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

Category Archives: Contractual Matters

Subscribe to Contractual Matters RSS Feed

MAC Primer: An Overview to the Material Adverse Change Clause

By Tyler McAuley on 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

By Cristian Blidariu, Waleed Elgohary and Tyler McAuley on 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

Financing the Acquisition of a Canadian Business: Cross-Border Credit Transactions

By Ana Badour on Posted in Contractual Matters, Private Transactions, Public M&A

The acquisition of a Canadian business by US-based purchasers is often financed by way of a cross-border credit transaction involving a Canadian borrower (such as when the US purchaser sets up a Canadian company to make the acquisition, often for tax reasons), possibly also a US borrower (or as is common when a new Canadian… → Read More

Five Considerations for Borrowers Completing a Disposition

By Ana Badour on Posted in Contractual Matters

In my prior post, Seven Considerations for Borrowers Completing an Acquisition, I described seven key issues that borrowers should consider when completing an acquisition.   Similarly, if your company is considering a disposition (either of assets or of shares) and is a borrower under a credit facility, it is important to consider whether the proposed disposition… → Read More

Canadian Contractual Interpretation Law: A New Edition

By McCarthy Tétrault LLP on Posted in Contractual Matters

The second edition of Canadian Contractual Interpretation Law by Geoff Hall (one of our contributing bloggers) has just been published. The book is the only text focused on contractual interpretation under Canadian common law and the new edition includes commentary on contractual interpretation under Quebec civil law. As such, it is a helpful resource for… → 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

Earn-outs – Key Considerations in M&A Transactions

By Vanessa Grant on Posted in Contractual Matters, Private Transactions

This post was co-authored by Marek Lorenc, an articling student in our Calgary office. In recent years, and particularly since the financial crisis, earn-outs continue to find favour in private (and occasionally public) acquisitions as a means of bridging the valuation gap between purchasers and sellers. The drafting of earn-out clauses can be challenging, as… → Read More

M&A Deal Terms – What’s Market?

By W. Ian Palm on Posted in Contractual Matters

There’s an ever-growing list of reports and studies that collect, analyze and scrutinize various deal terms and other aspects of M&A transactions – or at least it feels that way. Like most committed M&A lawyers, we collect this stuff and I, for one, admit to spending a fair bit of time pouring over some of… → 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

Confidentiality Agreements – Part 1 – Some Initial Considerations

By W. Ian Palm on 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… → Read More