To meet the needs of clients pursuing business strategies that cross the Canada-United States border, Osler has developed deep expertise in key areas of cross-border business law, including corporate, securities, tax, M&A, corporate finance, financial services, corporate governance, executive compensation, and pensions and benefits law.
Combining our Canadian and U.S. business law services gives our clients a significant “one-stop” advantage – clients receive integrated Canadian and U.S. legal advice more effectively and at a lower cost from one firm, eliminating the need to retain both Canadian and U.S. counsel and reducing the frustration of having to reconcile advice from two separate firms. Where laws and practices are the same between the two countries, we do the necessary legal work once; where they differ, we provide solutions that “bridge the gap.” Either way, our integrated service reduces expense, confusion and potential delays for our clients.
Mergers & Acquisitions
A leader in M&A, we have had a key advisory role in a number of the most important Canadian M&A transactions announced or completed over the past decade.
Our clients turn to us when buying and selling Canadian and U.S. entities, acquiring minority investments and entering into joint ventures, and we provide integrated cross-border advice on Canadian and U.S. securities laws, Canadian federal and provincial laws, Delaware and New York corporate laws, and stock exchange rules.
Osler’s New York-based lawyers also advise on public and private tender and exchange offers, private acquisitions and divestitures, spin-offs and “going private” transactions. We counsel clients on their disclosure obligations under both Canadian and U.S. federal securities laws in connection with their acquisitions and dispositions. Our work regularly includes discussions with representatives of the U.S. Securities and Exchange Commission and Canadian Securities Administrators, the stock exchanges and financial advisors.
Working closely with our Canadian colleagues, our U.S. lawyers advise Canadian brokers/dealers with respect to fairness and valuation opinions in cross-border M&A transactions and the subsequent U.S. disclosure obligations.
Corporate Finance & Securities
We regularly provide public and private companies and investment banks with advice on a broad range of cross-border securities offerings, including registered debt and equity offerings most commonly under the Multijurisdictional Disclosure System, initial public offerings, investment-grade and high-yield debt offerings (both SEC-registered and under Rule 144A/Regulation S), shelf registrations, secondary offerings and Regulation D/Section 4(a)(2) private placements.
Our work includes advising on restructuring companies in advance of cross-border IPOs; negotiating terms of complex securities, including preferred stock, convertible debt and warrants and covenant packages in high-yield debt securities; drafting prospectuses/offering circulars, preparing and negotiating underwriting agreements, indentures and fiscal agency agreements; and conducting due diligence.
We also regularly counsel cross-listed public companies and their stockholders on reporting and disclosure requirements under both Canadian and U.S. federal securities laws, proxy solicitations, stock exchange compliance matters, corporate governance, and Sarbanes-Oxley and Dodd-Frank compliance. In addition, our lawyers are experienced with cross-border debt and equity tender offers and exchange offers, "going private" transactions and rights offerings, restructurings, recapitalizations and spin-offs.
For our Canadian and U.S. investment banking clients, we provide integrated advice with respect to pitch materials, engagement letters, research and publicity restrictions, and counsel them on compliance with FINRA and IIROC regulations.
We also assist Canadian and U.S. private companies and their financial advisors with the many complex issues that arise in early-stage capital raising and during the transition to public ownership. We advise companies with respect to management and board structure, intercompany relationships and conflicts, the adoption of new corporate charters, bylaws and committee charters, confidentiality agreements, compensation arrangements for officers, directors and employees, and in dealing with stockholders.
Corporate Law and Corporate Governance
Corporate governance is of vital importance to our clients and their stakeholders. Drawing on our experience on both sides of the border, Osler advises clients on both Canadian and U.S. corporate law and corporate governance requirements, offering practical insights into how changes to corporate law and corporate governance rules and enforcement, as well as investor expectations, will affect our clients’ business strategies.
Our lawyers routinely advise U.S. and Canadian reporting or inter-listed companies on corporate governance requirements and “best practices” (whether originating under Canadian requirements or the U.S. Sarbanes-Oxley Act or Dodd-Frank Act), including:
independence requirements for audit committee members, audit committee responsibilities and audit committee financial expert qualifications
independent auditor requirements, prohibited non-audit services and the requirements for providing permitted non-audit services
the establishment and effective maintenance of disclosure controls and procedures, disclosure policies and disclosure committee charters
internal control over financial reporting, management assessment and disclosure responsibilities and auditor attestation requirements
independent director requirements for the board and its committees
shareholder approval requirements for stock issuances in connection with private placement transactions and equity compensation plans
- corporate governance practices disclosure
The success of a business, a transaction or a new venture can depend on the quality of the tax advice provided. We count some of Canada’s largest multinational corporations are among our clients, and we are at the heart of most innovative international transactions involving Canadian entities. Our Tax Group includes leading experts in the taxation of mergers and acquisitions, general taxation advisory matters, tax litigation, and dispute resolution and cross-border taxation.
We provide U.S. federal tax advice on a broad range of activities, including taxable and tax-free acquisitions, spin-offs and financings. This combined experience and expertise in both countries means that Osler can provide fully integrated, high-quality strategic and practical tax advice to meet our clients’ needs.
Osler’s Financial Services Group advises some of North America’s leading financial institutions and corporate borrowers on a wide variety of U.S. and cross-border debt financing transactions, including syndicated secured and unsecured credit facilities, acquisition finance facilities, leveraged finance transactions (such as second lien financings in the context of leveraged buyouts), unitranche, mezzanine, holdco PIK and subordinated debt financings, commercial and asset-based lending, and traditional private placements. We are active in representing agents and lenders on syndicated lending transactions, private equity sponsors in connection with their portfolio companies’ financing needs and corporate borrowers in connection with their bank facilities. We also have experience in swaps and ISDA Master Agreements (including the regulation of derivatives under Title VII of Dodd-Frank), financings to fund of funds in multiple jurisdictions, receivables sales, lease financing, securitizations and structured finance transactions.
Executive Compensation, Pensions & Benefits
Executive compensation and pensions and benefits are under significant regulatory and investor scrutiny and can become especially critical issues during the transaction process for mergers and acquisitions. Osler offers practical business-focused advice to clients on structuring their executive compensation arrangements, including share-based incentive programs; deferred compensation plans (Code Section 409A compliance); employment agreements and severance agreements. Particularly in an M&A context, we help to negotiate complex employee matters and rationalize programs following a merger or acquisition. We also assist clients with the establishment and maintenance of U.S. tax-qualified retirement plans, welfare benefit plans and related trusts that are subject to the Employee Retirement Income Security Act (ERISA) and the U.S. Internal Revenue Code.
For multinational clients moving executives across the border, Osler experts in both Canada and the United States work together to structure efficient and effective executive compensation programs.