Post-Closing Adjustments

Previously, we wrote about the use of earn-outs as a means by which buyers mitigate the risk of a target’s post-closing under-performance by holding back part of the purchase price and paying it out as the target meets certain financial targets.  In this post, we examine a related topic that is often confused with earn-outs … Continue reading

The Dynamic Duo: Cyber-security and Due Diligence during the COVID-19 Pandemic

The widespread impact of the COVID-19 pandemic (“pandemic”) continues to highlight the several ways in which M&A transactions have had to adapt to changing times, particularly by ramping up cyber-security measures in a digital world. Prior to the pandemic, there already existed a shift towards cyber-security due diligence since many businesses relied on digital assets. … Continue reading

Shareholder Loans: The Interplay of 80.4, 15(2) and 20(1)(j) of the Income Tax Act

Subject to certain exceptions, where a shareholder (other than a corporation resident in Canada) of a corporation is indebted to the corporation (a “Shareholder Loan”), the shareholder is deemed by subsection 80.4(2) to receive an interest benefit to the extent that the notional interest on the Shareholder Loan, calculated at the prescribed rate, exceeds the … Continue reading

What’s the Alternative?: The Rise of Alternative M&A Deals in a Post-COVID World

Mergers and acquisitions activity was already off to a slow start when 2020 began, but the COVID-19 pandemic (the “Pandemic”) initially resulted in a further decline in the volume of M&A activity. This was due in part to the economic and commercial uncertainties and market volatility for buyers and sellers alike, which made it difficult … Continue reading

The Smart Choice: A Predictive View in Revamping M&A Contracts

The current pandemic presents a unique opportunity to revitalize traditional M&A process and provisions. While we have previously addressed how traditional M&A provisions are impacted by the pandemic, this blog post will explore the key opportunity industries and corporations alike have in improving contractual processes. Specifically, through the use of blockchain technology and smart contracts. … Continue reading

M&A Opportunities in the COVID-19 Digital Transformation

While the COVID-19 pandemic initially had a general chilling effect on merger and acquisition (“M&A”) activity, we have seen an increase in M&A activity recently, particularly as industries rapidly adapt to the new environment and consider opportunities. Both consumer preferences and business models have been forced to change quickly due to the circumstances of the … Continue reading

Speaking the portability language: How portability clauses are helping debt-laden companies enter into M&A transactions

There is no doubt that the Covid-19 pandemic has resulted in unprecedented social and economic ramifications, including a decline in M&A activity in Canada. The pandemic has also brought in changes to the way agreements are being drafted in light of what has become our new normal. Earlier, we reported that the pandemic has led … Continue reading

Representations and Warranties Insurance and COVID-19 Considerations

The use of representations and warranties insurance (RWI) has grown dramatically in recent years as buyers (and to a lesser extent, sellers) have increasingly relied on RWI to allocate risks and provide other benefits in M&A transactions. The COVID-19 pandemic and its economic impacts have led to significant uncertainty for buyers, as well as for … Continue reading

Determining fair value in appraisal proceedings: the Supreme Court of Canada dismisses application for leave to appeal in Carlock v ExxonMobil Canada Holdings ULC

On August 13, 2020, the Supreme Court of Canada (the SCC) dismissed the application for leave to appeal in the case of Carlock v ExxonMobil Canada Holdings ULC (Carlock), indicating that the negotiated deal price in a transaction between well-informed, sophisticated, arms-length parties that is the result of a vigorous sale process provides strong objective … Continue reading

M&A in the Consumer & Retail Sector: Before and After the Pandemic

This article will provide a high level discussion of M&A trends in the Consumer & Retail (C&R) sector, beginning with a brief summary of the activity we saw in 2019, what trends were anticipated to occur in 2020 and how the COVID-19 pandemic (the Pandemic) is expected to affect M&A in this industry. Pre-Pandemic Trends … Continue reading
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