BERMUDA Law and Practice Contributed by: Natalie Neto, Rachel Nightingale and Marah Smith, Walkers
the BSX, it may be required to disclose certain information to the public. The target company would have to keep the BSX informed of any information relating to it that: • is necessary to enable the BSX and the public to appraise the financial position of the com - pany and the group; • is necessary to avoid the establishment of a false market in its securities; and • might reasonably be expected materially to affect market activity in and the prices of its securities. Regulatory notifications (if required) would need to be made and non-objection obtained from the applicable regulator before the transaction may complete. 5.2 Market Practice on Timing If listed on the BSX, the target company must keep members of the issuer and any holders of its listed securities informed without delay. In practice, this will be satisfied by way of pub - lic announcement or circulars of the informa - tion being provided, as set out in detail in 5.1 Due diligence is a standard requirement and is important in every transaction. Due diligence will be conducted in the same way as in many other onshore jurisdictions (for example, in the UK and the US). The scope of due diligence undertaken will usually be limited to corporate, regulatory and (where applicable) employment matters and reviewing any contracts that are governed by Bermuda laws (where the target is an exempted company). Where the target is a local company, the scope would typically be widened to include all commercial and prop - erty matters. Following the pandemic, entities Requirement to Disclose a Deal . 5.3 Scope of Due Diligence
are tending to have a more commercial focus on contracts, rather than being limited to con - sidering change of control clauses. Termination and force majeure clauses are often a focus to determine the potential impact of another pan - demic. There has also been an increasing focus on compliance with corporate governance and ESG matters (where applicable). In an increasingly regulated environment, a due diligence process would also include confirma - tion of compliance with the applicable regula - tory laws, including those relating to data pro - tection and anti-bribery and corruption, and also any specific Bermuda regulatory requirements, depending on the nature of the target’s business. Certain information is publicly available in Ber - muda, including the following. Registrar of Companies For a fee, anyone can conduct a company search of the records held by the Registrar of Companies, which include: • Certificate of Incorporation; • Memorandum of Association; • registered office address; and • registered charges. Supreme Court Registry Any judgments or legal proceedings can be searched at the Bermuda Supreme Court. Registered Office At the registered office of the company, the reg - ister of directors and officers as well as the reg - ister of members can be requested.
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