Canadian M&A Perspectives

Private and Public Mergers & Acquisitions | Private Equity

Updated OECD Principles of Corporate Governance: Canada Continues to be Ahead of the Curve

Posted in Public M&A, Shareholders, Strategy
Ryan HornbyBlake Jones

The OECD’s updated G20/OECD Principles of Corporate Governance (the “Principles”) highlight that core corporate governance principles are well embedded in the Canadian framework and that many of the new governance initiatives outlined in the Principles are already being pursued in Canada.[1] The Principles, first published in 1999 and previously revised in 2004, provide a widely accepted international reference point used by policymakers in setting corporate governance standards across the globe.

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Harnessing Social Media for Crisis Management: Lessons following recent events involving short seller allegations

Posted in Canadian Market Entry, Public M&A, Shareholders, Strategy
Shane C. D'SouzaDeandra L. SchubertBlake JonesAndrea Kareclas

In October, 2015, short-sellers attacked three Canadian public companies: Valeant Pharmaceuticals International, Inc., DH Corporation and Nobilis Health Corp. All three companies refuted the short sellers’ allegations in traditional media. We suggest below that these companies could have also used social media to get their side of the story out. In our view, there was a potential opportunity to further influence market sentiment about allegations that had already negatively impacted secondary market trading.[1]

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The 2016 Proxy Season: Updates to the ISS Canadian Proxy Voting Guidelines

Posted in Shareholders, Strategy

The following post on the Canadian Securities Regulatory Monitor blog may be of interest to readers of this blog:  The 2016 Proxy Season: Updates to the ISS Canadian Proxy Voting Guidelines.

On November 20, 2015, Institutional Shareholder Services Inc. (“ISS”) released its updated Canadian proxy voting guidelines for meetings on or after February 1, 2016.1 The updates provide new or updated guidance with respect to voting for equity compensation plans, electing directors with too many board appointments and electing directors of externally managed issuers such as REITs.  Read More

 

Universal Proxies Coming to Canada? The CCGG Makes Its Case

Posted in Public M&A, Shareholders
Fraser BourneBlake Jones

In a recent policy statement, the Canadian Coalition for Good Governance (“CCGG”) endorsed the use of “universal proxies” whenever there is a contested director election at a Canadian public company. A “universal proxy” is a proxy voting form which lists all nominees for election regardless of who nominated them (whether management or dissident shareholder). Although there is nothing under corporate or securities laws which prohibits a company or a dissident from using a universal proxy,[1] it is common practice for Canadian issuers and dissident shareholders to solicit votes with the use of proxies which only list their own nominees. Continue Reading

Cybersecurity: More than a Byte-Sized Problem in M&A

Part Two: The Transaction Agreement

Posted in Contractual Matters, Private Transactions, Public M&A
Roland HungMatthew HarrisBeverly Ma

In a previous blog entry, we offered a brief review of cybersecurity issues that can arise in the course of M&A transactions and discussed the importance of cybersecurity due diligence by the buyer. This entry will focus on contractual provisions that the buyer can request in the definitive transaction agreement to hedge against any cybersecurity risks it assumes. In particular, this blog post will focus on purchase price adjustments, representations and warranties, and indemnities. Continue Reading

Harnessing Social Media: Syngenta’s high-profile use in Monsanto bid

Posted in Canadian Market Entry, Public M&A, Shareholders, Strategy
Shane C. D'SouzaDeandra L. SchubertBlake JonesBreanna Needham

In our two recent articles, available here and here, we outlined how social media can influence proxy contests and identified some potential legal challenges with this development. This update focuses on the recent use of social media in the high-profile (failed) hostile bid for Syngenta AG (“Syngenta”) by Monsanto Company (“Monsanto”).

Background

In May 2015, Monsanto made a $45 billion bid (its third bid in four years) for Syngenta. Syngenta’s board almost immediately rejected the offer on the grounds of anti-trust concerns and lack of protection for shareholders should the deal fall apart. The rejection did not end Monsanto’s pursuit and through a series of bids, the last of which was withdrawn in late August, Monsanto continued to seek support for its bid. Continue Reading

Cybersecurity: More than a Byte-Sized Problem in M&A

Part One: Due Diligence

Posted in Contractual Matters, Private Transactions, Public M&A
Roland HungBeverly Ma

In a previous blog entry, we canvassed Canadian privacy legislation and offered businesses a cursory review of the issues that arise in the due diligence phase of a business transaction. Expanding on that, this entry is the first in a series of three blog entries concerning specific cybersecurity considerations in the M&A context. This entry will focus on cybersecurity due diligence considerations, while the entries that follow will respectively discuss cybersecurity considerations in definitive transaction agreements and cybersecurity insurance. 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
Heidi Gordon

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 be maintained by the seller or sold to a different party.

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Canadian M&A Activity: Recent Insights & Trends – Part Two

Posted in Private Equity, Private Transactions
Matthew KelleherGenevieve PintoFleur Heck

In the first part of this blog post series, we looked at recent general trends in the Canadian M&A market overall, including a decline in overall transaction activity since 2009.

However, when looking at M&A activity in certain sectors or by deal value, we see slightly different trends emerging:

  • The steepest decline in activity has been concentrated at the lowest end of the market (value under $5M), where we have seen a 64% decline in the number of transactions since 2009 or an annualized decline of 18% per year.
  • At the high end of the market (value over $250M), overall transaction activity has seen strong growth, increasing by 47% since 2009 or an annualized growth of 8% per year.
  • Activity in the $10M to $100M level of the market has been resilient, with an overall decline in the number of transactions of only 7% since 2009 or an annualized decline of just 2% per year.

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Proxy Access In Canada: CCGG Proposals to Give Shareholders More Input Into the Director Nomination Process

Posted in Shareholders
Frederic CotnoirFraser BourneLaure Fouin

 

The Canadian Coalition for Good Governance (CCGG) recently published a policy encouraging issuers to take measures to enhance “proxy access”, meaning the ability of shareholders to have meaningful input into the director nomination process. The CCGG published this policy in the midst of a surge of voluntary adoption of proxy access by significant issuers in the United States. As of the date of this publication, we are not aware of any Canadian issuer that has adopted proxy access.

In Canada, a registered shareholder can always have a say in the director nomination process by nominating individuals from the floor of a shareholder meeting (being mindful to comply with any applicable advance notice requirements in the company’s by-laws). However, given that most votes are generally subject to management proxies submitted in advance of the meeting, a shareholder realistically seeking to have its nominees elected will have to undertake a proxy campaign in advance of the meeting (in the case of a solicitation of more than 15 shareholders, a dissident proxy circular will have to be prepared, filed publicly on SEDAR and delivered to shareholders whose proxy is solicited).

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