ANTIGUA Law and Practice Contributed by: C. Debra Burnette, CDB Legal Services
9. Defensive Measures 9.1 Hostile Tender Offers
10. Litigation 10.1 Frequency of Litigation
The Companies Act provides for conferring a right on an offeror who makes a takeover bid for more than 90% of the shares of a class of shares. Such tender offers are not very common. 9.2 Directors’ Use of Defensive Measures Directors are allowed to use defensive measures in hostile takeovers, given their duty to act in the com - pany’s best interest. 9.3 Common Defensive Measures A “poison pill” remedy may be used to make the hos - tile takeover more expensive for the offeror. Directors may also assess the validity of the offer bid by way of a purpose or best-interest test. 9.4 Directors’ Duties When enacting defensive measures, directors have a duty to act bona fide and in the corporation’s best interest. 9.5 Directors’ Ability to “Just Say No” Directors cannot “just say no” to a business combina - tion, without justification. Directors must be mindful of their fiduciary duties to act in the best interest of the company and to have due regard for the interest of the shareholders. Directors cannot refuse to act without just cause.
Litigation is not very common; this is due to the low number of M&A deals over recent years, together with the recession caused by the COVID-19 pandemic, which Antigua and Barbuda are now emerging from. 10.2 Stage of Deal With litigation not being common, there is no stage at which proceedings have been brought. 10.3 “Broken-Deal” Disputes A marginal number of broken deals have been seen, which were largely due to parties needing to know their “partners in business” better or have more patience during due diligence. 11. Activism 11.1 Shareholder Activism Shareholder activism is not an important force in this jurisdiction. 11.2 Aims of Activists As per the response at 11.1 Shareholder Activism , there is no applicable information in this jurisdiction. 11.3 Interference With Completion As per the response at 11.1 Shareholder Activism , there is no applicable information in this jurisdiction.
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