2014-15 Canada-China Business Forum Magazine | Page 58
LAW
法律
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A buyer who puts forward a successful,
accepted bid can be confident that the court
should approve the bid which has been
recommended by its officer. That is, buyers
can have confidence in putting their best
offer forward because they know that if their
best offer is accepted, it should be approved
by the court and that the transaction will
close – and other, competing buyers will not
disrupt the sale or get a second attempt.
Having said that, it can be acknowledged that
one of the strengths of the Canadian system is
that it has been flexible and has imported some
procedures from other jurisdictions. In that
regard, some Canadian cases have incorporated
a form of stalking horse sales process, which
is more of an American concept, in which the
court will approve an initial offer to purchase
on the basis that there will be a time-limited
opportunity for competing, qualified bidders
to seek to top that initial offer in a controlled
auction process. In those situations, the original
bidder will receive a specified break fee if its offer
is ultimately topped.
A stalking horse process can give a buyer an
enhanced level of control and exclusivity as well
as an opportunity to recover its professional costs
if a superior offer ultimately emerges. However,
in short, in any of these procedures, it is essential
for an interested bidder to know how the process
works and what a judge will or will not approve
in any given situation. This allows the bidder
to avoid asking for things that are unattainable )