112A person shall not make a take-over bid or an issuer bid, whether alone or acting jointly or in concert with one or more persons, except in accordance with the regulations.
112(1)Subject to the regulations, a take-over bid is exempt from sections 120 to 125 if
(a)
the bid is made through the facilities of an exchange recognized by the Commission for the purposes of this paragraph,
(b)
all of the following conditions apply:
(i)
the bid is for not more than 5% of the outstanding securities of a class of securities of the issuer;
(ii)
the aggregate number of securities acquired by the offeror and any person acting jointly or in concert with the offeror within any period of 12 months in reliance on the exemption provided by this paragraph does not, when aggregated with acquisitions otherwise made by the offeror and any person acting jointly or in concert with the offeror within the same 12-month period, constitute in excess of 5% of the outstanding securities of that class of the issuer at the beginning of the 12-month period; and
(iii)
if there is a published market for the securities acquired, the value of the consideration paid for any of the securities acquired is not in excess of the market price at the date of acquisition, determined in accordance with the regulations, plus reasonable brokerage fees or commissions actually paid,
(c)
all of the following conditions apply:
(i)
purchases are made from not more than 5 persons in the aggregate, including persons outside of New Brunswick;
(ii)
the bid is not made generally to security holders of the class of securities that is the subject of the bid; and
(iii)
the value of the consideration paid for any of the securities, including brokerage fees or commissions, does not exceed 115% of the market price of securities of that class at the date of the bid, determined in accordance with the regulations,
(d)
all of the following conditions apply:
(i)
the offeree issuer is not a reporting issuer;
(ii)
there is not a published market in respect of the securities that are the subject of the bid; and
(iii)
the number of holders of securities of that class is not more than 50, exclusive of holders who are in the employment of the offeree issuer or an affiliate of the offeree issuer, and exclusive of holders who were formerly in the employment of the offeree issuer or an affiliate of the offeree issuer and who while in that employment were, and have continued after that employment to be, security holders of the offeree issuer,
(e)
all of the following conditions apply:
(i)
the number of holders of securities of the class subject to the bid whose last address as shown on the books of the offeree issuer is in New Brunswick is fewer than 50;
(ii)
the securities held by such holders constitute, in the aggregate, less than 2% of the outstanding securities of that class;
(iii)
the bid is made in compliance with the laws of a jurisdiction that is recognized by the Commission for the purposes of this subparagraph; and
(iv)
all material relating to the bid that is sent by the offeror to holders of securities of the class that is subject to the bid is concurrently filed and is concurrently sent to all holders of such securities whose last address as shown on the books of the offeree issuer is in New Brunswick, or
(f)
the bid is exempted by the regulations.
112(2)For the purposes of paragraph (1)(c), where an offeror makes an offer to acquire securities from a person and the offeror knows or ought to know after reasonable inquiry that
(a)
one or more other persons on whose behalf that person is acting as nominee, agent, trustee, executor, administrator or other legal representative has a direct beneficial interest in those securities, then each of such others shall be included in the determination of the number of persons to whom the offer to acquire has been made, but, if an inter vivos trust has been established by a single settlor or if an estate has not vested in all persons beneficially entitled to it, the trust or estate shall be considered a single security holder in such determination, or
(b)
the person acquired the securities in order that the offeror might make use of the exemption provided by paragraph (1)(c), then each person from whom those securities were acquired shall be included in the determination of the number of persons to whom the offer to acquire has been made.