Fort St. John, British Columbia--(Newsfile Corp. - March 28, 2022) - MACRO ENTERPRISES INC. (TSXV: MCR) (the "Corporation" or "Macro Enterprises") is providing the following update on its previously announced going private transaction (the "Transaction" or the "Arrangement") whereby each common share in the capital of Macro Enterprises (a "Macro Enterprises Share") would be acquired by 1325996 B.C. Ltd. ("AcquireCo") for consideration of $4.00 per share, in accordance with the terms of an arrangement agreement dated February 14, 2022 among Macro Enterprises, AcquireCo, Frank Miles, Jeff Redmond and Ken Mastre (the "Arrangement Agreement").
Update to Transaction
As announced on March 20, 2022, Mr. Ken Mastre ("Mastre"), the former Vice-President, Pipelines of Macro Enterprises suddenly and unexpectedly passed away in hospital recovering from an operation. Mr. Mastre, along with Frank Miles, the President, Chief Executive Officer and director of Macro Enterprises ("Miles") and Jeff Redmond, the Chief Financial Officer of Macro Enterprises ("Redmond" and together with Mastre and Miles, the "Participating Shareholders") had proposed to effect the Transaction through AcquireCo, an entity jointly owned by such persons and to be controlled by Mr. Miles. As a result of Mr. Mastre's passing, AcquireCo has requested that the Corporation and AcquireCo amend the Arrangement Agreement and plan of arrangement to provide that Mastre's estate will not be a "Participating Shareholder", a "Participating Class B Shareholder" or a "Participating Incentiveholder", but that the estate will participate in the Transaction on the same terms as the non-participating holders of Macro Enterprises Shares ("Macro Enterprises Shareholders") who are not Participating Shareholders and holders of options to purchase Macro Enterprises Options ("Macro Enterprises Optionholders") who are not Participating Incentiveholders. In addition, Mr. Mastre would be removed as a party to the Arrangement Agreement and would no longer be a "Guarantor" pursuant to the Arrangement Agreement. Upon careful consideration and in light of the circumstances, the Corporation has agreed to proceed with such amendments and the parties are preparing an updated version of the Arrangement Agreement and plan of arrangement to be approved by the Supreme Court of British Columbia in connection with the Final Order.
All other terms and conditions of the Arrangement Agreement, including the transaction price of $4.00 per Macro Enterprises Share, remain the same. As a result of the amendments to the Arrangement Agreement, all securities of Macro Enterprises owned by Mr. Mastre (or his estate) will participate in the Transaction in the same manner as all other Macro Enterprises securityholders, other than the remaining Participating Shareholders and Mr. Mastre (or his estate) will no longer be a "Participating Shareholder" or "Participating Incentiveholder" for the purposes of the Arrangement. The text of the special resolution proposed to be considered by Macro Enterprises Shareholders and Macro Enterprises Optionholders at the special meeting (the "Meeting") of Macro Enterprises Shareholders and Macro Enterprises Optionholders to be held on Monday, April 4, 2022 at 10:00 a.m. (Vancouver time) will be remain the same as set forth in Appendix "A" to the management information circular of Macro dated February 28, 2022 (the "Circular") and available under Macro Enterprises' SEDAR profile at www.sedar.com,.
Background to the Transaction
As a result of the matters set forth above, below is a summary of the background to the Transaction, which is substantially as set forth in the Circular, and updated for certain other developments and matters, including for those matters described above. Capitalized terms used below and not otherwise defined have the meaning ascribed thereto in the Circular.
In recent years, changes in the commercial landscape in which the Corporation operates, due in part to COVID-19, the fluctuation of oil and gas prices and the cancellation of a major pipeline project, have had an impact, directly and indirectly, on the Corporation's business. In addition, the pipeline industry has also faced uncertainty due to ongoing environmental, Indigenous and political matters in Canada, the United States and internationally. Given the evolving commercial landscape and competition in its industry, the Board has engaged in regular discussion and evaluation of the strategic outlook of the Corporation. The Corporation is primarily in the business of providing pipeline and facilities construction and pipeline maintenance services to companies in the oil and gas industry in Western Canada through its wholly owned subsidiaries, Macro Industries Inc. ("Macro Industries"), Macro Pipelines Inc. ("Macro Pipelines") and Macro Pipeline Joint Venturer Inc. ("MPJV") and their respective subsidiaries.
In February 2021, the Corporation (through Frank Miles and Bob Fedderly) was approached by Redmond and Mastre to seek the provision of certain non-public information to their advisors and potential financiers regarding a potential transaction involving the Corporation. At this time, Mr. Fedderly (an independent director of the Corporation and ultimately the Chair of the Special Committee) and Frank Miles, on behalf of the Corporation, retained independent legal counsel in order to negotiate the terms of such agreement. On April 5, 2021, the Corporation entered into a confidentiality agreement (the "Confidentiality Agreement") with Redmond and Mastre pursuant to which such individuals were entitled to share certain non-public confidential information pertaining to the Corporation with third party financing sources for the purposes of facilitating a potential purchase of Macro Enterprises as part of a potential going-private transaction.
Following the entering into of the Confidentiality Agreement, in the summer of 2021 Redmond and Mastre held discussions with Miles regarding a potential transaction and were advised that Miles was not at that time interested in participating in such a transaction. Following those initial discussions, Redmond and Mastre continued to explore the possibility of a proposed transaction with their financial advisors and financing sources. In October, 2021, Miles advised that he had given additional consideration to the opportunity and was open to considering the possibility of taking part in a potential transaction, subject to finalization of terms. Following such discussion, Redmond and Mastre continued to explore opportunities and, taking into account the best interests of the Corporation, including all stakeholders of the Corporation, Redmond and Mastre prepared an expression of interest which included a conceptual rollover of a portion of Miles' interest in Macro. Following discussions between Redmond and Mastre and Miles, Miles indicated that subject to the receipt of support from the Board, he would be willing to proceed as suggested.
On October 8, 2021, the Board received an unsolicited non-binding expression of interest (the "EOI") from AcquireCo with respect to a potential acquisition of all of the issued and outstanding shares of the Corporation, excluding certain shares held by the Participating Shareholders, at a price per Macro Enterprises Share of $3.75. The EOI was delivered and signed by Redmond and Mastre (but not Miles as his participation was contingent on the support of the Board) and at such time Redmond and Miles were the sole directors, officers and shareholders of AcquireCo. Immediately following receipt of the EOI, the Board sought the advice of legal counsel on the appropriate steps to be taken and then held a meeting of the Board at which Miles disclosed his potential interest and the interest of the other Participating Shareholders (being Redmond and Mastre) in the proposed transaction to the Board and the Board acknowledged the potential conflicts of interest arising from the participation of the Participating Shareholders in the proposed transaction.
While Mr. Fedderly was aware of the existence of the Confidentiality Agreement (and the context to the same), none of the other directors of the Corporation, including Miles, were apprised of the same at the time it was entered into, and accordingly, on the receipt of the EOI the other directors of the Corporation expressed their initial surprise to the EOI. However, they agreed that if the transaction had merit, it would be worth investigation and consideration, and, following a discussion regarding the best course of action and in light of the conflicts of interest, the Board determined that it was appropriate to establish the Special Committee, comprised of Robert (Bob) L. Fedderly and William McFetridge, each of whom are non-interested directors with respect to the proposed transaction and independent directors of the Corporation (as determined in accordance with MI 61-101), to evaluate and consider whether such proposed transaction was in the best interests of the Corporation, including the effects of the proposed transaction on Macro Enterprises Shareholders and other stakeholders of the Corporation. At the meeting, the Board authorized the Special Committee to engage independent counsel to the Special Committee.
Following the formation of the Special Committee, on October 14, 2021, the Special Committee engaged Burnet, Duckworth & Palmer LLP ("BD&P") to act as independent counsel to the Special Committee. Following the engagement of BD&P, the Special Committee conducted a series of interviews with potential financial advisors to assist the Special Committee in evaluating and, if deemed advisable, negotiating the proposed transaction and considering alternatives. Following a comprehensive assessment of such advisors, the Special Committee determined that it would be appropriate for the Special Committee to engage CIBC World Markets Inc. ("CIBC") to provide financial advice in connection with its consideration of the proposed transaction. Concurrently with the assessment of the financial advisors, the Special Committee, together with BD&P, carefully considered and prepared and considered a broad mandate for the Special Committee authorizing the Special Committee to, among other things, review and consider the proposed transaction, and make recommendations to the Board on whether such proposed transaction, or other transactions, is in the best interests of the Corporation and fair to Macro Enterprises Shareholders and other stakeholders of the Corporation.
After the receipt of the EOI, counsel to the Special Committee sent correspondence to counsel to AcquireCo seeking further details and clarifications on the proposal reflected in the EOI. As part of such inquiries, the correspondence sought to confirm, among other things, the identity of any director, officer, shareholder of Macro Enterprises or other party with an interest in, or acting as a financing party to, the proposal or the pro forma entity, and provide details of that interest or involvement. Counsel to AcquireCo in turn responded through email correspondence on November 3, 2021 confirming that, in addition to Redmond and Mastre, Miles had expressed his intention to participate in the transaction with the bidding group through AcquireCo, thus officially confirming to the Special Committee his involvement in the proposed transaction. Notwithstanding the Special Committee formally being apprised of this development in November 2021, no discussions, proposals or other correspondences were had between the bidding group (being Redmond, Miles and Mastre) and the Corporation (including the Board) from the time of entering into the Confidentiality Agreement and the receipt of the EOI, and immediately upon receipt of the EOI, the Special Committee was formed. Accordingly, all matters, discussions and negotiations in respect of the Transaction were conducted at arm's length, without any prejudice to the integrity of the process by the Special Committee. At no point in time after the execution of the Confidentiality Agreement and the receipt of the EOI were strategic matters (such as acquisitions, dispositions, financings or otherwise) discussed or considered by the Board (including with Miles). During this time, the Board only discussed and considered the ongoing operations of the Corporation and its quarterly financial results. Miles had no involvement or presence in any of the discussions and deliberations by the Special Committee after its formation.
As part of preparing and considering the Special Committee mandate, and with the input and advice of BD&P and CIBC, the Special Committee determined that any decision as to whether the potential transaction, or any strategic alternative to the potential transaction (including maintaining the status quo or seeking other transactions that would enhance value to minority securityholders of the Corporation), is in the best interests of the Corporation should be preceded by an analysis of the relevant facts, issues and potential alternatives available to the Corporation.
Following the selection of CIBC and the preparation of the mandate, the Board approved the mandate prepared by the Special Committee, without modification, and authorized the Special Committee to engage financial and other advisors on the terms negotiated by the Special Committee. As part of such approvals, Mr. Fedderly was appointed to act as Chair of the Special Committee.
On November 4, 2021, the Corporation formalized the engagement of CIBC by entering into an engagement letter with CIBC pursuant to which CIBC agreed to provide financial advice to the Special Committee in connection with its consideration of the proposed transaction and if requested, to provide an opinion as to the fairness of the consideration to be received by Macro Enterprises Shareholders in connection with a transaction.
Following the engagement of CIBC, the Special Committee, together with CIBC, conducted a comprehensive assessment of reasonable alternatives to the proposed transaction and engaged in ongoing negotiations with AcquireCo and its financial advisor. As part of its engagement, CIBC undertook an evaluation of the Corporation, including conducting a comprehensive review of the Corporation's budgets, forecasts and other financial and business information. As part of such inquiries, representatives of CIBC met numerous times with management of the Corporation and the Participating Shareholders' financial advisor. On November 15, 2021, after completing its detailed financial review and analysis of the Corporation, CIBC made a presentation to the Special Committee with respect to a preliminary analysis, strategic considerations and the scope of other potential counterparties in the context of a change of control of the Corporation. After careful consideration of the analysis and information provided by CIBC, a thorough discussion and review of the terms of the proposed transaction and after receiving advice from its legal and financial advisors, the Special Committee noted that they considered the price noted in the initial offer to not adequately reflect the value of the Corporation's current business, operations and prospects, and, accordingly, were not in a position to support proceeding with a transaction on such terms.
Subsequent to such meeting, the Special Committee informed the Participating Shareholders of their position. As a result, between mid November 2021 and early December 2021, further discussions took place between the Corporation and AcquireCo and their respective legal and financial advisors. During this period, the Participating Shareholders and the Special Committee had various discussions on price and value, and the Special Committee, with the assistance of CIBC, and based upon their collective knowledge of the business, operations, financial condition, earnings and prospects of the Corporation, as well as their collective knowledge of the current and prospective environment in which the Corporation operates (including economic and political conditions), continued a dialogue with the Participating Shareholders with respect to a potential improved offer. During such period, the Special Committee continued to consider alternatives to the proposed transaction (including the status quo) and also considered the effects of potential business development activities with respect to the Corporation, including with respect to winning construction services contracts from new and existing clients, in each case considering the overall benefits to stakeholders, adjusted for time value, risk and various other factors. In addition, the Special Committee continued to negotiate the price offered by AcquireCo and to seek a means to compare the benefits of the proposed transaction against other alternatives.
On November 24, 2021, the Special Committee received correspondence on behalf of AcquireCo which confirmed that AcquireCo was not prepared to participate in an auction process (and would revoke their bid in such an event), but was prepared to increase the offer price to $4.00 per Macro Enterprises Share, representing a 6.7% increase to the original offer price of $3.75 per Macro Enterprises Share previously offered in the EOI, provided that such offer was AcquireCo's final offer. As part of such discussion, Miles, also confirmed that (in his capacity as a shareholder) he would be unwilling to support any alternative transaction. After receipt of the revised offer, members of the Special Committee met with representatives of CIBC and its legal advisors and considered and deliberated over the revised offer. As part of such process, CIBC provided financial advice as to their assessment of the revised offer and, subsequently, after careful consideration of the relevant circumstances and facts, the Special Committee determined it would be appropriate to proceed to negotiate a non-binding letter of intent with AcquireCo that set out the revised offer price, as well as other proposed terms and conditions of a potential transaction.
As part of this process, the Special Committee, with the assistance of its legal advisors, provided comments on the EOI initially submitted by AcquireCo, in the form of a letter of intent, reflecting the revised offer price of $4.00 per Macro Enterprises Share, as well as various other proposed deal terms, including providing for an "expense reimbursement" concept (subject to maximum amounts) in the event of a termination of the Arrangement Agreement, as opposed to the payment of a break fee, which was expected to be for a higher amount than an expense reimbursement. Furthermore, as part of their negotiations in respect of the Transaction, the Special Committee sought to negotiate a "go-shop" provision, where the Corporation could solicit and entertain alternative transactions after the Transaction was announced. As part of this, the Special Committee was again advised that Miles would not support an alternative transaction (in his capacity as shareholder) which would effectively preclude the ability of the Corporation to complete an alternative transaction as a result of his significant shareholdings, and such a construct was refused.
On December 7, 2021, after the various negotiations and discussions between the Special Committee on behalf of the Corporation and AcquireCo, and their respective financial and legal advisors, the final terms of the letter of intent (the "Proposal Letter") were finalized and agreed to. Pursuant to the Proposal Letter, AcquireCo proposed to acquire (directly or indirectly) all of the outstanding Macro Enterprises Shares, other than certain Macro Enterprises Shares owned or controlled by the Participating Shareholders, for the increased consideration of $4.00 per Macro Enterprises Share (the "Common Share Cash Consideration"). As a result of the Arrangement, the Corporation would become a wholly owned subsidiary of AcquireCo and de-list from the TSXV. The Proposal Letter contained confirmation that the entering into of the definitive Arrangement Agreement would be subject to AcquireCo obtaining binding commitments for the requisite financing in respect of the proposed transaction. The Proposal Letter also contained certain customary terms and conditions, including a binding period of exclusivity until January 20, 2022, and the entry into of Support Agreements by certain directors and officers of the Corporation, as well as the Participating Shareholders. The Proposal Letter also provided for the Macro Enterprises Expenses Reimbursement, the AcquireCo Expense Reimbursement and that AcquireCo would be responsible for expenses incurred relating to the Valuation, up to a maximum of $125,000.
In determining the $4.00 per share consideration prior to the receipt of the Valuation, the Special Committee considered a number of factors including that CIBC, the financial advisor to the Special Committee, was mandated to, if requested by the Special Committee, provide an opinion as to the fairness, from a financial point of view, of the consideration to be received by disinterested shareholders in connection with the Transaction (or any alternative transaction, if applicable). With this in mind, prior to agreeing to the $4.00 share price, CIBC noted to the Special Committee that it would be reasonable to continue to proceed with the proposed transaction at a price of $4.00 per share (it being noted that CIBC did not render any opinion or complete any valuation at this time) and with the understanding that the Special Committee would engage an independent valuator to complete a formal valuation. With the benefit of this, the Special Committee agreed to explore the transaction and negotiate the definitive agreement based on an offer price of $4.00 per share and this price was reflected in the non-binding Proposal Letter. The Proposal Letter noted that, as a condition to proceeding with the Transaction (including entering into a definitive agreement with respect to the same), the Special Committee was required to be satisfied with the conclusions set out in both the fairness opinion and the formal valuation that it intended to receive prior to making its recommendations with respect to the Transaction. In the event the formal valuation concluded a valuation range above the price of $4.00 per share, the Special Committee would be unwilling to proceed with the legally binding definitive agreements or otherwise proceed with and support the Transaction.
Following an assessment of the terms and conditions of the Proposal Letter, upon the recommendation of the Special Committee, the Board (with the abstention of the Miles (in such capacity, the "Participating Director")) authorized the Corporation to enter into the Proposal Letter with AcquireCo with respect to the Arrangement. On December 9, 2021, the Corporation entered into the Proposal Letter with AcquireCo.
Subsequent to the execution of the Proposal Letter, throughout December 2021, the Special Committee conducted a series of interviews with potential valuators to assist the Special Committee in conducting the Valuation. The Special Committee determined that, notwithstanding any exemptions from the requirements to obtain a formal valuation for the transaction that may be available to the Corporation under MI 61-101, the Special Committee concluded it would be advisable to obtain a formal valuation, and that the proposed offer price would need to be within the ranges set forth in any valuation in order to proceed with any definitive agreement. In early January 2022, following the Special Committee's assessment of potential valuators, the Special Committee engaged Deloitte LLP ("Deloitte") to act as independent financial advisor and to prepare an independent fairness opinion and a formal valuation in the manner prescribed by MI 61-101 (the "Valuation"). Pursuant to the engagement agreement with Deloitte, Deloitte would be compensated based on time spent, subject to an agreed upon cap, for the preparation of the Valuation and an independent fairness opinion. No part of any fee payable to Deloitte is success-based or based on the conclusions reached in the Valuation.
From January 2022 through to signing of the Arrangement Agreement, Deloitte undertook extensive due diligence investigations regarding the Corporation, including its assets, business and operations, its existing business plan, the Proposal Letter and relevant industry and economic factors. Deloitte was given full access to members of the Special Committee, the Corporation's management and confidential information, including management's forecast of future financial performance. As part of its independent review, Deloitte made certain adjustments to management's forecasts based on its own independent analysis and professional judgment. During this period, the Special Committee met on multiple occasions to discuss Deloitte's analysis. For further details regarding the Valuation, see "The Arrangement - Independent Valuation and Deloitte Fairness Opinion" in the Circular.
In the afternoon of December 31, 2021, Fasken Martineau DuMoulin LLP ("Fasken"), legal counsel to AcquireCo, circulated an initial draft of the Arrangement Agreement to Norton Rose Fulbright and BD&P. In the afternoon of January 11, 2022, Fasken circulated an initial draft of the voting support agreements (the "Support Agreements"). Norton Rose Fulbright and BD&P, with input from the Special Committee by video conference and written comments, reviewed the draft Arrangement Agreement and the Support Agreements during the course of the following weeks and ultimately provided comments back to Fasken in the early morning of January 13, 2022.
Over the course of the following weeks, the Parties continued to negotiate the draft Arrangement Agreement, the Plan of Arrangement and the terms of the Support Agreements. The Special Committee met regularly with legal counsel and CIBC to discuss the terms and conditions of the Arrangement Agreement and, in connection with such meetings, continued to assess the relative benefits and risks of various alternatives to the Arrangement, including continued execution of the Corporation's existing strategic plan.
In considering potential alternatives, the Special Committee concluded that the Common Share Cash Consideration is likely to represent greater value than would reasonably be expected from the continued execution of the Corporation's existing strategic plan, in light of the ongoing uncertainty surrounding energy infrastructure construction projects, including pipeline construction projects, and it was not reasonable to expect that the Corporation could consummate an alternative change of control transaction on terms that were more favourable to Macro Enterprises Shareholders than the Arrangement, including given that the Participating Shareholders (and specifically Miles) control a sufficient number of Macro Enterprises Shares to effectively resist any alternative transaction, combined with the indication that he will not support any alternative transaction. The Special Committee continually assessed each of these alternatives throughout the process of evaluating and negotiating the Arrangement and, ultimately, concluded that entering into the Arrangement Agreement was the most favourable alternative reasonably available. Throughout the entire process, many discussions ensued with CIBC, counsel and the Special Committee, including with respect to the potential to canvass the market to consider alternative transactions to the insider proposal and, as part of this, CIBC initially identified a group of potential third parties. However, upon confirming the role of Miles in the bidding group including being advised that he would not support an alternative transaction (in his capacity as a shareholder) and after being advised by the bidding group that they would revoke their offer in the event alternative transactions were explored, the Special Committee determined that canvassing the market for alternative transactions would not be in the best interests of the Corporation, as the Special Committee believed that the proposal presented by the bidding group had merit and was worth exploring and pursuing on appropriate terms. In addition, the Board would not be precluded from accepting a Superior Proposal at any time prior to obtaining the approval by Macro Enterprises Shareholders and Macro Enterprises Optionholders of the Arrangement Resolution and, in the view of the Special Committee and the Board, the AcquireCo Expense Reimbursement (based on actual reasonable expenses and costs incurred by AcquireCo in connection with the Arrangement) would not preclude the possibility of a third party making a Superior Proposal. See "Considerations of the Special Committee and the Board in Making their Recommendation - Reasons for the Recommendation" in the Circular.
Commencing on January 13, 2022, Norton Rose Fulbright and the Special Committee commenced an in-depth review of the Financings. With input from CIBC, Norton Rose Fulbright and BD&P, the Special Committee conducted an assessment of the Financing Agreements. The Corporation and Norton Rose Fulbright conducted a comprehensive review of the Financing Agreements and entered into negotiations with the Financing Sources and their legal advisors. On January 20, 2022, the Parties entered into an extension letter to the Proposal Letter to extend the exclusivity period until January 28, 2022, in order to provide the financial advisors time to adequately prepare, as applicable, the Fairness Opinions and the Valuation. Deloitte, at various stages, provided updates with respect to its investigations in preparing the Valuation.
The Parties and their respective legal counsel continued to concurrently negotiate the terms of the Financings. On January 26, 2022, AcquireCo received draft binding letters of commitment from the Financing Sources, subject to a number of conditions, including the completion of the Arrangement.
During the week of January 23, 2022, the respective legal counsels to the Parties continued to negotiate the draft Arrangement Agreement and members of the Special Committee continued discussions with the Participating Shareholders, both with and without their respective legal and financial advisors, to discuss the terms and conditions of the Arrangement Agreement. During this time, the Parties further agreed: (i) with respect to certain tax treatment relating to the sale of the Macro Enterprises Shares pursuant to the Arrangement; (ii) the terms of the Financings (including the removal of certain conditions included in the Financing Agreements); and (iii) to certain other concessions.
Over the course of January 2022, the Special Committee became aware of certain operational challenges facing the Corporation. These challenges included unforeseen costs and possible delays under one of its ongoing construction contracts that were anticipated to have a negative impact on the financial results of the Corporation.
On January 28, 2022, the Special Committee continued consultation with CIBC and Deloitte. Later that day, the Corporation (and, through it, the Special Committee) was informed of a new potential construction services contract award to Macro Pipelines (the "February Pipeline Construction Services Contract"), with the estimated gross revenue of the construction services to be provided under the Contract being $160 million. Given the potential effect of the February Pipeline Construction Services Contact and certain operational challenges on the valuation of the Corporation, the Special Committee requested that both Deloitte and CIBC conduct additional analysis to incorporate the possibility that the February Pipeline Construction Services Contract would be awarded, as well as the impacts of unforeseen costs and delays under the Corporation's other services Contracts.
On January 28, 2022, the Parties entered into a second extension letter to the Proposal Letter to extend the exclusivity period until February 3, 2022, to allow CIBC and Deloitte to conduct additional financial analysis with respect to the Corporation's financial position as a result of the February Pipeline Construction Services Contract as well as other recent negative developments in respect of the Corporation's business, which could mitigate certain of the potential positive financial effects of the February Pipeline Construction Services Contract. At the same time, the Parties settled on the form of the Support Agreements.
On January 31, 2022, CIBC, Norton Rose Fulbright and BDP met with the Special Committee to discuss the potential impact of the February Pipeline Construction Services Contract, certain other recent negative developments in respect of the Corporation's business and overall timing considerations.
During the week that followed, the Parties and their respective advisors continued to contemplate and analyze the impact of the February Pipeline Construction Services Contract and the other recent negative developments on the value of the Corporation and the proposed Arrangement, and the Special Committee authorized continued negotiations among the legal and financial advisors of the Parties. As the week progressed, it became reasonably apparent that the Corporation would enter into the February Pipeline Construction Services Contract and the Special Committee instructed CIBC and Deloitte to account for this and other recent negative developments in their respective analysis, including, in the case of Deloitte, the Valuation.
On February 3, 2022, the Parties entered into a third extension letter to the Proposal Letter to extend the exclusivity period until February 11, 2022. During such period, CIBC and Deloitte continued to review and consider the potential impact of the February Pipeline Construction Services Contract and other recent negative developments in respect of the Corporation's financial position and outlook, and as part of the same, reviewed and considered the Corporation's updated budgets and forecasts and met with the Corporation's senior management to further understand and consider the impact of the same.
On the evening of February 7, 2022, Deloitte verbally delivered its preliminary valuation assessment with respect to the Macro Enterprises Shares.
After market hours on February 8, 2022, the Corporation entered into the February Pipeline Construction Services Contract and before the opening of markets on February 9, 2022, the Corporation publicly announced it had entered into the February Pipeline Construction Services Contract.
In early February 2022 through to the signing of the Arrangement Agreement, as part of the Special Committee's review process, the Special Committee specifically considered a number of matters as its relates to proceeding with the Arrangement, including whether the Common Share Cash Consideration is likely to represent greater value than would reasonably be expected from the continued execution of the Corporation's existing strategic plan, in light of the ongoing uncertainty surrounding energy infrastructure construction projects, including pipeline construction projects, and whether it was reasonable to expect that the Corporation could consummate an alternative change of control transaction, on terms that were more favourable to Macro Enterprises Shareholders than the Arrangement, including given that the Participating Shareholders (and specifically Miles) control a sufficient number of Macro Enterprises Shares to effectively resist any alternative transaction to the Arrangement. See also "The Arrangement - Considerations of the Special Committee and the Board in Making their Recommendations" in the Circular.
As of February 11, 2022, AcquireCo entered into the Financing Agreements with the Financing Sources.
Late in the morning of February 12, 2022, the Special Committee met with representatives of each of Norton Rose Fulbright, BD&P, CIBC and Deloitte. Norton Rose Fulbright reviewed the proposed final terms of the Arrangement Agreement, the Arrangement, the Financings and related matters. At such meeting, Deloitte and CIBC each delivered to the Special Committee the applicable verbal Fairness Opinions. Deloitte also delivered the verbal Valuation, which valuation is in the range of $3.75 to $4.65 per Macro Enterprises Share. See "The Arrangement - Independent Valuation and Deloitte Fairness Opinion" and "The Arrangement - CIBC Fairness Opinions" in the Circular.
Having undertaken a thorough review of, and having considered, the Arrangement, following the Special Committee's review and assessment of the Arrangement Agreement and the Arrangement and the receipt of advice from legal counsel, CIBC and Deloitte, including the receipt of the verbal Fairness Opinions and the Valuation, and, after considering the potential benefits and risks in proceeding with the Arrangement (including as further described under "The Arrangement - Considerations of the Special Committee and the Board in Making their Recommendations" in the Circular) the Special Committee unanimously recommended that the Board approve the entering into of the Arrangement Agreement and proceed with the proposed Arrangement on the basis that the Arrangement is fair, from a financial point of view, to the Macro Enterprises Shareholders (excluding the Participating Shareholders) and the Macro Enterprises Optionholders (excluding the Participating Incentiveholders) and is in the best interests of the Corporation.
The Board subsequently met in the evening of February 12, 2022, following the Special Committee meeting and engaged in a discussion of the Arrangement and the terms and conditions of the Arrangement Agreement. Following the Board's discussion, and the receipt of the recommendation of the Special Committee, the Board, with the abstention of the Participating Director, following careful consideration of the recommendation of the Special Committee, among other things, unanimously determined that the Arrangement (including the Common Share Cash Consideration) is fair to the Macro Enterprises Shareholders (excluding the Participating Shareholders) and the Macro Enterprises Optionholders (excluding the Participating Incentiveholders) and that the Arrangement is in the best interests of the Corporation; unanimously authorized the Corporation to proceed with the Arrangement and enter into of the Arrangement Agreement, and determined to unanimously recommend that Macro Enterprises Shareholders (excluding the Participating Shareholders) and the Macro Enterprises Optionholders (excluding the Participating Incentiveholders) vote in favour of the Arrangement Resolution. See "The Arrangement - Considerations of the Special Committee and the Board in Making Their Recommendation" in the Circular.
Before the opening of markets on February 14, 2022, the Parties entered into the Arrangement Agreement and AcquireCo entered into the Support Agreements with parties holding or controlling approximately 31.8% of the total number of issued and outstanding Macro Enterprises Shares, 32.0% of the total number of issued and outstanding Macro Enterprises Shares and Macro Enterprises Options, 31.9% of the Macro Enterprises Shares and 97.3% Macro Enterprises Preferred Shares, and the Parties publicly announced the execution of the Arrangement Agreement and the transactions contemplated by the Arrangement.
On March 20, 2022 the Corporation announced the passing of Mr. Mastre, one of the Participating Shareholders and the Vice-President, Pipelines of the Corporation. As a result of Mr. Mastre's passing, the parties were required to confirm and review certain details of the Transaction, including (upon consultation with Mr. Mastre's family) to exclude the securities held by Mr. Mastre from the Transaction as a "Participating Shareholder" and "Participating Incentiveholder" and accordingly, on March 28, 2022, the parties agreed to amend the Arrangement Agreement and plan of arrangement. As a result of the amendments to the plan of arrangement, all securities of Macro Enterprises owned by Mr. Mastre (and his estate) would participate in the Transaction in the same manner as all other Macro Enterprises securityholders, other than the remaining Participating Shareholders and Participating Optionholders and Mr. Mastre (and his estate) will no longer be a "Participating Shareholder" or "Participating Optionholders" for the purposes of the Arrangement.
Description of Collateral Benefits
Macro Enterprises is a reporting issuer or equivalent in British Columbia, Alberta, Manitoba and Ontario and, accordingly is subject to Multilateral Instrument 61-101 - Protection of Minority Security Holders in Special Transactions ("MI 61-101"). MI 61-101 is intended to regulate certain transactions to ensure equality of treatment among securityholders, generally requiring enhanced disclosure, approval by a majority of securityholders excluding certain interested or related parties and their joint actors and, in certain instances, independent valuations and approval and oversight of the transaction by a special committee of independent directors. The protections of MI 61-101 apply to, among other transactions, "business combinations", as defined in MI 61-101.
A "business combination" includes, for an issuer, a transaction (including an arrangement) (a) as a consequence of which the interest of a holder of an equity security of the issuer may be terminated without the holder's consent, and (b) where a person who is a "related party", as defined in MI 61-101, of the issuer at the time the transaction is agreed to is entitled to receive, directly or indirectly, as a consequence of the transaction, a "collateral benefit", as defined in MI 61-101.
The Arrangement is a business combination under MI 61-101 since, as described below, certain related parties of Macro Enterprises, at the time the Arrangement was agreed to (a) would, as a consequence of the Arrangement, directly or indirectly acquire Macro Enterprises or the business of Macro Enterprises, or combine with Macro Enterprises, through an amalgamation, arrangement or otherwise, whether alone or with joint actors, or (b) will be entitled to receive a "collateral benefit" as a consequence of the Arrangement.
A collateral benefit includes any benefit that a related party of Macro Enterprises (which includes the directors and "senior officers", as defined under MI 61-101, of Macro Enterprises) is entitled to receive, directly or indirectly, as a consequence of the Arrangement, including, without limitation, an increase in salary, a lump sum payment, a payment for surrendering securities, or other enhancement in benefits related to past or future services as an employee, director or consultant of Macro Enterprises or another person.
However, MI 61-101 excludes from the meaning of collateral benefit certain benefits to a related party received solely in connection with the related party's services as an employee, director or consultant of an issuer or an affiliated entity of the issuer or a successor to the business of the issuer if, among other things, (a) the benefit is not conferred for the purpose, in whole or in part, of increasing the value of the consideration paid to the related party for securities relinquished under the transaction; (b) the conferring of the benefit is not, by its terms, conditional on the related party supporting the transaction in any manner; (c) full particulars of the benefit are disclosed in the disclosure document for the transaction; and (d)(i) at the time the transaction was agreed to, the related party and its associated entities beneficially own or exercise control or direction, over less than 1% of the outstanding securities of any class equity securities of the issuer, or (ii) an independent committee, acting in good faith, determines that the value of the collateral benefit, net of any offsetting costs to the related party, is less than 5% of the value of the consideration the related party expects to receive under the terms of the transaction and this determination is disclosed in the disclosure document for the transaction.
The Participating Shareholders, being Miles, Redmond, and, prior to his passing, Mastre, were "related parties" of the Corporation pursuant to MI 61-101. AcquireCo is also a "related party" of the Corporation pursuant to MI 61-101 because Miles, Redmond and Mastre, each a "related party" of the Corporation, beneficially own, in the aggregate, more than 50% of the securities of AcquireCo.
Pursuant to the terms of the Arrangement, each of the Participating Shareholders will continue to have an interest in the amalgamated entity formed through the amalgamation of AcquireCo and the Corporation following the completion of the Arrangement and is entitled to receive shares of such amalgamated entity in connection with the Arrangement. As noted above, it is the intention of the parties to amend the Arrangement Agreement and the plan of arrangement provide that Mastre will no longer be treated as a Participating Shareholder or Participating Incentiveholder.
Additionally, the Macro Enterprises Options are held by certain related parties of Macro Enterprises, including each of the directors of Macro Enterprises. In connection with the Arrangement, (a) the Macro Enterprises Options held by Miles and Redmond (as Participating Incentiveholders) will be terminated immediately prior to the Effective Time in accordance with his Macro Enterprises Participating Incentiveholder Option Agreement; and (b) as approved by the Board (subject to the abstention of the Participating Director), (i) the vesting of all outstanding Macro Enterprises Options will be accelerated to immediately prior to the Effective Time, subject to, and conditional upon, completion of the Arrangement, and (ii) each Macro Enterprises Option will be surrendered by the Macro Enterprises Optionholders to Macro Enterprises in consideration for such Macro Enterprises Optionholders receiving the Option Consideration from Macro Enterprises. See "The Arrangement - Treatment of the Macro Enterprises Options" in the Circular.
Accordingly, the directors and senior officers of Macro Enterprises may have interests in the Arrangement that are, or may be, different from, or in addition to, the interests of other securityholders of Macro Enterprises. The Board is aware of these interests and considered them, among other matters, when recommending that Macro Enterprises Shareholders and Macro Enterprises Optionholders vote FOR the Arrangement Resolution.
Each of the related parties of Macro Enterprises and their respective associates and affiliated entities beneficially own, or exercise control or direction over, less than 1% of each class of voting shares (assuming in each case the exercise of Macro Enterprises Options held by them), other than: Miles, who beneficially owns, or exercises control or direction over, approximately 29.4% of the outstanding Macro Enterprises Shares, Mike Nielson, who beneficially owns, or exercises control or direction over, approximately 1.2% of the outstanding Macro Enterprises Shares and Bill McFetridge, who beneficially owns, or exercises control or direction over, approximately 1.0% of the outstanding Macro Enterprises Shares.
As at the date of the Arrangement Agreement, each of Mr. Nielsen and Mr. McFetridge, are each entitled to receive a cash payment in exchange for the surrender of their "in-the-money" Macro Enterprises Options which will be cancelled in connection with the Arrangement. The cash payment will be equal to the difference between the exercise price and the $4.00 per share to be paid in connection with the Arrangement and could be considered to be a "collateral benefit" as each of Mr. Nielsen and Mr. McFetridge beneficially own or exercise control or direction over 1% or more of the Macro Enterprises Shares.
However, in accordance with the provisions of MI 61-101, the independent directors, acting in good faith, has determined that the value of the benefit to each of Mr. Nielsen and Mr. McFetridge (i.e., the cash payment in respect of their Macro Enterprises Options), net of any offsetting costs, is less than 5% of the value of the consideration that each of Mr. Nielsen and Mr. McFetridge, respectively, is expected to receive under the terms of the Arrangement in respect of their Macro Enterprises Shares. Consequently, neither Mr. Nielsen nor Mr. McFetridge is entitled to receive a "collateral benefit" in connection with the Arrangement and Miles is the only related party to receive a "collateral benefit" in connection with the Arrangement.
The following table sets out the names of the directors, officers and insiders, the number of outstanding securities of the Corporation beneficially owned, or over which control or direction is exercised, by each of them and, where known after reasonable inquiry, by their respective associates or affiliates, as of the Record Date, and the estimated consideration to be received in respect of such securities as a result of the Arrangement:
| Name | Securities | Consideration |
| Frank Miles Chief Executive Officer, Chief Operating Officer and Director | 9,253,428 Macro Enterprises Shares | $23,013,712 (in exchange for 5,753,428 Macro Enterprises Shares) |
| 14,000 Amalco Class A Shares (in exchange for 3,500,000 Macro Enterprises Shares) | ||
| 2,100 Macro Enterprises Preferred Shares | $5,600,028 | |
| $2,991.78, representing the accrued cumulative dividend to be paid on the Macro Enterprises Preferred Shares in accordance with the Plan of Arrangement(2)(5) | ||
| 70,000 Macro Enterprises Options | $0 | |
| Jeff Redmond Chief Financial Officer | 115,000 Macro Enterprises Shares | 460 Amalco Class B Shares |
| 30,000 Macro Enterprises Options | $0 | |
| Michael Nielsen Director | 376,100 Macro Enterprises Shares | $1,384,400 |
| 330 Macro Enterprises Preferred Shares (1) | $880,004.40 | |
| $470.14, representing the accrued cumulative dividend to be paid on the Macro Enterprises Preferred Shares in accordance with the Plan of Arrangement(3)(5) | ||
| 40,000 Macro Enterprises Options | $34,000 | |
| William McFetridge Director | 244,700 Macro Enterprises Shares | $980,000 |
| 50 Macro Enterprises Preferred Shares (1) | $133,334 | |
| $71.23, representing the accrued cumulative dividend to be paid on the Macro Enterprises Preferred Shares in accordance with the Plan of Arrangement(4)(5) | ||
| 50,000 Macro Enterprises Options | $42,500 | |
| Robert (Bob) L. Fedderly Director | 13,000 Macro Enterprises Shares | $65,000 |
| 50,000 Macro Enterprises Options | $2,500 | |
| Kenneth Mastre Vice President, Pipelines | 35,000 Macro Enterprises Shares | $140,000 |
| 100,000 Macro Enterprises Options | $85,000 |
Notes:
- Following the conversion of the Macro Enterprises Preferred Shares into Macro Enterprises Shares.
- Represents accrued cumulative dividends for the period of April 1 to April 8, 2022, based on: (i) an assumed Effective Date of April 8, 2022; and (ii) the anticipated payment on March 31, 2022 of accrued cumulative dividends in the amount of $34,125.00 for the period of January 1, 2022 to March 31, 2022.
- Represents accrued cumulative dividends for the period of April 1 to April 8, 2022, based on: (i) an assumed Effective Date of April 8, 2022; and (ii) the anticipated payment on March 31, 2022 of accrued cumulative dividends in the amount of $5,362.50 for the period of January 1, 2022 to March 31, 2022.
- Represents accrued cumulative dividends for the period of April 1 to April 8, 2022, based on: (i) an assumed Effective Date of April 8, 2022; and (ii) the anticipated payment on March 31, 2022 of accrued cumulative dividends in the amount of $812.50 for the period of January 1, 2022 to March 31, 2022.
- Should the Effective Date occur following the assumed Effective Date of April 8, 2022, additional dividends will accrue in accordance with the terms of the Macro Enterprises Preferred Shares.
Voting at Meeting of Securityholders
The special meeting of Macro Securityholders at which Macro Securityholders will consider and, if deemed advisable, pass, with or without variation, a special resolution to approve the Arrangement in the form attached as Appendix "A" to the Circular will be held on Monday, April 4, 2022 at 10:00 a.m. (Vancouver time) at the offices of Norton Rose Fulbright Canada LLP at 510 West Georgia Street, Suite 1800, Vancouver, British Columbia, V6B 0M3.
Pursuant to MI 61-101, the Macro Enterprises Shares and the Macro Enterprises Preferred Shares held by each of Miles, Redmond and the estate of Mastre, together with the Macro Enterprises Shares held by each of their respective associates and affiliated entities, being 9,403,428 Macro Enterprises Shares and 2,100 Macro Enterprises Preferred Shares, will be excluded in determining whether minority approval has been obtained in accordance with MI 61-101. For details of such parties ownership of securities of Macro Enterprises, please see "Description of Collateral Benefits" above.
Macro has sent the Circular and other Meeting materials to Macro Securityholders. These documents contain comprehensive information with respect to how Macro Securityholders may vote in advance of the Meeting. The Circular is also available on the Company's profile at www.sedar.com and on its website at http://www.macroindustries.ca. The record date for determining Macro Securityholders eligible to vote at the Meeting is February 23, 2022.
Recommendations
In view of the advice from Acquireco that it remains fully committed to complete the Transaction and on the basis that the transaction price of $4.00 per Macro Enterprises Share will remain the same, that requisite financing arrangements are still expected to be in place to fund the full cash consideration of the Arrangement and that, as a result of the minimal securityholding of Mr. Mastre (and his estate) and Mr. Mastre ceasing to be a "Participating Shareholder" or "Participating Incentiveholder", the likelihood of completing the Arrangement will remain the same as before the amendments, the Special Committee has unanimously reconfirmed their recommendation to the Board, and the Board, upon the recommendation of the Special Committee, subject to abstention by Miles, has unanimously determined that the Arrangement is fair to the holders of Macro Enterprises Shares (excluding the Participating Shareholders), Macro Enterprises Preferred Shareholders (excluding the Participating Shareholders) and Macro Enterprises Optionholders (excluding the Participating Incentiveholders) and is in the best interests of Macro Enterprises. The Board, subject to abstention by Miles, has unanimously reconfirmed its recommendation that the holders of Macro Enterprises Shares and Macro Enterprises Preferred Shares (other than the Participating Shareholders) and Macro Enterprises Optionholders (other than Participating Shareholders) vote in favour of the Arrangement Resolution.
About Macro Enterprises Inc.
Macro's core business is providing pipeline and facilities construction and maintenance services to major companies in the oil and gas industry in northeastern British Columbia and northwestern Alberta. The Company's corporate office is in Fort St. John, British Columbia. Macro's common shares are listed on the TSX Venture Exchange under the symbol "MCR". Information on the Company's principal operations can be found at www.macroindustries.ca.
For further information, please contact:
Frank Miles
President and C.E.O.
Phone: (250) 785-0033
Bob Fedderly
Special Committee
Phone: (250) 787-0398
Neither the TSX Venture Exchange nor its Regulation Services Provider (as that term is defined in the policies of the TSX Venture Exchange) accepts responsibility for the adequacy or accuracy of this release.
To view the source version of this press release, please visit https://www.newsfilecorp.com/release/118476
