Timely Disclosure

Timely Disclosure

Updates and Commentary on Current issues in M&A, Corporate Finance and Capital Markets

Category Archives: Mergers & Acquisitions

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American Bar Association Publishes Canadian Private Target Mergers and Acquisitions Deal Points Study

Posted in Mergers & Acquisitions
The American Bar Association has published its Canadian Private Target Mergers & Acquisitions Deal Point Study[1] (Study) analyzing transactions that involved Canadian private targets that were acquired or sold by public companies in 2014 and 2015. The Study included a sample of 101 transactions and excluded transactions with a value less than C$5 million, transactions… Continue Reading

Total Energy’s Take-over Bid for Savanna Energy: Developments and Defensive Tactics

Posted in Mergers & Acquisitions
Background On November 23, 2016, Total Energy Services Inc. (Offeror) disclosed its intention to make an offer (Offer) to purchase all of the issued and outstanding common shares (Target Shares) of Savanna Energy Services Corp. (Target) for consideration consisting of common shares of the Offeror (Offeror Shares). The Target responded in two press releases, dated… Continue Reading

Is There Method in Seagate’s Madness in Inviting an Activist Wolf into the Fold?

Posted in Contested Situations, Corporate Governance, Mergers & Acquisitions
Seagate Technology’s Unusual Alliance with ValueAct Capital: Is There Method in Seagate’s Madness in Inviting an Activist Wolf into the Fold? Last month, Seagate Technology plc, an $11 billion company in the data-storage business, announced a secondary block trade in which it facilitated the transfer of roughly 9.5 million ordinary shares, representing an approximate 4% stake in… Continue Reading

Hostile Bid Launched Targeting Nordex Explosives Ltd.

Posted in Contested Situations, Mergers & Acquisitions
Nordex Explosives Ltd. (Nordex), a Canadian explosives manufacturer listed on the TSX Venture Exchange, and Société Anonyme d’Explosifs et de Produits Chimiques (EPC) entered into a private placement and subsequent going private transaction on June 15, 2016. EPC was to purchase Nordex shares for $0.12 per share. However, subsequent to Nordex’s announcement of the EPC… Continue Reading

Market Intelligence? The Limits of Market Custom and Why Market Practice May not be Best Practice

Posted in Contested Situations, Corporate Governance, Mergers & Acquisitions
The views expressed in this post, as in all of my posts, are mine alone and should not be taken to represent the views of Fasken Martineau DuMoulin LLP. “That’s off market.” As a deal lawyer, I’ve heard that phrase more times than I care to remember.  It’s supposed to be a knock-down argument.  We’re… Continue Reading

Time will tell if the timing’s right: CSA adopt the most sweeping changes to the Canadian take-over bid regime in a generation

Posted in Contested Situations, Mergers & Acquisitions, Securities Regulatory Authorities
On February 25, 2016, the CSA released the final version of the long-awaited changes to the Canadian take-over bid regime.  While the final rules are largely in line with the proposal that was released for comment almost a year ago, it is notable that the statutory minimum bid period has been shortened from 120 days… Continue Reading

The Suncor – Canadian Oil Sands Board Demonstrates that the Board’s Recommendation Truly is a Prized Asset

Posted in Contested Situations, Mergers & Acquisitions
Earlier this week, Suncor Energy Inc. (Suncor) and Canadian Oil Sands Limited (COS) announced that they reached an agreement whereby COS agreed to support Suncor’s offer to acquire COS for $6.6 billion (including estimated debt of $2.4 billion), representing a 12% increase in the exchange ratio from the initial offer made by Suncor for COS… Continue Reading

Alberta and Nunavut Propose Exemption for Start-Up Companies

Posted in Corporate Finance, Mergers & Acquisitions, Securities
On October 19 2015, the Alberta Securities Commission and the Nunavut Securities Office jointly published for comment Proposed Multilateral Instrument 45-109 Prospectus Exemption for Start-up Businesses (Proposed Exemption). The Proposed Exemption is directed principally at small and early-stage non-reporting issuers and is designed to allow them to raise a defined amount of money in a cost… Continue Reading

OSC Introduces Offering Memorandum Prospectus Exemption

Posted in Corporate Finance, Mergers & Acquisitions, Securities, Securities Regulatory Authorities
In March 2014, certain members of the Canadian Securities Administrators proposed amendments to National Instrument 45-106 Prospectus Exemptions (NI 45-106) with the aim of allowing business enterprises, with a focus on small and medium size enterprises, to benefit from greater access to capital from investors. On October 29, 2015, the securities authorities in Alberta, New Brunswick,… Continue Reading

Responding to the Activist: Compensating the Special Committee

Posted in Contested Situations, Corporate Governance, Directors & Officers, Mergers & Acquisitions
As we have noted in our previous post, a special committee appointed to lead a company’s response to an activist can expect to receive a greater degree of public scrutiny, but may take comfort from the fact that the legal standard against which its members will be judged will not change.  While that should provide… Continue Reading

Responding to an activist: While special committee members may face greater public scrutiny, they are not subject to a higher legal standard

Posted in Contested Situations, Corporate Governance, Directors & Officers, Mergers & Acquisitions
As we discussed in our previous post, a special committee established in response to an activist’s approach should be comprised of independent board members with the relevant expertise and the time to participate meaningfully. While we have written about some of the benefits to the company of incorporating a special committee process into its response… Continue Reading

Responding to an activist: When appointing a special committee, select the members with care

Posted in Contested Situations, Corporate Governance, Directors & Officers, Mergers & Acquisitions
As we discussed in our previous post, when a board finds itself in the crosshairs of an activist, establishing a special committee of unconflicted directors with clear marching orders from the board may allow for more thoughtful decision-making under pressure and lend credibility to the company’s response, particularly where management’s performance is under attack.  Equally… Continue Reading

Amendments to the TSX Company Manual to Reflect Trends Towards Dematerialization of Physical Evidence of Security Ownership

Posted in Corporate Finance, Mergers & Acquisitions, Stock Exchanges
On May 21, 2015, the TSX announced one set of amendments and one request for comment on proposed amendments to the TSX Company Manual (Manual), both respecting physical certificate requirements for securities. The amendments should not have a noticeable impact for many listed issuers or industry participants, but they do highlight a few trends to… Continue Reading

Study of hostile take-over bids in Canada reveals that a change of control is not inevitable

Posted in Contested Situations, Corporate Governance, Directors & Officers, Mergers & Acquisitions
Fasken Martineau’s 2015 Canadian Hostile Take-Over Bid Study sets out the results of a ten-year empirical analysis of hostile take-over bids in Canada. Key findings include: When initiating a public contest for control, a hostile bidder was successful more than half the time; however, a change of control was by no means inevitable, with targets… Continue Reading

2015 ISS and Glass Lewis Updates

Posted in Contested Situations, Mergers & Acquisitions
Institutional Shareholder Services (ISS) and Glass, Lewis & Co. (Glass Lewis) have both released updates to their Canadian proxy voting recommendation guidelines for the 2015 proxy season. The items updated include those pertaining to the definition of independence, advance notice requirements, by-law amendments, private placements, treatment of majority voting policies, shareholder rights plans and advance… Continue Reading

The End of Poison Pills?

Posted in Contested Situations, Corporate Governance, Mergers & Acquisitions, Securities Regulatory Authorities
The Canadian Securities Regulators (the CSA) have just agreed on major changes that are set to transform the take-over bid regime that has prevailed in Canada during the last three decades.  CSA Notice 62-306 (the CSA Proposal), issued on September 11, 2014, reconciles the competing proposals for poison pill reform initially introduced in March 2013 by the CSA and Autorité des… Continue Reading

Le défi des OPA en France : une procédure plus simple pour les initiateurs

Posted in Mergers & Acquisitions, Securities Regulatory Authorities
La Cour d’appel de Paris a rendu une décision récente qui va faciliter la vie aux initiateurs d’offres publiques d’acquisition. Par une ordonnance en date du 10 avril 2014, le Premier Président de la Cour d’appel de Paris a en effet rejeté la demande des actionnaires minoritaires de la Société de la Tour Eiffel (« STE »),… Continue Reading

Challenge of TOB in France: an easier path for initiators

Posted in Mergers & Acquisitions, Securities Regulatory Authorities
A recent decision rendered by the French Court of Appeal gives way to a smoother process for initiators of takeover bids. An order dated April 10, 2014 has indeed dismissed the request of minority shareholders of Société de la Tour Eiffel (« STE »), a French company for which the insurance group SMABTP has launched a takeover… Continue Reading

Canadian Proxy Contest Study – 2014 Update

Posted in Contested Situations, Corporate Governance, Mergers & Acquisitions, Proxy Voting
A follow up to our ground-breaking 2013 Canadian Proxy Contest Study, our 2014 Update sheds additional light on some of the issues and trends that we previously identified and raises a few new issues for further thought.  Among the highlights of last year’s Canadian market experience in proxy contests were the following: 2013 witnessed a… Continue Reading

2014 Updates to Canadian Proxy Advisory Guidelines

Posted in Contested Situations, Corporate Governance, Mergers & Acquisitions, Proxy Voting
Institutional Shareholder Services (ISS) and Glass, Lewis & Co. (Glass Lewis) have both released updates to their Canadian proxy voting recommendation guidelines for the 2014 proxy season. Glass Lewis released its updates on December 13, 2013 and ISS released its updates on November 21, 2013. The items updated include those pertaining to corporate governance standards,… Continue Reading

Proposed Amendments to the Toronto Stock Exchange Company Manual

Posted in Corporate Governance, Mergers & Acquisitions, Stock Exchanges
On November 28, 2013, the Toronto Stock Exchange (TSX) published proposed amendments to the TSX Company Manual (the Manual) and requested comments on the proposed amendments (the Amendments), such comments to be delivered by January 13, 2014. The proposed amendments would 1) amend Section 611 of the Manual to allow issuers listed on the TSX… Continue Reading

Minister Moore Launches Consultation to Strengthen Canada’s Corporate Governance

Posted in Corporate Governance, Directors & Officers, Mergers & Acquisitions
On December 11, 2013, The Honourable James Moore, Minister of Industry, announced the launch of a public consultation on the Canada Business Corporations Act (CBCA) to help identify ways in which the CBCA can better promote important corporate governance policy objectives. The government listed the following issues that have been identified for review as part… Continue Reading

Re Lambert – A Bright Line Test for Materiality in Merger Discussions or Simply More Grist for the Mill?

Posted in Mergers & Acquisitions, Securities Regulatory Authorities
Determining whether something is material can be a perplexing and challenging task for clients and lawyers, even at the best of times – all the more so when you consider that whether you get it right or not can have some serious legal consequences. The concept of “materiality” is a cornerstone of securities laws and… Continue Reading