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Private M&A in Canada: Transactions and Litigation
This title offers a practice-oriented review of private M&A caselaw and contractual interpretation disputes. It is a user-friendly, everyday resource for both transactional lawyers and litigators.
**The CEI Student E-Book version is to be purchased by academia only**
Langue de publication: English
Publié: 14 février 2024
Éditeur: LexisNexis Canada
Editor-in-Chief: Paul Blyschak
What guidance have Canadian courts provided regarding private mergers and acquisitions? It is this simple question that gave rise to Private M&A in Canada: Transactions and Litigation, written as a practice-oriented review of private M&A caselaw and contractual interpretation disputes. It is a user-friendly, everyday resource for both transactional lawyers and litigators.
The content in Private M&A in Canada: Transactions and Litigation is presented in the order a private M&A transaction unfolds and a private M&A agreement is structured, beginning with term sheets and pre-execution liability and continuing on until closing conditions and termination. To facilitate quick reference and practical application, the book concludes with an executive summary and drafting takeaways.
Features of This Book
- Covers the different drafting gaps, ambiguities and inconsistencies that increase the likelihood of an M&A dispute arising
- Discusses the variety of pre- and post-execution conduct and developments from which litigation has resulted in private M&A
- Includes key M&A decisions from prominent foreign jurisdictions, including Delaware, New York and England
Who Should Read This Book
- Corporate and transactional lawyers, as well as litigators who desire a practice-focused, comprehensive review of M&A caselaw and contract interpretation disputes
- In-house counsel who want to understand the finer points of M&A so they can effectively guide the company through dealmaking and contentious matters
- International corporate and transactional lawyers who work on M&A with international (especially U.S.) aspects
- Law students and professors who are looking for an authoritative reference for advanced corporate law courses
- Law libraries that want to provide a valuable resource for their patrons covering M&A
To subscribe to FASKEN M&A insights updating the caselaw discussed in this book, visit fasken.com.
Foreword
Chapter 1 – Contract Interpretation for the M&A Lawyer
§ 1.01 Introduction to M&A Contract Interpretation
§ 1.02 General Comments on Contract Interpretation
§ 1.03 Key Principles of Contract Interpretation
§ 1.04 Examples from M&A Disputes
§ 1.05 Notable Contrasts with England, New York & Delaware
§ 1.06 Considerations Special to M&A?
§ 1.07 Concluding Comments
Chapter 2 – M&A Negotiations, Term Sheets & Pre-Execution Liability
§ 2.01 Introduction
§ 2.02 Has an M&A Agreement Been Entered Into?
§ 2.03 Agreements to Agree
§ 2.04 Agreements to Negotiate in Good Faith
§ 2.05 Other Issues & Potential Liabilities Regarding Contract Formation in M&A
§ 2.06 Concluding Comments
Chapter 3 – Representations & Warranties
§ 3.01 Introduction
§ 3.02 Representation or Warranty?
§ 3.03 No General Duty of Disclosure
§ 3.04 No General Duty to Verify
§ 3.05 Representation & Warranty Disputes
§ 3.06 Additional Issues Related to Representations & Warranties
§ 3.07 Concluding Comments
Chapter 4 – Material Adverse Effect (MAE) Clauses
§ 4.01 Introduction
§ 4.02 The Evolution, Purpose & Structure of MAE Clauses
§ 4.03 What Constitutes an MAE? A Review of U.S. Caselaw
§ 4.04 MAE Clauses in Canada: Comparisons & Contrasts with U.S. Caselaw
§ 4.05 Concluding Comments
Chapter 5 – Interim Period Covenants & Efforts Clauses
§ 5.01 Introduction
§ 5.02 “Ordinary Course of Business” Covenants in M&A
§ 5.03 Efforts Clauses in M&A
§ 5.04 “Hell or High Water” Clauses
§ 5.05 Negative Covenants in M&A
§ 5.06 Interim Period Performance & Good Faith
§ 5.07 Concluding Comments
Chapter 6 – Closing Conditions & Termination
§ 6.01 Introduction to Closing Conditions & Termination
§ 6.02 “True” Conditions Precedent
§ 6.03 Closing Conditions & Implied Efforts Obligations
§ 6.04 Closing Conditions & Other Implied Terms
§ 6.05 Closing, Termination & Frustration
§ 6.06 Closing, Termination & Repudiation
§ 6.07 M&A Disputes as to Whether a Closing Condition Has Been Met
§ 6.08 Closing, Termination & Damages
§ 6.09 Closing, Termination & Good Faith
§ 6.10 Concluding Comments
Chapter 7 – Private Equity in M&A Disputes
§ 7.01 Introduction
§ 7.02 Material Adverse Effect (MAE) Clauses
§ 7.03 Calculation of Damages
§ 7.04 Availability of Specific Performance
§ 7.05 Mitigation of Damages
§ 7.06 Non-Compete Undertakings
§ 7.07 The Continued Evolution, Diversification & Specialization of Private Equity
§ 7.08 Concluding Comments
Executive Summary & Drafting Takeaways
Chapter 1 – Contract Interpretation for the M&A Lawyer
Chapter 2 – M&A Negotiations, Term Sheets & Pre-Execution Liability
Chapter 3 – Representations & Warranties
Chapter 4 – Material Adverse Effect (MAE) Clauses
Chapter 5 – Interim Period Covenants & Efforts Clauses
Chapter 6 – Closing Conditions & Termination
Chapter 7 – Private Equity in M&A Disputes
Table of Cases
Index
