Canadian M&A Perspectives Private and Public Mergers & Acquisitions | Private Equity

Monthly Archives: August 2011

Which M&A Representations Do I Really Need?

Posted in Contractual Matters

M&A lawyers often get stuck negotiating pages and pages of representations and warranties in purchase agreements on behalf of their buyer clients. So let’s say I am stranded on a desert island negotiating with “Wilson,” the volleyball, for the purchase of a coconut water business. Wilson will only give me five representations in our purchase agreement. Which representations should I ask for?

  1. Title – It is essential that Wilson represent to me that he has good title to the assets of the coconut water business. If we’re negotiating a share purchase, I will need to know that Wilson’s company has
  2. Continue Reading

Are You a Target? Protecting Yourself against D&O Liability

Posted in Contractual Matters

Are you a D&O on a board of a company that is or may be an acquisition target?

You may be wondering what happens to your indemnity after the company you act for is acquired. First things first, if you have a contractual indemnification agreement with the company, check it and see what the duration of the agreement is. If there is no language with respect to duration in the contract, or if there is any ambiguity as to coverage following the acquisition, make sure you negotiate a written confirmation or acknowledgement with the acquiror that your indemnity will remain … Continue Reading

Confidentiality Agreements – Part 1 – Some Initial Considerations

Posted in Contractual Matters

How often are you called upon to sign a confidentiality or non-disclosure agreement? Want to participate in the sale process for a business you’re interested in acquiring? Sign this confidentiality agreement first. Need access to important commercial information? Sign a confidentiality agreement. Want to meet with key executives as part of your due diligence? Not before you commit to the terms of this non-disclosure agreement. They are everywhere. And yet, they rarely get much attention until issues arise.

Ensuring confidentiality throughout the M&A process is essential to a successful deal. This is the first in a series of blog posts … Continue Reading

Dissident Ambush of a Shareholders’ Meeting – Tactics to Consider

Posted in Public M&A

A common technique by dissidents seeking to replace a board of directors is to nominate a rival slate of directors from the floor at the company’s annual meeting. The dissident group might succeed because the target company has not had time to round up support from friendly shareholders who did not bother to vote.

The key to any good ambush, of course, is the element of surprise. This certainly holds true for an ambush by dissident shareholders.

If the target company catches wind of the dissidents’ plan in advance of the meeting, the target’s board might be able to adjourn … Continue Reading