Fair Value As Windfall: A Tale Of Dissent

As intrepid readers of our blogs will recall, we previously discussed the tale of ExxonMobil Canada's ("ExxonMobil") acquisition of InterOil Corporation here and here. To refresh: ExxonMobil had sought to acquire by plan of arrangement under the Yukon Business Corporations Act (YBCA) all of the shares of InterOil for shares of ExxonMobil, plus a capped contingent payment (the "Arrangement"). Although the arrangement had been approved by over 80% of voting InterOil shareholders and Mr. Justice R. S. Veale of the Supreme Court of Yukon granted the final order approving the arrangement, a number of governance concerns were raised, including most notably deficiencies in the disclosure regarding valuation and analysis, conflicting interests and the success fee basis of the financial advisor's compensation in relation to the delivery of its fairness opinion. On appeal, the Yukon Court of Appeal agreed with the governance concerns and viewed them as so fundamental to