- within Litigation and Mediation & Arbitration topic(s)
- in United Kingdom
On 18 August 2025, the Supreme Court of Bermuda delivered its judgment in the case of Annuity & Life Re Ltd and Pope Asset Management LLC v Kingboard Copper Foil Holdings Ltd and Others [2025] SC (Bda) 88 Civ. This marked the first instance in which the Singapore Take-over Code was the subject of a judicial ruling outside of Singapore.
Background
These proceedings arose from a settlement agreement entered into by the parties in April 2018 (the "Settlement Agreement"). The Settlement Agreement was reached following lengthy litigation before the Bermuda Supreme Court and Court of Appeal regarding a minority shareholders' petition brought by the Plaintiffs. Under the agreement, the Defendants agreed to purchase the Plaintiffs' shares in the First Defendant at SG$0.45 per share.
To protect against the risk of the shares being acquired by the Defendants at less than their fair value, the Settlement Agreement included an anti-embarrassment clause. This clause provided that if any of the Defendants or their affiliates "enters into a transaction to the effect that the shares in the company are offered to be purchased or are issued at a price exceeding SG$0.45 per share" within 12 months of the Settlement Agreement's date, the Defendants would pay to the Plaintiffs the difference in that price (the "anti-embarrassment clause").
Key Issues
The key issues in this case revolved around whether the terms of the anti-embarrassment clause were triggered by two sets of circumstances:
- The first claim related to the acquisition of shares in the First Defendant by persons alleged to be the affiliates of the Defendants.
- The second claim concerned the Defendants' announcement of their intention to acquire the remaining shares not already owned by them or their concert parties. This announcement was made as a Voluntary Unconditional Cash Offer on 4 April 2019 and was posted on the Singapore Stock Exchange at a price of SG$0.60 per share. This price was 15 cents higher than the amount paid under the Settlement Agreement.
Outcome
Following a 4-day trial during which factual witnesses and expert witnesses on Singapore Take-over Code were cross-examined, the Bermuda Supreme Court rejected the claims, concluding that it is not satisfied that the disputed share purchases were made by the Defendants or their "Affiliates" within the meaning of the Settlement Agreement. Additionally, the Court ruled that merely an announcement of an intention to make an offer under the Singapore Take-over Code did not constitute a binding transaction that would trigger the anti-embarrassment clause.
While the offer announcement contained the proposed offer price and certain key terms, it did not elevate the legal effect of an offer announcement into an actual offer. The purpose of the offer announcement was to ensure that the market was informed of the material information and to alert the market to a proposed offer before a formal offer was launched, helping to prevent a false market.
The Plaintiffs attempted to leverage regulatory arguments in their claims against the Defendants, but their strategy ultimately failed in light of the above. Conyers, with counsel Jern-Fei Ng KC and James Bailey, represented the Defendants in this case, securing a landmark victory.
The Bermuda Supreme Court's decision can be found here.
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