Topic: Corporate finance

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Weak loonie, no problem for Canadian institutional investors

2015 was not the kindest to the Canadian dollar as it saw its value depreciate by 15% when compared with the U.S. dollar. Despite the weakening Canadian dollar, Canadian companies remained undeterred in their pursuit of foreign acquisitions. According to a recent Bloomberg study, in 2015, Canadian companies acquired $205 billion worth of assets, almost triple the prior year’s amount and almost double the previous peak of $112 billion in 2007.

Canadian institutional investors have been the primary driver of this activity. As a result of volatile market conditions and slow domestic growth, Canadian pension funds have sought to … Continue Reading

Human capital considerations in M&A transactions

In any M&A transaction, there are a variety of risks that are associated with human capital. Mercer has recently released a report, People Risks in M&A Transactions (the Report), based on a survey of M&A professionals. It provides an analysis of approximately 450 M&A transactions, and interviews corporate and private equity clients, investment bankers, and M&A advisors. The Report identifies a number of human capital risks that are of concern to those in the M&A sphere.

The top five issues relating to human capital identified by participants surveyed were:

  1. Employee retention: Retaining employees after a deal has taken
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New trend in distressed asset sales? “Pre-pack” sales under the CCAA

Over the past year, we have seen the Companies’ Creditors Arrangement Act (the CCAA) used in a novel way to execute prearranged sale transactions of distressed companies’ assets, potentially indicating a new manner in which companies and their advisors are using the CCAA.

In the typical asset sale under the CCAA, the applicant company obtains an order from the presiding court approving a competitive sale or auction process for the assets in question (be they all or only part of the assets of the company). The sale process is run by the court-appointed monitor (normally the restructuring specialists at … Continue Reading

Maximizing shareholder value through process: Canada’s new take-over bid rules

On February 25, 2016, the Canadian Securities Administrators (CSA), which is the association of provincial and territorial securities regulators, published its final amendments to the take-over bid system, which harmonize the rules across all jurisdictions in Canada. The changes, as reflected in National Instrument 62-104 Take-Over Bids and Issuer Bids and National Policy 62-203 Take-Over Bids and Issuer Bids largely reflect the proposed amendments made on March 31, 2015. There are, however, some notable changes designed to facilitate the review process of boards of directors, which are required to maximize shareholder value as part of their fiduciary obligations in the … Continue Reading

Dealmaking in a negative interest rate environment

buildings_680x220The term “negative interest rates” was introduced into the Canadian vocabulary on December 8, 2015, when the Bank of Canada announced that it would be willing to use this “unconventional monetary policy tool” in the event of economic crisis. With the current benchmark interest rate of 0.5% already near historic lows, this announcement suggests that it has the potential to drop much lower – even below zero. The Bank of Canada stated that the effective lower limit, or “lower bound”, is now set at negative 0.5%.

While the Bank of Canada stressed that there are no current plans to take … Continue Reading

An overview of global M&A activity: 2015 into 2016

2015 was an extraordinary year for global M&A activity. Mergermarket recorded almost 17,000 transactions worth a remarkable US$4.3tn. This topped the previous record set in 2014 by over 30%. The race for top performing sector this year was very close. Energy Mining & Utilities won with US$630bn in deal value; however, the top performers were only separated by US$150bn. The other four sectors in order are: Pharma, Medical and Biotech, Consumer, Financial Services and Industrial Chemicals.

North America

Once again North American markets lead the way with almost 1/3 of global deals and nearly 50% of global deal value. The … Continue Reading

Where to register under the PPSA’s new debtor location rules

Changes to Ontario’s Personal Property Security Act (the PPSA) may have an effect on M&A transactions that involve certain security interests. This two-part post will explore how the PPSA’s changes affect security agreements entered into both before and after December 31, 2015.

Background

On December 31, 2015 new rules came into force (the New Rules) that determine a debtor’s location for the purposes of choosing the jurisdiction in which to register a security agreement. As these amendments to the PPSA were first proposed in 2006, they come as no surprise to practitioners but secured parties should be aware … Continue Reading

Year in review: deal drivers in the Americas in 2015

Mergermarket recently released its 2015 full-year edition of Deal Drivers Americas (the Review). This comprehensive review of M&A activity in the Americas confirmed that 2015 was a year of mega-deals. Transactions involving giants such as Pfizer, Time Warner Cable, and Kraft contributed to an increase of 30% in M&A value, reaching a total of US$4.28 trillion across North America. In the US alone, deal value rose 40% since 2014, hitting a record high of almost US$2 trillion.

The Review evaluated by sector and by region. Some of the sector highlights include:

  • Technology, media and telecom: Technology, media and telecom
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2016 outlook for spinoff, carve out and asset sale activities

Of the many ways a corporation can divest its assets or shares to create value, asset sales, equity carve outs and spinoffs are some of the most common methods. In an asset sale, a business sells its assets in exchange for cash proceeds or other forms of consideration. An equity carve out is where a company separates out assets into a separate company (usually a subsidiary) and issues a minority interest in the subsidiary to the market through an IPO. A spinoff transaction is where assets are spun off into a new independent business and existing shareholders receive shares of … Continue Reading

Loonie tunes: will the low dollar attract foreign investors?

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It is no secret that the Canadian dollar has been singing the blues of late. With the loonie declining more than 30% in the exchange rate against the United States (US) dollar, shopping trips and vacations to our friendly neighbour to the south are likely to become less frequent over the next little while. The Canadian M&A market, however, may stand to benefit from the lopsided exchange rate and it has left investors wondering whether Canadian targets can expect a line-up of interested foreign buyers.

A recent Financial Post article by John Shmuel, “Low loonie luring foreign buyers, … Continue Reading

Avoiding tax traps: don’t forget about non-competition agreements

Non-competition agreements can be a valuable tool for purchasers who want to protect their investments in new businesses. However, non-competition agreements can have unintended and unexpected tax consequences, particularly to sellers who grant non-competition agreements to purchasers.

The Income Tax Act (Canada) (the Act) contains specific provisions regarding the taxation of “restrictive covenants”, a broadly defined term that includes, among other things, non-competition agreements, regardless of whether such agreements are legally enforceable.

Under section 56.4 of the Act, the portion of the purchase price allocated to the granting of a restrictive covenant (whether by the parties or as a … Continue Reading

Equity crowdfunding has arrived in Ontario

Crowdfunding has officially been launched in Ontario as of January 28, 2016, enabling Canadian businesses to raise capital at a low cost by reaching out to a large number of investors over the Internet. The new regime, available in Ontario, Québec, Manitoba, New Brunswick and Nova Scotia, is particularly attractive to start-ups and small and medium-sized enterprises in their early stages of development seeking access to sources of capital not otherwise available in the prospectus exempt market.  Up to $ 1.5 million in annual total proceeds can be raised under the new exemption.

Although crowdfunding has been available in British … Continue Reading

M&A in China amid economic uncertainty

To the casual observer, the economic outlook in the Asia Pacific region, and China in particular, has been rosy for a long time, with international attention focused on fast-paced economic growth and emerging wealth in the region. However, the beginning of 2016 has proven to be difficult for Chinese government officials as they contend with tumultuous stock markets and newly released 2015 economic figures. As far as the outlook on M&A is concerned, Chinese companies’ overseas mergers and acquisitions were strong in 2015 and are expected to continue growing while spending on foreign M&A into China was down significantly in … Continue Reading

New Year’s resolution: buying & selling smart

2015 was a huge year for global M&A with deal activity reaching $4.2 trillion by the middle of December.  If 2016 continues at the same pace, be prepared for a big year of M&A activity. In order to be well equipped for the upcoming year, ask yourself the following two questions when contemplating an M&A transaction.

Where are the key market opportunities?

According to the publication released by Raconteur entitled M&A Outlook 2016, on a global scale, five sectors are “blazing a trail”: financial services, telecommunications, pharmaceuticals, computer manufacturing, and oil and gas.

  • Financial Services – Consolidation is the
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Case update on the common law duty to act honestly

In 2014, the Supreme Court of Canada delivered a seminal decision, Bhasin v Hrynew (Bhasin), on common law duties of contractual performance. Earlier discussions on the case can be found here and here. In the Bhasin decision, the Court established a general obligation of good faith in the performance of contracts, and a duty of “honest performance”, which applies to all contracts and requires parties to act honestly with one another in relation to the performance of their contractual obligations.

In a more recent case, Lavrijsen Campgrounds Ltd. v Reville (Lavrijsen), the Ontario Superior Court … Continue Reading

A global overview of December 2015 M&A activity

According to Mergermarket’s December insider, November 2015 was a record setting month for M&A activity. By the end of the month, global M&A value reached US$3.9tn which surpassed the 2007 full year record by almost 6%. This record came on a drop in volume by 1,228 transactions which further cements 2015 as the year of the mega deal. The top sector was Pharma, Medical & Biotech (PMB) with 84 transactions representing US$201.3bn. The driver behind this sector was the record breaking US$183.7bn Pfizer Inc.’s bid for Allergan PLC. This represented over 90% of PMB’s total deal … Continue Reading

Content management in M&A

MergerMarket recently published a study on content management throughout the M&A process (the Report), interviewing several business executives who shared their thoughts on the key role of content management in the timing and closing of M&A transactions. The Report highlights the biggest challenges in managing M&A transactions, as well as risks associated with improper content management:

  1. Diligence – In managing content, users must grow accustomed to the security and access controls available via virtual data rooms (VDR). The need for security is especially pertinent in the context of a merger of a publicly-listed company, where risks related
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When committing to a third party, make sure your bank is committed to you

A recent article in The Secured Lender magazine titled “Avoiding Lender Liability Claims: When Words and Actions Matter” canvassed lender liability claims and the steps lenders should take to avoid being held liable in certain circumstances to a borrower, guarantor or third party. Many of the suggestions are similarly relevant to borrowers (as purchasers in an M&A transaction or otherwise) to ensure they are following best practices.

A liability claim often arises where a borrower believes a lender failed to honour an agreement to lend under a commitment letter or an oral commitment to extend credit. This can be particularly … Continue Reading

Global M&A appetite: executives continue to be hungry

Executives around the world have a strong appetite to pursue acquisitions, the highest in six years, according to Ernst & Young’s Global Capital Confidence Barometer (the Report), released at the end of October. The bi-annual Report details how despite market volatility, companies have confidence in deal-making and are pursuing growth opportunities and acquisitions at increasingly high rates. Companies are not only pursuing acquisitions in their own sector, but looking outside their traditional sectors and across borders. The Report highlights how executives are focused on “sustainable” growth, to both safeguard against the cost-cutting measures required over the past decade, but … Continue Reading

Managing the psychological impact of M&A

MA_680x220Studies reveal that 50 to 70% of M&A transactions ultimately fail to realize expected synergies and, in fact, many actually dilute shareholder value. One of the causes of M&A failures is that companies often neglect to adequately consider the psychological impact of M&A on their employees.

Will I be laid off? Will I be moved to a different position? Will I get along with my new colleagues? Like downsizing and other types of organizational change, M&A creates considerable uncertainty and has widespread psychological effects on employees in every level. A paper by People & Culture identifies the following potential psychological … Continue Reading

Performance incentives for portfolio companies

Private equity investors (PEIs) when investing in new portfolio companies, seek to align management’s interests with that of the PEI to grow the value of the portfolio company and achieve a profitable return in the investment upon exit.

Typically, PEIs incentivize management to adopt such interests through compensation arrangements in  the form of performance incentives. Generally, PEIs will grant management an interest in the growth in value of the company via an interest in the equity of the company (e.g., stock options or performance shares) or in the profit/proceeds of the company, the latter of which is … Continue Reading

Cyber security: what the hack?

In a previous blog post, we discussed how to manage cyber security risks during the negotiation and due diligence stages of an M&A transaction. In this post we discuss cyber security insurance as a tool for managing this unwelcome risk.

The cyber security risk

Although businesses have been ramping up their information security systems, the pace of cyber security breaches is not slowing down. One study estimates that cybercrime will cost businesses $2.1 trillion globally by 2019. And, as recent security breaches have taught us, a security breach can have reputational, moral, and deeply political complications. The 2014 hack … Continue Reading

The role of the strategic board in value creation

It is not in dispute that the role of the board of directors is to provide oversight of management and advise on the strategic direction of the corporation. However, the delineation of roles and responsibilities between management and directors in setting corporate strategy can often become blurred.

In collaboration with The Boston Consulting Group and RBC Capital Markets, we have released a paper offering a fresh perspective on an enhanced role for the board of directors in value creation and setting corporate strategy. We recommend that board members should engage regularly with management to critically examine value creation alternatives with … Continue Reading

2015: the year of the mega-deal

Last week’s announcement of a proposed transaction in the food and beverage industry for a staggering US $107 billion does not stand alone as a mega-deal in 2015, according to a recent Mergermarket report. The deal is part of what has been a record year for deal valuations. Through the first three quarters of this 2015, there have been a total of six deals worth more than US $50 billion. As a result of these mega-deals, deal value has totalled US $2.7 trillion, up 21% from the first three quarters of last year.

The report lists a number of … Continue Reading

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