M&A Skills Boot Camp

1:00 p.m.
Welcome and Introduction from the Chair

Adrienne DiPaolo
Torys LLP

1:10 p.m.
Managing the Transaction

David Badour
McCarthy Tétrault LLP

Claire Gowdy
Fasken Martineau DuMoulin LLP

Managing the Transaction

• Understanding the deal and client objectives
• Efficient project management in the M&A context
• Effective client communication

Preliminary Documents

• Key negotiated clauses in Confidentiality Agreements and Non‑Disclosure Agreements
• Term Sheets, Letters of Intent and Memorandums of Agreement
• Case law updates

Ethics and Professionalism Responsibilities in M&A Transactions

• Confidentiality and privilege
• Securities trading
• Conflicts of interest
  • Understanding your duties and responsibilities
  • Identifying conflicts
  • Techniques for managing conflicts
• Other ethical considerations
• Lawyering in 2024: Responsible use of new LegalTech and AI

2:45 p.m.
Break

3:00 p.m.
Effective Due Diligence

Brian Temins
Cassels Brock & Blackwell LLP

• Purpose and importance
• Understanding client expectations and reporting results
• Planning and staffing
• Co‑ordinating with business and financial diligence
• Spotting the “red flags” and identifying potential solutions
• Addressing and managing the potential for professional liability
• Recent developments

4:15 p.m.
IT and IP Ownership

Alison Hayman
Osler Hoskin & Harcourt LLP

• Key issues in IT and IP due diligence
• Establishing and implementing a due diligence plan
• Avoiding common IT/IP pitfalls
• Assessing IP ownership and exposure
• Open source and other software licences
• Emerging issues and trends

1:00 p.m.
Structuring the Private M&A Deal

Kevin Greenspoon
Davies Ward Phillips & Vineberg LLP

Kelli Patel
Dentons Canada LLP

Ken Saddington
Goodmans LLP

Experienced counsel will walk you through the most common transaction structures in private M&A, including corporate law considerations and tax implications.

• Factors to consider when structuring the deal
• How to determine the best structure for your transaction
• What forms can a transaction take and how do they differ?
  • Share/asset purchases
  • Amalgamations
• Trends in deal structure

2:30 p.m.
Break

2:45 p.m.
Public M&A 101

Adriene DiPaolo
Torys LLP

Jason Koskela
Director, Office of Mergers and Acquisitions, Ontario Securities Commission

Richard Turner
Blake, Cassels & Graydon LLP

• How are public M&A deals different from private ones?
• Factors to consider when structuring the deal
• Plans of arrangement and takeover bids
• Shareholder activism and proxy contests
• Corporate governance in M&A transactions
• Recent regulatory issues, cases and decision

4:00 p.m.
Highlights from Recent Deals

John Lee
Stikeman Elliott LLP

W. Ian Palm
Fasken Martineau DuMoulin LLP

André Perey
Osler, Hoskin & Harcourt LLP

• Sources of deal points information
• Trends in Canadian, US and European deals
• Earn‑outs
•  Escrows
• MAE/MAC
• Remedies
  • Break fees
  • Specific performance
• Indemnification
  • Survival periods
  • Sandbagging
  • Deductibles, baskets, and caps
  • Types of losses
• New developments in representation and warranty insurance

1:00 p.m.
Negotiating the Fundamentals

Danielle Kline
Torys LLP

Claire Chapman
Torys LLP

Using precedents and reviewing key negotiated clauses and negotiation techniques, this session will delve into:

• Representations and warranties, and how to use for obtaining information and allocating risk
• What is reasonable to ask for and why/why not?
• Due diligence to support representations and warranties
• Role of representation and warranty insurance
• Survival
  • Effect of closing
  • Conventional periods
• Covenants and conditions
• Implications of failure to perform
• Covenants to be satisfied prior to/after closing
• Conditions of closing
  • What is appropriate?
• Indemnities
• When is indemnification appropriate?
  • Risk allocation when uncertainty exists
  • Damages for failure to perform
• Limits
  • Deductibles, baskets and caps
• Enforceability issues

2:30 p.m.
Break

2:45 p.m.
Managing Regulatory Risk

Joshua Chad
McMillan LLP

Alex Sarabura
Competition Law Officer, Merger Intelligence and Notification Unit, Competition Bureau

• The statutory framework for review of M&A transactions
• The Competition Bureau’s review process, and the practical implications of how Bureau administrative processes overlay the statutory framework
• Considerations in planning the Competition Act clearance processes
• Covenants, representations and warranties concerning the Competition Act clearance process and allocation of the risks of the regulatory process
• The typical give and take between buyer and seller – who has responsibility for what, who can make decisions about what, when can a buyer walk because of a Competition Act problem
• Planning the M&A process with the Competition Act process in mind
• The Investment Canada Act process and how it can affect your deal

4:00 p.m.
Managing Risk in International Transactions

Michael D. Amm
Torys LLP

Lisa Damiani
EVP & General Counsel, Canadian Tire Corporation

• What is different about international deals?
• Determining the role of Canadian and foreign counsel in international deals
• Structuring and tax planning issues
• Managing the Hart‑Scott‑Rodino Act pre‑merger notification and review process and other regulatory approvals
• Foreign investment review/national security considerations
• Securities law issues – takeover bids, proxy rules and MJDS
• Governing law and dispute resolution
• Anti‑bribery/corruption

1:00 p.m.
Labour, Employment, Pensions and Benefits Issues in the M&A Process

Darryl R. Hiscocks
Torys LLP

Susan Nickerson
McCarthy Tétrault LLP

• The impact of asset versus share transactions on labour, employment, and pension and benefits issues
• Key issues in employment and pensions and benefits due diligence
• Different ways employees and pensions and benefits are handled in acquisition transactions
• Impact of collective agreements in acquisition transactions
• Termination and severance issues
• Successor employer legislation issues
• Management incentive agreements
• Emerging issues and trends

2:15 p.m.
Privacy and Cybersecurity

David Krebs
Miller Thomson LLP

• A review of key privacy and cybersecurity issues
• Data/technology related due‑diligence considerations
• Understanding recent trends in data‑intensive M&A transactions

3:15 p.m.
Break

3:30 p.m.
Closing and Post-Closing Logistics

Lindsay Balson
Blake Cassels & Graydon LLP

Justin Flavelle
Legal Director, Labatt Breweries of Canada

• The dynamics and logistics of closing
  • Anticipating issues and logjams
  • Orchestrating the closing
• Developing the closing agenda
• Payments mechanics, electronic transfers and the Large Value Transfer System
• Escrow agreements and holdbacks
• Reporting to the client
• Handling post‑closing disputes

4:15 p.m.
Case Study Exercise

Adrienne DiPaolo
Torys LLP

Stephen Neil
Torys LLP

Applying the concepts learned throughout the program to a practical corporate acquisition case study exercise.