Sears Canada Inc. was a majority-owned subsidiary of Sears Holdings Corporation . The remainder of its common stock was listed on the Toronto Stock Exchange and held by public stockholders. Pershing Square began investing in Sears Canada in February 2005.
In December 2005, Sears Holdings announced its intention to take Sears Canada private through a two-step process consisting of an offer of CAD$16.86 per share for the 46% that it did not already own, followed by a second-step transaction to cash out non-tendering holders. Sears Holdings also entered into a lock-up agreement with a shareholder with a 9.1% ownership stake in Sears Canada, providing for such shareholder to tender its shares into the offer. In response, the board of directors of Sears Canada formed a special committee, which retained an independent financial advisor. The independent financial advisor determined that the offer price was inadequate and valued the stock of Sears Canada at between $19.00 and $20.25 per share.
In February 2006, Sears Holdings commenced its offer. The independent directors of Sears Canada unanimously recommended that stockholders reject the offer. They stated that the bid was opportunistically timed and exerted pressure on Sears Canada and its minority shareholders.
After commencing the offer, Sears Holdings entered into support agreements with major Canadian banks whereby the banks agreed to vote their shares in favor of the second-step transaction rather than tendering into the offer and, in exchange, Sears Holdings agreed to extend the second-step process until December 2006 in order for these banks to receive certain significant tax benefits.
In April 2006, Sears Holdings entered into a deposit agreement with a significant stockholder whereby the stockholder agreed to deposit its shares with Sears Holdings in exchange for an increase of the offer price to CAD$18 per share and a litigation release.
Through the support agreements with the banks and the deposit agreement, Sears Holdings essentially guaranteed that its offer would be successful.
On April 14, 2006, Pershing Square joined with two other minority investors (which we refer to collectively as the SCC Investors) to halt the efforts of Sears Holdings to take Sears Canada private. Collectively these investors owned approximately 7.7% of the common stock of Sears Canada.
The efforts the SCC Investors lead to a hearing before the Ontario Securities Commission. The OSC determined that the offer by Sears Holdings had been abusive and coercive. The OSC also found that Sears Holdings had provided prohibited collateral benefits to the banks and the major shareholder pursuant to the support agreements and the deposit agreement. Consequently, the OSC ruled that the shares that were subject to these agreements could not vote with the minority. The OSC ruling has been widely viewed as a vindication for the SCC Investors’ efforts to challenge the transaction.
Sears Holdings ultimately abandoned its attempt to take Sears Canada private after the offer failed to obtain the approval by a majority of Sears Canada’s minority shareholders. Despite substantial weakness in the retail market, Sears Canada stock continues to trade at a premium price to Sears Holdings’s offer for the company. Pershing Square remains the second largest shareholder of Sears Canada.
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