Earn-outs and reverse earn-outs

In May, we wrote about the increased focus on earn-out provisions during the pandemic as a method to mitigate the risk of a target’s post-closing under-performance and to bridge any valuation gap between the purchaser and seller. More recently, we discussed post-closing balance sheet adjustments as a separate tool to address the same risk. In this article, we will focus on (i) reverse earn-out provisions and (ii) a review of the use of earn-outs in 2020 M&A deals.

Earn-out vs. Reverse Earn-out

As described in more detail in our May post, a ‘classic earn-out’ refers to a post-closing increase … Continue Reading

Lower 2021 thresholds announced for merger reviews under Competition Act and Investment Canada Act

The threshold for certain pre-closing net benefit reviews under the Investment Canada Act (ICA) and the threshold for a pre-closing merger notification under the Competition Act have now both been released for 2021. Thresholds under both statutes decreased slightly, meaning more transactions may be reviewable or notifiable, respectively, than in 2020.

Competition Act

Canada uses a two-part test for determining whether a pre-merger notification is necessary. The two-part test is based on the size of the parties and the size of the transaction. The transaction size component can be adjusted annually for inflation. Under the size of the parties test, … Continue Reading

“To the Moon”: The Rise of the Retail Investor and What this Means for Dealmakers

Retail investors are becoming an increasingly significant source of capital on public markets, and dealmakers should be aware of how this development can impact M&A transactions and the decision to go public. After the latest garnering of widespread attention in the news, the retail investment community has been estimated to constitute as much as 25% of total stock market activity. This increase can be at least partly attributed to the development of 0% commission trading mobile applications as well as the extra time retail investors have to develop their own personal trading strategies due to COVID-19 social restrictions. Not … Continue Reading

A Slow Burn: The Cannabis Sector May be Ready for Market Consolidation

The first half of 2020 saw a significant decline in M&A activity as capital markets were impacted by the COVID-19 pandemic, but the second half of the year saw a surge in M&A activity that is expected to continue into 2021. One industry that may be particularly well primed for M&A activity in 2021 is the cannabis industry, where market consolidation is already underway.

Predictions of market consolidation in the cannabis industry are hardly novel. Even prior to the legalization of cannabis in Canada, research by Ernst & Young indicated that industry executives believed that consolidation was inevitable and would … Continue Reading

Corporate Divorce: An Analysis of Divestments and Lessons to Carry Forward

In the midst of these unprecedented times, many companies are looking to mergers and acquisitions to realize new growth opportunities and diversify; however, before heading down this road, one question needs to be asked: is it a marriage built to last or is it doomed from the start? A recent paper, which examined 1,365 M&A deals occurring between 1983 and 2010, found that 46% eventually resulted in divestment or “divorce”. Moreover, 77% of these corporate divorces stemmed from M&A failures. The authors identify post-acquisition industry shocks and cultural dissimilarities as the primary causes behind corporate divorce, but suggest that … Continue Reading

MAC/MAE Clauses in the Context of COVID-19

A recent Ontario decision of Fairstone Financial Holdings Inc. v. Duo Bank of Canada (“Fairstone”) became the first Canadian case to consider material adverse change (“MAC”) or material adverse effect (“MAE”) clauses in the context of COVID-19.  In Fairstone, Duo Bank of Canada sought to invoke the MAC/MAE clause to exit the transaction but the court did not allow it to do so.  This blog explains the reasoning of the court and takes a broad look at the law of MAC/MAE clauses within the context of COVID-19.

MAC/MAE Review

MAC/MAE is generally defined as … Continue Reading

Does board diversity lead to better M&A outcomes?

Board diversity has been at the forefront of the Canadian governance landscape for a number of years, and has recently been the subject of increased stakeholder focus. While gender and racial parity are ends in themselves, recent research shows that board diversity may be particularly beneficial in the M&A context.

The current state of affairs

Since 2014, Canadian securities regulators have required certain issuers to publish data on the representation of women on their boards and disclose the details of their gender diversity policies (or, if they do not have one, explain why not).

More recently, the federal government amended Continue Reading

Navigating through Uncertainty: The U.S. Election’s Effect on Canadian Markets

After a highly contested election that was observed all over the world, Joe Biden – the Democratic Party nominee –  was elected as the 46th President of the United States . Leading up to the election, North American markets continued to see weeks of stagnant trading as investors held back due to the prevailing uncertainty. However, markets recovered on the eve of the vote, with the S&P/TSX composite index closing up 116.23 points.

Historical Trends

In the past, the S&P/TSX has generated better returns one year after the election of a Democratic president (+12.3%) as compared to a Republican … Continue Reading

Goodwill Hunting: The Value, Protections and Role of Intangible Assets in M&A Transactions

We have previously discussed goodwill as a distinct asset in purchase agreements.  In this post, we explore the growing value of goodwill and other intangible assets in mergers and acquisitions (M&A) and the legal issues parties should consider when seeking to value, protect and exploit these assets.

Intangible assets are often the most significant portion of a target company’s value and goodwill alone can be a very significant portion of a target’s purchase price. For example, in Amazon’s acquisition of Whole Foods, approximately 70% of the purchase price was allocated to goodwill. Although goodwill and intangible assets each … Continue Reading

Digital Taxation – Novel Considerations in M&A Transactions

Digital taxes have become a subject of significant debate in recent years. Following allegations that tech giants have paid very little tax anywhere in the world, some countries have moved to impose new taxes on profits derived from digital services provided by multinational enterprises on a jurisdiction-specific basis. For instance, France recently adopted a digital services tax of 3% per annum applicable to the portion of revenue that digital companies derive in France. Similarly, as of April 1, 2020, the UK imposed a 2% per annum tax on the revenue of search engines, social media services and online marketplaces that … Continue Reading

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