On March 22, 2018, the TSX released Staff Notice 2018-0001, which provides guidance on when and how an issuer may publicly state that it has applied to list securities on the TSX. The Staff Notice applies to offering documents – e.g. draft or preliminary prospectuses – as well as more generally to advertising, press releases, oral comments, etc.
Under Section 346 of the TSX Company Manual and the Securities Act (Ontario), listing representations require TSX consent. The Staff Notice simplifies this process by providing what is essentially a blanket consent if certain conditions are fulfilled. The exact requirement depends on whether conditional approval has been obtained and on whether the issuer already has shares listed on the TSX, as follows:
- Prior to conditional approval, the following requirements apply:
- The issuer must have applied for a TSX listing (i.e. submitted its offering document and paid the application fee);
- The “risk factor” disclosure in the offering document must note that TSX approval has not been obtained and is not assured; and
- All securities laws must have been followed.
- If the above conditions are satisfied, the following representation will be acceptable: The issuer has applied to have its securities listed on the Toronto Stock Exchange. Listing is subject to the approval of the Exchange in accordance with its original listing requirements. Toronto Stock Exchange has not conditionally approved the issuer’s listing application and there is no assurance that the Exchange will approve the listing application.
- After conditional approval, the language in Section 346 should continue to be printed on the face page of the offering document: Toronto Stock Exchange has conditionally approved the listing of these securities. Listing is subject to the issuer fulfilling all of the requirements of the Exchange on or before [insert date], including distribution of these securities to a minimum number of public shareholders.
- Where the TSX already lists other securities of the issuer, the following language may be used: The issuer has applied to have its securities listed on the Toronto Stock Exchange. Listing is subject to the approval of the Exchange in accordance with its applicable listing requirements.
The Staff Notice also states that the TSX will not object to the use of a proposed stock symbol in a draft or preliminary prospectus if it has been reserved in accordance with TSX Staff Notice 2012-0003. It remains the issuer’s responsibility to ensure compliance with securities laws when making a listing representation.