M&A Skills Bootcamp 2023

Welcome and Introduction from the Chair
Adrienne DiPaolo, Torys LLP

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 2023: Responsible use of new LegalTech and AI

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

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

Structuring the Private M&A Deal
Kevin Greenspoon, Davies Ward Phillips & Vineberg LLP
Ken Saddington, Goodmans LLP
Jason Saltzman,Dentons Canada 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
– Plans of arrangement
• Trends in deal structure

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
• Corporate governance in M&A transactions
• Recent regulatory issues, cases and decisions

Highlights from Recent Deals
Samantha Horn, 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
• New developments in representation and warranty insurance
• Impact of lending environment, inflation and other headwinds
• Valuations
• Private vs. Public

Negotiating the Fundamentals

Danielle Kline, Torys LLP
Daniel Masliyah, 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

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

Managing Risk in International Transactions
Michael D. Amm, Torys LLP
Lisa Damiani, EVP & General Counsel, Canadian Tire

• 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

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

Privacy and Cybersecurity
Matin Fazelpour, 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

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, allocation of responsibility
• Payments mechanics, electronic transfers
• Escrow agreements and holdbacks
• Reporting to the client
• Managing integration
• Handling post‑closing disputes

Case Study Exercise
Adrienne DiPaolo, Torys LLP
Daniel Masliyah, Torys LLP

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