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McCarthy Tétrault Advance™Building Capabilities for GrowthDEALS: MAKING & BREAKING THEM 18 May 2011McCarthy Tétrault LLP /...
2WHEN DO YOU HAVE A DEAL ANDHOW SHOULD IT BE DOCUMENTED?          LOIs and Definitive Agreements                          ...
3What is the purpose of a Letter of Intent(LOI)?¬ Common precursor to a business transaction¬ Outlines the intent of the p...
4When should LOIs be used?¬ When it isn’t clear that a deal will be made   ¬ Allows parties to work out the essential term...
5Binding or non-binding?¬ An LOI can be binding or non-binding, in whole or in part¬ Problems arise when parties fail to s...
6Has a binding commitment/contractbeen formed?¬ Common law requirements of contract formation:   ¬    Offer   ¬    Accepta...
Other factors for determining binding/                       7non-binding¬ Presence of essential open terms¬ Definiteness ...
8Precontractual negotiations¬ As a general rule, a party to precontractual negotiations  has traditionally been able to br...
9Duty of good faith – What is it?¬ What is good faith?     ¬ Little judicial consistency in its definition             ¬  ...
10Duty of good faith – Status in law¬ Law in respect of the duty of good faith is unclear¬ Pre-contractual obligation of g...
11Duty of good faith – Status in law (con’t)¬ Contractual duty of good faith   ¬ Not clear whether implied duty of good fa...
12 Implications of duty of good faith¬ Conclusion:   ¬ Likely not applicable to pre-contractual negotiations            ¬ ...
LOI practice tips                                                          13¬ Consider whether an LOI, with its attendant...
14Definitive agreements¬ The detailed and complete deal terms should be reflected  in an agreement in a form appropriate f...
15     NON-DISCLOSURE/ CONFIDENTIALITY AGREEMENTSAND DUTIES OF CONFIDENTIALITY                                         Mic...
16Duties of Confidentiality¬ The exchange of confidential information is an  essential part of deal-making.¬ Duties of con...
17Common Law¬ At common law, a duty of confidentiality exists  where (1) information with a “confidential  character” is (...
18Common Law¬ Whether information has a “confidential  character” depends on a number of factors:  ¬ Cost  ¬ Value  ¬ Secr...
19Negotiating Confidentiality Agreements¬ If carefully drafted, CAs can provide the parties  with certainty concerning dut...
20Defining Confidential Information¬ The disclosing party will seek a broad definition,  while the receiving party will se...
21Ousting the Common Law: EntireAgreement Clauses¬ A carefully drafted entire agreement clause can prevent a  common law d...
22Restrictions: Permitted Uses OfConfidential Information¬ The disclosing party will seek a narrow permitted  use clause, ...
23Restrictions: Permitted Uses OfConfidential Information¬ Permitted use clauses must be drafted precisely.  ¬ A CA permit...
24Restrictions: Standstill Clauses¬ CAs often contain standstill clauses prohibiting  the recipients from acquiring shares...
25Restrictions: Standstill Clauses¬ Absent an express indication to the contrary, standstill  clauses are independent: the...
26Restrictions: Area Of Interest Clauses¬ An area of interest clause prohibits the recipient  from staking within a define...
27Restrictions: Area Of Interest Clauses¬ A badly drafted area of interest clause can  negate all other restrictions on th...
28Confidentiality Agreement Paralysis  McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
29Ethical Walls: A Solution?¬ An ethical wall attempts to foreclose any  suggestion that confidential information has been...
30An Effective Ethical Wall: Dataco¬ Olameter entered into a CA with Dataco then received  information in connection with ...
31Other Practical Tips¬ Consider implementing an ethical wall whenever  a CA is made.¬ Beware of unsolicited proposals or ...
32                   PUBLIC COMPANY                    CONSIDERATIONS                                    Robin MahoodMcCar...
33Public Companies – DisclosureObligations¬ Basic Requirement      ¬ If a “material change” occurs in the affairs of a rep...
Disclosure Obligations – AiT Advanced                                                        34Technologies¬ OSC Decision ...
AiT Advanced Technologies – OSC Decision                                             35¬ Decision   ¬ No material change o...
AiT Advanced Technologies – Practice Points                                      36¬ Negotiations do not need to be disclo...
37Filing of Material Contracts¬ Subject to exceptions for certain contracts entered into in the  ordinary course of busine...
38Change of Control Transactions¬ Directors and officers must:   ¬ act honestly and in good faith with a view to the best ...
39Management Conflicts of Interest¬ Potential conflicts of interest in connection with a change of control  transaction pr...
40Management Conflicts of Interest (cont.)Lear Corporation    ¬ Board did not perceive a conflict of interest and allowed ...
41Management Conflicts of Interest (cont.)¬ If senior management has an interest in a  transaction, adopt procedures or sa...
42Change of Control Transactions¬ General obligation to act in the best interests of the company   ¬ this will not always ...
43Market Checks¬ Two general approaches   ¬ pre-agreement market check   ¬ post-agreement market check¬ Pre-agreement auct...
44Go-Shop Provisions¬ In certain circumstances, an auction may not be practical   ¬ potential buyer may require exclusivit...
45Advantages of Go-Shop Provisions¬ Intended benefits of go-shop provisions include the  following   ¬ allows seller to es...
46Criticism of Go-Shop Provisions¬ Several commentators have criticized go-shop  clauses as “window-dressing” during the p...
47Effective Use of Go-Shop Provisions¬ Studies have shown that go-shop clauses can increase return  to shareholders, parti...
48    WHEN DEALS ARE BROKEN                                              Miranda LamMcCarthy Tétrault LLP / mccarthy.ca / ...
49OVERVIEW¬ Mechanisms for Dispute Resolution¬ Common Forms of Dispute Resolution¬ Comparative Strategic Advantages and  D...
50McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
51       Mechanisms For Dispute Dispute Resolution Spectrum   1             2              3             4               5...
52Common Mechanisms For DisputeResolutions¬ Alternative Dispute Resolution   ¬ Mediation   ¬ Arbitration¬ Litigation  McCa...
53Alternative Dispute Resolution¬ Mediation  ¬ Process by which two or more parties to a dispute    attempt to resolve the...
54Alternative Dispute Resolution¬ Arbitration   ¬ Process of resolving disputes between two or     more parties whereby a ...
55Litigation¬ Litigation   ¬ A claim is commenced by an aggrieved party in     the court against another.   ¬ The dispute ...
56Advantages of Alternative DisputeResolution¬   Expert decision-maker¬   Control over procedure¬   Relationship preservat...
57Challenges with Alternative DisputeResolution Methods¬   Lack of procedural certainty¬   Difficulties with enforcement¬ ...
58Litigation Process¬ Advantages  ¬   Certainty  ¬   Enforceability  ¬   Availability of options for recourse and relief  ...
59To Litigate or Arbitrate?Considerations:¬   Nature of the dispute anticipated to arise¬   History and relationship betwe...
60If you arbitrate:Considerations when drafting an arbitration clause:¬ Choice of law and forum or place of arbitration¬ G...
61If you arbitrate:¬ British Columbia International Commercial  Arbitration Centre (BCICAC) Model Arbitration  Clause     ...
62Arbitral Procedure¬ Ad hoc v. institutional rules or procedure   ¬ Ad hoc           ¬ Specific, tailor-made for specific...
British Columbia International Commercial Arbitration Centre                                                              ...
VANCOUVER                                    MONTRÉALSuite 1300, 777 Dunsmuir Street              Suite 2500P.O. Box 10424...
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Deals Making And Breaking Them (May 2011)

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Deals Making And Breaking Them (May 2011)

  1. 1. McCarthy Tétrault Advance™Building Capabilities for GrowthDEALS: MAKING & BREAKING THEM 18 May 2011McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  2. 2. 2WHEN DO YOU HAVE A DEAL ANDHOW SHOULD IT BE DOCUMENTED? LOIs and Definitive Agreements David CraneMcCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  3. 3. 3What is the purpose of a Letter of Intent(LOI)?¬ Common precursor to a business transaction¬ Outlines the intent of the parties to engage in some form of business relationship and anticipates, either expressly or impliedly, continued negotiations to reach a definitive agreement ¬ Expression of common intent to enter into negotiations in view to conclude a business transaction¬ Also called a memorandum of understanding or term sheet¬ Avoid wasting time and money required to try to negotiate a full deal (i.e. definitive contract) only to have the deal fall apart because of a lack of agreement with respect to a fundamental term (e.g. price)¬ Builds deal confidence - allows for efficient evaluation of the likelihood of success or failure of a transaction McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  4. 4. 4When should LOIs be used?¬ When it isn’t clear that a deal will be made ¬ Allows parties to work out the essential terms of the deal in a more informal process without incurring the time and expense of trying to negotiate a complete definitive agreement¬ To record and track the main deal terms so that they can be communicated to others (e.g. the lawyers drafting the definitive agreement(s))¬ Even if non-binding, can provide moral suasion¬ Consider impact to negotiating leverage¬ When the timing allows for an LOI as an initial step¬ Costs of two rounds of negotiation are worthwhile¬ If a public company, consider disclosure requirements McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  5. 5. 5Binding or non-binding?¬ An LOI can be binding or non-binding, in whole or in part¬ Problems arise when parties fail to specify in their LOI whether they intend it or some parts of it to be legally enforceable¬ Typically, LOIs are not intended to bind either party to finally complete the contemplated transaction but are meant to include some binding terms¬ Binding parts/provisions typically address: ¬ Exclusive dealing / no shop clauses ¬ Break or topping fees ¬ Access for due diligence ¬ Confidentiality ¬ Allocation of transaction costs ¬ Conduct of business prior to close ¬ Termination of the LOI McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  6. 6. 6Has a binding commitment/contractbeen formed?¬ Common law requirements of contract formation: ¬ Offer ¬ Acceptance ¬ Consideration ¬ KEY FACTOR: Intent of the parties to create legal relations ¬ Intent of the parties as determined objectively based on the words used ¬ Meeting of the minds and reasonable degree of certainty of terms ¬ Not easy to determine whether intent is sufficient clear¬ Extrinsic evidence (e.g. conduct, conversations, emails etc.) can be considered if: ¬ Intent is unclear ¬ Rectification is sought McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  7. 7. Other factors for determining binding/ 7non-binding¬ Presence of essential open terms¬ Definiteness and completeness of language¬ Express LOI term or expiration date¬ Reference to need for further negotiation or agreements¬ Industry custom, complexity of the transaction and prior course of conduct¬ Use of condition precedent¬ Performance, promissory estoppel or detrimental reliance¬ Bad faith on the part of a party McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  8. 8. 8Precontractual negotiations¬ As a general rule, a party to precontractual negotiations has traditionally been able to break off negotiations for any reason without liability ¬ Unenforceable agreement to agree ¬ Only costs are the loss of the party’s own investment in negotiations in terms of time, effort and expense ¬ However, there have been some recent cases involving the duty of good faith that have conflicted with this rule McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  9. 9. 9Duty of good faith – What is it?¬ What is good faith? ¬ Little judicial consistency in its definition ¬ Something more than pure selfish behaviour ¬ “Candour, honesty and forthrightness” ¬ Less than a fiduciary duty (can act in own best interests) ¬ Absence of bad faith¬ What is its purpose? ¬ Common concern for fair dealings and protection of parties’ reasonable expectations¬ What would it mean in the context of negotiations? ¬ Sincere efforts to negotiate ¬ Not a sham process McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  10. 10. 10Duty of good faith – Status in law¬ Law in respect of the duty of good faith is unclear¬ Pre-contractual obligation of good faith ¬ The common law rule is that contracts to negotiate are inherently uncertain and therefore incapable of creating binding and enforceable obligations ¬ Too difficult to estimate the damages ¬ Inherently repugnant to the adversarial position of the parties when involved in negotiations ¬ Each party to the negotiations is entitled to pursue his (or her) own interest, so long as he avoids making misrepresentations ¬ May not matter whether obligation is express or implied ¬ Confirmed by most case law in Canada, but some exceptions in context of an existing contractual relationship ¬ Exception in Quebec – principle is codified in Civil Code of Quebec ¬ Be aware of unconscionability, deceit, misrepresentations, fiduciary duties, public policy etc. McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  11. 11. 11Duty of good faith – Status in law (con’t)¬ Contractual duty of good faith ¬ Not clear whether implied duty of good faith arises in respect of every contract or in certain circumstances only (e.g. with respect to certain contractual provisions or in certain fact situations) ¬ One line of authority that suggests that there is a general duty of good faith performance arising in respect of all contracts ¬ However, strongest line of authority suggests that the duty only arises in the presence of particular relationships or particular conduct on the part of a contracting party ¬ Circumstances where duty of good faith performance has been recognized by the courts: ¬ exercise of discretionary power; complying with a condition precedent; invoking a rescission clause; complying with a right of first refusal; performance of franchise agreements ¬ More likely to arise in a relationship involving dependency, influence, vulnerability, trust and/or confidence ¬ Implied so as to prevent parties from defeating the objectives of the very agreements they have entered into ¬ But not to create new, unbargained-for rights and obligations or to alter express terms of a contract McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  12. 12. 12 Implications of duty of good faith¬ Conclusion: ¬ Likely not applicable to pre-contractual negotiations ¬ However, remember that other legal doctrines, such as undue influence, unconscionability, negligent misrepresentation and deceit, may provide a cause of action ¬ Once in a contractual relationship, may be implied (but likely only in special circumstances) ¬ Even if an entire agreement clause is present¬ If implied into a contract, may: ¬ Create obligation to cooperate in achieving the objectives of the agreement ¬ May lead to other covenants being implied (e.g. precluding conduct not strictly prohibited by the express terms of the agreement) ¬ Restrain the exercise of discretion McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  13. 13. LOI practice tips 13¬ Consider whether an LOI, with its attendant uncertainties, is appropriate in the circumstances ¬ Risk of implied obligation to act in good faith¬ Carefully consider what terms should be addressed at the LOI stage¬ Explicitly address what is intended to be binding/non-binding¬ If not intending to be bound, avoid words such as “offers”, “accepts”, “shall”, “must”, “promise”, “agreement”, “contract” and “undertaking”¬ Include “sunset” provisions – time to definitive agreements; time to fulfill or waive conditions precedent; time for disclosure¬ Include termination provisions – explicitly describe how and when the LOI can be terminated¬ Be aware of the risks of entire agreement clauses - consider amending LOIs to document changes to deal that are only reflected in the final agreement¬ If you are in a special relationship, take extra care in negotiations McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  14. 14. 14Definitive agreements¬ The detailed and complete deal terms should be reflected in an agreement in a form appropriate for the type of deal¬ Include an entire agreement clause ¬ Override all preliminary agreements, understandings and representations, whether oral or written, so that the definitive agreement reflects the entire deal ¬ As previously discussed, be aware of potential problems with respect to entire agreement clauses¬ Consider exit strategies upfront ¬ When should you be able to terminate the agreement? ¬ Termination for cause ¬ Termination for convenience ¬ Reductions in scope and volume ¬ For service relationships, consider whether termination/transition assistance is needed McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  15. 15. 15 NON-DISCLOSURE/ CONFIDENTIALITY AGREEMENTSAND DUTIES OF CONFIDENTIALITY Michael FederMcCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  16. 16. 16Duties of Confidentiality¬ The exchange of confidential information is an essential part of deal-making.¬ Duties of confidentiality ensure that disclosed information is not misused.¬ Duties of confidentiality can arise at common law or under a non-disclosure/confidentiality agreement (“CA”). McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  17. 17. 17Common Law¬ At common law, a duty of confidentiality exists where (1) information with a “confidential character” is (2) imparted “in confidence”. McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  18. 18. 18Common Law¬ Whether information has a “confidential character” depends on a number of factors: ¬ Cost ¬ Value ¬ Secrecy¬ “Imparted in confidence” means a reasonable person would conclude that the information was given only for a limited purpose.¬ Where a duty of confidentiality exists, the recipient must use the information only for the limited purpose for which it was conferred. McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  19. 19. 19Negotiating Confidentiality Agreements¬ If carefully drafted, CAs can provide the parties with certainty concerning duties of confidentiality.¬ Particular attention must, however, be paid to: 1. the scope of information defined as confidential; 2. the entire agreement clause; 3. the permitted use of confidential information; and 4. standstill or area of interest clauses. McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  20. 20. 20Defining Confidential Information¬ The disclosing party will seek a broad definition, while the receiving party will seek a narrow one.¬ Beware of uncertain definitions that include oral communications or that capture all information that “relates to” or “concerns” something. McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  21. 21. 21Ousting the Common Law: EntireAgreement Clauses¬ A carefully drafted entire agreement clause can prevent a common law duty from applying to information not covered by the CA.¬ The entire agreement clause must “expressly or by necessary implication” deal with confidentiality. ¬ Cadbury Schweppes Inc. v. FBI Foods Ltd., [1999] 1 S.C.R. 142, at para. 36.¬ The entire agreement clause must not restrict itself to the subject matter of the CA. ¬ Minera Aquiline Argentina SA v. IMA Exploration Inc., 2006 BCSC 1102, at para. 113. McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  22. 22. 22Restrictions: Permitted Uses OfConfidential Information¬ The disclosing party will seek a narrow permitted use clause, while the receiving party will seek a broad one.¬ The receiving party bears the onus of proving that it was expressly permitted to use confidential information as it did. ¬ Novawest Resources Inc. v. Anglo American Exploration (Canada) Ltd., 2006 BCSC 769, at para. 63. McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  23. 23. 23Restrictions: Permitted Uses OfConfidential Information¬ Permitted use clauses must be drafted precisely. ¬ A CA permitting the confidential information to be used for the purpose of “assessing … some form of business combination between the Parties” precluded a hostile takeover bid by the receiving party. Although a hostile takeover bid is a “business combination”, it is not “between the Parties”. ¬ Certicom Corp. v. Research in Motion Ltd. (2009), 94 O.R. (3d) 511 (Ont. Sup. Ct.), at paras. 41 and 53. McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  24. 24. 24Restrictions: Standstill Clauses¬ CAs often contain standstill clauses prohibiting the recipients from acquiring shares of the disclosing party. The purpose is to provide a “cone of safety” for negotiations. ¬ Aurizon Mines Ltd. v. Northgate Minerals Corp., 2006 BCSC 1022, at para. 54. McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  25. 25. 25Restrictions: Standstill Clauses¬ Absent an express indication to the contrary, standstill clauses are independent: the standstill clause will be enforceable notwithstanding that no confidential information has been used or even exchanged. ¬ Aurizon Mines Ltd. v. Northgate Minerals Corp., 2006 BCCA 340, at para. 49.¬ In this way, a standstill clause provides “better protection” for the disclosing party than confidentiality provisions: it removes the need to prove that confidential information was relied on. ¬ Certicom Corp. v. Research in Motion Ltd. (2009), 94 O.R. (3d) 511 (Ont. Sup. Ct.), at para 56. McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  26. 26. 26Restrictions: Area Of Interest Clauses¬ An area of interest clause prohibits the recipient from staking within a defined geographical area.¬ Like a standstill clause, an area of interest clause typically does not require proof that the receiving party relied on confidential information. ¬ Minera Aquiline Argentina SA v. IMA Exploration Inc., 2006 BCSC 1102, at paras. 95-97. McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  27. 27. 27Restrictions: Area Of Interest Clauses¬ A badly drafted area of interest clause can negate all other restrictions on the use of confidential information: “[N]othing contained herein will restrict or prevent [the receiving party] from acquiring any property through option, joint venture or staking of new mineral claims, except within a one kilometre area of influence from the current property boundary” ¬ Novawest Resources Inc. v. Anglo American Exploration (Canada) Ltd., 2006 BCSC 769. McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  28. 28. 28Confidentiality Agreement Paralysis McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  29. 29. 29Ethical Walls: A Solution?¬ An ethical wall attempts to foreclose any suggestion that confidential information has been used by a receiving party in breach of a CA.¬ Since duties of confidentiality may be breached if confidential information is relied on even inadvertently, merely instituting an ethical wall is insufficient. The receiving party must be able to prove that the ethical wall was effective. McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  30. 30. 30An Effective Ethical Wall: Dataco¬ Olameter entered into a CA with Dataco then received information in connection with a possible purchase of Dataco’s business.¬ Olameter became interested in bidding on a contract for which Dataco was competing.¬ Olameter then instituted an ethical wall with the following features: ¬ The confidential information received from Dataco was kept in a locked cabinet, to which only one Olameter employee had access. ¬ The confidential information and the bid were handled by Olameter offices in two different cities. ¬ “Ethical wall procedures” were circulated to Olameter employees. ¬ Dataco Utility Services Ltd. v. Olameter Inc., 2009 ABQB 116 . McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  31. 31. 31Other Practical Tips¬ Consider implementing an ethical wall whenever a CA is made.¬ Beware of unsolicited proposals or information.¬ Avoid boilerplate. McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  32. 32. 32 PUBLIC COMPANY CONSIDERATIONS Robin MahoodMcCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  33. 33. 33Public Companies – DisclosureObligations¬ Basic Requirement ¬ If a “material change” occurs in the affairs of a reporting issuer, the reporting issuer must (a) immediately issue and file a news release describing the change and (b) within 10 days, issue a material change report¬ A “material change” is: ¬ a change in the business, operations or capital of the reporting issuer that would reasonably be expected to have a significant effect on the market price ¬ a decision to implement a change referred to above made by the board of directors or senior management who believe that confirmation by the board of directors is probable McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  34. 34. Disclosure Obligations – AiT Advanced 34Technologies¬ OSC Decision (2008) ¬ provides guidance with respect to the appropriate timing of disclosure¬ Chronology of Events Feb 27 CEO of AiT discusses transaction with 3M management Mar 12 Non-disclosure agreement Mar/Apr Due diligence Apr 25 Non-binding letter of intent AiT board approval (subject to fairness opinion and definitive documents) May 9 Market Regulation Services contacts AiT AiT announces that it is exploring “strategic alternatives” to enhance shareholder value but has no further announcements to make at that time May 14 3M board approval (subject to completion of due diligence) May 22 Execution of merger agreement and public announcement McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  35. 35. AiT Advanced Technologies – OSC Decision 35¬ Decision ¬ No material change occurred until definitive documents had been signed (consistent with general practice)¬ Key Findings ¬ a material change can occur in advance of the execution of definitive documents ¬ no “bright line” test ¬ determination of whether a material change has occurred will depend on the facts and circumstances of each case ¬ discussions and negotiations may constitute a “material fact” even if they do not constitute a material change that requires disclosure ¬ trading prohibited ¬ disclosure of negotiations to a third party prohibited (tipping) ¬ board approval may not constitute a material change ¬ in the context of arm’s length negotiations, board approval will generally not be considered a material change unless there is a sufficient commitment from the counterparty and a substantial likelihood that the transaction will be completed McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  36. 36. AiT Advanced Technologies – Practice Points 36¬ Negotiations do not need to be disclosed until the parties are committed to proceed and there is a substantial likelihood of completion – generally speaking, a non-binding letter of intent will not need to be disclosed¬ Ensure that board minutes accurately reflect the company’s level of commitment to a transaction (i.e. if approval is subject to due diligence or resolution of key business points, make sure this is reflected in resolutions or minutes)¬ In determining whether to disclose an agreement at any point in negotiations consider: ¬ whether all material terms have been agreed ¬ whether each party to the agreement has obtained required approvals ¬ whether key conditions (i.e. due diligence) have been satisfied¬ Insider Trading ¬ ensure that directors and office are aware of restrictions on trading ¬ ensure that negotiations are disclosed to employees and advisors on a “need to know” basis only McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  37. 37. 37Filing of Material Contracts¬ Subject to exceptions for certain contracts entered into in the ordinary course of business, material contracts must be filed on SEDAR ¬ although information may be redacted if disclosure would be seriously prejudicial or would violate a confidentiality obligation, certain information may not be redacted in any event (i.e. events of default, termination rights or any term necessary to understand the impact of the deal on the issuer) ¬ ensure that confidentiality provisions permit disclosure to the extent required by law ¬ if the material contract constitutes a material change, it must be filed concurrently with the material change report – if material must be redacted, plan in advance McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  38. 38. 38Change of Control Transactions¬ Directors and officers must: ¬ act honestly and in good faith with a view to the best interests of the corporation (“Duty of Loyalty”) ¬ exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances (“Duty of Care”)¬ Courts will generally defer to the business judgment of the board provided that they have acted prudently and on a reasonably informed basis¬ In a change of control situation, a board’s decision will often be subject to closer than usual scrutiny and, as a consequence, it is particularly important in this context to avoid potential traps McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  39. 39. 39Management Conflicts of Interest¬ Potential conflicts of interest in connection with a change of control transaction prospects of ongoing employment ¬ change of control payments¬ Two recent cases in the U.S. demonstrate potential concerns that the interests of senior management may not be aligned with the interests of shareholders in the context of a change of control transaction ¬ In re: Topps ¬ sale of Topps to a private equity group led by Michael Eisner ¬ Eisner assured management that their employment would continue post-closing ¬ competing offer (Upper Deck) did not provide the same assurances ¬ Delaware Court of Chancery found that the board had likely breached its fiduciary obligations – enjoined Topps from seeking shareholder approval until it amended its proxy circular to include full disclosure regarding employment McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  40. 40. 40Management Conflicts of Interest (cont.)Lear Corporation ¬ Board did not perceive a conflict of interest and allowed CEO to spearhead negotiations ¬ CEO negotiated an agreement that would permit him to accelerate $10.4 million in retirement benefits and retain employment ¬ Although the court ultimately determined that neither the board nor the CEO breached its duties, it was highly critical of the process followed: ¬ Because the CEO might rationally have expected a going-private transaction to provide him with the unique means to achieve his personal objectives, and because the merger with Icahn in fact secured for the CEO the joint benefits of immediate liquidity and continued employment that he sought just before the negotiating of that merger, the Lear stockholders are entitled to know that the CEO harbored material economic motivations that differed from their own that could have influenced his negotiating posture with Icahn. Given that the special committee delegated to the CEO the sole authority to conduct the merger negotiations, this concern is magnified McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  41. 41. 41Management Conflicts of Interest (cont.)¬ If senior management has an interest in a transaction, adopt procedures or safeguards to manage this conflict ¬ special committee ¬ oversight and recommendation to the board ¬ active role in negotiation ¬ fairness opinions ¬ independent valuation¬ Maintain minutes and records which demonstrate all steps to mitigate the impact of any conflicts McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  42. 42. 42Change of Control Transactions¬ General obligation to act in the best interests of the company ¬ this will not always involve a singular focus on obtaining the best price possible ¬ Supreme Court of Canada has clearly indicated that other factors may be relevant (BCE v. 1976 Debentureholders)¬ Nonetheless, the obligation to act “in the best interests of the company” will generally include an obligation to ensure that the company adopts a sales process which enables to the company the best offer available¬ No “blueprint” or “one size fits all” approach – provided that directors act honestly and in good faith and exercise reasonable care, diligence and skill, Canadians courts will generally defer to the judgment of a board McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  43. 43. 43Market Checks¬ Two general approaches ¬ pre-agreement market check ¬ post-agreement market check¬ Pre-agreement auction widely regarded as one of the most effective ways for a board to discharge its fiduciary duties ¬ limited auctions ¬ unrestricted auctions ¬ agreement typically includes “no-shop” provisions – company may not actively solicit competing offers, but may terminate the agreement to accept a superior proposal ¬ deal protection (break fee/matching rights) McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  44. 44. 44Go-Shop Provisions¬ In certain circumstances, an auction may not be practical ¬ potential buyer may require exclusivity ¬ “damaged goods” concerns ¬ disclosure of confidential information ¬ open auction process may jeopardize employee, customer or supplier relations (and drive down price) ¬ potential buyer may realize that it has overvalued the company¬ “Go-shop” clauses have emerged as an alternative approach in recent years ¬ target negotiates an agreement with a single buyer and then actively solicits competing bids for 30 to 60 days ¬ most frequently used in U.S. deals with private equity funds McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  45. 45. 45Advantages of Go-Shop Provisions¬ Intended benefits of go-shop provisions include the following ¬ allows seller to establish a “floor price” ¬ existence of a firm offer may make the company appear more valuable ¬ enables targets to canvas the market without the risk of being tainted by a failed auction ¬ more efficient to deal with one buyer only ¬ may increase willingness of a potential buyer to complete required diligence (break fees ensure the initial bidder will be compensated for expenses) McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  46. 46. 46Criticism of Go-Shop Provisions¬ Several commentators have criticized go-shop clauses as “window-dressing” during the past year ¬ deal protection provisions (break fees/matching rights) deter competing offers ¬ go-shop period provides insufficient time for a third party to prepare a competitive proposal ¬ enables board to satisfy fiduciary obligations without legitimately canvassing the market McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  47. 47. 47Effective Use of Go-Shop Provisions¬ Studies have shown that go-shop clauses can increase return to shareholders, particularly when drafted to ensure that they serve their intended purpose ¬ length of go-shop period ¬ no limits on universe of potential buyers ¬ bifurcated termination fees ¬ no formal matching rights during go-shop period ¬ diligent exercise of go-shop right¬ Appropriate process depends on the circumstances ¬ do not employ a “cookie cutter” approach ¬ carefully consider alternatives and adopt an approach best suited to the circumstances McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  48. 48. 48 WHEN DEALS ARE BROKEN Miranda LamMcCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  49. 49. 49OVERVIEW¬ Mechanisms for Dispute Resolution¬ Common Forms of Dispute Resolution¬ Comparative Strategic Advantages and Disadvantages¬ Choosing between Litigation or Arbitration¬ Drafting an Arbitration Provision McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  50. 50. 50McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  51. 51. 51 Mechanisms For Dispute Dispute Resolution Spectrum 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Neutral Judicial Early Cybersettle Confidential Conciliation/ Case Mediation/ Arbitration/ Pre-Trial Settlement SummaryPartnering Negotiating Collaboration Neutral Trial .com Listening Mediation Evaluation Arbitration Mediation Conference Conference Trial Evaluation Litigation Increasing Outside Control Adapted from the Alternative Dispute Resolution Practice Manual from CCH Canadian Limited. Original form of chart prepared by Genevieve Chornenki, published by and copyright CCH Canadian Limited, North York, Ontario. Chornenki, Dispute Resolution Spectrum from A. Stitt (ed.), Alternative Dispute Practice Manual (North York: CCH Canadian, 1996) at 1303. McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  52. 52. 52Common Mechanisms For DisputeResolutions¬ Alternative Dispute Resolution ¬ Mediation ¬ Arbitration¬ Litigation McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  53. 53. 53Alternative Dispute Resolution¬ Mediation ¬ Process by which two or more parties to a dispute attempt to resolve the dispute by reaching an agreement amongst themselves by utilizing the services of a mediator¬ Rights based mediation¬ Interest based mediation McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  54. 54. 54Alternative Dispute Resolution¬ Arbitration ¬ Process of resolving disputes between two or more parties whereby a third party (an arbitrator) hears or reviews evidence and renders a binding decision based on the parties’ legal rights. ¬ The arbitrator may be a single person or a panel of three whose appointment is agreed to by the parties or pursuant to the rules of arbitration that the parties have chosen. ¬ Process is consensual and consent cannot be withdrawn once the process is commenced. McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  55. 55. 55Litigation¬ Litigation ¬ A claim is commenced by an aggrieved party in the court against another. ¬ The dispute is resolved by a judge (or judge and jury). ¬ Process is governed by civil litigation rules of the jurisdiction in which the action is commenced. McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  56. 56. 56Advantages of Alternative DisputeResolution¬ Expert decision-maker¬ Control over procedure¬ Relationship preservation¬ Confidential¬ Cost effective¬ Efficient¬ Finality McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  57. 57. 57Challenges with Alternative DisputeResolution Methods¬ Lack of procedural certainty¬ Difficulties with enforcement¬ Appeals¬ Inefficient McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  58. 58. 58Litigation Process¬ Advantages ¬ Certainty ¬ Enforceability ¬ Availability of options for recourse and relief ¬ Public¬ Challenges ¬ Decision-maker unfamiliar with subject matter ¬ Inefficient ¬ Not cost-effective ¬ Relationships challenged ¬ Public McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  59. 59. 59To Litigate or Arbitrate?Considerations:¬ Nature of the dispute anticipated to arise¬ History and relationship between the parties¬ David or Goliath¬ Process v. outcome¬ Interim relief¬ Enforcement McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  60. 60. 60If you arbitrate:Considerations when drafting an arbitration clause:¬ Choice of law and forum or place of arbitration¬ Governing rules of arbitration/use of a neutral administrative service provider¬ Sole mechanism for dispute resolution¬ Scope or subject matter for dispute resolution¬ Mechanism to agree and/or appoint arbitration panel ¬ panel nomination and composition ¬ allocation of panel fees & costs McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  61. 61. 61If you arbitrate:¬ British Columbia International Commercial Arbitration Centre (BCICAC) Model Arbitration Clause All disputes arising out of or in connection with this contract, or in respect of any legal relationship associated therewith or derived therefrom, shall be referred to and finally resolved by arbitration administered by the British Columbia International Commercial Arbitration Centre pursuant to its Rules. McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  62. 62. 62Arbitral Procedure¬ Ad hoc v. institutional rules or procedure ¬ Ad hoc ¬ Specific, tailor-made for specific circumstances ¬ Negotiated beforehand ¬ Institutional ¬ Neutral administrative service provider ¬ Defined body of rules ¬ Available to suit most situations ¬ Administrative fees McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  63. 63. British Columbia International Commercial Arbitration Centre 63Model Clauses¬ Mediation Clause The parties agree to attempt to resolve all disputes arising out of or in connection with this contract, or in respect of any legal relationship associated with it or from it, by mediated negotiation with the assistance of a neutral person appointed by the British Columbia International Commercial Arbitration Centre administered under its Mediation Rules.¬ To combine mediation with arbitration and therefore ensure a binding resolution, add the following additional paragraph to the mediation clause set out above: If the dispute cannot be settled within 30 days after the mediator has been appointed, or such other period agreed to in writing by the parties, the dispute shall be referred to and finally resolved by arbitration administered by the British Columbia International Commercial Arbitration Centre, pursuant to its Rules. In the absence of any written agreement otherwise, the place of arbitration shall be Vancouver, British Columbia. ADR Clause Encompassing Negotiation, Mediation and Binding Arbitrations¬ All Inclusive Clause ¬ Amicable Negotiation The parties agree that, both during and after the performance of their responsibilities under this Agreement, each of them shall make bona fide efforts to resolve any disputes arising between them by amicable negotiations and provide frank, candid and timely disclosure of all relevant facts, information and documents to facilitate those negotiations. ¬ Efficient Process The parties further agree to use their best efforts to conduct any dispute resolution procedures herein as efficiently and cost effectively as possible. ¬ Mediation The parties agree to attempt to resolve all disputes arising out of or in connection with this contract, or in respect of any legal relationship associated with it or from it, by mediated negotiation with the assistance of a neutral person appointed by the British Columbia International Commercial Arbitration Centre administered under its Commercial Mediation Rules. ¬ Arbitration If the dispute cannot be settled within 30 days after the mediator has been appointed, or such other period agreed to in writing by the parties, the dispute shall be referred to and finally resolved by arbitration administered by the British Columbia International Commercial Arbitration Centre, pursuant to its Rules. In the absence of any written agreement otherwise, the place of arbitration shall be Vancouver, British Columbia. Source:http://www.bcicac.com/bcicac_adr_model_arbmed.php McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011
  64. 64. VANCOUVER MONTRÉALSuite 1300, 777 Dunsmuir Street Suite 2500P.O. Box 10424, Pacific Centre 1000 De La Gauchetière Street WestVancouver BC V7Y 1K2 Montréal QC H3B 0A2Tel: 604-643-7100 Tel: 514-397-4100Fax: 604-643-7900 Fax: 514-875-6246Toll-Free: 1-877-244-7711 Toll-Free: 1-877-244-7711CALGARY QUÉBECSuite 3300, 421 7th Avenue SW Le Complexe St-AmableCalgary AB T2P 4K9 1150, rue de Claire-Fontaine, 7e étageTel: 403-260-3500 Québec QC G1R 5G4Fax: 403-260-3501 Tel: 418-521-3000Toll-Free: 1-877-244-7711 Fax: 418-521-3099 Toll-Free: 1-877-244-7711TORONTOBox 48, Suite 5300 UNITED KINGDOM & EUROPEToronto Dominion Bank Tower 125 Old Broad Street, 26th FloorToronto ON M5K 1E6 London EC2N 1ARTel: 416-362-1812 UNITED KINGDOMFax: 416-868-0673 Tel: +44 (0)20 7786 5700Toll-Free: 1-877-244-7711 Fax: +44 (0)20 7786 5702OTTAWASuite 200, 440 Laurier Avenue WestOttawa ON K1R 7X6Tel: 613-238-2000Fax: 613-563-9386Toll-Free: 1-877-244-7711McCarthy Tétrault LLP / mccarthy.ca / 18 May 2011

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