TSX Company Manual:

TSX Company Manual
Part I Introduction
Part II Why List on the Toronto Stock Exchange?
Part III Original Listing Requirements
Part IV Maintaining a Listing — General Requirements
Part V Special Requirements for Non-Exempt Issuers
Part VI Changes in Capital Structure of Listed Issuers
Part VII Halting of Trading, Suspension and Delisting of Securities
Part VIII Fees Payable by Listed Companies
Part IX Dealing with the News Media
Part X Special Purpose Acquisition Corporations (SPACs)
Part XI Requirements Applicable to Non-Corporate Issuers
Provisions Respecting Conflict of Interest and Competitors of TMX Group Limited
Forms
Appendices
Notices of Approval
Requests for Comments
Staff Notices to Applicants, Listed Issuers, Securities Lawyers and Participating Organizations
Archive
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  • Sec. 607. Private Placements

    (a) TSX defines the term "private placement" as an issuance of treasury securities for cash consideration or in payment of an outstanding debt of the listed issuer without prospectus disclosure, in reliance on an exemption from the prospectus requirements under applicable securities laws.

    Securities issued for no cash consideration to registered charities as defined under the Income Tax Act (Canada) as described in Section 612, securities issued pursuant to acquisitions described in Section 611, security based compensation arrangements described in Section 613, rights offerings described in Section 614 and backdoor listings described in Section 626 are not considered by TSX as being Section 607 private placements.
    (b) This Section 607 is not applicable to private placements of securities which are neither of a class listed on TSX nor convertible into, nor exchangeable for securities of a class listed on TSX.
    (c) Private placements not subject to Sections 604 and 717 and that are:
    i) offered at a price per security at or above market price, regardless of the number of listed securities issuable, or
    ii) for an aggregate number of listed securities issuable equal to or less than 25% of the number of securities of the listed issuer which are outstanding, on a non-diluted basis, prior to the date of closing of the transaction where the price per security is less than the market price but within the applicable discounts set out in Subsection 607(e),
    will be accepted by TSX generally within three (3) business days of TSX receiving notice thereof. Notice to TSX of this type of private placement is effected by submitting Form 11 "Private Placement—Expedited Filing" found in Appendix H.

    For greater certainty, where the proceeds of a proposed private placement, in whole or in part, are used towards a transaction which results in a change in the nature of a listed issuer's business as described in Section 717, such private placements will not be accepted under this Subsection 607(c). See Section 717 for additional details regarding the requirements for a change in the nature of a listed issuer's business.
    (d) Unless otherwise as provided in Subsection 607(c), TSX will advise the listed issuer in writing generally within seven (7) business days of receipt by TSX of the notice, of TSX's decision to accept or not accept the notice, indicating any conditions to acceptance or its reasons for non-acceptance. Further information or documentation may be requested before TSX decides to accept or not accept notice of a transaction. In reviewing the transaction described in the notice, TSX will consider the applicable provisions of this Manual. Notice to TSX of this type of private placement is effected by submitting Form 11 "Private Placement—Regular Filing" found in Appendix H.
    (e) The price per listed security for any private placement must not be lower than the market price less the applicable discount as follows:

    Market Price Maximum Discount
    $0.50 or less 25%
    $0.51 to $2.00 20%
    Above $2.00 15%

    TSX will allow the price per listed security for a particular transaction to be less than as provided for in this Subsection 607(e) provided that the listed issuer has received security holder approval (other than by security holders participating directly or indirectly in the transaction and such security holders' associates and affiliates).

    Where a listed issuer, alone or with others, is spinning off a portion of its business or assets into another entity, and proposes to issue securities when the market price is unknown (e.g., at net asset value), TSX will consider such securities as being issued at a price that is lower than the market price less the maximum applicable discount. In such instance, security holder approval (other than by security holders participating directly or indirectly in the transaction and such security holders' associates and affiliates) will be required, and security holders must be provided with the information set out in Staff Notice 2005-0003. Other requirements may apply to such private placements as set out in Staff Notice 2006-0003.

    Anti-dilution provisions providing adjustments for events for which not all security holders are compensated and which may result in securities being issued at a price lower than market price less the applicable discount will be permitted, provided they have been approved by security holders (excluding the votes attached to the securities held by insiders benefiting from these anti-dilution provisions). Listed issuers may refer to Staff Notice 2009-0006 for guidance on anti-dilution provisions acceptable to TSX.

    TSX will discount the price per security by the amount of any fees or other amounts payable by the listed issuer to the subscriber, or its associates and affiliates, if the listed issuer cannot demonstrate that such amounts are commercially reasonable in the circumstances.

    Listed issuers may request price protection in advance of filing Form 11 — Notice of Private Placement by submitting Form 11A — Request for Price Protection.
    (f) For all private placements:
    i) subject to paragraph ii), the transaction must not close and the securities must not be issued prior to acceptance thereof by TSX and not later than 45 days (or, in circumstances where security holder approval is required pursuant to Subsection 607(g) and such approval is to be obtained at a duly called meeting of security holders, 135 days) from the date upon which the market price of the securities being issued is established;
    ii) a written request for an extension of the time period prescribed in paragraph i) may be filed with TSX in advance of the expiry of the 45-day or 135-day period, as applicable. Such extension will generally be granted if the price at which securities are issued still complies with the requirements set out in Subsection 607(e). Otherwise, TSX may grant such extension in justifiable circumstances;
    iii) in the case of a private placement of convertible securities, the underlying listed securities will be considered as being issued at a price per security less than the market price, unless the conversion price of such convertible security is defined as at least market price at the time of conversion, and will be regarded as being part of the number of securities being issued pursuant to the transaction;
    iv) listed securities issuable upon the exercise of warrants will be considered as being issued at a price per security less than the market price and will be regarded as being part of the number of securities being issued pursuant to the transaction;
    v) successive private placements will be aggregated for the purposes of Subsections 607(c)(ii) and 607(g)(i) if they are within the three (3) preceding months, have common placees and/or a common use of proceeds. For the purpose of Subsection 607(g)(i), the number of securities of the listed issuer which are outstanding, on a non-diluted basis, must be calculated prior to the date of closing of the first private placement during the three month period; and
    vi) the listed issuer must give TSX immediate notice in writing of the closing of the transaction.
    (g) TSX will require that security holder approval be obtained for private placements:
    i) for an aggregate number of listed securities issuable greater than 25% of the number of securities of the listed issuer which are outstanding, on a non-diluted basis, prior to the date of closing of the transaction if the price per security is less than the market price; or
    ii) that during any six month period are to insiders for listed securities or options, rights or other entitlements to listed securities greater than 10% of the number of securities of the listed issuer which are outstanding, on a non-diluted basis, prior to the date of closing of the first private placement to an insider during the six month period.
    (h) In order to list the additional securities issued and/or reserved for issuance pursuant to a private placement, listed issuers must:
    i) On the same business day of the closing of the private placement, provide TSX with: (A) an email or facsimile of the press release announcing the closing of the private placement; or (B) a written confirmation by email or facsimile that the private placement has closed; and
    ii) Prior to the close of business on the business day following the closing of the private placement, file with TSX all the required documents as outlined in the TSX conditional approval. Such documents may be filed using TSX SecureFile, by email or by courier.
    (i) Unless otherwise approved by the listed issuer's security holders (other than security holders receiving warrants directly or indirectly and such security holders' associates and affiliates), warrants to purchase listed securities may only be issued to a placee if the warrant exercise price is not less than the market price of the underlying security at either the date of the binding agreement obligating the listed issuer to issue the warrants or some future date provided for in the binding agreement1.

    For the purposes of Subsections 607(c) and 607(g)(i), any private placements providing flow-through tax credits to the subscribers will be considered as having a price per security less than the market price.

    For the purposes of Subsection 607(g)(ii), the insiders participating in the private placement are not eligible to vote their securities in respect of such approval. Subsection 607(g)(ii) shall also apply to circumstances in which insiders participate in a private placement pursuant to the exercise of a preemptive right.


    1 The requirement for a minimum exercise price for warrants under this Section 607(i) is applicable to any transaction where unlisted warrants are issuable.