“6.2. Investment Period. The Company and each of the Investors agree to work together in good faith towards an Exit no later than31 December 2019 (the “Investment Period”). In addition, the Company and each of the Investors agree to give good faith consideration to any opportunities for an Exit during the course of the Investment Period. In the event that an Exit has not occurred upon the expiry of the Investment Period, in addition to any rights provided by Clause 3.5(d) and Article V, the Board of Directors shall engage an investment bank to cause an Exit during the Investment Period at a valuation devised by such investment bank and on such terms as shall be consented to by the Board of Directors, which consent shall not be unreasonably withheld.”
“Hank and I need to get both of them to a place where they understand that a CEO has to come in and be given the reigns and allow them to inform the scope for the position”
“the radio silence from FC suggests to me he is not pressing Jefferies on the matter of the sale, but he/they and the management (who do his bidding) are working on his agenda. I think he is trying to utilise Jefferies not for a sale, but to attract an investor to buy-out the shareholders at a low price via a drag and tag. This is why we need to see the mandate letter, the terms of appointment, see the valuation, avoid the drag and tag at a low ball offer by setting a minimum price, and importantly, understand how the sales process is being managed.”
“Unless authorised to do so by the board, you should take no steps to negotiate or communicate with Jefferies. Any unilateral steps taken by you without the appropriate authorisation will not be tolerated and will be treated with the utmost seriousness”
“Ridiculous. I would tell them that there are many parties interested and there will be a competitive bid”
“In light of historical financial performance (which was below expectations) and the CEO change we are keeping parties warm until we are ready to engage in a second phase of our process to include sharing of detailed data and access to the management team While we are keen to do this ASAP we need to be sure that we are ready and have everything we need in hand to get to the finish line with one or more parties Timing of this next phase will be governed by (a) allowing Tim Ringel sufficient time to impact the business; and (b) availability of data that supports an improvement in financial performance with sustainability going forwards.”
“On the basis of the information provided to date, we believe that the Company has complied with these obligations and continues to do so, including by engaging Jefferies as the Company’s financial advisor to explore potential exit possibilities.”
“In my experience, these clauses are usually designed to trigger a discussion around the date specified in the agreement, and then people work in good faith to figure out what should happen next – if it doesn’t make sense at that point in time, you don’t sell.”
“to advise and assist with a possible sale, disposition or other business transaction or series of transactions involving all or a material portion of the equity or assets of one or more entities comprising the Company, whether directly or indirectly and through any form of third party transaction, including, without limitation, merger, reverse merger, liquidation, stock sale, asset sale, asset swap, recapitalization, reorganization, consolidation, amalgamation, spin-off, split-off, joint venture, strategic partnership or other transaction (any of the foregoing, a “Transaction”)”
“any such transaction in which the acquiring party is, as of the date hereof, i) a current shareholder of Spring Media Investments Ltd. (either directly or through an intermediate company) and/or ii) a current shareholder of Spring Place One Ltd. (either directly or through an intermediate company) owning an interest higher than 2% of the share capital of such company (the shareholders under i) and ii) above hereinafter referred to the “Current Shareholders”) or an affiliate of any such Current Shareholders.”
“…the original shareholders still end up owning the same business and assets; the same, you know, stake in the company's business and assets. They haven't sold it… I wouldn't describe them as having sold their assets -- the business and assets of the company. They may have exchanged their shares in the original company for another company.”
“please confirm that you are fine with these terms so we can proceed forward”
“A member of a company may apply to the court by petition for an order under this Part on the ground- (a) that the company’s affairs are being or have been conducted in a manner that is unfairly prejudicial to the interests of members generally or of some part of its members (including at least himself), or (b) that an actual or proposed act or omission of the company (including an act or omission on its behalf) is or would be so prejudicial.”
“The question is not whether, viewed objectively by the court, the particular act or omission which is challenged was in fact in the interests of the company; still less is the question whether the court, had it been in the position of the director at the relevant time, might have acted differently. Rather, the question is whether the director honestly believed that his act or omission was in the interests of the company. The issue is as to the director’s state of mind.”
“(1) A director of a company must exercise reasonable care, skill and diligence. (2) This means the care, skill and diligence that would be exercised by a reasonably diligent person with- (a) the general knowledge, skill and experience that may reasonably be expected of a person carrying out the functions carried out by the director in relation to the company, and (b) the general knowledge, skill and experience that the director has.”
“In my judgment, the test is whether the defendant in a section 994 claim is so connected to the unfairly prejudicial conduct in question that it would be just, in the context of the statutory regime contained in sections 994 to 996, to grant a remedy against the defendant in relation to that conduct. The standard of justice to be applied reflects the requirements of fair commercial dealing inherent in the statutory regime. This is to state the test at a high level of abstraction. In practice, everything will depend upon the facts of a particular case and the court’s assessment whether what was done involved unfairness in which the relevant defendant was sufficiently implicated to warrant relief being granted against him.”
“The conduct must be both prejudicial (in the sense of causing prejudice or harm to the relevant interest) and also unfairly so: conduct may be unfair without being prejudicial or prejudicial without being unfair, and it is not sufficient if the conduct satisfies only one of these tests.”
“Nourse J. in Re London School of Electronics Ltd (1985) 1 B.C.C. 99,394 at pp.99,399–99,400 [said that] there is no requirement that the petitioner under s.459 should come to the court with clean hands. [However] conduct which in another context might be used to invoke the clean hands doctrine can be relevant on a s.459 petition in that it “may nevertheless affect the relief which the court thinks fit to grant”: see p.99,400; 222B–C. Nourse J. did not say so in terms, but it seems to me clear that, depending on the seriousness of the matter and the degree of its relevance, such conduct would be capable of leading a court to deny the petitioner any relief at all, even though the conditions under s.459 are made out.”
“55. ...Scrutton L.J. said, in Moody v Cox at pp.87–88, that “equity will not apply the principle about clean hands unless the depravity, the dirt in question on the hand, has an immediate and necessary relation to the equity sued for.” 56. That is entirely consistent with Willis and Gonthier, where the misconduct lay in fabricating evidence in support of the claim itself. I deplore the petitioner’s conduct as much as the judge did. However, considering the point first on the same material as the judge took into account, it seems to me that, on his finding (see para.116) that it had no bearing on the matters directly in issue, a finding which he was plainly entitled to make, he was right to disregard the forgery, and the petitioner’s use of the forged letter, when deciding whether the conditions under s.459 were made out. He was also right to disregard it in relation to the question whether to exercise his discretion to make any, and if so what, order under s.461. The forgery itself had no immediate or necessary relation to the circumstances upon which the petitioner’s entitlement, or otherwise, to relief depended. At best it was an episode in the background history. Given the lack of impact it had on Mr Richardson and Mr Wheeler, the judge was entitled to treat it in the way in which he did.”
“In my view, what these cases show is that the issue for the court is whether the claim or counterclaim was brought bona fide in the independent interests of the company or whether it was advanced as a response to or as part and parcel of the shareholders’ dispute. The relevant question to ask is: is the company a genuine protagonist in proceedings against one of its members, or is the true nature of the dispute one in which it is the object over which its shareholders are themselves in dispute? In answering that question, the court will always have regard to the substance of the dispute.”