behalf of the issuer, number of shares sought, the percentage of the outstanding shares or public float sought, the reason for the bid and previous purchases.
An ASPP is an agreement between you and a broker that will conduct the purchase of your securities. When you conduct an NCIB using an ASPP, a draft of the ASPP should be submitted to the TSXV for review.
Disclosure to shareholders
You must also include a summary of the material information in the Form 5G Notice with your next annual report, information circular, quarterly report or other document mailed to your shareholders. This disclosure must explain that shareholders can obtain a copy of the Form 5G Notice without charge by contacting the issuer.
During the TSXV NCIB
You may begin making purchases under the NCIB three clear trading days after the TSXV receives all documents (including the originally executed Form 5G Notice) in final form. This is one additional clear trading day compared to the TSX NCIB.
Like a TSX NCIB, the TSXV requires you to file a report of the number of securities purchased in the previous month, the dates of the purchases, the average price paid, and whether the securities have been cancelled, reserved or otherwise dealt with. These reports must be filed within 10 days of the end of each month in which purchases are made.
Purchasing securities & prohibited transactions
TSXV NCIB purchases must be conducted through one designated member (the “Member”) and all transactions under the bid must be conducted through the facilities of the TSXV. Much like the TSX requirements, you must provide the Member with a copy of the Form 5G Notice and instruct them to make purchases in accordance with the provisions of the TSXV policies and the Form 5G Notice.
The TSXV has clear rules applying to all issuers conducting an NCIB and to the Member and their employees conducting the transactions on behalf of an issuer, including rules regarding:
- price limitations;
- prearranged trades;
- private agreements;
- purchases during a take-over bid; and
- trading during a distribution.
NCIBs on the NEO Exchange
The NEO has similar policies and procedures to the TSX and TSXV. You must complete your NCIB in accordance with section 7.19 – 7.21 of the NEO Listing Manual.
The NEO defines an NCIB as an issuer bid for a class of listed securities where the purchases over a 12-month period, calculated as of the date of filing the required documents described below, does not exceed the greater of:
- 10% of the public float; or
- 5% of the securities of the class outstanding.
You are required to submit the following to the NEO when seeking acceptance of an NCIB:
- a draft Form20A Notice of Normal Course Issuer Bid (“Form 20A Notice”); and
- a press release announcing the NCIB.
You must provide a draft Form 20A Notice seven trading days before issuing the news release announcing your NCIB. This form provides details regarding the maximum number of securities you intend to purchase, the reason for the bid, any restrictions on purchases and the number of shares purchased in the preceding 12 months. If you intend to enter an ASPP to conduct your NCIB, a draft of the ASPP should also be provided to the NEO for review. NEO NCIBs may not last more than a year from filing the Form 20A Notice. NCIBs are subject to certain restrictions on purchases, such as the limits on price and volume discussed above for TSXV-listed issuers.
Reporting purchased securities
You are required to file a Form 20B report indicating the number of securities purchased in the previous month, including the volume weighted average price paid. These reports must be filed within 10 days of the end of each month in which any purchases are made.
Canadian Securities Exchange
Unlike the TSX, TSXV and NEO, the CSE does not have a specific policy regarding NCIBs or issuer bids. You are required to make immediate disclosure of any actual or proposed issuer bids and should contact the CSE if contemplating an NCIB.
If you are not conducting an NCIB through a designated exchange, you must ensure you meet the NCIB requirements established in section 4.8(3) NI 62-104. If you are using another published market, you will be required to issue and file a news release containing the following information at least five days before beginning an NCIB:
- the class and number of securities or principal amount of debt securities sought;
- the dates, if known, on which the issuer bid will commence and expire;
- the value, in Canadian dollars, of the consideration offered per security;
- the manner in which the securities will be acquired; and
- the reason for the issuer bid.
A final note
The NCIB exemption provides an attractive alternative to the more complicated substantial issuer bid requirements if you intend to purchase smaller quantities of your own securities. The approval process is quick and flexible, allowing you to return capital to shareholders and invest in your business when the market price is attractive. With a new tax on share buybacks coming in 2024, now may be an optimal time to consider an NCIB.
If you’re contemplating an issuer bid, the MLT Aikins Corporate Finance & Securities team can help explain your options, proposed timelines and a process that best suits your needs. Contact us to learn more.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.