Michael A. Smith

My focus

Mergers and Acquisitions

I advise public and private companies in mergers and acquisitions with significant cross-border experience, advising on transactions into and out of the United States, Canada, Europe, the Middle East, North Africa, sub-Saharan Africa, Latin America, and China.

With deep experience across a wide range of industries, including financial services, health care, life sciences, and oil and gas, I have developed a focus in the cannabis space in recent years. Given the massive disruption across the cannabis industry, much of my recent work has involved counseling cannabis companies and investors on distressed Canada-U.S. cross-border transactions.

Capital Markets

I have recently advised numerous issuers and underwriters on cross-border offerings of equity, high-yield debt, sovereign debt, and structured debt registered with the U.S. Securities and Exchange Commission (SEC), as well as the Canada-U.S. Multi-Jurisdiction Disclosure System (MJDS). I am well versed in Rule 144A, Regulation D, and Regulation S offerings as well. I also guided United States and non-U.S. companies on their listings with international exchanges, including the New York Stock Exchange (NYSE), the Nasdaq, the London Stock Exchange, the Toronto Stock Exchange, and several other regional exchanges. In addition, I regularly counsel boards, senior management, and private equity firms with respect to corporate governance, deal structuring, and strategy.

Representative experience

Michael joined Nixon Peabody in November 2020. The representative work set forth below may reflect experience from prior firms.

Finance Transactions

• RBC Capital Markets—Acted as underwriter’s counsel in a C$225 million cross-border income trust offering in Canada and the U.S. Additionally, represented RBC Capital Markets in a series of Rule 144A cross-border commercial mortgage-backed securities offerings that raised more than $1 billion in two years.
• Royal Bank of Canada—Advised in connection with its Canada-U.S. cross-border $400 million Rule 144A offering of asset-backed floating rate notes, underwritten by RBC Capital Markets and JP Morgan.
• CIBC World Markets and Merrill Lynch—Represented the underwriters on the secondary sale (bought deal) of $180 million of Brookfield Properties’ common shares.
• TD Securities—Acted as counsel for the underwriter in a series of Rule 144A cross-border commercial mortgage-backed securities offerings that have raised more than $1 billion in two years.
• Citibank—Advised the underwriter on its $250 million Rule 144A sovereign debt offer by the government of Jamaica and listed on the Luxembourg Exchange.
• Goldman Sachs—Represented the underwriter on the $800 million MJDS shelf and $300 million MJDS shelf take-down for Noranda and the $252 million initial public offering (IPO) into the U.S. for a Canadian competitive local exchange carrier on Form F-I that was dual-listed on Nasdaq and the TSE. Also represented Goldman Sachs on a $55 million Exxon Capital exchange offer on MJDS Form F-10 for a Canadian entertainment company’s high yield debt.
• UBS and ABN Amro—Acted as underwriters’ counsel on an international and Dutch equity IPO (with exiting venture capital shareholders) with Reg S depositary receipts that were listed on the Amsterdam Stock Exchange and SEAQ International.
• Bank TuranAlem—Represented the issuer on its CHF300 million Rule I44A offer, as underwritten by Nomura, London.
• Bear Stearns—Represented this underwriter on Nelvana Limited’s $35 million initial public offering and listing on Nasdaq.
• Merrill Lynch—Acted as counsel for Merrill Lynch (New York and Canada), the underwriter of Alliance Atlantis Communications’ $130 million equity public offering in the U.S. and Canada. Also advised Merrill Lynch (London) on the issue of perpetual floating-rate Eurobonds for a Scandinavian commercial lending issuer, with private placement into the U.S.
• BlackRock Funds—Advised BlackRock on its first Islamic compliant long/short hedge fund, using an arboon, an Islamic short sale structure.
• RAK Petroleum—Advised this Dubai-based client on its reorganization into a UK PLC and concurrent IPO on the Oslo Stock Exchange.
• Lake Shore Gold Corp.—Represented the issuer in the filing of its registration statement with the SEC and its listing on the NYSE.
• Methanex—Advised on its $200 million cross-border high yield debt offering in the U.S., as underwritten by Goldman Sachs and CIBC World Markets.
• Air Canada—Represented the issuer on its $300 million and €100 million Exxon Capital exchange offer on MJDS.
• GT Group Telecom—Advised the underwriters Merrill Lynch and CIBC World Markets on a $85 million equity “bought deal” for GT Group Telecom.
• Standard & Poors—Reviewed numerous transaction documents and offering circulars related to structured financings and asset-backed securities rated by Standard & Poors.
• Odebrecht—Advised on a $135 million refinancing by the Odebrecht group of Brazil, including unwinding of existing puts and calls over Odebrecht shares trading on the Bovespa and owned by CSFB, the transfer of those shares to a tax neutral offshore location, the issuance of a Eurobond that provided the capital to unwind the existing puts and calls, the negotiation of a new share purchase agreement, containing International Swaps and Derivatives Association (ISDA) puts and calls between CSFB and Odebrecht, and the issuance of a credit-linked note by CSFB as payment for the shares.
• Diagnocure, Victhom Human Bionics, and MonoGen—Acted for these Canadian biotech issuers on their Regulation S and Regulation D cross-border private placements in excess of $200 million.
• Multiple issuers and underwriters—Advised on cross-border U.S. private placements (under Rule 144A, Regulation D and/or Regulation S) for the following issuers and underwriters—CSFB, CIBC World Markets, Scotia Capital, Toronto Dominion Securities, Delta Systems, Draxis Health, Enbridge, Falconbridge, Intrawest, Ivernia West, Major Drilling Group, Oxbow Equities, Persona, TeraGo, TimberWest, Transalta, Explore Technologies, Aggra Tagger, and Atlas Energy.
• Confidential—Represented a Canadian automotive parts company on its $200 million issue of high-yield debt into the U.S. on MJDS Form F-10, underwritten by Goldman Sachs.
• Confidential—Advised a Polish company in connection with its international and Polish equity offering listed on the Warsaw Stock Exchange and registered with the Polish Securities Commission. Reg S global depositary receipts were listed on the Luxembourg Exchange and SEAQ International and Rule 144A depositary receipts were issued to qualified institutional advisors (QIBs) in the U.S. and listed on Nasdaq (Portal).

Representative M&A Transactions

• TD Bank—Advised on its C$4 billion cross-border structured finance transaction/joint venture with Bank of America.
• Draxis Health Inc.—Advised this Canadian pharmaceutical company, listed on the TSX and Nasdaq, in connection with its $255 million tender offer by Jubiliant Organosys Ltd. of India. Advised on all aspects of the U.S. tender offer rules and Canadian takeover bid rules.
• Lakeshore Gold—Represented the target company in connection with its cross-border C$945 million public takeover by Tahoe Resources.
• Lion Ore International—Acted as U.S. counsel to this Toronto-based company, the target of a $6.5 billion hostile takeover battle between Norilsk and Xstrata.
• Emco—Acted as U.S. counsel in the $165 million cross-border tender offer for all the securities of Emco by Hajoca. Structured the transaction in compliance with U.S. and Canadian tender offer rules.
• World Bank and NM Rothschild—Advised the World Bank and NM Rothschild on the multi-billion-dollar privatization of Zambian copper mines and related hydro-electric power division.
• Solect and Morgan Stanley—Acted on the $1.1 billion share exchange offer for Solect by Amdocs. Counseled the target company and Morgan Stanley.
• Clearnet—Advised the company and its board in relation to the C$6.8 billion unsolicited share exchange tender offer made by Telus for all outstanding Clearnet shares, in full compliance with Canadian takeover bid rules and U.S. tender offer rules.
• Hummingbird Communications and Lehman Brothers—Represented Hummingbird Communications and its financial adviser, Lehman Brothers, in Hummingbird’s $350 million tender offer of PC Docs in full compliance with Canadian takeover bid rules and U.S. tender offer rules.
• Multiple companies—Acted as lead U.S. counsel on cross-border business combinations under Rule 802 of the 1933 Act, Section 3(a)(10) of the 1933 Act or the MJDS for the following foreign companies: Cambior, Canadian Superior Energy, Carpatsky Petroleum, Constellation Software, Crescent Point Energy, Crystallex, and Glyco Design.
• Confidential—Negotiated joint venture transactions across the globe with mining companies and consortiums from the U.S., the UK, Canada, India, Australia, and South Africa.
• Confidential—Represented foreign investors in connection with their $900 million acquisition of an iconic hotel in the United States.
• Confidential—Advised an international consortium on its acquisition of an F1 racing team.
• Confidential—Advised a large North American banking institution on the spin-out of its proprietary trading division to ensure compliance with Dodd- Frank legislation.
• Confidential—Advised a semi-sovereign Middle East oil and gas company in establishing a $4 billion joint venture with a Chinese sovereign investor.
• Confidential—Acted on the private acquisition of a $235 million U.S. business division by a large European multinational.
• Confidential—Advised several Middle Eastern sovereign wealth funds in connection with their investments in the United States.

Presentations

• “SPACs in the Healthcare Sector: Structuring Transactions, Considerations and Challenges for Companies, Investors,” Strafford CLE webinar, July 21, 2021

Looking ahead

The use of special-purpose acquisition companies (SPACs) by private equity firms to raise assets under management (AUM) on Canadian, U.S., and UK stock exchanges will continue to grow.

I also expect the Middle East will generate more transactional work, especially cross- border financings and projects, due to the normalization of Israeli-Arab commercial relations and the modernization of Saudi Arabia.