Leveraging Technology for the Canadian Private Target Mergers & Acquisitions Deal Points Study

Transcription

1 Osler, Hoskin & Harcourt LLP Leveraging Technology for the Canadian Private Target Mergers & Acquisitions Deal Points Study ABA MARKET TRENDS COMMITTEE MEETING André Perey Natalie Munroe March 2019

2 Background

3 Previous Studies Manual review of acquisition agreements Complete questionnaires in Word (100 acquisition agreements = 1,000 Word documents) Compile information from Word documents in Excel Aggregate and produce report

4 Kira Systems Leveraging and HighQ

5 A software that analyzes and extracts certain information from documents Enhances legal due diligence Extranet that streamlines collaboration, legal service delivery, legal operations, client engagement and much more Plan, organize, track and complete work more efficiently and intelligently

6 Kira Systems Set up a worksheet for each questionnaire.

7 Kira Systems

8 Kira Systems All worksheets were applied to each acquisition agreement

9 Kira Systems For each worksheet, exported the information extracted in Kira and uploaded to HighQ

10 HighQ Two main tabs in HighQ: Questionnaires and Results

11 HighQ Each questionnaire was built as an interactive questionnaire in HighQ As a reviewer, you would only see the folder for the questionnaire assigned to you

12 HighQ Once you enter the folder, you are taken to the first acquisition agreement The questionnaire is on the right-hand side

13 HighQ After the general information, reviewers answer the specific questionnaire

14 HighQ To ensure that the review could be tracked, reviewers would indicate by checkmark once their review was complete We included notes boxes to give reviewers an ability to communicate with other reviewers

15 HighQ The Results tab shows the results from the review of each questionnaire for each acquisition agreement

16 HighQ The results were exported to Excel and aggregated in order to generate the study results

17 Deal Points Study

18 Private Target M&A Deals North American Comparison US 2017 Deal Points Study Canadian 2018 Deal Points Study Years Deals which closed in 2016 and H Deals signed in 2016 and 2017 Number of Deals Three Principal Industries - Technology - Health Care - Construction & Materials - Oil & Gas - Industrial Goods & Services - Health Care/Food & Beverage Deal Sizes* - $30M - $50M - 7.9% - $51M - $100M % - $101M - $200M % - $201M - $300M % - $301M - $500M % - $5M - $50M - 49% - > $50M - $100M - 12% - > $100M - $200M - 7% - > $200M to $500M - 18% - > $500M - 11% * 3% of Canadian deals had a redacted or indeterminable deal size.

19 Earnouts Deals in 2018 Deals in 2016 Deals in 2014* Revenue 12% 25% 38% Earnings/EBITDA 23% 38% 33% Combination of Revenue & Earnings 0% 0% 6% Other 19% 31% 53% Indeterminable 8% 13% 7% * Percentages reported for 2014 exceed 100% as one agreement used more than one metric.

20 North American Comparison of Financial Provisions Deals with Post-Closing Adjustments Working Capital Adjustment Metric Buyer Prepares First Draft of Closing Balance Sheet Methodology GAAP Consistent with Past Practices US 2017 Deal Points Study* 86% (86% in 2015 US study) (85% in 2013 US study) 95% (83% in 2015 US study) (91% in 2013 US study) 95% (87% in 2015 US study) (91% in 2013 US study) 36% (35% in 2015 US study) (45% in 2013 US study) Deals with Earnouts 28% (26% in 2015 US study) (25% in 2013 US study) Canadian 2018 Deal Points Study 72% (73% in 2016 study) (70% in 2014 study) 83% (70% in 2016 study) (70% in 2014 study) 47%** (76% in 2016 study) (61% in 2014 study) 17%** (38% in 2016 study) (39% in 2014 study) 14% (17% in 2016 study) (25% in 2014 study) The "2013 US study" refers to the 2013 Private Target Mergers & Acquisitions Deal Points Study released by the ABA Mergers & Acquisitions Committee in December The "2011 US study" refers to the 2011 Private Target Mergers & Acquisitions Deal Points Study released by the ABA Mergers & Acquisitions Committee in December ** Details regarding the closing balance sheet were not specified in 20 deals. This may account for the signifiant drop in these deal points.

21 INDEMNIFICATION Sandbagging Anti-Sandbagging Provision Included 12% (14% in 2014 study) (15% in 2016 study) Silent 66% (71% in 2014 study) (54% in 2016 study) Benefit of the Bargain / Pro- Sandbagging Provision Included* 22% (15% in 2014 study) (31% in 2016 study) * For purposes of this Study, "benefit of the bargain/pro-sandbagging" is defined by excluding clauses that merely state, for example, that Target's representations and warranties "survive Buyer's investigation" unless they include an express statement on the impact of Buyer's knowledge on Buyer's post-closing indemnification rights.

22 North American Comparison of Sandbagging US 2017 Deal Points Study Canadian 2018 Deal Points Study Sandbagging Provisions Included 49% (51% in 2013 US study) (44% in 2015 US study) Pro 42% (41% in 2013 US study) (35% in 2015 US study) Anti 6% (10% in 2013 US study) (9% in 2015 US study) Silence 51% (49% in 2013 US study) (56% in 2015 US study) 34% (29% in 2014 study) (46% in 2016 study) 22% (15% in 2014 study) (31% in 2016 study) 12% (14% in 2014 study) (15% in 2016 study) 66% (71% in 2014 study) (54% in 2016 study) Express Non-Reliance Provision Included 55% (43% in 2013 US study) (40% in 2015 US study) 30% (43% in 2014 study) (32% in 2016 study)

23 CAPS* (Subset: deals with survival provisions) Yes But Not Determinable 16% (11% in 2014 study) (12% in 2016 study) Silent 6% (10% in 2014 study) (8% in 2016 study) Yes Equal to Purchase Price 13% (19% in 2014 study) (18% in 2016 study) * Caps generally applicable to contractual indemnification obligations; does not take into account different caps for specific items (see "Cap Carve Outs"). Yes Less than Purchase Price 65% (60% in 2014 study) (62% in 2016 study)

24 North American Comparison of Baskets US 2017 Deal Points Study Canadian 2018 Deal Points Study No Basket 2% (4% in 2013 US study) (2% in 2015 US study) 20% (8% in 2014 study) (9% in 2016 study) Deductible 70% (59% in 2013 US study) (65% in 2015 US study) 30% (36% in 2014 study) (41% in 2016 study) "First Dollar" 26% (32% in 2013 US study) (26% in 2015 US study) 44% (50% in 2014 study) (45% in 2016 study) Combination (Threshold & Deductible) 2% (5% in 2013 US study) (7% in 2015 US study) 7% (6% in 2014 study) (5% in 2016 study)

25 Governing Law Ontario 40% (52% in 2016 study) (43% in 2014 study) Alberta 24% (26% in 2016 study) (17% in 2014 study) Quebec 10% (3% in 2016 study) (7% in 2014 study) Other 11% (5% in 2016 study) (10% in 2014 study) British Columbia 15% (15% in 2016 study) (23% in 2014 study)

26 Lessons Learned

27 Lessons Learned Ability to leverage Kira and HighQ simultaneously Further standardization of questionnaire response options (e.g., Other ) to facilitate aggregation Workflow automation and notifications Functionality of the Notes and Comments sections and editing of responses Formatting of spreadsheet output Role of issue group leaders

28 Questions?

29 Thank you!