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.
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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, 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.
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.
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.
There are two kinds of M&A:
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.
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”).
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.
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.
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.
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.
As of 2023, the Competition Bureau maintains the pre-merger notification current threshold of $93 million.
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:
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