As the definition of “Canadian” expanded, last year’s top deals highlighted the importance of infrastructure and real estate as well as vendors making strategic dispositions
Selecting the top deal of 2015, and indeed ordering the deals at all, was challenging — perhaps we say that every year but this year you said it, too. In retrospect, several themes emerged and overlapped. We note three themes, in particular:
1. 2015 was a deal year in which companies and their lawyers expanded the definition of “Canadian”: previously we asked whether the vendor and purchaser need to be Canadian. This year, there were readers who argued that given the high outbound activity, the fact of Canadian investment in deals should qualify them for the Lexpert Top 10 list, in view of the attendant involvement by Canadian counsel.
2. Certain deals portended the importance of infrastructure and real estate in the Canadian economy.
3. Generally, lists like this one tend to favour more attention on acquirers. But in 2015, vendors making strategic dispositions were very noteworthy.
1. Hydro One’s IPO
Lexpert is a national publication and yet we selected a provincial partial privatization deal on the basis that many lawyers have suggested this model will be watched closely by other provincial public entities and, if it goes well, repeated. And yet the deal’s principals and counsel are insistent that this was not a privatization, but rather, a “broadening of ownership.”
In 2014, Ontario Premier Kathleen Wynne named Ed Clark, former Group President and CEO of TD Bank Group, as Chair of the Premier’s Advisory Council on Government Assets (in 2015, he was also named the Premier’s Business Advisor). According to the government’s press release, the mandate of the Advisory Council included “unlocking the value of certain public assets to help support the largest infrastructure investment in Ontario’s history. The province is investing more than $130 billion over 10 years for roads, bridges, transit, hospitals and schools.” Particularly, Clark and the Council were to make recommendations on potential dispositions at provincial wholly owned Hydro One and the Liquor Control Board of Ontario.
One year after his appointment, Clark released the Advisory Council’s report, recommending that the government would sell 15 per cent of Hydro One shares forthwith, and in time planned on selling a maximum of 40 per cent. Between the IPO, which closed on November 5, 2015, and an over-allotment several days later, the province raised $1.83 billion.
The “broadening of ownership” model is important, explains Sharon Geraghty of Torys LLP in Toronto, who led the external legal team for the province as the selling shareholder. Even with future plans, the province will retain majority ownership. Says Steven Smith of Osler, Hoskin & Harcourt LLP in Toronto, who led the external team for Hydro One: “This was a fascinating deal on a number of fronts. The new Liberal government’s first ‘privatization’ coming out of the Clark Committee report ‒ involving the province’s largest electricity transmission and distribution company ‒ the sale of 15 per cent with a target to eventually sell [40 per cent of its shares]. But more interesting, the governance arrangement between the province and Hydro One wherein the province agreed to act as an investor and not as a manager notwithstanding its significant shareholding; a new Chair and essentially a brand-new board at Hydro One; a new CEO; a new CFO ‒ all happening shortly before the IPO process ‒ all made it a unique offering.”
This IPO was successfully executed within a context of enormous political pressure, right up to the date of the sale itself. In fact, previous attempts at so-called partial privatization had buckled under political pressure. Going forward, politicians of all stripes will be watching the newly appointed board (only two members of the previous board were re-appointed). And so will citizens. The public interest in what goes on with the electricity supply is evidenced on Hydro One’s website newsroom: intermittent between announcements about the IPO are bulletins about the power supply. A typical example: “Nov. 5: Hydro One Limited Announces Closing of IPO. Nov. 6: High winds knock out power to more than 37,000 Hydro One customers.”
Ironically, Hydro One has roots in private ownership. As set out on the Niagara Parks website, in 1905, “the time was right for Beck to implement his conviction that power from Niagara Falls should be available at cost to Ontario municipalities. In the government of Conservative Leader, James Whitney, Beck became ‘Power Minister’ and chairman of the Hydro-Electric Power Commission of Ontario, the world’s first publicly owned utility.”
Key Legal Players
Joe Agostino: In-House Counsel for Hydro One
Carolyn Calwell: In-House Counsel for the Province
Osler, Hoskin & Harcourt LLP: Counsel to Hydro One
Torys LLP: Counsel to the Province of Ontario
McCarthy Tétrault LLP: Counsel to Hydro One on labour and employment matters
Blake, Cassels & Graydon LLP: Counsel to the Underwriters
2. Repsol’s Acquisition of Talisman
Perhaps it is a sign of the challenging year in the energy sector, but it has to be said that lawyers and their clients are watching the development of the announced Suncor Energy deal, in which it seeks to add to its oilsands holdings with an unsolicited take-over bid for Canadian Oil Sands Ltd., the largest partner in the Syncrude mine north of Fort McMurray, Alberta. Suncor offered $4.3 billion in its own shares and would take on about $2.3 billion of debt owed by Canadian Oil Sands. That makes the total transaction worth $6.6 billion. It is scheduled to close in 2016. But in the land of actually closed deals, Repsol stands above the rest.
In May of 2015, Repsol S.A. of Madrid, Spain completed the acquisition of Talisman Energy Inc. in a cross-border deal worth approximately $16.5 billion (US$13.5 billion). The transaction was the largest M&A deal by value announced in Canada in more than two years and the largest international deal by a Spanish company in more than five years. The transaction was completed by way of court-approved arrangement under the Canada Business Corporations Act and, upon closing, all of the issued and outstanding common and preferred shares of Talisman were acquired by Repsol for cash consideration. Talisman’s publicly held debt remained outstanding following completion.
Negotiations began in the summer of 2014 but broke off on a couple of occasions before an agreement was finally struck and announced on December 15, 2014 — in this period, crude oil prices declined by more than 45 per cent. The transaction involved Investment Canada Act, Competition Act (Canada) and other regulatory approvals in more than 12 jurisdictions internationally. Globally, Repsol was advised by consulting, finance, legal and tax professionals in more than 20 countries, reflecting the depth of expertise required to complete the multi-jurisdictional components of the transaction. The acquisition was further complicated by the cross-border listing of Talisman’s shares on the TSX and NYSE, and the involvement of Carl Icahn’s activist investment funds in Talisman’s shares.
Key Legal Players
Bennett Jones LLP: Primary Counsel to Repsol
Sullivan & Cromwell LLP: Counsel to Repsol on US securities matters
Norton Rose Fulbright Canada LLP: Counsel to Talisman Energy in Canada and on US securities class action litigation
Watchtell, Lipton, Rosen & Katz LLP: Counsel to Talisman Energy on other US matters
Osler, Hoskin & Harcourt LLP: Special Counsel to Talisman Energy
Blake, Cassels & Graydon LLP: Counsel to the Board of Directors of Talisman Energy
3. Emera’s Acquisition of Teco Energy
In the fall of 2015, Emera Inc., a Canadian energy company based in Halifax, acquired TECO Energy, Inc. (TECO), a Florida and New Mexico regulated electric and gas utilities holding company, for US$6.5 billion. According to Osler’s summary on their website: “Under the terms of the all-cash agreement, TECO investors will receive US$27.55 per common share, a 48-per-cent premium based on the unaffected closing share price of July 15, 2015. The deal also includes about US$3.9-billion in debt, bringing the total deal to US$10.4 billion.
“Emera’s proposed deal with TECO creates a top 20 North American regulated utility with geographic diversity and significant growth potential. The acquisition also provides Emera with further opportunities to supply customers with cleaner generation.”
Emera also issued a $1.9-billion convertible debenture offering to help fund the acquisition. The offering was co-led by Scotiabank, RBC Capital Markets and J.P. Morgan, and included CIBC, TD Securities Inc., BMO Capital Markets, National Bank Financial Inc., Barclays Capital Canada Inc. and Credit Suisse Securities (Canada) Inc.
According to The Globe and Mail’s account, “Emera chief executive officer Chris Huskilson said the acquisition of Tampa-based TECO Energy Inc. is an opportunity for the company to apply the emissions-reduction lesson in Nova Scotia and New England to the southern U.S. market. [Huskilson said] ‘If you look at Tampa Electric and compare it to Nova Scotia Power [subsidiaries of TECO and Emera, respectively], you’ll see a company that has similar strategy, similar challenges, similar opportunities and a similar customer base. So we actually feel very good about that.’
“Both Nova Scotia and Tampa utilities have been heavily reliant on coal-fired power, and are shifting under pressure from government policy to reduce greenhouse gas emissions and embrace renewable electricity. A centrepiece of Emera’s effort is its investment – in partnership with Nalcor Energy – in the Lower Churchill hydroelectric project and the maritime link that will bring the electricity from Newfoundland to Nova Scotia.”
Key Legal Players
Osler, Hoskin & Harcourt LLP: Counsel to Emera
Davis Polk & Wardwell LLP: Counsel to Emera
Blake, Cassels & Graydon LLP: Counsel to TECO
Holland & Knight: Counsel to TECO
Skadden, Arps, Slate, Meagher & Flom LLP: Counsel to TECO
Sullivan & Cromwell LLP: Counsel to Financial Advisor
4. Element Financial Acquires GE Capital’s Fleet Management Business
Toronto-based Element Financial Corporation acquired GE Capital’s fleet management business for US$8.6 billion — within a larger number of GE deals. This deal, and the rest of the GE Capital deals of 2015 and those to come, generated a diversity of views on their Canadian content. In the end, we endorsed the summary by David Woollcombe of McCarthy Tétrault LLP in Toronto, whose firm acts for GE. Of the five transactions, three of which are closed and two slated to close in Q1 2016, he stated that, “each of the five GE sales had a real Canadian connection. Three of the business units were purchased by Canadians, and the other two had material Canadian assets.” According to Woollcombe, GE’s decision to sell off the majority of GE Capital’s assets is about focusing on its industrial business and limiting its financing activities to transactions related to the industrial business.
GE sold and is scheduled to sell the following GE Capital businesses:
- its fleet finance business to Element for $8.6 billion, on which there was a Canadian purchaser but no Canadian assets because “Element bought them already in 2013”; its sponsor finance business, Antares, to CPPIB for $12 billion, on which there was a Canadian purchaser and Canadian assets in the sale;
- its $26-billion real estate finance business to Blackstone and Wells Fargo, with Canadian assets included in the sale;
- pending: its $8.7-billion transportation finance business to BMO, Canadian purchaser and assets herein;
- pending: its $32-billion commercial lending and leasing business to Wells Fargo, with Canadian assets included in the sale.
And now to the fleet management business sale, which takes its place on the Lexpert list of Top 10. As previously reported in Lexpert: On September 30, 2015, Element Financial Corporation (TSX: EFN) completed its US$8.6-billion acquisition of GE Capital’s fleet management operations in the United States, Australia, New Zealand and Mexico. Element had previously acquired the Canadian operations of GE Capital’s North American fleet management business in June of 2013. With the completion of the acquisition, Element’s total assets increased to approximately $22 billion.
The GE fleet acquisition was funded, in part, from Element’s $2.8-billion prospectus financing in June comprising $2.04 billion of subscription receipts (for underlying common shares), $575-million extendible convertible subordinated debentures and $172.5 million of Series G rate reset preferred shares. The equity financing was the third-largest bought deal in Canadian capital markets history. The financing was largely unprecedented in Canada as the subscription receipt offering was a “war chest” financing with no defined use of proceeds, but rather general transaction parameters that needed to be met in order to deploy the proceeds of the offering. The acquisition was also financed through establishment of a new expanded US$8.5-billion senior secured credit facility with Element’s lending syndicate.
Key Legal Players
Jim Nikopoulos: Senior Vice President and General Counsel for Element
Blake, Cassels & Graydon LLP: Counsel to Element Financial
Cravath, Swaine & Moore LLP: Counsel to Element Financial
Herbert Smith Freehills: Counsel to Element Financial on European and Australia matters
Bell Gully: Counsel to Element Financial on New Zealand assets
Galicia Abogados, S.C.: Counsel to Element Financial on the Mexican assets acquisition
Weil, Gotshal & Manges LLP: Counsel to General Electric
King & Wood Mallesons: Counsel to General Electric
Creel, García-Cuéllar, Aiza Y Enriquez, S.C.: Counsel to General Electric
White & Case LLP: Counsel to Arval, a fully owned subsidiary of BNP Paribas
Osler, Hoskin & Harcourt LLP: Counsel to the Underwriting Syndicate
Dentons Canada LLP: Counsel to the Lenders
5. Creation of Northview Apartment REIT
Several of those in the Lexpert community hold that a real estate investment trust (REIT) deal does not belong on this Top 10 list. However, as the economy increasingly relies on real estate, and infrastructure, assets, even more of our readers observe that these two streams are to an extent shoring up weakness in the Canadian economy’s traditional M&A sector. According to Kent Kufeldt of Borden Ladner Gervais LLP in Vancouver, whose firm represented Northern Property REIT: “The deal is interesting because it’s the largest multifamily real estate transaction to date in Canada, the largest REIT deal this year, and creates the third-largest multi-family REIT in Canada. It involved assets and law firms across the country.”
On October 30, 2015, Northern Property Real Estate Investment Trust (NPR) completed transactions involving the acquisition of all of the assets and properties of True North Apartment REIT (True North) and a portfolio of multifamily real estate assets from affiliates of Starlight Investments Ltd., as well as from joint ventures between affiliates of Public Sector Pension Investment Board and affiliates of Starlight. These transactions represent Canada’s largest multifamily real estate acquisition.
NPR acquired all of the assets and properties of True North through a court-approved plan of arrangement. As consideration, True North unitholders received 0.3908 of an NPR Trust Unit for each True North trust unit held, and True North class B limited partnership unitholders received 0.3908 of an NPR Class B LP Unit for each True North class B limited partnership unit held, having a value of approximately $305 million. This purchase price represented a premium of 16.4 per cent over the closing price of True North trust units on Friday, August 7, 2015.
In addition to that, NPR acquired 33 apartment properties held by Starlight and from a joint venture between affiliates of Starlight and PSP Investments, for aggregate purchase price of $535.1 million, which was satisfied by the payment of cash, the assumption of debt, and the issuance of NPR Trust Units and NPR Class B LP Units, which are economically equivalent to and exchangeable for NPR Trust Units. The value of the new combined entity will be approximately $3 billion.
In connection with the closing of the transactions, two Canadian chartered banks provided to NPR a senior secured non-revolving term loan facility in the amount of $325 million to finance the acquisition of the private portfolio, and a senior secured non-revolving bridge facility, in the amount of $25 million to provide additional liquidity.
On closing, Northern Property changed its name to Northview Apartment Real Estate Investment Trust (Northview). In November, Northview commenced trading on the TSX under the symbol NVU.UN. Northview, headquartered in Calgary, is primarily a multi-family residential real estate investor, providing a broad spectrum of rental accommodations in eight provinces and two territories across Canada. Northview is the largest landlord in Nunavut, the Northwest Territories, and Newfoundland and Labrador.
Key Legal Players
Cassels Brock & Blackwell LLP: Counsel to True North Apartment REIT
Borden Ladner Gervais LLP: Counsel to Northern Property REIT
David Hanick: VP Corporate Development and General Counsel for Starlight
Bloom Lanys Professional Corporation: Counsel to Starlight
Sophie Kaine Roy: Director, Legal Affairs for PSP Investments
Davies Ward Phillips & Vineberg LLP: Counsel to Public Sector Pension Investment Board
McMillan LLP: Counsel to Bank of Nova Scotia, as Agent, and lending syndicate in Ontario
Stewart McKelvey: Counsel to Bank of Nova Scotia, as Agent, and lending syndicate in Nova Scotia and New Brunswick
6. Shopify’s IPO
Everyone liked the Shopify IPO. Shopify, based in Ottawa, provides software for merchants to sell their products online. According to The Globe and Mail, “The company was born out of a conundrum for 34-year-old founder Tobias Lutke, who had snowboards to sell over the Internet in 2004.” What’s not to like? Well, according to Shopify’s prospectus, there are risks for the company, including that it relies solely on technology company Stripe to process the credit cards through its 165,000 merchants and thus “any disruption would affect payment.” Moreover, “payments are also subject to changing regulation in the various countries” in which Shopify operates.
All the same, Shopify Inc. raised $131 million in its initial public offering, pricing the shares above an increased range as investors clamoured for stock in the provider of software for small businesses. It sold 7.7 million shares for $17 apiece, after offering them for $14 to $16 (and initially $12 to $14).
According to The Globe and Mail, “Sources close to the deal say the offering was over 30 times oversubscribed. IPOs where demand is 10 or more times the available stock indicates very strong demand. At 30 times, the stock could perform strongly if other investors clamor to get in to the stock once it begins trading.” For investors, as for the lawyers who spoke with Lexpert, the Shopify Inc. IPO came as bit of a relief in the tech sector, where we needed it. As Chris Hewat of Blake, Cassels & Graydon LLP in Toronto says, “it puts us back into the spotlight in the tech sector.”
Key Legal Players
Joseph Frasca and Erin Zipes: In-House Counsel for Shopify
Stikeman Elliott LLP: Counsel to Shopify
Skadden, Arps, Slate, Meagher & Flom LLP: Counsel to Shopify
Blake, Cassels & Graydon LLP: Counsel to the Underwriters
Paul, Weiss, Rifkind, Wharton & Garrison LLP: Counsel to the Manager
McCarthy Tétrault LLP: Counsel to Bessemer Venture Partners
7. Barrick dispositions
On July 29, 2015, Antofagasta plc entered into a definitive agreement with Barrick Gold Corporation to purchase a 50 per cent interest in the Zaldívar copper mine in Chile for consideration of US$1.005 billion. Upon completion of the transaction, Antofagasta will become the operator of the Zaldívar mine, once called the “Andean ATM.”
At the time of this sale’s announcement, Reuters reported that “Barrick, the world’s biggest gold producer, said that including the sale of Zaldívar, it has now announced debt-reduction related deals worth around $1.85 billion. The Toronto-based company has said it wants to reduce its debt by at least $3 billion this year. The latest deal brings it to nearly two-thirds of that total.” By the time of its Q2 reporting in August, it announced it was within “striking distance” of the target.
“Kudos to the Barrick management,” says Vincent Mercier of Davies Ward Phillips & Vineberg LLP in Toronto, whose firm acts for Barrick, summarizing the view of the audience generally.
Darrell Podowski of Cassels Brock & Blackwell LLP in Vancouver, who led the team for Antofagasta, says, “the acquisition of a 50 per cent interest in the Zaldivar Mine from Barrick was one of the largest acquisitions completed by Antofagasta and presented the legal team with great time and strategy challenges. This sale was by way of a blind auction with numerous bidders involved and was on an extremely tight time frame, during which the purchase price and an ongoing shareholders & operating agreement had to be negotiated. The legal team at Cassels Brock was thrilled to have assisted Antofagasta in winning this auction and in acquiring such a valuable asset.”
Key Legal Players
Andrew Hastings and Hayden Bartrop: In-House Counsel for Barrick Gold
Davies Ward Phillips & Vineberg LLP: Counsel to Barrick
Herbert Smith Freehills: Counsel to Barrick
Carey & Cia: Counsel to Barrick
White & Case LLP: Counsel to Barrick (Niugini) Ltd.
Allens: Counsel to Evolution Mining
Fasken Martineau DuMoulin LLP: Counsel to Zijin Mining Group
Corrs Chambers Westgarth: Counsel to Zijin Mining Group
Cassels Brock & Blackwell LLP: Counsel to Antofagasta
McCarthy Tétrault LLP: Counsel to Royal Gold
8. Concordia Healthcare Acquires Amdipharm Mercury
On October 21, 2015, Concordia Healthcare Corp. (Concordia), a diverse healthcare company focused on legacy pharmaceutical products and orphan drugs, acquired UK-based Amdipharm Mercury Limited (AMCo) from Cinven Ltd, a leading European private-equity firm, for approximately US$3.3 billion (the Acquisition) paid through a combination of cash and the issuance of 8.49 million common shares of Concordia.
Concordia paid for the cash portion of the Acquisition with the proceeds from: (i) a public-equity offering of common shares for gross proceeds of US$520 million led by Goldman, Sachs & Co. and RBC Capital Markets, as lead book running managers, and Credit Suisse Securities (USA) LLC and Jefferies LLC, as additional book-running managers; (ii) a private placement of US$790 million of 9.5 per cent senior notes due 2022 by a syndicate of initial purchasers comprised of Goldman, Sachs & Co., Credit Suisse Securities (USA) LLC, Jefferies LLC and RBC Capital Markets (the “Initial Purchasers”); (iii) credit facilities with the Initial Purchasers, which consisted of a senior secured revolving credit facility of US$200 million and secured term loan facilities of approximately US$1,870 million (two tranches of US$1.1 billion and £500 million); and (iv) two unsecured bridge loans with certain of the Initial Purchasers in the principal amounts of US$45 million and US$135 million, respectively.
Rubin Rapuch of Fasken Martineau DuMoulin LLP in Toronto, whose firm acted as Canadian and UK counsel to Concordia on the acquisition and related financings, commented on the significance of this deal in the healthcare sector: “The AMCo acquisition by Concordia was a transformative deal, both in geographic scope and product expansion. The transaction extended beyond a straightforward M&A deal, as it also included a cross-border public-equity offering, which essentially constituted Concordia’s IPO in the United States, as well as a private placement of high-yield debt and the implementation of new secured loan facilities. All of this transpired in the context of a difficult market environment for healthcare companies as well as for high-yield securities. Notwithstanding the transaction complexities and difficult market environment, Concordia and the respective transaction counsel and professional advisors were able to implement and complete the transaction in a timely and efficient manner.”
Key Legal Players
Fasken Martineau DuMoulin LLP: Counsel to Concordia Healthcare in Canada and UK
Simmons & Simmons: Counsel to Concordia Healthcare
Sullivan & Cromwell LLP: Counsel to Concordia Healthcare
Torys LLP: Counsel to Cinven in Canada and the US
Clifford Chance LLP: Counsel to Cinven
Jones Day: Counsel to Amdipharm’s management
9. Crescent Point Energy Acquires Legacy Oil + Gas
On June 30, 2015, Crescent Point Energy Corp. (Crescent Point), one of Canada’s largest light and medium oil producers, acquired all of the issued and outstanding common shares of Legacy Oil + Gas Inc. by way of arrangement (the Legacy Acquisition). The total consideration for the Legacy Acquisition was approximately $1.53 billion, comprising approximately 18.97 million Crescent Point common shares and the assumption of approximately $967 million of net debt. In connection with the Legacy Acquisition, Crescent Point entered into an agreement, on a bought deal basis, with a syndicate of underwriters for an offering of 21,060,000 Crescent Point common shares at $28.50 per share to raise gross proceeds of approximately $600 million.
The Globe and Mail painted this picture of the transaction: “The acquisition shows how companies that entered the downturn with healthy finances and low operating costs are moving to pick up rivals hobbled by high debt levels and dwindling cash flow. Until now, many would-be sellers had hoped for an oil-price recovery to boost their value, but the rebound has been limited. Crescent Point had been widely expected to be one of the buyers because of its comparatively solid financial situation, thanks partly to extensive oil price and commodity hedges
Key Legal Players
Norton Rose Fulbright Canada LLP: Counsel to Crescent Point Energy
Dorsey & Whitney LLP: US Counsel to Crescent Point Energy
McCarthy Tétrault LLP: Lead Counsel to Legacy Oil + Gas on litigation and competition matters
Stikeman Elliott LLP: Counsel to Legacy Oil + Gas on the acquisition and assorted shareholder relations matters
Osler, Hoskin & Harcourt LLP: Counsel to Special Committee of the Board of Directors of Legacy Oil + Gas
Torys LLP: Counsel to the Financial Advisor to Legacy Oil + Gas
Davies Ward Phillips & Vineberg LLP: Counsel to dissenting shareholder, Weiss Asset Management
10. Target leaves Canada
On March 6, 2015, a landlord group led by Ivanhoé Cambridge Inc. and Oxford Properties Group completed a transaction involving the termination of leases at 11 properties that had previously been leased by Target Canada Co., owner and operator of shopping centres, and a unit of Target Corp., for $138 million. Ivanhoé Cambridge, a unit of Caisse de dépôt et placement du Québec, and Oxford Properties Group were the landlords/managers of these 11 locations. In January 2015, Target announced that it was seeking buyers for its real estate portfolio. By order dated March 5, 2015, the Ontario CCAA Court approved the transaction whereby the leases in respect of these 11 locations were surrendered to Ivanhoé Cambridge and Oxford Properties Group for their termination, resulting in these 11 locations being removed from the real property portfolio sales process.
Why include Target on a Top 10 list, why not just hold the door open for the company as it leaves? Because its significance lies in the lesson to be learned; a lesson that many lawyers may be in a position to pass onto clients who are considering outbound or inbound transactions. Target opened its first stores in Canada in March 2013; by April 12, 2015, all 133 Target Canada stores were closed. There were many human and financial losers in this deal and, in many towns in Canada still, the empty stores stand as a grim reminder. The lesson is this: no matter how much globalization of business and shopping standards there may be, each country presents a distinct market. Lawyers can be of great assistance to their clients in guiding their nationally tailored approaches, wherever they may shop for business deals or consumer items.
Key Legal Players
Claude Gendron, Lorna Telfer and Emilio Elisio: In-House Counsel for
Fasken Martineau DuMoulin LLP: Counsel to Ivanhoé Cambridge Inc.
Bob Aziz, Kieran Mulroy and Celia Hitch: In-House Counsel for Oxford
Thornton Grout Finnigan LLP: Counsel to Oxford Properties Group
Mark Wong: In-House Counsel for Target
Osler, Hoskin & Harcourt LLP: Counsel to Target
Davies Ward Phillips & Vineberg LLP: Counsel to Target Corp.
Goodmans LLP: Counsel to the Monitor, Alvarez & Marsal Canada
Torys LLP: Counsel to The Cadillac Fairview Corporation Limited and First Capital Realty Inc., as landlords, in Target’s CCAA proceedings
Bennett Jones LLP: Counsel to RioCan REIT, as landlords, in Target’s CCAA proceedings
Top 10 Deals Selection Process
Lexpert’s Top 10 Deals of the year list, published annually since January 2004, is unique and distinct from league tables prepared by accountants, investment banks and financial analysts, and ranked, for the most part, by size of the transaction. This list is based on an extensive canvass conducted in October and November 2015 by Editor-in-Chief Jean Cumming of Canadian M&A, securities and corporate finance lawyers.
There were several criteria this year, including the fact that the deal had to be announced between Nov. 1, 2014 and Nov. 1, 2015, and closed or expected to close early in 2016, preferably by January 2016. Transactions with particularly long gestation periods also qualify. Canadian legal content of the deal must be significant.
Most importantly, the deal must stand for more than itself: represent a trend, illustrate some aspect of the year’s economic climate or be a portent of things to come.
There is no minimum size or preferred structure — this list’s definition of “deal” is anything Canadian lawyers worked on that they considered to be significant.
Lexpert also co-sponsors, with Deloitte, The Globe and Mail and Thomson Reuters (Markets), the Canadian Dealmaker Awards. We will report on these awards in the March issue of the magazine, at which time it will be interesting to compare the winners with the Lexpert Top Deals.
Certain of the deals are bound to overlap, while others do not. Top Deals tends more toward “lawyers’ deals” in the sense that they comprise compelling legal issues. Clients aren’t nearly as interested in compelling legal issues as lawyers are.
There were other deals that struck a chord within the Lexpert Community. Here are a select few of the honourable mentions, which came very close to the Top 10:
1. The Cirque du Soleil’s sale to TPG Capital and its partners was by far the most high-profile deal in Québec in 2015, according to Robert Yalden of Osler, Hoskin & Harcourt LLP in Montréal. “Not only was it the largest M&A deal of the year involving a Canadian target (and the largest deal of the year involving a Québec target), but it saw complex negotiations between TPG, China’s Fosun, the Caisse de dépôt and Guy Laliberté. The deal reignited debate about the importance of maintaining vital corporate head offices in Québec — particularly given the Cirque’s iconic status in the province, its international profile and its central role in sustaining important parts of Québec’s creative arts business sector.”
2. In early 2015, Cable & Wireless Communications PLC (CWC) purchased Columbus International Inc., previously a privately held diversified telecommunications company based in Barbados, in a US$3.025-billion transaction. Cox & Palmer, led by Wayne Myles, QC, in St. John’s, were lead legal advisors to certain Columbus shareholders as vendors. And just as this Top 10 list was being formulated, Cox & Palmer announced its advisory role in a pending US$8.2-billion purchase of CWC by Liberty Global plc, the largest international cable company in the world. Again, Canadian investors head out into the world.
3. Several lawyers mentioned Valeant Pharmaceuticals for its acquisition of Salix Pharmaceuticals. But what they really were seeking was consideration for its proposal to acquire Allergan. That deal did not close.
4. At least one lawyer Lexpert consulted said that Shred-it International’s dual-track process, which culminated in a definitive agreement to sell to Stericycle for US$2.3 billion, should be in the Top 10 as it was the largest inbound private-equity deal in 2015.