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DISPUTE RESOLUTION IN M&A TRANSACTIONS WARSAW 13-14 May 2010 MODEL M&A CONTRACTS OF THE INTERNATIONAL CHAMBER OF COMMERCE. Cristina MARTINETTI BUFFA, BORTOLOTTI & MATHIS. www.bbmpartners.com. ICC and the soft law. Incoterms (1935-2010) Models of Contract UCP URDG

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  1. DISPUTE RESOLUTION IN M&A TRANSACTIONS WARSAW 13-14 May 2010 MODEL M&A CONTRACTS OF THE INTERNATIONAL CHAMBER OF COMMERCE Cristina MARTINETTI BUFFA, BORTOLOTTI & MATHIS www.bbmpartners.com

  2. ICC and the soft law • Incoterms (1935-2010) • Models of Contract • UCP • URDG • Force Majeure Clause CRISTINA MARTINETTI - BBMPARTNERS.COM

  3. HISTORY OF THE MODELS Up to date 12 models: Agency, distributorship, occasional intermediary, franchising, selective distribution Sale turnkey supply, turnkey for major project confidentiality transfer of technology trademark licence M&A I share purchase agreement CRISTINA MARTINETTI - BBMPARTNERS.COM

  4. ICC MODEL M&A CONTRACT I share purchase agreement (icc pub. N 656) ICC MODEL M&A CONTRACT II asset purchase agreement Work in progress CRISTINA MARTINETTI - BBMPARTNERS.COM

  5. The aim of the ICC Balanced agreement To give tools which can be used to work out the final contract To provide the business world and the lawyers with less experience with accurate model forms CRISTINA MARTINETTI - BBMPARTNERS.COM

  6. The task force Members from different jurisdictions Pro: Different and broad experiences in negotiating m&a contracts and managing post closing Difficulties: To cope with the strong influence of common law jurisdictions (terms and definitions, reps and warranties, disclosure) CRISTINA MARTINETTI - BBMPARTNERS.COM

  7. Techniques: explanations and annexes In the introduction all relevant clauses are explained Notes are provided to comment and to give alternatives The annexes have been used to make the specifications of the deal CRISTINA MARTINETTI - BBMPARTNERS.COM

  8. ANNEX A and B reps & warranties vs disclosure CRISTINA MARTINETTI - BBMPARTNERS.COM

  9. reps & warranties vs disclosure CRISTINA MARTINETTI - BBMPARTNERS.COM

  10. The asset purchase agreement CRISTINA MARTINETTI - BBMPARTNERS.COM

  11. The asset purchase agreement • Article 3 – Object of the Agreement • 3.1 The object of this Agreement is to set out the terms including the conditions to and the timing of the sale and purchase of the Business, including the Assets specified in Annex 1 and the assignment of the Rights & Obligations specified in Annex 2 . CRISTINA MARTINETTI - BBMPARTNERS.COM

  12. The asset purchase agreement • definitions • “Assets” means all the assets necessary for the conduct of the Business as it is currently conducted, including, but not limited to, tangible property, machinery, equipment, stock, intangibles (brands and logotypes), real properties and other assets which are listed in Annex 1. • When identifying the assets to be purchased two alternatives are possible: the first is to include only the assets expressly listed in Annex 1; the other alternative consists in a wider definition including also assets which are not expressly mentioned, but which are necessary for the conduct of the business. The choice between these two alternatives is provided for in Annex 1. • “Business” means the [manufacturing, marketing and/or distribution of Describe the activities and products developed by the Seller] as currently carried out by the Seller • “Rights & Obligations” means the rights and obligations that the Seller agrees to assign or otherwise make available to the Purchaser under this Agreement and which are listed in Annex 2. CRISTINA MARTINETTI - BBMPARTNERS.COM

  13. The asset purchase agreement • Article 5 – Transfer of liability and apportionment of ongoing contract, services and supplies • … • 5.5 In case of dispute over any account, the dispute shall be referred to an independent accountant appointed by the Parties or should the Parties fail to appoint the expert within 30 days from the dispute notice, the expert shall be appointed pursuant to ICC Rules on Expertise. CRISTINA MARTINETTI - BBMPARTNERS.COM

  14. The asset purchase agreement CRISTINA MARTINETTI - BBMPARTNERS.COM

  15. The disputes in asset purchase agreement WHO? Seller, buyer and guarantors WHAT? The business HOW MUCH? The amount of claims involved EXPERT? The role of the expert for certain dispute (accountant, etc) WHICH LAW? “Business” may have links with different jurisdictions CRISTINA MARTINETTI - BBMPARTNERS.COM

  16. THANK YOU! Cristina MARTINETTI BUFFA, BORTOLOTTI & MATHIS www.bbmpartners.com

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