20 LEXPERT MAGAZINE
|
MARCH 2017
BIG DEALS
shareholders to vote on the Arrangement.
Smoothwater made an application within
the Marquee arrangement proceeding to
amend the interim order and provide AOS
shareholders the right to vote.
is application resulted in an order of the
court to the effect that Old Marquee could
not proceed to seek final approval of the Ar-
rangement unless AOS shareholders were
provided with a vote on the Arrangement
and granted dissent rights, each in a manner
similar to such rights afforded to Old Mar-
quee shareholders.
Marquee appealed. Marquee argued that
the decision was incorrect because the shares
of AOS were not being arranged. It main-
tained that the decision of the lower court
represented a marked departure from prior
jurisprudence pertaining to plans of arrange-
ment in Canada.
In a decision released on November 15,
2016, the Alberta Court of Appeal allowed
the appeal of Old Marquee and concluded
that the Arrangement could be completed
without a vote of AOS shareholders or dis-
sent rights in favour of AOS shareholders.
In reaching its decision, the Court of Ap-
peal relied on the following reasons: the pro-
visions of the ABCA addressing the fairness
and reasonableness of a plan of arrangement
only refers to security holders and creditors
of the company being arranged (in this case,
not AOS shareholders); the court's role is to
assess the plan of arrangement before it, not
the process by which it was developed or the
subsequent steps needed to implement the
business plan of the parties; and directors of a
corporation are required to resolve the inter-
ests of different stakeholders (which are not
always aligned), and the court should defer to
the expertise of directors in these situations.
e Court of Appeal did not address
Smoothwater's contention that the trans-
action was in fact an amalgamation that re-
quired AOS shareholder approval and was
not an acquisition by AOS of Marquee.
Following the decision of the Court of Ap-
peal, Old Marquee, AOS and Smoothwater
entered into settlement negotiations, which
ultimately resulted in the parties entering
into a standstill, nomination and voting
agreement on November 28, 2016.
Among other things, pursuant to such
agreement, (i) Smoothwater agreed to im-
mediately cease all actions related to the op-
position of the Arrangement, (ii) Smooth-
water became entitled to nominate one direc-
tor to the board of New Marquee, to chair the
Governance and Compensation Committee
of New Marquee and to join the Strategy
Committee of New Marquee, (iii) Smooth-
water agreed to a limited standstill; and (iv)
New Marquee agreed to reimburse a por-
tion of Smoothwater's documented expenses
and to issue to Smoothwater an aggregate of
1,000,000 common shares of New Marquee
at a deemed price of $0.11 per share.
Bennett Jones LLP acted as legal coun-
sel to Old Marquee with a team led by Brent
Kraus and that included Harinder Basra,
Drew Broughton, Kelly Ford, Eric Chernin
and Katie Miller (capital markets and M&A)
as well as Michael eroux and Codie
Chisholm (litigation).
Burstall Winger Zammit LLP acted as
counsel to AOS. e Burstall Winger team
was led by Douglas Stuve and Sabina Shah,
and including Jonathan Hudolin, Farhiyah
Shariff and Sarah Magee (capital markets
and M&A) and Alan McConnell and Spen-
cer Chimuk (litigation).
Goodmans LLP acted as counsel to
Smoothwater Capital Corporation with a
team led by Jonathan Feldman and Kirk
Rauliuk (capital markets and M&A) and
David Conklin (litigation).
Osler, Hoskin & Harcourt LLP also
acted as counsel to Smoothwater with a team
led by Tristram Mallett and Catherine Ham-
ill (litigation).
Norton Rose Fulbright Canada LLP
acted as counsel to Old Marquee in connec-
tion with credit financing matters with a
team led by Danielle Maksimow and includ-
ing Christina Winger (banking and finance).
McCarthy Tétrault LLP acted as counsel
to National Bank of Canada and the other
members of the lending syndicate with re-
spect to credit financing matters with a team
led by James-Scott Lee and including Mat-
thew Bell (financial services).
Energy & Power Pipelines
Automotive Materials
Utilities Financials Health Research
Media & Entertainment Recreation & Leisure Advertising & Marketing
E-Commerce Construction & Engineering
Consumer Staples
JUST EAT PLC
COMPLETES ACQUISITION
OF SKIPTHEDISHES
CLOSING DATE: DECEMBER 14, 2016
On December 14, 2016, Just Eat plc (LSE:
JE), a leading global marketplace for online
food delivery, announced its completed ac-
quisition of SkipeDishes Inc., one of Can-
ada's largest online food delivery market-
places. e purchase price was comprised
of initial consideration of $100 million pay-
able on closing, plus $10 million of Ordin-
ary shares of Just Eat issued in escrow and
deliverable aer 12 months. A further cash
amount of up to $90 million may also be pay-
able, subject to certain targets being met.
Just Eat plc was represented in-house by
Warren Smith and assisted by Blake, Cas-
sels & Graydon LLP with a team that in-
cluded Geoff Belsher, Mark Adkins and
Kathryn Houlden (M&A), Michael Elder
and Whitney Robinson (corporate), Edward
Miller and Casey Richardson-Scott (tax),
David Feldman and Michael Berger (tech-
nology) as well as Anna Abbott and Holly
Reid (employment).
SkipeDishes and its shareholders were
represented by Stikeman Elliott LLP with
a team that included Curtis Cusinato, Jer-
emy Sculnick and Marc-William Carrothers
(M&A), John Lorito, Katy Pitch and Lind-
say Gwyer (tax), Jonathan Auerbach (intel-
lectual property), David Elder (privacy &
data protection), Shawn Smith (technology),
Kathleen Chevalier (employment) and Scott
Brasil (real estate).
Consumer Services Energy & Power Pipelines
Aerospace & Defence Automotive Materials
Utilities Financials Health Research
Media & Entertainment Recreation & Leisure Advertising & Marketing
BWXT CANADA ENTERS
INTO SHARE PURCHASE
AGREEMENT TO ACQUIRE
GE HITACHI NUCLEAR
ENERGY CANADA
CLOSING DATE: DECEMBER 16, 2016
On August 17, 2016, BWXT Canada Ltd.
("BWXT Canada"), a subsidiary of BWX
Technologies, Inc. (NYSE:BWXT), entered
into a share purchase agreement to acquire
all of the shares of the GE Hitachi Nuclear
Energy Canada Inc. ("GEH-C") joint ven-
ture. e deal closed on December 16, 2016.
GEH-C is a leading supplier of fuel, fuel-
handling systems, delivery systems and re-
placement components for CANDU react-
ors and has its headquarters in Peterborough,
Ont. BWXT Canada has supplied more
than 300 CANDU and Pressurized Water
Reactor steam generators worldwide, as well
as other critical plant components.
BWXT Canada was represented in-house
