Canada: Torys´ Top 10 M&A Trends For 2009

Last Updated: January 7 2009

Article by Torys Lawyers

The year 2008 brought a global credit crisis that adversely affected financial institutions and their clients, and thrust a new world on the business community and its advisers. In many cases, those financial institutions were driven into the hands of suitors, often government-backed, with breathtaking speed. The credit crisis also sounded the death knell for easily accessed capital to fund acquisitions, a tightening that had started in mid-2007. In the wake of this crisis, we are seeing the development of a wide array of bold strategies and tactics to navigate this new world.

In 2009, we expect to see these strategies and tactics enhanced and refined as the marketplace and courts redefine acceptable sale terms and conditions. The shortage of credit will favour strategic buyers with strong balance sheets and sovereign wealth funds with greater access to financing. Private equity will lean toward mid-market going-private transactions that contain more equity than in the past. Finally, we will see more activity in the infrastructure sector as governments seek to provide much-needed stimulus to the economy.

Torys' M&A lawyers are looking ahead to 2009 and this is what they see.

1. A Buyers' Market Is Emerging

By Joris Hogan and James Scarlett

The credit crisis has brought significant changes to the bargaining power of buyers and sellers as financial buyers fade and strategic buyers looking for favourable deals take their place. In this context, emerging trends we see in 2009 include the following:

  • Expanded material adverse effect clauses. Buyers will push to expand the scope of traditional material adverse effect (MAE) outs to cover matters that go beyond seller-specific changes to include more general industry disruptions. Buyers will also continue to craft special termination provisions to augment traditional MAE provisions.
  • Financial market MAE clauses. Lenders to buyers have begun to include financial market MAE clauses as conditions to lending. As a result, buyers will require equivalent clauses in purchase agreements, thereby shifting financial market risk to sellers.
  • Baked credit. Purchasers can control their exposure to funding risk from their lenders by insisting on executing both a definitive purchase agreement and the definitive loan documentation concurrently. In the past, purchasers in North American deals would typically sign a purchase agreement on the strength of signed commitment letters from a lending group. However, in some recent deals, we have seen – and expect to continue seeing – purchasers insist on a longer negotiation period, during which time both the purchase agreement and the loan documentation can be finalized.
  • Enhanced deal protections. Purchasers are increasingly looking for ironclad deal-protection terms that make it problematic for a third party to top a deal with a higher offer. These terms include requirements that the seller enforce all existing standstill arrangements under confidentiality agreements signed during the auction process or similar market canvassing. Enforcing a pre-existing standstill with a third party that does not automatically fall away with the announcement of a transaction largely prevents that third party from coming forward with a better offer after the deal has been announced.
  • More aggressive lockups. We expect to see more asset lockups like the one given by Bear Stearns to JPM Chase as well as share option lockups of up to 20% of a seller's outstanding shares and, in distress situations, in which the listing exchange's shareholder approval requirements are more flexible, potentially larger share options.

2. Strategic Investing Will Command Favourable Terms

By David Chaikof and Tom Yeo

In September 2008, while many shied away from the financial sector, Warren Buffett's Berkshire Hathaway injected US$5 billion into Goldman Sachs. In return, Buffett got perpetual preferred stock with a 10% dividend rate, plus warrants to purchase another US$5 billion of Goldman Sachs's common shares. Buffett also made similar investments, including a US$3 billion investment in General Electric, and there will most likely be many more to come from him and others. With incredibly tight credit markets and companies facing a downturn in their business, more issuers are looking to strategic investors. In turn, investors will have plenty of opportunities to make investments on favourable terms – and with considerable upside potential.

These investments, known as "private investment in public equity," or "PIPEs," often take the form of debt or preferred stock combined with warrants to purchase common shares or a right to convert the debt or stock into common shares. The conversion right gives the investor the chance to participate in the business's success through a future conversion or warrant exercise while still having a fixed return on its investment and downside protection through the debt or preferred stock. An investor can also seek other protections, including representation on the board of directors, veto rights over certain transactions and pre-emptive rights to preserve its ownership interest in the event of future equity issuances.

The number of shares to be issued under conversion or warrant rights in these deals can be significant, resulting in potential dilution to existing shareholders that far exceeds the limits imposed by stock exchanges. Accordingly, many issuers must obtain shareholder approval for these transactions or rely on financial-hardship exemptions from the relevant stock exchanges. The financial-hardship exemption is often relied on when the investment is a key component of a broader recapitalization plan involving the company's existing creditors, such as Fairfax Financial Holdings Limited's US$350 million investment in convertible debentures of AbitibiBowater.

As more companies get squeezed by the effect of declining financial results, depressed equity markets or reluctant lending institutions, we expect to see more issuers looking for a cash infusion through a convertible debt or preferred stock placement.

3. Parties Will Focus on Dispute Resolution Procedures and Remedy Provisions

By Ian Goldrich and James Tory

In 2008, we saw a number of acquisitions, both strategic and financial, collapse in the wake of the economic downturn. The parties to these transactions often wound up in court litigating the buyer's right to walk away from the deal (and at what price) versus the seller's right to compel closing. Buyers and sellers would be well-advised to ensure that their selected legal counsel has extensive expertise in commercial litigation.

In several instances, courts held that the buyer's contractual outs trumped the seller's right to require the buyer to complete the acquisition. For example, in United Rentals, the Delaware Chancery Court held that the seller's sole remedy upon the buyer's refusal to close was to pay a US$100 million reverse break fee. In other cases, the sellers commenced litigation but had to settle for reduced pricing (for example, Clear Channel's sale of its television assets to Providence Equity).

However, buyers who relied on material adverse effect (MAE) provisions to avoid closings were less successful. In two closely watched cases, Genesco (in Tennessee and New York) and Hexion (in Delaware), the courts rejected the buyers' claims that the sellers had been materially and adversely affected by developments. These decisions reiterated the high threshold to be met (in terms of both financial quantum and length of time) to trigger an MAE provision.

In 2009, we expect that buyers and sellers will negotiate more vigorously the specifics of the dispute resolution terms in a merger agreement, including choice-of-law and choice-of-forum provisions. For example, since Delaware courts have never found an MAE to have occurred in the context of a merger agreement, buyers who are concerned about enforcing an MAE clause may push for an alternative venue.

Buyers and sellers will also focus on removing any ambiguity in the remedy and walk-away provisions that resulted in much of the litigation described above. For example, parties will more clearly define the circumstances in which a buyer can be compelled to complete a transaction versus circumstances in which the buyer can walk away after paying a fee.

4. Sellers Will Be More Willing to Negotiate on an Exclusive Basis

By Aaron Emes and Sharon Geraghty

Sellers face significant challenges when they run a sale process in today's market. When buyers and financing were plentiful, sellers were generally advised to conduct a robust auction, canvassing for the best deal before locking in to negotiate with any single party. Exceptions to this rule arose only in unique circumstances or where a buyer had made a pre-emptive bid (in other words, a bid with a premium at the highest end of what the market would expect for a control premium).

However, this has changed. Buyers are cautious, debt financing is scarce and market valuations are moving targets. The risk of a failed process is much greater than before, so sellers will be even more concerned about the potential publicity and disruption involved in conducting a more active auction.

In this environment, we expect sellers to balance their priorities differently. Price is still critical, but speed of execution, confidentiality, certainty of financing and locking down a deal have become important criteria in assessing competing proposals. These imperatives are increasingly going to drive targets to deal exclusively with one party – a potential buyer that is interested, credible and able to complete diligence and arrange financing quickly. If a buyer meets those criteria and offers a meaningful control premium, a seller will be more prepared to enter into exclusive negotiations than before.

The tradeoff for exclusivity will generally be a lower break fee and possibly a go-shop provision that will allow the target to solicit a higher price for a limited time after signing (usually with an even lower break fee applicable during the go-shop period). Sellers will want to keep the exclusivity period short (typically weeks, not months), so that they can quickly identify whether the deal would be likely to proceed and whether financing would be available.

5. Infrastructure Will Continue to Be a Key Sector

By Krista Hill and Phil Symmonds

In September 2008, Abertis Infraestructuras and Citigroup withdrew their US$12.8 billion offer to operate the 537-mile Pennsylvania Turnpike after state lawmakers delayed a decision on the legislation required for the transaction to proceed. Even though the governor of Pennsylvania was strongly in favour, legislators opposed leasing the turnpike. Since then, we have seen governments coming under enormous fiscal pressure – resulting from both declining revenues and the need to provide a fiscal stimulus to mitigate the current financial crisis. If the decision to lease an asset such as the Pennsylvania Turnpike were to come before legislators in 2009, we think that the outcome may be different. We expect that balance sheet stress will prompt governments to be more favourably inclined to lease or divest infrastructure assets, either to raise proceeds or to avoid the required capital expenditures. For example, in November 2008, Canadian finance minister Jim Flaherty indicated that the federal government is considering selling off some Crown assets to avoid a deficit.

The need for stimulus should also result in an acceleration of infrastructure projects and investment, and reduced time for approvals. In December 2008, president-elect Barack Obama indicated that he intended to implement the biggest investment in public infrastructure in the United States since the federal highways program in the 1950s. We should also see increased government interest in private finance initiatives and public-private sector partnerships as governments look to the private sector to provide financing and assume risk for infrastructure initiatives. Moreover, given their cash flow profiles, long lives and monopoly-like characteristics, infrastructure assets will continue to be attractive targets in uncertain times for pension funds, infrastructure funds and sovereign wealth funds. All of this points to an active period for infrastructure M&A in 2009.

6. Going-Private Transactions Will Be More Prevalent

By Philip Brown and Karrin Powys-Lybbe

Relatively few going-private transactions took place in 2008, but we expect the number to increase in 2009 and into 2010. In a going-private transaction, a public company is transformed into a private company, often with private equity as the acquiror, and with management and/or major shareholders participating on an ongoing basis.

These types of transactions will be precipitated by a number of factors. First, dramatically reduced share prices will begin to rectify the long-held disconnect between buyers' views on price and sellers' views on value. Target companies will become more attractive to buyers as a result, and sellers are likely to accept a lower price than they would have a year ago. The realignment of valuation perception is likely to be the most dramatic we have seen in years.

To the extent that target boards decide to defer sales until share prices recover, we expect to see more hostile transactions, potentially involving management working with acquirors and at odds with the board. Historically, hostile transactions have been more prevalent when share prices are depressed and boards are reluctant to sell until values again appreciate.

Second, although doing transactions is very difficult in an extremely tight credit market, some credit does appear to be available in Canada's mid-market, which includes many target companies of private equity. There also appears to be a trend that private equity buyers are prepared to put more equity into attractive acquisitions and thereby reduce the debt required to complete a transaction.

Third, as 2011 approaches, the remaining Canadian income trusts that have not been sold or converted to a corporation will put themselves up for sale or take themselves private. The depressed share prices for income trusts will make them more affordable and, with the advantageous tax benefits of trusts expiring in 2011, should accelerate income trusts going private in 2009.

7. Using Derivatives to Acquire Toeholds Will Face Greater Regulatory Scrutiny

By Andrew Beck and Pat Koval

In recent years, hedge funds and other activist investors have relied increasingly on equity derivative strategies to accumulate economic interests in potential takeover or proxy contest targets. Typically, these strategies involve cash-settled total return equity swaps or similar vehicles. In these contracts, while no actual purchase or sale of underlying securities occurs between the purchaser of the swap (the "long" party) and the counterparty, the counterparty will typically hedge its risk by purchasing the underlying securities. The long party will not receive the power to vote the underlying securities or to compel the counterparty to dispose of them. As a practical matter, however, the swap may be "closed out" and "converted" into a direct holding by the long party by cash-settling the swap and using the proceeds to acquire the securities from the counterparty.

Under Canadian and U.S. securities laws, the prevailing view of cash-settled total return swaps has historically been that, absent specific evidence to the contrary, such swaps do not provide the long party with actual or beneficial ownership of, or control or direction over, the underlying securities. Therefore, a party acquiring an economic interest under an equity swap in 10% or more of the outstanding equity or voting securities of a class of a Canadian target issuer has not typically filed an early-warning report or an insider report relating to that interest (although a party who is already an insider as a result of beneficial ownership of such securities is required to disclose its acquisition of an additional economic interest). Similarly, in the United States, a long party would not typically file a report under section 13(d) of the Securities Exchange Act of 1934 after acquiring an economic interest under a total return swap in 5% or more of the common stock of an issuer.

In 2006, the Ontario Securities Commission indicated in the Sears decision that the use of swaps to deliberately "park" securities and avoid reporting obligations in the context of a takeover bid could constitute abusive conduct. In 2008, the much-reported court decision in a proxy contest for CSX Corporation has focused attention on the fact that regulators and courts may consider the use of equity derivatives to be abusive if they are perceived to be used to avoid disclosure obligations.

In CSX, the U.S. District Court for the Southern District of New York found that two hedge funds used cash-settled total return swaps and other arrangements to obtain significant economic power over CSX, without disclosure, before launching a proxy contest for seats on the CSX board of directors. While the Court declined to go so far as to say that a typical cash-settled total return swap creates beneficial ownership, it found that the hedge funds had entered into these arrangements to avoid their disclosure obligations. On appeal, the U.S. Court of Appeals for the Second Circuit issued a summary order affirming the lower court's decision, but without reasons. The summary order states that an opinion will follow, but it is unclear whether that opinion will discuss the issues raised by the lower court.

We expect cases like CSX, along with increased scrutiny of these issues by U.K. and other international securities regulators, to cause increased regulatory scrutiny of the use of equity swaps in contests for corporate control. Canadian securities regulators may also revisit the early-warning and insider reporting rules in this context.

8. Sovereign Wealth Funds Will Rely on the Santiago Principles to Allay Regulatory Concerns

By Michael Akkawi and Steve Donovan

The impact of the credit crisis on the leveraged buyout model leads us to expect a much bigger role for well-funded sovereign wealth funds (SWFs) in the M&A market. SWFs are loosely defined as state-owned investment funds. We see SWFs being more active as direct buyers in North America over the next few years, particularly in the mega-deal space. Although the recent financial turmoil has affected SWF returns, and lower commodity prices may have some SWFs worried about future sources of funds, other factors will override these issues. First, the decline in equity values will make acquisition opportunities difficult to pass up. Second, many SWFs have a mandate to invest internationally and have the funds to pursue this mandate. Third, many SWFs are able to take a long-term view of their investments and therefore ride out business cycles.

SWFs that seek to become more active in direct investment in North America, particularly through high-profile transactions, will need to mitigate political concerns regarding foreign investment. Both the Investment Canada Act and the U.S. Foreign Investment and National Security Act of 2007 could apply to the review of investments by SWFs. We believe that the "Santiago Principles," if properly used, may provide a framework to respond to these regulatory concerns.

In October 2008, the International Working Group of Sovereign Wealth Funds (IWG) published the Santiago Principles, 24 generally accepted principles and practices to reflect the investment practices and objectives of SWFs. The guiding objectives of these principles are, among others, (i) to base investments on the considerations of economic and financial risks and returns, and (ii) to have in place a transparent and sound governance structure that provides for adequate operational controls, risk management and accountability.

Although complying with the Santiago Principles is voluntary, we expect SWFs to provide undertakings to comply with some or all of the principles as a strategy for allaying regulatory concerns regarding transparency, corporate governance, commercial objectives and financial disclosure.

9. Distressed M&A Will Increase

By Scott Bomhof and William Gray

The liquidity crisis and broad recessionary pressures are expected to create significant opportunities for distressed M&A activity in the United States and Canada.

Historically, the U.S. restructuring process has been characterized by policies protecting existing management while the debtor develops a confirmable Chapter 11 plan approved by its creditors. Debtor-in-possession (DIP) financing had been readily available to fuel the reorganizing business during this typically year-long or longer process. But 2009 promises to be different because traditional DIP lenders are unlikely to have the liquidity or willingness to provide financing.

The dearth of DIP financing will make it difficult for troubled companies to sustain operations during an extended Chapter 11 plan process. As a result, distressed companies will most likely engage in expedited sales of non-core assets or sell all their troubled business under section 363 of the U.S. Bankruptcy Code. A section 363 sale can often be achieved within 45 to 90 days and – although subject to an auction and court approval – does not require a disclosure statement or confirmation by a creditors' vote.

"Pre-negotiated sales" may become commonplace because they promise the benefits of Chapter 11 without its concomitant cost and delay. The pre-negotiated sale process allows a buyer and a distressed seller to enter into an M&A agreement pre-petition and file it on the first day of the bankruptcy case. The proposed first-day orders are usually accompanied by a proposal to establish the procedures for the bankruptcy auction, including various bid protections, (such as break fees) for the proposed buyer – the "stalking horse" bidder. Court approval is sought immediately so that an auction and final sale can be achieved within 45 to 90 days.

The downsides of the process – the public nature of the proposed transaction, the possibility of higher and better bids and court scrutiny of the auction and sale – are compensated for by the benefits of quickly emerging from bankruptcy with a bankruptcy court order transferring the assets free and clear of claims. Stalking horse bidders are successful in the vast majority of cases, usually without competing bids.

The Canadian landscape in distressed M&A is experiencing a similar pattern. Companies are turning to the Companies' Creditors Arrangement Act to facilitate expedited sales processes within compressed time frames, with similar benefits and downsides as noted above. While Canadian sale proceedings tend to favour a more typical receivership-type sale process involving the submission of confidential bids, there is a growing trend of U.S.-type stalking horse sale proceedings being used to provide greater certainty and to allow for pre-negotiated sales to be presented to the judge at the commencement of the proceedings.

10. Foreign Investment Will Undergo Enhanced Review in Canada

By Phil Mohtadi and Omar Wakil

In November 2008, the Canadian government announced that it would enact legislation to modernize Canada's investment laws. Although legislation had not been introduced at the time of writing, the government has outlined the broad scope of its proposed amendments to the Investment Canada Act.

Thresholds for the review of foreign investments are likely to increase, thus reducing the number of M&A transactions subject to the Investment Canada Act. The Competition Policy Review Panel recommended that the standard review threshold be increased from C$295 million in assets to C$1 billion in enterprise value. The government's aim is to cut the number of reviewable transactions annually by roughly one-half.

The government is also planning to establish a new national security review mechanism in the Investment Canada Act to ensure that foreign investments do not jeopardize Canada's national security. This amendment will bring Canada in line with its major trading partners, including the United States, which already allows for the review of foreign investments on national security grounds. Although it is unlikely that many transactions will be reviewed – much less blocked – on national security grounds, the recent government rejection of the proposed acquisition by Alliant Techsystems Inc., a U.S. firm, of a portion of the business of Canadian firm MacDonald, Dettwiler and Associates Ltd. may signal a trend toward increasing regulatory scrutiny of foreign acquisitions in industries that present national security concerns, even though no legislative amendments have yet been enacted.

Torys' M&A Practice

Torys' M&A Practice is highly regarded for its experience in sophisticated, complex and innovative mergers and acquisitions. We are involved in high-profile mergers and acquisitions, both public and private, as well as those for small and mid-sized companies. On cross-border mergers and acquisitions, we provide seamless service to clients in the United States, Canada and internationally.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions