SPX Chart, page-496

Hi Fib,
It seems that SPX are wanting to argue that as a matter of law VMC cannot claim a constructive trust as a remedy as VMC didn't intend to buy PW in its own right, rather it intended to buy PW in a yet to be incorporated subsidiary company. Therefore, the logic appears to be that as each company is a separate legal entity at law, if anyone was to have a potential claim to a constructive trust over PW it would have been the 'NewCo', however, that 'NewCo' wasn't incorporated and wasn't a party to the CD.

Whilst that argument may have some legs, I imagine that VMC would advance the proposition that it was always VMC that was going to beneficially acquire PW, albeit that the final acquisition may have been accomplished via a new wholly owned subsidiary, as nominee, and funded by VMC. If for example VMC was negotiating with the owners of PW and they had a draft term sheet (if it ever got that far advanced) between VMC & the owners that said VMC would incorporate a new company to complete the acquisition, VMC may still have the door open there as they could demonstrate that they were 'buyer' and would have been bound to perform certain obligations on behalf of their new subsidiary company under a finalised deal (if it got that far).

However, it does throw up an interesting issue for some legal argument between the barristers over the whether VMC can have a right in personum to the remedy of constructive trust where it did not in fact intend to acquire the assets in its own right, rather through a nominee company that it owns.

Whilst it would not be the best outcome for either VMC or SPX for this matter to actually go to trial, for my own reasons I hope it does as the decision may raise some very interesting legal issues and, after all, I am a nerd