On July 21, 2008, Toronto Stock Exchange (TSX) staff provided guidance to issuers regarding procedures for certain relief for calculating the securities acquired under a Normal Course Issuer Bid (NCIB).

Last year, the TSX significantly amended its policy on NCIBs as we discussed in our article published at that time. One of the TSX rules applicable to NCIBs requires that securities purchased by a person or company acting jointly or in concert with a listed issuer during the period of an NCIB must be included in calculating the number of securities acquired by the listed issuer.

The TSX staff has given notice that the TSX will not require the inclusion or aggregation of the securities purchased by a person or company acting jointly or in concert with the listed issuer provided these requirements, among others, are satisfied:

  • the listed issuer has disclosed the names of all persons and companies acting jointly or in concert with it; and
  • each such person or company makes separate disclosure of the securities acquired and owned or controlled by it.

In providing this guidance, the TSX has looked to sections of National Instrument 62-103 — The Early Warning System and Related Take-Over Bid and Insider Reporting Issues that provide aggregation relief for securities purchased by a person or company acting jointly or in concert with an issuer in certain circumstances. The TSX has indicated it believes that the same principles for aggregation relief are applicable to NCIBs in calculating the number of securities purchased under an NCIB, provided certain requirements are met.