CL-2022-000025 - [2025] EWHC 2331 (Comm)

Mr Kerr also ran a defence to the claim under the ROFR (in the alternative to the primary case that it was not a binding contract) that performance of the ROFR was conditional upon performance of the SPA. As he expressed it in his written closing submission: “Upon the SPA Term Sheet being either unenforceable or breached by either party so as to render it terminated, the ROFR Term Sheet cannot be enforced.”

Even if Mr Kerr was right that performance of the ROFR was conditional in the way he contended, this would not have afforded him any defence to the claim under the ROFR given that I have held that the SPA was enforceable and has not been terminated. However, even if that had not been the case, it is clear that Mr Kerr was not right in his contention.

There were no words in the ROFR referring to the SPA at all, or to the PGC shares, or even to PGC. The rights and obligations that arose under the ROFR were, on the language of the document, entirely independent of the rights and obligations arising under the SPA. There is no basis on which to construe the words of the ROFR to contain such conditionality.

In his oral closing submissions, Mr Kerr confirmed that, in support of this contention, he was not relying on anything that was written in the ROFR or in the SPA, but rather in the surrounding documents. However, those messages that were relied upon in Mr Kerr’s Defence as demonstrating the conditionality alleged did not go that far. The most that could be said is that they suggested the parties had an understanding that the two documents would be executed simultaneously.

It is right that there were some exchanges referring to payments being made in parallel. For example, on 18 June 2021, Mr Perelman sent Mr Kerr a message saying:

“The thing I care about is that the ROFR payment is made in parallel so that theres no way to close one and not the other.”

However, Mr Kerr’s response was not to agree to such a mechanism, but to say that once signed each agreement would be binding:

“Well I am the name on each obligation – so as soon as signed you have a locked up [deal] with a real counterparty and egregious late payment terms.”

Also, a few days earlier, on 13 June 2021, Mr Perelman had sent a message asking whether there was “an issue with having a clause in share purchase agreement that makes it effective only if the other one satisfied” which was relied on in Mr Kerr’s pleading in support of this point. However, Mr Perelman had immediately followed that up with another message that continued: “if not – can use law firm or escrow to have both execute simultaneously.” His concern here, as in other of his messages, was about having the two documents executed at the same time. In any event, the parties did not agree to have a clause making one agreement effective only if the other was satisfied.

The exchanges did not support the contention that there was an agreement or understanding between Mr Kerr and Mr Perelman that performance of the ROFR was conditional upon performance of the SPA.

Moreover, the ROFR contained an express “Entire Agreement” clause stating:

“Entire Agreement. This Agreement is the entire Agreement among the parties and, when executed by the parties, supersedes all prior agreements, understandings, and communications, either verbal or in writing, between the parties with respect to the subject matter contained herein.”

Even if, therefore, there had been some prior understanding between Mr Kerr and Mr Perelman consistent with the conditionality that Mr Kerr alleged, it would have been superseded by the executed ROFR.

Furthermore, even if performance of the ROFR was conditional upon performance of the SPA, as alleged by Mr Kerr, Mr Kerr ought not to be able to rely upon that to avoid performance of the ROFR in circumstances where the reason why the SPA has not been performed is the result of Mr Kerr’s own conduct and, indeed, his breach of the SPA. It might also be put (as Mr Perelman did in his pleading) that a further head of damages resulting from Mr Kerr’s breach of the SPA was, on the assumption that there was the conditionality Mr Kerr alleged in respect of the ROFR, the loss to Mr Perelman of the sum otherwise due to him under the ROFR. However, it does not need to be taken that far. Mr Kerr would not be able to rely on his own wrong (viz. breach of the SPA and/or his conduct in failing to perform the SPA) as a reason why his payment under the ROFR was not due.

This additional point taken by Mr Kerr in response to the claim under the ROFR therefore fails on a number of grounds.

There was no other defence to the claim under the ROFR. The result is that Mr Perelman’s claim for payment of the sum due under the ROFR (US$400,000) succeeds. Mr Perelman also claimed interest at the rate specified in clause 7(i) of the ROFR which stated as follows:

“Settlement. Kerr undertakes to make the Right of First Refusal Consideration payment within thirty (30) days of the execution of this Agreement. If the Right of First Refusal Consideration payment is not timely made, the Right of First Refusal Consideration shall be an obligation of Kerr and shall accrue interest at an annual interest rate of 14 (fourteen) percent and all other terms of this Agreement shall remain in full force and effect.”

No separate point was taken by Mr Kerr about the claim to interest under the ROFR. Mr Perelman is clearly entitled to interest as a matter of contract at the rate specified (i.e. 14%).