Timely Disclosure

Timely Disclosure

Updates and Commentary on Current issues in M&A, Corporate Finance and Capital Markets

Category Archives: Hostile/unsolicited Bids

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Defensive Private Placements Under the New Take-Over Bids Regime

Posted in Capital Markets, Defensive Tactics, Hostile/unsolicited Bids
OSC and BCSC on Defensive Private Placements Under the New Take-Over Bids Regime As discussed in our previous post, the first hostile take-over bid under the new Canadian take-over bid rules was launched by Hecla Mining Company (Hecla) in July 2016 for the purchase of all of the outstanding shares of Dolly Varden Silver Corporation… Continue Reading

Hostile Bid Launched Targeting Nordex Explosives Ltd.

Posted in Contested Situations, Hostile/unsolicited Bids, Mergers and Acquisitions, Take-Over Bids
Nordex Explosives Ltd. (Nordex), a Canadian explosives manufacturer listed on the TSX Venture Exchange, and Société Anonyme d’Explosifs et de Produits Chimiques (EPC) entered into a private placement and subsequent going private transaction on June 15, 2016. EPC was to purchase Nordex shares for $0.12 per share. However, subsequent to Nordex’s announcement of the EPC… Continue Reading

First Hostile Takeover Bid Launched Under New Canadian Regime

Posted in Capital Markets, Contested Situations, Hostile/unsolicited Bids, Stock Exchanges, TSX
As a follow up to our previous post “Time will tell if the timing’s right: CSA adopt the most sweeping changes to the Canadian take-over bid regime in a generation” we are reporting on the first hostile take-over bid of a Canadian reporting issuer launched under the new rules that came into effect on May… Continue Reading

Time will tell if the timing’s right: CSA adopt the most sweeping changes to the Canadian take-over bid regime in a generation

Posted in Contested Situations, CSA, Hostile/unsolicited Bids, Mergers and Acquisitions, Securities Regulatory Authorities, Take-Over Bids
On February 25, 2016, the CSA released the final version of the long-awaited changes to the Canadian take-over bid regime.  While the final rules are largely in line with the proposal that was released for comment almost a year ago, it is notable that the statutory minimum bid period has been shortened from 120 days… Continue Reading

The Suncor – Canadian Oil Sands Board Demonstrates that the Board’s Recommendation Truly is a Prized Asset

Posted in Capital Markets, Contested Situations, Hostile/unsolicited Bids, Mergers and Acquisitions, Take-Over Bids
Earlier this week, Suncor Energy Inc. (Suncor) and Canadian Oil Sands Limited (COS) announced that they reached an agreement whereby COS agreed to support Suncor’s offer to acquire COS for $6.6 billion (including estimated debt of $2.4 billion), representing a 12% increase in the exchange ratio from the initial offer made by Suncor for COS… Continue Reading

Is it Really Just a Matter of Time? The Canadian Oil Sands Board is Given More Time to Find an Alternative, but its Recommendation may be its Greatest Bargaining Chip

Posted in ASC, Contested Situations, Hostile/unsolicited Bids, Securities Regulatory Authorities
Most of the recent headlines concerning the unsolicited takeover bid by Suncor Energy Inc. (Suncor) for Canadian Oil Sands Ltd. (COS) surround the decision of the Alberta Securities Commission (ASC) to allow COS’s tactical shareholder rights plan to remain in place until January 4, 2016.  While that decision is noteworthy on its own, what may… Continue Reading

Responding to an activist: While special committee members may face greater public scrutiny, they are not subject to a higher legal standard

Posted in Contested Situations, Corporate Governance, Directors and Officers, Hostile/unsolicited Bids, Mergers and Acquisitions, Proxy Contests
As we discussed in our previous post, a special committee established in response to an activist’s approach should be comprised of independent board members with the relevant expertise and the time to participate meaningfully. While we have written about some of the benefits to the company of incorporating a special committee process into its response… Continue Reading

Responding to an activist: When appointing a special committee, select the members with care

Posted in Contested Situations, Corporate Governance, Directors and Officers, Hostile/unsolicited Bids, Mergers and Acquisitions, Proxy Contests
As we discussed in our previous post, when a board finds itself in the crosshairs of an activist, establishing a special committee of unconflicted directors with clear marching orders from the board may allow for more thoughtful decision-making under pressure and lend credibility to the company’s response, particularly where management’s performance is under attack.  Equally… Continue Reading

When responding to an activist, a special committee’s credibility is enhanced by a clear mandate from the board

Posted in Contested Situations, Corporate Governance, Directors and Officers, Hostile/unsolicited Bids, Proxy Contests
As we discussed in our previous post, a board faced with the arrival of an activist on the scene can benefit from establishing a special committee of independent directors.  While a quick response time is one of the more obvious benefits of having a small group of directors lead the charge, a committee of unconflicted… Continue Reading

When an activist comes knocking, consider a special committee to develop a quick and credible response.

Posted in Contested Situations, Corporate Governance, Directors and Officers, Hostile/unsolicited Bids, Proxy Contests
Much has been written about how companies can prepare for, and hopefully avoid, a confrontation with an activist shareholder.  While many boards are heeding the call for greater shareholder engagement and oversight of management, each year witnesses a significant number of activist campaigns and proxy contests.  So what is a board to do when its… Continue Reading

New Take-Over Bid Rules Seek to Level the Playing Field … But Will Bidders Still Play?

Posted in Contested Situations, CSA, Hostile/unsolicited Bids, Securities Regulatory Authorities
On March 31, 2015, the Canadian Securities Administrators issued their highly anticipated proposal to make the most significant changes to the Canadian take-over bid regime in years, one of the stated goals of which is to “rebalance the current dynamics” between bidders, boards and shareholders. The three principal changes would (i) mandate a 50% minimum… Continue Reading

Study of hostile take-over bids in Canada reveals that a change of control is not inevitable

Posted in Contested Situations, Corporate Governance, Defensive Tactics, Directors and Officers, Hostile/unsolicited Bids, Mergers and Acquisitions, Proxy Contests, Shareholder Rights Plans / Poison Pills, Take-Over Bids
Fasken Martineau’s 2015 Canadian Hostile Take-Over Bid Study sets out the results of a ten-year empirical analysis of hostile take-over bids in Canada. Key findings include: When initiating a public contest for control, a hostile bidder was successful more than half the time; however, a change of control was by no means inevitable, with targets… Continue Reading

The End of Poison Pills?

Posted in Contested Situations, Corporate Governance, CSA, Defensive Tactics, Hostile/unsolicited Bids, Mergers and Acquisitions, Securities Regulatory Authorities, Shareholder Rights Plans / Poison Pills, Take-Over Bids
The Canadian Securities Regulators (the CSA) have just agreed on major changes that are set to transform the take-over bid regime that has prevailed in Canada during the last three decades.  CSA Notice 62-306 (the CSA Proposal), issued on September 11, 2014, reconciles the competing proposals for poison pill reform initially introduced in March 2013 by the CSA and Autorité des… Continue Reading

Canadian Proxy Contest Study – 2014 Update

Posted in Contested Situations, Corporate Governance, Hostile/unsolicited Bids, Mergers and Acquisitions, Proxy Contests, Proxy Voting
A follow up to our ground-breaking 2013 Canadian Proxy Contest Study, our 2014 Update sheds additional light on some of the issues and trends that we previously identified and raises a few new issues for further thought.  Among the highlights of last year’s Canadian market experience in proxy contests were the following: 2013 witnessed a… Continue Reading

Give to Caesar what is due to Caesar II: On the supposed inconsistency between corporate law and poison pill regulation by the Canadian Securities Regulators

Posted in Contested Situations, CSA, Defensive Tactics, Hostile/unsolicited Bids, Proxy Contests, Securities Regulatory Authorities
This is the second installment of a series of posts in which I will be critically examining a number of arguments made by proponents of the view that the time has come for Canadian securities regulators to “vacate the field” of poison pill regulation, leaving oversight of shareholder rights plans to the courts. Evaluating the… Continue Reading

Give to Caesar What is Due to Caesar: Foundations for an Active Role for Securities Regulators in the Regulation of Poison Pills

Posted in Contested Situations, CSA, Defensive Tactics, Hostile/unsolicited Bids, OSC, Proxy Contests, Securities Regulatory Authorities
A colleague recently suggested that my last contribution to Timely Disclosure called to mind the more familiar view, which has gained in prominence over the past half-decade or so [1], that the time has come for Canadian securities regulators to “vacate the field” of poison pill regulation, leaving oversight of shareholder rights plans to the courts. … Continue Reading

Speaking with the Enemy: How the OSC’s Dialogue with Martin Lipton Threatens Those Whom the OSC is Charged with Protecting

Posted in Contested Situations, Continuous Disclosure, Corporate Governance, CSA, Defensive Tactics, Directors and Officers, Hostile/unsolicited Bids, OSC, Securities Regulatory Authorities
Renowned New York corporate lawyer Martin Lipton was in Toronto on October 8 preaching the evils of shareholder activism to anyone listening at the OSC Dialogue, an annual event hosted by the Ontario Securities Commission at which market participants are brought together on issues and trends facing the capital markets. Mr. Lipton’s message is stark… Continue Reading

More on the UK Takeover Panel Extends the Scope of its Jurisdiction to all UK Companies Listed on AIM or the ISDX Growth Market

Posted in Contested Situations, Hostile/unsolicited Bids, Take-Over Bids
Further to our previous post, we believe that on the whole, this is a positive development particularly in view of the uncertainty of the present regime.  In our experience, shareholders in most UK registered companies whose shares are quoted on AIM or the ISDX Growth Market expect to be protected by the Takeover Code and… Continue Reading