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Directors – indemnity

Given the number of companies that are getting into difficulties, it is an appropriate time to consider whether client companies have taken advantage of the changes introduced by CA 2006 to increase the scope of director indemnities:

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Late payment – interest

A reminder of the Late Payment of Commercial Debts (Interest) Act 1998.

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Procurement – criteria

The procedures for the award of public service contracts are governed by an EU Directive that sets out the criteria on which a contracting authority may base its award of a contract:

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Warranty – directors

Share purchase agreements often contain exclusion clauses in which the seller will agree that if it is sued under the warranties, it will then not seek a contribution from either the target company or any directors/employees of the target who may have been involved with the seller in agreeing to and making disclosures under the warranties.

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Minimum purchase – penalty?

Contracts often state that a fixed, or easily calculated, sum has to be paid if one party is in breach.

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Unfair Contracts – ‘read and understood’

Under the Unfair Terms in Consumer Contracts Regs 1999 a contractual clause can be rendered void, through being ‘unfair’ if, ‘contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract to the detriment of the consumer’.

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Contracts – Rome II

Rome II introduces important changes on the ‘applicable law’ rules when dealing with foreign claims. Note that Rome II only applies to non-contractualclaims (eg torts) but it has implications for commercial contracts.

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Administration – pre-packs

These days, everyone knows what pre-packs are (a company is placed into administration, and then almost immediately sold off – often to its former management or owners). The controversy about pre-packs, of course, is the lack of transparency, and the fact that creditors are denied the opportunity to vote on the administrator’s proposals, with creditors effectively being presented with a fait accompli.

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Mistake – voluntary dispositions

The law on unilateral mistakes, in respect of voluntary dispositions, seems to be widening.

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Memorandum – changes

Under CA 1985, the memorandum of a company limited by shares must state: the name of the company; its registered office; its objects; a statement of limited liability; the amount of share capital; the number of shares each subscriber takes; and whether it is a public company.

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