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Top public M&A and proxy contest legal developments in 2019

Author(s): Jeremy Fraiberg, Donald Gilchrist, Alex Gorka, Emmanuel Pressman

Dec 13, 2019

This article sets out some of the most notable Canadian legal developments in public M&A and proxy contests in 2019.


A mini-tender is an offer to acquire less than 20% of the shares of a class of an issuer that is not subject to the formal take-over bid rules.  Mini-tenders are not subject to specific take-over bid regulation under securities laws.  Accordingly, offerors in theory have considerable latitude as to how mini-tenders are structured.

During the past year, mini-tenders were used as a tool by dissident shareholders in attempts to disrupt two high-profile M&A transactions.  In August 2019, The Catalyst Capital Group Inc. (Catalyst) acquired nearly 18.5 million common shares of Hudson’s Bay Co. (HBC) under a mini-tender, representing approximately 10.05% of the issued and outstanding common shares of HBC.  Catalyst’s offer was made for approximately 19.8 million shares at a price of $10.11 per share.  The Catalyst offer price was at a premium to a proposal to take HBC private at $9.45 per share made by a group led by Richard Baker, HBC’s Executive Chairman, which owned approximately 57% of HBC.  The Baker group has since entered into an agreement to take HBC private at a price of $10.30 per share...