14 LEXPERT
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2017
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WWW.LEXPERT.CA
Dobbin, Terence S. Norton Rose Fulbright
Canada LLP
(416) 216-3935
terence.dobbin@nortonrosefulbright.com
Mr. Dobbin focuses on mergers & acquisitions and corporate governance.
He advises acquirers and target companies in connection with negotiated
transactions and unsolicited take-over bids. Mr. Dobbin has extensive
experience with large multijurisdictional transactions and provides
advice to boards and their committees, often in the context
of transformative transactions.
DesLauriers, J. Mark Osler, Hoskin & Harcourt LLP
(416) 862-6709 mdeslauriers@osler.com
Mr. DesLauriers's practice focuses on cross-border finance and the regulation
of securities and derivatives marketplaces, dealers and advisors. Clients
include investment banks, securities dealers, financial institutions, asset
managers, securities and derivatives marketplaces, and corporate investors.
Désilets, Olivier Davies Ward Phillips & Vineberg LLP
(514) 841-6561 odesilets@dwpv.com
Mr. Désilets specializes in corporate and securities law with an emphasis
on capital markets and mergers and acquisitions. Has extensive experience
in public offerings, take-over bids, plans of arrangement, private placements,
corporate governance matters, as well as general securities law compliance
in various industries. He is the Coordinator of the Capital Markets Group
in the Montréal office.
Desbarats, QC, Robert P. Osler, Hoskin
& Harcourt LLP (403) 260-7015 rdesbarats@osler.com
Mr. Desbarats advises Canadian, US and foreign clients on complex domestic
and cross-border energy transactions. His experience engages the oil and gas
and power generation sectors, and the purchase and sale of energy assets
and companies.
Denstedt, QC, Shawn H.T. Osler, Hoskin
& Harcourt LLP (403) 260-7088 sdenstedt@osler.com
Mr. Denstedt is national Co-chair of the firm. His practice is comprised
of energy, mining, environmental, regulatory and Aboriginal law matters.
He has advised Canada's largest energy industry associations in respect
of regulatory reform for energy project development. He has appeared
in major proceedings before many of Canada's major regulatory tribunals.
Cusinato, Curtis Stikeman Elliott LLP
(416) 869-5221 ccusinato@stikeman.com
Mr. Cusinato is a partner in the Toronto office and a member of the firm's
Partnership Board. He practises corporate and securities law, with an
emphasis on domestic and cross-border M&A. His clients include private
and public multinational companies in a wide range of industries,
private-equity groups, hedge funds, merchant and investment banks
and sovereign wealth funds.
LEXPERT RANKED LAWYERS
issued to inform the market. In most cases, Pincus
says, the entire process is wrapped up and the issue
is sold out within two to three weeks.
ere's nothing legally binding about the ex-
pression of interest by institutional investors,
Phillips says, "but for all intents and purposes,
it's a deal." He concedes that an investor could re-
nege. "But guess what, they're not going to get the
call next time." Since bought deals are the lion's
share of the market, expressions of interest are al-
ways honoured.
Now, however, the dominion of the bought
deal is being questioned in certain quarters. Des-
mond Lee, with Osler, Hoskin & Harcourt LLP,
says there have been recent instances of foreign
underwriters seeking to make inroads for alterna-
tive deal structures in Canada. He's not convinced
usurpers have so far found a winning formula —
but efforts are being made.
Last September, for example, Credit Suisse
Securities and JPMorgan raised $1 billion for En-
cana Corp. with a modified block trade done on a
fee of 1.8 per cent — or less than half the standard
fee for a bought deal. But Phillips agrees there are
many reasons why this structure appears unlikely
to make major waves in Canada. "It was really a
US offering," Phillips says. "It was priced in US
dollars and shares were delivered through … a US
clearing agency. It was filed in the US with the
SEC, as well as in Canada." And proceeds were
largely dedicated to Encana's US exploration and
production activities.
e deal was announced on September 19. A
preliminary bulleted prospectus supplement was
then filed and the offering was marketed the same
night. "e low underwriting fee was presumably
due to the underwriters being able to market the
offering before pricing it and committing to buy
it — all consistent with US underwriters' discom-
fort with the bought-deal structure and attendant
risk," Phillips says, pointing out that the Encana
arrangement was dependent on too many pecu-
liar circumstances — a well-known Canadian
issuer, listed on the NYSE, with a sufficiently
large US investor following — all of which ensure
it's unlikely to be replicated on a regular basis.
Some other alternative structures have been
tried, including selling an entire issue directly to
institutional investors, without the involvement
of underwriters, Phillips notes. But, so far, none
has assumed the profile of a powerful new trend.
Lee says the trend may actually be tilting in the
opposite direction. "I don't see the bought deal in
Canada going away anytime soon," he says. "e
simplicity, predictability and low execution risk of
the bought deal will continue to make it the pre-
dominant means of carrying out an equity offer-
ing in Canada. If anything, we see the bought deal
becoming more popular in the US market."
