Resolute’ s battle for ownership of 100% of Fibrek Inc. recently came to an end with a friendly “white knight” offer from Mercer being withdrawn after a lengthy court battle. Resolute’s hostile bid for Fibrek was successful, notwithstanding that Fibrek’s board had endorsed Mercer’s offer at a 40% premium to the hostile bid. The Fibrek saga causes us to ask whatCanadian regulators are trying to achieve with the regulation of defensive tactics, and where they may go next.
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 M&A deal with a prospective buyer (almost always in order to accept a higher offer from another suitor). Such fees can promote deal certainty for a buyer by attaching adverse monetary consequences to a target terminating the deal.
Reverse break fees (as opposed to … Continue Reading
The recent saga of Fibrek Inc. has been of great interest to those in the M&A community. Many hoped that it would lead to the Supreme Court of Canada giving its view of defensive tactics and strengthen the hand of boards of directors seeking ways to maximize shareholder value in the face of an unsolicited offer. This would have been very timely as regulators have recently been considering the future of certain defensive tactics (for more on this, please see one of our earlier posts: here). Despite the SCC dismissing Fibrek’s application for leave to appeal, the regulatory and … Continue Reading
Some interesting trends emerged from a study of select US M&A deals in 2011 that may be predictors of what’s to come in 2012. A synopsis of a study conducted by Practical Law Company was provided in a webinar in late January, entitled A Year in Review: Public M&A Trends and Highlights from 2011.
According to the study, deal volume was significantly lower in the second half of last year and on pace with 2010 levels in the first half of last year, with 48 and 49 acquisition transactions in the first and second quarters, respectively. The second … Continue Reading
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 a contemplated transaction triggers two thresholds: the “size of transaction threshold” and the “size of parties threshold”.
Where a transaction involves the combination of multiple entities, the “size of transaction threshold” is measured based on the aggregation of either the value of … Continue Reading
Despite continuing economic uncertainty in 2011, the pace of Canadian M&A activity in the United States so far this year has reached historic levels, according to a recent study published by PricewaterhouseCoopers (PwC).
Year to date (up to November 14, 2011), Canadian entities were involved in 385 acquisitions of US firms, representing a total transaction value of US$22 billion and a record pace for transaction volume. US M&A activity accounted for 40 per cent of all cross-border deals by value for Canadian firms, making the United States the most favoured foreign investment jurisdiction (the next closest was Australia, with only … Continue Reading
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 the common law have shed some light on this issue and provide useful guidance on how best to manage sensitive communications within a deal team.
Solicitor-client privilege exists as a common law exception to the evidentiary rules that compel disclosure during a litigation … Continue Reading
In my previous post, I outlined some of the features of a Global Depositary Receipts (GDRs) program that was utilized by HRT Participações S.A. (HRT), a Brazilian-based and listed exploration and production company, in its acquisition of UNX Energy Corp., a Calgary-based TSXV listed exploration and production company with oil and gas assets located in offshore Namibia. GDRs can be a mechanism to overcome a number of issues that may be encountered in structuring an international public M&A deal. In this post, I will outline some of the potential pitfalls in implementing a GDR structure.
Depositary receipts, which are a type of security that is traded on a stock exchange but which represent an interest in an underlying security that is issued by a publicly traded company in another jurisdiction, have been around since the 1920s in the form of American Depositary Receipts (ADRs), and more recently, in the form of Global Depositary Receipts (GDRs). GDRs are a means for companies to raise their profile with foreign investors, make their shares more easily available to foreign investors and raise new capital outside of a domestic market. Many companies have ADRs listed on the New York … Continue Reading
Prime Restaurants Inc., owner and operator of a network of casual dining restaurants and pubs (including one of my wife’s faves, East Side Mario’s!), announced this week that it had entered into an agreement to be acquired by Cara Operations Limited by way of a plan of arrangement under the Business Corporations Act (Ontario). One of the more interesting aspects of this deal is the fact that the parties agreed that Cara’s obligations to acquire Prime would be conditional on Cara completing an offering of securities or other financing transaction to finance the acquisition. The acquisition agreement also contains a … Continue Reading
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 shareholder rights plan must go. The key factors considered by the OSC in arriving at its decision to allow the rights plan to stick around for another couple of weeks (not as long as MOSAID had wanted) included:
- MOSAID was continuing to run an auction
A poison pill, or shareholder rights plan, is a device implemented by a company’s board of directors in order to deter unsolicited or hostile acquisition proposals. The rights plan originated in the United States and was introduced in Canada in 1988 when Inco adopted its first rights plan. The introduction of poison pills in both countries was met with questions as to their legality. In the divergent approaches through which these questions were resolved in Canada and the United States (in particular Delaware), the rights plan and its effectiveness as a take-over defence have followed divergent paths.
In Delaware, the … Continue Reading
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 the details.
For anyone who has spent a significant amount of time negotiating M&A transactions, there’s a pretty common question that inevitably comes up. What’s market? At some point during the negotiations someone – a client, opposing counsel, an investment banker or some other party … Continue Reading