ANTIGUA Law and Practice Contributed by: C. Debra Burnette, CDB Legal Services
traded companies, which are very few in Anti - gua and Barbuda. 7.2 Type of Disclosure Required Disclosures of who is the ultimate beneficial owner is a requirement both for domestic and international business corporations. At the bid - ding stage, this will also be required as part of due diligence to ensure compliance when shares are registered and recorded. 7.3 Producing Financial Statements Bidders do not need to produce financial state - ments (pro forma or otherwise) in their disclosure documents. Financial statements would take the usual form according to accounting standards. 7.4 Transaction Documents No disclosure of documents of any of the trans - actions are required. A director’s primary duty is to the company. Directors must act in the best interest of the company, but must have regard for the interests of the shareholders. 8.2 Special or Ad Hoc Committees It is common for boards of directors to estab - lish special or ad hoc committees in business combinations, these are members with particu - lar expertise who will then report to the board for review. 8.3 Business Judgement Rule The courts in this jurisdiction take the view that the board of directors, acting in good faith, is best suited to make sound decisions and judge - ments in a takeover situation. A court will only 8. Duties of Directors 8.1 Principal Directors’ Duties
intervene where there is evidence of bad faith or malfeasance on the part of the board. 8.4 Independent Outside Advice Independent external advice would often be given to directors in a business combination in matters requiring particular expertise, eg, mat - ters of a financial nature, taxation or legal advice. 8.5 Conflicts of Interest There have been cases where the question of a conflict of interest has arisen. In such cases, courts consider the duties of the directors and its officers and apply them to specific facts. Under the Companies Act, there is provision 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 company’s best interest. 9.3 Common Defensive Measures A Poison Pill remedy may be used to make the hostile takeover more expensive to 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 corpora - tion’s best interest. 9. Defensive Measures 9.1 Hostile Tender Offers
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