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2018
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LEXPERT 19
Horn, Sidney M. Stikeman Elliott LLP
(514) 397-3342 smhorn@stikeman.com
Mr. Horn specializes in commercial, corporate and securities law.
He advises large domestic and international corporations on complex
questions concerning finance, M&A, debt restructurings and corporate
governance. He was recognized as having the highest rating ("AV")
under the Martindale-Hubbell Peer Review Ratings.
Horn, Samantha G. Stikeman Elliott LLP
(416) 869-5636 sghorn@stikeman.com
Ms. Horn is a partner and member of the Toronto office's Management
Committee. She received the WXN's Canada's Most Powerful Women:
Top 100 Award in 2014, 2015, 2016, and was inducted into the Hall of Fame
in 2017. She practices primarily in M&A, private equity, venture capital,
and fund formation activities. She is a founding member of the CVCA's
Canadian Women in Private Equity committee.
Harvey, Frédéric Fasken Martineau DuMoulin LLP
(514) 397-5235 fharvey@fasken.com
Mr. Harvey is a partner in the Tax group. He specializes primarily
in mergers & acquisitions, corporate finance, international tax,
and corporate reorganizations. His legal and strategic advice enables
clients to achieve effective resolution of tax issues relating to complex
commercial transactions, including cross-border transactions
and both public and private mergers & acquisitions.
Harrison, QC, Elizabeth J. Farris, Vaughan,
Wills & Murphy LLP (604) 661-9367 eharrison@farris.com
Senior partner Ms. Harrison, QC, practises in the corporate, M&A,
and securities fields. She has represented boards of directors, investment
bankers and public corporations in M&A's, prospectus offerings, private
placements, take-over bids, open market transactions, acquisitions
of control, related-party transactions, privatizations, proxy contests
and other securities-related matters.
Harbell, James W. Stikeman Elliott LLP
(416) 869-5690 jharbell@stikeman.com
Mr. Harbell is head of the firm's Project Development & Finance Group
and a Certified Specialist in Environmental Law by LSO. Jim advises on real
estate development, M&A in the energy and infrastructure areas, regulatory
approvals and project finance. He has appeared before various levels of
courts and regulatory agencies. Jim writes and speaks extensively on energy,
environmental, municipal law.
LEXPERT-RANKED LAWYERS
doesn't make a lot of sense, says Olas-
ker. "In our experience, buyers generally
aren't looking to take advantage of un-
suspecting sellers by laying in the weeds
with knowledge of misrepresentation so
that they can turn around and sue the
seller aer closing," she explains. "Liti-
gation is too costly and time consuming
for that."
To Olasker's point, sandbagging is
hardly a new phenomenon. Market
participants concerned that sandbag-
ging may become an issue typically
protect themselves by including pro- or
anti-sandbagging clauses in the agree-
ment. An example of the former might
stipulate that the buyer cannot be pre-
cluded from launching a claim based
on foreknowledge about the truth of
the seller's reps and warranties. By con-
trast, an anti-sandbagging clause might
seek to limit or prevent legal action
based on foreknowledge.
Such discussions become part of the
overall negotiations around the final
agreement, says Wright. For many law-
yers, this is perhaps the clearest illustration of
the legitimacy of sandbagging as something that
needs to be seen as part of the overall deal frame-
work. "Sandbagging is just one of a laundry list of
significant transaction points that will be negoti-
ated in a typical M&A transaction," says Brent
Kraus, a partner and co-head of capital markets
and M&A at Bennett Jones LLP. "And differ-
ent parties will put different weights on different
trade-offs in the course of a negotiation." In the
end it becomes a bargaining chip that either enters
the contract or is conceded.
"My view is that sophisticated parties should be
free to transact as they agree on this item and it's
not really something that should be legislated one
way or another," says Kraus. Simply put, market
participants are grownups; they should be le to
deal whatever issues arise, including sandbagging,
as they see fit.
Proponents of this approach — and there are
many — make the case that not only are nego-
tiations around sandbagging integral to M&A,
they are oen key to a deal that works for both
sides. Experts such as Kraus say they help shine
a light on the broader risks of a deal from both
sides' perspectives. By simply raising the issue of
sandbagging, players get a clearer view of poten-
tial concerns from the point of view of those sit-
ting opposite at the bargaining table, says Kraus.
Interestingly, parties will oen raise the topic but
in the end opt to leave out any pro- or anti-sand-
bagging language, having sufficiently explored the
territory to satisfy themselves.
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