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
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. As a result, increased protection was paramount since a deficiency in the cyber-security measures of a target could lead to potential liability on the part of the buyer, after the transaction had closed.
Another Shift Caused By The Pandemic
The pandemic forced many … Continue Reading
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 for companies to conduct business as usual. However, it looks like M&A activity has picked up again with gusto. In an earlier post, we reported that in a global survey of 2,900 C-suite executives, more than half of them reported that they … Continue Reading
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.
Smart Contract 101
First proposed thirty years ago by computer scientist Nick Szabo who coined the term, smart contracts are drafted using programming languages and software and can be made legally enforceable and binding for all parties involved. In recent years, smart contracts have been … Continue Reading
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 pandemic. This period of transformation provides opportunity for those investors and businesses who are able to efficiently adapt and take advantage of the new trends.
Increased Demand for At-Home Services:
The pandemic has transformed consumer preferences which has created tremendous potential for certain … Continue Reading
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.
Earlier this year, KPMG published their Global Consumer & Retail M&A Outlook 2020 Report (the KPMG Report) which reviewed deal activity in the C&R sector in 2019 and provided insight about the expected trends for 2020. As was seen in preceding … Continue Reading
The mining sector has been one of the few bright spots in Canadian M&A since the COVID-19 pandemic drastically changed the landscape for transactions, with several large deals announced and continuing despite the pandemic.
As with other business sectors, mining has been significantly impacted by regulations and the economic slowdown caused by the pandemic. However M&A opportunities for Canadian mining companies have persisted despite these issues.
One of the first significant deals announced during the COVID-19 pandemic was Endeavor Mining Corporation’s combination with SEMAFO Inc., which valued SEMAFO at $1 billion. Other recent deals include Shandong Gold Group acquiring Canadian-based … Continue Reading
On April 29, in a rare decision based on the “failing firm” rationale, the Competition Bureau announced it would not challenge the acquisition of Total Metal Recovery (TMR) Inc. by American Iron & Metal Company Inc. (AIM), because TMR would have likely exited the market without the merger.
The Bureau released a detailed position statement on the transaction, which will assist parties seeking to rely on a “failing firm” argument. This will be particularly important in the wake of the COVID-19 economic downturn, as many businesses may face failure and seek to be acquired by a competitor if they cannot … Continue Reading
The financial markets and global economy have experienced a precipitous decline and substantial volatility due to the economic impact of the ongoing COVID-19 pandemic. This has had a significant and immediate impact on the level of M&A activity, both in Canada and globally, as companies are shelving deals or simply walking away entirely.
In fact, Thomson Reuters, citing data from the financial research firm Refinitiv, recently reported that there was a 57% decline in M&A activity in Q1 2020 as compared to Q1 2019, as Canadian M&A activity dropped to its lowest level since 2015. Globally M&A activity … Continue Reading
The turbulent economic environment resulting from the COVID-19 pandemic has affected the M&A world in numerous ways. Among them is the increased focus on earnout provisions, both those in place from legacy deals and those being considered for inclusion in an upcoming transaction. This post provides an overview of the earnout mechanism and describes the alternative approaches dealmakers have at their disposal.
The purpose of an earnout is to allocate risk and reward between a purchaser and a seller in respect of the post-closing success of the acquired business. Earnouts are useful as a means of bridging the valuation gap: … Continue Reading
In a previous post, we discussed the impact of COVID-19 on private equity transactions and how companies can prepare for upcoming economic changes. While opportunities for new investment are on the horizon with private equity funds presently flush with cash, movement on existing investments is likely to slow as sellers wait until markets stabilize before divesting their assets. Recent research suggests that funds with vintage years 2012 through 2017 are facing a lower exit pricing environment, which could lead fund managers to increase their holding periods and delay exiting until they can better recover their investments.
A look at … Continue Reading
As COVID-19 continues to sweep across the world, it is has undoubtedly taken the global financial markets by storm. Despite the unprecedented social and economic disruptions brought by the pandemic, Ernst & Young’s Capital Confidence Barometer Survey (the Survey) of more than 2,900 C-suite executives globally shows that more than half (56%) of them continue to plan major transformation programs. At the same time, as the extent of COVID-19’s impact on the global economy is gradually revealed, in addition to navigating the current downturn, companies are starting to look beyond the crisis and identify ways to better position their … Continue Reading
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 2020. The Commissioner of Competition announced on April 1 that the threshold would remain the same as in 2019.
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
J.P. Morgan’s “2020 Global M&A Outlook” (the Report) reviews what we can expect with regards to M&A activity this year. Some of the key takeaways from the Report include:
- Anticipated Trends in International M&A: We can expect to see an increase in the global M&A market due to greater geopolitical certainty and financially competitive opportunities in regions such as Japan.
- The Role of Private Equity Firms in the M&A Market: With record levels of capital to deploy, private equity firms will continue to be active players in the M&A market.
- Shareholder Activism: Shareholder activists will continue to
The M&A world continues to evolve as transactions are becoming more diverse and complex. Timelines are getting shorter and acquirors have less time to assess their targets but more pressure to justify their acquisitions. Acquirors must simplify the process of acquiring a target, while simultaneously improving the accuracy of their predictions about the acquisition’s profitability. Could data analytics be one of the solutions?
More data is being created today than ever before. Generally, there are two kinds of data relevant to M&A transactions. The first is data created by companies spontaneously (e.g. social media chatter, CRM data, user … Continue Reading
The importance of email in the workplace presents a variety of legal challenges when purchasing a business. Among those are concerns relating to emails and the email addresses of the seller’s employees who are no longer employed by the purchaser after closing.
First, there are confidentiality concerns in connection with former employees receiving information they should no longer have access to. Second, there are concerns that customers or other relevant individuals may be emailing former employees instead of the current employees of the purchaser. This can result in missed sales opportunities, gaps in customer service and a negative impact on … Continue Reading
The eSports industry experienced monumental growth in 2019 and is well underway to becoming a financially lucrative market.
By the end of last year, eSports had over 433 million global viewers, more than American Football and rugby combined, and is expected to reach over 645 million viewers in 2020. For perspective, the 2019 League of Legends World Championship alone amassed a peak viewership of 3.98 million, far surpassing earlier eSports viewership records.
2019 also marked the year that eSports became a billion dollar industry. In line with its massive following, eSports drew in record revenues last year, experiencing a 26.7% … Continue Reading
If there is anything that Canadian dealmakers are all too familiar with in 2019, it’s the concept of uncertainty. Raging trade wars, geopolitical tensions, elections, and a forecasted economic downturn are all pervasive in everyday conversation. Despite this, deal flow has remained robust throughout the first three quarters of 2019, as summarized in a recent post. Fortunately, significant uncertainty in relation to trade with the U.S. and Mexico is hopefully coming to an end.
A significant consideration when considering an M&A target can be the impact that pending or threatened litigation has on the proposed transaction.
While some organizations may balk at the idea of acquiring a target that is (or is likely to be) the subject of a lawsuit, such companies are often available at significant discounts to purchasers that are able to understand and address the risks.
Each transaction will have its own unique considerations. However, an organization that is contemplating acquiring a target that is the subject of pending or threatened litigation should, among other items, address the following high-level considerations:… Continue Reading
Climate change has become a high profile issue that is expected to have significant implications for M&A transactions going forward. As public awareness and scientific understanding of climate change continues to evolve, we are more informed about the climate change-related risks that businesses must grapple with and get ahead of. As a result, businesses need to be especially diligent in their assessment of a range of factors that may be impacted by the changing climate when completing M&A transactions. While the risks that should be considered will, of course, vary between transactions, the following is a list of climate-related factors … Continue Reading
The heavy reliance on technology in today’s data-driven world means that cybersecurity threats must be taken seriously. More specifically, with respect to M&A transactions, a target’s cybersecurity mechanisms have become an important part of the due diligence consideration. Indeed, it is important to have a firm grasp on the nature and extent of a target’s cybersecurity vulnerabilities, the likelihood of a breach, and the procedure in place to remedy a breach, if necessary. These considerations have the power to significantly alter the value of a transaction, or even derail it entirely.
Crosbie & Company’s “Crosbie & Company Canadian Mergers & Acquisitions Report for Q3 2019” (the Report) reviews the minor slowdown in Canadian M&A activity in Q3 2019 following a record-breaking second quarter. While deal activity declined slightly in Q3 (776 announced transactions compared to 886 in Q2), the Canadian M&A market remained robust, posting its eleventh straight quarter (dating back to Q1 2017) with at least 700 transactions.
Highlights of the Report
- Slight decline in transaction volume: 776 transactions were announced during Q3 2019 compared to 886 in Q2 2019, representing a 12.4% decrease from the previous quarter.
The Competition Bureau (the “Bureau”) is required to review certain merger transactions that exceed various financial thresholds, based on the size of the business being acquired and the combined size of the buyer, the target business, and their affiliates. The notification thresholds under the Competition Act (the “Act”) are discussed in more detail here. The Bureau reviews transactions that exceed these thresholds (“notifiable transactions”) to assess the potential competitive effects of the deal prior to its completion, and if the Bureau concludes that a transaction is likely to substantially lessen or prevent competition, they may seek a remedy (such … Continue Reading
In a previous post, we discussed the rise of M&A activity in the meat and dairy sector as consumer tastes change and concern for the environment becomes more widespread.
Industry experts believe that this trend, namely of ethical brands driving M&A, is much broader than the food and beverage space. Beauty, clothing and apparel and other consumer brands focusing on natural and sustainable products are also driving M&A activity. As the 2019 year end rapidly approaches, a reflection on some of these larger trends may shed some light on what may come in 2020.
Beauty and cosmetics
- The research