CPP Investment Board and Sterling Partners Acquire Livingston International Income Fund

On January 20, 2010, a consortium of Canada Pension Plan Investment Board and Sterling Partners completed the acquisition of assets of Livingston International Income Fund for $324.4 million.
On October 8, 2009, Livingston announced that it had agreed to be acquired by the consortium in a transaction that would provide a payment of $8 cash per Livingston unit to unitholders and be effected by way of a sale of all of the assets of Livingston under a plan of arrangement. The transaction emerged from a strategic review and a confidential targeted auction process initiated by the board of trustees of Livingston in June 2009.

On November 6, 2009, Livingston confirmed that it had received and was considering a non-binding proposal from Mullen Group Ltd. for a business combination by way of plan of arrangement whereby Mullen would acquire all of the outstanding units of Livingston on the basis of 0.566 of a common share of Mullen for each unit, representing notional consideration of approximately $9 per unit. The offer was made binding, however, Mullen was unwilling to pay the $3.5 million in expenses and the $6.5 million escrow break fee payment required by the acquisition agreement and Mullen later withdrew its offer.

Subsequently, on December 15, 2009, the consortium agreed to amend the acquisition agreement in order to increase the amount of consideration to be received by unitholders to $9.50 in cash per unit. On December 23, 2009, the acquisition was approved by a unitholders' meeting, with 88 per cent of the votes in favour.

Livingston is a leading North American provider of customs, transportation and integrated logistics services. Headquartered in Toronto, Livingston has approximately 2,500 employees located at some 100 key border points, seaports, airports and other strategic locations across Canada and the United States.

The consortium was represented by Osler, Hoskin & Harcourt LLP with a team led by Christopher Murray that included John Leddy and David Forrest (corporate); Laurie Barrett, Victoria Aldworth and Benjamin Leith (financial services); Kimberly Wharram (tax); Michelle Lally and Paul Winton (competition); in New York by Paul Seraganian and Kevin Colan (US tax); Andrew Herr and Nathan Whitaker (US financial services); and in Calgary by Damian Rigolo (employment).

Livingston International Income Fund was represented by Stikeman Elliott LLP with a team led by Simon Romano and including Donald Belovich, Sheel Parekh, Jonah Mann and Derrick Guo (corporate); and Susan Thompson and John O'Connor (tax).

Canada Pension Plan Investment Board was represented, with respect to intra consortium matters, by Matthew Cockburn and Guy Berman of Torys LLP; and separately Sterling Partners was represented by Katten Muchin Rosenman LLP with a team that included Saul Rudo and Brooks Giles with respect to intra consortium matters and Sterling Partners' US tax, funding and US regulatory matters.

The syndicate of lenders that included Royal Bank of Canada, as administrative agent, and RBC Capital Markets and Canadian Imperial Bank of Commerce as joint lead arrangers and joint bookrunners, were represented by a separate team from Torys LLP that included Adam Delean, Nadine Rockman Katz, Bela Halasz and Ashley Nicol (lending); Jonathan Wiener (US lending); Corrado Cardarelli (tax) and Joanna Dybel (real estate).