KCS declines Canadian Pacific’s revised, $31B takeover offer

But KCS on Thursday still opted for CN’s offer: “The KCS Board reaffirms its recommendation to KCS shareholders to vote in favor of the pro-competitive, end-to-end merger with CN, which will create the premier railway for the 21st century and offers unparalleled opportunities and benefits for customers, employees, shareholders, the environment and the North American economy,” KCS said.

However, the KCS board could also postpone a decision that would’ve sealed KCS’ commitment to CN’s merger proposal. KCS shareholders were planning to vote next Thursday on whether to approve CN and KCS’ merger agreement, but the KCS board decided not to hold that vote if the Surface Transportation Board hasn’t yet issued a decision by next Tuesday on whether it approves CN’s proposed voting trust, which would be used to acquire KCS. 

The STB is the regulatory body that reviews proposed mergers between major freight railroads, and KCS has said its approval of the merger agreement between KCS and CN is predicated on STB’s approval of CN’s proposed voting trust.

The STB said on Tuesday that it would issue a decision on CN’s voting trust sometime before Aug. 31.

“The KCS Board of Directors has determined, with the concurrence of CN, that if the STB has not released a public decision by August 17, 2021, at 6:00 p.m., Central Time, the Special Meeting will be adjourned to give all shareholders and the Board time to receive and consider the STB decision. If the meeting is adjourned, the Board will announce the date on which it will reconvene the meeting,” KCS said.

CN and CP both said they viewed KCS’ actions positively. 

“We are pleased that the KCS board of directors has reiterated that the agreed transaction with CN is superior and recommends that stockholders vote FOR our pro-competitive combination,” said CN President and CEO JJ Ruest.

He continued, “Together, we will enhance competition, drive economic growth and realize the benefits of a fully end-to-end transportation network connecting North America. We look forward to continuing to work with KCS to deliver this compelling combination to both companies’ stakeholders.”

CN also affirmed that it supported the decision by the KCS board to adjourn the shareholder meeting next Thursday if STB doesn’t issue a decision on CN’s voting trust by Tuesday. 

Meanwhile, CP said it “applauds” KCS’ decision to adjourn Thursday’s shareholder meeting. 

“CP has always maintained KCS stockholders should have all relevant information, including the STB decision on the CN voting trust, to be able to make an informed decision, avoid being locked into the CN-KCS deal and preserve the ability to consider a better alternative proposal. … We are confident that the STB will take the time needed to review the myriad of issues and concerns the CN voting trust raises. We continue to believe that CN’s proposed use of a voting trust should not be approved because it is anti-competitive and not in the public interest,” CP said.

CP noted that proxy advisers Institutional Shareholder Services (ISS) supported KCS’ decision to hold off on approving the CN-KCS merger agreement if STB doesn’t issue a decision beforehand. 

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Click here for more FreightWaves articles by Joanna Marsh.

Related links:

• Canadian Pacific submits revised offer to acquire Kansas City Southern

• Drilling Deep: Saia, ODFL and KC Southern on Mehrotra’s mind

• KCS shoots back at Canadian Pacific attempts to derail CN merger

• Rail Roundup: Train crews, shippers’ views, shareholders choose

For full coverage of the CN/CP/KCS situation, click here.