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What is Mergers & Acquisitions?

Best Mergers and Acquisitions lawyers in Canada as ranked by Lexpert

 

Mergers & Acquisitions lawyers are involved in transactions that effect or threaten to effect a change of control or ownership of corporations. Typically, this would involve representation of offerors, offerees and other interested parties in connection with take-over bids, amalgamations, arrangements and the like, as well as “defensive” advice to corporations that perceived themselves to be vulnerable to unwanted or unsolicited offers.

 

The M&A practitioner’s primary role is to lead a team of specialists and to coordinate their input on the corporate, securities, finance, tax, competition, labour, employee benefits, real property, regulatory, environmental, intellectual property, litigation and other areas of law that are likely to be implicated by a proposed transaction, while providing senior management with strategic input in conjunction with other M&A specialist advisors such as investment bankers, accountants, communications experts and government relations consultants.

 

The deal management role often encompasses working with and incorporating the input from legal and other specialists in other provinces and countries. The definition of an M&A practice should include the ability to provide strategic advice, to apply seasoned business judgment and to creatively deal with the fast-changing moves and counter-moves of competitive bidding situations.

 

The Lexpert Directory also has separate practice areas for:

  • Intellectual property lawyers
  • Employment lawyers
  • Competition law lawyers
  • Corporate litigation lawyers

 

Are mergers and acquisitions regulated by laws?

Mergers and acquisitions are regulated by federal, and provincial/territorial laws. It also depends on whether the parties are either public or private companies. In outlining these laws and its applicability, a mergers and acquisitions lawyer may best provide such delineations and other specifics of such.

 

Mergers and Acquisitions

Mergers and Acquisitions, or commonly referred to as M&A, are two different transactions which are usually linked as one due to its similarities as to its nature and governing laws and regulations. Generally, M&A is when two different companies combine or unite to become one (merger), or when a one company purchases or takeovers another company (acquisition), or through a mix of these two.

Companies in pursing an M&A are customarily represented by a mergers and acquisitions lawyer, together with its shareholders and the top management officers. This is to ensure that the M&A benefits the concerned party, while following the governing regulations on M&A.

Companies usually go through M&A to maximise the assets of the two companies, increase the assets of one, lessen the operational or management costs, widen the market share, create new product or strengthen existing ones, or expand the locations of the two companies.

 

Merger

In a merger, two companies form a new one – through consolidation, combination, or unification – where by agreement both companies equally put their assets or shares for the new merged company (though, also by agreement, one company might have larger shares compared to the other).

Mergers usually happen because of a bilateral and consensual agreement of two parties, which may be both at equal footing in terms of company size and assets, unlike in an acquisition which can be an unamicable transaction between the parties. The two merging companies may either be rival companies of the same product, or two producers of different products merging to create new products.

 

Acquisition

An acquisition may occur when a company buys the majority or all the shares of another, which gives the acquiring-company majority or full control over the operations. This is usually because of an impending insolvency or bankruptcy of the acquired-company, or when it is about to cease operations, but offers, or is offered, an acquisition by a proposing acquiring-company.

Oftentimes, a larger company acquires a smaller one; but a “reverse acquisition” may also occur when a smaller, or newer, company acquires a larger one. In an acquisition, the acquiring-company may either retain the company name of the acquired-company, or uses its own replacing the latter’s.

 

Canadian Mergers and Acquisitions

There are two kinds of M&A:

  • Public M&A – refers to an M&A transaction where the target company is a Canadian-listed company, hence, its stock is publicly traded. It may be done in three ways: take-over bid; amalgamation; or plan of arrangement.
  • Private M&A – when the acquired company is not publicly listed or is not a Canadian-listed company.

Canadian federal and provincial/territorial laws on M&A are a mixture of different practice areas of law, such as corporate law, competition law, and taxation, among others. Specific application of these laws, and the ones mentioned below, must be referred to a mergers and acquisitions lawyer, especially with the complementing administrative procedures of these laws.

 

Competition Act

The Competition Act, in line with its purpose of regulating corporate transactions to maintain healthy competition among specific markets in Canada, is one of the laws which regulates M&A. The Act specifically prohibits cartels (or cartelization) and monopolies (monopolisation of markets); therefore, it must be strongly shown that an M&A transaction will not result to cartelization or monopolies, or that there has been no conspiracy between the two contracting companies. In this regard, a mergers and acquisitions lawyer are best consulted to faithfully comply with the Act and prevent its violation.

Financial thresholds are set by the Act, and when these financial thresholds are reached, there must be a pre-closing notification or pre-M&A notification to be filed by the companies to the Competition Bureau (referred to as “notifiable transactions”). However, companies which has undergone an M&A, which are exempted from review because of these financial thresholds are not reached, may still be reviewed by the Commissioner of Competition within one year of its closing (referred to as “non-notifiable transactions”).

 

Investment Canada Act

While the pre-closing notification under the Competition Act is also regulated under the Investment Canada Act, the pre-closing notification provisions on this Act with regards to M&A will apply when a non-Canadian or foreign investor acquires a Canadian business. Financial thresholds are also set by this Act, and a deal will not be closed until the applicable Minister has proceeded with their review of the said investment.

 

Who approves mergers in Canada?

The Competition Bureau, through the Commissioner of Competition, has been granted the authority by the Competition Act to review any M&A which has the tendency to lessen competition in Canadian market. The Bureau, before the closing of an M&A transaction, reviews notifiable transactions, and even investigate non-notifiable transactions if it will result to a violation of the Act.

 

What is the difference between merger and acquisition in Canada?

While an M&A will likely result to a single entity, the difference between a merger and an acquisition is that a merger will result to a creation of a new, single, larger entity, while an acquisition will enlarge an existing one.

 

What is a break fee in M&A in Canada?

A break fee in a Canadian M&A is a contractual stipulation to protect a party from another party which will unreasonably, without consent of the other party, and subject to the other conditions of their contract, violate the terms thereto.

A classic example is when a party would not continue with the M&A anymore; although, a break fee may also apply to other circumstances. A mergers and acquisitions lawyer may help in crafting a break fee stipulation in a contract to ensure the liabilities of both parties should there be a future breach.

 

What is the merger threshold in Canada?

As of 2023, the Competition Bureau maintains the pre-merger notification current threshold of $93 million.

 

What is Section 92 of the Canadian Competition Act?

In line with its purpose of maintaining a healthy competition in Canadian, Section 92 of the Competition Act states that when the Commissioner of Competition finds that a potential merger would likely prevent or lessen competition among the same market, the Competition Tribunal, upon application by the Commissioner, may order the following actions:

  • In case of a completed merger, the Tribunal may order to dissolve the merger, or to dispose of the assets or shares designated by the Tribunal; or
  • In case of a proposed merger, the Tribunal may order to any party to not proceed with the merger; or
  • In addition to the above-stated, any other action that may be ordered by Tribunal.

Want to know more about M&A and its laws and regulations? Consult with the best mergers and acquisitions lawyer by heading down below, all of whom are Lexpert Ranked.

Gesta A. Abols
Gesta A. Abols
Year called to bar: 2002
Toronto, Ontario
Fasken Martineau DuMoulin LLP
Abbas Ali Khan
Abbas Ali Khan
Year called to bar: 2001
Toronto, Ontario
Bennett Jones LLP
David A. Allard
David A. Allard
Year called to bar: 1987
Vancouver, British Columbia
Lawson Lundell LLP
S. Paul Amirault
S. Paul Amirault
Year called to bar: 1995
Ottawa, Ontario
Norton Rose Fulbright Canada LLP
Michael D. Amm
Michael D. Amm
Year called to bar: 1998
Toronto, Ontario
Torys LLP
W. Alfred Apps
W. Alfred Apps
Year called to bar: 1987
Toronto, Ontario
Miller Thomson LLP
Marcus W. Archer
Marcus W. Archer
Year called to bar: 1999
Calgary, Alberta
Norton Rose Fulbright Canada LLP
Alethea Au
Alethea Au
Year called to bar: 2004
Toronto, Ontario
Stikeman Elliott LLP
Jared Bachynski
Jared Bachynski
Year called to bar: 2013
Vancouver, British Columbia
Stikeman Elliott LLP
Jeffrey Bakker
Jeffrey Bakker
Year called to bar: 2004
Calgary, Alberta
Blake, Cassels & Graydon LLP
Richard J. Balfour
Richard J. Balfour
Year called to bar: 1980
Toronto, Ontario
Torys LLP
Enzo J. Barichello
Enzo J. Barichello
Year called to bar: 1983
Edmonton, Alberta
Bennett Jones LLP
Harinder Basra
Harinder Basra
Year called to bar: 2003
Calgary, Alberta
Bennett Jones LLP
Chad Bayne
Chad Bayne
Year called to bar: 2002
Toronto, Ontario
Osler, Hoskin & Harcourt LLP
Josianne Beaudry
Josianne Beaudry
Year called to bar: 2000
Montréal, Québec
Lavery, de Billy, L.L.P.
Carl Bélanger
Carl Bélanger
Year called to bar: 1998
Montréal, Québec
Fasken Martineau DuMoulin LLP
Alan Bell
Alan Bell
Year called to bar: 1975
Toronto, Ontario
Bennett Jones LLP
Sébastien Bellefleur
Sébastien Bellefleur
Year called to bar: 2005
Montréal, Québec
Fasken Martineau DuMoulin LLP
Donald G. Belovich
Donald G. Belovich
Year called to bar: 1998
Toronto, Ontario
Stikeman Elliott LLP
Cameron G. Belsher
Cameron G. Belsher
Year called to bar: 1988
Vancouver, British Columbia
McCarthy Tétrault LLP
Steven D. Bennett
Steven D. Bennett
Year called to bar: 2011
Toronto, Ontario
Stikeman Elliott LLP
Ross Bentley
Ross Bentley
Year called to bar: 1995
Calgary, Alberta
Blake, Cassels & Graydon LLP
Ally Bharmal
Ally Bharmal
Year called to bar: 2009
Vancouver, British Columbia
Fasken Martineau DuMoulin LLP
(Ricco) A.S. Bhasin
(Ricco) A.S. Bhasin
Year called to bar: 2006
Toronto, Ontario
Torys LLP
Joel E. Binder
Joel E. Binder
Year called to bar: 1991
Toronto, Ontario
Stikeman Elliott LLP
Todd Bissett
Todd Bissett
Year called to bar: 2013
Kitchener-Waterloo, Ontario
Gowling WLG
Simon Bisson
Simon Bisson
Year called to bar: 2014
Montréal, Québec
Fasken Martineau DuMoulin LLP
Rob Blackstein
Rob Blackstein
Year called to bar: 2006
Toronto, Ontario
Borden Ladner Gervais LLP (BLG)
John-Paul Bogden
John-Paul Bogden
Year called to bar: 1999
Vancouver, British Columbia
Blake, Cassels & Graydon LLP
Michel Boislard
Michel Boislard
Year called to bar: 1989
Montréal, Québec
Fasken Martineau DuMoulin LLP
Daniel Borlack
Daniel Borlack
Toronto, Ontario
Stikeman Elliott LLP
Patrick Boucher
Patrick Boucher
Year called to bar: 1996
Montréal, Québec
McCarthy Tétrault LLP
Louis-Nicolas Boulanger
Louis-Nicolas Boulanger
Year called to bar: 2006
Montréal, Québec
McCarthy Tétrault LLP
Philippe Bourassa
Philippe Bourassa
Year called to bar: 1997
Montréal, Québec
Blake, Cassels & Graydon LLP
Fraser Bourne
Fraser Bourne
Year called to bar: 2006
Montréal, Québec
McCarthy Tétrault LLP
William J. Braithwaite
William J. Braithwaite
Year called to bar: 1980
Toronto, Ontario
Stikeman Elliott LLP
Elizabeth Breen
Elizabeth Breen
Year called to bar: 1984
Toronto, Ontario
Stikeman Elliott LLP
Andrea Brewer
Andrea Brewer
Year called to bar: 2007
Toronto, Ontario
Norton Rose Fulbright Canada LLP
Drew C. Broughton
Drew C. Broughton
Year called to bar: 2009
Calgary, Alberta
Bennett Jones LLP
James R. Brown
James R. Brown
Year called to bar: 2008
Toronto, Ontario
Osler, Hoskin & Harcourt LLP
Douglas A. Bryce
Douglas A. Bryce
Year called to bar: 1997
Toronto, Ontario
Osler, Hoskin & Harcourt LLP
Terrence R. Burgoyne
Terrence R. Burgoyne
Year called to bar: 1983
Toronto, Ontario
Osler, Hoskin & Harcourt LLP
Michael Burkett
Michael Burkett
Year called to bar: 2002
Toronto, Ontario
Stikeman Elliott LLP
Colin Burn
Colin Burn
Toronto, Ontario
Stikeman Elliott LLP
Frank S. Callaghan
Frank S. Callaghan
Year called to bar: 1982
Toronto, Ontario
Borden Ladner Gervais LLP (BLG)
Gordon Cameron
Gordon Cameron
Year called to bar: 2009
Calgary, Alberta
McCarthy Tétrault LLP
Brian R. Canfield
Brian R. Canfield
Year called to bar: 1991
Vancouver, British Columbia
FARRIS
Robert Carelli
Robert Carelli
Year called to bar: 2000
Montréal, Québec
Stikeman Elliott LLP
Stuart S. Carruthers
Stuart S. Carruthers
Year called to bar: 1995
Toronto, Ontario
Stikeman Elliott LLP
Peter Castiel
Peter Castiel
Year called to bar: 1993
Montréal, Québec
Stikeman Elliott LLP
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