Ontario Commission des 22nd Floor 22e étage Securities valeurs mobilières 20 Queen Street West 20, rue queen ouest Commission de l’Ontario Toronto ON M5H 3S8 Toronto ON M5H 3S8
May 11, 2021
IN THE MATTER OF THE SECURITIES LEGISLATION OF ONTARIO (the Jurisdiction)
AND
IN THE MATTER OF THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS IN MULTIPLE JURISDICTIONS
AND
IN THE MATTER OF DANI REISS (the Filer)
DECISION
Background
The principal regulator in the Jurisdiction has received an application (the Application) from the Filer for a decision under the securities legislation of the Jurisdiction of the principal regulator (the Legislation) granting an exemption from the prospectus requirement under the Legislation in connection with the sale of Subordinate Voting Shares (as defined below) of Canada Goose Holdings Inc. (the Issuer) by the Filer under a Filer ASDP (as defined below) (the Exemption Sought).
Furthermore, the principal regulator has also received a request from the Filer for a decision that the Application, this decision and all supporting materials or other information submitted in connection herewith remain confidential until the earlier of (i) the public disclosure by the Filer of the establishment of a Filer ASDP by way of news release of all relevant information and (ii) 90 days from the date of this decision (the Confidentiality Relief).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
(a) The Ontario Securities Commission is the principal regulator for this Application, and
(b) The Filer has provided notice that section 4.7(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in each of the provinces and territories of Canada, other than Ontario (collectively with Ontario, the Jurisdictions).
Interpretation
Terms defined in National Instrument 14-101 Definitions and MI 11-102 have the same meaning if used in this decision, unless otherwise defined.
Representations
This decision is based on the following facts represented by the Filer:
The Issuer
The Issuer is a corporation incorporated under the Business Corporations Act (British Columbia).
The Issuer’s authorized share capital consists of: (i) an unlimited number of subordinate voting shares (the Subordinate Voting Shares), (ii) an unlimited number of multiple voting shares (the Multiple Voting Shares, and together with the Subordinate Voting Shares, the Shares), and (iii) an unlimited number of preferred shares, issuable in series (the Preferred Shares).
Holders of Subordinate Voting Shares have one vote for every Subordinate Voting Share. Holders of Multiple Voting Shares have 10 votes for every Multiple Voting Share. The Multiple Voting Shares are convertible into Subordinate Voting Shares on a one-for-one basis at any time at the option of the holders thereof and automatically in certain other circumstances.
As of April 19, 2021, 59,435,079 Subordinate Voting Shares, 51,004,076 Multiple Voting Shares and no Preferred Shares were issued and outstanding. The Subordinate Voting Shares represented 10.44% of the aggregate voting rights attached to all of the Issuer’s outstanding Shares and the Multiple Voting Shares represented 89.56% of the aggregate voting rights attached to all of the Issuer’s outstanding Shares.
The Subordinate Voting Shares are listed on the Toronto Stock Exchange and the New York Stock Exchange under the symbol “GOOS”.
The Issuer is a reporting issuer in each of the Jurisdictions and is not in default of the securities legislation in any Jurisdiction.
The Filer
The Filer is the President and Chief Executive Officer of the Issuer and is a director of the Issuer.
As of April 19, 2021, the Filer directly or indirectly owned, in the aggregate, 20,130,334 Multiple Voting Shares (the Filer Multiple Voting Shares) and no Subordinate Voting Shares (the Filer Subordinate Voting Shares). The Filer Multiple Voting Shares represent (i) 39.47% of the outstanding Multiple Voting Shares, (ii) approximately 18.23% of the outstanding Shares and (iii) approximately 35.35% of the votes attaching to all of the Issuer’s outstanding Shares. The Filer Subordinate Voting Shares represent (i) 0% of the outstanding Subordinate Voting Shares, (ii) 0% of the outstanding Shares, and (iii) 0% of the votes attaching to all of the Issuer’s outstanding Shares. Together, the Filer Multiple Voting Shares and Filer Subordinate Voting Shares represent, in the aggregate, approximately 35.35% of the votes attaching to all of the outstanding Shares. In addition, the Filer holds 31,680 restricted stock units (RSUs), that may entitle the Filer to 31,680 Subordinate Voting Shares upon vesting and 890,019 stock options (Stock Options), which may be exercised for 890,019 Subordinate Voting Shares.
The Filer may currently be deemed to be a control person of the Issuer under the Legislation and the securities legislation of the other Jurisdictions in which the Issuer is a reporting issuer.
The Filer is not in default of the securities legislation in any Jurisdiction.
Automatic Securities Disposition Plan
The Filer intends to establish an automatic securities disposition plan in order to be able to make orderly sales of Subordinate Voting Shares all or a substantial part of which will be Subordinate Voting Shares issued to the Filer upon the settlement of RSUs and exercise of Stock Options (each a Filer ASDP). None of the Subordinate Voting Shares to be sold under the Filer ASDP will result from the conversion of Filer Multiple Voting Shares.
A Filer ASDP will be established in accordance with applicable securities legislation and staff guidance, including Canadian Securities Administrators Staff Notice 55-317 Automatic Securities Disposition Plans (Staff Notice 55-317), including the following:
(a) a Filer ASDP will include provisions restricting the commencement of sales under the Filer ASDP until after the filing of the Issuer’s next interim financial report or annual financial statements;
(b) a Filer ASDP will include clear written trading parameters and other instructions in the form of a written plan document. The Filer ASDP will either include a formula or specify the number of securities to be sold, and set out any minimum trade price, if any, and any date of sales;
(c) a Filer ASDP will provide for a term that is sufficiently long to avoid any potential use of Material Undisclosed Information (as defined below);
(d) a Filer ASDP will include meaningful restrictions on the ability of the Filer to amend, suspend or terminate such Filer ASDP;
(e) a Filer ASDP will include provisions restricting any securities dealer from consulting with the Filer regarding any sales under the Filer ASDP and the Filer from disclosing information to the dealer concerning the Issuer that might influence the execution of the Filer ASDP;
(f) the Issuer will oversee the establishment and use of the Filer ASDP;
(g) at the time the Filer enters into a Filer ASDP, the Filer will not possess any knowledge of privileged information or of a material fact or material change with respect to the Issuer that has not been generally disclosed (collectively, Material Undisclosed Information) and the Filer ASDP will be entered into in accordance with the Issuer’s insider trading policy;
(h) a Filer ASDP will be entered into in good faith and not as part of a plan or scheme to evade the prohibitions of securities legislation in any Jurisdiction or any other applicable securities laws;
(i) the establishment of a Filer ASDP will be disclosed by way of a news release of all relevant information on the System for Electronic Document Analysis and Retrieval (SEDAR); and
(j) the Filer will file an insider report on the System for Electronic Disclosure by Insiders (SEDI) each time a trade is made under the Filer ASDP, specifying that such trade was made under the Filer ASDP.
- It is anticipated that pursuant to the terms of a Filer ASDP, among other things:
(a) all sales of Subordinate Voting Shares will be conducted by a securities dealer on behalf of the Filer, with no participation by or direction or advice from the Filer;
(b) the total number of Subordinate Voting Shares sold in the Sales Period (as defined below) under a Filer ASDP in reliance on the Exemption Sought will not exceed 1% of the total number of Subordinate Voting Shares outstanding, as of the date of the establishment of such Filer ASDP; and
(c) all sales of Subordinate Voting Shares will be conducted over a period of effectiveness (the Sales Period) specified in the corresponding Form 45-102F1 Notice of Intention to Distribute Securities (a Form 45‑102F1) under Section 2.8 of National Instrument 45-102 Resale of Securities (NI 45-102) filed when the Filer ASDP is entered into as further described herein.
It is the intention of the Filer and the Issuer that all sales under any Filer ASDP be exempt from the insider trading restriction in reliance on the available exemption in the Legislation and corresponding law and regulation in the Jurisdictions for trades conducted under automatic plans.
Under the Filer ASDP intended to be effective on the second trading day following the date on which the Issuer files the interim financial statements for the quarter ending June 27, 2021 (the Effective Date), it is currently the intention of the Filer to sell up to approximately 937,700 Subordinate Voting Shares thereunder, which may include Subordinate Voting Shares issued to the Filer upon the exercise or settlement equity-based compensation instruments. The Filer ASDP will not include Subordinate Voting Shares issued to the Filer upon the conversion of Multiple Voting Shares.
If the Filer is deemed to be a control person of the Issuer, any sale of the Filer Subordinate Voting Shares would be considered a “control distribution” (as such term is defined in NI 45-102) (a Control Distribution), and would either have to comply with the prospectus requirement or satisfy the conditions of the exemption from the prospectus requirement for trades by a control person in section 2.8 of NI 45-102 (the Prospectus Exemption for Control Trades).
The Filer’s compliance with each of the conditions of the Prospectus Exemption for Control Trades would impede, and ultimately prevent, the implementation and operation of a Filer ASDP because (i) the seven-day waiting period requirement in paragraph 2.8(3)(b), (ii) the 30-day expiry provision in paragraph 2.8(4)(a) of NI 45-102 and (iii) the prohibition in subsection 2.8(5) of NI 45-102 on filing a new Form 45-102F1 prior to the expiry of a previously filed Form 45-102F1 would prevent continued or successive dispositions under the Filer ASDP by requiring that the Filer refile a Form 45-102F1 respecting the proposed sales of Subordinate Voting Shares every 30 days over the course of the duration of a Filer ASDP and that the Filer wait at least seven days before making the first trade after each filing of a Form 45-102F1. Compliance with these requirements would effectively limit the Filer’s ability to conduct sales of Subordinate Voting Shares to intermittent 23-day windows, separated by seven-day waiting periods, which would have a material detrimental impact on the Filer’s ability to implement a Filer ASDP.
In absence of the Filer’s compliance with each of the conditions of the Prospectus Exemption for Control Trades, the Filer requests the Exemption Sought in order to relieve the Filer from the prospectus requirement in connection with each disposition of Filer Subordinate Voting Shares under a Filer ASDP and enable the establishment of a Filer ASDP in accordance with Staff Notice 55-317, while still providing timely and meaningful public disclosure of the intended and completed sales by the Filer of Subordinate Voting Shares consistent with the policy rationale underlying section 2.8 of NI 45-102.
Decision
The principal regulator is satisfied that the decision meets the test set out in the Legislation for the principal regulator to make the decision.
The decision of the principal regulator under the Legislation is that the Exemption Sought is granted provided that:
(a) each Filer ASDP includes provisions restricting the commencement of sales under a Filer ASDP until after the filing of the Issuer’s next interim financial report or annual financial statements;
(b) each Filer ASDP includes meaningful restrictions on the ability of the Filer to amend, suspend, or terminate the Filer ASDP;
(c) all sales of Subordinate Voting Shares under a Filer ASDP are conducted by any securities dealer with no participation by or direction or advice from the Filer;
(d) at the time the Filer enters into a Filer ASDP, the Filer does not possess any Material Undisclosed Information;
(e) the total number of Subordinate Voting Shares sold under a Filer ASDP does not exceed 1% of the total number of outstanding Subordinate Voting Shares, as of date of the establishment of such Filer ASDP;
(f) the Filer files a completed and signed notice in the form of Form 45-102F1 (a Notice) in accordance with NI 45-102 at least seven days prior to the first trade of Subordinate Voting Shares under any Filer ASDP that discloses the aggregate number of Subordinate Voting Shares intended to be sold under the Filer ASDP, and the Sales Period for the sale of Subordinate Voting Shares under the Filer ASDP;
(g) the Filer files insider reports within three days of the completion of each sale under a Filer ASDP in accordance with the insider reporting obligation applicable to trades by a control person in paragraph 2.8(3)(c) of NI 45-102;
(h) the Sales Period under any Filer ASDP is equal to 12 months;
(i) the Notice for a Filer ASDP is signed no earlier than one business day before it is filed;
(j) the Notice filed in connection with trades under any Filer ASDP expires on the earlier of (i) the end of the applicable Sales Period and (ii) the date that the Filer files the last of the insider reports reflecting the sale of all Subordinate Voting Shares referred to in the Notice;
(k) the Filer does not conduct further sales of Subordinate Voting Shares under a given Filer ASDP following the expiry of the Notice relating to such Filer ASDP;
(l) the Filer does not conduct sales of Subordinate Voting Shares under a Filer ASDP prior to the expiry of the Notice for any previously commenced Filer ASDP;
(m) the Issuer is and has been a reporting issuer in the jurisdiction of Canada for the four months immediately preceding each trade under any Filer ASDP;
(n) the Filer has held any Subordinate Voting Shares, or securities or related financial instruments that were converted into or exercised or settled for such Subordinate Voting Shares, sold under a Filer ASDP for at least four months prior to the trade of such Subordinate Shares;
(o) no unusual effort is made to prepare the market or to create a demand for the Subordinate Voting Shares;
(p) no extraordinary commission or consideration is paid to a person or company in respect of the trade;
(q) the Filer has no reasonable grounds to believe that the Issuer is in default of securities legislation; and
(r) the Exemption Sought shall terminate on the date that is 12 months following the Effective Date.
Furthermore, the decision of the principal regulator under the Legislation is that the Confidentiality Relief is granted.
“Garnet Fenn” “Lawrence Haber”
Garnet Fenn Commissioner Ontario Securities Commission
Lawrence Haber Commissioner Ontario Securities Commission