Presentation on theme: "Legal Developments Round Up Robert CooperBlair Horn McCarthy Tétrault LLPFasken Martineau LLP Mergers and Acquisitions 2010 The Continuing Legal Education."— Presentation transcript:
Legal Developments Round Up Robert CooperBlair Horn McCarthy Tétrault LLPFasken Martineau LLP Mergers and Acquisitions 2010 The Continuing Legal Education Society of British Columbia June 3, 2010
HudBay Minerals Inc. Ontario Securities Commission Decision January 2009 Reversal of TSX decision not to impose shareholder approval on HudBay in connection with merger with Lundin Mining – “quality of the market place” Dilution > 100% Share price ↓ 40% on announcement Corporate Governance (changes to Board) Fair treatment of shareholders Financial Advisory Fees, Fairness Opinions and Independence
HudBay Minerals Inc. Ontario Securities Commission Decision January 2009 (cont.) Sidecar Private Placement Voting – Since considered in Profound Energy Review of TSX decision principles since considered in InterRent TSX Response Section 611(c) Subject to Subsection 611(d), security holder approval will be required in those instances where the number of securities issued or issuable in payment of the purchase price for an acquisition exceeds 25% of the number of securities of the listed issuer which are outstanding, on a non-diluted basis.
ARC Equity Management and Profound Energy Alberta Securities Commission August 2009 Use of private placements by acquisition targets in the context of M&A transactions Facts: Paramount Energy Trust agreed to acquire 100% of Shares of Profound Energy 100% premium Sidecar private placement of Special Warrants convertible into 19.9% of Profound Energy stock Special Warrants convertible regardless of success of acquisition ARC a 31% shareholder of Profound and not supportive of transaction
ARC Equity Management and Profound Energy Alberta Securities Commission August 2009 (cont.) Paramount acquired 59.4% and increased to 67.34% following Special Warrant conversion and proceeded with going private transaction ARC applied to ASC to prevent going private transaction Decision Public interest jurisdiction not to be exercised lightly – Canadian Tire cited Private placement had legitimate business purpose Failure to appeal TSX decision to approve private placement a key factor ASC specifically declined to adopt, as a legal principle, HudBay obiter re: entitlement to vote sidecar private placement shares
InterRent Ontario Securities Commission August 2009 OSC declined to intervene in TSX decision Facts: InterRent applied to TSX for approval of 49% private placement and externalization of property management agreement TSX permitted private placement without shareholder approval but required vote on management agreement NorthWest Value Partners, InterRent’s largest Unitholder, argued to TSX that private placement would materially affect control, therefore Unitholder approval should be required. Extensive submissions received by TSX NorthWest sought review of TSX decision by OSC
InterRent Ontario Securities Commission August 2009 (cont.) Decision: OSC deferred to TSX decision and dismissed NorthWest’s request for review OSC confirmed that it will intervene in only rare circumstances and an applicant faces a heavy burden in proving intervention justified OSC concluded: TSX followed fair process TSX provided articulated reasons Decision was reasonable No intervention
Shareholder Rights Plans Comments on Lions Gate/Pulse Data and Canadian Hydro Developers
BCE 17 Months Out Too early to tell or an affirmation of existing law? Impact on Commission Decisions?