An Act to amend the Canada Business Corporations Act and the Canada Cooperatives Act and to amend other Acts in consequence (S.C. 2001, c. 14)
Full Document:
Assented to 2001-06-14
185. The definitions “intermediary” and “solicit” or “solicitation” ” in subsection 163(1) of the Act are replaced by the following:
“intermediary”
« intermédiaire »
“intermediary” means a person who holds a security on behalf of another person who is not the registered holder of the security, and includes
(a) a securities broker or dealer required to be registered to trade or deal in securities under the laws of any jurisdiction;
(b) a securities depositary;
(c) a financial institution;
(d) in respect of a clearing agency, a securities dealer, trust company, bank or other person, including another clearing agency, on whose behalf the clearing agency or its nominees hold securities of an issuer;
(e) a trustee or administrator of a self-administered retirement savings plan, retirement income fund, education savings plan or other similar self-administered savings or investment plan registered under the Income Tax Act;
(f) a nominee of a person referred to in any of paragraphs (a) to (e); and
(g) a person who carries out functions similar to those carried out by individuals or entities referred to in any of paragraphs (a) to (e) and that holds a security registered in its name, or in the name of its nominee, on behalf of another person who is not the registered holder of the security.
“solicit” or “solicitation”
« sollicitation »
“solicit” or “solicitation”
(a) includes
(i) a request for a proxy whether or not accompanied by or included in a form of proxy,
(ii) a request to execute or not to execute a form of proxy or to revoke a proxy,
(iii) the sending of a form of proxy or other communication to a shareholder under circumstances reasonably calculated to result in the procurement, withholding or revocation of a proxy, and
(iv) the sending of a form of proxy to a shareholder under section 165; but
(b) does not include
(i) the sending of a form of proxy in response to an unsolicited request made by or on behalf of a shareholder,
(ii) the performance of administrative acts or professional services on behalf of a person soliciting a proxy,
(iii) the sending by an intermediary of the documents referred to in section 169,
(iv) a solicitation by a person in respect of investment shares of which they are the beneficial owner,
(v) a public announcement, as prescribed, by a shareholder of how the shareholder intends to vote and the reasons for that decision,
(vi) a communication for the purposes of obtaining the number of investment shares required for a proposal under subsection 58(2.1), or
(vii) a communication, other than a solicitation by or on behalf of the management of the cooperative, that is made to shareholders, in any circumstances that may be prescribed.
186. (1) Subsection 164(2) of the Act is replaced by the following:
Marginal note:Execution of proxy
(2) For a proxy to be valid, it must be executed by the shareholder or by their personal representative authorized in writing.
(2) The portion of paragraph 164(4)(a) of the Act before subparagraph (i) is replaced by the following:
(a) by depositing a document in writing executed by the shareholder or by their personal representative authorized in writing
187. Paragraph 165(2)(b) of the Act is replaced by the following:
(b) it has fifty or fewer shareholders entitled to vote at a meeting, two or more joint holders being counted as one shareholder.
188. Subsection 166(4) of the Act is replaced by the following:
Marginal note:Solicitation to fifteen or fewer shareholders
(4) Despite subsection (1), a person may solicit proxies, other than by or on behalf of the management of the cooperative, without sending a dissident’s proxy circular, if the total number of shareholders whose proxies are solicited is fifteen or fewer, two or more joint holders being counted as one shareholder.
Marginal note:Solicitation by public broadcast
(4.1) Despite subsection (1), a person may solicit proxies, other than by or on behalf of the management of the cooperative, without sending a dissident’s proxy circular, if the solicitation is, in the prescribed circumstances, conveyed by public broadcast, speech or publication.
189. Subsection 167(1) of the Act is replaced by the following:
Marginal note:Exemption order
167. (1) On the application of any interested person, the Director may exempt, on any terms that the Director thinks fit, the person from any of the requirements of section 165 or subsection 166(1), which exemption may have retrospective effect.
190. (1) Subsection 169(2) of the Act is replaced by the following:
Marginal note:Restriction on voting
(2) An intermediary, or a proxyholder appointed by an intermediary, may not vote shares that the intermediary does not beneficially own and that are registered in the name of the intermediary or in the name of a nominee of the intermediary unless the intermediary or proxyholder, as the case may be, receives written voting instructions from the beneficial owner.
(2) Subsection 169(5) of the Act is replaced by the following:
Marginal note:Beneficial owner as proxyholder
(5) If a beneficial owner so requests and provides an intermediary with appropriate documentation, the intermediary must appoint the beneficial owner or a nominee of the beneficial owner as proxyholder.
191. (1) The definitions “business combination”, “insider” and “officer” in subsection 171(1) of the Act are replaced by the following:
“business combination”
« regroupement d’entreprises »
“business combination” means an acquisition of all or substantially all the property of one entity by another, or an amalgamation of two or more entities, or any similar reorganization between or among two or more entities.
“insider”
« initié »
“insider” means, except in section 173,
(a) a director or officer of a distributing cooperative;
(b) a director or officer of a subsidiary of a distributing cooperative;
(c) a director or officer of an entity that enters into a business combination with a distributing cooperative; and
(d) a person employed or retained by a distributing cooperative.
“officer”
« dirigeant »
“officer” means the chairperson of the board of directors, president, vice-president, secretary, treasurer, comptroller, general counsel, general manager, managing director, or any other individual who performs functions for an entity similar to those normally performed by an individual occupying any of those offices.
(2) Paragraph 171(2)(a) of the Act is replaced by the following:
(a) a director or an officer of an entity that beneficially owns, directly or indirectly, shares of a distributing cooperative, or that exercises control or direction over shares of the distributing cooperative, or that has a combination of any such ownership, control and direction, carrying more than the prescribed percentage of voting rights attached to all of the outstanding shares of the distributing cooperative not including shares held by the entity as underwriter while those shares are in the course of a distribution to the public is deemed to be an insider of the distributing cooperative;
(3) Subsection 171(3) of the French version of the Act is replaced by the following:
Marginal note:Parts de membre
(3) Pour l’application de la présente partie, la vente de parts de membre à des membres ou le versement d’un prêt de membre à une coopérative ne constitue pas un appel public à l’épargne.
(4) Subsection 171(4) of the Act is repealed.
192. Section 172 of the Act is replaced by the following:
Marginal note:Prohibition of short sale
172. (1) No insider shall knowingly sell, directly or indirectly, a security of a distributing cooperative or any of its affiliates if the insider selling the security does not own or has not fully paid for the security to be sold.
Marginal note:Calls and puts
(2) No insider shall knowingly, directly or indirectly, buy a put or sell a call in respect of a security of the cooperative or any of its affiliates.
Marginal note:Exception
(3) Despite subsection (1), an insider may sell a security that the insider does not own if the insider owns another security convertible into the security sold or an option or right to acquire the security sold and, no later than ten days after the sale, the insider
(a) exercises the conversion privilege, option or right and delivers the security so acquired to the purchaser; or
(b) transfers the convertible security, option or right to the purchaser.
193. Section 173 of the Act is replaced by the following:
Definition of “insider”
173. (1) In this section, “insider”, with respect to a cooperative, means
(a) the cooperative;
(b) an affiliate of the cooperative;
(c) a director or an officer of the cooperative or of any persons described in paragraphs (b), (e) or (g);
(d) a member who controls more than ten per cent of the voting rights that may be exercised to elect or appoint a director of the cooperative;
(e) a person who beneficially owns, directly or indirectly, shares of the cooperative or who exercises control or direction over shares of the cooperative, or a combination of any such ownership, control and direction, carrying more than the prescribed percentage of the voting rights attached to all of the outstanding shares of the cooperative other than shares held by the person as underwriter while those shares are in the course of a distribution to the public;
(f) a person, other than a person described in paragraph (g), employed or retained by the cooperative or by a person described in paragraph (g);
(g) a person who engages in or proposes to engage in any business or professional activity with or on behalf of the cooperative;
(h) a person who received, while they were a person described in any of paragraphs (a) to (g) material confidential information concerning the cooperative;
(i) a person who receives material confidential information from a person described in this subsection or in subsection (2) or (2.1), including from a person described in this paragraph, and who knows or who ought reasonably to have known that the person giving the information is a person described in this subsection or in subsection (2) or (2.1), including a person described in this paragraph; and
(j) a prescribed person.
Marginal note:Deemed insiders
(2) For the purposes of this section, a person who proposes to make a take-over bid (as defined in the regulations) for securities of a cooperative, or to enter into a business combination with a cooperative, is an insider of the cooperative with respect to material confidential information obtained from the cooperative and is an insider of the cooperative for the purposes of subsection (6).
Marginal note:Deemed insiders
(2.1) An insider of a person referred to in subsection (2), and an affiliate or associate of such a person, is an insider of the cooperative referred to in that subsection. Paragraphs (1)(b) to (j) apply in determining whether a person is such an insider except that references to “cooperative” in those paragraphs are to be read as references to “person described in subsection (2)”.
Expanded definition of “security”
(3) For the purposes of this section, the following are deemed to be a security of the cooperative:
(a) a put, call or option or other right or obligation to purchase or sell a security of the cooperative; and
(b) a security of another entity whose market price varies materially with the market price of the securities of the cooperative.
Marginal note:Insider trading — compensation to persons
(4) An insider who purchases or sells a security of the cooperative with knowledge of confidential information that, if generally known, might reasonably be expected to affect materially the value of any of the securities of the cooperative is liable to compensate the seller of the security or the purchaser of the security, as the case may be, for any damages suffered by the seller or purchaser as a result of the purchase or sale, unless the insider establishes that
(a) the insider reasonably believed that the information had been generally disclosed;
(b) the information was known, or ought reasonably to have been known, by the seller or purchaser; or
(c) the purchase or sale of the security took place in the prescribed circumstances.
Marginal note:Insider trading — compensation to cooperative
(5) The insider is accountable to the cooperative for any benefit or advantage received or receivable by the insider as a result of a purchase or sale described in subsection (4) unless the insider establishes the circumstances in paragraph 4(a).
Marginal note:Tipping — compensation to persons
(6) An insider who discloses to another person confidential information with respect to the cooperative that has not been generally disclosed and that, if generally known, might reasonably be expected to affect materially the value of any of the securities of the cooperative is liable to compensate for damages any person who subsequently sells securities of the cooperative to, or purchases securities of the cooperative from, any person that received the information, unless the insider establishes
(a) that the insider reasonably believed that the information had been generally disclosed;
(b) that the information was known, or ought reasonably to have been known, to the person who alleges to have suffered the damages;
(c) that the disclosure of the information was necessary in the course of the business of the insider, except if the insider is a person described in subsection (2) or (2.1); or
(d) if the insider is a person described in subsection (2) or (2.1), that the disclosure of the information was necessary to effect the take-over bid or the business combination, as the case may be.
Marginal note:Tipping — compensation to cooperative
(7) The insider is accountable to the cooperative for any benefit or advantage received or receivable by the insider as a result of a disclosure of the information as described in subsection (6) unless the insider establishes the circumstances in paragraph (6)(a), (c) or (d).
Marginal note:Measure of damages
(8) The court may assess damages under subsection (4) or (6) in accordance with any measure of damages that it considers relevant in the circumstances. However, in assessing damages in a situation involving a security of a distributing cooperative, the court must consider the following:
(a) if the plaintiff is a purchaser, the price paid by the plaintiff for the security less the average market price of the security over the twenty trading days immediately following general disclosure of the information; and
(b) if the plaintiff is a seller, the average market price of the security over the twenty trading days immediately following general disclosure of the information, less the price that the plaintiff received for the security.
Marginal note:Liability
(9) If more than one insider is liable under subsection (4) or (6) with respect to the same transaction or series of transactions, their liability is joint and several, or solidary.
Marginal note:Limitation
(10) An action to enforce a right created by subsections (4) to (7) may be commenced only within two years after discovery of the facts that gave rise to the cause of action.
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