UK public takeovers can be structured either as a court-approved scheme of arrangement under the Companies Act 2006 or a contractual offer. This article examines two cases which highlight the types of objection raised by shareholders and provide an understanding of the approach taken by the English courts in applying their judicial discretion to sanction a scheme.
The Takeover Panel recently published a panel statement which provides helpful guidance on the factors that it will take into consideration when determining whether a person should be cold-shouldered. Cold-shouldering is the most serious disciplinary power available to the panel and has rarely been used – until now.
Two recent High Court of Justice decisions provide guidance on the interpretation of provisions customarily included in sale and purchase agreements for the acquisition of private companies or businesses. In the first decision, the court considered whether the provisions of a purchase price procedure were conditions precedent. In the second decision, the court considered the scope of a restrictive covenant in an employment agreement and its impact on sale and purchase agreements.
The High Court of Justice recently considered two disputes regarding breaches of warranties arising from the acquisitions of private companies. The decisions affirm the orthodoxy that the measure of damages for breach of warranty included in a sale and purchase agreement for the sale of shares is the diminution in the value of the shares purchased but also sound a warning to sellers that have struck a poor economic bargain.
Since June 2019, Universities Superannuation Scheme and Macquarie have been engaged in a competitive takeover battle for KCOM (a telecoms company). As was the case for the recent Sky takeover, it proceeded to an auction. However, instead of the parties agreeing to their own set of rules for the auction, the Takeover Panel's default auction rules were used, making it the first time that they have been used for a UK takeover.