In Annuity & Life Re Ltd & Pope Asset Management LLC v Kingboard Copper Foil Holdings Limited & Ors [2025] SC (Bda) 88 Civ, the Supreme Court of Bermuda has dismissed an action to enforce an anti-embarrassment clause in a settlement agreement.
The Plaintiffs, minority shareholders in Kingboard Copper Foil Holdings Ltd (“Kingboard”), had settled oppression proceedings by selling their shares to the Defendants at SG$0.45. The Settlement Agreement dated 4 April 2018 contained an “anti-embarrassment” clause. This entitled the Plaintiffs to a top-up if, within 12 months, the Defendants or their “affiliates” entered into a transaction by which the shares in Kingboard were offered to be purchased or were issued at a higher price.
The Plaintiffs alleged that the anti-embarrassment clause was triggered twice: first by the purchase of shares at SG$0.51 by a former Kingboard group director on 10 July 2018; and second by the Second Defendant’s announcement on 4 April 2019 of its intention to make a takeover offer at SG$0.60 per share pursuant to the Singapore Take-over Code.
Martin J rejected both allegations and dismissed the claim. With respect to the 10 July 2018 transaction, Martin J held that this did not involve a purchase by the Defendants or their “affiliates”. Nor was the anti-embarrassment clause triggered by the 4 April 2019 offer announcement, since the announcement of an intention to make an offer was not an offer, nor was it of itself a transaction by which shares are offered to be purchased.
James Bailey was instructed by Conyers Dill & Pearman for the Defendants and assisted Jern-Fei Ng KC of 7 Bedford Row, who appeared on behalf of the Defendants at the four-day trial in June 2025.
