Canadian Lawyer InHouse

25 cANAdIANlAwyermAg.com/INhouse DECEmBEr 2014 TIME: EVENT: 12-month, part-time, executive LL.M. for lawyers and business professionals Advance your career to the next level! Learn important legal and business concepts that can be immediately applied to better serve your clients. Explore the implications of real-life cases in an increasingly complex global business environment. Acquire in-depth knowledge of how the law interacts with both the private and public sectors. For more information please contact Jane Kidner, Assistant Dean Professional Legal Education at j.kidner@utoronto.ca http://www.law.utoronto.ca/programs/GPLLM.html or visit our website: ntitled-7 1 2014-11-25 8:53 AM opportunity exists not only in the U.S., but internationally to markets such as Russia and China. "Tims makes coffee and donuts — it's not something to do with Canada's presence in scientifi c leadership — but it was really im- portant to Tims and to the deal team and we impressed upon Burger King that for Tims to announce a sale given that it is an impor- tant retail brand it had to be very confi dent the transaction would close," says Horner. In a move that Horner says is "unprec- edented," Tims said to Burger King that if the deal didn't pass regulatory hurdles, it would pay Tims a reverse breakup fee of $500 million. To demonstrate just how sig- nifi cant that issue was in the context of this transaction the highest reverse breakup fee ever agreed in a Canadian transaction be- fore the Tims transaction for Investment Canada approval was $50 million (the Vit- erra sale to Glencore). "So it was 10 times that in this case," says Horner. Horner said the partnership between Wachtell, Osler, and Tims was the best three-way partnership he has experienced in more than 25 years of doing this kind of work. "It was partly because the Osler and Wachtell folks had great respect for each other, but also because Jill involved every- body on a basis of 'I want to get the best ad- vice and ideas.'" "Sometimes you get outside fi rms jock- eying with each other for greater visibility with counsel because they have the benefi t of having more knowledge about regula- tory or legal issues that is of signifi cance," he says. "Jill set the tone and said, 'We're all equal in this and we're going to work co- operatively and be entitled to express our opinion and we're all going to be available whenever we need to move the ball ahead.'" Horner says one of Sutton's strengths is her "healthy understanding of and respect for the U.S. securities regime." "As Jill needed to call on various members of her team one of the things that was really impressive was that her folks really pulled to- gether as a team and worked incredibly hard. In the last three days they were trying to get it done and essentially everyone worked for 48 hours straight and her team worked for 48 hours straight as well," he says. In the fi nal days of the transaction, Horner says a new draft would go around every couple of hours and Sutton would make sure she read the relevant parts of each draft and every couple of drafts, read it from top to bottom. In a situation like that it doesn't matter, says Horner, how good the outside counsel is — it's that knowledge about what's going on and the issues and their approach to the issues that is most benefi cial. "When you have a general counsel who is really involved in the company, who just fi nds things and can ask questions that as an outside counsel you just wouldn't think about, that's ter- rifi c," he says. In the fi nal meeting with the board Sut- ton took the lead and walked the directors through the agreement and regulatory conditions. While she looked to Osler and Wachtell to describe some of the particular provisions, she was the point person pre- senting the facts of the transaction. "Quite frankly, that is rare in the context of a big deal," he says. IH

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