dimanche 8 janvier 2017

Dimanches rétro: on ne peut appliquer d'escompte minoritaire dans l'évaluation des actions d'un actionnaire qui a été forcé de quitter la compagnie

par Karim Renno
Renno Vathilakis Inc.

Bien que l'on entend très souvent parler de la juste valeur marchande des actions d'une compagnie, son utilisation est loin d'être un automatisme dans toutes les circonstances d'un rachat. En effet, lorsqu'on parle d'oppression, de rachat forcé ou d'exclusion ("squeeze out"), la juste valeur marchande des actions d'un minoritaire n'est pas la mesure appropriée. C'est ce que nous enseignait la Cour d'appel en juin 1982 dans l'affaire Domglas Inc. v. Jarislowsky Fraser & Co. Ltd. (1982 CanLII 2950).

Dans cette affaire, l'Honorable juge Owen résumait la trame factuelle pertinente comme suit:
The petitioner, D Inc., a public company formed by amalgamation under the Canada Business Corporations Act (CBCA), applied under s. 184(15) of the CBCA for the fixing of the fair value of the shares of the dissenting minority shareholders of D Ltée, one of the amalgamating corporations, following the non-arm's length vertical amalgamation of D Ltée with its parent corporation (CB(DG) Ltd.). Over a period of several years the parent corporation had acquired 96.5 per cent of the outstanding common shares of D Ltée by, among other means, a formal take-over bid and a standing bid on the Montreal and Toronto Stock Exchanges which remained open for over two years. Dividend payments on the common shares of D Ltée (and the amalgamated corporation D Inc.) were suspended and earnings were used for an ambitious program of diversification, acquisition, improvements and modernization. Although D Ltée's shares continued to be listed, trading was very minimal — the market was established by the only significant buyer, CB(DG) Ltd. 
The amalgamation proposal, from which many of the minority shareholders dissented and which was effected following the requisite approval by shareholders, provided for the shareholders of CB(DG) Ltd. to receive one common share of D Inc. for each common share of D Ltée and for the shareholders of D Ltée (other than CB(DG) Ltd. whose shares of D Ltée were to be cancelled) to receive one redeemable preference share of D Inc. for each common share of D Ltée, which shareholders were then "squeezed out" by the redemption of their preference shares at a price of $20 per share.
Les Intimées ayant refusé d'offrir leurs actions au prix de 20$ par action, elles s'adressent à la Cour supérieure pour faire fixer la juste valeur de leurs actions. Après une audition sur la question, le juge de première instance fixe à 36$ l'action cette valeur.

Ce faisant, le juge de première instance rejette la juste valeur marchande des actions comme mesure appropriée, étant d'opinion qu'en situation d'exclusion forcée ("squeeze out"), l'application d'une telle mesure - et des escomptes qui l'accompagne - n'était pas appropriée.

En appel, une formation unanime de la Cour confirme la décision de première instance. Sur la question qui nous intéresse aujourd'hui, le juge Owen indique ce qui suit:
[27] To determine the fair value of the shares held by the dissenting minority shareholders, the trial judge added a 20% premium to the fair market value of $29.94.

[28] In deciding that a fair value for these shares was the sum of the fair market value plus a premium for forcible taking, the reasoning of the trial judge was as follows [at pp. 965-6 Que. S.C., pp. 222-3 B.L.R.]:
Contrary to the premise of Mr. Wise that "fair value" means "intrinsic value", this Court is of the opinion, seeing all the principles and considerations discussed heretofore in this judgment, that "intrinsic value" or "real value" is synonymous with "fair market value."

Had Parliament intended s. 184 C.B.C.A. to invoke the concept of "intrinsic value", it would have used the term "fair market value", as it had done theretofore in numerous other enactments.

In legislating the term "a fair value", Parliament conveyed upon the Court the equitable jurisdiction and the obligation to fix a value which is fair, just and equitable, having regard to all of the circumstances; including, in particular, a situation which is tantamount to an expropriation of the shares held by the minority shareholders.

• • • • •

In cases of the "squeeze-out" of the dissenting shareholders, which is equivalent to an expropriation, "fair value" goes beyond the concept of "intrinsic value", in that the former must include a premium for forcible taking, and is not subject to a minority discount.

In this Court's opinion, in a "squeeze-out" situation as exists in the case at bar, the absence of a discount in valuing a minority holding and the increment or premium for forcible taking are the essence of the distinction between "fair market value" and "fair value".

The Court will, therefore, first calculate and establish the "fair market value" of the dissenting shareholders' shares; and from there go on to fix "a fair value" for those shares.

Mr. Wise testified, and counsel for the petitioner argued that, theoretically at least, the "fair value" of a given share can be less than its "fair market value". This Court disagrees. Within the context of s. 184 C.B.C.A., if the fair market value of share "X" is $Y, how can any sum less than $Y be its fair value? Conceptually, the "fair value" of a given share can be equal to or greater than, but never less than, its "fair market value".

The payment by the petitioner of "a fair value" even if more than the "intrinsic value" of the shares, is the price that must be paid by it for the privilege of effecting the amalgamation over the protest of the dissenting shareholders, who in effect are being ousted from the corporation.

In proceeding through the necessary stages, i.e., the fixing of an appropriate level of net maintainable earnings, the selection of a multiple and the awarding of a premium for forcible taking, at each step the Court must make its determination in such a manner that it will be fair, just and equitable to the dissenting shareholders provided, however, that no injustice is done to the petitioner.
[29] This is the procedure followed by appellant's expert, Turnbull, who calculated an estimated market value of $16 a share and then added to this estimated market value a premium of 25%, or $4, to arrive at a "fair value" of $20 (pp. 160-1 J.C.).

[30] Having decided to include a forcing-out premium in fixing the fair value of the shares, the trial judge decided that the amount of this premium should be 20% of the fair market value [at pp. 968-9 Que. S.C., pp. 228-9 B.L.R.]:

As stated, the "squeeze-out" of the dissenting shareholders in the case at Bar is equivalent to the expropriation of their shares.

The late Associate Chief Justice Challies of the Quebec Superior Court wrote at p. 213 of his well-known textbook on expropriation (The Law of Expropriation (1954)):

"In addition to the usual indemnity for the value of property taken, for injurious affection or resulting injury to other property, and for incidental damage, is the expropriated party entitled to a percentage allowance as compensation for his forcible and compulsory dispossession? It is my firm view that he is so entitled, on grounds of equity, on principle, and on the authority of a substantial jurisprudence, and that the proper rule to be followed is that he should be granted the extra allowance for forcible taking in every case where there is not some special and compelling reason against it." (The italics are mine.)

That conclusion by the author at the opening of c. 15 of that volume, is amply justified by the doctrine and jurisprudence discussed at length in that chapter. Suffice it to say that the granting of such a premium is so well established that neither of the two expert witnesses heard by the petitioner disputed it.

Mr. Turnbull calculated a premium of 25 per cent. Mr. Wise testified in chief that, in the present case, the premium for forcible taking and the minority discount cancelled each other out. However, when pressed in cross-examination to reveal what percentage minority discount and what percentage premium he had calculated, he answered: "Between 25% and 30%." Mr. Gajewski offset his overgenerous multiple of 13.94 with a more conservative forcing-out premium of 15 per cent.

After weighing all the relevant principles and factors in this case, still guided by the criteria of fairness and equity to the dissenting shareholders, and without doing an injustice to the petitioner, the Court hereby fixes and grants a 20 per cent premium for forcible taking.

When adding that premium to the said fair market value of $29.94, we arrive at a fair value of $35.93; which the Court rounds out at $36.

Hence, the Court hereby fixes a fair value, as at the close of business on the valuation date, of $36 for each common share of Domglas held by the dissenting shareholders on that date.
[31] I agree with the trial judge's holdings as to the net maintainable earnings, the earnings multiple, the fair market value, the addition of the forcing-out premium, and the fixing of a fair value of $36 as at the close of business on the valuation date for each common share of Domglas Ltée held by the dissenting shareholders. I have nothing to add on these questions.
Référence : [2017] ABD Rétro 2

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