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The Special Committee believes that it is utterly nonsensical to claim that senior corporate officers such as Black, the CEO, and Radler, the COO, should be paid anything personally simply to go along with agreements that Hollinger had signed let alone payments of tens of millions of dollars.

They had fiduciary duties to Hollinger, and once Hollinger signed a non-compete agreement with a buyer of assets that commitment should have bound Black and Radler for as long as they served as officers of Hollinger. Therefore, there was no logical or rational justification for why buyers from Hollinger would need an agreement from those entities either.

The entire concept of these payments was simply bizarre. Thus there were several less costly alternatives available to Hollinger to avoid the types of payments that were made. Since Black and Radler decided they should award themselves these payments, these other alternatives were never pursued. For them to do so was a fundamental breach of their fiduciary duties. This argument is similar to a bank robber asking a bank to pay him a reward because he stole only a portion of what he might have taken.

The performance of the Audit Committee and the Board in reviewing the non-compete payments was unacceptable. While it was bombarded with misinformation, the Audit Committee nonetheless allowed Black and Radler as interested parties unfettered rein to direct the amounts and the allocation of non-compete payments to themselves. Any such proposal from Black, if not rejected out of hand, should have received heightened and intense scrutiny from the Audit Committee, but that never happened.

As with the abuses in connection with management fees, however, the Special Committee does not believe the failure of the Audit Committee to perform a reasonable analysis of these implausible fees justifies or excuses the taking of these fees in the first place. However, we believe that individuals may have feared that disclosing Radler was widely regarded as accomplished in cutting expenses and improving earnings at the community newspapers.

Black and Radler had built the Hollinger entities over a sustained period, and most members of the Board believed they were accomplished managers. Unfortunately, the early relationship with Hollinger turned parasitic over time. Self dealing, misrepresentation and other abusive and unethical practices had become so deeply ingrained in the corporate culture that they became commonplace, and perhaps indistinguishable from normal everyday practice for some of the key actors.

The endless quest for huge cash payments to Black and Radler displaced ethics, fiduciary duties or any other considerations. Examples of misleading conduct abound. The internal focus became exclusively how to generate opportunities to suck cash out of Hollinger and into Ravelston, if not into the hands of Black and Radler directly.

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Hollinger was used as a piggy bank for the Blacks, with shareholders paying for large and small expenses that would not typically be considered eligible for corporate reimbursement. The jets were used for some business activities, but they were also used indiscriminately to fly the pair to and from their collections of homes without any plausible business connection.

Both apartments were in the same building, though the apartment owned by Hollinger was greatly superior due to its size and location on a higher floor. The apartment Hollinger took back in the rigged swap was then used to house personal domestic staff for the Blacks, personal friends visiting New York and on occasion visiting executives for corporate purposes.

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The deal was a real estate time machine for Black. Food, cell phones, perfume, and other routine living expenses, including tips by Mrs. Black while on shopping trips, were expensed to Hollinger. Anthony Ltd. Amiel Black was separately compensated for her services as a writer, though Hollinger paid for her pens, pencils, modems, computers and other office equipment as well as the operating cost of a private telecommunications network something not given to other columnists to connect her from multiple locations.

Even though these entities did nothing to earn fees, and did not have either employees or real operations, paying management fees to them on the pretense that they performed services allowed the recipients the prospect of transforming a portion of the enormous management fees that would otherwise most likely have been taxable in Canada where the payments were received , or possibly the U.

However, though the form of a public company existed, the substance did not. Black and Radler created a governance structure at the formation of the Company that gave them voting control irrespective of their level of equity ownership. In the short run that structure left 17 Boultbee told the Committee that the reason for this structure was that income at these entities would only be subject to income tax at a rate of 2. The Board Black selected functioned more like a social club or public policy association than as the board of a major corporation, enjoying extremely short meetings followed by a good lunch and discussion of world affairs.

Actual operating results or corporate performance were rarely discussed. Burt recalls Black changing the subject when he tried to ask questions about the financial performance of The Telegraph , for example. Elemental disclosure requirements and fiduciary standards were routinely violated, and Black generally did what he pleased. Healy told the Special Committee of an unpleasant telephone exchange with Black following the annual meeting when Healy suggested informing Thompson of certain information.

He did not appear to acknowledge that fiduciary standards for public companies created meaningful limits on his dealings with Hollinger. While the Special Committee does not believe that most of the fraudulent and abusive practices described in the Report would be tolerated in a private company any more than in a public company, a private company would not present the same type of fiduciary issues that inevitably were raised in a public company where Black and Radler could decide for themselves how they wished to use the capital of disenfranchised public investors.

In a typical private equity setting, Black and Radler would have had to deal with empowered and active equity investors who would take the time to oversee internal practices and cash flow, as well as with knowledgeable debt creditors. The Report describes an exchange in early between Black and Asper, the late CEO of CanWest, that contrasts different approaches to fiduciary standards.

This represented a nearly unbelievable Cash compensation to management at such levels whether paid directly or indirectly , and in such a proportion of corporate cash flow, is stunning in its audacity and its utter disregard for either market practices or the legal standards of fiduciary behavior.

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Most public companies automatically terminate employees or officers who refuse to answer questions under oath before the SEC. The Committee focused its most intense efforts in the early stages of the process on determining the scope of wrongdoing by those who took the money.

The Audit Committee and the Board were given false information and were not told other material facts about the non-compete payments and management fees. However, it is also true that they did not do much if anything on their own about either the non-compete payments or the excessive management fees. Instead it only hired independent counsel or advisors in rare circumstances. The Audit Committee relied for most advice on Black, Radler or other Ravelston personnel who had a direct conflict of interest.

KPMG and Torys represented HLG and Ravelston as well as Hollinger, so the Audit Committee also knew or should have known that their views could be tempered or compromised when it came to related-party payments among the various entities. The Report notes that the Audit Committee does not appear to have asked for any information concerning the components of the management fee, such as the breakdown between compensation for the back office personnel and payments to the senior officers. The Audit Committee did not seek backup documentation regarding any aspects of the proposed management fee each year.

Indeed, in many cases approvals were not based on any analysis at all. The Audit Committee failed to take any of the steps, or to ask any of the questions, that might have made their review of both management fees and non-compete fees meaningful. They were inattentive, and they failed to be alert to the possibility that Black and Radler might be proposing vastly inflated or wholly inappropriate fees that were fundamentally unfair to Hollinger shareholders. In performing our work, the Special Committee discovered a pattern of misleading statements to the Board and the Audit Committee surrounding related-party transactions.

In addition to making false statements, we also found many cases in which Black, Radler, Kipnis or others failed to tell the Board or the Audit Committee key facts necessary to fully understand transactions or payments as to which partial information was given. Nonetheless, Radler told the Audit Committee that CanWest had insisted on the specific amounts of non-compete payments, which was simply untrue. Black later told shareholders at the annual meeting that it had been the independent directors that had negotiated the amount of the payments, which also was not true.

Ravelston had not given up any rights, as its agreement with Hollinger continued in force unchanged.

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The Audit Committee and the Board agreed to the payments, but they did so thinking that they did not have a choice if they wanted the CanWest transaction to be completed for the good of the Company. As outrageous as these misrepresentations to the Board were, they do not in our view relieve the Audit Committee from the responsibility of obtaining independent confirmations of the reasonableness and necessity of these payments. Approximately six months after the original CanWest transaction closed, the Board received an extraordinary memo from Kipnis.

It advised the Board that they had been misinformed as to information regarding the non-compete and break fee payments in late They were advised that this misinformation included the fact that CanWest had not actually specified the amount of the non-compete fees that would be paid. Black and Radler subsequently advised the Board of the Osprey payments, and sought and obtained an express ratification based on a misleading portrayal of the events. Throughout most of this time, the Board was hearing consistent stories from Black or Radler on the one hand, and Kipnis on the other.

The Board did not have any reason to think Kipnis would knowingly give the Board false information, and his comments made statements by Black and Radler all the more credible.

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The Board did not know, however, that Kipnis had in Thompson in particular would never claim to be a businessman, or an expert in financial analytics. However, he is a highly experienced lawyer, and he understands the fiduciary duties that Black and Radler had as controlling shareholders.

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Thompson knew that if Black and Radler charged Hollinger more than a fair and reasonable amount, they would be violating their duties under Delaware law. Unfortunately, Thompson seems to have trusted Black and Radler to honor their fiduciary duties when it turned out that he was dealing with individuals who had long since ceased to pay attention to those concerns. Thompson did not realize that Black and Radler might be regularly feeding inadequate or misleading information to the Audit Committee.

Thompson knew that various other people were aware of the management fee levels and did not suggest serious problems. Similarly, neither KPMG nor Torys expressed any contemporaneous concern with the proposed non-compete agreements. Thompson was not alerted, either expressly or by informal warnings, to the need to be more vigilant by KPMG, Kipnis, or by anybody else.

The Special Committee believes that another very significant reason for the lack of vigor in the Audit Committee was the overall control structure of Hollinger, and the impact that had on the perceptions of all the Board members. As noted above, Black expressly characterized Hollinger as his company. In his view he and Radler built Hollinger, they ran it as they saw fit, and it was their job to figure out its next steps.

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