DISPUTE RESOLUTION IN M&A TRANSACTIONS
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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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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

  • Force Majeure Clause

CRISTINA MARTINETTI - BBMPARTNERS.COM


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


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


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


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


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


ANNEX A and B

reps & warranties vs disclosure

CRISTINA MARTINETTI - BBMPARTNERS.COM


reps & warranties vs disclosure

CRISTINA MARTINETTI - BBMPARTNERS.COM


The asset purchase agreement

CRISTINA MARTINETTI - BBMPARTNERS.COM


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


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


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


The asset purchase agreement

CRISTINA MARTINETTI - BBMPARTNERS.COM


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


THANK YOU!

Cristina MARTINETTI

BUFFA, BORTOLOTTI & MATHIS

www.bbmpartners.com


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