20 LEXPERT
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2018
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WWW.LEXPERT.CA
Jackson, Kibben Fasken Martineau DuMoulin LLP
(604) 631-4786 kjackson@fasken.com
Mr. Jackson is a recognized corporate/commercial litigator in the Vancouver
office who specializes in insolvency. He is highly sought after for his
experience in corporate restructurings, secured creditor realization
and acting for court's officers in insolvency processes. Clients appreciate
his ability to guide them in the face of evolving insolvency legislation
and judicial developments.
Innes, Michael D. Osler, Hoskin & Harcourt LLP
(416) 862-4284 minnes@osler.com
Mr. Innes is a partner and Co-Chair of the Firm's Corporate Finance
& Securities Group and a member of the Firm's Partnership Board.
He is nationally and internationally recognized as a leading capital markets
and US/Canada cross-border corporate lawyer in Canada. His practice
focuses on corporate finance and securities, M&A and private equity.
Huot, Jean Marc Stikeman Elliott LLP
(514) 397-3276 jmhuot@stikeman.com
Mr. Huot is a partner and a member of the Corporate Group. His practice
focuses on securities, M&A and governance. He acts for issuers, underwriters
in the context of public offerings and private placements in Canada
and abroad, public corporations, investment funds, purchasers and sellers.
He has experience in international tender offers and privatizations.
Hueppelsheuser, Darren D. Norton Rose
Fulbright Canada LLP (403) 267-8242
darren.hueppelsheuser@nortonrosefulbright.com
Mr. Hueppelsheuser's practice concentrates on income tax law,
with an emphasis on the tax aspects of financing and transaction planning
for corporations and partnerships in both private and public transactions.
He also advises with respect to international tax structuring of Canadian
inbound and outbound investments. He regularly makes presentations
on cross-border and domestic tax issues.
Hudec, Albert J. Farris, Vaughan, Wills & Murphy LLP
(604) 661-9356 ahudec@farris.com
Senior partner Mr. Hudec is a securities and M&A practitioner with 30+
years of experience in all legal aspects of securities and corporate finance,
including mergers & acquisitions, public and private financings of equity
and debt, corporate governance and independent committee representation,
with emphasis on the North American resource and technology industries.
Houston, Thomas A. Dentons Canada LLP
(613) 783-9611 tom.houston@dentons.com
Mr. Houston advises on corporate finance, venture capital, M&A
and corporate governance matters, across various industry sectors,
with an emphasis on the technology and not-for-profit sectors. He has
particular expertise in technology start-ups and has assisted many
companies from formation through successful exits. Many transactions
have involved cross-border investments and acquisitions.
LEXPERT-RANKED LAWYERS
"ere are definitely two perspectives on the
merits of sandbagging," adds Kraus. "Both sides
of the debate can make valid questions. … Vendors
feel it's not fair of the buyers to close a transaction
with knowledge of a breach and later spring the
trap, so to speak. And buyers generally feel that
their knowledge should be irrelevant."
Broaching the topic forces players to hone in
quickly on key aspects, establishing for themselves
what the party on the other side of the table does
or does not know, says Wright. For example, if
the vendor proposes anti-sandbagging language,
that compels the buyer to ask, what are you wor-
ried about? What do you know that I don't? e
same is true if the buyer asks for pro-sandbagging
language. e key point is that a discussion is
sparked, and as a result both sides benefit from
increased transparency.
"If someone puts in a pro-sandbagging provi-
sion, it really does focus the seller's attention —
what are you, the purchaser, thinking might be-
come an issue?" says Wright. "So even before you
sign the agreement, that will focus everybody's
attention on the rep and warranty itself because
parties will want to get to the bottom of what the
other party thinks might be an issue."
Still, there are negatives. Critics worry it's not
fair to put most of the onus for full disclosure on
the vendor, while leaving the buyer mostly free
of such obligations. ey also make the case that
anti-sandbagging provisions may cause buyers to
devote less energy to the normal due diligence
process conducted before any acquisition as a way
to fend off potential accusations that they knew
something was wrong before the closing. One un-
intended consequence, they say, is that more deals
might end up in court.
As far as the courts are concerned, there is lim-
ited guidance on the issue. However, in general
Canadian courts rely on expectations of "good
faith" between market participants — in other
words, as long as players are truthful and fair in
"THERE ARE DEFINITELY TWO
PERSPECTIVES ON THE MERITS
OF SANDBAGGING. … VENDORS
FEEL IT'S NOT FAIR OF THE BUYERS
TO CLOSE A TRANSACTION
WITH KNOWLEDGE OF A BREACH
AND LATER SPRING THE TRAP,
SO TO SPEAK. AND BUYERS
GENERALLY FEEL THAT THEIR
KNOWLEDGE SHOULD
BE IRRELEVANT."
- BRENT KRAUS; BENNETT JONES LLP
