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2020 Summer review M&A legal and market developments

We set out below a number of interesting English court decisions and market developments which have taken place and their impact on M&A transactions. This review looks at these developments and gives practical guidance on their implications. The full report can be downloaded from the link at the bottom of this page.

 

In this issue…

Contractual provisions

A number of cases have looked at common contractual provisions on M&A deals

  • Length of restrictive covenants imposed on employee-shareholder under SHA
  • Dual requirement to notify claims as soon as possible and within seven years
  • Distinction between covenant to pay and indemnity under SPA
  • Indemnity under SPA in relation to excess liabilities
  • Indemnity in SPA allocating risk for pre‑completion damage

Company law

There have been particular cases of interest on a range of company law issues

  • Scheme explanatory statement adequate and fairness test met

  • Cancellation scheme of arrangement – restructuring exception applied
  • Directors' duties when company goes into administration or creditors' voluntary liquidation
  • Payments into employee benefit trust were unlawful distributions
  • Directors' duties to promote success and to avoid and declare conflicts of interest
  • Strict application of principle of shareholders' unanimous consent

Listed companies

The following English court and FCA decisions are of particular interest to listed companies

  • Directors not liable for recommending a Class 1 acquisition, despite disclosure failures
  • FCA fines executive for failing to notify issuer and the FCA of share trades

Good faith

A number of recent cases have looked again at contractual duties of good faith and the relationship between contracting parties

  • Joint venture: no implied duty of good faith nor to 
    act rationally when removing oil and gas operator
  • No implied duty of good faith under joint venture 
    agreement to disclose business opportunities to 
    shareholder
  • No oral modification clauses affirmed

 

Download the full article '2020 Summer review M&A legal and market developments' PDF

 

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White & Case M&A Legal and Market Developments Review

 

Peter Wilson (Professional Support Lawyer, White & Case, London) contributed to the development of this article.

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