Bill S-226

90. (1) Subject to subsection (3), where a material change occurs in the affairs of a reporting issuer, it shall forthwith issue and file a news release authorized by a senior officer disclosing the nature and substance of the change.

(2) Subject to subsection (3), the reporting issuer shall file a report of such material change in accordance with the regulations as soon as practicable and in any event within ten days of the date on which the change occurs.

(3) Where,

(a) in the opinion of the reporting issuer, and if that opinion is arrived at in a reasonable manner, the disclosure required by subsections (1) and (2) would be unduly detrimental to the interests of the reporting issuer; or

(b) the material change consists of a decision to implement a change made by senior management of the issuer who believe that confirmation of the decision by the board of directors is probable and senior management of the issuer has no reason to believe that persons with knowledge of the material change have made use of that knowledge in purchasing or selling securities of the issuer,

the reporting issuer may, in lieu of compliance with subsection (1), forthwith file with the Commission the report required under subsection (2) marked so as to indicate that it is confidential, together with written reasons for non-disclosure.

(4) Where a report has been filed with the Commission under subsection (3), the reporting issuer shall advise the Commission in writing where it believes the report should continue to remain confidential within ten days of the date of filing of the initial report and every ten days thereafter until the material change is generally disclosed in the manner referred to in subsection (1) or, if the material change consists of a decision of the type referred to in paragraph (3)(b), until that decision has been rejected by the board of directors of the issuer.

(5) Although a report has been filed with the Commission under subsection (3), the reporting issuer shall promptly generally disclose the material change in the manner referred to in subsection (1) upon the reporting issuer becoming aware, or having reasonable grounds to believe, that persons or companies are purchasing or selling securities of the reporting issuer with knowledge of the material change that has not been generally disclosed.

91. (1) No person or company in a special relationship with a reporting issuer shall purchase or sell securities of the reporting issuer with the knowledge of a material fact or material change with respect to the reporting issuer that has not been generally disclosed.

(2) No reporting issuer and no person or company in a special relationship with a reporting issuer shall inform, other than in the necessary course of business, another person or company of a material fact or material change with respect to the reporting issuer before the material fact or material change has been generally disclosed.

(3) No person or company that proposes

(a) to make a takeover bid, as defined in Part XVIII, for the securities of a reporting issuer;

(b) to become a party to a reorganization, amalgamation, merger, arrangement or similar business combination with a reporting issuer; or

(c) to acquire a substantial portion of the property of a reporting issuer,

shall inform another person or company of a material fact or material change with respect to the reporting issuer before the material fact or material change has been generally disclosed except where the information is given in the necessary course of business to effect the takeover bid, business combination or acquisition.

(4) No person or company shall be found to have contravened subsection (1), (2) or (3) if the person or company proves that the person or company reasonably believed that the material fact or material change had been generally disclosed.

(5) For the purposes of this section,

“person or company in a special relationship with a reporting issuer” means

(a) a person or company that is an insider, affiliate or associate of

(i) the reporting issuer,

(ii) a person or company that is proposing to make a takeover bid, as defined in Part XVIII, for the securities of the reporting issuer, or

(iii) a person or company that is proposing to become a party to a reorganization, amalgamation, merger or arrangement or similar business combination with the reporting issuer or to acquire a substantial portion of its property;

(b) a person or company that is engaging in or proposes to engage in any business or professional activity with or on behalf of the reporting issuer or with or on behalf of a person or company described in subparagraph (a)(ii) or (iii);

(c) a person who is a director, officer or employee of the reporting issuer or of a person or company described in subparagraph (a)(ii) or (iii) or paragraph (b);

(d) a person or company that learned of the material fact or material change with respect to the reporting issuer while the person or company was a person or company described in paragraph (a), (b) or (c);

(e) a person or company that learns of a material fact or material change with respect to the issuer from any other person or company described in this subsection, including a person or company described in this paragraph, and knows or ought reasonably to have known that the other person or company is a person or company in such a relationship.

(6) For the purpose of subsection (1), a security of the reporting issuer shall be deemed to include

(a) a put, call, option or other right or obligation to purchase or sell securities of the reporting issuer; or

(b) a security, the market price of which varies materially with the market price of the securities of the issuer.

92. (1) Every reporting issuer that is not a mutual fund shall file within sixty days of the date to which it is made up an interim financial statement,

(a) where the reporting issuer has not completed its first financial year, for the periods commencing with the beginning of that year and ending nine, six and three months respectively before the date on which that year ends, but no interim financial statement is required to be filed for any period that is less than three months in length;

(b) where the reporting issuer has completed its first financial year, to the end of each of the three-month, six-month and nine-month periods of the current financial year that commenced immediately following the last financial year, including a comparative statement to the end of each of the corresponding periods in the last financial year,

made up and certified as required by the regulations and in accordance with generally accepted accounting principles.

(2) Every mutual fund in Canada shall file within sixty days of the date to which it is made up an interim financial statement,

(a) where the mutual fund in Canada has not completed its first financial year, for the period commencing with the beginning of that year and ending six months before the date on which that year ends but, if the first financial year is less than six months in length, no interim financial statement is required to be filed;

(b) where the mutual fund in Canada has completed its first financial year, for the six-month period of the current financial year that commenced immediately following the last financial year,

made up and certified as required by the regulations and in accordance with generally accepted accounting principles.

93. (1) Every reporting issuer that is not a mutual fund and every mutual fund in Canada shall file annually within 140 days from the end of its last financial year comparative financial statements relating separately to

(a) the period that commenced on the date of incorporation or organization and ended as of the close of the first financial year or, if the reporting issuer or mutual fund has completed a financial year, the last financial year, as the case may be; and

(b) the period covered by the financial year next preceding the last financial year, if any,

made up and certified as required by the regulations and in accordance with generally accepted accounting principles.

(2) Every financial statement referred to in subsection (1) shall be accompanied by a report of the auditor of the reporting issuer or mutual fund prepared in accordance with the regulations.

(3) The auditor of a reporting issuer or mutual fund shall make such examinations as will enable the auditor to make the report required by subsection (2).

(4) For the purposes of this Part,

“auditor”, where used in relation to the reporting issuer or mutual fund, includes the auditor of the reporting issuer or mutual fund and any other independent public accountant.

94. (1) Every reporting issuer or mutual fund in Canada that is required to file a financial statement under section 92 or 93 shall send a true copy of the financial statement to every holder of its securities whose latest address, as shown on its books, is in Canada.

(2) The reporting issuer or mutual fund in Canada shall send the true copy of the financial statement no later than the end of the period during which it is required to file the financial statement under section 92 or 93.

(3) Despite subsection (1), a reporting issuer or mutual fund in Canada is not required to send a copy of the financial statement to a security holder who holds its evidence of indebtedness only.

(4) If the laws of a reporting issuer’s jurisdiction of incorporation, organization or continuance impose requirements corresponding to the requirements in subsections (1) and (2), compliance with the requirements imposed by that jurisdiction shall be deemed to be compliance with the requirements in subsections (1) and (2).

95. Upon the application of a reporting issuer or other interested person or company or upon the motion of the Commission, the Commission may, where in the opinion of the Commission to do so would not be prejudicial to the public interest, make an order on such terms and conditions as the Commission may impose, exempting, in whole or in part, any reporting issuer from a requirement of this Part or the regulations relating to a requirement of this Part

(a) if such requirement conflicts with a requirement of the laws of the jurisdiction under which the reporting issuer is incorporated, organized or continued;

(b) if the reporting issuer ordinarily distributes financial information to holders of its securities in a form, or at times, different from those required by this Part; or

(c) if otherwise satisfied in the circumstances of the particular case that there is adequate justification for so doing.

96. (1) Where the management of a reporting issuer is required to send an information circular under paragraph 100(1)(a), the reporting issuer shall forthwith file a copy of such information circular certified in accordance with the regulations.

(2) In any case where subsection (1) is not applicable, the reporting issuer shall file annually within 140 days from the end of its last financial year a report prepared and certified in accordance with the regulations.

97. Where the laws of the jurisdiction in which the reporting issuer was incorporated, organized or continued require the reporting issuer to file substantially the same information in that jurisdiction as is required by this Part, the reporting issuer may comply with the filing requirements of this Part by filing copies of the news release, timely disclosure report, information circular or financial statements and auditor’s report, as the case may be, required by that jurisdiction provided such releases, reports, circulars or statements are manually signed or certified in accordance with the regulations.

98. In this Part,

“information circular” means an information circular prepared in accordance with the regulations;

“solicit” and “solicitation” include

(a) any request for a proxy whether or not accompanied by or included in a form of proxy;

(b) any request to execute or not to execute a form of proxy or to revoke a proxy;

(c) the sending or delivery of a form of proxy or other communication to a security holder under circumstances reasonably calculated to result in the procurement, withholding or revocation of a proxy;

(d) the sending or delivery of a form of proxy to a security holder under section 99,

but do not include

(e) the sending or delivery of a form of proxy to a security holder in response to an unsolicited request made by the security holder or on the security holder’s behalf;

(f) the performance by any person or company of ministerial acts or professional services on behalf of a person or company soliciting a proxy; or

(g) such other activities as may be prescribed in the regulations.

99. Subject to section 102, if the management of a reporting issuer gives or intends to give to holders of its voting securities notice of a meeting, the management shall, concurrently with or prior to giving the notice to the security holders whose latest address as shown on the books of the reporting issuer is in Canada, send to each such security holder who is entitled to notice of meeting, at the security holder’s latest address as shown on the books of the reporting issuer, a form of proxy for use at the meeting that complies with the regulations.

100. (1) Subject to subsection (2) and section 102, no person or company shall solicit proxies from holders of its voting securities whose latest address as shown on the books of the reporting issuer is in Canada unless

(a) in the case of a solicitation by or on behalf of the management of a reporting issuer, an information circular, either as an appendix to or as a separate document accompanying the notice of the meeting, is sent to each such security holder of the reporting issuer whose proxy is solicited at the security holder’s latest address as shown on the books of the reporting issuer; or

(b) in the case of any other solicitation, the person or company making the solicitation, concurrently with or prior thereto, delivers or sends an information circular to each such security holder whose proxy is solicited.

(2) Subsection (1) does not apply to

(a) any solicitation, otherwise than by or on behalf of the management of a reporting issuer, where the total number of security holders whose proxies are solicited is not more than fifteen, two or more persons or companies who are the joint registered owners of one or more securities being counted as one security holder;

(b) any solicitation, otherwise than by or on behalf of the management of a reporting issuer, in such other circumstances as may be prescribed in the regulations;

(c) any solicitation by a person or company made under section 65; or

(d) any solicitation by a person or company in respect of securities of which he, she or it is the beneficial owner.

101. The chair at a meeting has the right not to conduct a vote by way of ballot on any matter or group of matters in connection with which the form of proxy has provided a means whereby the person or company whose proxy is solicited may specify how such person or company wishes the securities registered in his, her or its name to be voted unless

(a) a poll is demanded by any security holder present at the meeting in person or represented thereat by proxy; or

(b) proxies requiring that the securities represented thereby be voted against what would otherwise be the decision of the meeting in relation to such matters or group of matters total more than 5 per cent of all the voting rights attached to all the securities entitled to be voted and be represented at the meeting.

102. (1) Where a reporting issuer is complying with the requirements of the laws of the jurisdiction under which it is incorporated, organized or continued and the requirements are substantially similar to the requirements of this Part, the requirements of this Part do not apply.

(2) Subject to subsection (1), upon the application of any interested person or company, the Commission may,

(a) if a requirement of this Part conflicts with a requirement of the laws of the jurisdiction under which the reporting issuer is incorporated, organized or continued; or

(b) if otherwise satisfied in the circumstances of the particular case that there is adequate justification for so doing,

make an order on such terms and conditions as the Commission may impose, exempting, in whole or in part, a person or company from the requirements of this Part and of section 96.

INTERPRETATION

103. (1) In this Part,

“bid circular” means a bid circular prepared in accordance with section 114;

“business day” means a day other than a Saturday or holiday;

“class of securities” includes a series of a class of securities;

“equity security” means a security of an issuer that carries a residual right to participate in the earnings of the issuer and, on liquidation or winding up of the issuer, in its assets;

“formal bid” means a formal takeover bid or a formal issuer bid;

“formal bid requirements” means sections 107 to 140;

“formal issuer bid” means an issuer bid that is not exempt from the formal bid requirements by sections 148 to 155;

“formal takeover bid” means a takeover bid that is not exempt from the formal bid requirements by sections 141 to 147;

“issuer bid” means an offer to acquire or redeem securities of an issuer made by the issuer to one or more persons or companies, any of whom is in Canada or whose last address as shown on the books of the offeree issuer is in Canada, and also includes an acquisition or redemption of securities of the issuer by the issuer from those persons or companies, but does not include an offer to acquire or redeem or an acquisition or redemption

(a) if no valuable consideration is offered or paid by the issuer for the securities;

(b) if the offer to acquire or redeem, or the acquisition or redemption is a step in an amalgamation, merger, reorganization or arrangement that requires approval in a vote of security holders; or

(c) if the securities are debt securities that are not convertible into securities other than debt securities;

“offeree issuer” means an issuer whose securities are the subject of a takeover bid, an issuer bid or an offer to acquire;

“offeror” means, except in sections 107 to 111, a person or company that makes a takeover bid, an issuer bid or an offer to acquire;

“offeror’s securities” means securities of an offeree issuer beneficially owned, or over which control or direction is exercised, on the date of an offer to acquire, by an offeror or by any person or company acting jointly or in concert with the offeror;

“offer to acquire” means

(a) an offer to purchase, or a solicitation of an offer to sell, securities;

(b) an acceptance of an offer to sell securities, whether or not the offer has been solicited; or

(c) any combination of the above;

“published market” means, with respect to any class of securities, a market in Canada or outside of Canada on which the securities are traded, if the prices at which they have been traded on that market are regularly

(a) disseminated electronically; or

(b) published in a newspaper or business or financial publication of general and regular paid circulation;

“subsidiary” means an issuer that is controlled directly or indirectly by another issuer and includes a subsidiary of that subsidiary;

“takeover bid” means an offer to acquire outstanding voting securities or equity securities of a class made to one or more persons or companies, any of whom is in Canada or whose last address as shown on the books of the offeree issuer is in Canada, where the securities subject to the offer to acquire, together with the offeror’s securities, constitute in the aggregate 20 per cent or more of the outstanding securities of that class of securities at the date of the offer to acquire but does not include an offer to acquire if the offer to acquire is a step in an amalgamation, merger, reorganization or arrangement that requires approval in a vote of security holders.

(2) For the purposes of this Part, an issuer shall be deemed to be an affiliate of another issuer if one of them is the subsidiary of the other or if each of them is controlled by the same person or company.

(3) For the purposes of this Part, a person or company controls a second person or company

(a) if the first person or company, directly or indirectly, beneficially owns or exercises control or direction over securities of the second person or company carrying votes which, if exercised, would entitle the first person or company to elect a majority of the directors of the second person or company, unless the first person or company holds the voting securities only to secure an obligation;

(b) if the second person or company is a partnership, other than a limited partnership, and the first person or company holds more than 50 per cent of the interests of the partnership; or

(c) if the second person or company is a limited partnership and the general partner of the limited partnership is the first person or company.

(4) For the purposes of this Part, a period of days is to be computed as beginning on the day following the event that began the period and ending at 11:59 p.m. on the last day of the period if that day is a business day or at 11:59 p.m. on the next business day if the last day of the period does not fall on a business day.

(5) For the purposes of this Part,

(a) a security shall be deemed to be convertible into a security of another class if, whether or not on conditions, it is or may be convertible into or exchangeable for, or if it carries the right or obligation to acquire, a security of the other class, whether of the same or another issuer; and

(b) a security that is convertible into a security of another class shall be deemed to be convertible into a security or securities of each class into which the second-mentioned security may be converted, either directly or through securities of one or more other classes of securities that are themselves convertible.

104. (1) For the purposes of this Part, in determining the beneficial ownership of securities of an offeror or of any person or company acting jointly or in concert with the offeror, at any given date, the offeror or the person or company shall be deemed to have acquired and to be the beneficial owner of a security, including an unissued security, if the offeror or the person or company is the beneficial owner of a security convertible into the security within sixty days following that date or has a right or obligation permitting or requiring the offeror or the person or company, whether or not on conditions, to acquire beneficial ownership of the security within sixty days, by a single transaction or a series of linked transactions.

(2) The number of outstanding securities of a class in respect of an offer to acquire includes securities that are beneficially owned as determined in accordance with subsection (1).

(3) If two or more offerors acting jointly or in concert make one or more offers to acquire securities of a class, the securities subject to the offer or offers to acquire shall be deemed to be securities subject to the offer to acquire of each offeror for the purpose of determining whether an offeror is making a takeover bid.

(4) For the purposes of this section, an offeror is not a beneficial owner of securities solely because there is an agreement, commitment or understanding that a security holder will tender the securities under a formal bid made by the offeror.

105. (1) For the purposes of this Part, it is a question of fact as to whether a person or company is acting jointly or in concert with an offeror and, without limiting the generality of the foregoing,

(a) the following shall be deemed to be acting jointly or in concert with an offeror:

(i) a person or company who, as a result of any agreement, commitment or understanding with the offeror or with any other person or company acting jointly or in concert with the offeror, acquires or offers to acquire securities of the same class as those subject to the offer to acquire, and

(ii) an affiliate of the offeror; and

(b) the following shall be presumed to be acting jointly or in concert with an offeror:

(i) a person or company who, as a result of any agreement, commitment or understanding with the offeror or with any other person or company acting jointly or in concert with the offeror, intends to exercise jointly or in concert with the offeror or with any person or company acting jointly or in concert with the offeror any voting rights attaching to any securities of the offeree issuer, and

(ii) an associate of the offeror.

(2) Subsection (1) does not apply to a registered dealer acting solely in an agency capacity for the offeror in connection with a bid and not executing principal transactions in the class of securities subject to the offer to acquire or performing services beyond the customary functions of a registered dealer.

(3) For the purposes of this section, a person or company is not acting jointly or in concert with an offeror solely because there is an agreement, commitment or understanding that the person or company will tender securities under a formal bid made by the offeror.

106. For the purposes of this Part, a reference to an offer to acquire or to the acquisition or ownership of securities or to control or direction over securities includes a direct or indirect offer to acquire or the direct or indirect acquisition or ownership of securities, or the direct or indirect control or direction over securities, as the case may be.

BID INTEGRATION RULES FOR FORMAL BIDS

107. In sections 108 to 111,

“offeror” means

(a) a person or company making a formal bid;

(b) a person or company acting jointly or in concert with a person or company referred to in paragraph (a);

(c) a control person of a person or company referred to in paragraph (a); or

(d) a person or company acting jointly or in concert with the control person referred to in paragraph (c).

108. (1) An offeror shall not offer to acquire, or make or enter into an agreement, commitment or understanding to acquire beneficial ownership of any securities of the class that are subject to a formal takeover bid or securities convertible into securities of that class otherwise than under the bid on and from the day of the announcement of the offeror’s intention to make the bid until the expiry of the bid.

(2) Subsection (1) does not apply to an offeror’s acquisitions of beneficial ownership of 5 per cent or less, in the aggregate, of the outstanding securities of the class that is subject to the bid if the acquisitions satisfy such conditions as may be specified by regulation.

(3) For the purposes of subsection (2), the acquisition of beneficial ownership of securities that are convertible into securities of the class that is subject to the bid shall be deemed to be an acquisition of the securities as converted.

(4) An offeror shall not offer to acquire, or make or enter into an agreement, commitment or understanding to acquire, beneficial ownership of any securities of the class that are subject to a formal issuer bid, or securities that are convertible into securities of that class, otherwise than under the bid on and from the day of the announcement of the offeror’s intention to make the bid until the expiry of the bid.

(5) Subsections (1) and (4) do not apply in such other circumstances as may be specified by regulation.

109. (1) If, within the period of ninety days immediately preceding a formal takeover bid, an offeror acquired beneficial ownership of securities of the class subject to the bid in a transaction not generally available on identical terms to holders of that class of securities,

(a) the offeror shall offer

(i) consideration for securities deposited under the bid at least equal to and in the same form as the highest consideration that was paid on a per security basis under any such prior transaction, or

(ii) at least the cash equivalent of that consideration; and

(b) the offeror shall offer to acquire under the bid that percentage of the securities of the class subject to the bid that is at least equal to the highest percentage that the number of securities acquired from a seller in any such prior transaction was of the total number of securities of that class beneficially owned by that seller at the time of that prior transaction.

(2) Subsection (1) does not apply to trades effected in the normal course on a published market if the trades satisfy such conditions as may be specified by regulation.

(3) Subsection (1) does not apply in such other circumstances as may be specified by regulation.

110. (1) During the period beginning with the expiry of a formal bid and ending at the end of the twentieth business day after that, whether or not any securities are taken up under the bid, an offeror shall not acquire or offer to acquire beneficial ownership of securities of the class that was subject to the bid except by way of a transaction that is generally available to holders of that class of securities on identical terms.

(2) Subsection (1) does not apply to trades effected in the normal course on a published market if the trades satisfy such conditions as may be specified by regulation.

(3) Subsection (1) does not apply in such other circumstances as may be specified by regulation.

111. (1) An offeror, except pursuant to the formal bid, shall not sell, or make or enter into an agreement, commitment or understanding to sell, any securities of the class subject to the bid, or securities that are convertible into securities of that class, beginning on the day of the announcement of the offeror’s intention to make the bid until the expiry of the bid.

(2) Despite subsection (1), an offeror may, before the expiry of a bid, make or enter into an agreement, commitment or understanding to sell securities that may be taken up by the offeror under the bid, after the expiry of the bid, if the intention to sell is disclosed in the bid circular.

(3) Subsection (1) does not apply in such other circumstances as may be specified by regulation.

MAKING A FORMAL BID

112. An offeror shall make a formal bid to all holders of the class of securities subject to the bid who are in Canada by sending the bid

(a) to each holder of that class of securities whose last address as shown on the books of the offeree issuer is in Canada; and

(b) to each holder of securities that, before the expiry of the deposit period referred to in the bid, are convertible into securities of that class, whose last address as shown on the books of the offeree issuer is in Canada.

113. (1) An offeror shall commence a formal takeover bid

(a) by publishing an advertisement containing a brief summary of the bid in at least one major daily newspaper of general and regular paid circulation in Canada; or

(b) by sending the bid to the security holders described in section 112.

(2) An offeror shall commence a formal issuer bid by sending the bid to the security holders described in section 112.

114. (1) An offeror making a formal bid shall prepare a takeover bid circular or an issuer bid circular, as the case may be, containing the information required by the regulations and in the form required by the regulations and shall send the bid circular either as part of the bid or together with the bid.

(2) An offeror commencing a formal takeover bid by means of an advertisement under paragraph 113(1)(a) shall,

(a) on or before the date of first publication of the advertisement, deliver the bid and the bid circular to the offeree issuer’s principal office and file the bid, the bid circular and the advertisement;

(b) on or before the date of first publication of the advertisement, request from the offeree issuer a list of security holders described in section 112; and

(c) not later than two business days after receipt of the list of security holders referred to in paragraph (b), send the bid and the bid circular to those security holders.

(3) An offeror commencing a takeover bid under paragraph 113(1)(b) shall file the bid and the bid circular and deliver them to the offeree issuer’s principal office on the day the bid is sent, or as soon as practicable after that.

(4) An offeror making a formal issuer bid shall file the bid and the bid circular on the day the bid is sent, or as soon as practicable after that.

115. (1) If, before the expiry of a formal bid or after the expiry of a bid but before the expiry of all rights to withdraw the securities deposited under the bid, a change has occurred in the information contained in the bid circular or any notice of change or notice of variation that would reasonably be expected to affect the decision of the security holders of the offeree issuer to accept or reject the bid, the offeror shall promptly

(a) issue and file a news release; and

(b) send a notice of the change to every person or company to whom the bid was required to be sent and whose securities were not taken up before the date of the change.

(2) Subsection (1) does not apply to a change that is not within the control of the offeror or of an affiliate of the offeror unless it is a change in a material fact relating to the securities being offered in exchange for securities of the offeree issuer.

(3) For the purposes of this section, a variation in the terms of a bid does not constitute a change in information.

(4) A notice of change in relation to a bid circular shall contain the information required by the regulations and be in the form required by the regulations.

116. (1) If there is a variation in the terms of a formal bid, including any extension of the period during which securities may be deposited under the bid, and whether or not that variation results from the exercise of any right contained in the bid, the offeror shall promptly issue and file a news release and send a notice of variation to every person or company to whom the bid was required to be sent and whose securities were not taken up before the date of the variation.

(2) A notice of variation in relation to a formal bid shall contain the information required by the regulations and be in the form required by the regulations.

(3) If there is a variation in the terms of a formal bid, the period during which securities may be deposited under the bid shall not expire before ten days after the date of the notice of variation.

(4) Subsections (1) and (3) do not apply to a variation in the terms of a bid consisting solely of the waiver of a condition in the bid and any extension of the bid resulting from the waiver where the consideration offered for the securities consists solely of cash, but in that case the offeror shall promptly issue and file a news release announcing the waiver.

(5) A variation in the terms of a formal bid, other than a variation that is the waiver by the offeror of a condition that is specifically stated in the bid as being waivable at the sole option of the offeror, shall not be made after the expiry of the period, including any extension of the period, during which the securities may be deposited under the bid.

117. A notice of change or notice of variation in respect of a formal bid shall be filed and, in the case of a takeover bid, delivered to the offeree issuer’s principal office on the day the notice of change or notice of variation is sent to security holders of the offeree issuer or as soon as practicable after that.

118. (1) If a change or variation occurs to a formal takeover bid that was commenced by means of an advertisement and if the offeror has complied with paragraphs 114(2)(a) and (b) but has not yet sent the bid and the bid circular as required by paragraph 114(2)(c), the offeror shall

(a) publish an advertisement that contains a brief summary of the change or variation in at least one major daily newspaper of general and regular paid circulation in Canada;

(b) concurrently with the date of first publication of the advertisement,

(i) file the advertisement, and

(ii) file and deliver a notice of change or notice of variation to the offeree issuer’s principal office; and

(c) subsequently send the bid, the bid circular and the notice of change or notice of variation to the security holders of the offeree issuer before the expiration of the period set out in paragraph 114(2)(c).

(2) If an offeror satisfies the requirements of subsection (1), the notice of change or notice of variation is not required to be filed and sent under section 117.

119. (1) If a report, valuation, statement or opinion of an expert is included in or accompanies a bid circular or any notice of change or notice of variation, the written consent of the expert to the use of the report, valuation, statement or opinion shall be filed concurrently with the bid circular or notice of change or notice of variation.

(2) For the purposes of this section,

“expert” includes a notary, a solicitor, an auditor, an accountant, an engineer, a geologist, an appraiser or any other person or company whose profession or business gives authority to a statement made in a professional capacity by that person or company.

120. (1) A formal bid, a bid circular and every notice of change or notice of variation shall be mailed by pre-paid mail to the intended recipient or delivered to the intended recipient by personal delivery, courier or other manner acceptable to the Director.

(2) Except for a takeover bid commenced by means of an advertisement under paragraph 113(1)(a), a bid, bid circular, notice of change or notice of variation sent in accordance with subsection (1) shall be deemed to be dated as of the date it was sent to all or substantially all of the persons and companies entitled to receive it.

(3) If a takeover bid is commenced by means of an advertisement under paragraph 113(1)(a), the bid, bid circular, notice of change or notice of variation shall be deemed to have been dated as of the date of first publication of the relevant advertisement.

OFFEREE ISSUER’S OBLIGATIONS

121. (1) If a formal takeover bid has been made, the board of directors of the offeree issuer shall prepare and send, not later than fifteen days after the date of the bid, a directors’ circular to every person or company to whom the bid was required to be sent.

(2) The board of directors of the offeree issuer shall evaluate the terms of a formal takeover bid and, in the directors’ circular,

(a) shall recommend to security holders that they accept or reject the bid and give reasons for the recommendation;

(b) shall advise security holders that the board is unable to make, or is not making, a recommendation and state the reasons for being unable to make a recommendation or for not making a recommendation; or

(c) shall advise security holders that the board is considering whether to make a recommendation to accept or reject the bid, shall state the reasons for not making a recommendation in the directors’ circular and may advise security holders that they should not deposit their securities under the bid until they receive further communication from the board in accordance with paragraph (a) or (b).

(3) If paragraph (2)(c) applies, the board of directors shall communicate to security holders a recommendation or the decision that it is unable to make, or is not making, a recommendation, together with the reasons for the recommendation or the decision, at least seven days before the scheduled expiry of the period during which securities may be deposited under the bid.

(4) A directors’ circular shall contain the information required by the regulations and be in the form required by the regulations.

122. (1) If, before the expiry of a takeover bid or after the expiry of a takeover bid but before the expiry of all rights to withdraw the securities deposited under the bid, a change has occurred in the information contained in the directors’ circular or in any notice of change to the directors’ circular that would reasonably be expected to affect the decision of the security holders to accept or reject the bid, the board of directors of the offeree issuer shall promptly issue and file a news release relating to the change and send a notice of the change to every person or company to whom the takeover bid was required to be sent disclosing the nature and substance of the change.

(2) A notice of change in relation to a directors’ circular shall contain the information required by the regulations and be in the form required by the regulations.

123. The board of directors of the offeree issuer shall concurrently file the directors’ circular or a notice of change in relation to it and deliver it to the principal office of the offeror not later than the date on which it is sent to the security holders of the offeree issuer, or as soon as practicable after that.

124. (1) An individual director or officer may recommend acceptance or rejection of a takeover bid if the director or officer sends with the recommendation a separate director’s or officer’s circular to every person or company to whom the takeover bid was required to be sent.

(2) If, before the expiry of a takeover bid or after the expiry of a takeover bid but before the expiry of all rights to withdraw the securities deposited under the bid, a change has occurred in the information contained in a director’s or officer’s circular or any notice of change in relation to it that would reasonably be expected to affect the decision of the security holders to accept or reject the bid, other than a change that is not within the control of the director or officer, as the case may be, that director or officer shall promptly send a notice of change to every person or company to whom the takeover bid was required to be sent.

(3) A director’s or officer’s circular shall contain the information required by the regulations and be in the form required by the regulations.

(4) A director’s or officer’s obligation to send a circular under subsection (1) or to send a notice of change under subsection (2) may be satisfied by sending the circular or the notice of change, as the case may be, to the board of directors of the offeree issuer.

(5) If a director or officer sends to the board of directors of the offeree issuer a circular under subsection (1) or a notice of change under subsection (2), the board, at the offeree issuer’s expense, shall promptly send a copy of the circular or notice to every person or company to whom the takeover bid was required to be sent.

(6) The board of directors of the offeree issuer or the individual director or officer, as the case may be, shall concurrently file the director’s or officer’s circular or a notice of change in relation to it and send it to the principal office of the offeror not later than the date on which it is sent to the security holders of the offeree issuer, or as soon as practicable after that.

(7) A notice of change in relation to a director’s or officer’s circular shall contain the information required by the regulations and be in the form required by the regulations.

125. If a report, valuation, statement or opinion of an expert, as defined in subsection 119(2), is included in or accompanies a directors’ circular, an individual director’s or officer’s circular or a notice of change, the written consent of the expert to the use of the report, valuation, statement or opinion shall be filed concurrently with the circular or notice.

126. (1) A directors’ circular, an individual director’s or officer’s circular and every notice of change shall be mailed by pre-paid mail to the intended recipient or delivered to the intended recipient by personal delivery, courier or other manner acceptable to the Director.

(2) Any circular or notice sent in accordance with this section shall be deemed to be dated as of the date it was sent to all or substantially all of the persons and companies entitled to receive it.

OFFEROR’S OBLIGATIONS

127. (1) If a formal bid is made, all holders of the same class of securities shall be offered identical consideration.

(2) Subsection (1) does not prohibit an offeror from offering an identical choice of consideration to all holders of the same class of securities.

(3) If a variation in the terms of a formal bid before the expiry of the bid increases the value of the consideration offered for the securities subject to the bid, the offeror shall pay that increased consideration to each person or company whose securities are taken up under the bid, whether or not the securities were taken up by the offeror before the variation of the bid.

128. (1) If a person or company makes or intends to make a formal bid, the person or company or any person or company acting jointly or in concert with that person or company shall not enter into any collateral agreement, commitment or understanding that has the effect, directly or indirectly, of providing a security holder of the offeree issuer with consideration of greater value than that offered to the other security holders of the same class of securities.

(2) Subsection (1) does not apply to such employment compensation arrangements, severance arrangements or other employment benefit arrangements as may be specified by regulation.

129. (1) If a formal bid is made for less than all of the class of securities subject to the bid and a greater number of securities is deposited under the bid than the offeror is bound or willing to acquire under the bid, the offeror shall take up and pay for the securities proportionately, disregarding fractions, according to the number of securities deposited by each security holder.

(2) For the purposes of subsection (1), any securities acquired in a pre-bid transaction to which subsection 109(1) applies shall be deemed to have been deposited under the bid by the person or company who was the seller in the pre-bid transaction.

(3) Subsection (1) does not apply in such circumstances as may be specified by regulation.

130. (1) If a formal bid provides that the consideration for the securities deposited under the bid is to be paid in cash or partly in cash, the offeror shall make adequate arrangements before the bid to ensure that the required funds are available to make full payment for the securities that the offeror has offered to acquire.

(2) The financing arrangements required to be made under subsection (1) may be subject to conditions if, at the time the bid is commenced, the offeror reasonably believes the possibility to be remote that, if the conditions of the bid are satisfied or waived, the offeror will be unable to pay for the securities deposited under the bid due to a financing condition not being satisfied.

BID MECHANICS

131. (1) An offeror shall allow securities to be deposited under a formal bid for at least thirty-five days from the date of the bid.

(2) An offeror shall not take up securities deposited under a formal bid until the expiration of thirty-five days from the date of the bid.

132. (1) A security holder may withdraw securities deposited under a formal bid

(a) at any time before the securities have been taken up by the offeror;

(b) at any time before the expiration of ten days from the date of a notice of change under section 115 or a notice of variation under section 116; or

(c) if the securities have not been paid for by the offeror within three business days after the securities have been taken up.

(2) The right of withdrawal under paragraph (1)(b) does not apply if the securities have been taken up by the offeror before the date of the notice of change or notice of variation or if one or both of the following circumstances occur:

(a) a variation in the terms of the bid consisting only of an increase in consideration offered for the securities and an extension of the time for deposit to not later than ten days after the date of the notice of variation;

(b) a variation in the terms of the bid consisting solely of the waiver of one or more of the conditions of the bid where the consideration offered for the securities subject to the bid consists solely of cash.

(3) The withdrawal of any securities under subsection (1) shall be made by sending a written notice to the depository designated in the bid circular and becomes effective on its receipt by the depository.

(4) If notice is given in accordance with subsection (3), the offeror shall promptly return the securities to the security holder.

133. If an offeror purchases securities under an exemption to subsection 108(1), those purchased securities shall be counted in determining whether a condition as to the minimum number of securities to be deposited under a bid has been fulfilled, but shall not reduce the number of securities the offeror is bound to take up under the bid.

134. (1) If all the terms and conditions of a formal bid have been complied with or waived, the offeror shall take up and pay for securities deposited under the bid not later than ten days after the expiry of the bid or at the time required by subsection (2) or (3), whichever is earliest.

(2) An offeror shall pay for any securities taken up under a formal bid as soon as possible, and in any event not later than three business days after the securities deposited under the bid are taken up.

(3) Securities deposited under a formal bid subsequent to the date on which the offeror first takes up securities deposited under the bid shall be taken up and paid for by the offeror not later than ten days after the deposit of the securities.

(4) An offeror may not extend its formal bid if all the terms and conditions of the bid have been complied with or waived, unless the offeror first takes up all securities deposited under the bid and not withdrawn.

(5) Despite subsections (3) and (4), if a formal bid is made for less than all of the class of securities subject to the bid, an offeror is only required to take up, by the times specified in those subsections, the maximum number of securities that the offeror can take up without contravening section 127 or 129 at the expiry of the bid.

(6) Despite subsection (4), if the offeror waives any terms or conditions of a formal bid and extends the bid in circumstances where the rights of withdrawal conferred by paragraph 132(1)(b) are applicable, the bid shall be extended without the offeror first taking up the securities which are subject to the rights of withdrawal.

135. A formal bid expires at the later of

(a) the end of the period, including any extension, during which securities may be deposited under the bid; and

(b) the time at which the offeror becomes obligated by the terms of the bid to take up or reject securities deposited under the bid.

136. If, following the expiry of a bid, an offeror knows that it will not take up securities deposited under the bid, the offeror shall promptly issue and file a news release to that effect and return the securities to the security holders.

137. If all the terms and conditions of a bid have been complied with or waived, the offeror shall issue and file a news release to that effect promptly after the expiry of the bid, and the news release shall disclose

(a) the approximate number of securities deposited; and

(b) the approximate number that will be taken up.

138. An offeror making a formal bid, and an offeree issuer whose securities are the subject of a formal bid, shall file copies of the documents required by the regulations and any amendments to those documents, in accordance with the regulations, unless the documents and amendments have been previously filed.

139. (1) A bid circular, or a notice of change or notice of variation in respect of the bid circular required under this Part shall contain a certificate of the offeror in the form required by the regulations and the certificate must be signed,

(a) if the offeror is a person or company other than an individual, by each of the following:

(i) the chief executive officer or, in the case of a person or company that does not have a chief executive officer, the individual who performs similar functions to a chief executive officer,

(ii) the chief financial officer or, in the case of a person or company that does not have a chief financial officer, the individual who performs similar functions to a chief financial officer, and

(iii) two directors, other than the chief executive officer and the chief financial officer, who are duly authorized by the board of directors of that person or company to sign on behalf of the board of directors; or

(b) if the offeror is an individual, by the individual.

(2) For the purposes of paragraph (1)(a), if the offeror has fewer than four directors and officers, the certificate must be signed by all of the directors and officers.

(3) A directors’ circular or a notice of change in respect of a directors’ circular required under this Part must contain a certificate of the board of directors of the offeree issuer in the form required by the regulations and the certificate must be signed by two directors who are duly authorized by the board of directors of the offeree issuer to sign on behalf of the board of directors.

(4) Every person who files and sends an individual director’s or officer’s circular or a notice of change in respect of an individual director’s or officer’s circular under this Part shall ensure that the circular or notice contains a certificate in the form required by the regulations and the certificate must be signed by or on behalf of the director or officer sending the circular or notice.

(5) If the Director is satisfied that either or both of the chief executive officer or chief financial officer cannot sign a certificate required under this Part, the Director may accept a certificate signed by another officer or director.

140. (1) If a person or company makes or proposes to make a formal takeover bid for a class of securities of an issuer that is not otherwise required by law to provide a list of its security holders to the person or company, the issuer shall provide a list of holders of that class of securities, and any known holder of an option or right to acquire securities of that class, to enable the person or company to carry out the bid in compliance with this Part.

(2) For the purposes of subsection (1), section 21 of the Canada Business Corporations Act applies with necessary modifications to the person or company making or proposing to make the takeover bid and to the issuer, except that the affidavit that accompanies the request for the list of security holders shall state that the list will not be used except in connection with a formal takeover bid for securities of the issuer.

EXEMPT TAKEOVER BIDS

141. A takeover bid is exempt from the formal bid requirements if all of the following conditions are satisfied:

(a) the bid is for not more than 5 per cent of the outstanding securities of a class of securities of the offeree issuer;

(b) the aggregate number of securities acquired in reliance on this exemption by the offeror and any person or company acting jointly or in concert with the offeror within any period of twelve months, when aggregated with acquisitions otherwise made by the offeror and any person or company acting jointly or in concert with the offeror within the same twelve-month period, other than under a formal bid, does not exceed 5 per cent of the outstanding securities of that class at the beginning of the twelve-month period;

(c) there is a published market for the class of securities that are the subject of the bid;

(d) the value of the consideration paid for any of the securities acquired is not in excess of the market price at the date of acquisition as determined in accordance with the regulations, plus reasonable brokerage fees or commissions actually paid.

142. (1) A takeover bid is exempt from the formal bid requirements if all of the following conditions are satisfied:

(a) purchases are made from not more than five persons or companies in the aggregate, including persons or companies located outside of Canada;

(b) the bid is not made generally to security holders of the class of securities that is the subject of the bid, so long as there are more than five security holders of the class;

(c) if there is a published market for the securities acquired, the value of the consideration paid for any of the securities, including brokerage fees or commissions, is not greater than 115 per cent of the market price of the securities at the date of the bid as determined in accordance with the regulations;

(d) if there is no published market for the securities acquired, there is a reasonable basis for determining that the value of the consideration paid for any of the securities is not greater than 115 per cent of the value of the securities.

(2) For the purposes of subsection (1), if an offeror makes an offer to acquire securities from a person or company and the offeror knows or ought to know after reasonable enquiry that the person or company acquired the securities in order that the offeror might make use of the exemption under subsection (1), then each person or company from whom those securities were acquired shall be included in the determination of the number of persons and companies to whom an offer to acquire has been made.

(3) For the purposes of subsection (1), if an offeror makes an offer to acquire securities from a person or company and the offeror knows or ought to know after reasonable enquiry that the person or company from whom the acquisition is being made is acting as a nominee, agent, trustee, executor, administrator or other legal representative for one or more other persons or companies having a direct beneficial interest in those securities, then each of those other persons or companies shall be included in the determination of the number of persons and companies to whom an offer to acquire has been made.

(4) Despite subsection (3), a trust or estate is to be considered a single security holder in the determination of the number of persons and companies to whom an offer to acquire has been made

(a) if an inter vivos trust has been established by a single settlor; or

(b) if an estate has not vested in all who are beneficially entitled to it.

143. A takeover bid is exempt from the formal bid requirements if the offeree issuer is not a reporting issuer and if such other conditions as may be specified by regulation are satisfied.

144. Subject to section 146, a takeover bid is exempt from the formal bid requirements if all of the following conditions are satisfied:

(a) security holders whose last address as shown on the books of the offeree issuer is in Canada hold less than 10 per cent of the outstanding securities of the class subject to the bid at the commencement of the bid;

(b) the offeror reasonably believes that security holders in Canada beneficially own less than 10 per cent of the outstanding securities of the class subject to the bid at the commencement of the bid;

(c) the published market on which the greatest dollar volume of trading in securities of that class occurred during the twelve months immediately preceding the commencement of the bid was not in Canada;

(d) security holders in Canada are entitled to participate in the bid on terms at least as favourable as the terms that apply to the general body of security holders of the same class.

145. Subject to section 146, a takeover bid is exempt from the formal bid requirements if both of the following conditions are satisfied:

(a) the number of beneficial owners of securities of the class subject to the bid in Canada is fewer than fifty and the securities held by them constitute, in aggregate, less than 2 per cent of the outstanding securities of that class;

(b) security holders in Canada are entitled to participate in the bid on terms at least as favourable as the terms that apply to the general body of security holders of the same class.

146. A takeover bid described in section 144 or 145 is not exempt from the formal bid requirements unless

(a) the information and documents specified by regulation are provided to security holders in Canada in accordance with the regulations; and

(b) the information specified by regulation about the bid is made public in accordance with the regulations.

147. A takeover bid is exempt from the formal bid requirements if it is exempted by the regulations.

EXEMPT ISSUER BIDS

148. An issuer bid for a class of securities is exempt from the formal bid requirements if any of the following conditions is satisfied:

(a) the securities are purchased, redeemed or otherwise acquired in accordance with the terms and conditions attaching to the class of securities that permit the purchase, redemption or acquisition of the securities by the issuer without the prior agreement of the owners of the securities, or the securities are acquired to meet sinking fund or purchase fund requirements;

(b) the purchase, redemption or other acquisition is required by the terms and conditions attaching to the class of securities or by the statute under which the issuer was incorporated, organized or continued;

(c) the terms and conditions attaching to the class of securities contain a right of the owner to require the issuer of the securities to redeem, repurchase, or otherwise acquire the securities, and the securities are acquired pursuant to the exercise of the right.

149. An issuer bid is exempt from the formal bid requirements if the securities are acquired from a current or former employee, executive officer, director or consultant of the issuer or of an affiliate of the issuer and, if there is a published market in respect of the securities,

(a) the value of the consideration paid for any of the securities acquired is not greater than the market price of the securities at the date of the acquisition, determined in accordance with the regulations; and

(b) the aggregate number of securities or, in the case of convertible debt securities, the aggregate principal amount of securities acquired by the issuer within any period of twelve months in reliance on the exemption provided by this subsection does not exceed 5 per cent of the securities of that class outstanding at the beginning of the twelve-month period.

150. (1) An issuer bid that is made in the normal course through the facilities of a designated exchange is exempt from the formal bid requirements if the bid is made in accordance with the bylaws, rules, regulations and policies of that exchange.

(2) An issuer bid that is made in the normal course on a published market, other than a designated exchange, is exempt from the formal bid requirements if all of the following conditions are satisfied:

(a) the bid is for not more than 5 per cent of the outstanding securities of a class of securities of the issuer;

(b) the aggregate number of securities or, in the case of convertible debt securities, the aggregate principal amount of securities acquired in reliance on this exemption by the issuer and any person or company acting jointly or in concert with the issuer within any period of twelve months does not exceed 5 per cent of the outstanding securities of that class at the beginning of the twelve-month period;

(c) the value of the consideration paid for any of the securities acquired is not in excess of the market price at the date of acquisition as determined in accordance with the regulations, plus reasonable brokerage fees or commissions actually paid.

(3) An issuer making a bid under subsection (1) shall promptly file any news releases that the designated exchange requires to be issued.

(4) An issuer making a bid under subsection (2) shall issue and file, at least five days before the commencement of the bid, a news release containing the information prescribed by the regulations.

(5) In this section,

“designated exchange” means an exchange designated by the Commission for the purpose of this section.

151. An issuer bid is exempt from the formal bid requirements if the issuer is not a reporting issuer and if such other conditions as may be specified by regulation are satisfied.

152. Subject to section 154, an issuer bid is exempt from the formal bid requirements if all of the following conditions are satisfied:

(a) security holders whose last address as shown on the books of the offeree issuer is in Canada hold less than 10 per cent of the outstanding securities of the class subject to the bid at the commencement of the bid;

(b) the offeror reasonably believes that security holders in Canada beneficially own less than 10 per cent of the outstanding securities of the class subject to the bid at the commencement of the bid;

(c) the published market on which the greatest dollar volume of trading in securities of that class occurred during the twelve months immediately preceding the commencement of the bid was not in Canada;

(d) security holders in Canada are entitled to participate in the bid on terms at least as favourable as the terms that apply to the general body of security holders of the same class.

153. Subject to section 154, an issuer bid is exempt from the formal bid requirements if both of the following conditions are satisfied:

(a) the number of beneficial owners of securities of the class subject to the bid in Canada is fewer than fifty and the securities held by them constitute, in aggregate, less than 2 per cent of the outstanding securities of that class;

(b) security holders in Canada are entitled to participate in the bid on terms at least as favourable as the terms that apply to the general body of security holders of the same class.

154. An issuer bid described in section 152 or 153 is not exempt from the formal bid requirements unless

(a) the information and documents specified by regulation are provided to security holders in Canada in accordance with the regulations; and

(b) the information specified by regulation about the bid is made public in accordance with the regulations.

155. An issuer bid is exempt from the formal bid requirements if it is exempted by the regulations.

EARLY WARNING SYSTEM

156. For the purposes of sections 157 and 158,

“acquiror” means a person or company who acquires a security other than by way of a formal bid;

“acquiror’s securities” means securities of an offeree issuer that are beneficially owned, or over which control or direction is exercised, on the date of an offer to acquire, by an acquiror or by any person or company acting jointly or in concert with the acquiror.

157. (1) Every acquiror who acquires beneficial ownership of, or the power to exercise control or direction over, voting or equity securities of any class of a reporting issuer or securities convertible into voting or equity securities of any class of a reporting issuer that, when added to the acquiror’s securities of that class, would constitute 10 per cent or more of the outstanding securities of that class, shall disclose the acquisition in the manner and form required by regulation.

(2) An acquiror who is required to make disclosure under subsection (1) shall make further disclosure in the manner and form required by regulation each time any of the following events occur:

(a) the acquiror or any person or company acting jointly or in concert with the acquiror acquires beneficial ownership of, or the power to exercise control or direction over,

(i) an additional 2 per cent or more of the outstanding securities of the class to which the disclosure required under subsection (1) relates, or

(ii) securities convertible into an additional 2 per cent or more of the outstanding securities referred to in subparagraph (i);

(b) there is a change in any material fact in the disclosure required under paragraph (a) or under subsection (1).

(3) During the period beginning on the occurrence of an event in respect of which disclosure is required to be made under this section and ending on the expiry of one business day after the date that the disclosure is made, the acquiror required to make the disclosure or any person or company acting jointly or in concert with the acquiror shall not acquire or offer to acquire beneficial ownership of any securities of the class in respect of which the disclosure is made or any securities convertible into securities of that class.

(4) Subsection (3) does not apply to an acquiror who has beneficial ownership of, or the power to exercise control or direction over, securities that, together with the acquiror’s securities of that class, constitute 20 per cent or more of the outstanding securities of that class.

158. (1) If, after a formal bid has been made for voting or equity securities of a reporting issuer and before the expiry of the bid, an acquiror acquires beneficial ownership of, or the power to exercise control or direction over, securities of the class subject to the bid which, when added to the acquiror’s securities of that class, constitute 5 per cent or more of the outstanding securities of that class, the acquiror shall disclose the acquisition in the manner and form required by regulation.

(2) An acquiror who is required to make disclosure under subsection (1) shall make further disclosure in the manner and form required by regulation each time the acquiror or any person or company acting jointly or in concert with the acquiror acquires beneficial ownership of, or the power to exercise control or direction over, an additional 2 per cent or more of the outstanding securities of the class to which the disclosure required under subsection (1) relates.

APPLICATIONS AND EXEMPTIONS

159. In sections 160 and 161,

“interested person” means

(a) an offeree issuer;

(b) a security holder, director or officer of an offeree issuer;

(c) an offeror;

(d) an acquiror as defined in section 156;

(e) the Director; and

(f) any person or company who in the opinion of the Commission or a superior court, as the case may be, is proper to make an application under section 160 or 161, as the case may be.

160. (1) On application by an interested person, if the Commission considers that a person or company has not complied with, or is not complying with, a requirement under this Part or the regulations related to this Part, the Commission may make an order

(a) restraining the distribution of any document or any communication used or issued in connection with a takeover bid or an issuer bid;

(b) requiring an amendment to or variation of any document or any communication used or issued in connection with a takeover bid or an issuer bid and requiring the distribution of amended, varied or corrected documents or communications;

(c) directing any person or company to comply with a requirement under this Part or the regulations related to this Part;

(d) restraining any person or company from contravening a requirement under this Part or the regulations related to this Part; and

(e) directing the directors and officers of any person or company to cause the person or company to comply with or to cease contravening a requirement under this Part or the regulations related to this Part.

(2) On application by an interested person and subject to such terms and conditions as the Commission may impose, if the Commission is satisfied that it would not be prejudicial to the public interest, the Commission may

(a) decide for the purposes of section 128 that an agreement, commitment or understanding with a selling security holder is made for reasons other than to increase the value of the consideration paid to the selling security holder for the securities of the selling security holder and that the agreement, commitment or understanding may be entered into despite that section;

(b) vary any time period set out in this Part or the regulations related to this Part; and

(c) exempt a person or company from any of the requirements of this Part or the regulations related to this Part.

161. On application by an interested person, if a superior court is satisfied that a person or company has not complied with a requirement under this Part or the regulations related to this Part, the court may make such interim or final order as the court thinks fit, including, without limitation, an order

(a) compensating any interested person who is a party to the application for damages suffered as a result of a contravention of a requirement of this Part or the regulations related to this Part;

(b) rescinding a transaction with any interested person, including the issue of a security or an acquisition and sale of a security;

(c) requiring any person or company to dispose of any securities acquired under or in connection with a takeover bid or an issuer bid;

(d) prohibiting any person or company from exercising any or all of the voting rights attaching to any securities; or

(e) requiring the trial of an issue.