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Author Archives / Tyler McAuley

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The Rising Trend of Reverse Break Fees

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

Break fees have for many years been a conventional deal protection feature of public M&A transactions. These fees, often referred to as termination fees as they are tied to the termination provisions in the contract containing the deal terms, are typically payable by a target company where it elects to end an agreement for an… → Read More

Under the Hood: Guidelines for Drafting Material Adverse Change Clauses

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

There are a number of ways in which a MAC clause can be drafted. Typically, these provisions begin with a broad definition of the type of event that will constitute a “material adverse change” on the business or assets being acquired. This is often followed by a list of explicit “carve-outs” which designate the events… → Read More

MAC Primer: An Overview to the Material Adverse Change Clause

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

In most acquisitions, the distance between signing and closing is measured in weeks, if not months. During this interim period the buyer’s ability to safeguard or control the target’s business is limited. This is an uncomfortable position that can be exacerbated if the transaction is consummated between strategic competitors or in a market with substantial… → Read More

MAC-Ademy: An Introduction to the Material Adverse Change Clause

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

Recently, a curious team of our M&A bloggers presented an internal roundtable discussion aimed at understanding some of the key issues regarding material adverse change (otherwise known as “MAC”) clauses. Part of what came out of that discussion is a presentation that provides an introduction to the MAC clause and some analysis regarding current trends… → Read More

Cutting Through! Strategies to Address Recent Developments in the Regulatory Review Process

Posted in Private Transactions, Public M&A

In our last post we highlighted some of the important developments in the regulatory rules regarding foreign direct investment and the Competition Bureau’s merger review process. In consideration of these changes, we’ve put together some of the important strategies to keep in mind when conducting a transaction that will fall under these, or any other… → Read More

Competition Bureau Increases the “Transaction-Size Threshold” for Pre-Merger Notification

Posted in Private Transactions, Public M&A

Last week we discussed the new merger review guidelines released by the Competition Bureau of Canada. On Tuesday, February 7, 2012 the Bureau announced  additional changes to one of the key thresholds that trigger pre-merger notification and the review process discussed in our earlier post. In Canada, parties are required to notify the Commissioner of Competition where… → Read More

Competition Bureau Releases New Merger Review Guidelines

Posted in Private Transactions, Public M&A

Earlier this month, the Competition Bureau published new Guidelines for its review process under the federal Competition Act. These Guidelines describe the Bureau’s general approach to administering its review process. In general, where a proposed transaction surpasses the “party-size” and “transaction-size” thresholds parties are required to notify the Commissioner prior to completing the proposed transaction. Following… → Read More

New Thresholds for Foreign Direct Investment Review

Posted in Private Transactions, Public M&A

In recent weeks, Industry Canada has announced important developments that affect the regulatory review process for Canadian mergers and acquisitions. Below, we give a brief introduction to the foreign direct investment review process and highlight some of these important changes. Under the Investment Canada Act, Industry Canada is empowered to receive notice and often conduct… → Read More

Stretching the Umbrella: 5 Tips for Preserving Privilege in a Complex Transaction

Posted in Strategy

Good communication within a deal team can be the linchpin of a successful transaction. Equally important, however, is the need to preserve privilege and ensure that sensitive information is insulated from any subsequent litigation. Balancing these two demands in a complex and fast moving transaction can be cumbersome, complicated and fraught with risk. Fortunately, recent developments in… → Read More