1 TORONTO STOCK EXCHANGE AND TSX VENTURE EXCHANGE Technical Guide to Listing
2 Table of contents Chapter 1 Is your company ready to go public? 5 Deciding to Go Public 6 Your Path to Going Public 6 Selecting the Right Market 7 Choosing a Listing Method 8 Chapter 2 Mapping out the going public process 11 Going Public Time Chart 13 Chapter 3 Preparing to go public 14 Selecting Professional Advisors 14 Choosing your underwriters & sponsors 15 Corporate Structuring & Housekeeping 16 Creating a Board of Directors 16 Creating an Audit Committee 18 Organizing Financial Statements 19 Chapter 4 TSX Venture Exchange listing experience 21 Submitting an Application for Listing 21 Receipt of Application & Exchange Review 22 Conditional Acceptance 23 Final Filing Requirements 23 Approval of Listing and Posting of Securities 24 Chapter 5 Toronto Stock Exchange listing experience 25 Submitting a Listing Application 25 Receipt of Application & Exchange Review 30 Moving from Conditional Approval to Approval 30 Approval of Listing and Posting of Securities 31 Chapter 6 Special considerations for Mining companies 32 National Instrument 43-101 32 Chapter 7 Special considerations for Oil & Gas companies 35 National Instrument 51-101 35 Chapter 8 Special considerations for International companies 39 Accounting & Auditing 40 Reporting, Continuous Disclosure, and other ongoing responsibilities for public companies in Canada 43
3 Chapter 9 Cost of listing 45 Listing Fees 45 Form-Related Fees 45 Broker Fees 46 Sponsorship Fees 46 Professional Fees 46 Securities Commission Fees 47 Tax Considerations 47 International Companies 47 Chapter 10 Ongoing requirements and responsibilities 48 Continuous Disclosure 48 Corporate Governance 49 Other Responsibilities 49 Frequently Asked Questions (FAQs) 51 Appendix A - Listing Requirements for Mining Companies 57 Appendix B - Listing Requirements for Oil and Gas (Exploration or Producing) Companies 58 Appendix C - Listing Requirements for Industrial, Technology and Research & Development Companies 60 Provincial securities commissions 62 Contact information 63
4 Introduction This guide provides information about the process of listing on Toronto Stock Exchange (“TSX”) or TSX Venture Exchange (“TSXV”) (collectively “the Exchanges”) for both Canadian and international companies. International or U.S. companies may also consult our Dual-Listing Guide for International Public Companies and our CrossBorder Legal and Tax Considerations for U.S. Issuers publication, for additional information. TMX Group, Inc. (“TMX”) owns and operates TSX, one of the world’s largest equity markets, and TSXV. TMX is unique in the world: we offer a full service equity exchange system, providing access to financings for companies of all sizes. The Exchanges offer listed companies access to international capital and investors. With a wide investor base and strong liquidity, the Exchanges serve as an access point for Canadian, U.S. and international companies seeking growth and expansion capital within a respected regulatory regime. TMX and the Canadian capital markets are part of an infrastructure that supports the growth of companies across all industry sectors. The Exchanges offer a variety of options for listing. TSX and TSXV have distinct listing standards for each exchange, however, they apply the same listing standards to both domestic and international companies. Together, the Exchanges have become global destinations for international business. The Exchanges provide a superior range of benefits, including opportunities to access capital, liquidity, specialized indices, visibility and analyst coverage. We also provide a full range of services and support that assists our listed companies to be successful in the public market.
5 Is your Company Ready to Go Public? Taking your company public – offering shares for sale to investors in the public markets – can be an effective and efficient way to raise capital and create liquidity, all to further your company’s growth and expansion. However, going public represents a major undertaking, and you and your team should carefully consider whether your company is ready. Your company may be ready to go public if it has a(n): • Established business with a track record • Strong management team • Growth prospects • Solid business plan • Financial and internal controls • Strong governance In particular, consider whether you can answer yes to the following questions: SECTOR Question Financing • Have other alternative financing sources been explored and/or exhausted? • Does your company need public financing for growth? Management • Are the key management positions filled? • Is your management team experienced and balanced? Does it include directors and senior executives with a proven track record in managing public companies? Business Plan • Is there a well-developed business plan that identifies potential revenue and income as well as the resources necessary to sustain growth and success? • Is your company prepared for the compliance and disclosure requirements that public companies are required to follow? Growth Potential • Is the market size for your company’s product or service sufficient to sustain the growth plans and expectations that will attract broad investor interest? • Is your company profitable, or has its product reached commercialization with evidence of market acceptance? • At the time of listing or on completion of the Initial Public Offering (IPO), will your company have sufficient working capital to carry out its business plan? • Does the company see an opportunity to enhance organic growth with acquisition opportunities utilizing its share capital? Early days Companies considering listing are encouraged to consult with the Business Development Team at TMX. Contact details can be found at the end of this guide or visit www.tsx.com/listings/contact-us
6 1. SELECT THE RIGHT MARKET 2. CHOOSE A LISTING METHOD 3. SUBMIT LISTING APPLICATION 4. COMPILE & FILE DOCUMENTATION RECEIVE CONFIRMATION OF RECEIPT OF APPLICATION 6. RECEIVE CONDITIONAL APPROVAL 7. RECEIVE APPROVAL 8. SECURITIES LISTED&POSTEDFORTRADING 5. Deciding to go public Your company’s readiness to enter the market is only one factor to take into account in deciding whether to go public. While there are many advantages to taking your company public, there are also many issues to consider when making a final decision. ISSUES TO CONSIDER Public ownership The owners and founders of your company must consider howmuch control they want to retain. When a company goes public, a reasonable percentage of shares must be publicly owned and tradable. Performance & Meeting milestones Public shareholders making an investment in your company will monitor management’s performance and your company’s track record of meeting milestones. They are relying on your company to grow their investment and will hold you accountable for the objectives you set. Transparency Your management team needs to be prepared for changes in culture, operations, reporting, etc. that come with being a public entity. They will be accountable to shareholders, who will own a significant portion of the company and whose questions and opinions must be heard and considered. In addition, the management team’s decisions can become a matter of public record and regulatory scrutiny. Those decisions must be seen as fair and in the best interest of the company and its stakeholders. Extra responsibilities Going public will increase your Board of Directors’ responsibilities to the investment community, in particular with regard to the amount and type of information they will be expected to provide on a regular basis. They will need to be prepared to meet requirements in the Corporate Governance and Disclosure Guidelines set by regulatory bodies, such as the provincial securities commissions, and by the Exchanges. Share restrictions When a company goes public, it may be required to have some securities in escrow, meaning they cannot be sold for a certain length of time. Costs The cost to raise capital in the public markets includes advisor and professional fees, investment banking commissions, original listing fees and ongoing fees to maintain a public disclosure record. These should be carefully considered and compared to the cost of other financing options available to private companies. (For more details on costs and fees, see Chapter 9.) Your path to going public The decision to go public… Must be explored from every angle by a company’s owners, financial advisors and legal counsel.
7 Selecting the right market TSX and TSXV are dynamic markets for your company to raise capital. Review the attributes of each Exchange to help you decide which is most suitable for your company. TSX Venture Exchange TSXV is a public venture capital marketplace for emerging companies. It provides a fair marketplace where growth companies can raise capital to develop and market their properties, products and services. For investors, this exchange provides opportunities to seek early stage investments in growth companies. While TSXV continues to demonstrate its strength in attracting resource companies, its 1,000+ issuers represent a diverse mix of industry sectors, including industrial, life sciences, technology, clean technology and financial services. Why list on TSXVenture Exchange? • Access to capital for earlier-stage companies and smaller financings (typical financing range: $500,000 to $20 million) • Multiple financing rounds can allow for successive capital raises at less dilutive rates • Tailored listing and corporate governance requirements for small-cap companies • Access to an active private placement market • Streamlined graduation to TSX • Mentorship program for newly public companies • Cost-effective market for international companies looking to access North American institutional capital • Viable exit strategy to monetize shareholder value Companies listed on TSXV are provided with the opportunity to gain a solid foothold in the public market, with the option of working towards graduation to the senior exchange and gaining access to larger pools of capital. TSXV offers companies a flexible system, whose initial listing requirements are tailored to a company’s industry sector, stage of development, financial performance and operational resources. Toronto Stock Exchange TSX is recognized as a premier international stock exchange known for its standards of fairness and its innovative approach to trading. TSX is the right choice for companies with a solid track record of business management and operation. It offers companies a dynamic market to raise capital, enhanced liquidity, specialized indices, visibility and analyst coverage. While TSX is a global leader when it comes to listing international mining and oil and gas companies, our listed companies represent a broad range of industries from across Canada, the United States and beyond. Companies listed on TSX can issue many different types of securities such as: common shares, preferred shares, convertible debt, warrants and innovative equity-related products such as exchange-traded funds, investment funds and structures. Why list on Toronto Stock Exchange? • Respected, leading global stock exchange with 160+ year history • Access to international institutional investors • Opportunities for greater analyst coverage • Globally visible indices utilized by investors • Pragmatic and efficient regulatory regime • Corporate governance system • Globally recognized Listing on TSX Venture Exchange… Is the right choice for emerging companies, providing access to public venture capital to facilitate their growth. Listing on Toronto Stock Exchange… Is the right choice for well-managed, growth oriented companies with strong performance track records.
8 Choosing a listing method There are a number of ways in which your company can list on TSX or TSXV. Once you decide which exchange is right for your company, you’ll choose the best method for your company to list: For private companies Initial Public Offering (IPO) An Initial Public Offering is when a private company offers shares for sale to the public for the first time through a listing on a stock exchange. In an IPO, your company prepares a prospectus, which is filed with and must be approved by the relevant securities commission(s). The prospectus provides potential investors with all the detailed information they need to make an informed investment decision. Prospectus requirements are detailed in Canadian securities laws and regulations. If your company is applying to list on either Exchange via an IPO, you must file a copy of the preliminary prospectus together with a Listing Application in draft form (see Chapter 4 or Chapter 5 as applicable). Reverse Takeover (RTO)/Reverse Merger Another way to list your company is through a reverse take-over (also known as a back door listing or reverse merger) of an issuer already listed on TSX, TSXV or NEX (NEX is a market that lists of relatively inactive or “shell” companies). In effect, an RTO permits private company shareholders to buy a listed company with a smaller business, or in other cases, a failed business (a shell). This can be done in a number of ways, including an amalgamation of your company and the shell company, or an issuance of shares in exchange for other shares or assets of the issuer. As a result, the private company becomes the successor business that operates the public company. You will need the help of your company’s sponsor/advisor/banker, lawyer and auditor to find a suitable candidate for an RTO. The company resulting from the RTO must meet the initial listing requirements of TSX or TSXV, and must go through the same approval procedure as an original listing application. NEX For more information on NEX as a source of listed shell companies, please visit www.tmx.com/en/nex/ TSX TSXV IPO QT with CPC QA with SPAC RTO Direct Listing
9 For experienced investors, and companies seeking their expertise Capital Pool Company® program on TSX Venture Exchange The Capital Pool Company (CPC)® program is a unique listing vehicle offered exclusively by TSXV that provides a two-step process to access the capital markets. The program introduces investors who have experience with capital markets and public company management to entrepreneurs whose growth and early or development-stage companies require such experienced individuals. First step A group of seasoned officers and directors form a CPC. It is a shell company with no assets and no commercial operations. The CPC lists on TSXV via an IPO, raising a pool of capital from the market, resulting in cash being the asset of the listed CPC shell. Investors participate in the CPC IPO based on the CPC management’s success and track record. The CPC trades with a dot "P" symbol i. e. CPC.P. Second step The CPC management team identifies a growing business to acquire. The business undertakes a reverse takeover of the CPC shell. This is called the “Qualifying Transaction” (QT). The business that completes the QT must meet the initial listing requirements of the TSXV. The investors are now invested in an operating growth company, while the business acquires a public vehicle to raise capital, as well as potentially experienced directors in public markets. Once its QT is complete, the new business becomes a reporting issuer. Its shares continue to trade on TSXV as a regular listing, not a CPC. If your company is looking for experienced directors and officers, and if you are interested in a flexible but straightforward route to listing with lower underwriting risk of an IPO, matching yourself with a CPC looking for a QT could be a good option for you. A list of current CPCs is available at www.tmx.com/cpc. Note The CPC program is not available in Prince Edward Island, Canada CPC Seed financing of the company (the greater of $100,000 or 5% of the total funds raised.) THE QUALIFYING TRANSACTION COINCIDING PRIVATE PLACEMENT (PIPE) An operating company is identified, disclosed, additionally financed (if appropriate) and acquired Prospectus offering to create a corporate vehicle with public distribution (maximum$4,750,000) PRIVATE COMPANY NEWTSX VENTURE COMPANY + Special Purpose Acquisition Corporation on Toronto Stock Exchange The Special Purpose Acquisition Corporation (SPAC) program is a vehicle allowing public investors to invest in sectors normally dominated by private equity firms, and/or to participate in the acquisition of private operating companies traditionally bought by hedge funds and private equity funds. The SPAC program enables seasoned directors and officers to form a corporation that contains no commercial operations or assets other than cash. The SPAC is then listed on TSX via an IPO, which must raise a minimum of CDN $30 million. At least 90% of the funds raised in the IPO are then placed in escrow, pending completion of a qualifying acquisition.
10 The SPAC then seeks out an investment opportunity in a business or asset. This “qualifying acquisition” must be completed within 36 months of the SPAC’s listing on TSX. Once the SPAC has completed its qualifying acquisition, it becomes a regular issuer. Its shares continue to trade on TSX (so long as the new company meets listing requirements), but now trade as a regular listing, not a SPAC, because there is an operating business in the listed entity. SPACs become reporting issuers as a result of their IPO – i. e. as soon as they list, and before the qualifying acquisition – and are fully regulated by the relevant provincial securities commissions as well as TSX. For public companies listed on another market Direct Listing/Dual-Listing If your company is already listed on another stock exchange, your company could qualify to dual-list on TSX or TSXV. Your company will need to consult with advisors and exchange staff and then file a Listing Application and a prospectus-level disclosure document. Alternatively, if your company undertakes a financing on TSX or TSXV, it would then file a Listing Application along with your prospectus. A financing is the most effective way of establishing a broad shareholder base and a profile with the investment community when listing on a new market. Your company may be eligible for certain exemptions from regulatory requirements if you are a designated foreign issuer. More information can be found in National Instrument 71-102 in the Securities Act (Ontario). For more information on the dual-listing process, please consult our Guide to Dual-Listing on TSX and TSXV. Graduation from TSX Venture Exchange to Toronto Stock Exchange Over 650 companies have graduated from TSXV to TSX. If your company meets the listing requirements of TSX, consider these benefits: • TSX listing application fee will be waived for eligible TSXV issuers. Original Listing Fees still apply, but transactional fees paid to TSXV within 90 days of listing on TSX will be credited against the original listing fee, up to a maximum of 25% of the original listing fee payable. • Certain issuer information on file with TSXV can be accessed by TSX, reducing the number of documents required to be submitted. • Sponsorship requirements may be waived for qualified TSXV issuers.* • Potential to be included in TSX indexes. • TSX offers a broader institutional investor base with access to potential new shareholders. • Listing on TSX offers the potential to expand financing opportunities. • Access to TSX Market Maker program. The steps to graduation 1. Assess your company’s ability to meet initial listing requirements on TSX. 2. Consult with our business development team or relationship management team (see contact list at the back of this guide). 3. Set up an advisory meeting with TSX to determine eligibility. 4. Submit your application with supporting documentation. After final approval, your company’s securities will trade on TSX and be delisted from TSXV. * Some conditions apply. See Part III and Appendix A of the TSX Company Manual for complete details. 650+TSXV issuers have graduated to TSX 20%of the S&P/TSX Composite Index are TSXV graduates
11 Mapping Out the Going Public Process Here is an at-a-glance overview of the going public process for listing on TSX or TSXV. The individual steps will be reviewed in further detail in later chapters. The amount of time required depends on the complexity of the company, current governance and reporting capabilities, the advisory team, the quality of the documentation and the number of outstanding issues. STEPS Management assessment 1. Determine if going public is consistent with your company’s business objectives. 2. Review your business plan and policies. 3. Determine if external financing is required to further the business plan. 4. Review the company’s financials using three years of statements, if available. 5. Consider the tax implications of going public. 6. With management, determine if you are ready to go public. 7. With management, interview and select an experienced team of professional advisors: a. Underwriter/Investment Dealer (may also be your Sponsor, if required); b. Auditor; c. Securities lawyer; d. Investor relations firm, if required. 8. Enlist a sponsor, if required (and if underwriter is not filling this role). Going public preparation 9. Organize the company’s internal documentation to ensure the prospectus and due diligence are completed efficiently. 10. Prepare for ongoing continuous disclosure obligations. 11. Determine if the current Board of Directors is suitable and meets the regulatory requirements that apply to a public company. 12. Create an audit committee. 13. Develop a public company mindset. 14. Determine how your company will communicate its message to the investment community. 15. Determine whether your company meets the initial listing requirements of your chosen Exchange. 16. Contact a TSX Business Development professional for a pre-assessment meeting.
12 STEPS Listings process 17. Instruct professional advisors to commence the IPO and/or listing process. 18. Prepare the financial statements required for the IPO, in accordance with generally accepted accounting standards. 19. Have lawyers prepare required legal documents. 20. Work with underwriters to begin due diligence of the deal, and of the individuals associated with the deal (which will include formal review sessions with management, counsel and auditors). 21. Determine which listing vehicle is most suitable for your company. 22. Prepare relevant listing application documents (i.e. prospectus, listing application, annual information form, etc.), which are typically completed with the assistance of lawyers, auditors, and other professional advisors. 23. Begin preparing your marketing documents and the “road show” presentation that will introduce your company to investors. 24. Complete initial submissions to the applicable securities commission(s) and your chosen Exchange. 25. Await review of initial submission documents by the relevant securities commission(s) and/or the Exchange, who will note any deficiencies and communicate them, along with any other comments, to your company and professional advisors. 26. With the assistance of your professional advisors, address deficiencies in the application, and respond to any other comments, to the satisfaction of the Exchange/relevant securities commission(s). 27. Await conditional approval of your listing from the Exchange. 28. Begin presentations to potential investors. 29. Decide on initial price of shares. 30. File final prospectus and commence your offering. Transaction closing 31. Satisfy any and all conditions set forth in the conditional acceptance letter issued by the Exchange. 32. Become a publicly traded listed company. 33. Join TMX at a Listing Ceremony to celebrate your successful listing.
13 Going public time chart (weeks) STEPS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Meet with the TSX and TSXV team • Prepare required financial statements • • • • • • • • • • • • Have lawyers prepare required legal documents • • • • • • • • • • • • Work with underwriters to perform due diligence • • • • • • • • • • • • Prepare application documents • • • • Prepare marketing documents and road show presentation • • • • • • • • • • • File initial submission • Receive comments from exchange/ securities commission(s) • • • • Address deficiencies in the application • • • Present to potential investors • • • • Price shares • • • • File final prospectus • • Participate in closing of deal and settlement • • Satisfy any conditions in conditional acceptance letter Securities approved for listing and begin trading • •
14 Preparing to Go Public Once you have decided to take your company public, there are many considerations to take into account well before actually beginning the going public process. In particular, the processes of selecting professional advisors, evaluating your corporate structure, and organizing your company’s financial statements should be undertaken as early as practical. Preparing your company as described below will help to ensure a smoother going public transaction. Selecting professional advisors A successful going public transaction will require the support of a professional team including: a financial advisor and/or underwriter (which may also be a sponsoring firm, as discussed below); an external auditor; a securities lawyer; an investor relations (IR) professional; and, in certain conditions, a sponsor. Choosing your financial advisor/underwriter/broker and/or sponsor Only persons registered in Canada to sell securities may legally sell securities or underwrite offerings in Canada. Often referred to as a broker, investment banker or dealer, these persons act as the underwriter for an offering of shares and as the investment dealer who sells securities during the offering process. Prior to offering, the broker will consider your company’s suitability for a public offering. This process includes an assessment of the marketability of your company for potential investors. A broker may also act as a sponsor for your company’s application, if one is required, provided that it is a Participating Organization with the Exchanges. (For more information on Participating Organizations, see www.tsx.com/trading/accessing-our-markets/member-firm-directory?l=A). Enlisting a Sponsor – Some companies seeking a listing may be required to have their application sponsored by a Participating Organization. There are more than 120 Participating Organizations across Canada, and many of these firms have a special focus or area of expertise. A sponsoring firm plays an essential role in the listing process, since it is in a position to provide a broad perspective on your company’s suitability for listing. The sponsor will be familiar with the Exchanges’ guidelines and can provide opinions about: • Your company’s directors and management. • The integrity of the financial information supplied by your company. • The suitability of your company’s business. • The soundness of your company’s business plan and operations. Sponsors for mining companies will also make comments on: • Their visits to your sites / properties. • Land tenure issues and material agreements at your principal properties. • Your management team’s experience and technical expertise. • The 18-month projection of sources and uses of funds prepared by your company (TSX requirement only). The sponsor plays a key role in supporting the listing of your company’s securities, especially in cases where your company does not meet certain financial thresholds and other requirements. Most often, the sponsor is called on to confirm that an applicant to an Exchange satisfies all the listing requirements, or appears reasonably able to meet its obligations as a public company, or both. A sponsoring firm will also help you determine the most appropriate way for your company to go public, and provide advice as to the receptiveness of the market for your company’s specific business. Need a sponsor? For a current list of TSX and TSXV Participating Organizations, please visit https://www.tsx.com/trading/ accessing-our-markets/member-firm-directory?l=A
15 Choosing your underwriters & sponsors Questions for underwriters & sponsors 1. What is the profile of your typical deal? What sector is it in? What is its investment stage and size? 2. What is your experience in dealing with a company like mine? 3. What is your role in the listing process versus that of the Exchanges? 4. How do you deal with conflicts of interest? 5. How receptive is the market currently to this type and size of deal? 6. How should my company’s IPO/listing be positioned in order to appeal to a broader base of investors? How will your firm market my stock? 7. What is a realistic timeline for the listing process and how does it differ between IPOs and RTOs? 8. Can you effectively demonstrate your research leadership for this industry or sector? Choosing your securities lawyer Securities lawyers work with your company to prepare it for a public offering. During the listing process, the securities lawyer works with the broker and the external auditor to ensure the listing documents are accurate and meet all regulatory requirements. It is important to choose a firm with extensive experience in listing public companies of a comparable size, at a similar stage of development and in the same industry as yours. Questions for securities lawyers 1. Are you familiar with this industry, this sector and our company? 2. Can you provide a list of recent relevant deals? 3. Do you have other commitments that would limit the time and resources you could devote to our listing? Choosing your external auditor An external auditor performs important tasks during the listing process, including performing attestation engagements on the financial disclosure in the listing documents as required by securities legislation. It is important to choose a firm with extensive experience in bringing public companies of a comparable size, at a similar stage of development and in the same industry as yours. Additionally, you will need to make sure that the auditor you choose is a participant in the Canadian Public Accountability Board (CPAB) ’s oversight program: this is a requirement for any firm that audits a public company. Questions for external auditors 1. Is your firm authorized to perform audits of public companies? Is it CPAB approved? 2. What other TSX- or TSXV-listed companies do you audit? 3. Does your firm foresee any financial statement issues related to my company going public? Selecting your investor relations professional An investor relations (IR) professional increases public awareness of the company through communication activities directed at existing and prospective shareholders. The IR function can be filled by a firm, an employee or a contractor. Specific responsibilities include keeping shareholders informed, producing annual / quarterly reports and arranging the annual general meeting. Team effort Your company will need the services of experienced securities professionals during the listing process.
16 Questions for IR firms 1. Can you provide a list of clients of a similar size, and in a similar industry? 2. How would your firm generate awareness of my company? 3. What will be the source of investors for my company? 4. What specific services would you provide? 5. How familiar is your firmwith disclosure and filing requirements, and securities commissions’ rules and regulations? 6. Does your firm have a history of disciplinary matters, such as settlement agreements or disciplinary actions, with any regulatory body? Corporate structuring & housekeeping Your company’s Board and management team will be responsible for your company’s business plan and corporate structure. The CFO in particular will play a significant role in determining the ideal corporate structure for going public. Creating a board of directors The Exchanges look carefully at all directors and officers when reviewing a company’s application for listing. The Exchanges will exercise discretion in considering all factors related to your company’s directors, officers and other insiders (and any other individuals involved with your company). The composition of your management team and Board of Directors should include: • Individuals with experience and expertise relevant to your business; • Individuals with relevant public company experience. In the case of TSX Venture Exchange, a director with specific experience with TSXV is important; • Individuals familiar with Canadian securities laws; • Independent directors: • TSX requires at least two independent directors, as defined below • TSXV requires at least two independent directors, as defined below • At least two directors with public company experience are recommended (TSX only); • Securities law (National Instrument 51-101) requires three independent directors for the Audit Committee (TSX only). Independent directors TSX An independent director is a person who meets the following criteria: • is not a member of management, and is free from any business interest or other relationship that could reasonably be perceived to interfere materially with his or her ability to act in the best interest of your company; and • is a beneficial holder, directly or indirectly, collectively of 10% or less of the votes of all issued and outstanding securities of your company. TSXV An independent director is a person who meets the following criteria: • has no direct or indirect material relationship with your company (a material relationship is any relationship which could, in the opinion of your company, interfere with the exercise of the individual’s independent judgment).
17 Both exchanges The following types of individuals would not be considered independent directors by either Exchange: • A person who is currently an officer, employee or a service provider to your company, or any of its subsidiaries, or has been within the past three years; • A person who is an officer, employee or controlling shareholder of a company that has a material business relationship with your company. Board mandate Your Board should adopt a written mandate that acknowledges responsibility for: a. stewardship of your company; b. the integrity of the chief executive officer (CEO) and other executive officers, and their creation of a culture of integrity throughout the organization; c. adopting a strategic planning process and approving (on at least an annual basis) a plan which takes into account the opportunities and risks of your business; d. identifying principal risks of your business, and implementing appropriate risk management systems; e. succession planning (including appointing, training and monitoring senior management); f. adopting a communication policy; g. internal control and management information systems; and h. developing corporate governance principles and guidelines. The written mandate of the Board should also set out: a. the stakeholder communication process; and b. the directors’ basic duties with respect to issues such as Board meeting attendance and advance review of meeting materials. Position descriptions The Board should develop descriptions for the following positions: • Chair of the Board • Chair for each Board committee • CEO (including his/her corporate goals and objectives) Code of business conduct and ethics The Board should adopt a written code of business conduct and ethics (a code) applicable to directors, officers and employees. The code should constitute written standards designed to promote integrity and address the following areas: a. conflicts of interest; b. use of corporate assets; c. confidentiality; d. fair dealing with security holders, customers, suppliers, competitors and employees; e. compliance; and f. reporting of illegal or unethical behaviour.
18 Creating an audit committee Public companies listed in Canada must have an audit committee. This is a cornerstone of corporate governance and financial reporting. Audit committees of companies with international operations should have knowledge of Canadian securities laws and financial reporting, and be conversant in the languages and customs of the country or countries in which any international business is conducted. The minimum qualifications for an audit committee are: Toronto Stock Exchange Listed Companies The audit committee members must be independent and financially literate. • Independence is defined as not having a direct or indirect material relationship with the company. A material relationship is one that could, in the view of your company’s Board of Directors, reasonably be expected to interfere with the exercise of a member’s independent judgment. • Financial literacy is the ability to read and understand financial statements containing the breadth and complexity of issues that can reasonably be expected to be raised by your company’s financial statements. TSX Venture Exchange Listed Companies • The audit committee must be comprised of at least three directors, the majority of whom are not officers, employees, or control persons of your company, or any of its associates or affiliates. Responsibilities of the audit committee The audit committee of a company listed on either Exchange must fulfill the following responsibilities, although there may be some transitional relief immediately prior to going public and for a short period afterwards. Your audit committee must: 1. Have a written charter that sets out the audit committee mandate and responsibilities. 2. Recommend to the Board of Directors: a. the compensation of the external auditor; and b. the external auditor to be nominated. 3. Be directly responsible for overseeing the work of the external auditor, including the resolution of disagreements between management and the external auditor regarding financial reporting. 4. Pre-approve all non-audit services to be provided to your company or its subsidiary entities by the external auditor. 5. Review your company’s financial statements, management discussion and analysis (MD&A), and annual and interim earnings press releases before your company publicly discloses this information. 6. Be satisfied that adequate procedures are in place for reviewing your company’s public disclosure of financial information extracted or derived from the company’s financial statements, and periodically assess the adequacy of those procedures. 7. Establish procedures for: a. the receipt, retention and treatment of complaints regarding accounting, internal accounting controls or auditing; and b. the confidential anonymous submission, by employees of your company, of concerns regarding questionable accounting or auditing matters. 8. Review and approve your company’s hiring policies regarding partners, employees and former partners and employees of any present or former external auditor.
19 Organizing financial statements Because the organization of financial statements can be a long and complicated process, it should begin well in advance of the preparation of the rest of your listing application. Your application to list on either Exchange must generally contain audited annual financial statements, including: • statement of profit or loss, cash flow and changes in equity for the last two completed financial years ending more than 90 days before the date of the application (or 120 days in the case of most applications to TSXV); • statement of financial position as at the end of the two most recently completed financial years (in some instances, only one financial year of audited financial statements is required); and • notes to the financial statements. Note Audit opinions must be without qualification, although depending on the financial history or position of your company, some exceptions may apply. If any interim (financial) period ended: a. after the most recent annual financial statements included in your application, and b. more than 45 days before the date of your application (60 days in the case of most applicants to TSXV) then you will usually also have to provide interim period financial statements for the most recent interim period that meets those criteria. Specifically, you’ll need to provide: • a balance sheet as at the end of the interim period, and a balance sheet as at the end of the immediately preceding financial year, • an income statement, a statement of retained earnings and a cash flow statement, all for the year-to-date interim period, as well as comparative financial information for the corresponding interim period in the immediately preceding financial year (if any), • if the interim period is not the first interim period in the current financial year: • an income statement for the three month period ending on the last day of the interim period, • a cash flow statement for the three month period ending on the last day of the interim period, and • comparative financial information for the corresponding interim period in the preceding financial year (if any) • notes to the financial statements. These interim financial statements may be unaudited, but they will require a review by the external auditors. In the case of listing by way of a reverse takeover or a qualifying transaction with a CPC, financial statements are generally required for both the existing listed company (i. e. the shell company or CPC) and the company seeking to complete the reverse takeover or qualifying transaction with the existing listed company (i. e. your company). You should consult your auditor, legal counsel and TSX or TSXV listing team early in the application process to understand the specific financial statement requirements applicable to your company. In some cases, your underwriters may require additional periods of financial information in order to provide adequate information to potential investors. Financial statement preparation The financial statements included in your listing application must be prepared in accordance with one of the following: 1. International Financial Reporting Standards (IFRS) 2. U.S. GAAP (only applicable to companies with U.S. registered securities) 3. Accounting principles that cover substantially the same core subject matter as Canadian GAAP (applicable to publicly accountable enterprises and only permitted for designated international jurisdictions; some countries, including China, are not currently among these jurisdictions), with a reconciliation to Canadian GAAP
20 Listing requirements TSX and TSXV have original listing requirements for listing your company depending on your industry sector. The sectors include: • Mineral exploration and mining; • Oil and gas; • Industrial; • Research & development; • Technology; • Investment funds and structured products; and • Real estate (TSXV only) TSX and TSXV divide certain industry segments into two tiers, based on the stage of development, historical financial performance, and the financial resources of the issuer. TSX refers to its more established companies as exempt companies and less established ones as non-exempt companies. TSXV refers to its more established companies as Tier 1 issuers and less established ones as Tier 2 issuers. Both TSX and TSXV have original listing requirements consisting of certain financial tests, working capital, public distribution, market capitalization, work programs, property valuations, management and board composition requirements that must be met; these vary according to individual industry sectors. TSX companies are usually established, well-capitalized businesses. However, TSX’s requirements also set out criteria for listing companies that have not yet reached profitability at the time of listing, but are able to meet alternative criteria. Technology, biotechnology and mineral or oil and gas exploration companies that have not yet reached profitability at the time of listing may be able to list on TSX if the specific sector requirements for these companies are met. TSXV companies are usually at an earlier stage of their development and are not required to have advanced to profitability. The financial requirements and listing requirements are appropriately reduced to reflect this. A company could be at the development stage, having cleared technology, marketing and manufacturing hurdles, but yet to show a profit. The TSX and TSX Venture business development team will work with a company to determine if it is likely to meet the listing requirements. A full list of listing requirements for Exploration and Mining Companies can be found in Appendix A; Oil & Gas Companies can be found in Appendix B; and Industrial, Technology, and Research and Development companies can be found in Appendix C.
21 TSX Venture Exchange Listing Experience Submitting an application for listing When your company applies to list on TSXV, there are a number of documents you’ll need to file as part of, and in support of, that application. The exact documentation required will vary depending on whether the listing transaction is: • a listing application made concurrently with an IPO • an IPO by a CPC • a direct listing • a reverse takeover or • a qualifying transaction The chart below gives an overview of the documents you’ll need to file as part of your initial submission to the Exchange (and explains which documents are required for which type of listing transaction). Additional documents which must be filed following conditional approval will be discussed later in the chapter. All Forms referred to are TSXV forms, and all Policies are policies found in the TSXV Corporate Finance Manual. Both the Forms and the Manual can be found online at www.tmx.com/listingprocess The information below is a general guide. For more specific information about your particular type of application for listing, please contact your listing team or visit www.tmx.com/listingprocess Documents to be filed – initial submission ALL APPLICANTS TSXV Personal information form and consent for disclosure of criminal record information form (Collectively, a PIF; Form 2a) Required for all applications. To be completed by every individual who will, at the time of listing: • be an officer or director of the applicant; or • beneficially own or control, directly or indirectly, securities carrying greater than 10 percent of the voting rights attached to all outstanding voting securities of the applicant. Submission letter Required for all applications. This letter must: • specify which industry the company is applying for, • identify any applicable waiver or exemptions that the company is applying for, and • provide three choices for a stock symbol. Disclosure document Required for all applications. This draft disclosure document must provide full, true and plain disclosure of all material facts relating to the applicant’s securities. The exact nature of the document will depend on the listing transaction: • For an IPO: a preliminary prospectus • For a direct listing: a draft Form 2B (Listing Application) • For a qualifying transaction: a draft Form 3B1/3B2 (Information Required in an Information Circular/Filing Statement) • For a reverse takeover: a draft Form 3D1/3D2 (Information Required in an Information Circular/Filing Statement) In all cases, the draft disclosure document must include all applicable annual and interimperiod financial statements (See Chapter 3 for an overview of commonly required financial information).
22 ALL APPLICANTS TSXV Securityholder information Required for all applications. Specifically, applicants must file a Form 2J (Securityholder Information), which sets forth the particulars of its existing shareholders. Stockoptionor security purchase plans All applicants who have stock option plans, security purchase plans and/or any other agreement under which securities may be issued must submit the plan(s) and/or agreement(s). Material contracts Required for all applications. Must include any material contracts that the applicant has entered into (and any draft material contract which it expects to enter into) relating to the issuance of securities, Non Arm’s Length Transactions or the assets upon which the Exchange listing will be based. Valuation or appraisal report (if applicable) Must be prepared by a qualified individual in accordance with industry standards. Preliminary sponsor report Must be included if required by Policy 2.2 – Sponsorship and Sponsorship Requirements Title opinion Usually required of any applicant whose principal properties or assets are located outside Canada or the United States. May be either a title opinion or another appropriate confirmation of title in a form acceptable to the Exchange. Listing fee A cheque representing the applicable listing fees, as provided in Policy 1.3 – Schedule of Fees MINING AND OIL & GAS APPLICANTS TSXV Geological reports Required for each of the applicant’s principal properties. May include recommendations for exploration and/or development work. TECHNOLOGY APPLICANTS TSXV Comprehensive business plan Required for applicants whose business has not generated net income in line with the Minimum Listing Requirements. Must be a comprehensive business plan with forecasts and assumptions for the next 24 months. RESEARCH AND DEVELOPMENT APPLICANTS TSXV Work program Must be a description of the research and development conducted to date and a comprehensive recommended research and development work program. Documents Documents be filed can be found at www.tmx.com/listingprocess
23 Receipt of application & exchange review After receiving your initial submission, the Exchange will send you any questions or comments we may have. You will need to respond to these questions and comments, as well as submit any additional documents or agreements that the Exchange considers appropriate in the circumstances. If your Application for Listing is made concurrently with a prospectus offering, you must provide the Exchange with copies of all correspondence with the applicable securities commissions. Conditional acceptance After reviewing your application, the Exchange will provide one of the following Grant conditional approval — meaning your application for listing is conditionally approved, subject to meeting specific conditions within a 90 day period; or Defer — meaning a decision on your application for listing is deferred pending resolution of specified issues within a 90 day period. If you fail to address these issues to the satisfaction of the Exchange within the 90 day period, your application will be declined; or Decline — meaning your application for listing is declined. At least six months must pass before your company will become eligible for reconsideration. Conditional acceptance of the application will be subject to the following conditions: a. there are no material changes in the final Disclosure Document to the information disclosed in the draft Disclosure Document filed with the Exchange as part of the initial submission. b. all other required documentation, including evidence of satisfactory distribution of the securities, will be filed with the Exchange within 90 days, or such other date as the Exchange may stipulate. Final filing requirements The Exchange must receive the following final documentation prior to providing final acceptance of your listing: 1. The final version of the applicable Disclosure Document; 2. A copy of the final version of the applicable Disclosure Document blacklined to the draft version filed with the Exchange; 3. An Executed Listing Agreement (Form 2D) filed in paper form (if not previously filed); 4. A consent letter from each auditor, accountant, engineer, appraiser, lawyer or other person or party whose report, appraisal, opinion or statement is disclosed or summarized or incorporated by reference into the Disclosure Document or supporting documents (if applicable); 5. Executed copies of the applicable escrow agreement(s) under which securities held by principals of your company will be subject to escrow under applicable securities laws and/or Exchange policies; 6. An executed copy of the final Sponsor Report (if applicable);www.tsx.com