Straits Advisors Pte Ltd v Behringer Holdings (Pte) Ltd and Another and Another Application
Judge | Chan Sek Keong CJ |
Judgment Date | 18 November 2009 |
Neutral Citation | [2009] SGCA 55 |
Subject Matter | Civil Procedure,Contract |
Published date | 17 December 2009 |
Defendant Counsel | Gregory Vijayendran and Sung Jingyin (Rajah & Tann LLP) |
Year | 2009 |
Citation | [2009] SGCA 55 |
Plaintiff Counsel | Chenthil Kumar Kumarasingam (Drew & Napier LLC) |
Court | Court of Three Judges (Singapore) |
18 November 2009 |
Judgment reserved. |
Andrew Phang Boon Leong JA (delivering the judgment of the court):
Introduction
1 This is an appeal against the decision of the judge (“the Judge”) in Straits Advisors Pte Ltd v Behringer Holdings (Pte) Ltd
Background and issue on appeal
(c) a letter clarifying the details in the Release Letter (“the Side Letter”); and
The first three contracts (ie, all except the Secondment Agreement) were wholly and expressly superseded by a consultancy agreement dated 10 November 2006 (“the Consultancy Agreement”).
4 Success Fee
We refer to the paragraph entitled “Shares” in section 2 of the Release Letter, and 3.1 of the CFO Agreement and paragraphs 1 to 3 of the Side Letter referred to above. It is agreed, with immediate effect, as follows:-
Behringer hereby agrees to issue shares in BCL to Straits Advisors or its nominee equivalent to 0.37 per cent of the post IPO (or post takeover, as applicable) share capital of BCL for a total nominal sum of US$100/- (the “Shares”). The shares will be issued under the following circumstances:
(i) When approval has been granted by a recognised stock exchange for the listing of BCL’s shares, the Shares shall be issued upon receipt of the said approval. For the avoidance of doubt, the approval to list BCL’s shares shall be a condition precedent for the issuance of the Shares under this clause (i).
(ii) In the event of a takeover of Behringer of all or substantially all of its business, the Shares shall be issued on the offer becoming unconditional and, if applicable, the acquirer having secured more than 50 per cent of the issued share capital of BCL.
In the event that Behringer terminates the appointment of [DA] and/or Straits Advisors (other than for gross negligence or willful default), prior to the conditions in (i) or (ii) above being satisfied, the Shares shall immediately be issued to Straits Advisors or its nominee for the total nominal sum of US$100/-
...
For the purposes of this agreement, IPO of Behringer will include the listing of any corporate vehicle as a result of any restructuring of the Behringer group resulting ultimately in the present business of BCL being listed. In the event that post IPO or post takeover share capital cannot be ascertained, the parties will agree to an equivalent number of shares in the existing share capital of BCL (or relevant corporate vehicle), provided that in any event it will not be less than 0.37 per cent of the present share capital of BCL.
[emphasis added]
6 In response, Behringer took out an application for construction of the Consultancy...
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