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This week’s edition of Corporate highlights includes analysis of Panel Statement 2018/8 (Takeover Panel v King) and analysis of Minera Las Bambas SA v Glencore Queensland Limited on the interpretation of a tax indemnity in a share purchase agreement. It also reports on forthcoming changes to the Companies Act 2006 provisions on the restoration of companies, the coming into force of the Financial Services and Markets Act 2000 (Prospectus and Markets in Financial Instruments) Regulations 2018 as well as certain provisions of the European Union (Withdrawal) Act 2018. In addition, it considers recent statements issued by each of the Financial Conduct Authority and Her Majesty’s Treasury on financial services regulation and preparation for Brexit.
Public company takeovers
Private M&A (share purchase), Tax for corporate lawyers
Striking off, dissolution and restoration
Financial services regulation for corporate lawyers
Additional news—daily and weekly news alerts
Dates for your diary
Corporate analysis: Panel Statement 2018/8 is considered, in which the Takeover Panel (Panel) refused a request by Mr David King that the Hearings Committee (Committee) be convened to review a decision of the Executive. The Executive had decided to refuse Mr King’s request for an extension of time to send an offer document to the shareholders of Rangers International Football Club plc (Rangers) pursuant to Rule 24.1 of the City Code on Takeovers and Mergers (Code).
The Executive had previously ruled that Mr King had incurred an obligation under Rule 9 of the Code to make a mandatory offer for Rangers as a result of him and his concert parties controlling voting rights attached to more than 30% of the issued share capital of Rangers. This ruling had been upheld by the Committee and the Takeover Appeal Board.
Following Mr King’s failure to comply with the ruling, the Panel successfully applied to the Outer House of the Court of Session in Edinburgh under section 955 of the Companies Act 2006 (CA 2006) for an order requiring Mr King to procure the making of an offer. This was the first occasion on which the Panel had used its statutory powers to apply for a court order. This decision was upheld by the Inner House of the Court of Session following an appeal by Mr King.
This News Analysis considers the circumstances in which the Panel can refuse to convene the Committee, what the Panel (through the Committee chair) decided and what lessons can be drawn from that decision.
For further information, see News Analysis: Takeover Panel kicks King’s request for committee hearing into touch.
For background, see News Analyses: Court grants an Order requiring Mr King to make a mandatory offer under the Takeover Code (Panel on Takeovers and Mergers v King) and Scottish appeal court upholds decision requiring King to make Rule 9 offer for Rangers.
Tax analysis: In Minera Las Bambas SA v Glencore Queensland Limited  EWHC 1658 (Comm), the High Court was required to determine whether Peruvian VAT was ‘payable’ in the context of a tax indemnity contained in a share purchase agreement. It held that the VAT assessed by the Peruvian tax authorities was not ‘payable’ within the tax indemnity’s meaning and would only be ‘payable’ if and to the extent the Peruvian tax court determined that VAT was payable and such debt became ‘coercively’ enforceable in accordance with Peruvian tax law.
This News Analysis considers the court’s decision in detail and, in particular, the impact it may have on the drafting and negotiation of tax indemnities in practice.
For further information, see News Analysis: Tax only ‘payable’ under SPA indemnity when court determines appeal against assessment (Minera Las Bambas v Glencore).
The government has published a draft statutory instrument, the Third Parties (Rights Against Insurers) Act 2010 (Consequential Amendment of Companies Act 2006) Regulations 2018, that proposes to amend CA 2006, s 1030. The amendments will give an insurer of a company that has been dissolved the right to restore it to the companies register at any time. The company can be restored for the insurer to bring legal proceedings, in the name of the company, to recover contributions from third parties who are liable for a personal injury claim (alongside the company), where the insurer has paid out damages in respect of that claim. Currently, an insurer can only apply for the restoration of a company within six years of the date on which it was dissolved.
For further information, see LNB News 29/06/2018 62.
On 21 July 2018, the Financial Services and Markets Act 2000 (Prospectus and Markets in Financial Instruments) Regulations 2018, SI 2018/786 will come into force.
The Financial Services and Markets Act 2000, the CA 2006 and the Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2017, SI 2017/701, are amended by the Regulations to (among other things):
For further information, see LNB News 29/06/2018 104.
HM Treasury has published a paper that sets out its approach to laying financial services statutory instruments under the European Union (Withdrawal) Act (EUWA). In connection with this, the Financial Conduct Authority (FCA) has published a statement that provides stakeholders with an update on how it is preparing for the UK leaving the EU.
Among other things, HMT’s paper covers:
HMT states that the government is confident that the implementation period, agreed between the UK and the EU earlier this year, will be in place between 29 March 2019 and 31 December 2020. Nevertheless, the government says it will ensure that a workable legal regime is in operation whatever the outcome of negotiations.
The FCA’s statement covers:
For further information, see LNB News 28/06/2018 159.
On 4 July 2018, various provisions of the European Union (Withdrawal) Act 2018 (EU(W)A 2018) were brought into force by the European Union (Withdrawal) Act 2018 (Commencement and Transitional Provisions) Regulations 2018, SI 2018/808 (the Commencement Regulations). The EU(W)A 2018 is to repeal the European Communities Act 1972 and make other provision in connection with the withdrawal of the United Kingdom from the EU.
The provisions that came into force were:
• EU(W)A 2018, s 5(6) (exceptions to savings and incorporation), although only in certain circumstances
• EU(W)A 2018, s 6(7) (interpretation of retained EU law)
• EU(W)A 2018, ss 12(9)–12(11), 12(13) (retaining EU restrictions in devolution legislation etc)
• EU(W)A 2018, s 15(1) (publication and rules of evidence) insofar as it relates to EU(W)A 2018, Sch 5, para 2 (publication and rules of evidence: exceptions from duty to publish) and accordingly Sch 5, para 2
• EU(W)A 2018, s 15(2) (publication and rules of evidence) insofar as it relates to EU(W)A 2018, Sch 5, para 4 (publication and rules of evidence: power to make provision about judicial notice and admissibility) and accordingly Sch 5, para 4
• EU(W)A 2018, s 19 (future interaction with the law and agencies of the EU)
• EU(W)A 2018, s 23(5) (consequential and transitional provision) insofar as it relates to EU(W)A 2018, Sch 8 (consequential, transitional, transitory and saving provision), paras 18, 20, 22(d) (for certain purposes only), 22(e) (for certain purposes only), 31-34, 36 and accordingly those paragraphs of Sch 8
• EU(W)A 2018, s 23(7) (consequential and transitional provision) insofar as it relates to EU(W)A 2018, Sch 8, para 40 (consequential, transitional, transitory and saving provision: main powers in connection with withdrawal) and accordingly Sch 8, para 40
• EU(W)A 2018, s 23(8) (consequential and transitional provision) insofar as it relates to the repeal of the certain enactments and EU(W)A 2018, Sch 9 (additional repeals) insofar as it relates to the repeals of those enactments
The Commencement Regulations also provide for certain provisions of the EU(W)A 2018 to come into force on exit day (defined in the EU(W)A 2018 as 29 March 2019 at 11pm) and for transitional provisions to be made in relation to certain enactments.
For further information, see LNB News 03/07/2018 103.
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To track key legislative and regulatory developments, see our Trackers:
New Q&As added this week:
To view analysis of the latest deals in the market and the underlying transaction documents, use our Market Tracker deal analysis tool.
To read about the latest corporate announcements, see our Market Tracker monthly round-up: Market Tracker monthly round-up—June 2018.
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