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

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

3. 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

4. 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

5. CRISTINA MARTINETTI - BBMPARTNERS.COM 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 The aim of the ICC

6. CRISTINA MARTINETTI - BBMPARTNERS.COM 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) The task force

7. 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

8. CRISTINA MARTINETTI - BBMPARTNERS.COM SCHEDULE ASCHEDULE B REPRESENTATIONS AND WARRANTIES EXCEPTIONS AND QUALIFICATIONS TO THE REPRESENTATIONS AND WARRANTIES All warranties and representations are subject to the exceptions and qualifications set forth in Schedule B. Such Schedule will follow the same numbering (e.g. an exception to warranty A.3.2 regarding accounting principles and practices will be under B.3.2). In Schedule B the Task Force has tried to give some explanations which may help to better understand the various warranties and the matters to check in order to correctly draft possible exceptions or qualifications restricting the corresponding warranty ANNEX A and B reps & warranties vs disclosure

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

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

11. CRISTINA MARTINETTI - BBMPARTNERS.COM The asset purchase agreement Article 3–Object of the Agreement 3.1The 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.

12. 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.

13. 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.

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

15. 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

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