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Why Rogers’ crucial ‘hell or high water’ clause adds more confusion to Shaw takeover

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As part of its merger agreement with Shaw, Rogers promised to propose, negotiate and agree to almost anything that will help the deal gain regulatory approval.CARLOS OSORIO/Reuters

Rogers Communications Inc.’s RCI-A-T decision to sign an unusually broad “hell or high water” clause in its takeover bid for Shaw Communications Inc. SJR-N throws yet another variable into an already complicated acquisition now that the Competition Bureau is seeking a full block of the attempted takeover.

As part of its merger agreement with Shaw, Rogers promised to propose, negotiate and agree to almost anything that will help the deal gain regulatory approval. This would include selling or licensing “all or any part of [its] businesses.”

While such promises are common in takeovers that are sure to face intense regulatory scrutiny, Rogers went far beyond the norm and wrote almost no exceptions into the merger agreement. Instead, the company agreed to very broad language that stipulates it must make its “best efforts” to appease regulators. In other words, Rogers must get the deal done, come hell or high water.

As it stands, it may not come to this. If the Competition Bureau remains intent on blocking the deal full stop, and the Competition Tribunal agrees with its reasoning, the clause won’t matter all that much.

But if a crack of daylight emerges, and a regulatory body suggests a way for the deal to get done, the clause leaves Rogers with very little negotiating power.

Should Rogers try to walk away from the proposed takeover at that point, it could face a lawsuit from Shaw, because the hell-or-high-water clause is one of the main reasons Shaw agreed to a deal with Rogers over BCE Inc.

During a bidding war between Rogers and BCE in early 2021, Shaw sought not only the highest offer possible, but also one that provided the most regulatory certainty, according to merger filings. Early in the negotiations, Rogers and Bell largely competed on price, but as the talks evolved, Rogers showed it was willing to agree to different regulatory covenants.

By the end of February, 2021, Shaw’s board of directors concluded that Bell’s “proposed regulatory approach was not as attractive as [that of Rogers] and contained conditions that were not acceptable to the board,” according to the deal proxy circular.

In early March, Shaw’s special committee of directors set up to evaluate the takeover offers was advised that Bell had “effectively withdrawn from the process as [the company] was not prepared to amend its proposal regarding certain regulatory issues.”

The Globe later reported that Rogers agreed to the hell-or-high-water clause, which could force it to sell not only Shaw’s wireless assets, such as customer accounts or airwaves, but also some of its own, and Bell was not prepared to take such a risk, according to two sources familiar with the deal.

Shortly after the Rogers-Shaw agreement was announced, analysts said Rogers would likely have to sell Freedom Mobile, Shaw’s wireless division, for the takeover to get the blessing of regulators. Rogers pushed back on that idea, but in recent months has tried to negotiate a sale.

In its announcement on Monday, the Competition Bureau made clear that it is fixated on the wireless business, writing that the proposed merger “would substantially prevent or lessen competition in wireless services.”

However, it did not mention the efforts to sell Freedom Mobile, which creates a bit of a black box for now. It is possible that a sale of this division, under certain terms, would appease the watchdog. But, as BCE originally feared, those terms could force the purchaser to unload some of its own wireless airwaves.

For now, that is merely speculation. But if such a scenario emerges, Rogers will be in a pickle. The company did not return a request for comment.

If this plays out, Rogers may argue it will simply pay Shaw the $1.2-billion break fee included in the merger agreement and walk away. However, break fees are common in any merger acquisition – and BCE had proposed one as well, albeit one that was worth less, The Globe has reported.

What helped make Rogers’ bid so unique, and so palatable to Shaw’s committee, as well as to Canadian Imperial Bank of Commerce, which provided an independent fairness opinion, were the “robust regulatory and financing covenants on the part of the purchaser,” according to merger documents.

That makes it much harder for Rogers simply to write a cheque and walk away.

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Transat AT reports $39.9M Q3 loss compared with $57.3M profit a year earlier

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MONTREAL – Travel company Transat AT Inc. reported a loss in its latest quarter compared with a profit a year earlier as its revenue edged lower.

The parent company of Air Transat says it lost $39.9 million or $1.03 per diluted share in its quarter ended July 31.

The result compared with a profit of $57.3 million or $1.49 per diluted share a year earlier.

Revenue in what was the company’s third quarter totalled $736.2 million, down from $746.3 million in the same quarter last year.

On an adjusted basis, Transat says it lost $1.10 per share in its latest quarter compared with an adjusted profit of $1.10 per share a year earlier.

Transat chief executive Annick Guérard says demand for leisure travel remains healthy, as evidenced by higher traffic, but consumers are increasingly price conscious given the current economic uncertainty.

This report by The Canadian Press was first published Sept. 12, 2024.

Companies in this story: (TSX:TRZ)

The Canadian Press. All rights reserved.

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Dollarama keeping an eye on competitors as Loblaw launches new ultra-discount chain

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Dollarama Inc.’s food aisles may have expanded far beyond sweet treats or piles of gum by the checkout counter in recent years, but its chief executive maintains his company is “not in the grocery business,” even if it’s keeping an eye on the sector.

“It’s just one small part of our store,” Neil Rossy told analysts on a Wednesday call, where he was questioned about the company’s food merchandise and rivals playing in the same space.

“We will keep an eye on all retailers — like all retailers keep an eye on us — to make sure that we’re competitive and we understand what’s out there.”

Over the last decade and as consumers have more recently sought deals, Dollarama’s food merchandise has expanded to include bread and pantry staples like cereal, rice and pasta sold at prices on par or below supermarkets.

However, the competition in the discount segment of the market Dollarama operates in intensified recently when the country’s biggest grocery chain began piloting a new ultra-discount store.

The No Name stores being tested by Loblaw Cos. Ltd. in Windsor, St. Catharines and Brockville, Ont., are billed as 20 per cent cheaper than discount retail competitors including No Frills. The grocery giant is able to offer such cost savings by relying on a smaller store footprint, fewer chilled products and a hearty range of No Name merchandise.

Though Rossy brushed off notions that his company is a supermarket challenger, grocers aren’t off his radar.

“All retailers in Canada are realistic about the fact that everyone is everyone’s competition on any given item or category,” he said.

Rossy declined to reveal how much of the chain’s sales would overlap with Loblaw or the food category, arguing the vast variety of items Dollarama sells is its strength rather than its grocery products alone.

“What makes Dollarama Dollarama is a very wide assortment of different departments that somewhat represent the old five-and-dime local convenience store,” he said.

The breadth of Dollarama’s offerings helped carry the company to a second-quarter profit of $285.9 million, up from $245.8 million in the same quarter last year as its sales rose 7.4 per cent.

The retailer said Wednesday the profit amounted to $1.02 per diluted share for the 13-week period ended July 28, up from 86 cents per diluted share a year earlier.

The period the quarter covers includes the start of summer, when Rossy said the weather was “terrible.”

“The weather got slightly better towards the end of the summer and our sales certainly increased, but not enough to make up for the season’s horrible start,” he said.

Sales totalled $1.56 billion for the quarter, up from $1.46 billion in the same quarter last year.

Comparable store sales, a key metric for retailers, increased 4.7 per cent, while the average transaction was down2.2 per cent and traffic was up seven per cent, RBC analyst Irene Nattel pointed out.

She told investors in a note that the numbers reflect “solid demand as cautious consumers focus on core consumables and everyday essentials.”

Analysts have attributed such behaviour to interest rates that have been slow to drop and high prices of key consumer goods, which are weighing on household budgets.

To cope, many Canadians have spent more time seeking deals, trading down to more affordable brands and forgoing small luxuries they would treat themselves to in better economic times.

“When people feel squeezed, they tend to shy away from discretionary, focus on the basics,” Rossy said. “When people are feeling good about their wallet, they tend to be more lax about the basics and more willing to spend on discretionary.”

The current economic situation has drawn in not just the average Canadian looking to save a buck or two, but also wealthier consumers.

“When the entire economy is feeling slightly squeezed, we get more consumers who might not have to or want to shop at a Dollarama generally or who enjoy shopping at a Dollarama but have the luxury of not having to worry about the price in some other store that they happen to be standing in that has those goods,” Rossy said.

“Well, when times are tougher, they’ll consider the extra five minutes to go to the store next door.”

This report by The Canadian Press was first published Sept. 11, 2024.

Companies in this story: (TSX:DOL)

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U.S. regulator fines TD Bank US$28M for faulty consumer reports

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TORONTO – The U.S. Consumer Financial Protection Bureau has ordered TD Bank Group to pay US$28 million for repeatedly sharing inaccurate, negative information about its customers to consumer reporting companies.

The agency says TD has to pay US$7.76 million in total to tens of thousands of victims of its illegal actions, along with a US$20 million civil penalty.

It says TD shared information that contained systemic errors about credit card and bank deposit accounts to consumer reporting companies, which can include credit reports as well as screening reports for tenants and employees and other background checks.

CFPB director Rohit Chopra says in a statement that TD threatened the consumer reports of customers with fraudulent information then “barely lifted a finger to fix it,” and that regulators will need to “focus major attention” on TD Bank to change its course.

TD says in a statement it self-identified these issues and proactively worked to improve its practices, and that it is committed to delivering on its responsibilities to its customers.

The bank also faces scrutiny in the U.S. over its anti-money laundering program where it expects to pay more than US$3 billion in monetary penalties to resolve.

This report by The Canadian Press was first published Sept. 11, 2024.

Companies in this story: (TSX:TD)

The Canadian Press. All rights reserved.

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