Form of Proxy (Banks and Bank Holding Companies) Regulations, 2023 (SOR/2024-150)

Definitions

Marginal note:Definitions

1 The following definitions apply in these Regulations.

Act

Act means the Bank Act. (Loi)

dissident’s proxy circular

dissident’s proxy circular means the dissident’s proxy circular referred to in paragraph 156.05(1)(b) of the Act. (circulaire de procuration d’opposant)

management proxy circular

management proxy circular means the management proxy circular referred to in paragraph 156.05(1)(a) of the Act. (circulaire de la direction)

Marginal note:Definition of National Instrument 51-102

2 In these Regulations, NI 51-102 means the version of National Instrument 51-102 that applies within a province set out in column 1 of the table to this section in accordance with the instrument set out in column 2.

Proxies and Proxy Solicitation

Form of Proxy

Marginal note:NI 51-102

• 3 (1) Subject to subsection 156.02(4) of the Act, a form of proxy must be in a form that complies with the requirements set out in section 9.4 of NI 51-102.

• Marginal note:Meaning of certain words

  (2) For the purpose of subsection (1), in section 9.4 of NI 51-102

  • (a) a reference to “form of proxy” is to be read as a reference to form of proxy as defined in section 2 of the Act; and

  • (b) a reference to “securityholder” is to be read as a reference to a shareholder within the meaning of section 7 of the Act.

Proxy Solicitation

Marginal note:Public announcement

4 For the purpose of subparagraph (b)(v) of the definition solicitation in section 156.01 of the Act, a solicitation does not include a public announcement that is made by

• (a) a speech in a public forum; or

• (b) a press release, opinion, statement or advertisement that is provided through a broadcast medium or by a telephonic, electronic or other communication facility or that appears in a newspaper, magazine or other publication that is generally available to the public.

Marginal note:Prescribed circumstances

• 5 (1) For the purpose of subparagraph (b)(vii) of the definition solicitation in section 156.01 of the Act, the prescribed circumstances are circumstances in which the communication is made to shareholders

  • (a) by one or more shareholders and concerns the business and affairs of a bank — including its management or proposals set out in or attached to a management proxy circular — and no form of proxy is sent to the shareholders to whom the communication is made by the shareholder or shareholders making the communication or by a person acting on their behalf;

  • (b) by one or more shareholders and concerns the organization of a dissident’s proxy solicitation, and no form of proxy is sent to the shareholders to whom the communication is made by the shareholder or shareholders making the communication or by a person acting on their behalf;

  • (c) as clients, by a person who gives financial, corporate governance or proxy voting advice in the ordinary course of business and concerns proxy voting advice if

    • (i) the person discloses to the shareholder any significant relationship with the bank and any of its affiliates or with a shareholder who has submitted a proposal under subsection 143(1) of the Act and any material interests the person has in relation to a matter on which advice is given,

    • (ii) the person receives any special commission or remuneration for giving the proxy voting advice only from the shareholder or shareholders receiving the advice, and

    • (iii) the proxy voting advice is not given on behalf of any person soliciting proxies or on behalf of a nominee for election as a director; or

  • (d) by a person who does not seek directly or indirectly, the power to act as proxy for a shareholder.

• Marginal note:Exceptions

  (2) The circumstances described in paragraph (1)(a) are not prescribed circumstances if the communication is made by

  • (a) a shareholder who is an officer or director of the bank, or who serves in a similar capacity, if the communication is financed directly or indirectly by the bank;

  • (b) a shareholder who is a nominee or who proposes a nominee for election as a director, if the communication relates to the election of directors;

  • (c) a shareholder whose communication is in opposition to an amalgamation, arrangement, reorganization or other transaction recommended or approved by the board of directors of the bank and who is proposing or intends to propose an alternative transaction to which the shareholder or an affiliate or associate of the shareholder is a party;

  • (d) a shareholder who, because of a material interest in the subject-matter to be voted on at a shareholders meeting, is likely to receive a benefit from its approval or non-approval, which benefit would not be shared pro rata by all other holders of the same class of shares, unless the benefit arises from the shareholder’s employment with the bank; or

  • (e) any person acting on behalf of a shareholder described in any of paragraphs (a) to (d).

Proxy Circulars

Marginal note:Required form

• 6 (1) Subject to subsection (2) and sections 7 and 8, a management proxy circular and a dissident’s proxy circular must be in the form provided for in Form NI 51-102F5 (Information Circular) of NI 51-102.

• Marginal note:Exceptions

  (2) The circulars referred to in subsection (1) are not required to include the information referred to in Items 8 to 10 and Item 16 of Form NI 51-102F5 (Information Circular) if they are in respect of a bank or bank holding company that, as the case may be,

  • (a) is not a distributing bank or distributing bank holding company described in section 2 of the Distributing Bank and Distributing Bank Holding Company Regulations; or

  • (b) is subject to an exemption under subsection 2.4(2) or (3) of the Act.

• Marginal note:Meaning of certain words

  (3) For the purpose of subsection (1), in Form NI 51-102F5 (Information Circular)

  • (a) a reference to “affiliate” is to be read as a reference to affiliate as defined in section 2 of the Act;

  • (b) a reference to “subsidiary” is to be read as a reference to subsidiary as defined in section 2 of the Act;

  • (c) a reference to “beneficial ownership” is to be read as a reference to beneficial ownership as defined in section 2 of the Act;

  • (d) a reference to “company” is to be read as a reference to bank or bank holding company, as the case may be, as defined in section 2 of the Act;

  • (e) a reference to “security” is to be read as a reference to security as defined in section 2 of the Act;

  • (f) a reference to “control” is to be read as a reference to “control” within the meaning of section 3 of the Act; and

  • (g) a reference to “securityholder” is to be read as a reference to a shareholder within the meaning of section 7 of the Act.

Marginal note:Management proxy circular — additional information

7 A management proxy circular must also contain the following information and documents:

• (a) the percentage of votes required for the approval of any matter that is submitted to a vote of shareholders at the meeting;

• (b) a statement, signed by a director or an officer of the bank or bank holding company, indicating that the directors have approved the content and sending of the management proxy circular;

• (c) in respect of a proposal made to the bank or bank holding company under section 143 or 732 of the Act, the day by which it must be received by the bank or bank holding company, as the case may be;

• (d) for every purchase of insurance under section 213 of the Act,

  • (i) the amount of the insurance purchased by the bank in respect of the directors and officers, expressed as the total amount purchased or as the amount purchased for directors and officers, respectively,

  • (ii) the amount of the insurance premium or, if the insurance purchased was a comprehensive liability policy, the approximate amount of the insurance premium paid in respect of the directors and officers, expressed either as the total amount paid or as the amount paid for directors and officers, respectively,

  • (iii) the amount of the insurance premium paid by the directors and officers, expressed either as the total amount paid or as the amount paid by directors and officers, respectively, and

  • (iv) a summary of each clause in the insurance policy, such as a co-insurance or deductible clause, that exposes the bank to a liability other than the payment of the insurance premium;

• (e) for every indemnification paid or payable to a person under subsection 212(1) of the Act during the financial year,

  • (i) the name and job title of the person indemnified or to be indemnified,

  • (ii) the amount paid or payable to the person, and

  • (iii) the circumstances that gave rise to the indemnification;

• (f) an explanation of the right to dissent that is provided to a shareholder under section 277 of the Act;

• (g) if the circular includes a comparative annual financial statement referred to in paragraph 308(1)(a) or 840(1)(a) of the Act that has been audited by the auditor of the bank or of the bank holding company, a statement indicating that the financial statement has been audited and that it has been prepared in accordance with the accounting principles referred to in subsection 308(4) or 840(4) of the Act, as the case may be; and

• (h) if the circular includes a comparative annual financial statement referred to in paragraph 308(1)(a) or 840(1)(a) of the Act but that financial statement has not been audited as described in paragraph (g), a report that

  • (i) is signed by the chief financial officer of the bank or the directors of the bank holding company, as the case may be, and

  • (ii) indicates that the financial statements have not been audited but have been prepared in accordance with the accounting principles referred to in subsection 308(4) or 840(4) of the Act, as the case may be.

Marginal note:Dissident’s proxy circular — additional statement

• 8 (1) A dissident’s proxy circular must also contain a statement, signed by the dissident or a person they have authorized, indicating that the dissident has approved the content and sending of the circular.

• Marginal note:Exception

  (2) If the dissident does not have any of the information that is required to be included in a dissident’s proxy circular and the information cannot be readily obtained by them, the circular must contain an explanation of why the information cannot be readily obtained.

Repeal

9 The Form of Proxy (Banks and Bank Holding Companies) RegulationsFootnote ¹ are repealed.

• Return to footnote ¹SOR/2001-390

Coming into Force

Marginal note:Registration

• 10 (1) These Regulations, other than sections 4 and 5, come into force on the day on which they are registered.

• Marginal note:S.C. 2005, c. 54

  Footnote ^*(2) Sections 4 and 5 come into force on the day on which subsection 27(2) of An Act to amend certain Acts in relation to financial institutions, chapter 54 of the Statutes of Canada, 2005, comes into force, but if these Regulations are registered after that day, those sections come into force on the day on which these Regulations are registered.

  • Return to footnote ^*[Note: Sections 4 and 5 in force July 11, 2024, see SI/2024-30.]