11th Annual M&A Skills Boot Camp 2022

9:00 a.m.
Welcome and Introduction from  the Chair
Adrienne DiPaolo, Torys LLP

9:10 a.m.
Managing the Transaction
Claire Gowdy, McCarthy Tétrault LLP
• 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 letters of intent
• Engagement letters with financial advisors
• Case law update
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
– Duty to negotiate in good faith

10:45 a.m.
Break

11:00 a.m.
Effective Due Diligence
Jake Bullen, 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

12:15 p.m.
Lunch

1:00 p.m.
Structuring the Deal
Gilles Comeau, Davies Ward Phillips & Vineberg LLP
Kevin Greenspoon, Davies Ward Phillips & Vineberg LLP
Andrew Powers, Borden Ladner Gervais LLP
Ken Saddington, Goodmans LLP
Jason Saltzman, Borden Ladner Gervais LLP
Experienced counsel will walk you through the most common transaction structures, including corporate and securities 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
– Take-over bids
– Amalgamations
– Plans of arrangement
• Trends in deal structures

2:45 p.m.
Break

3:00 p.m.
Managing Regulatory Risk
Joshua Chad, McMillan LLP
Jacqueline Byers, Competition Law Officer, Mergers 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, Chief Legal and Regulatory Officer, Rogers Communications
• 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
• U.S. Foreign Investment and National Security Act of 2007
• Securities law issues – takeover bids, proxy rules and MJDS
• Governing law and dispute resolution
• Anti-bribery/corruption

9:00 a.m.
Negotiating the Fundamentals
Daniel Masliyah, Torys LLP
Danielle Traub, 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

10:30 a.m.
Break

10:45 a.m.
Labour, Employment, and Pensions and Benefits Issues in the M&A Process
Darryl R. Hiscocks, Torys LLP,
Susan Nickerson, Torys 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

12:00 p.m.
Lunch

12:45 p.m.
Corporate Governance Matters
Jason Koskela, Manager, Office of Mergers and Acquisitions, Ontario Securities Commission
Richard Turner, Blake, Cassels & Graydon LLP
• Corporate governance in M&A transactions
• Recent regulatory issues, cases and decisions
• Shareholder activism and proxy contests

1:45 p.m.
Highlights from Recent Deals
Samantha Horn, Stikeman Elliott LLP
Ian Palm, Gowling WLG (Canada) 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

2:30 p.m.
IT and IP Ownership
Richard Corley, Goodmans 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

3:15 p.m.
Break

3:30 p.m.
Privacy and Cybersecurity
Daniel J. Michaluk, Borden Ladner Gervais LLP
• A review of key privacy and cybersecurity issues
• Data/technology related due-diligence considerations
• Understanding recent trends in data-intensive M&A transactions

4:15 p.m.
Closing and Post Closing Logistics
Puja Kumar, Vice-President, Legal Affairs, Sagard
Matt Segal, Associate Director, Legal, OMERS Infrastructure Management Inc.
• 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