WWW.LEXPERT.CA
|
2016
|
LEXPERT 11
"I don't think there'll be less M&A activity,"
says Franziska Ruf, a partner at Davies Ward Phil-
lips & Vineberg LLP in Montréal. "ere have
been more hostile take-overs in the last 10 years,
but they still don't account for most of the deals."
"A lack of 'off ramps' for a potential bidder may
decrease the amount of hostile take-over bid activ-
ity in Canada," says Walied Soliman, a partner at
Norton Rose Fulbright Canada LLP in Toronto.
is is especially likely in the commodities sec-
tor, where short-term volatility may discourage a
would-be acquirer from initiating a bid that it can-
not pull quickly if price fluctuations warrant.
Speed of execution is always a factor that a hos-
tile bidder wishes to deploy to its advantage, says
Noralee Bradley, a partner at Osler, Hoskin &
Harcourt LLP in Calgary. "ey want to get their
deal done quickly. By their very nature, hostile
bids are opportunistic. ese new rules are going
to slow things down, and mitigate the ability to
quickly capitalize on an opportunistic bid period."
"It will definitely change the dynamics [of
hostile bids], but it's an open question as to how
much," says Cornell Wright, a partner at Torys
LLP in Toronto. "Everybody – lawyers, bankers –
is thinking through and analyzing tactics and how
to deal with the new regime."
e CSA intends to impose a longer period –
105 days – for all take-over bids to remain open.
at will be three times the current statutory min-
imum of 35 days (though, in practice, most take-
over bids stay open for 60 to 120 days).
e new rules will also require the bidder to buy
50 per cent of the shares it doesn't already own –
currently, there's no "minimum tender condition"
– and, once that threshold is reached, to extend its
bid for at least 10 days to allow other shareholders
to tender their shares.
ese latter two changes have been relatively free
of controversy. e 10-day extension is intended to
meet concerns that shareholders felt pressured to
tender shares to an offer they did not like rather
than risk being le as minority shareholders with
no opportunity to sell later.
It is the longer open-bid period that has ruffled
some feathers. It will allow target boards more
time to find alternatives to hostile bids and to
communicate with shareholders — and may lead
to more competing bids.
"Canada is already the most shareholder-friend-
ly jurisdiction in the Western world with respect
to activists in proxy fights and acquirers in hos-
tile bids," says Soliman. "We live in a jurisdiction
where 'poison pills' are simply a tool to delay, but
not stop, an acquisition."
is contrasts with the US, where a poison pill
is almost impossible to have cease-traded. If the
board of a target company does not wish to be ac-
quired, the bidder must stage a proxy fight at the
Castiel, Peter Stikeman Elliott LLP
(514) 397-3272 pcastiel@stikeman.com
Mr. Castiel is a partner in the Corporate Commercial Group and is a member
of the Montréal's office Management Committee and firm's Partnership Board.
Practice focuses on cross-border M&A and corporate financings. Has extensive
expertise in advising private-equity funds, sovereign wealth funds and leading
public and private companies in connection with acquisitions, divestitures
and investments.
Carfagnini, Jay A. Goodmans LLP
(416) 597-4107 jcarfagnini@goodmans.ca
Mr. Carfagnini's practice includes a focus on corporate reorganizations,
with an expertise in cross-border and international transactions
involving the US and the UK. He has been an advisor in most recent
major Canadian restructurings.
Carelli, Robert Stikeman Elliott LLP
(514) 397-2408 rcarelli@stikeman.com
Partner and head of the Montréal Securities Group. His practice focuses
on securities, corporate finance, public and private M&A and corporate
governance. He advises issuers and underwriters on public offerings and
private placements, purchasers, boards of directors and private-equity funds
on M&A transactions, and public issuers and securities dealers in connection
with securities matters.
Burgoyne, Terrence R. Osler, Hoskin & Harcourt LLP
(416) 862-6601 tburgoyne@osler.com
Mr. Burgoyne advises Canadian and international clients on complex, multi-
jurisdictional transactions primarily involving private M&A, JVs and strategic
alliances in the manufacturing, financial, travel, retail and services sectors.
Buckingham, Janice Osler, Hoskin & Harcourt LLP
(403) 260-7006 jbuckingham@osler.com
Ms. Buckingham's practice focuses on the development, acquisition
and divestiture of complex energy projects, infrastructure and investments
in Canada, including LNG export projects. She also advises on issues arising
from industry standard agreements.
Bryce, Douglas A. Osler, Hoskin & Harcourt LLP
(416) 862-6465 dbryce@osler.com
Mr. Bryce is a partner in the firm's Business Law group, focusing on mergers
and acquisitions and securities law matters, and has acted on a number
of Canada's highest-profile M&A transactions. He is currently a member
of the firm's Executive Committee and is Chair of the firm's Mining Group.
LEXPERT RANKED LAWYERS
