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You Can’t Always Get What You Want

Making realistic projections during an auction process

By Robert Hansen and Shane C. D'Souza on Posted in Private Equity, Private Transactions, Public M&A, Shareholders, Strategy

The recent Delaware ruling in In Ancestry.com Inc. Shareholder Litigation provides a cautionary tale relating to a target company developing aggressive projections during an auction process. The Relevant Facts Following the announcement of a going-private transaction, some shareholders of Ancestry.com filed suit in the Delaware Court of Chancery alleging, among other things, that the board… → Read More

Doing Business in Canada – 2013 Edition

Buying a Canadian Business, eh? A look back.

By Robert Hansen and Heidi Gordon on 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: Financing… → Read More

OfficeMax and Office Depot Merger of Equals – Who Will Sit Behind the CEO’s Desk?

A Difficult Governance Issue Deferred.

By Robert Hansen on Posted in Public M&A, Strategy

One of the more interesting governance issues in any merger of equals transaction is determining which Chief Executive Officer will take the helm of the combined company.  OfficeMax and Office Depot announced the signing of a definitive merger agreement on February 20, 2013 under which the two companies agreed to combine in an all-stock merger… → Read More

Working Capital in Public M&A – Is Varying Cash Consideration the Solution?

By Robert Hansen on Posted in Public M&A, Strategy

Dealing with a target company’s working capital in the context of a public M&A transaction is often a challenge because the buyer has no recourse against the target’s former shareholders after closing if working capital is not at an agreed-upon level.  It’s impracticable to implement a post-closing working capital adjustment mechanism where there’s no one… → Read More

Shareholder Rights Plans – A Priority for the OSC

By Robert Hansen on Posted in Public M&A, Shareholders

On June 28, 2012, the Ontario Securities Commission published OSC Notice 11-767 – Notice of Statement of Priorities for Financial Year to End March 31, 2013. Tucked in with the OSC’s goal to deliver strong investor protection, the OSC states that it will reconsider the current regulatory requirements governing shareholders’ rights plans to reflect recent… → Read More

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

By Robert Hansen and Heidi Gordon on 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… → Read More

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

By Robert Hansen and Heidi Gordon on 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… → Read More

The Implied Covenant of Good Faith and Fair Dealing: Delaware Rocks On

By Robert Hansen on Posted in Contractual Matters

Earlier this month, the Delaware Court of Chancery released its opinion in Winshall v. Viacom International, Inc. The Court dismissed a claim for breach of the implied covenant of good faith and fair dealing in a merger agreement. The sellers of Harmonix Music Systems, Inc., the creator of the music-oriented video games Rock Band and Guitar… → Read More

7 Tips For Hiring the Right Investment Banker

By Robert Hansen on Posted in Public M&A

So you are on the board of a public company that has decided to explore strategic alternatives, including a potential sale of the company. Or perhaps you are the CEO of a company who is looking at a significant strategic acquisition or divestiture of a business unit or division. You have a great team of lawyers at… → Read More

The Clash of the Rights Plan Cases (Redux)

By Robert Hansen on Posted in Public M&A, Shareholders

The Ontario Securities Commission issued an order this week in connection with a shareholder rights plan adopted by the board of directors of MOSAID Technologies Incorporated in response to a hostile bid made by Wi-LAN Inc. The OSC ordered that effective November 1, 2011 (i.e. 70 days after the commencement of Wi-LAN’s unsolicited offer), MOSAID’s… → Read More

Which M&A Representations Do I Really Need?

By Robert Hansen on 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… → Read More