Canada: Contested Takeovers: Recent Developments

The economic crisis that radically transformed the mergers and acquisitions market in 2008 continued to depress Canadian mergers and acquisition activity in the first part of 2009. In the first quarter of 2009, a limited availability of capital and the deterioration of economic conditions resulted in the number of mergers and acquisitions involving Canadian companies falling to a six-year low.¹

However, despite the downturn in overall M&A activity, including in the number of unsolicited offers, there have been a number of contested acquisitions in the Canadian market which have produced important decisions for M&A practitioners. These developments include two unsolicited bids which were cease traded due to breaches of confidentiality obligations.

Teranet's Acceptance Of Borealis' Lowered Bid

One of the most notable recent unsolicited takeover bids was Borealis Infrastructure's bid for Teranet Income Fund, launched on the eve of the world financial crisis.

On September 4, 2008, Borealis, an investment unit of the Ontario Municipal Employees Retirement System, one of Canada's largest pension funds, announced an unsolicited takeover bid at a price of C$11 per unit in cash for all of the units of Teranet Income Fund, the operator of the Province of Ontario's electronic land registration system. The offer came after several expressions of interest by Borealis as far back as June 2007, in which Borealis had suggested it would be willing to acquire Teranet at prices as high as C$12 per unit.

In response to Borealis' unsolicited bid, the board of trustees of Teranet took the usual step of establishing a special committee to manage a process to solicit potential alternative transactions superior to Borealis' bid and recommended that unitholders wait for the outcome of this process before making any decisions about the Borealis bid.

On September 26, 2008, the board of Teranet announced that it had determined that Borealis' bid was inadequate and recommended against acceptance, noting that the bid price was less than the price Borealis had previously indicated it was prepared to offer and that better offers could emerge from the process being conducted by the Special Committee.

On October 15, 2008, following the precipitous decline in the markets and the freezing of the credit markets, the Teranet board announced that it was withdrawing its recommendation to reject the Borealis bid and that the application of the trust's poison pill to the bid had been waived. The board cited as reasons for the withdrawal of its opposition its belief that the strategic process being conducted by the special committee was unlikely to result in a superior offer. It also noted that the TSX index had declined 21 per cent since the commencement of the offer, and that in light of market conditions and liquidity concerns, some unitholders might wish to accept Borealis' cash offer.

Borealis then surprised the market on October 28, 2008 and announced that it was amending its offer to reduce the offer price by C$0.75 to C$10.25 per unit, citing the deterioration in economic and financial market conditions and increases in the cost of capital. The announcement caught Teranet unitholders off guard and Teranet's unit price dropped from a closing price of C$10.58 on October 27 to below C$10. Notwithstanding this price reduction, ultimately a majority of Teranet shareholders accepted the bid.

It is not surprising that Borealis had both the incentive and the opportunity to lower its bid price given the intervening market developments, however, the lowering of a bid price for a takeover bid by amending the bid is unconventional. Indeed, when revised takeover bid rules were proposed by the Canadian Securities Administrators in mid-2006, the rules included a prohibition on varying a bid to reduce its price. The rationale cited by the drafters of the proposed rules was that the 10-day period required for notices of bid changes was not sufficient for such a fundamental change to the offer. Instead, bidders would be required to commence a new bid altogether, restarting the 35-day bid period. The prohibition was eliminated from the final rules which now remain silent as to whether a variation may include a lowering of the bid price.

The Teranet example was part of a trend in the fourth quarter of 2008 of bidders reducing their offer prices to respond to changing economic and market circumstances during the pendency of the bid. In addition, bidders began expressly reserving the right to amend the terms of their bid to lower the price.

Notwithstanding the absence of a specific restriction in the new bid rules, in response to this trend the staff of the Ontario Securities Commission has informally expressed its view that bid price reductions may be inconsistent with aspects of the policy framework of the take-over bid regime and may publish some form of guidance on their views of bid price reductions.

UTS's Rejection Of Total's Bid

The 2009 counterpart of the 2008 Borealis bid was the unsolicited takeover bid of French oil major Total SA for UTS Energy Corp., a Canadian oil sands company that holds a 20 per cent interest in the Fort Hills oil sands project. Like Borealis' bid for Teranet, the UTS bid is of interest because the impact of the economic crisis on the dynamics of the bid.

On January 27, 2009, Total made an unsolicited bid at C$1.30 cash per UTS share. UTS's shares had fallen 84 per cent in the previous year, as costs for the Fort Hills project rose, oil prices sank, and investors questioned the company's ability to finance its share of costs given the state of capital markets and the fact that UTS had no sources of revenue. Total's bid seemed calculated to capitalize on UTS's predicament. For Total, which is large enough to be a patient investor, the combination of depressed oil prices, a cash hungry project and nervous UTS shareholders presented an opportunity to increase its presence in the oil sands at an attractive price. UTS shareholders, however, rather than seeing Total as a saviour, spurned the bid as too low and opportunistic. The day after Total announced its bid, UTS shares rose well above Total's offer.

Shareholders were bolstered by UTS's board of directors which recommended that its shareholders reject the offer. On February 27, 2009, after UTS shares closed at C$1.73 the day before UTS's CEO announced that the majority of UTS's shareholders would not accept Total's hostile bid, indicating that the shareholders expected a higher offer. Total announced that it was not willing to raise its offer, and extended the unamended offer for three weeks.

Unlike in the Borealis takeover, however, the market conditions worked against Total. More favourable market conditions for the oil industry in the first quarter of 2009 gave UTS shareholders resolve to resist Total's opportunistic bid. Even an improved offer by Total, announced on April 13, 2009, of C$1.75 per share, did not sway UTS shareholders.

On April 24, 2009, Total announced that C$1.75 per share was its "best and final offer". Shareholders were unmoved and, on April 28, 2009, Total abandoned its final bid for UTS after failing to win shareholder support for its offer. Following Total's abandonment of its bid, UTS's share price settled back down below Total's bid price, reaching as low as C$1.45, but recently trading in the range of C$1.75 per share. The rejection of Total's bid is an indication that although the current environment has yielded depressed values, shareholders have not lost all optimism and bidders offering premiums to current share prices will not always be embraced.

RIM's Bid For Certicom, A Hostile Takeover Turned Friendly

In December 2008, Blackberry maker Research in Motion (RIM) launched a hostile takeover bid for the encryption technology company, Certicom Corp. The bid led to litigation between the two companies over the effectiveness of their confidentiality and standstill agreements. This case is noteworthy because an unsolicited bidder found itself frustrated due to the terms of a confidentiality agreement, even though specific standstill provisions had expired.

In February 2007, Certicom and RIM discussed a possible acquisition of Certicom by RIM and, in connection with these discussions, entered into a confidentiality agreement on July 11, 2007. This agreement limited the use of confidential information provided within six months of its execution of the agreement, other than to assess the desirability of establishing a business or contractual relationship between RIM and Certicom. The agreement also contained a standstill provision pursuant to which RIM agreed not to make a hostile takeover bid for Certicom for a 12-month period. Certicom and RIM executed a second non-disclosure agreement on June 17, 2008. This second agreement did not contain a standstill provision but did contain the same restrictions on the use of confidential information as the first agreement.

Confidential information was provided by Certicom to RIM under both agreements but no agreement was reached between RIM and Certicom regarding the merger of the companies. Subsequently, RIM launched its hostile bid in December 2008. By that time, the standstill provision in the 2007 agreement had expired, however, the confidentiality provisions of both agreements remained in effect.

RIM's hostile bid prompted Certicom to apply to the Ontario Superior Court of Justice for an injunction to prohibit RIM's bid. In its January 2009 decision, the Court found that RIM had used the confidential information provided by Certicom under the two confidentiality agreements in assessing the desirability of launching its takeover bid and that the confidentiality agreements did not permit the information to be used for that purpose. Although the first agreement did allow confidential information to be used to assess a "business combination between the parties", the Court found that although a takeover bid is a business combination, unless the bid is made on a friendly basis, it is not "between the parties". Therefore, Certicom's confidential information could not be used in connection with a hostile bid. In essence, the limitations on use of confidential information served to prevent RIM from proceeding with an unsolicited acquisition proposal even though there was no standstill in effect. The court did suggest, however, that the terms of the confidential agreement would have been complied with had RIM been able to establish that the individuals who had had access to Certicom's confidential information had been walled off from playing a role in the hostile bid or sharing such information with RIM's deal team.

Although Certicom successfully obtained an injunction preventing RIM from advancing its hostile bid, the Superior Court did note that RIM was free to pursue a friendly deal. In the immediate aftermath of the injunction, RIM complied with the Court's decision and withdrew its hostile offer for the shares of Certicom. Shortly thereafter, on January 23, 2009, Certicom announced that it had agreed to be acquired by internet security provider Verisign Inc. at C$2.10 per share. RIM topped that offer and, on February 10, 2009, it announced jointly with Certicom that they entered into an arrangement agreement under which RIM would acquire all of Certicom's shares at C$3.00 per share, double its initial unsolicited offer.

The Ontario Superior Court's decision emphasizes how seriously the courts regard confidentiality obligations generally and the remedies that courts will make available to companies to protect against unauthorized use of confidential information. The decision also demonstrates that parties should take particular care in drafting non-disclosure agreements, as both standstill and confidentiality provisions can be used to prevent unsolicited bids.

Rusoro's Hostile Bid For Gold Reserve Barred

Confidentiality obligations foiled another hostile bid attempt when on February 10, 2009, Rusoro Mining, a Russian-owned mining company, was ordered by the Ontario Superior Court of Justice to withdraw its hostile takeover offer for Gold Reserve, a Canadian mining company. Rusoro had launched the C$128 million bid in December 2008 in order to take control of the Brisas gold property in Venezuela, which contains about 10 million ounces of gold and sits next to the even bigger Las Cristinas deposit that has been under development by Crystallex International.

What tainted Rusoro's hostile bid was the fact that Rusoro benefited from the financial advice of Endeavour Financial, a merchant bank which had also been engaged by Gold Reserve and had access to Gold Reserve's confidential financial, technical, geological and operational information. Key Endeavour employees who worked on the Gold Reserve engagement also worked on the Rusoro engagement. Endeavour only terminated its engagement with Gold Reserve by e-mail seven minutes after Rusoro's announcement of the hostile bid.

On February 10, 2009, the Ontario Superior Court of Justice granted an injunction restraining Rusoro from proceeding with any hostile bid for Gold Reserve and restraining Endeavour from having any involvement with any hostile bid for Gold Reserve. The Court found there were serious issues to be tried because of alleged conflicts of interest and confidentiality violations as well as breaches by Endeavour of the terms of its engagement by Gold Reserve. Although Rusoro had not breached any confidentiality obligations owing directly to Gold Reserve (unlike RIM and Certicom), the Court found that Rusoro had knowingly benefited from Endeavour's relationship with Gold Reserve. It found that Rusoro had obtained an unfair timing and tactical advantage by using Endeavour in substitution for its own due diligence, having full knowledge of Endeavour's history with Gold Reserve. Gold Reserve could have suffered irreparable harm as a result of the reduced time to determine its course of action in responding to Rusoro's bid to maximize shareholder value.

This Ontario Superior Court of Justice decision is notable because it emphasizes the significance of following a proper takeover process that respects the proprietary and confidentiality concerns of target companies.

HudBay's Shareholders Reject Merger With Lundin

On November 21, 2008, HudBay Minerals Inc. and Lundin Mining Corporation entered into an arrangement agreement for the share exchange acquisition of Lundin by HudBay. Under the terms of the agreement, HudBay would acquire all of the outstanding common shares of Lundin in exchange for HudBay common shares. Although the arrangement would result in Lundin shareholders owning more than half of the merged company the transaction was structured without providing a vote to HudBay shareholders. The deal brought into the spotlight the rules of the Toronto Stock Exchange (the "TSX") which allow for the issuance of shares in an acquisition without shareholder approval if the target is a public company. Because of the amount of dilution to HudBay shareholders, the transaction tested the limits of their exemption and caused shareholders to ask the TSX to use its residual powers to require a HudBay shareholder vote.

Based on the market price of HudBay shares the deal represented a premium of approximately 103 per cent to Lundin's closing price on the day before the transaction was announced. The reaction of market analysts and HudBay shareholders, however, was almost universally negative and HudBay's share price fell by approximately 49 per cent on the day it was announced. In addition to objecting to the strategic rationale and commercial terms for the transaction, HudBay shareholders objected to not being able to vote on the transaction despite the fundamental change that it would have on their investment in HudBay.

The TSX approved HudBay's share issuance. This decision was based on TSX rules which provide an exemption from the general requirement of shareholder approval for acquisitions involving dilution in excess of 25 per cent, for acquisitions of public companies.

A HudBay shareholder, Jaguar Financial Corporation, then took the lead in applying to the Ontario Securities Commission (the "OSC") to set aside the TSX's decision and to require HudBay shareholder approval. Although the OSC generally defers to the judgement of the TSX, the OSC found that it had no basis to defer in these circumstances as the TSX had not provided any reasons for its decision, leaving no way for the OSC to determine whether the decision was within the range of reasonableness. After assessing all of the evidence and arguments of Jaguar, HudBay, Lundin and the TSX, the OSC set aside the TSX decision and ordered HudBay not to proceed without HudBay shareholder approval.

The OSC noted in its judgment that the exemption from shareholder approval for acquisitions of public companies was subject to the TSX's broad discretion to impose conditions or to require shareholder approval. In exercising such broad discretion the TSX must consider whether the quality of the marketplace would be adversely affected or whether it would be contrary to public policy for the transaction to proceed without a shareholder vote. The OSC focused on several issues, including the fact that there was an enormous impact on the rights and economic interests of HudBay shareholders. Also, while the level of dilution is not determinative, it is an important factor. In this case, 100 per cent dilution was extreme and indicated that the transaction was a merger of equals, rather than an acquisition, which would imply that HudBay shareholders should have the same approval rights as Lundin shareholders. Furthermore, the transaction would have resulted in changes to the HudBay board, with five of nine directors being former directors of Lundin. The OSC noted that these changes would have been imposed on HudBay shareholders without their approval when the right of shareholders to vote on a board is a fundamental governance right. This board change further emphasized the merger of equals nature of the transaction.

In its reasons, the OSC also addressed the issue of the timing of a shareholders meeting, which HudBay shareholders had requisitioned in order to replace the HudBay board. Upon receipt of the requisition, HudBay had accelerated the previously announced closing date for the Lundin merger, and set a date for the requisitioned shareholders meeting after the re-scheduled Lundin closing date. The OSC stated that "[w]hile HudBay and Lundin may have the legal right to make these decisions under corporate law, [their actions appear to have been] taken for the purpose of frustrating the legitimate exercise by HudBay shareholders of their right to require a shareholders meeting to consider the replacement of the HudBay board, in effect, a shareholder vote on the transaction". Overall, the OSC concluded that the quality of the marketplace would be significantly undermined by permitting the transaction to proceed without HudBay shareholder approval.

The OSC released its decision to require a HudBay shareholder meeting on January 23, 2009, resulting in the HudBay share price rising to C$4.60 on the TSX. A month later, HudBay and Lundin announced that they were terminating the arrangement agreement and abandoning the merger mainly due to the lack of HudBay shareholder support for the transaction. The HudBay Board of Directors resigned on March 23, 2009 and a new Board was elected at the shareholders meeting on March 25, 2009.

On April 30, the TSX released for comment proposed amendments to its rules that would require shareholder approval for the issuance of shares in payment for an acquisition of a public company that exceeds 50 per cent of the number of shares previously issued. The comment period has expired but to date the TSX has made no announcement as to whether it will proceed with such amendments.

Developments In The Regulation Of Poison Pills

While the fiduciary duties of corporate directors in Canada in the context of a change of control transaction are fundamentally the same as those of directors of US corporations, the ability of a Canadian board to invoke a shareholder rights plan, or poison pill, is significantly constrained in Canada by the policies of Canada's provincial securities regulators. Pursuant to their public interest power, Canadian securities regulators have adopted National Policy 62-202 - Take-Over Bids – Defensive Tactics that establishes a policy of intervening to prevent tactics employed by a target board that will likely result in shareholders being deprived of the ability to respond to a takeover bid. Pursuant to this policy, in the face of an unsolicited bid, the securities commissions will cease trade a shareholder rights plan that has been in place long enough for the board to have had an opportunity to seek alternatives to the bid.

The length of time that a rights plan might be left in place can vary depending on the circumstances, but generally a period of 45 to 70 days from the commencement of a bid is considered by securities commissions to be sufficient time for a board to seek alternatives. The result of this policy is that a shareholder rights plan can be useful to buy a target time to generate an auction, but cannot be used for a "just say no" defence by Canadian boards, even where the directors in good faith believe that an acquisition is not in the best interests of the corporation.

Some have criticized the policy on the basis that it constrains the ability of boards to take actions they deem to be in the best interests of the corporation and shareholders and essentially relegates the role of the board to that of auctioneer. They also note that it puts Canadian companies at a competitive disadvantage relative to their peers in the United States where the propriety of a shareholder rights plan is determined by the courts that defer to the business judgment of the board of directors rather than enforcing a policy that favours shareholder choice.

The criticisms of the Canadian status quo resonated with the Competition Policy Review Panel that was established by the Government of Canada in 2007 to examine and report on the laws and policies affecting Canada's economic growth and development. The panel's report, released in June 2008, recommends that National Policy 62-202 be repealed and that regulation of shareholder rights plans by securities regulators should cease, with substantive oversight of directors' duties in mergers and acquisitions being provided exclusively by the courts.

It is far from certain that provincial securities commissions or legislatures will adopt the panel's recommendations regarding the reform of shareholder rights plan regulation. Many institutional shareholders and corporate governance organizations have viewed the limited utility of shareholder rights plans in Canada as a positive feature of the Canadian M&A landscape. The limited use of shareholder rights plans is often cited as one of a number of shareholder friendly features of Canadian law (others include the absence of staggered boards and the ability of 5 per cent shareholders to requisition shareholders meetings) that prevent management entrenchment and give shareholders a greater say in determining the fate of the corporation.

Footnote

1. Financial Post, Crosbie: Mergers and Acquisitions in Canada, M&A Quarterly Report – Q1/09.

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