On February 23, 2021, the Ontario Securities Commission (the
Commission) released the reasons for its order of September 14, 2020,
dismissing the application for exemptive relief brought by ESW
Capital Inc. (ESW), the largest shareholder of Optiva Inc.
(Optiva), from the mandatory 50% minimum tender requirement under
the Canadian take-over bid regime.
Since May 2016, formal take-over bids under National Instrument
62-104 Take-Over Bids and Issuer Bids have been subject to
a mandatory minimum tender requirement of more than 50% of the
outstanding securities of the class that are subject to the bid,
excluding those beneficially owned by the bidder and its joint
actors.
ESW sought an exemption from the mandatory minimum tender
requirement before it would formally launch an unsolicited offer to
acquire the outstanding shares of Optiva not already owned by ESW.
Optiva's proposed bid price was at a 122% premium to the 20-day
volume-weighted average price and a 92%
