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Is the Death of Ontario’s Bulk Sales Act upon us? It looks like it may be.

Posted in Contractual Matters, Private Equity, Private Transactions, Strategy

On June 8, 2016 Bill 218 (the Burden Reduction Act, 2016) passed first reading. The Bill is part of a provincial government initiative to, in part, reduce the regulatory burden on Ontario businesses. Schedule 3 of the Bill repeals Ontario’s Bulk Sales Act (BSA). The BSA was enacted in 1917, and is intended to protect unpaid trade creditors (i.e. the people a seller is indebted to for goods, money or services furnished for the purpose of enabling the seller to carry on his or her business) from “bulk sales” by a seller of all or substantially all of its assets … Continue Reading

Canadian Securities Commissions Consider First Tactical Private Placement Under Canada’s New Take-Over Bid Regime

Earlier today, the Ontario Securities Commission and the British Colombia Securities Commission released their decisions regarding Hecla Mining Co.’s claim that Dolly Varden Silver Corp. had planned to utilize a private placement as an inappropriate defensive tactic.

Posted in Public M&A, Shareholders, Strategy

Since Canada’s new harmonized take-over bid regime (New Bid Regime) came into effect earlier this year, there’s been a lot of talk about whether tactical private placements will become the new poison pills. For more information on the New Bid Regime see our previous article, Canada’s New Take-Over Bid Rules Seek to Level the Playing Field.

A “tactical private placement” occurs when a target company issues securities to a friendly party in response to an unsolicited take-over bid in order to make it more difficult and/or more expensive for the hostile bidder to complete a take-over of the target … Continue Reading

Canadian Public Company M&A Disclosure: Key Considerations from the CSA’s 2016 Continuous Disclosure Review Program

Posted in Uncategorized

The Canadian Securities Administrators recently released the results of its continuous disclosure review program for the fiscal year ended March 31, 2016, which includes findings and guidance related to disclosure regarding forward looking information, non-GAAP financial measures, information circulars and material contracts – all of which have particular significance in the M&A context.

On July 18, 2016, the Canadian Securities Administrators (CSA) published a summary of the results of their annual continuous disclosure review of reporting issuers for fiscal year 2016, in CSA Staff Notice 51-346 – Continuous Disclosure Review Program Activities for the fiscal year ended March 31, 2016Continue Reading

Thinking of Buying or Selling a Fintech Target? Due Diligence Issues Unique to Fintech M&A

Although many of the same considerations related to the acquisition or sale of any technology company apply, regulatory and compliance considerations are key in the fintech space.

Posted in Canadian Market Entry, Contractual Matters, Private Equity, Private Transactions, Public M&A, Shareholders, Strategy

Fintech M&A activity, in both the Canadian market and globally, is expected to be on the rise over the next few years. In its 2016 Report, FinTech: Prepare for a Wave of M&A, UK-based investment bank FirstCapital, predicts that fintech M&A deal flow will increase “as financial incumbents look to catch up with widespread innovation from new entrants, the internet majors scale up in financial services and the technology/software majors add new technology to deepen their offerings in this sector”.

Like with the acquisition or sale of any technology company, strategic due diligence is a critical component of the … Continue Reading

Beyond Boxes: Books and Records in the (not so) New Digital Age

Posted in Contractual Matters, Private Equity, Private Transactions, Public M&A, Strategy

The recent attention surrounding cyber security is a reminder of how a company’s records are no longer stored in boxes filled with paper files. Although the (not so) new age of electronic data storage has resulted in new ways of doing business that were never before possible, it has also resulted in a host of complexities when considering how, and in some cases what, electronic records will be handed over to the buyer of a business in an M&A transaction. These complexities are compounded when a buyer is only purchasing a portion of a business, the rest of which will … Continue Reading

Good Faith, Honest Performance and M&A: Top 5 Takeaways Stemming from Bhasin v. Hrynew

Exploring the impact on Canadian mergers and acquisitions of the Supreme Court of Canada’s recent recognition of a new common law duty of honest performance

Posted in Contractual Matters, Private Transactions, Public M&A, Strategy

There’s been a lot of buzz surrounding the Supreme Court of Canada’s recent precedent-setting judgement, Bhasin v. Hrynew, 2014 SCC 71, in which the Court recognized, for the first time, a new common law duty that applies to the performance of contracts throughout Canada. The new common law duty is a duty of honest performance, and is a manifestation of the general organizing principle of good faith. The implication is that parties must perform their contractual duties honestly and reasonably, and that they must have appropriate regard to the legitimate contractual interests of the other parties to the contract. … Continue Reading

Proposed Changes to Takeover Bid Regime in Canada Would Put More Time in the Hands of Target Boards

Posted in Public M&A, Shareholders, Strategy

On September 11, 2014, the Canadian Securities Administrators (CSA) published CSA Notice 62-306 – Update on Proposed National Instrument 62-105 Security Holder Rights Plans (Notice) and the Autorité des marchés financiers (AMF) Consultation Paper An Alternative Approach to Securities Regulators’ Intervention in Defensive Tactics. The notice indicates that the CSA intend to publish for comment a new harmonized proposal based on amendments to the takeover bid regime which will aim to facilitate the ability of shareholders to make voluntary, informed and coordinated tender decisions and provide target boards with additional time to respond to hostile bids, with the objective … Continue Reading

Dealmaking in the Beauty and Personal Care Space

Highlights from the Recent Mergermarket Report, Buying Into Beauty

Posted in Contractual Matters, Private Equity, Private Transactions, Public M&A

Check out our new post published on our Retail Consumer and Advisor Blog on Buying Into Beauty, the recent Mergermarket report prepared in association with Michel Dyens & Co. In addition to highlighting some of what we think are the key themes coming out of that report for the retail and consumer products audience in particular, our post also summarizes some of what we think are the key takeaways on M&A activity in the beauty and personal care industry more generally.

Of course there is plenty more exciting news on M&A activity in this space, which you can read about … Continue Reading

Should a Seller Care About Due Diligence?

Yes. And here are a few MORE reasons why.

Posted in Contractual Matters, Private Equity, Private Transactions, Public M&A, Strategy

In our recent post we considered, to what extent, the seller in the context of an M&A transaction should care about legal due diligence, and suggested that there are a number of important reasons why a seller should concern itself with legal due diligence in the face of an acquisition.

In addition to our thoughts on the utility of seller due diligence for the purpose of uncovering potential barriers to the sale of the target business, the seller will also want to ensure that it can actually make the representations and warranties that it has been asked to make in … Continue Reading

Should a Seller Care About Due Diligence?

Yes. And here’s a few reasons why.

Posted in Contractual Matters, Private Equity, Private Transactions, Public M&A, Strategy

Legal due diligence is typically a key part of an acquisition, but historically the focus has been on diligence from the perspective of the buyer, and less frequently from the perspective of the seller. Of course, this is natural given it’s the buyer who will want to uncover everything it can about the business it plans to acquire before a definitive agreement is entered into. But does this mean that sellers shouldn’t also care about legal due diligence?

There are a number of important reasons why a seller should concern itself with legal due diligence in the face of a … Continue Reading

Welcome to the McCarthy Tétrault Blog Family!

Posted in Uncategorized

On behalf of the M&A Blog team, I am pleased to announce that our bloggers are at it again…

Welcome to the Retail & Consumer Advisor, which is the newest addition to the suite of blogs offered by McCarthy Tétrault. This newest blog, launched by our Consumer Products & Retail Group, examines a variety of topics, including industry trends, product issues, best practices and the full range of legal developments that affect this dynamic sector.

And if that wasn’t enough, just last week our Securities Regulation & Investment Products Group launched the Canadian Securities Regulatory Monitor, which monitors … Continue Reading

Doing Business in Canada – 2013 Edition

Buying a Canadian Business, eh? A look back.

Posted in Contractual Matters, Private Equity, Private Transactions, Public M&A, Shareholders, Strategy


Last Spring we announced a special series of blog posts aimed at addressing some of the most significant distinctions between Canadian and US law that ought to be considered in the early stages of the proposed acquisition of a Canadian target.


Following the launch of that series our team blogged about important topics like:

Continue Reading

You Say UCC, We Say PPSA.

A discussion of the Canadian equivalent of the UCC - the Personal Property Security Act in the context of an M&A transaction.

Posted in Contractual Matters, Private Equity, Private Transactions, Public M&A, Strategy

Although we often think of the regimes that govern registrations made against personal property as a concern to lenders and their counsel, M&A lawyers and business people are unable to escape this area of the law… at least not completely. As part of the legal due diligence process in almost any M&A deal, registrations against the target’s assets will be uncovered. As such, the target and its counsel will want to ensure that any disclosure surrounding these registrations lines up with the representations made in the purchase agreement, and the buyer and its counsel will want comfort surrounding the scope … Continue Reading

Plan of Arrangement – A Flexible “Made-in-Canada” Acquisition Structure

Posted in Public M&A, Shareholders, Strategy

Our colleague Matthew Cumming recently discussed some of the most important considerations when choosing between a take-over bid and a plan of arrangement for the acquisition of a Canadian public company. But if you’re like many of our other friends to the South, perhaps you’re wondering, what exactly is a plan of arrangement?

The answer is pretty simple actually. A plan of arrangement is a feature in most Canadian corporate statutes that essentially lets a company carry out a transaction using a process designed by the company, as opposed to following the rather strict rules laid down for an … Continue Reading

Buying a Canadian Business, eh? An Introduction to a Special Series

Posted in Private Transactions, Public M&A

We’re often called upon to provide Canadian legal advice to US-based purchasers contemplating the acquisition of a Canadian business. In many transactions, we act directly for the purchaser; in others we’re asked to provide Canadian support to the acquirer’s US legal counsel. There are many similarities between Canadian and US law but if we had a toonie* for each of the important distinctions, we might have enough to buy a Tim Hortons franchise.

Whether you’re a US purchaser or US legal counsel, there are many differences between the two legal regimes that you’ll want to know before delving into … Continue Reading