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Five Key M&A Cases from 2017 to consider this proxy season

Posted in Private Equity, Private Transactions, Public M&A, Shareholders, Strategy

Heading into the 2018 proxy season, we have summarized five Canadian M&A cases from 2017 and their potential impact. This article should be read together with our recent post summarizing some of 2017’s most noteworthy developments in governance and disclosure requirements and guidelines.

#1. Residual uncertainty remains on the standard applicable to fairness opinions in plans of arrangement

On February 22, 2017, the Yukon Supreme Court (“YKSC”) approved an amended plan of arrangement for InterOil Corporation (“InterOil”) to be acquired by Exxon Mobil Corporation (“Exxon”) (“InterOil #2”).[1] The YKSC decision leaves residual uncertainty that has persisted since … Continue Reading

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

Posted in Canadian Market Entry, Public M&A, Shareholders, Strategy

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”).


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 … Continue Reading


Lessons from the SEC’s recent “ring fencing” settlement with Revlon

Posted in Private Equity, Private Transactions, Public M&A, Shareholders

The recent settlement in the United States between the Securities and Exchange Commission (SEC) and Revlon highlights the importance of not appearing to obstruct the flow of material information to shareholders.

The SEC settled charges that Revlon misled shareholders during a going private transaction. The SEC’s order found that to avoid a potential disclosure obligation, Revlon engaged in “ring fencing” to avoid knowing that the transaction’s consideration had been deemed inadequate by a third party’s financial advisor.… Continue Reading

Materiality in Securities Legislation: Four Points from the Supreme Court of Canada

Posted in Public M&A

One of the issues in securities law generally is what constitutes “materiality”. In a later post we will discuss “material adverse change” clauses in M&A agreements, but this post is about the fundamental question of what is “material”. A recent case of the Supreme Court of Canada, Sharbern Holding Inc. v. Vancouver Airport Centre Ltd. provides some guidance. In Sharbern, the Supreme Court looked at the test of what constitutes a “material false statement.” While the Court was looking at a real estate related statute, the principles are similar under securities laws. Sharbern imposes burdens on plaintiffs and issuers … Continue Reading