Header graphic for print

Canadian M&A Law

Thursday, March 23, 2017 | Ideas and resources on the law of mergers & acquisitions

Category Archives: Negotiated Transactions

Subscribe to Negotiated Transactions RSS Feed

The Rise of Limited Conditionality Commitment Letters in Canada

Posted in Agreements / Drafting Issues, Negotiated Transactions

Limited conditionality commitment letters, a relatively new phenomenon in Canada, were developed in the United States, where sellers have typically resisted the inclusion of financing conditions in acquisition agreements. As a workaround, U.S. buyers convinced their lenders to grant financing …

Earnout Trends: Balancing Buyer and Seller Interests in “Post-Closing Conduct of the Business” Covenants

Posted in Agreements / Drafting Issues, Marketplace Trends, Negotiated Transactions, Private Equity

This is the first in a series of posts dealing with issues and trends in earnouts. In this initial installment, Warren Silversmith and Tania Djerrahian provide a general overview of the purposes and features of a typical earnout agreement, followed

Ontario Court Provides Guidance on Fairness Opinions when Seeking Court Approval for Plans of Arrangement

Posted in Agreements / Drafting Issues, Cross-Border M&A, Marketplace Trends, Negotiated Transactions

The Ontario Superior Court of Justice released a decision on March 28, 2014 that provides practical insight for corporate lawyers and investment bankers in regards to the court process for plans of arrangement and the content of fairness opinions.

Justice …

Representation and Warranty Insurance in Canada: A Tactical Alternative?

Posted in Controlled Auctions, Marketplace Trends, Negotiated Transactions, Private Equity

While representation and warranty insurance (RWI) has been available in the Canadian and U.S. insurance marketplaces since the 1990s, it has only more recently gained traction as a risk-allocation tool in negotiated M&A transactions.[1] Together with other related insurance …

Drafting an Oil and Gas M&A Confidentiality Agreement: Survey of Market Terms and Checklists

Posted in Agreements / Drafting Issues, Marketplace Trends, Negotiated Transactions

Confidentiality agreements are typically employed to protect the disclosures made by target companies to potential buyers and to require buyers to deal with the target before making a bid. As case law has demonstrated, it is essential to both …

Developments in U.S. M&A Practice: Canadian Perspectives

Posted in Agreements / Drafting Issues, Cross-Border M&A, Marketplace Trends, Negotiated Transactions, Private Equity, Securities Law, Take-Over Bids / Tender Offers

This article discusses how developments in U.S. market practice are affecting Canadian M&A from the perspectives of both negotiated transactions and public M&A deals. Richard Clark and Sean Vanderpol of Stikeman Elliott’s Toronto office share insights based on their recent …

Canadian M&A in 2013

Posted in Competition / Foreign Investment, Controlled Auctions, Cross-Border M&A, Defensive Tactics, Employment and Pension Issues, Marketplace Trends, Negotiated Transactions, Private Equity, Securities Law, Shareholder Rights, Take-Over Bids / Tender Offers, Tax Issues

In the first of a two-part series looking at the state of M&A law in Canada, members of Stikeman Elliott’s national M&A group discuss 2013’s top issues and trends from a variety of perspectives. Part One begins with an overview …

Controlled Auctions in Canada: Tactics and Legal Strategy

Posted in Competition / Foreign Investment, Controlled Auctions, Cross-Border M&A, Directors’ Duties and Liabilities, Marketplace Trends, Negotiated Transactions, Private Equity, Proxy Fights

Despite the uncertainty and volatility continuing to affect both the global economy and North American capital markets, controlled auction transactions in the Canadian marketplace remain remarkably active, especially in the mid-market. Before venturing into these tempting waters, sellers and buyers …

Earn-out providing for return of assets if targets not met, rather than expressly requiring purchaser “effort”, will not be rewritten just because the weak economy and other factors have made an asset return unpalatable to the seller

Posted in Agreements / Drafting Issues, Negotiated Transactions

Airborne Health, Inc. v. Squid Soap, LP, C.A. No. 4410 VCL
Delaware Court of Chancery | Vice Chancellor Laster | November 23, 2009

This ruling by Vice Chancellor Laster of the Delaware Court of Chancery reminds us that in a …

“Forthright negotiator” rule applied by Delaware court where one side’s declared interpretation of ambiguous merger agreement was not objected to by the other side during their negotiations

Posted in Agreements / Drafting Issues, Negotiated Transactions

Private equity player cannot be forced into specific performance of a merger transaction where its repeatedly declared understanding that its potential liability was limited to paying the reverse break fee had not been challenged during negotiations by target’s counsel

United …