In late May 2016, the TSX proposed amendments to the TSX Company Manual (Initial Proposal), most notably in Part IV, which contains the requirements for maintaining a listing. In our earlier post, we provided an overview of the Initial Proposal, which was to introduce a requirement for certain corporate documents to be disclosed, and publicly accessible, on a listed issuer’s website. In the Initial Proposal, the TSX pointed out that while many relevant corporate documents are already publicly available (typically on SEDAR), they are often difficult to find and categorize.
At the conclusion of the initial comment period, the TSX identified concerns from market participants regarding the potential increased regulatory burden and the general uncertainty surrounding the types of documents that fall within the scope of the Initial Proposal. As a result, the proposed amendments were revised (Revised Proposal) and the TSX has issued a further request for comments, to be completed by May 8, 2017. While the rationale of providing participants with easy centralized access to key information remains unchanged, the Revised Proposal attempts to remedy the potential regulatory burden and clarity issues of the Initial Proposal.
The Initial Proposal created ambiguity by providing for broad categories of documents, with short non-exhaustive lists as guidance, that an issuer would be required to post online. For example, an issuer was required to post “constating documents including articles, trust indentures, partnership agreements, by-laws and other similar documents” and “corporate policies that may impact meetings of security holders and voting, including advance notice and majority voting policies.” The Revised Proposal attempts to address the ambiguity by providing specific lists (for example, “articles of incorporation, amalgamation, continuation…”) and in some cases, a catch-all for documents of a similar nature.
The Initial Proposal also included a potentially burdensome list of corporate governance documents that, if enacted, must be posted, including security holder rights plans, security based compensation arrangements, codes of ethical business conduct, anti-corruption policies and other environmental, social, and whistleblower policies. In an effort to reduce the regulatory burden on issuers, the Revised Proposal substitutes a shorter and more definitive list, requiring any advance notice and majority voting policies, position descriptions for key directors and officers, the board mandate, and all board committee charters. The Revised Proposal further reduces the regulatory burden by allowing documents to be posted in their current form, so long as they are easily identifiable, including being contained within larger documents, provided that the larger document is also current and effective.
In narrowing the scope of required disclosures, the TSX is attempting to find a balance between facilitating effective access to relevant information and maintaining a reasonable level of regulatory oversight. Recognizing this balance, the TSX has asked commenters to specifically address whether there should be required disclosure of additional company policies, including those listed in the Initial Proposal and removed in the Revised Proposal. The TSX has also requested an opinion on whether certain issuers, such as foreign or inter-listed issuers, should be exempt from the requirement, an issue that was notably absent from the Initial Proposal and the questions posed during the 2016 comment period.