Avoiding Frostbite: A Primer on Northbound M&A

Avoiding Frostbite: A Primer on Northbound M&A Presented November 29th, 2011New York, NY Presented by: Brad Allen Laurel Hill Advisory Group Sander Grieve Fraser Milner Casgrain LLP Jamie Moser Joele Frank, Wilkinson Brimmer Katcher Kate Broer Fraser Milner Casgrain LLP

Overview• Overview of Canada’s economy and opportunities• Regulatory environment update – Ontario Securities Commission overview – Foreign Investment Review• Supported/Contested deals in Canada – Poison pills – Fairness opinions – Contested situations – Proxy contests – Contested M&A – Litigation issues/techniques regarding takeover bids/proxy contests• Managing the media• M&A Checklist 2

Canadas Economic Update• Forecast change in real GDP (2011): CDA: +2.3% US: +1.5%(1)• Forecast change in real GDP (2012): CDA: +2.0% US: +1.6%(1)• Forecast change in residential construction (2011): CDA: +3.3% US: ‐2.4%(1)• Forecast change in residential construction (2012): CDA: +1.1% US: +1.3%(1) 3

Canadas Economic Update• Unemployment rate (August 2011): CDA: 7.3%(2) US: 9.1%(3)• Forecast budget deficit (2011): CDA: Cdn$36.2 billion(4) US: US$1.3 trillion(5)• Forecast budget deficit (2012): CDA: Cdn$32.3 billion(4) US: US$973 billion(5)• Exchange rate (September 9, 2011): Cdn$1.00 = US$1.0040(6) Sources: (1) TD Economics, August 24, 2011 (2) Statistics Canada, September 9, 2011 (3) U.S. Bureau of Labor Statistics, September 2, 2011 (4) Financial Post, August 26, 2011 (5) Congressional Budget Office, August 2011 (6) Bank of Canada 4

M&A• Number of announced M&A deals: • 515 (H1 2011) • 528 (H1 2010)(9)• Value of announced M&A deals: • Cdn$80.7 billion (H1 2011) • Cdn$60.6 billion (H1 2010)(9) 5

M&A• Top sectors (by number): • consumable fuels (111) • real estate (111) • industrial products (71) • metals & minerals (58)(9)• Top sectors (by value): • metals & minerals (Cdn$13.7 billion) • industrial products (Cdn$12.2 billion) • consumable fuels (Cdn$11.8 billion) • financial services (Cdn$10.8 billion)(9) 6

M&A• Canadians acquiring either (a) foreign companies, or (b) Canadian companies from foreign companies: 154 deals valued at Cdn$20.2 billion (H1 2011)(9)• Foreigners acquiring either (a) Canadian companies, or (b) foreign companies from Canadians: 65 deals valued at Cdn$28.0 billion (H1 2011)(9)• Top foreign acquiror of Canadian located companies: US ‐ 28 deals valued at Cdn$13.6 billion (H1 2011)(9) Source: (9) Crosbie & Company Inc. 7

M&A• There have been a number of recent decisions of Canadian courts and provincial securities regulatory authorities that have a material impact on public M&A transactions, particularly with regard to the directors of target companies• Directors of a target company must be mindful of both the fiduciary duties under corporate law and the restrictions on defensive tactics set out in National Policy 62‐202 ‐ Take‐over Bids ‐ Defensive Tactics of the Canadian Securities Administrators (NP 62‐202) 8

M&A• Very important judicial decision is BCE Inc. v. 1976 Debentureholders (Supreme Court of Canada, 2008)• A consortium of purchasers, including US private equity firms, contemplated the acquisition of BCE Inc. by statutory plan of arrangement, with the total capital required for the transaction of approximately Cdn$52 billion• The transaction included the addition of a substantial amount of new debt for which Bell Canada, a wholly‐owned subsidiary of BCE Inc., would guarantee approximately Cdn$30 billion 9

M&A• Although the transaction was approved by 98% of the shareholders of BCE Inc., it was opposed by a group of financial and other institutions that held debentures issued by Bell Canada• The Supreme Court of Canada (SCC) concluded that the debentureholders failed to establish either oppression or that the trial judge erred in approving the plan of arrangement• The SCC made several significant holdings regarding the fiduciary duty of corporate directors 10

M&A• The fiduciary duty of corporate directors is not confined to short‐term profit or share value• Where the corporation is an ongoing concern, the duty looks to the long‐term interests of the corporation• It is not mandatory to consider the impact of corporate decisions on shareholders; there is no principle that the interests of shareholders should prevail over any other set of interests• It is not acceptable to maximize profit and share value by treating individual stakeholders unfairly 11

Foreign Investment Review• Governing statute is the Investment Canada Act (Canada) (ICA)• Establishment of a new business in Canada, regardless of size, normally requires no more than the filing of a short notice by the foreign investor• The notice is simply for information purposes• Two exceptions are where the new business is in a culturally‐ sensitive sector, such as publishing, or the new business triggers a national security review 12

Foreign Investment Review• In a direct acquisition of control of an established Canadian business, through a purchase of assets or voting interests of a corporation, partnership, trust or joint venture, the foreign acquirer may be required either to file a notice or an application for review and approval, depending upon the circumstances• Neither obligation will arise if the transaction falls within one of the general exceptions under the ICA (which general exceptions are, in turn, subject to specific exceptions for certain types of business) 13

Foreign Investment Review• If none of the exceptions apply, the transaction will be subject to pre‐closing review if the Canadian business has assets with a book value in excess of: – Cdn$312 million (in 2011, with the threshold adjusted annually) if the investor is from a country that is a member of the World Trade Organization – Cdn$5 million otherwise• As a result of recent amendments to the ICA, the review threshold will increase upon the promulgation of new regulations to: Cdn$600 million for that year and the following year; Cdn$800 million for the next two years; subsequently Cdn$1 billion indexed to inflation 14

Foreign Investment Review• Indirect acquisitions are treated differently• Recent amendments to the ICA established a national security review process similar to the national security screening for foreign investment in the US• If a transaction is reviewable, the key test under the ICA is whether the transaction is of “net benefit to Canada” 15

Foreign Investment Review• Outside of the cultural industry, there have been only two transactions that have been rejected under the ICA: – In 2008, the proposed acquisition of the geospatial business of MacDonald, Dettwiler and Associates Ltd. by the American company, Alliant Techsystems – In 2010, the proposed acquisition of Potash Corporation of Saskatchewan by the Australian company, BHP Billiton• The rejections do not seem to represent a sea‐change in Canada’s openness to foreign investment 16

Foreign Investment Review• However, they have provided key lessons to potential foreign investors: – Underscore the broad latitude given under the ICA to the Minister of Industry when determining what constitutes a “net benefit to Canada”; the concept is an elastic one based generally on economic considerations as well as individual and policy objectives of Canada and the provinces likely to be significantly affected by the investment – Highlight the potential for Canadian stakeholders affected by the transaction to lobby the federal government; in the case of the Potash Corporation of Saskatchewan transaction, the Premier of Saskatchewan spearheaded an intense public relations campaign characterising potash as a “strategic asset” 17

Case Study: BHP Billiton / PotashCorp • In August 2010, BHP Billiton made a premium, all cash bid for PotashCorp, which the Board rejected as inadequate - PotashCorp was at an inflection point, and its stock price at the time did not reflect the Challenge fundamental value of the company - Incorporation in Canada reduced defensive options - Few likely alternative bidders; none emerged • Media Outreach: Explained fundamentals of fertilizer industry and strong growth prospects of PotashCorp Our • Global Communications Campaign: Disciplined, on‐message outreach to shareholders; analysts; employees; customers; federal and provincial governments; and Canadian, Australian, UK, and US Approach press • Litigation Support: Placed articles highlighting BHP’s efforts to introduce false and misleading information into the marketplace • Successfully conveyed the Company’s value proposition • Secured Regulator Endorsement: On November 3rd, Canadian government announced that BHP’s Results offer “is not likely to be of net benefit to Canada within meaning of the Investment Canada Act” • Favorable Resolution: BHP did not appeal government’s ruling, effectively ending pursuit of PotashCorp. BHP withdrew its offer on November 14th 18

M&A• Directors of a public company in Canada that is involved in an M&A transaction are faced with different mandates: – Under corporate law, a fiduciary duty to the corporation – Under securities law, scrutiny by securities commissions that consider the public interest, fair and efficient capital markets and investor confidence• The differences in these mandates become particularly relevant in the context of a "poison pill" as a take‐over defense 19

Canadian Poison Pills, eh?• There are 3,518 companies currently listed on Canadian exchanges.• 920 (26%) of these companies have some form of corporate defense, with 437 (12%) companies having an active poison pill provision. 20

Canadian Poison Pills, eh?• Following on the lead of the US, poison pills became the standard take‐over defense in Canada in the late 1980s• The poison pill rules now found in NP 62‐202 were first introduced in Canada in 1986. The rules were not engaged when a target company adopted a poison pill, but were engaged when the target company tried to use the pill• TSX required shareholder approval of a poison pill within six months of adoption• Poison pills were scrutinized by securities commissions, rather than by the courts 21

Canadian Poison Pills, eh?• Before 2007, securities commissions took the view that the "pill must go", with shareholder approval being only one of many factors in determining when a poison pill should be cease traded.• Even then, shareholder approval was only relevant in determining how long the poison pill could remain in place. 22

Canadian Poison Pills, eh?• In 2007 and 2009, there were two decisions where poison pills that had been approved by shareholders during the take‐over were allowed to remain in place even though the target company’s board had no intention of seeking alternative transactions to the take‐over bid: – Re Pulse Data Inc. (Alberta Securities Commission, 2007) – Re Neo Material Technologies Inc. and Pala Investment Holdings Limited (Ontario Securities Commission, 2009), where specific reference was made to the decision of the SCC in BCE Inc. v. 1976 Debentureholders 23

Canadian Poison Pills, eh?• However, in the 2010 decision Re Lions Gate Entertainment Corp., the British Columbia Securities Commission adopted the pre‐2007 approach to poison pills. – The Commission issued a cease trade order against a poison pill in connection with the hostile bid by entities controlled by Carl C. Icahn. – Although a shareholders’ meeting to approve the poison pill had been called, the Commission would not allow the poison pill to remain in place indefinitely even if the shareholders were to approve it. – The Commission’s decision was upheld by the British Columbia Court of Appeal. 24

Canadian Poison Pills, eh?• Re Baffinland Iron Mines Corp. (Ontario Securities Commission, 2010) – The Ontario Securities Commission cease traded the poison pill because the pill had already served its purpose in facilitating an auction. There were now two competing bidders at the table, and the target’s Board of Directors were no longer soliciting further bids. – A poison pill will “go” when it is unlikely to achieve any further benefits for shareholders. – There is no definitive test or primary consideration for deciding when a poison pill should remain in place. Shareholder approval is just one consideration. – Whether a target’s Board of Directors is acting in the best interests of the corporation in perpetuating a poison pill is a relevant but secondary consideration. It does not determine whether a poison pill should remain in place. 25

Canadian Poison Pills, eh?• Re Afexa Life Sciences Inc. (Alberta Securities Commission, 2011) – Shareholders have a fundamental right to be allowed to decide for themselves whether to tender to a take‐over bid. – A poison pill may interfere with that right, but absent unusual circumstances, eventually a poison pill “must go”. – A degree of deference is given to the target’s Board of Directors in deciding to rely on a poison pill, but ultimately it is within the authority of the Commission, and not the directors, to determine when the pill has served its purpose and should be terminated. 26

Fairness Opinions• Another area of scrutiny by securities commissions has been in relation to fairness opinions. The Ontario Securities Commission (OSC) considered fairness opinions in two recent cases: – Re HudBay Minerals Inc. (2009) in connection with its proposed plan of arrangement to acquire Lundin Mining Corporation – Re Magna International Inc. (2010) in connection with its plan of arrangement to eliminate its dual class share structure of multiple and subordinate voting shares, with the controlling shareholder holding the multiple voting shares to receive an 1800% premium relative to the market price of the subordinate voting shares 27

Fairness Opinions: Re HudBay Minerals Inc.• In Re HudBay Minerals Inc., the OSC determined that HudBay Minerals Inc.’s acquisition of Lundin Mining Corporation required shareholder approval• What attracted considerable attention was a comment in the OSC’s decision about the success fee that was payable to the financial advisor providing a fairness opinion to the Special Committee of HudBay Minerals Inc.’s Board of Directors. 28

Fairness Opinions: Re HudBay Minerals Inc.• The OSC said that a success fee throws into question the entire fairness opinion, in light of the conflict of interest that the success fee creates.• In a subsequent speech, the chair of the OSC panel in that decision narrowed the application of the panels comments on success fees to the facts of the case and said the panels comments did not suggest that success fees must not be paid to providers of fairness opinions. 29

Fairness Opinions: Re Magna International Inc.• In Re Magna International Inc., a Special Committee of the Board of Directors of Magna International Inc. retained a financial advisor• The terms of engagement of the financial advisor did not require the delivery of a fairness opinion or a valuation, and so the financial advisor did not deliver one.• The Special Committee recommended to the Board of Directors that the transaction be submitted for shareholder approval, with no recommendation as to how they should vote; the Board of Directors adopted the recommendation. 30

Fairness Opinions: Re Magna International Inc.• The OSC staff objected to the Special Committee and the Board of Directors’ process, as well as the disclosure that was provided to the shareholders in the management circular.• Although the OSC did not stop the transaction, it ordered additional disclosure to be provided to the shareholders as to: – How the financial advisor assessed the proposed transaction from a financial perspective. – Why the financial advisor could not opine as to the fairness of the transaction from a financial perspective. 31

Contested Situations• “Falling stock prices awakening activist shareholders” Financial Post, November 21, 2011• “Proxy battles loom as Canadian activists grow edgy… Global market slump brings wave of activism to Canada” Reuters.com Nov 20, 2011• Marked increase in activism, proxy contests and unsolicited M&A, including interlopers on friendly transactions• Canadian Pacific Railway/Pershing Square Capital, Viterra Inc./Alberta Investment Management Corp., Research in Motion, Toronto Stock Exchange/London Stock Exchange/Maple Group, Inmet Mining/Lundin Mining/ Equinox Minerals/China Minmetals/Barrick Gold; Microsemi Corp/Zarlink Semiconductor 32

Proxy Contest Observations• Proxy contests for board control can be utilized as a takeover vehicle with no control premium paid • Inverse correlation between stock market performance and proxy contest activity• Canadian proxy fight activity has increased significantly over the past 5 years, led at times by increasing US hedge fund interest• Staggered boards very uncommon in Canada, can target entire slate at one time• Minimum 5% ownership threshold to requisition meeting• Very short, proscribed timelines for target to respond & set a meeting date (21 days), else dissident calls & controls meeting 33

Global Proxy Voting is a complex process with many steps, very few standards, and many different “owners” of information 34

Proxy Contest Observations• Over the past few years, dissidents have been increasingly successful at attaining partial or complete victory – approx 50%+ success rate• Proxy Advisory firms (ISS, Glass Lewis) can have meaningful influence on outcome• If <15 shareholders solicited, no circular required and opportunity for ambush (stealth) attack at meeting (CBCA) 35

Contested M&A Observations• Strategic acquirers and private equity firms sitting on massive amounts of cash reserves• Increasing willingness to go direct to shareholders with deal if cannot get board support – valuation gap• While a varying degree of uncertainty exists with global economic factors, the courageous are spotting potential advantage and pouncing on targets (ie. Chinese state owned Shandong Gold Group recent $1Bn unsolicited offer for Jaguar Mining)• Others also looking at same targets and dont want to be left behind so an increase in interlopers and white knights 36

Dealing with A Contested SituationWhat’s different about communications?• Opposition – Company, Board and management team go under a microscope – Greater scrutiny by investors and media – No strategy or statement goes unchallenged – Directors and management open to public criticism• Similar to a political campaign – Battle for shareholder support/votes – Rhetoric can often be heated – Third party advocates needed – Strategic, “rapid response” communications required• Critical to stay on message and control the forum for delivery• Need optimal coordination to succeed Everything you say can and will be used against you 37

IR/PR Advance Preparation• IR – proverbial “canary in the coal mine”• Maintain polite dialogue with dissidents and avoid “preemptive strikes” – Direct contact via one‐on‐ones and telephone calls – Indirect conversations via large, supportive shareholders – Does the shareholder have legitimate concerns that can be addressed?• Consider need to ramp‐up investor and public relations efforts – Goal is to ensure large base of supportive shareholders who understand the Company’s value proposition and management’s track record – Use regular channels (e.g. earnings) to communicate messages and reinforce progress – Consider increasing frequency of momentum announcements (e.g. M&A milestones, new product developments, new customer wins)• Identify and cultivate third party supporters – Institutional investors, sell‐side analysts, customers, business partners, industry analysts, politicians, business/trade organizations – Traditional shareholder advocates (aka the “corporate governance gurus”) 38

IR Tactics and Considerations in a Contest• Regular, targeted one‐on‐one meetings – Major vehicle for communicating with investors and sell‐side analysts – No substitute for in‐person meeting with the CEO and/or executive team – Controlled forum for delivering messages• Large format or group meetings must be carefully considered – Limit group meetings (including dinners and lunches) – Level of control is significantly diminished – Company can be exposed to a “mob” mentality – Easy for opposition to cause trouble• Monitor conference call participants• Sell‐side needs to be educated about proxy fights• Arbs are a special case in change of control situation – Source of information – Likely to vote with dissident 39

Current Environment in M&A (Media Landscape)• Fierce competition among M&A press, especially for “scoops” – Some publications factor “scoops” into overall compensation – “Strategic placements” more challenging and less prevalent • Only a handful of influential M&A reporters• M&A reporters more interested in deal terms, tactics, “backstories” and potential obstacles to completion than industry sector dynamics• “Second day” commentaries now often come on first day of coverage: – BreakingViews (Reuters, NYT), Deal Professor (NYT), Deal Journal (WSJ), Dealpolitik (WSJ), Heard on the Street (WSJ), Lex column (FT) • Media focused on CEO reputation to personalize M&A stories• Lawyers and bankers can be very helpful in background briefings with reporters 40

Current Environment in M&A (Investor Relations)• Well‐established trust and confidence between CEOs and shareholders imperative to deal acceptance on both sides• Investors hate surprises• Deal must clearly fit into articulated strategy• Shareholders must be convinced that strategic rationale represents better use vs. returning to shareholders through buybacks, dividends, investing in organic growth • Challenge to strike balance between fair price (for buyer) vs. attractive premium (for target)• Market checks and deal processes must hold up to close scrutiny • Arbs must be carefully managed and can help inform IR and PR strategy – “canaries in the coal mine”• ISS impact is not consistent but still important consideration 41

The PR Guide to M&A• Plan launch day to generate favorable comment and maximum support• Strategic placements can be dangerous• Deliver key messages in forums that provide maximum control• Brief sell‐side analysts early – they can set the tone• Anticipate hard questions and decide (in advance) how far to go • Broaden support for client’s position and underscore company’s strengths with media, shareholders and other key constituencies• Advisor perspective can be a key factor in shaping the story with media 42

Case Study: Lionsgate EntertainmentSynopsis• March 2009: Discussions end between Lionsgate and Icahn over representation on the Companys Board, which included Icahn’s son, Brett Icahn• Within 10 days, Icahn commences a TO for all of Lionsgate’s Convertible Senior Subordinated Notes – a deminimus number of shares are tendered into Icahn’s offer• March 2010: Icahn launches partial TO to acquire up to approx 10% of the shares for $6 per share in cash in attempt to own a total of 29.9% of the outstanding shares• Board rejects offer and implements a Rights Plan to be voted on at a scheduled special meeting• Icahn amended TO for 50.1% or up to all Lionsgate’s shares followed by a $1 bump in offer price to $7 per share• Lionsgate and Icahn engage in a proxy contest over the vote on the Rights Plan• Glass Lewis and Egan‐Jones support Lionsgates Rights Plan• British Columbia Securities Commission (BCSC) cease trade Rights Plan and Lionsgate loses in court of appeal• Despite BCSC decision, Lionsgate conducts special meeting ‐‐ shareholders vote FOR the Rights Plan 43

Case Study: Lionsgate EntertainmentSynopsis (cont’d)• May 2010: Lionsgate announces willingness to engage in discussions w/ Icahn re: potential negotiations• Icahn extended his offer numerous times with dwindling support from shareholders• July 2010: Icahn commenced a second TO, which Lionsgate’s Board again rejected• Lionsgate completes a deleveraging transaction. Lawsuits are filed in Canada and the United States• November 2010: Icahn nominated five directors for election to Lionsgate’s Board• Four days before shareholder meeting, the NY Supreme Court denies Icahn’s motion for preliminary injunction, allowing the deleveraging transaction to remain in effect. Icahn withdraws his second TO. 44

Case Study: Lionsgate EntertainmentSynopsis (cont’d)• At shareholder meeting, Lionsgate shareholders voted to elect ALL of the Company’s director nominees• Icahn’s lawsuits were dismissed in Canada and the US• August 2011: Lionsgate and Icahn reach agreement under which Icahn will sell substantially all of his position• As part of agreement, all pending litigation involving Lionsgate, Icahn and/or Mark Rachesky is dismissed• October 2011: Icahn’s public filings reveal reduced stake in Lionsgate of approximately 3% 45

Case Study: Lionsgate Entertainment Communications Opportunities• June 2009: In exchange for board seat, Dr. Mark Rachesky (head of the MHR Group, former protégé of Carl Icahn and Lionsgate’s largest shareholder (19.9%) agreed to vote all shares in favor of Lionsgate’s slate of directors• Icahn contradicted himself regarding his intentions for Lionsgate: – Initially, Mr. Icahn stated: “We are not looking to take control of Lionsgate. To begin with, that is not in the picture for a number of reasons. One, Americans and old Canadian companies are frowned upon as far as taking control and we respect Canada and we are not in any way saying we want to control it, so I want to make that clear. We just want to have a say at the table…” – Later Mr. Icahn said: “We intend to replace Lions Gate’s board of directors with our nominees. I am hopeful that the new board will act expeditiously to replace top management with individuals who are more likely to enhance value for all shareholders.” 46

Case Study: Lionsgate Entertainment Communications Opportunities (cont’d)• Icahn also changed his position with regard to Lionsgate’s operations: – Initially, Mr. Icahn expressed that management “should stick to what they know best which is buying these small companies ‐‐ and distributing them and also producing TV.” – Later Mr. Icahn believes that “You don’t make a lot of money on these TV productions…TV does not make a company a lot of money” and he implied that the Company should limit itself to distribution only. • Icahn would have violated Lionsgate’s credit facilities if his ownership crossed the 20% threshold, which would have forced Lionsgate to repay all amounts then outstanding under its credit facilities and potentially lose its primary source of liquidity to fund operations• The BCSC’s Decision Broke Precedent: In cease trading Lionsgate’s Rights Plan, the BCSC deviated from recent decisions by other Canadian Securities Commissions in similar cases – Previously the Commissions emphasized the importance of deferring to the board and considering shareholder voting 47

M&A Checklist• Once target identified assemble tactical team (legal counsel, proxy solicitor, PR)• Identify & ascertain target shareholder composition – institutional/retail, US/Cdn/Foreign• For solicited transactions, determine pro’s/con’s of structure ‐ tender offer vs plan of arrangement• Obtain lock‐ups, voting agreements• If a vote (proxy fight, plan of arrangement) measure potential ISS/Glass Lewis influence and develop presentation• Develop communications plan – media, shareholders, government, analysts• Be prepared for potential significant shareholder turnover on offer announcement ‐ entrance of timing/momentum players 48

Questions?ContactBrad Allen Laurel Hill Advisory Group ballen@laurelhill.comSander Grieve Fraser Milner Casgrain LLP sander.grieve@fmc‐law.comJamie Moser Joele Frank, Wilkinson Brimmer Katcher jmoser@joelefrank.comKate Broer Fraser Milner Casgrain LLP kate.broer@fmc‐law.com

The preceding presentation contains examples of the kinds of issues companies dealing with mergers and acquisitions could face. If you are faced with one of these issues, please retain professional assistance as each situation is unique.

Avoiding Frostbite: A Primer on Northbound M&A

by FMC Law on Dec 12, 2011

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