Post-bid
20. Can a bidder compulsorily purchase the shares of outstanding minority
shareholders?
There are two basic ways in which a successful bidder can acquire the shares held by nontendering
shareholders. In most cases, if the bidder acquires 50% or more of the target shares
held by unrelated shareholders in the course of the bid, and holds 66 2/3% or more of the total
outstanding shares, it can buy out the remaining shareholders. However, this is not always the
case, and the appropriate analysis needs to be made before the bid and accounted for in the bid's
minimum acceptance condition. The way in which this acquisition of the minority's shares can be
achieved depends on the acceptance level of the bid.
Compulsory acquisition provisions
If the bid is accepted by the holders of 90% of the target's shares (excluding shares held by, or on
behalf of, the bidder), the bidder can use the compulsory acquisition provisions in the target's
governing corporate statute. The bidder sends a notice of acquisition to the non-tendering
shareholders, and pays the offer consideration to the target to hold in trust. Depending on the
target's jurisdiction of incorporation, the compulsory acquisition may take from a few days to 35
days or more after completion of the bid.
Other squeeze-out methods
If the compulsory acquisition provisions cannot be used, the remaining shares can be acquired in
a second step amalgamation or other form of squeeze-out transaction. A squeeze-out has to be
approved by at least 66 2/3% of the votes cast at a meeting of the target's shareholders (for
corporations incorporated under the British Columbia Company Act, 75% approval is required).
Ontario and other provinces have enacted rules that ensure that minority shareholders are treated
fairly in transactions of this nature by, for example, requiring minority shareholder approval.
Generally, but not always, shares acquired from public shareholders in a takeover count towards
the minority approval in a second step transaction, provided the same consideration is offered. A
second step transaction typically takes 45 to 55 days to implement.
Regardless of the method chosen, non-accepting shareholders are entitled to demand payment of
"fair value" for their shares
,
as determined by the court.
