Cayman Islands: The Acquisition And Leveraged Finance Review

Last Updated: 11 November 2015
Article by Charlie Pywell

I OVERVIEW

The majority of merger and acquisition activity (and the financing thereof ) involving exempted companies or exempted limited partnerships2 in the Cayman Islands is originated in either England or the United States. The Cayman Islands is recognised as a leading offshore jurisdiction through which much of such merger and acquisition activity is structured.

The Cayman Islands is a tax-neutral jurisdiction, offering a robust and straightforward legal and regulatory system based on English common law. Much like England, the legal system in the Cayman Islands is well regarded as creditor-friendly (with the absence of debtor-friendly insolvency regimes such as Chapter XI in the United States) which is clearly attractive to lenders and helps to increase liquidity in leveraged finance structures involving Cayman Islands holding companies.

There are few restrictions in the Cayman Islands on the type of recognised debt products that may be used to finance the acquisition of entities incorporated in the Cayman Islands (which, for ease, shall be referred to in this chapter as 'Cayman companies'). Accordingly, all of the 'usual' leveraged finance debt products are available in the Cayman Islands. These include: secured bank term facilities (including senior secured, mezzanine and second-lien term loans); notes/bonds and bridge facilities (including high yield, senior secured, second lien and privately placed); and working capital and revolving credit facilities.

The type of debt product used in leveraged acquisitions involving Cayman companies is driven by the commercial needs of the specific deal (rather than jurisdictional issues arising in the Cayman Islands). 'Mid-market' acquisitions are typically financed with secured-term bank lending (typically senior and mezzanine term debt for acquisitions originating in Europe and first and second-lien term debt for acquisitions originating in the United States). In higher-value acquisitions, it is common for high-yield and/ or senior secured notes to be issued. In both cases, it is common for revolving facilities to be made available to the target group (primarily for working capital purposes) under secured bank lending arrangements (and where the acquisition is structured using senior secured notes, it is typical for such revolving facilities to rank 'super senior' to such senior secured notes).

Irrespective of the combination of debt products used, such debt is typically guaranteed by each material subsidiary and the direct parent of the borrower. The finance documents (other than jurisdiction specific security documents) are typically governed by English or New York law (depending on the originating jurisdiction).

The mergers and acquisitions market in the Cayman Islands is buoyant. The total deal value for corporate activity in offshore jurisdictions in the first quarter of 2015 was US$68.3 billion, with the Cayman Islands accounting for approximately a quarter of such activity.3 During 2014, 9,055 exempted companies4 and 1,808 exempted limited partnerships5 were formed in the Cayman Islands and, as at 8 July 2015, there were a total of 94,090 companies6 and 16,821 exempted limited partnerships7 registered in the Cayman Islands.

II REGULATORY AND TAX MATTERS

i Licensing

The banking sector (among others) is regulated in the Cayman Islands by the Cayman Islands Monetary Authority (CIMA). Financial institutions are required to be licenced by the CIMA if they are carrying out 'banking business' – which is defined as 'the business of receiving (other than from a bank or trust company) and holding on current, savings, deposit or other similar account money which is repayable by cheque or order and may be invested by way of advances to customers or otherwise'.8

It is not necessary for a foreign financial institution that is simply lending to a Cayman company to be licensed, qualified or otherwise entitled to carry on business in the Cayman Islands. In addition, a financial institution lending to a Cayman company will not be deemed to be resident, domiciled or carrying on business in the Cayman Islands by reason only of the execution, performance or enforcement of the relevant finance documents (including any Cayman law governed security documents) by such financial institution.

Lenders that are carrying out 'banking business' are required to be appropriately licensed by the CIMA, but such requirements are beyond the scope of this chapter.

ii Sanctions, anti-corruption and anti-money laundering

Local sanctions, anti-corruption, anti-money laundering and anti-terrorism financing legislation and regulations have been adopted in the Cayman Islands in line with other major offshore financial centres and onshore jurisdictions. Such laws in the Cayman Islands require financial institutions to apply a risk-based approach to money laundering and to implement risk management policies (including customer due diligence and suspicious activity reporting).

As EU and international laws relating to sanctions are also adopted in the Cayman Islands and such legislation is regularly revised, it is important to ensure that the relevant legislation is reviewed on an ongoing basis.

iii Tax

General

There are no income, corporation, capital gains or other taxes presently in effect in the Cayman Islands which generally affect Cayman companies. A Cayman company can apply for (and expect to receive from the Governor-in-Cabinet of the Cayman Islands), pursuant to the Tax Concessions Law of the Cayman Islands, an undertaking that in the event of any change to the foregoing, such Cayman company, for a period of 20years from the date of the grant of the undertaking, will not be subject to tax in the Cayman Islands on its income or its capital gains arising in the Cayman Islands (or elsewhere) and that dividends of such company will be payable without deductions of Cayman Islands tax. It is typical for Cayman companies to obtain such an undertaking upon incorporation (but it may be obtained at any time thereafter).

Stamp duty and documentation

There is no stamp, registration or similar tax or duty to be paid on or in relation to any finance documents provided that they are executed and remain outside the Cayman Islands. If it becomes necessary to bring any of the finance documents into the Cayman Islands (for enforcement or otherwise) nominal stamp duty will be payable. In the case of any finance document creating security over moveable property situated in the Cayman Islands or over shares in a Cayman company, stamp duty will be payable on an ad valorem basis to a maximum of CI$500.

Withholding tax and the Cayman Islands Stock Exchange

As above, there is no income, corporation, capital gains or other taxes presently in effect in the Cayman Islands and, accordingly, no withholding tax is applied in the Cayman Islands on payments to or from Cayman companies.

There is, however, a steady stream of Cayman and non-Cayman companies making 'technical listings' of debt securities (typically intercompany loan notes) on the Cayman Islands Stock Exchange (CSX). A principal reason for doing so is to benefit from the well-publicised quoted Eurobond exemption. The CSX has been designated a 'recognised stock exchange' by HM Revenue & Customs in the United Kingdom, meaning that an issuer which is tax-resident in the UK can make payments of interest on such listed debt securities gross, without any deduction for tax. As at December 2014, quoted Eurobond securities with an aggregate face value of US$72 billion had been listed on the CSX (which constitutes about 40 per cent of the total aggregate value of debt securities listed on the CSX).9

III SECURITY AND GUARANTEES

i Guarantees

The provision of a guarantee by a Cayman company of the debts and other obligations of companies within the same group is a common feature of leveraged financings involving Cayman companies. The guarantee is typically documented under the same governing laws as the underlying finance documents to which it relates and is generally included within the facility agreement (or occasionally the intercreditor agreement). Guarantees are often granted by the direct parent of the borrower of the acquisition debt (which is typically a newly formed vehicle established for the purpose of making the acquisition of the target company) and are ordinarily granted by all subsidiaries (or, increasingly commonly, just the material subsidiaries) of the borrower by way of accession to the main finance documents within an agreed time frame post-acquisition.

There are no legislative or other restrictions on the ability of a Cayman company to provide financial assistance (i.e., the ability of a Cayman company to guarantee or secure borrowings incurred to finance or refinance the direct or indirect acquisition of the shares of such Cayman company or any of its holding companies or sister companies). There are also no restrictions imposed by Cayman Islands law on the amount of any guarantee that a Cayman company may provide, although, as set out below, the directors of a Cayman company have a duty to consider the corporate benefit to that company in entering into any such transaction.

ii Security

Cayman Islands law does not place any restrictions on the categories of assets that can be subject to security and, accordingly, any or all of the property of a Cayman company is available as collateral.

Cayman Islands law generally recognises six forms of security interest: (1) a legal mortgage; (2) an equitable mortgage; (3) a charge; (4) a pledge; (5) a lien; and (6) an assignment by way of security. The most common types of security interests granted by or over a Cayman company are equitable mortgages, charges and security assignments. In the context of leveraged financings involving Cayman companies, legal mortgages, pledges and liens are so rarely granted that a discussion of them is beyond the scope of this chapter.

Mortgages and charges

Although they are conceptually different, the practical distinction between an equitable mortgage and a charge is not significant. In each case, the security is effective without any necessity for the secured parties to be in possession of the secured asset and both give the secured parties a proprietary interest in the secured asset which is effective on the insolvency of the grantor of that mortgage or charge. Both mortgages and charges may be granted over current and future-owned assets.

In the case of a mortgage, title to the asset is transferred to the secured party (although in the case of an equitable mortgage, only beneficial title is transferred with legal title remaining with the mortgagor). The transfer of title pursuant to a mortgage is a transfer by way of security, meaning that it has been transferred only to secure an obligation and, accordingly, once that obligation is discharged, the mortgagor is entitled to have that title transferred back to it. This right, which is itself a proprietary interest, is described as the 'equity of redemption'. The equity of redemption cannot be extinguished without the express order of a court (for example, an order for foreclosure).

A charge is distinguishable from a mortgage on the basis that it is a proprietary interest granted by way of security without a transfer of title or possession.10 A charge creates a security interest which attaches to a particular asset and generally travels with it into the hands of a third party (except where the charged asset is transferred to a bona fide purchaser of full legal title for value and without notice of the existence of the charge, in which case such purchaser will acquire the asset free of the charge).

Charges are characterised as being either fixed or floating and, in practice, where a company has a range of different types of asset available to secure its debts or other obligations, fixed and floating charges will be created within a single charge document (and where such fixed and floating charges are created over substantially all of the assets (and potential assets) of a company, the document creating such charges is usually called a debenture). Irrespective of how a charge is described in the document creating it, its characterisation as either a fixed or a floating charge will principally depend on the level of control the chargor retains over the asset in question and the extent to which the chargor is able to continue to deal with the asset.11 Accordingly, the document under which a purported fixed charge is created will, subject to commercial agreement to the contrary, usually contain restrictive provisions that are designed to prevent the chargor from dealing with the assets subject to the fixed charge. In contrast to a fixed charge (which attaches to specific assets), a floating charge is a security interest over the assets of a company (which may be all or a specified class of assets) which is said to 'float' over the charged assets until such time as it 'crystallises', at which point it is converted into a fixed charge.

The significance of correctly characterising a charge is apparent on the insolvent winding up of a company. As set out in Section IV infra, claims by the holders of fixed charges will rank in priority to the claims of certain preferred creditors and to the holders of floating charges. Despite this lower priority, lenders often seek to take a floating charge as 'back-up' to purported fixed charges. Floating charges have the benefit of providing a security interest while not restricting the ability of the chargor to carry on its business operations.

Except for real estate, aircraft and ships, there is no statutory regime in the Cayman Islands for the creation of charges or mortgages; they are created by the execution of a security agreement between the chargor and the secured creditor (typically a security agent or trustee on behalf of several secured parties). This agreement will evidence the grant of the mortgage or charges (fixed or floating or both) and will set out their terms.

Assignments by way of security

Security may be granted by a Cayman company over claims and receivables to which it is entitled and, most commonly, over debts and other rights created by contract. A claim or receivable arising under a contract is classified as a chose in action, being a right that can only be asserted bringing a legal action and not by taking possession of a physical asset. Consequently, a security interest over such assets takes the form of an assignment with an express or implied undertaking to reassign the asset on discharge of the secured obligation (as noted above, the 'equity of redemption'). An assignment by way of security may be either legal (with the giving of notice to the counterparty to such assigned contract) or equitable (where no such notice is given or for such time until notice is given).

The terms of the contract under which the debt or other chose in action arises must be considered before any security assignment is created to ensure, among other things, that the assignment of such rights is not prohibited or subject to consent of the debtor. Failure to comply with such contractual terms will render any purported assignment of such rights invalid against the debtor.

iii Secured assets

As noted above, any or all of the property of a Cayman company is available to be secured. However, as Cayman companies involved in leveraged financings are most commonly existing holding companies or newly incorporated acquisition vehicles, it is regularly the case that the only real asset of a Cayman company is the shares it holds in its subsidiaries. Accordingly, the most common category of asset secured in leveraged financings involving Cayman companies is the shares of a Cayman company. Security over the shares of Cayman companies will typically be governed by Cayman Islands law although it is not uncommon for security to be taken over the shares of a Cayman company under foreign laws (particularly New York law).

To the extent that a Cayman company has other assets with their lex situs in the Cayman Islands, Cayman Islands law governed security may be taken over them. Considering the nature of Cayman Islands-exempted companies (which are registered on the basis that their objects are to be carried out mainly outside the Cayman Islands), it is uncommon for such companies to have fixed assets located in the Cayman Islands. However, it is not uncommon for Cayman companies to have bank accounts located in the Cayman Islands and they may also have the benefit of certain contracts governed by Cayman Islands law (typically evidencing intra-group receivables).

A security interest in a bank account will normally take the form of a charge over all money standing from time to time to the credit of specified accounts together with an assignment by way of security of interest and all other rights and benefits accruing to, or arising in connection with, such accounts. As set out above, a security interest over claims and receivables, typically debts and other rights created by contract, will normally take the form of an assignment by way of security (on the basis that a claim or receivable arising under a contract is a chose in action, being a right which can only be asserted by bringing a legal action and not by taking possession of a physical asset).

On the rare occasions where a Cayman company has multiple classes of assets located in the Cayman Islands or, more likely, where the finance parties are keen to ensure they have security over all future assets of a Cayman company (but the likely location of such assets is unknown at the time of entering into the transaction), a Cayman company may execute a Cayman Islands law governed fixed and floating charge document, creating security over all of its present and future assets. Such a document is substantially similar in both form and substance to an English law-governed debenture.

Security over shares of a Cayman company

Security over shares of a Cayman company may be created either as a legal mortgage, an equitable mortgage or a charge. It is not possible to 'pledge' a registered share under Cayman Islands law because a pledge necessarily requires title to the secured asset to be transferred by delivery which, in the case of a share in a Cayman company, is not possible as legal title to shares in Cayman companies is transferred by an instrument of transfer. It is, however, quite common for security documents over shares in Cayman companies that are governed by foreign laws (particularly in the United States) to describe such security as a pledge. It is likely that such a 'pledge' will, by its terms, have the effect of creating a charge over the registered shares; however, in some cases it may be ineffective in doing so. For numerous reasons, it is extremely uncommon for a legal mortgage to be taken over shares in a Cayman company (i.e., where there is a transfer of legal title to such shares). These reasons include that the secured party may be required under applicable accounting rules to consolidate the company. Accordingly, security over shares of a Cayman company is ordinarily taken in the form of an equitable mortgage of those shares, with a fixed charge over the rights with respect to such shares.

The security document creating such equitable mortgage and charge will include a provision requiring that the Cayman company (whose shares are subject to the security) maintains its register of members in the Cayman Islands. The situs of shares issued by a Cayman company is determined under Cayman Islands conflict of law principles by the location of the register of members and different rules to those set out in Section IV may apply if the register of members is maintained outside the Cayman Islands.

A Cayman Islands law-governed equitable mortgage and charge over shares and related rights is, in form and substance, similar to an English law-share charge. However, the market in the Cayman Islands has developed such that it is common to require certain deliverables in addition to those ordinarily required by English-law share charges (which are usually limited to the delivery by the chargor of an undated signed share transfer form and the share certificates representing the secured shares). In addition to the delivery of an undated share transfer form and all share certificates representing the secured shares,12 a Cayman Islands law-governed equitable mortgage and charge over shares will typically require the delivery by the mortgagor of some or all of the following additional documents which will facilitate enforcement and improve the quality of the security (and which are often referred to as 'self-help remedies'):

  1. an irrevocable proxy13 to enable the secured party to attend and vote the shares at general meetings of the company following the security becoming enforceable in accordance with its terms;
  2. an undated resignation letter signed by each existing director of the company (and an obligation for future directors to provide the same), together with a letter of authority addressed to the secured party authorising it to date the letter of resignation on enforcement of the security;
  3. a deed of undertaking given by the company to the secured party acknowledging the equitable mortgage and charge and undertaking to register all share transfers delivered to the company by the secured party pursuant to the security document;14 and
  4. a letter of direction from the company to its registered office service provider,15 instructing it to enter in the register of members of the company any share transfers delivered by the secured party pursuant to the terms of the security document.

As Cayman companies often act as holding companies of the borrower group, an equitable mortgage or charge over the shares of a Cayman company is likely to be of particular importance to the finance parties as it may provide a single point of enforcement whereby the secured party can effectively sell the whole group on enforcement without having to coordinate the enforcement of multiple share charges (in multiple jurisdictions).

iv Perfection of security and registration of security interests

Perfection

The formalities for the perfection of a particular security interest will usually depend on the type of secured asset, the security interest created and the lex situs of such asset. In general, legal mortgages and legal assignments are the only types of security interest which may be perfected under Cayman Islands law.

Perfection of a legal mortgage involves the transfer of legal title to the secured asset to the secured party (or its nominee) while perfection of a legal assignment requires written notice to be given to the counterparty to the underlying contract. Special statutory regimes prescribe the steps to be taken to secure interests in real estate situated in the Cayman Islands or ships and aircraft registered in the Cayman Islands (including the entry of prescribed details in certain public registers).

Under Cayman Islands law, perfection of equitable security interests is not possible and there are no public registers in which equitable security interests may be recorded in the Cayman Islands.

Register of mortgages and charges

Although there are no public registers in which security interests may be recorded (save for those referenced above in relation to real estate, ships and aircraft), every Cayman Islands company has a statutory obligation under the Companies Law (2013 Revision) of the Cayman Islands (the Companies Law) to keep at its registered office a register of all mortgages and charges affecting the property of that company and including certain prescribed details with respect to such mortgages and charges.16

A failure to enter the details of a mortgage or charge in the company's Register of Mortgages and Charges does not invalidate the security created (or otherwise affect its enforceability), but there are statutory penalties for every director, manager or other officer of the company who knowingly and wilfully authorises or permits the omission of such entry.

v Security agent

Cayman Islands law follows English trust law principles and will recognise and enforce foreign trusts in accordance with their governing law (subject to the limited caveats set out in Section V infra), including the appointment of an agent or trustee to hold security on behalf of the secured creditors. Accordingly, there is no need to apply any 'parallel debt' provisions in the finance documents to Cayman companies.

vi Potential limitations

Corporate benefit

There is no statutory regime in the Cayman Islands governing directors' fiduciary duties and, accordingly, such duties are based on common law principles. The most relevant of these duties in the context of a leveraged financing (and the related provision of guarantees and security) is the duty to act in the best interests of the company as a whole, which is intrinsically linked to the issue of corporate benefit. The directors of a Cayman company providing any guarantee or security should always consider the corporate benefit to that company in doing so and should consider whether, in all the circumstances, the provision of such guarantee and security would be in the best interests of that company. If a Cayman company receives little or no discernible commercial benefit from the provision of guarantees and security, there is a risk that a Cayman Islands court may set aside such guarantees and security on the basis that the directors have breached their fiduciary duties to act in the best interests of the company.17

There is little difficulty in showing there is corporate benefit to a Cayman company in providing a downstream guarantee for the obligations of a subsidiary. Likewise, there is a well-versed argument that, in the context of a financing transaction that is of benefit to the whole group, an indirect commercial benefit will accrue to a Cayman company that is providing upstream, cross-stream and down-stream guarantees. Accordingly, in the context of most leveraged financings involving Cayman companies, although the issue of corporate benefit is something that should be considered, it will rarely result in the directors of a Cayman company determining that the company cannot provide a guarantee or security in support of obligations owed by other members of the group.

To avoid the risk of the validity of a guarantee being challenged by a shareholder, it is common for the secured parties to require that the Cayman company providing guarantees and security obtains the approval of its shareholders to effectively 'whitewash' the transaction before it is consummated.

Voidable transactions

Security granted by a Cayman company (and the enforceability of the documents under which such security is granted) is subject to the insolvency rules generally applicable to companies in the Cayman Islands, which include rules that invalidate transactions which constitute a voidable preference or a disposition made at an undervalue.

Every conveyance or transfer of property, any charge and every payment obligation which is made, incurred, taken or suffered by any company in favour of any creditor, at a time when that company is unable to pay its debts, with a view to giving such creditor a preference over the other creditors of that company shall be invalid if it is made, incurred, taken or suffered within six months immediately preceding the commencement of a liquidation of that company.18 Note that there is no requirement that such a preference is made to a related party. However, the Companies Law provides that any such transaction in favour of a related party shall be deemed to have been made with a view to giving such related party a preference.19

The Companies law further provides20 that every disposition of property made at an undervalue21 by or on behalf of a company with intent to defraud its creditors22 shall be voidable at the instance of its official liquidator. The burden of establishing an intent to defraud is on the liquidator and any action by a liquidator with respect to this provision must be brought within six years from the date of the relevant disposition.

IV PRIORITY OF CLAIMS

i Priority

On a liquidation of a Cayman company, the following categories of debts and creditors are paid in the following order: (1) expenses incurred in the winding-up (including the liquidator's remuneration);23 (2) secured creditors with fixed charges; (3) creditors with respect to preferred debts;24 (4) secured creditors with floating charges; (5) unsecured creditors; and (6) shareholders.

A creditor who has security over the whole or part of the assets of a company is entitled to enforce his security without the leave of the courts and without reference to the liquidator.25 Accordingly, secured creditors may, subject to the contractual terms of the document creating the security interest, enforce their security at any time (whether or not liquidation proceedings have begun). Assuming a secured creditor exercises its right to enforce its security outside of the insolvency proceedings, its claims will be satisfied ahead of other claims.

Priority as between competing security interests in the same asset is generally determined under the lex situs of the asset. The discussion below relates solely to priority in relation to assets that are situated or otherwise governed by the laws of the Cayman Islands and does not extend to priority under the laws of other jurisdictions, where different rules may apply that are beyond the scope of this chapter. The Cayman law position regarding competing security interests (over assets with their lex situs in the Cayman Islands) is largely taken from English common law.

A legal mortgage takes priority over all other security interests in the same asset granted later in time, but will rank behind an earlier equitable mortgage or charge, the existence of which the holder of the legal mortgage had actual knowledge at the time such legal mortgage was created. Fixed charges rank in the order in which they are created and consequently a fixed charge created earlier in time will take priority over one created later in time in relation to the same asset.

A floating charge will generally rank after a subsequent fixed charge over the same asset, unless the holder of such fixed charge has actual notice of a negative pledge in favour of the holder of such floating charge prohibiting the creation of any subsequent charge over the asset; in which case the floating charge will, on crystallisation, have priority over the subsequent fixed charge.

Legal assignments (being assignments which have been perfected by the giving of notice to the counterparty to the assigned agreement) will generally rank ahead of equitable assignments (where no notice to the counterparty has been given) unless the assignee of such legal assignment had, at the time of taking the legal assignment, notice of an equitable assignment taken earlier in time.

ii Intercreditor arrangements, subordination and set-off

The Companies Law provides that the collection in and application of the property of a company by a liquidator in satisfaction of its liabilities is without prejudice to and after taking into account and giving effect to:

  1. the rights of preferred and secured creditors;
  2. any agreement between the company and any creditors that the claims of such creditors shall be subordinated or otherwise deferred to the claims of any other creditors; and
  3. any contractual rights of set-off or netting of claims between the company and any person (including any bilateral or multilateral set-off or netting arrangements between the company and any person).26 Accordingly, Cayman law recognises the existence of, and will enforce, contractual subordination provisions and set-off arrangements.

Subordination and set-off arrangements are typically included in a separate intercreditor agreement (ordinarily governed by English or New York law – depending on the origination of the deal in question) rather than in a Cayman law-governed security document. As noted above, the intercreditor agreement will also typically include trust and agency provisions pursuant to which a security agent is appointed to hold all security on behalf of the various creditors (subject to the subordination provisions set out therein).

V JURISDICTION

A bona fide choice of the laws of any foreign jurisdiction as the governing law of the transaction documents will be upheld as a valid choice of law and would be recognised and given effect to in any action brought before a court of competent jurisdiction in the Cayman Islands, except for those laws: (1) which such court considers to be procedural in nature; (2) which are revenue or penal laws; or (3) the application of which would be inconsistent with public policy, as such term is interpreted under the laws of the Cayman Islands. Likewise, subject to certain limitations (including the discretion of the Cayman courts to stay proceedings where proceedings involving the same issues are underway elsewhere), the courts of the Cayman Islands will recognise the submission by a Cayman company to the jurisdiction of the courts of a foreign jurisdiction and such submission is valid and binding upon such Cayman company.

As noted above, with respect to the choice of the governing law of security documents, the Cayman Islands generally follows the English common law position on conflict of laws principles. Accordingly, security documents will generally be governed by the lex situs of the relevant secured asset save for where it is more practicable to take security over various assets of a company (which may be located in various jurisdictions) under one document (for example, under a debenture).

Subject to some limited caveats (which are unlikely to relevant in the context of a leveraged finance transaction), the courts of the Cayman Islands will recognise as a valid judgment, a final and conclusive judgment in personam obtained in the courts of a foreign jurisdiction against a Cayman company based upon the relevant transaction documents under which a sum of money is payable (other than a sum of money payable in respect of multiple damages, taxes or other charges of a like nature or in respect of a fine or other penalty) or, in certain circumstances, an in personam judgment for non-monetary relief, and would give a judgment based thereon provided that:

  1. such courts had proper jurisdiction over the parties subject to such judgment;
  2. such courts did not contravene the rules of natural justice of the Cayman Islands;
  3. such judgment was not obtained by fraud;
  4. the enforcement of the judgment would not be contrary to the public policy of the Cayman Islands;
  5. no new admissible evidence relevant to the action is submitted prior to the rendering of the judgment by the courts of the Cayman Islands; and
  6. there is due compliance with the correct procedures under the laws of the Cayman Islands.

VI ACQUISITIONS OF PUBLIC COMPANIES

Cayman corporate law does not distinguish between public and private companies. However, the shares of a Cayman company may be listed, either on the CSX or (more commonly) on exchanges in other jurisdictions. In addition to listings on the Hong Kong Stock Exchange (which is the most popular exchange for listing Cayman company equity securities), shares of Cayman companies are listed on NASDAQ, the London Stock Exchange and the New York Stock Exchange, among others. On an acquisition of the shares of a Cayman company that are listed, the parties should ensure compliance with any takeover code that applies in the relevant jurisdictions and the listing rules applicable to the relevant exchange.

If the shares to be acquired are listed on the CSX then the Cayman Islands Stock Exchange Code on Takeovers and Mergers and Rules Governing Substantial Acquisitions of Shares (the Code) will apply and should be complied with. In contrast to the listing of debt securities on CSX (discussed above in relation to the quoted Eurobond exemption), there are only a small number of companies (other than investment funds) with equity securities listed on CSX and those are primarily 'technical listings' where the securities are not traded. Accordingly, a discussion of the terms of the Code is beyond the scope of this chapter.

In the majority of leveraged acquisitions involving Cayman companies, the Cayman companies involved are non-listed existing holding companies or newly incorporated acquisition vehicles. However, for acquisitions of Cayman companies whose shares are listed on a stock exchange, or where the shares are not listed but are widely held, there has been significant rise in the use of the statutory merger provisions in the Cayman Islands27 to effect such acquisitions.

The statutory merger provisions in the Cayman Islands are based on the Delaware statutory merger regime and first came into existence in 2009 (prior to 2009, there was no statutory merger regime in the Cayman Islands). These provisions allow for domestic mergers between Cayman companies and for cross-border mergers between a Cayman company and a foreign company. The most appealing aspect of the merger regime in the Cayman Islands is that the approval threshold is limited to a special resolution of the merging companies28 and dissenter rights are limited to receiving 'fair value' for the shares.29 Upon dissenting, a dissenting member will cease to have any rights with respect to its shares (other than the right to receive payment of fair value) and, consequently, is not able to block or otherwise impede the progress of the merger.

With such a low squeeze-out threshold and very limited dissenter rights, the Cayman Islands merger regime is an increasingly commonly used alternative to schemes of arrangement or tender offers as a means of effecting acquisitions.

VII OUTLOOK

Although there are several proposed changes to be effected to the corporate regime in the Cayman Islands (including the introduction of a new type of corporate entity – the Exempted Limited Liability Company – based on the Delaware LLC Law), we do not envisage there will be any material changes in policy or legislation that will have any impact on the leveraged finance market in the Cayman Islands.

The Cayman Islands has developed (and continues to maintain) a strong reputation for being an innovative, flexible and creditor-friendly jurisdiction and is generally regarded as the leading jurisdiction for offshore private equity funds and investment holding structures. Tax neutrality, the absence of withholding tax and the ability to easily transfer funds or pay dividends to non-resident shareholders all contribute to that position.

As the Cayman Islands remain a popular domicile for funds and corporate holding structures, we anticipate that leveraged acquisition activity involving Cayman structures will, as the global markets continue their recovery (and as the global debt markets continue their resurgence of the past 12 months), remain strong. Likewise, we expect to see a continuance of the increasing trend towards using the Cayman statutory merger provisions to effect acquisitions, particularly where the target Cayman company's shares are listed or otherwise widely held.

Footnotes

1. Charlie Pywell is a senior associate at Conyers Dill & Pearman.

2. The scope of this chapter is limited to 'exempted' companies. Exempted companies feature in the vast majority of international transactions involving the Cayman Islands. Exempted companies (and exempted limited partnerships) are registered on the basis that their objects are to be carried out mainly outside of the Cayman Islands. This is in contrast to ordinary resident companies, which conduct their operations primarily within the Cayman Islands.

3. Appleby's 'Offshore-i' report for Q1/2015.

4. Cayman Islands Register of Companies.

5. Cayman Islands Register of Exempted Limited Partnerships.

6. Cayman Islands Register of Companies.

7. Cayman Islands Register of Exempted Limited Partnerships.

8. Banks and Trust Companies Law (2013 Revision).

9. Cayman Islands Stock Exchange.

10. Re Bank of Credit and Commerce International (No. 8) [1998] AC 214 at 226 – which would be highly persuasive in the Cayman Islands courts.

11. National Westminster Bank plc v. Spectrum Plus Limited and others [2005] UKHL 41 – which, again, would be highly persuasive in the Cayman Islands courts.

12. Note that there is no legal requirement in the Cayman Islands for a Cayman company to issue share certificates to its shareholders. Accordingly, the obligation to deliver share certificates to the secured party only applies to the extent that such share certificates exist.

13. An irrevocable proxy will only be effective where it is provided for in the articles of association of the company. The English case of Cousins v. International Brick Co Ltd [1931] 2 Ch 90 (CA), which has persuasive authority in the Cayman Islands courts, is authority for the general rule that a shareholder attending and voting at a general meeting of a company will take priority over and to the exclusion of a proxy holder in attendance and wishing to vote at the same meeting.

14. Such an undertaking may be contained within the security document if the company is party to that document creating security over its shares.

15. The registered office of a Cayman company is typically provided by a licensed third party service provider that (unless the register is maintained elsewhere) will maintain the company's register of members and update it when instructed to do so by or on behalf of the company.

16. Section 54 of the Companies Law.

17. On an action brought by a shareholder, creditor or liquidator.

18. Section 145 of the Companies Law.

19. A creditor is treated as a related party if it has the ability to control the company or exercise significant influence over the company in making financial and operating decisions. Section 145 (3) of the Companies Law.

20. Section 146 of the Companies Law.

21. Meaning either there is no consideration or that the consideration for the disposition in money or monies worth is 'significantly less' than the value of the property disposed, Section 146 (1) (e) of the Companies Law.

22. Being an intention to wilfully defeat an obligation owed to a creditor, Section 146 (1) (b) of the Companies Law.

23. Section 109 of the Companies Law.

24. A small number of preferred debts are set out in Schedule 2 to the Companies Law. These generally relate to amounts owing to employees and are often not relevant (as most Cayman companies used in acquisition financing structures will not have direct employees).

25. Section 141(1) of the Companies Law.

26. Section 140(2) of the Companies Law.

27. Sections 232 to 239 of the Companies Law.

28. Pursuant to the Companies Law, a special resolution requires a majority of at least two-thirds of the members as, being entitled to do so, to vote on the resolution (unless the Articles of Association of the Company stipulate a higher threshold).

29. Section 238(7) of the Companies Law.

This article was first published in The Acquisition and Leveraged Finance Review - Edition 2

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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