Part 3: Sandbagging in M&A – sandbagging around the world

In the past two weeks we have provided an overview of sandbagging in M&A transactions and discussed strategies that can be used when negotiating this clause. We also provided a brief overview of the consequences of remaining silent with respect to sandbagging. This week we will discuss how sandbagging clauses are used in several jurisdictions around the world. We conducted a review of several M&A deal studies which collectively covered transactions in Australia[1], the United States[2], Canada[3] and in Austria, Belgium, Denmark, France, Finland, Germany, Italy, the Netherlands, Spain, Sweden and the UK (the European Union Countries)[4] (collectively, the Deal Point Studies). We have noted the following interesting observations in respect of the Deal Point Studies: Approximately 45% of deals in Canada, Australia and the United States included a form of sandbagging provision, however, 69% of deals in the European Union Countries included a sandbagging…

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