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Implying terms into a professionally drafted contract

In the recent case of Takeda Pharmaceutical Company Limited v Fougera Sweden Holding 2 AB [2017] EWHC 1995 (Ch), the High Court had to consider whether a term for parties to co-operate following completion was to be implied into a share purchase agreement.

Facts:

The case arouse out of the sale of a Danish company (the “Target”) by Fougera Sweden Holding 2 AB (“Fougera”) to Takeda Pharmaceutical Company Limited (“Takeda”) on 30 September 2011.  Fougera was a subsidiary of an investment fund which was structured through a Luxembourg limited partnership.  Fougera had loaned certain monies to the Target prior to the sale. At the time of the sale, the Target was involved in an ongoing issue with the Danish tax authorities as to whether the Target was liable to any Danish withholding tax on the interest accrued on this loan was outstanding at the time of the sale. The share purchase agreement (the “SPA”) therefore contained an indemnity provision pursuant to which Fougera would indemnify the Target any withholding tax paid by the Target to the Danish authorities in relation to the outstanding issue. The indemnity was capped and expired on 30 September 2017. 

The Danish tax authorities issued an assessment in 2015 levying significant sums as withholding tax on the Target. The Target wished to challenge this assessment, but it required certain sensitive information about the ultimate investors of Fougera, which Fougera refused to provide. Takeda argued that Fougera was under an obligation to provide this information either (1) pursuant to the further assurance clause of the SPA; or (2) there were implied terms to this effect.

Court’s findings:

The court noted that the SPA was professionally drafted on behalf of sophisticated and well-resourced parties engaged in a very substantial transaction. It clarified that there was no dispute as to the principles to be applied in interpreting the SPA.  They were considered by the House of Lords and the Supreme Court in a series of cases culminating in the recent decisions of the Supreme Court in Wood v Capita Insurance Services Ltd [2017] UKSC 24, [2017] 2 WLR 1095. The court’s task was to ascertain the objective meaning of the language which the parties have chosen to express their agreement when read in the context of the factual background known or reasonably available to the parties at the time of the agreement, excluding prior negotiations. 

Takeda accepted that the obligations on Fougera to provide the required information was not spelled out in any of the express terms contained in the SPA, but rather the obligations were “reasonably necessary to give full effect to” the SPA. The court rejected this claim. It held that implying a duty to cooperate was not necessary to make the SPA workable.

Takeda also argued that the further assurance clause imposed an obligation on Fougera to provide the required information. The court rejected Takeda’s arguments stating that on a proper interpretation of the SPA, there was nothing that required Fougera to provide the requested information and as such there was nothing for the covenant of further assurance clause to bite on.

Conclusion:

This case clearly demonstrates the difficulty in persuading a court to imply terms into an SPA that is professionally drafted on behalf of sophisticated and well-resourced parties. The prudent approach therefore seems to be for each party to consider carefully circumstances in which they might want to rely on clauses such as further assurance clause, and to include clear express terms setting out each party’s obligations in such circumstances.