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Tag Archives: defensive tactics

DEFENSIVE TACTICS DURING A PROXY CONTEST: lessons from the Oremex saga

Posted in Private Equity, Private Transactions, Shareholders, Strategy

There are important lessons in a recent Ontario Superior Court decision examining defensive tactics taken by a board in the context of a contested shareholders’ meeting.

In Concept Capital Management Ltd. v. Oremex Silver Inc., 2013 ONSC 7820, the board of Oremex – during a contested election — postponed a shareholders’ meeting and issued shares to a third party, GRIT, in a financing transaction that closed in escrow on the same date as the revised record date for the meeting. Oremex took the view that the new shares could be voted at the contested meeting.

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Shareholder Rights Plans – The CSA Proposal

Posted in Public M&A, Shareholders, Strategy

On March 14, 2013, the Canadian Securities Administrators (otherwise known as the “CSA”) published a request and notice for comments regarding Proposal National Instrument 62-105 – Security Holder Rights Plans, the purpose of which is to introduce the CSA’s proposed regulatory regime for rights plans.

The proposed rule, which is discussed in more detail in our publication Securities Regulators Proposed New Rules for Shareholder Rights Plans, does not address other defensive tactics.

In addition, the Autorité des marchés financiers has published An Alternative Approach to Securities Regulators’ Intervention in Defensive Tactics, (the “AMF Proposal”), which will be … Continue Reading

Defensive Tactics – The AMF Alternative Approach

Posted in Public M&A, Shareholders, Strategy

On March 14, 2013, the Autorité des marchés financiers has published a consultation paper regarding An Alternative Approach to Securities Regulators’ Intervention in Defensive Tactics (the “AMF Approach”). Concurrently, the Canadian Securities Administrators (otherwise known as the “CSA”) published a request and notice for comments regarding Proposal National Instrument 62-105 – Security Holder Rights Plans, the purpose of which is to introduce the CSA’s proposed regulatory regime for rights plans.

The AMF Approach is more general and far reaching in that it applies not just to rights plans but to all defensive measures adopted by a board to fend … Continue Reading

Fibrek: Where are we now in the regulation of defensive tactics?

Posted in Public M&A, Shareholders, Strategy

Resolute’ s battle for ownership of 100% of Fibrek Inc. recently came to an end with a friendly “white knight” offer from Mercer being withdrawn after a lengthy court battle. Resolute’s hostile bid for Fibrek was successful, notwithstanding that Fibrek’s board had endorsed Mercer’s offer at a 40% premium to the hostile bid. The Fibrek saga causes us to ask whatCanadian regulators are trying to achieve with the regulation of defensive tactics, and where they may go next.

We won’t go over all of the history in this post, discussed in detail in our earlier blog post, but … Continue Reading

Will the Battle for Fibrek Impact the Canadian M&A Landscape?

Posted in Public M&A, Shareholders, Strategy

The recent saga of Fibrek Inc. has been of great interest to those in the M&A community. Many hoped that it would lead to the Supreme Court of Canada giving its view of defensive tactics and strengthen the hand of boards of directors seeking ways to maximize shareholder value in the face of an unsolicited offer.  This would have been very timely as regulators have recently been considering the future of certain defensive tactics (for more on this, please see one of our earlier posts: here). Despite the SCC dismissing Fibrek’s application for leave to appeal, the regulatory and … Continue Reading

OSC Dialogue 2011: Significant New OSC Policy Projects on M&A Matters Discussed

Posted in Public M&A, Shareholders

After a few years on hiatus, the Ontario Securities Commission hosted its “Dialogue” conference once again on November 1, 2011. OSC Dialogue opened with a speech from the Chair of the Ontario Securities Commission, Howard Wetston, and filled the morning with two panel discussions, one on market infrastructure and another on strategic issues in investor protection.

The OSC Dialogue’s lunch hour was scheduled with a speech from The Honourable Dwight Duncan, Ontario’s Minister of Finance, as well as a speech from Ian Russell, President and CEO of the Investment Industry Association of Canada.

Of particular interest though for this blog … Continue Reading

The Clash of the Rights Plan Cases (Redux)

Posted in Public M&A, Shareholders

The Ontario Securities Commission issued an order this week in connection with a shareholder rights plan adopted by the board of directors of MOSAID Technologies Incorporated in response to a hostile bid made by Wi-LAN Inc. The OSC ordered that effective November 1, 2011 (i.e. 70 days after the commencement of Wi-LAN’s unsolicited offer), MOSAID’s shareholder rights plan must go. The key factors considered by the OSC in arriving at its decision to allow the rights plan to stick around for another couple of weeks (not as long as MOSAID had wanted) included:

Poison Pill 101: Comparing the Canadian and US Regimes

Posted in Public M&A, Shareholders

A poison pill, or shareholder rights plan, is a device implemented by a company’s board of directors in order to deter unsolicited or hostile acquisition proposals. The rights plan originated in the United States and was introduced in Canada in 1988 when Inco adopted its first rights plan. The introduction of poison pills in both countries was met with questions as to their legality. In the divergent approaches through which these questions were resolved in Canada and the United States (in particular Delaware), the rights plan and its effectiveness as a take-over defence have followed divergent paths.

In Delaware, the … Continue Reading

Vice Chancellor Laster Visits Toronto to Speak on M&A Disputes

Posted in Public M&A, Strategy

A select group of senior executives and in-house counsel interested in cross-border M&A disputes recently had a special opportunity to hear Vice Chancellor Travis Laster of the Delaware Court of Chancery speak in Toronto about his thoughts on some thorny M&A issues and their treatment under a continuum of legal regimes ranging from Pennsylvania, to Delaware of course, to Canada and to the United Kingdom.  VC Laster was invited by McCarthy Tétrault to provide the keynote speech at a seminar put on for its clients and friends entitled M&A Disputes: Perspectives from Both Sides of the Border. Participants were … Continue Reading