ICC Model Mergers & Acquisitions Contract

ICC Model Mergers and Acquisitions Contract I - Share Purchase Agreement

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The world business organization 1

ICC MODEL MERGERS AND ACQUISITIONS CONTRACT (I - SHARE PURCHASE AGREEMENT)

Published in April 2004 by ICC PUBLISHING S.A. An affiliate of ICC: the world business organization 38, Cours Albert 1er 75008 Paris – France

Copyright © 2004 International Chamber of Commerce, ICC All rights reserved. No part of this work may be reproduced or copied in any form or by any means – graphic, electronic, or mechanical, including photocopying, recording, taping, or information retrieval system – without the written permission of ICC Publishing SA, except by the purchaser of this ICC publication No656, for his own personal use. This publication may not be reproduced in whole or in part for sale, hire or licensing or any other commercial purpose without the written permission of ICC Publishing SA. The software being part of the publication is subject to this provision.

ICC Publication 656 ISBN 92 842 1337 1

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Table of contents

FOREWORD ................................................................................................................................ 5

PART ONE INTRODUCTION ......................................................................................................................... 7 1. The present model ............................................................................................................ 7 2. The drafting technique used ............................................................................................. 7 3. The negotiation and conclusion of SPA’s: order of events ............................................... 8 4. Possible adjustment of the price: closing accounts and earn-outs ................................... 9 5. The negotiation of the payment conditions ...................................................................... 10 6. Warranties and disclosure letter ...................................................................................... 11 7. Knowledge of the buyer and breaches of warranties ....................................................... 12 8. Applicable law ................................................................................................................. 14 FOOTNOTES ........................................................................................................................... 16 SHARE PURCHASE AGREEMENT ............................................................................................. 17 Article 1 – Definitions ................................................................................................... 17 Article 2 – Good faith and fair dealing ......................................................................... 18 Article 3 – Object of the Agreement ............................................................................. 18 Article 4 – Price ............................................................................................................ 18 Article 5 – Conduct of business, and material adverse change ................................... 18 Article 6 – Closing ........................................................................................................ 19 Article 7 – Post-closing undertakings ........................................................................... 19 Article 8 – Warranties ................................................................................................... 19 Article 9 – Seller’s liability for warranty breach ............................................................. 19 Article 10 – Claim procedure .......................................................................................... 20 Article 11 – Limitation of liability for warranty breaches ................................................. 21 Article 12 – Payment for breach ..................................................................................... 22 Article 13 – Restrictive covenants .................................................................................. 23 Article 14 – Confidentiality/announcements ................................................................... 24 Article 15 – General ........................................................................................................ 24 Article 16 – Notices ........................................................................................................ 25 Article 17 – Resolution of disputes ................................................................................ 25 Article 18 – Applicable law ............................................................................................ 26 Article 19 – Automatic inclusion under the present Agreement ...................................... 26 FOOTNOTES ........................................................................................................................... 27

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ICC MODEL MERGERS AND ACQUISITIONS CONTRACT (I - SHARE PURCHASE AGREEMENT)

PART TWO ANNEX 1 – COMPANY INFORMATION .................................................................................... 29 ANNEX 2 – SHARES ................................................................................................................ 30 ANNEX 3 – PRE-CLOSING ITEMS ........................................................................................... 31 1. Antitrust matters ............................................................................................... 31 2. Consent of all regulatory authorities concerned ............................................... 31 3. Third-parties conditions precedent ................................................................... 31 4. Obligations of the parties ................................................................................. 32 ANNEX 4 – CHECKLIST OF DOCUMENTS AND/OR ITEMS TO BE DELIVERED AT CLOSING ......................................................................................................... 34 1. Antitrust matters ............................................................................................... 34 2. Consent of all regulatory authorities concerned ............................................... 34 3. Corporate matters ............................................................................................ 34 4. Third-parties conditions precedent ................................................................... 34 5. Obligations of the parties ................................................................................. 35 SCHEDULES ............................................................................................................................. 37 A.1 The Company .............................................................................................. 38 A.2 The Shares .................................................................................................. 39 A.3 The Seller .................................................................................................... 39 A.4 Accounts ..................................................................................................... 40 A.5 Position since the Accounts Date ................................................................ 40 A.6 Receivables ................................................................................................ 41 A.7 Taxes ........................................................................................................... 41 A.8 Subsidiaries ................................................................................................ 42 A.9 Real Estates ................................................................................................ 42 A.10 Environmental Matters ................................................................................. 43 A.11 Assets ......................................................................................................... 44 A.12 Insurance .................................................................................................... 45 A.13 Bank Accounts ............................................................................................ 45 A.14 Conduct of Business, Commercial Contracts and Joint Ventures ................ 46 A.15 Agency and Distribution Agreements .......................................................... 48 A.16 Personnel .................................................................................................... 48 A.17 Pensions ...................................................................................................... 51 A.18 Intellectual Property Rights ......................................................................... 51 A.19 Litigation ...................................................................................................... 52 A.20 Grants ......................................................................................................... 53 A.21 Special Contracts and Arrangements .......................................................... 53 A.22 Transactions with Shareholders or Directors ................................................. 54 A.23 Competition Matters .................................................................................... 54 A.24 Information Technology Systems ................................................................. 55 A.25 Effect of this Agreement .............................................................................. 56 APPENDIX : UNIDROIT Principles of international commercial contracts ................................. 57

ICC AT A GLANCE .................................................................................................................... 73 SELECTED ICC PUBLICATIONS ................................................................................................ 74

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Foreword By Maria Livanos Cattaui, Secretary General of ICC

The ICC Model Share Purchase Agreement is the first in a series of model contracts dealing with “mergers and acquisitions” (the transfer of a company or business). It is a share purchase agreement in its simplest form, covering the acquisition of the entire issued share capital of one company. The publication assists business people and lawyers who are not specialized in mergers and acquisitions to draft a simple contract covering the most common issues involved. The flexibility of the contract allows parties to adapt it to meet their specific requirements. The publication follows extensive discussion within ICC’s Commission on Commercial Practice, and particularly involving the Task Force on Mergers and Acquisitions, chaired by Prof. Fabio Bortolotti (Italy). Other task force members were: Mr Ercument Erdem (Turkey), Mr Thomas Gasteyer (Germany), Mr Philippe Lamy (France), Mr Håkan Osvald (Sweden), Mr Dharmasinh Popat (India), Mr Fabio Regoli (Italy), Mr Julian Smith (United Kingdom), Mr Jeremy Cunningham (United Kingdom), Ms Isabelle Smith Monnerville (France), and Mr Jelle Timmenga (The Netherlands).

April 2004

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ICC MODEL MERGERS AND ACQUISITIONS CONTRACT (I - SHARE PURCHASE AGREEMENT)

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PART ONE

Introduction 1.

THE PRESENT MODEL

This model contract is the first of a series of models of international “Merger and Acquisition” (M&A) agreements. Broadly speaking, M&A agreements refer to the transfer of a company or a business and cover a variety of contracts, such as: n Share Purchase Agreements (SPA), whereby a company is acquired by the buyer through the purchase of its entire or the majority of its issued share capital; n Sale of assets, where the assets (property, goodwill, etc.) relating to a certain business activity are sold; n More complicated structures including, e.g., a split of a business or other reorganization preceding the eventual closing. The first model of these ICC M&A Agreements is a Share Purchase Agreement (SPA) in its simplest form, i.e., the acquisition of the entire issued share capital of one company. It does consequently not consider the acquisition of a majority shareholding (where a number of additional issues arise due to the fact that the position of the minority shareholders must be considered), nor the case where a group of companies is acquired (which also gives rise to further issues). It also does not consider the case where there is more than one seller. These situations, which imply a number of further issues, have been left aside in the context of a simplified model, but may be considered in future model contracts. This model is made to assist parties and lawyers who are not specialized in the field of M&A contracts to draft a simple contract covering the most common issues involved. This means that the model may not be appropriate for complex transactions, nor for acquisitions of public companies. 2.

THE DRAFTING TECHNIQUE USED

The structure and contents of SPA’s are strongly influenced by the models and forms developed within common law jurisdictions. This has caused the parties to use, independently from the law governing the contract, clauses and concepts which belong to these common law legal systems.

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ICC MODEL MERGERS AND ACQUISITIONS CONTRACT (I - SHARE PURCHASE AGREEMENT)

One example of this is the reference to “Representations & Warranties”. It is difficult to imagine a Share Purchase Agreement without “Representations and Warranties”. However, these two terms have no precise meaning outside the common law jurisdictions and may be misleading even within these legal systems 1. Parties expect them to be in a Share Purchase Agreement, but it should be clear that these two “magic words” have actually acquired within this type of contract an autonomous meaning, independent of the legal meanings of “representations” and “warranties” within specific national legal systems 2. In this case the task Force has chosen to make use of these terms, although they may be misleading, because it felt that it could not go against such a well-established usage. But, as a general rule, the Task Force has tried not to use terms which are too specific to any particular legal system, in order to make the model compatible, as far as possible, with all applicable legal systems. 3.

THE NEGOTIATION AND CONCLUSION OF SPA’S: ORDER OF EVENTS

Buying a company is a complex deal which almost always requires a number of successive steps, and all the more so in a cross border transaction when the purchaser is not familiar with the legal and business environment of the target company. Although the steps leading up to the conclusion of an SPA may vary substantially from case to case, it is customary to initiate the process with preliminary agreements such as confidentiality agreements, letters of intent, and various descriptions of negotiation agreements such as term sheets or heads of agreement, with or without exclusivity provisions and other advisable provisions such as time schedule, time and scope of due diligence investigations, confidentiality, break fee arrangements, etc. If the due diligence investigations are satisfactory for the purchaser and the negotiation of the terms of the acquisition breaks through, the parties enter into the Share Purchase Agreement which, in many cases, is organised in two steps, i.e. signature and completion. While it is simpler to wrap up the deal in one step, there may be practical advantages to proceeding in two steps, especially when the jurisdiction of the target company is unfamiliar. The downside of a lengthy process is to delay the take-over of the target business, but varied transfer of management, risks and responsibility provisions can be inserted in the SPA to provide for the variable concerns of the parties in terms of time and risk. Once the SPA is signed and completed, a number of post-completion steps may continue to involve both parties, such as on the one hand formalities and on the other hand performance of post-closing obligations, including payment of the price in instalments with or without the involvement of an escrow agent and non-compete provisions with or without performance bonds.

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INTRODUCTION

4.

POSSIBLE ADJUSTMENT OF THE PRICE: CLOSING ACCOUNTS AND EARN-OUTS

In some circumstances the buyer and seller may agree that the purchase price should be made subject to an adjustment (either upwards or downwards) after closing. The two most common forms of adjustment are known as closing accounts and earn-outs. Closing accounts are most commonly used when there is uncertainty about the financial condition of the company at the point in time when closing takes place, for example if there are no-up-to date financial data concerning the company, or the available data are regarded as unreliable. For instance, it may be that closing takes place eleven months after the last audited accounts of the company were prepared, or the company may have undergone a reorganisation, as a consequence of which the proper value of its assets at closing is not precisely known. Closing accounts will involve an adjustment to the purchase price based on the net assets of the company at closing. Earn-outs on the other hand involve the possible payment of an additional price based on the results arising out of various indicators over a given period. Earn-out adjustments are therefore particularly appropriate in the case of businesses with a variable level of profitability, for example a newly established company which is growing quickly, and which is being valued principally for its potential to generate profit in a given period following closing. If the parties agree that the price should be adjusted as a result of a closing accounts exercise, the sale and purchase agreement will need to provide that either the buyer or the seller prepare a first draft of the closing accounts (it should be clearly stated what this should involve, for example, a full balance sheet prepared in accordance with generally accepted accounting principles on a basis consistent with prior balance sheets, and the time requirements applicable in relation to the production of the first draft closing accounts). The agreement should then provide that the other party review the draft closing accounts (and that it should have access to the necessary accounting information and personnel required for this purpose if necessary). The agreement should also provide that the parties should seek to agree the closing accounts or seek to resolve any disagreement in relation to them, but should provide that in the absence of agreement, the matter should be settled by an expert (usually an independent accountant appointed jointly by the parties, but in the absence of agreement as to the identity of the expert, the agreement should provide that an independent party, for example the president for the time being of the relevant country’s professional association representing accountants appoint the expert). Once the closing accounts are agreed or resolved by expert determination, the agreement should provide for a formula pursuant to which a portion of the purchase

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ICC MODEL MERGERS AND ACQUISITIONS CONTRACT (I - SHARE PURCHASE AGREEMENT)

price be repaid to the buyer or an additional amount paid by the buyer to the seller. For example, if the net assets exceed a pre-agreed target, then an additional sum equal to the excess should be payable by the buyer. If a repayment of the purchase price from the seller to the buyer is likely, then the buyer should consider whether it requires a retention (of part of the price) to be made or payment of a portion of the purchase price to be made into a jointly held (or jointly held solicitors’) account until the adjustment to the purchase price has been determined. Earn-out mechanisms operate on a similar basis, but the agreement should instead require a profit and loss account to be prepared in respect of certain pre-agreed periods following Closing. A formula should require the repayment of a portion of the purchase price or the payment of additional consideration by the buyer in the event of target earn-out values being exceeded or not. Closing accounts and perhaps even more so, earn-out mechanisms, are areas where very careful drafting is required as there is a serious risk of dispute after closing. The agreement should provide in detail which accounting policies and principles will apply to the closing accounts or earn-outs. Although this is a matter for agreement between the buyer and seller, the most commonly adopted formula is that the usual accounting policies and principles of the company (for example as adopted in its last audited accounts) will apply, except to the extent that such policies and principles are not in accordance with generally accepted accounting principles, and that if a certain policy or principle is not expressly provided for in the company’s last audited accounts, then the matter will be determined by reference to generally accepted accounting principles. In relation to earn-outs, there is an obvious risk that in the absence of any restrictions being expressly stated in the agreement, the buyer, who has control of the company after closing, may take steps after closing which (deliberately or otherwise) may affect the amount of the earn-out adjustment to be paid. Accordingly, detailed earn-out provisions should be included in the sale and purchase agreement, restricting the ability of the buyer to take any steps which might prejudice the calculation of the earn-out. 5.

THE NEGOTIATION OF THE PAYMENT CONDITIONS

The model provides for payment of the purchase price at the time of the closing of the transaction (see article 6). The transfer is mechanically straightforward, but there are some issues which need to be considered when negotiating this clause. Under the model, the buyer would be unprotected if the seller could not or did not want to honour any subsequent claims based on a breach of the warranties or an adjustment of the purchase price as discussed above in §4. Therefore, a bank guarantee from the seller in an amount and for a term to be agreed should be considered. The duration could be linked to the warranty period, and the amount would take into account the likelihood and probable size of any warranty claims, although no exact

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INTRODUCTION

calculations are of course possible. In certain countries it is more usual to retain part of the purchase price in an account with an escrow agent. In jurisdictions where this is not standard practice the negotiation of an escrow agreement with a bank is often so time-consuming and expensive that a bank guarantee is the less costly solution. In some countries it is also practice to deposit part of the purchase price in a special bank account under the control of the buyer and the seller whereby the release of any money to the buyer requires the express consent of the seller. If the consent is not granted, the buyer will have to sue the seller. It is crucial for this arrangement to work that any judgement obtained be easily enforceable. Alternatively the purchase price could be paid in instalments whereby the unpaid portion serves as collateral for any claims of the buyer, but then the seller might want to receive protection for its payment claims by way of a bank guaranty given on behalf of the buyer. 6.

WARRANTIES AND DISCLOSURE LETTER

One of the main issues of the Share Purchase Agreement is the exact definition of the warranties 3 given by the seller. This issue is of particular importance in this type of agreement: by purchasing the shares the buyer acquires the company, but the nominal value of the shares as such does not reflect the actual value of the company, which depends on a number of factors such as the value of its assets, goodwill, etc 4. The purpose of warranties is therefore to define the critical factors in relation to the business upon which the buyer is prepared to offer the purchase price. Any breach of a warranty will therefore be related to a reduction of the value of the target business and may in short financially result in a reduction of the Purchase Price. The buyer will of course obtain information about all relevant aspects of the company (see §7 below). However, the buyer has no certainty that the information received is true and accurate and this is why the seller will be asked to give a number of warranties as to the truth and completeness of certain information received by the buyer for the purpose of valuing the Company. In this context a contractual technique has been developed over the years whereby each warranty states a positive guarantee (e.g., all the taxes have been paid, all assets belong to the company) and then possible exceptions are disclosed by the seller to the buyer (e.g., there is a problem with the taxes of the year 2000, or certain equipment belongs to a third party). These exceptions to the warranties can be contained in a separate document, the “disclosure letter” or in a document more strictly connected to the representations and warranties.

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ICC MODEL MERGERS AND ACQUISITIONS CONTRACT (I - SHARE PURCHASE AGREEMENT)

In order to facilitate a comprehensive view of these aspects the Task Force has preferred to put the exceptions to the warranties (contained in Schedule A) in a parallel document (Schedule B) which follows the same order and numbering. Furthermore, the two schedules have been placed for the convenience of the reader in parallel on the same page, so that the warranties and their exceptions can be seen together. Of course, this does not prevent the parties from drafting the actual schedules separately. 7.

KNOWLEDGE OF THE BUYER AND BREACHES OF WARRANTIES

It is obvious that the buyer will need information about the main aspects of the Company before purchasing it and negotiating the price. This information can be gathered in different ways. n In some cases the buyer will simply ask for certain information to be provided by the seller. n In other cases the buyer may request to conduct a due diligence investigation to directly verify certain data regarding the Company on the basis of a checklist provided by him. Particularly where a due diligence investigation has been made, a problem may arise as to how and to what extent the information available to the buyer can affect the buyer’s right to be compensated for breach of warranty. It is recommended to expressly deal with this problem in the contract. The two extreme solutions are the following: (a) a strict rule whereby only those exceptions to the warranties which are expressly stated in the contract (or in the disclosure letter, if any) will limit the warranties. This means that even if the buyer was perfectly aware of certain facts, which imply a breach of warranty by the seller, he can rely on the warranty for the purpose of obtaining compensation, to the extent that these exceptions are not expressly set out in the contract (or disclosure letter). (b) a rule whereby any information which the buyer knows about or should know about (because it was disclosed to him in some way) limits the warranties given by the seller. This means that if the buyer has been unable to see or to understand the impact of any information available to him, he will not be protected by the warranties for any damage arising out of the facts to which such information refers. The model contract proposes a solution along the lines of the first alternative: in principle all information that is relevant for limiting a warranty must be disclosed in the contract (in Schedule B, which is made for the purpose of containing such information). The seller bears in principle the risk for not having disclosed within the contract certain facts as a consequence of which the buyer will be entitled to seek damages for breach of warranty, even if the seller can prove that the buyer knew of

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INTRODUCTION

such facts already by some other means (but he can avoid this by accurately drafting the contract and in truly extreme cases he might be protected by the principle of good faith). Relevant date for correctness of warranties

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The next issue to be addressed in transactions where signing and closing take place at different dates is the definition of the relevant date on which the warranties must be true and correct to avoid any claims for breach. This issue is normally discussed intensively in negotiations in such transactions. As mentioned above, the warranties are to define the factors critical to determine the purchase price and the value of the underlying business. If the parties agree on the date of signing as the relevant date, any deterioration of the business after the signing will not have an effect on, and not result in a reduction of, the purchase price. As a consequence, because the full purchase price remains payable even if the condition of the business deteriorates, the risks associated with the business will pass to the buyer before the transfer of both title to the shares and control over the business. This may appear unfair to the buyer, and laws in certain jurisdictions would even give the buyer the right to withhold the purchase price or, in case of a drastic change, to walk away from the contract. The seller, however, will often argue that it was willing to close at signing and that any delay in the transfer of title was exclusively caused by the buyer, perhaps because of some outstanding permission or finance. With this argument, if successful, the seller would justify the premature transfer of the risk to the buyer. By contrast, if the closing date is the relevant date, the seller might find himself in a situation of breach because of an unexpected event that happened between signing and closing. In order to avoid a reduction of the purchase price, the seller might wish to have the right to amend any disclosures against the warranties. This appears to be fair only at first glance, and the buyer would be totally unprotected because it would still have to close at the terms of the purchase agreement. Taking into account the function of the warranties in the purchase agreement, it would only be fair that any negative impact on the value of the business after the signing and before closing should trigger a reduction in the purchase price. If the parties agree therefore on the closing date as the relevant date, a compromise may be found in permitting the seller to refuse closing if as a consequence of any breaches the effective purchase price is reduced below a certain threshold. In certain situations, the seller might also have to accept a material adverse change clause entitling the buyer to walk away even if there has been no breach of warranty before Closing, due to a dramatically negative development affecting the target business or the market it operates in. (See Article 5)

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ICC MODEL MERGERS AND ACQUISITIONS CONTRACT (I - SHARE PURCHASE AGREEMENT)

“Best knowledge” and similar expressions

In the current practice certain warranties are preceded by the words “So far as the seller is aware” or “To the best knowledge of the seller”. Since these clauses seek to limit the liability of the seller through the reference to a vague concept like the knowledge of certain facts, it has been decided to limit their use to circumstances where, for example, certain actions are threatened against the seller as the seller should not be asked to warrant that there are no threatened actions which it does not know about. The use of these expressions is limited because the function of the warranty clauses is to define the factors relevant for the value of the business, and it is obvious that there can be no link to subjective facts like knowledge or potential knowledge of a seller. This does not prevent the seller from limiting its liability within Schedule B, by stating why and to what extent he is unable to assume a certain responsibility. However, there are situations where the parties would sometimes use such expressions of this type more frequently, for example in the areas of environmental matters, compliance with laws, validity and renewals of permits and authorizations, intellectual property. If used, they reflect the understanding of the parties that they are not fully aware of the facts covered by the warranty and that the parties share the resulting risk in some way, which will most likely also have had an effect on, and be reflected in, the agreed purchase price. 8.

APPLICABLE LAW

When deciding about the applicable law, parties should consider several circumstances. In the first place, it is certain that a number of issues strictly connected to the target company are necessarily governed by the law of the country where the target company is incorporated: see, for example, the questions relating to the formalities of the transfer of shares. Considering that the law governing the company may be relevant for many aspects of the share purchase agreement, parties may choose to submit also such contract to the law of the country of the target company. This is actually the most commonly used solution and has therefore been expressly foreseen in Article 18A. It should however be considered that, since this model has been drafted independently of any particular national law, with the purpose of establishing a truly international standard, parties will first need to check if and to what extent this model contract conforms to the domestic law they wish to apply. If it appears impossible (or too onerous) to determine the content of the rules which would apply under the domestic law of the target company, or if such rules prove to be inappropriate, parties may decide to choose one of the following alternatives.

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INTRODUCTION

1. 2.

another domestic law, such as the law of one of the parties or the law of a third country (e.g. Swiss law), or principles of law generally recognised in international trade as applicable to crossborder SPA contracts (also called “lex mercatoria”).

If parties choose the first solution, they will indicate the country chosen in Article 18A. In such case they should check carefully whether any provisions of this model violate mandatory provisions of the national law they have chosen 6. The second solution has the advantage of being more appropriate for a contract like this model, which reflects international contract practice without being based on a particular domestic law. This solution makes it possible to apply the rules of the model form in a uniform way to sellers and buyers of different countries, without giving one party the advantage, and the other party the disadvantage, of applying one party’s national law. At the same time this solution, while avoiding the particularities of national laws, gives a wider discretionary power to the arbitrators, since it is based (at least for matters not expressly governed by the contract clauses) on very general principles. It should also be considered that a reference to general principles instead of a national law may not be effective if the dispute is brought before a national court: such a solution almost necessarily implies that possible disputes be submitted to arbitration, by choosing Article 17.2A (Arbitration). The Task Force is of the opinion that the possible disadvantage resulting from the application of rather flexible and general rules can be overcome by the use of a sufficiently detailed contract (which expressly addresses most of the critical problems that might arise) together with a set of general rules on contracts, like the Unidroit Principles of International Commercial Contracts 7, which offer a reasonably foreseeable legal framework for most issues of a more general nature, normally not envisaged in the contract itself. This is actually the solution proposed in Article 18.1.B, which states that any questions not expressly or implicitly settled by the provisions contained in the agreement shall be governed, in the following order: (a) by the principles of law generally recognised in international trade as applicable to international mergers and acquisitions contracts, (b) by the relevant trade usages, and (c) by the Unidroit Principles of International Commercial Contracts. It should be taken into account that under the above clause, which puts the various sources incorporated by reference in a hierarchical order (contract clauses, general principles, trade usages, Unidroit Principles), the Unidroit Principles will apply only to the extent they do not conflict with general principles and trade usages 8. This also implies that, even when the Unidroit Principles provide that certain of its rules are mandatory, such rules will not prevail over the contractual clauses, general principles or trade usages.

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ICC MODEL MERGERS AND ACQUISITIONS CONTRACT (I - SHARE PURCHASE AGREEMENT)

FOOTNOTES 1

So, for example, while the two terms “representations” and “warranties” have almost an equivalent meaning in the United States, under English law there is a substantial difference between a representation and a warranty. The measure of damages for a misrepresentation is different to those available for breach of warranty. Damages for misrepresentation are based on a tortious measure and can be substantially different to those available for breach of warranty. (Note: recission is also an available remedy for Misrepresentation). A representation also has to “induce” the contract and is usually thought to be confined to pre-contractual statements rather than terms actually in the contract (because it has to induce the contract). An aggressive buyer with a strong negotiating position may attempt to keep available both an action for misrepresentation and breach of warranty so both types of remedy are available. However it is usual that misrepresentation is excluded through the “entire agreement clause” (clause 15.2) and “non-reliance clause” (clause 15.3), i.e., by stating that both parties have not relied on any pre-contractual statements and that the agreement represents all the terms between them. It is also usual for the entire agreement clause to say that the only claim under the agreement will be for “breach of contract”, thereby denying any remedy available under misrepresentation. These extra words should be considered if the contract is subject to English law and the terms representation and warranty are used interchangeably throughout the document.

2

This result is obtained mainly by expressly providing in the contract what the legal consequences of a breach of representations and warranties are, so that it becomes less important to know how the representations and warranties should be qualified under the applicable law and which would consequently be, under such law, the consequences of a breach.

3

The term “warranties” has been chosen for sake of simplicity. In some jurisdictions one would discuss “representations and warranties”, and in still other jurisdictions “guarantees” or the like. It is essential to note that each of these terms might have a slightly different meaning. The legal consequences of a breach should be carefully checked under applicable law.

4

The legal principles which would apply in the absence of specific contractual clauses may be very different from one domestic law to the other and are far from being foreseeable. It should be considered that most national laws have no specific rules for this particular type of contract, which means that the courts will need to apply general rules regarding the sales contract. However, the application of the rules on the seller’s responsibility for non-conformity (or defects or “vices”) of the goods sold may give rise to surprising results if applied to an SPA, considering that the goods sold are in principle the shares (and not the Company). In some countries the courts have worked out solutions which take into account the particularities of a share purchase agreement, but such solutions are often unpredictable and may be very different from country to country. This is one of the main reasons why it is essential to solve these problems (warranties and consequences of their breach) at a contractual level. Of course the contractual solution of these problems will be effective only to the extent it is in accordance with mandatory rules of the applicable law (see paragraph 9 of the Introduction). However, it is much better to have workable contractual rules (and then to check if such rules conform to the applicable law) than to leave these problems to the domestic law.

5

This is only relevant where there is a split signing and completion.

6

In any case (even if no choice of a national law has been made) according to Article 15.2 the arbitrators may consider domestic mandatory rules which would be applicable independently from the applicable law (the “lois de police”).

7

The text of the Unidroit Principles can be found in Appendix (page 57).

8

This solution takes into account that a limited number of provisions of the Unidroit Principles may not actually reflect the expectations of international trade. This may be the case with respect to certain rules which protect the disadvantaged party to an extent which goes beyond the standards which are usual in the business to business relations: see for instance, Article 3.10 on gross disparity (particularly as concerns the end of the sentence in para 1(a), where reference is made to “the improvidence, ignorance, inexperience or lack of bargaining skill” of a party in order to justify contract avoidance) and the rules on hardship contained in Articles 6.2.1-6.2.3 (particularly with regard to the rule authorising courts to modify the contract terms). In such cases general principles of law and trade usages will prevail over the Unidroit Principles in case of conflict. Of course, parties may also expressly exclude the application of specific provisions of the Unidtroit Principles they consider inappropriate.

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Share purchase agreement ARTICLE 1 – DEFINITIONS

In this Agreement, unless the context otherwise requires: “Accounts” means the financial statements 1 of the Company with reference to the [ ] 2 financial years. “Accounts Date” means the date of reference of the last approved financial statements 3. “Agreement” means this agreement and its annexes and schedules. “Claim” and “Claim notice” have the meaning indicated in Article 10.1. “Closing” means completion of the sale and purchase of the Shares by the performance by the parties of their respective obligations under Article 6. “Closing Date” means the date on which the Closing takes place in accordance with Article 6.1. “Company” (“Target Company”) has the meaning set out in Annex 1. “Day” means a calendar day. “Encumbrances” shall mean any claims, interest, option or pre-emption right or other rights of any parties, charges, pledges, mortgages, special or general privileges, security, actions, liens, or encumbrances and the like of whatever nature. “Environmental Law” means all laws, regulations, directives, codes of practice, circulars, guidance notes and the like concerning the protection of human health or the environment or the conditions of the workplace or the generation, transportation, storage, treatment or disposal of dangerous substances. “Environmental License” means any permit, licence, authorization, consent or other approval required under or in relation to any Environmental Law. “Event” has the meaning defined in Article 10.1. “Intellectual Property Rights” mean any trademarks, service marks, trade and business names (including internet domain names), rights in designs, patents, copyrights, moral rights and rights in know-how, software and database rights and other intellectual property rights, as related to the Company, in each case whether registered or unregistered and including applications for the grant of any of the foregoing and all rights or forms of protection having equivalent or similar effects to any of the foregoing which may subsist anywhere in the world. “Losses” has the meaning defined in Article 9.1. “Purchase Price” has the meaning set out in Article 4. “Shares” means all the shares held by the Seller in the Company as referred to in Annex 2. “Warranty” and “Warranties” mean those warranties given by the Seller to the Buyer and contained in schedule A. “Warranty Breach” means any claim for breach of a Warranty as referred to in Schedule A.

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ICC MODEL MERGERS AND ACQUISITIONS CONTRACT (I - SHARE PURCHASE AGREEMENT)

ARTICLE 2 – GOOD FAITH AND FAIR DEALING

2.1 In carrying out their obligations under this Agreement the parties will act in accordance with the principles of good faith and fair dealing. 2.2 The provisions of this Agreement, as well as any statements made by the parties in connection with this Agreement, shall be interpreted in accordance with the principles of good faith and fair dealing. 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 Shares. 3.2 The Seller hereby agrees to sell and the Buyer agrees to purchase the Shares for the price set out in Article 4 free and clear of all Encumbrances. The Shares shall be transferred at Closing with the benefits of all rights attached to them as at the date of this Agreement, including all rights to dividends. ARTICLE 4 – PRICE

The purchase price amounts to [ Article 6.2 4 .

], which shall be paid in accordance with

ARTICLE 5 – CONDUCT OF BUSINESS, AND MATERIAL ADVERSE CHANGE 5

5.1 As from the date of execution of this Agreement and until Closing, the Seller shall conduct the business of the Company or cause the business of the Company to be conducted in the ordinary course. 5.2 As from the date of execution of this Agreement and until Closing, the Seller shall notify the Buyer of any material adverse change in the business, operations, properties, prospects, assets or condition, (financial or other) of the Company, or of any event, development or circumstance that may result in such a material adverse change. 5.3 In the event of a material adverse change, the Buyer shall be excused from his obligations under this Agreement without prejudice to available remedies in the event of the material adverse change being the result of an action or omission on the part of the Seller 6. 5.4 The parties agree that material adverse changes are defined as those changes in the business, operations, properties, prospects, assets or condition (financial or other) of the Company, of a nature to fundamentally alter the economics of this Agreement.

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SHARE PURCHASE AGREEMENT

ARTICLE 6 – CLOSING 7

6.1 Closing shall occur 8 at the offices of [ ] on [ (date)], provided the conditions referred to in Annex 3 have been fulfilled and subject to Article 5.3. If the conditions for the Closing have not satisfied by that date then each party can terminate the Agreement with written notice with immediate effect. The right of termination does not prevent any party from claiming possible damages. 6.2 At Closing, payment of the Purchase Price shall occur against transfer of title of the Shares 9 . 6.3 Closing is the effective date of the transfer of the Shares 10. ARTICLE 7 – POST-CLOSING UNDERTAKINGS

The Seller undertakes to the Buyer in the terms of Annex 4. ARTICLE 8 – WARRANTIES

8.1 The Seller warrants to the Buyer that as at the date of this Agreement: (a) except as fairly and specifically disclosed in Schedule B, each of the statements set out in Schedule A is true and accurate in all respects; (b) neither the Seller nor any of the Seller’s agents has deliberately withheld any information from the Buyer which would be material to a prudent buyer 11 for evaluating the Company . 8.2 Each of the warranties set out in the several paragraphs of Schedule A is separate and independent and, except as expressly provided to the contrary in this Agreement, is not limited: (a) by reference to any other paragraph of Schedule A; or (b) by anything in Schedule B which is not expressly referenced to the Warranty concerned 12. 8.3 The right to damages and/or any other available remedy for breach of any of the warranties, covenants and obligations in this Agreement will not be affected by any investigation conducted with respect to, or any knowledge acquired (or capable of being acquired at any time, whether before or after the execution and delivery of this Agreement or the Closing Date) with respect to the accuracy or inaccuracy of or compliance with any such warranty, covenant or obligation. ARTICLE 9 – SELLER’S LIABILITY FOR WARRANTY BREACH 13

9.1 The Seller shall be liable to the Buyer for any liability, loss, damage, cost, expense (including reasonable attorney fees, and other reasonable legal and internal costs and expenses relating to a suit, action or other proceedings) 14 (collectively “Losses”) which the Buyer or the Company may incur or suffer as a result of any Warranty Breach.

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ICC MODEL MERGERS AND ACQUISITIONS CONTRACT (I - SHARE PURCHASE AGREEMENT)

9.2 Liability 15 of the Seller in accordance with Article 9.1 (subject to the limitations under Article 11) shall be treated as any one of the following, as the Buyer shall choose and direct: (i) a reduction and refund of the price paid or payable for the Shares; (ii) a payment to the Buyer; (iii) a payment to the Company; or (iv) a direct payment to the creditor(s) of the Company. ARTICLE 10 – CLAIM PROCEDURE

10.1 Claim Notice. Whenever the Buyer becomes aware that an event (the “Event”) has occurred from which there may arise an obligation of the Seller pursuant to Article 9 above, including the notification of a tax, social security or other audit by public authorities, the Buyer shall, as soon as practicable, give notice (“Claim Notice”) to the Seller and state its claim (“Claim”) and the amount claimed if then known and ascertainable and the method of calculation thereof. Failure of the Buyer to give timely Claim Notice hereunder shall not affect its rights to claim for breach of the Agreement except to the extent that the Seller demonstrates that the Buyer’s delay violated its obligation to use reasonable endeavours to mitigate the Losses and except to the extent as set out in Article 11. 10.2 Information and co-operation of parties. In handling the Event, the Buyer shall keep the Seller fully and promptly informed and consult in good faith with the Seller before taking any material steps or decisions, such as a decision to settle with a third party, in order to allow the Seller to make all recommendations and suggestions to the Buyer in due time, and to this effect the Buyer shall give the Seller, or the Seller’s representatives, reasonable access to relevant accounts, documents, records and other documentation and the Seller shall provide full co-operation upon the Buyer’s reasonable request. The obligation of the Buyer to inform and consult with the Seller shall in no way imply any obligation for the Buyer to defer to or follow any recommendations and suggestions made by the Seller. In all cases, the Buyer shall use reasonable endeavours to mitigate the Losses. 10.3 Rights of Seller to control of defence in the event of Admission of Claim (optional). With respect to claims made by third parties, if the Seller admits to the Buyer and agrees in writing 16 that is liable for the full amount of the claim (“Admission of Claim”) and agrees to provide reasonable security of its payment obligations under the claim, the Seller shall be entitled to assume control of the defence of such action or claim, at its sole expense, and shall be entitled to use its own counsel and legal advice provided that such counsel and provision of legal advice is reasonably satisfactory to the Buyer and provided that:

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SHARE PURCHASE AGREEMENT

(i) the Buyer will be entitled to take any and all reasonable or necessary procedural and other steps in the period preceding Admission of Claim; (ii) In conducting the defence, the Seller shall keep the Buyer fully and promptly informed and consult in good faith with the Buyer before taking any material steps or decisions, such as a decision to settle with a third party, in order to allow the Buyer to make recommendations and suggestions to the Seller, without being under any obligations to make such recommendations or suggestions, and, to this effect, the Seller shall give the Buyer, or the Buyer’s representatives, reasonable access to relevant procedural and other documentation; (iii) The obligation of the Seller to inform and consult with the Buyer shall in no way imply any obligation for the Seller to defer to or follow any recommendations and suggestions made by the Buyer; (iv) In all cases, the Seller shall use reasonable endeavours to mitigate the Losses. (v) the Seller shall not consent to the entry of any judgement or enter into any settlement that (A) does not include as an unconditional term thereof the giving by each claimant or plaintiff to the Buyer and the Company of a release from all liability in respect of such claim or (B) would result in the imposition against the Buyer of injunctive or other relief; or (C) could materially interfere with the business, operations or assets of the Buyer or the Company; and (vi) if, within ten (10) business days after Admission of Claim, the Seller does not assume control of the defence of such third-party claim in accordance with the foregoing provisions, the Buyer shall have the right to defend such claim in such manner as it may deem appropriate at the reasonable cost and expense of the Seller, and the Seller shall promptly reimburse the Buyer therefor in accordance with this paragraph. ARTICLE 11 – LIMITATION OF LIABILITY FOR WARRANTY BREACHES

11.1 The liability of the Seller under this Agreement, except for any liability under Article 13 (Restrictive Covenants) shall not arise unless the liability for damages exceeds [ ] (in words: [ ]) in which event the Seller shall be liable for the whole liability and not only for the excess over [ ]; and 11.2 In determining the Sellers liability for damages, only claims for Warranty Breaches which exceed, each individually, an amount of [ ] 17 (in words:[ ]) shall be taken into account unless such an individual claim is part of a series of claims relating to the same Warranty Breach in which case all such [ ] claims will be treated cumulatively in assessing the value of claim for the purpose of this Article 11.2. 11.3 The maximum liability of the Seller under this agreement (except for any liability under Article 13 (Restrictive Covenants) shall not exceed an amount equal to [ ] (in words: [ ]).

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ICC MODEL MERGERS AND ACQUISITIONS CONTRACT (I - SHARE PURCHASE AGREEMENT)

11.4 The Seller shall have no liability under this Agreement unless it receives from the Buyer a Claim Notice (pursuant to Article 10): (a) on or before the [ ] anniversary of the Closing Date in respect of any claim for breach of any of the tax warranties (contained in schedule A.7 of schedule A); and (b) Within [ ] months/years after the Closing Date in respect of any other claim. 11.5 Payments by the Seller under this clause shall be limited to the amount of the balance of the Loss after deducting therefrom (i) any amount of contingency reserves provided against such Loss in the Accounts of the Company; and (ii) any indemnity, contribution or other similar payment recoverable and recovered by the Buyer from any third party, including under an insurance policy less the costs of recovery and any consequential increase in the cost of insurance 18. 11.6 No liability of the Seller shall arise if and to the extent that a Claim occurs as a result of legislation which is not in force at the Closing Date or which takes effect retrospectively or occurs as a result of an increase in the rate of the taxes in force at the Closing Date or as a result of a change in the practice of the relevant authorities. 11.7 If any claim of the Buyer for a Warranty Breach is a result of or in connection with a liability or alleged liability of a third party, the Buyer shall take such actions as it reasonably considers necessary to prevent or limit to the extent possible any loss or damage for which the Seller may be liable (including taking such action to avoid, dispute or contest such liability as is reasonably practicable). 11.8.A Remedies Cumulative. The remedies provided herein are cumulative and will not preclude assertion by any party of any rights or the seeking of any other remedies against the other party or any other third party at law or otherwise.

11.8.B

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Sole Remedy. The Buyer shall have no rights with respect to breach of any warranty or obligation under this Agreement other than those expressly provided herein.

11.9 The limitation of liability provided in this Article 11 applies exclusively to Warranty Breaches, and the Parties agree that it does not apply to other breaches or deficiencies of this Agreement. ARTICLE 12 – PAYMENT FOR BREACH 20

12.1 Any payment for Warranty Breaches shall be due immediately.

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SHARE PURCHASE AGREEMENT

12.2 In the case of claims for payment by third parties against the Buyer or the Company, any payment for Warranty Breaches by the Seller shall be due as soon as such third party claim has to be paid. In the event the said payment obligation is thereafter finally determined not to be binding and enforceable, the Buyer shall be under the obligation to reimburse the Seller to the extent and as soon as the Buyer will have received a refund. 12.3 The Buyer shall use its reasonable endeavours to obtain postponement of payment when practicable provided the Seller shall counter-guarantee without delay any required guarantees to the effect of such postponement. 12.4 Any payment delay on the part of any of the parties shall give rise to an obligation to pay interest at the rate of [ ]. ARTICLE 13 – RESTRICTIVE COVENANTS 21

13.1 Non competition clause. The Seller shall not, directly or indirectly (including, without limitation, through companies, associations, joint ventures, relatives or other means or persons) (i) engage in, assist or finance any activity which may be directly or indirectly in competition with the Company’s business as per the Closing Date, (ii) perform any service which may be in competition with the business in which the Company is currently engaged at the time of Closing, for a period of [ ] 22 years from the Closing Date with respect to the territory where the Company is currently engaged at the time of Closing. 13.2 Non-Solicitations of employees. Without prejudice to applicable laws on unfair competition, for a period of two (2) years from the Closing Date, the Seller shall not in any way, directly or indirectly solicit, recruit 23, assist others in recruiting or hiring, or discuss employment arrangements with any employee of the Company without the prior consent of the Buyer. 13.3 Subject to Article 13.4 the Seller covenants with the Company and the Buyer that the Seller shall keep confidential and shall refrain from using all confidential information relating to the business of the Company and shall procure that none of its related companies shall at any time without the consent of the Company or the Buyer infringe this restriction. 13.4 The restriction in Article 13.3 shall not apply to the extent that: (a) any confidential information relating to the business of the Company becomes part of the public domain; or (b) the Seller is required to disclose confidential information relating to the business of the Company by law, any official authority or governmental body of the relevant jurisdiction.

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ICC MODEL MERGERS AND ACQUISITIONS CONTRACT (I - SHARE PURCHASE AGREEMENT)

ARTICLE 14 – CONFIDENTIALITY/ANNOUNCEMENTS

14.1 The parties shall treat and keep confidential and shall not disclose 24 in whole or in part to any third party this agreement or any information contained within or related to this Agreement except as is: (a) required by applicable law; (b) necessary to obtain approvals from governmental bodies connected with the Agreement; (c) ordered by a court of competent jurisdiction; (d) already in the public domain or becomes part of the public domain; (e) required by any relevant security exchange. 14.2 The parties shall consult with each other as to the form of any announcement arising out of or connected with the Agreement, and no disclosure shall be made to any third party without the prior written agreement of the parties save as required by law or applicable stock exchange rules. 14.3 The obligations under this Article 14 shall survive any termination of this Agreement. ARTICLE 15 – GENERAL

15.1 Waiver. The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement. Any waiver must be in writing. 15.2 Entire Agreement. This Agreement constitutes the entire agreement between the parties in relation to the sale and purchase of the Shares and other matters covered by it and supersedes any previous agreement between the parties in relation to those matters, which shall cease to have any effect. 15.3 Non-reliance. Both Parties to this Agreement acknowledge that they could have not relied on any statement or representation (save in the event of fraud) or warranty not contained in the Agreement or contained in any of the agreed form documents and each party unconditionally waives any claims in relation to, any statement, representation (save in the event of fraud), warranty or undertaking which is not expressly set out or referred to in this Agreement or any of the “agreed form” documents. 15.4 Partial Invalidity; Conflict. In the event that any term of this Agreement is declared by an arbitral panel or a judicial or government authority to be legally invalid, nonbinding or unenforceable, such term shall be deemed deleted herefrom and shall not affect the Agreement in other respects, nor the validity and enforceability of those remaining terms. In such an event, the Buyer and the Seller agree to replace the affected term with terms that will most nearly and fairly approach such deleted term. In the event of a conflict or discrepancy between the Articles of this Agreement and the Schedules, the Articles of this Agreement shall prevail.

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SHARE PURCHASE AGREEMENT

15.5 No assignment 25. This Agreement, or any rights hereunder, cannot be assigned by either Party without the consent of the other Party, except that corporate operations involving the universal transmission of the assets and liabilities of either of the parties will not require the consent of the other party. 15.6 Costs. Each party will be responsible for its own costs and expenses, including consultants and brokers fees incidental to the negotiation, preparation and execution of the Agreement, and agrees to hold harmless and indemnify the other party in respect of any such expenses, costs and fees which may be claimed from such other party 26. 15.7 Transfer taxes, stamp and other duties and authentication costs. The Parties agree that all such costs shall be borne by the Buyer 27. 15.8 Force majeure. The Parties agree to apply the ICC Force Majeure Clause 2003. ARTICLE 16 – NOTICES

16.1 Any notice, consent or other communication under this Agreement shall be in writing and sent to the addresses, facsimile numbers and email addresses set out below (or to such other addresses, facsimile numbers or email addresses as the parties may designate by notice to each other). (a) If to the Buyer: address: telephone number: fax number: e-mail address:

(b) To the Seller: address: telephone number: fax number: e-mail address:

16.2 Any notice or other communication served by hand, special courier, fax or post shall be deemed to have been received: (a) in the case of delivery by hand, when delivered; (b) in the case of email or fax, at the time of transmission, provided that the confirmation of the transmission is sent to the counterpart by registered mail within 24 hours. Failure to send the confirmation copy will invalidate the service of any facsimile or electronic data transmission, (c) in the case of registered mail with a return receipt, at the expiration of [ ] days after dispatch of the notice. ARTICLE 17 – RESOLUTION OF DISPUTES

17.1 The parties may at any time, without prejudice to Article 17.2, seek to settle any dispute arising out of or in connection with this Agreement in accordance with the ICC ADR Rules 28.

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ICC MODEL MERGERS AND ACQUISITIONS CONTRACT (I - SHARE PURCHASE AGREEMENT)

17.2 A Arbitration

17.2B Litigation (ordinary courts)

All disputes arising out of or in connection with this Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said rules. The place of such arbitration shall be [ ], and the language of such proceedings shall be [ ].

In case of dispute the courts of [place] [country] shall have exclusive jurisdiction.

ARTICLE 18 – APPLICABLE LAW

18.1.B

18.1. A This Agreement is governed by the laws of [ ] (name of the country the law of which is to apply) 30.

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Any questions relating to this Agreement which are not expressly or implicitly settled by the provisions contained in this Agreement shall be governed, in the following order: a) by the principles of law generally recognized in international trade as applicable to international merger and acquisition contracts; b) by the relevant trade usages; and c) by the Unidroit Principles of International Commercial Contracts, with the exclusion – subject to Article 18.2. hereunder – of national laws.31

18.2 In any event consideration shall be given to mandatory provisions of the law of the country where the Company is established which would be applicable even if the contract is governed by a foreign law. Any such provisions will be taken into account to the extent they embody principles which are universally recognised and provided their application appears reasonable in the context of international trade. ARTICLE 19 – AUTOMATIC INCLUSION UNDER THE PRESENT AGREEMENT

If the parties have not made a choice among the alternative solutions provided in Articles 11.8, 17.2 and 18.1 under the letters A and B by deleting one of the alternatives, and provided they have not expressly made a choice by other means, alternative A shall be considered applicable. (Date and signature line to be inserted as in the other contracts)

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FOOTNOTES 1

Verify which documents form the financial statements of the Company in the Company’s jurisdiction.

2

Fill in the years that you wish to consider.

3

This model contract assumes that no closing financial statements will be prepared after closing.

4

See also Introduction, §4, for possible means of price adjustments like closing accounts and earn-outs. Check whether any applicable taxes apply

5

Material adverse change clauses (MACs) are more and more frequently discussed in M & A transactions as a result of a changing international environment. Their purpose is to allow the Buyer to escape a deal when a number of circumstances which have been determined in more or less detail in advance materially change. They can also be a protection for the Seller against a recalcitrant Buyer. Although not found as a rule in all transaction documents, their increasing frequency is the reason for their inclusion in this model form. There is not a great amount of experience in the effect of so-called MAC clauses in practice. The court decisions rendered up to now in several jurisdictions tend to adopt a rather restrictive view of their scope and to require an adverse change of very considerable significance to allow the parties to walk away from a binding contractual agreement. This model agreement chooses to limit the excuse in the event of a material adverse change to the Buyer, which is the most frequent hypothesis. It also does not go into any detail as to the definition of what the acceptable adverse changes would be, but the parties should give particular regard not only to the specificities of the transaction and business at hand but also to the evolution of practice and judge-made law in the relevant jurisdiction.

6

The underlying concept is that the risk passes to the Buyer upon closing (see also discussion in the Introduction §7). The parties might consider whether they prefer different concepts, especially for events that are not attributable to either of the parties.

7

If transfer of the legal title to the shares will be perfected only after closing, a provision should be included whereby the Seller undertakes not to dispose of the shares and not to use the rights connected to them after the closing. A possible example could be the following: “The Seller hereby undertakes to the Buyer for so long as it remains the registered holder of any of the Shares after Closing: 1. not to dispose of the Shares or any interest therein. 2. not to transfer any of the Shares nor to offer any new shares to a third party; 3. to refrain from any acts or omissions, the purpose or effect of which is or might be the material dilution of the value of the Shares; 4. not to pass any shareholders’ resolution in relation to the Company; 5. not to dispose of any assets or rights of the Company; 6. not to do any act whereby any person is entitled or empowered to terminate any agreement, arrangement or License, the benefits of which are enjoyed by the Company.” Often powers of attorney are given by the Seller in favour of the Buyer, so that the Buyer can control the shares as beneficial owner until registration takes place, and the buyer becomes legal owner. Please consider if this stronger protection is required.

8

In some jurisdictions it is either legally required or customary that certain documents or items be delivered by one party to the other, typically by the Seller to the Buyer. The Parties should carefully review the checklist provided in Annex 4. It is not an exhaustive list.

9

In some cases, e.g. if the capital of the company is not represented by share certificates, this solution may not be appropriate. The parties should in any case check very carefully the formalities for the transfer of title under the law of the target company.

10 Particular regard should be given to this clause in jurisdictions where (i) there can be a lapse in time between the transfer of legal and beneficial ownership of the shares as seen in footnote 15 or where (ii) by the effect of legal provisions governing the effect in time of the satisfaction of conditions precedent there could be a retroaction of the transfer of ownership of the shares to the date of the signature of the contract. In those latter cases, article 6.3. should be complemented as follows: “The Parties agree that the fulfillment of the conditions referred to in Annex 3 shall not cause their agreement to sell and purchase the Shares to retroact at the date of this Contract but that the transfer of title to and risk relating to the Shares shall take place at the date of Closing.” 11 As the Buyer is free to ask for specific warranties the Seller might consider refusing such a catch-all clause, in particular if the Buyer had an opportunity to conduct a due diligence examination. Also, it is not unusual to exclude any claims not expressly provided for in the Agreement. 12 Inevitably there will be an overlap in the warranties. The purpose of this clause is to eliminate any suggestion that the wording of a certain warranty or a qualification to such warranty operates to reduce the scope of another, overlapping warranty.

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ICC MODEL MERGERS AND ACQUISITIONS CONTRACT (I - SHARE PURCHASE AGREEMENT)

13 Buyer’s Representations and Warranties to the Seller and a corresponding Buyer’s right to damages may also be considered. 14 In certain cases, it can be advisable to provide that a diminution of assets in substance or value may also be indemnifiable. The parties need to check this provision for consistence with Article 11.8 (optional). 15 The agreement does not provide for the rights of the Seller to rescind the agreement in case of a fundamental deficiency. The parties should thus check whether such right exists under the applicable law, or whether they wish to include such right in the Agreement. 16 The words “or tacitly according to the provisions of the last paragraph of 10.1” should be added if the optional clause provided under footnote 26 is used. 17 Consider limiting liability to the purchase price. 18 A possible optional clause may be the following: “Buyer’s obligation as to insurance (optional). The Buyer undertakes to the Seller that it will at all times until (…) procure that the Company maintains in full force and effect insurance cover in amounts which are not less than and on terms which are at least comparable to those subsisting on the Closing Date.” 19 This clause does not necessarily exclude any right which the Buyer might have under the applicable law, e.g. on the ground of error. 20 If there are no other means for securing payment (such as, payment by instalments giving the buyer the possibility to withhold sums possibly due under this clause: see Introduction, § 5), parties may agree upon a bank guarantee or similar security to be provided by the Seller. An example of clause is the following: “Guarantee. For the purpose of implementing and securing the Seller’s payment obligations under this clause, the Seller shall provide, on or before the Closing Date, a ‘first demand’ bank guarantee issued by an issuer and in form and substance agreeable to the Buyer. The banking fees and other expenses relating to such bank guarantee shall be for the Seller’s account.” 21 Parties may wish to make this clause more effective by adding a penalty or liquidated damages clause. In this case, they should check to what extent such clauses are effective under the applicable law. 22 Normally twoyears. Sometimes three or more years, but in this case the compliance with applicable antitrust rules should be checked. 23 Under applicable law, a clause effectively preventing an employee from seeking employment with the Buyer may be held void. 24 The parties should consider a limitation period for this covenant. 25 In some cases the prohibition of assignment may not be advisable, e.g. if payment is made by instalments and the buyer needs in the meantime to be free to transfer the shares to others. At the same time, the Purchaser may need to discount its claim for the Price – group reorganisation should also be taken into consideration. 26 The Parties should consider sharing certain costs, e.g., for any necessary approvals from merger control authorities. 27 The Parties should carefully verify the impact of any transfer tax or any other duties. 28 The ICC ADR Rules can be found on the Web site www.iccadr.org. 29 In case this alternative is chosen, it is advisable to choose arbitration (Article 17.2.A) for the resolution of disputes, since it is doubtful that ordinary courts would accept applying general principles instead of a domestic law. 30 This model form reflects standards used in cross-border SPA’s without considering a specific national law. Thus, if the parties submit the agreement to a specific domestic law, they should carefully check in advance, if the clauses of the model conform to the mandatory provisions of the law they have chosen. 31 Careful legal consideration is requried as to the effect of choosing clause 18.1A and 18.1B. Whichever clause is chosen will have a substantial impact on the interpretation of the Agreement.

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PART TWO Annex 1

Company information This list is only an example. Parties should check if further information is needed for exactly identifying the Company. Name of Company : ...................................................................................................................... ......................................................................................................................................................... Registered office : [corporate seat] ........................................................................................... ......................................................................................................................................................... Name of register : ......................................................................................................................... ......................................................................................................................................................... Registration number : .................................................................................................................. ......................................................................................................................................................... Directors: ....................................................................................................................................... ......................................................................................................................................................... Auditors: ......................................................................................................................................... ......................................................................................................................................................... Secretary: (if any) .......................................................................................................................... ......................................................................................................................................................... Place/date of incorporation: ........................................................................................................ .........................................................................................................................................................

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ICC MODEL MERGERS AND ACQUISITIONS CONTRACT (I - SHARE PURCHASE AGREEMENT)

Annex 2

Shares Capital of the Company/Number of shares ......................................................................................................................................................... ......................................................................................................................................................... ......................................................................................................................................................... Description of the Shares ....................................................................................................................................................... 1 ......................................................................................................................................................... Physical evidence of the Shares ....................................................................................................................................................... 2 ......................................................................................................................................................... Capital represented by the Shares ....................................................................................................................................................... 3 ......................................................................................................................................................... Modus (requirements) of transfer ....................................................................................................................................................... 4

FOOTNOTES 1

Please provide for a full description of the Shares which makes it possible to clearly identify the Shares.

2

Please describe how the Shares are physically evidenced, or in the absence of physical evidence what other source evidences the shareholding.

3

Please describe the capital in the Company represented by the Shares.

4

Please fully describe how the Shares are to be transferred, e.g. hand-over of share certificates, or registration with a register, etc.

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Annex 3

Pre-closing items (article 6.1) This list is only an example. Parties should check if further information is needed for exactly identifying the Company. 1.

ANTITRUST MATTERS

Merger clearance by the competent antitrust authorities. 2.

CONSENT OF ALL REGULATORY AUTHORITIES CONCERNED

[Insert any relevant regulatory consents required by the relevant jurisdiction] 3.

THIRD-PARTIES CONDITIONS PRECEDENT

3.1 Resolution of any work council or any equivalent labour or employee representing body of the Company, approving the transaction. 3.2 Waiver of any third party to terminate an agreement because of the change of control brought about by this Agreement. 3.3 Confirmation of the most important customers of the Company that they will not end their business relationship with the Company following the change of control brought about by this Agreement. 3.4 Waiver of any third party to exercise option rights, rights of first refusal or any equivalent right. 3.5 Letters of resignation in the agreed form, stating that the relevant persons have no claims against the Company and waving their rights to any such claims l the auditors of the Company, [with a statement that there are no circumstances connected with such resignation which they consider should be brought to the attention of the shareholders of the Company] 1; l such directors of the Company [(names) ], as required to resign; l the secretary of the Company [(name) ], as required to resign. 3.6 Written statement by [ ] bank in respect of the release of the [ ] charge dated [ ] granted to [ ] bank by the Company, in a form satisfactory to the Buyer. 3.7 Employment agreements with managers [(names) ] in the agreed form duly executed by [ ] and [ ]. 3.8 Evidence in the agreed form that all sums owed by the Seller to the Company or any of its related companies have been repaid 2.

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ICC MODEL MERGERS AND ACQUISITIONS CONTRACT (I - SHARE PURCHASE AGREEMENT)

3.9 Evidence in the agreed form that all parent company guarantees given by the Seller in favour of the Company have been released 3. 3.10 Releases in the agreed form releasing the Company and any of its related companies from all debts and other liabilities which may be owing to the Seller or to [ (other companies of the Seller’s group)]. 4.

OBLIGATIONS OF THE PARTIES

Prepare delivery of the following documents: 4.1 Certificate of incorporation and changes of name certificates. 4.2 Constitutional document(s). 4.3 Certificate or extract from a public commercial register. 4.4 Share register/list of the present shareholders/statutory books/all internal registers. 4.5 Completion minutes of the board meeting in which the transaction has been approved by the Company. 4.6 [List of all members of the relevant board(s)]. 4.7 Minutes of meeting of the directors of the Seller in which the transaction has been approved. 4.8 Minutes of the meetings of the directors of the Buyer in which the transaction has been approved. 4.9 Financial statements as of [

].

4.10 Financial and tax confirmatory due diligence report. 4.11 Evidence in the agreed form that all sums owed by the Seller to the Company or any of its related companies have been repaid. 4.12 Releases in the agreed form releasing the Company and any of its related companies from all debts and other liabilities which may be owing to the Seller or to [(other companies of the Seller’s group)] 4.13 Certificate or extract from a public land register. 4.14 Deeds concerning any rights or obligations with respect to land. 4.15 Deeds and documents of title to the Real Estates. 4.16 Legal opinions. 4.17 Certificate of the Seller and the Company certifying that each document delivered by the Seller and the Company is correct, complete and in full force and effect.

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ANNEX 3 – PRE-CLOSING ITEMS (ARTICLE 6.1)

FOOTNOTES 1

This is relevant to UK law and such a statement should be contained in the letter of resignation.

2

If there is, e.g., a current account on the basis of daily trading, another mechanism should be applied.

3

Consider a reasonable endeavours clause that all parent Company guarantees will be released and an indemnity by the Buyer in favour of the Seller to the extent that they are not.

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ICC MODEL MERGERS AND ACQUISITIONS CONTRACT (I - SHARE PURCHASE AGREEMENT)

Annex 4

Checklist of documents and/or items to be delivered at closing The events that are listed below should take place at or before closing. They may or may not be “conditions precedent” in the strict legal meaning of this term: they may also cover cases where a party undertakes to perform an obligation before closing. Parties should check which of these items are relevant for their specific situation. 1.

ANTITRUST MATTERS

Merger clearance by the following antitrust authorities: ......................................................................... ......................................................................... 2.

CONSENT OF ALL REGULATORY AUTHORITIES CONCERNED

(e.g. stock exchange, foreign investment) ................................... (authority) ................................... (type of clearance) ................................... (authority) ................................... (type of clearance) 3.

CORPORATE MATTERS

3.1 Resolutions of the competent corporate body (i.e. management and/or supervisory board) of the Company approving the transaction. 3.2 Resolutions of the competent corporate body (i.e. management and/or supervisory board) of the Seller approving the transaction. 3.3 Duly executed transfers into the name of the Buyer or its nominee in respect of all of the Shares together with the relevant share certificates in respect of the Shares, or any other suitable evidence showing the title to the Shares. 3.4 Certificates of incorporation, common seal, share register and share certificate book (with any unissued share certificates) and all minute books and other statutory books (accurately written up to reflect the position immediately prior to Closing) of the Company 1. 4.

THIRD-PARTIES CONDITIONS PRECEDENT

4.1 Resolution of the work council or an equivalent labour- or employee-representing body of the Company, approving the transaction.

34

ANNEX 4 – CHECKLIST OF DOCUMENTS AND/OR ITEMS TO BE DELIVERED AT CLOSING

4.2 Waiver of any third party to terminate an agreement because of the change of control. 4.3 Confirmation of the most important customers of the Company that they will not end their business relationship with the Company after the change of control. 4.4 Waiver of any third party to exercise option rights, rights of first refusal or any equivalent right. 4.5 Letters of resignation in the agreed form, stating that the relevant persons have no claims against the Company and waiving any such claims: l the auditors of the Company, [with a statement that there are no circumstances connected with such resignation which they consider should be brought to the attention of the shareholders of the Company] 2; l such directors of the Company [(names ) ], as required to resign; l the secretary of the Company [(name) ], if any, as required to resign; 4.6 Written statement by [ ] bank in respect of the release of the [ ] charge dated [ ] granted to [ ] bank by the Company, in a form satisfactory to the Buyer (see clause 4.3.3 of the model contract). 4.7 Employment agreements with managers [(names) executed by [ ] and [ ]. 5.

] in the agreed form duly

OBLIGATIONS OF THE PARTIES

Prepare delivery of the following documents: 5.1 Certificate of incorporation and changes of name certificates. 5.2 Articles of association and Memorandum of Association [constitutional documents]3. 5.3 Certificate or extract from a public commercial register. 5.4 Share register/list of the present shareholders/statutory books/all internal registers. 5.5 Completion minutes of the board meeting in which the transaction has been approved by the Company. 5.6 [List of all members of the supervisory board]. 5.7 [List of all members of the management board] 4 . 5.8 Minutes of the meeting of the directors of the Seller in which the transaction has been approved. 5.9 Minutes of the meetings of the directors of the Buyer in which the transaction has been approved.

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ICC MODEL MERGERS AND ACQUISITIONS CONTRACT (I - SHARE PURCHASE AGREEMENT)

5.10 Financial statements as of [

].

5.11 Financial and tax confirmatory due diligence report. 5.12 Evidence in the agreed form that all sums owed by the Seller to the Company or any of its related companies have been repaid. 5.13Releases in the agreed form releasing the Company and any of its related companies from all debts and other liabilities which may be owing to the Seller or to [ (other companies of the Seller’s group)]. 5.14 Certificate or extract from a public land register. 5.15 Deeds concerning any rights or obligations with respect to land. 5.16 Deeds and documents of title to the Real Estates.

FOOTNOTES 1

N.B.: Article 3.3 and 3.4 are based on an Anglo-Saxon model. They would not be fit for, e.g., a Dutch transaction.

2

This is relevant to UK law and such a statement should be contained in the letter of resignation.

3

Companies incorporated in England and Wales have two constitutional documents. The articles of association govern the internal workings of the Company between it and its shareholders, and the memorandum of association shows externally what the Company is and is not empowered to do.

4

Companies incorporated in England and Wales only have one management board, its board of directors. A list of a company’s directors can be obtained from an up-to-date company search.

36

Schedules SCHEDULE A

SCHEDULE B

REPRESENTATIONS AND WARRANTIES

EXCEPTIONS AND QUALIFICATIONS TO THE REPRESENTATIONS AND WARRANTIES

Although the model form is intended to be a simplified “short form”, this Schedule A has been drafted with the purpose reaching a sufficient degree of completeness. Some clauses may seem unnecessary or too detailed for a smaller deal, but it has been thought that it was better to give an extensive view of all (or most) problems the parties may have to face, also considering that clauses which are not needed can be easily deleted. 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). Considering the strict link between the two schedules, it has been preferred to work out a system where all exceptions and limitations to the warranties would be put as far as possible in Schedule B.

This Schedule has to be filled in case by case according to the situations of every specific deal. The explanations and examples given hereafter are of course non-exhaustive, but have only the purpose of helping the user to focus on the main issues. In Schedule B the Task Force has tried to give some explanations which may help the parties to better understand the various warranties and the matters to check in order to correctly draft possible exceptions or qualifications restricting the corresponding warranty. Since the list hereunder covers all warranties under Schedule A, parties should delete the paragraphs that are not needed and/or insert other items that have not been set out in the list hereunder.

The ICC Task Force has tried to avoid wordings like “So far as the Seller is aware” or “To the best knowledge of the Seller”. If the Seller feels that he must limit his responsibility with respect to matters which are not totally under his control or with respect to which he has no precise information, he can better do so by putting limitations and exceptions in the corresponding clause of Schedule B. This will oblige the parties to define more precisely the extent of their respective rights and duties.

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ICC MODEL MERGERS AND ACQUISITIONS CONTRACT (I - SHARE PURCHASE AGREEMENT)

SCHEDULE A (continued)

SCHEDULE B (continued)

REPRESENTATIONS AND WARRANTIES

EXCEPTIONS AND QUALIFICATIONS TO THE REPRESENTATIONS AND WARRANTIES

A.1

The Company

A.1.1 The facts stated in Annex 1 (Company Information) are correct.

B.1.1 Verify that all Company Information contained in Annex 1 is correct and updated and conforms to the information contained in public registers.

A.1.2 The Company is validly existing and incorporated under the laws of [ ]. The Company is not insolvent and is capable of paying its debts and no action has been brought or threatened so as to have the Company declared insolvent or subjected to any insolvency, moratorium or other procedure involving a collective treatment of creditors, nor are there any circumstances which exist which may cause the Company to become insolvent or incapable of paying its debts.

B.1.2 Verify that the Company is not de facto under liquidation due to circumstances as capital impairment, government prohibitions to exercise its activity, etc.

A.1.3 The Seller has set out in B.1.3 true and accurate copies of the constitutional documents of the Company incorporating all amendments made up to and including the date hereof.

B.1.3 Attach list made according to A.23.1

A.1.4 The register of shareholders of the Company contains a true and accurate record of the current shareholders and all former shareholders of the Company and their holdings of shares in the capital of the Company.

B.1.4 Verify compliance with A.1.4 1.

A.1.5 All Encumbrances by or in favour of the Company have been registered in accordance with the provisions of the relevant legislation.

B.1.5 Verify compliance with A.1.5 and list possible exceptions.

A.1.6 All returns, particulars, resolutions and other documents required by the applicable laws to be filed with or delivered to any official body by the Company have been properly prepared and so filed or delivered in all material respect.

B.1.6 Verify compliance with A.1.6 and list possible exceptions.

A.1.7 All the accounts, books, ledgers and financial and other records of the Company are held or stored in means which are under the exclusive ownership and control of the Company and have at all times been properly and accurately kept and completed in all material respects, record all matters required to be entered therein by law, do not contain or reflect any material inaccuracies or discrepancies and give and reflect a true and fair view of the financial, contractual and trading position of the Company. 1 A seller may be reluctant to give this warranty in respect of all “former members” especially if it bought the company from someone else.

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SCHEDULES

A.2

The Shares

A.2.1 The Shares constitute the whole of the issued and outstanding share capital of the Company and are fully paid.

B.2.1 Verify that the share capital has been fully paid in. Verify the structure of the share capital under the relevant jurisdiction. There is jurisdiction where there is no difference between issued and authorised share capital.

A.2.2 No person is entitled or has claimed to be entitled to require the Company to issue any share or loan capital either now or at any future date whether contingently or not.

B.2.2 Verify that the Company has issued no bonds or other instruments. Verify there are no share warrants or bearer shares in existence.

A.2.3 There is no option, right of pre-emption, requirement for prior shareholder consent 2, right to acquire, mortgage, charge, pledge, lien or other form of security or encumbrance on, over or affecting any of the Shares, nor is there any commitment to give or create any of the foregoing, and no person has claimed to be entitled to any of the foregoing.

B.2.3 Check the bylaws of the Company, agreements of the shareholder or the Company with third parties or specific provisions of law (succession rights, mandatory pre– emption rights, etc.).

A.2.4 The Seller is the full legal and beneficial owner of the shares and is entitled to sell and procure the transfer of the full legal and beneficial ownership in the Shares to the Buyer on the terms set out in this agreement.

B.2.4 In addition to the circumstances described above, verify the share certificates, their endorsements, the share register, the entries with the public registers, the adoption of possible resolutions from either the shareholders’ meeting or the board of directors, voting rights.

A.2.5 The Company has not at any time: (a) repaid, redeemed or purchased any shares of any class of its share capital or otherwise reduced its issued share capital; or (b) directly or indirectly provided any illegal financial assistance for the purpose of the acquisition of shares of the Company or any holding company of the Company or for the purpose of reducing or discharging any liability incurred in any such acquisition.

B.2.5 Verify compliance with A.2.5

A.3

The Seller

A.3.1 The Seller has full power and capacity to enter into and perform this Agreement.

B.3.1 Verify that no personal or family circumstances may affect the right to sell of the Seller (e.g. marital status).

A.3.2 This Agreement does not constitute a breach on the part of the Seller in relation to any agreement or commitment with a third party. No consent, approval or filing with any governmental or other authority relating exclusively to the Seller is required to authorise this Agreement or to permit the transactions contemplated herein.

B.3.2 Ensure that the signature of this Agreement may not give rise to a claim by a third party against the buyer for having caused the seller to breach previous commitments.

2 Verify whether or not the corporate documents provide for a prior shareholder consent.

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ICC MODEL MERGERS AND ACQUISITIONS CONTRACT (I - SHARE PURCHASE AGREEMENT)

A.4

Accounts

A.4.1 The Accounts comply in all material respects with all applicable laws and regulations. A.4.2 The Accounts comply with and have at all times been prepared in accordance with the generally accepted accounting principles and practices in the country where the Company is incorporated.

B.4.2 Verify compliance with A.4.2. Verify whether the accounting principles adopted by the Company may be considered as “generally accepted accounting principles and practices”. Verify that the accounts comply with such principles.

A.4.3 The accounting principles and practices (including methods of valuation) adopted for the Accounts and all items therein are the same as those adopted in preparing the audited accounts of the Company for its three preceding accounting reference periods. A.4.4 The Accounts give a true and fair view of the assets and liabilities as at the Accounts Date, and of the profits and losses throughout the financial period to which the Accounts relate 3.

A.5

B.4.4 Verify compliance with A.4.4.

Position since the Accounts Date

A.5.1 Since the Accounts Date: (a) the Company has conducted its business in a normal and proper manner; (b) the Company has not entered into any unusual contract or commitment or otherwise departed from its normal course of trading; (c) there has been no material deterioration in the order intake the order backlog, cash position including working capital, or work in progress; (d) the Company has paid its creditors within the times agreed with them and in particular, without limiting the foregoing, no debt owed by the Company has been outstanding for more than [ ] days from the date of invoice; (e) save in the ordinary course of business, the Company has not given any Guarantee or indemnity or entered into a contract or suretyship or agreement for the postponement of debt (or security therefore) or for lien or set-off; and (f) the Company is not in default under the terms of any borrowing made by it.

4

B.5.1 Verify compliance with A.5.1. Particular attention must be paid to possible new businesses undertaken, and to agreements having a lower profitability entered into to maintain the level of turnover or to gather new customers or to keep trading positions.

3 Consider a similar warranty in relation to previous audited accounts of the Company. 4 If a significant period of time has elapsed since the date of the last audited account, then consider an appropriate warranty in relation to the management account or financial statements since that date.

40

SCHEDULES

A.5.2 Since the Accounts Date, the Company has not: (a) agreed to acquire or sell any business; or (b) disposed of any of its assets except in the ordinary and normal course of business; or (c) incurred any capital commitment in excess of [ ] A.5.3 All payments, receipts and invoices of the Company since the Accounts Date have been accurately recorded in the books of the Company in all material respects.

B.5.3 Verify compliance with A.5.3.

A.5.4 The Company since the Accounts Date has not declared, made or paid any dividends or other distribution except as provided in the Accounts 5.

A.6

Receivables

A.6.1 All receivables have arisen from ordinary transactions and will be collected at their relevant payment terms in the ordinary course of collection.

B.6.1 Verify the status of collection of receivables also with reference to the adequacy of the provisions for bad and doubtful debts included in the Accounts.

A.6.2 The Company has not factored or discounted any of its receivables.

B.6.2 Verify compliance with A.6.2.

A.6.3 The company is not owed any individual sum of money in excess of [ ] other than in the ordinary course of business.

B.6.3 Verify compliance with A.6.3.

A.7

Taxes

A.7.1 All taxation of any nature whatsoever for which the Company has been liable or for which the Company has been liable to account has been duly paid (insofar as such taxation ought to have been paid) and/or adequate provisions and accruals have been accounted for. Without prejudice to the generality of the foregoing, the Company has made all such deductions, withholdings and retentions as it was obliged or entitled to make and all such payments as should have been made. All necessary information, notices, accounts, statements, reports, computations, assessments and returns which ought to have been made or given have been properly and duly submitted by the Company to the competent authorities and all information, notices, computations, assessments and returns submitted by the Company have been and are true and accurate in all material respects and are not the subject of any material dispute, nor are likely to become the subject of any material dispute with such authorities.

B.7.1 Verify compliance with A.7.1.

5 If the Company being sold holds a lot of stocks, it could be worth putting in a warranty that stock has not materially changed.

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ICC MODEL MERGERS AND ACQUISITIONS CONTRACT (I - SHARE PURCHASE AGREEMENT)

A.7.2 The Company has not within the past 24 months received any notice of enquiry or suffered any enquiry, investigation, audit or visit by the relevant tax authorities, and neither the Seller nor the Company is aware of any such enquiry, investigation, audit or visit planned for the next 12 months.

B.7.2 Verify compliance with A.7.2.

A.7.3 The provision or reserve for tax in the Accounts is sufficient to cover all liabilities of the Company for tax as at the Accounts Date and all tax for which the Company may after the Accounts Date become or have become liable in respect of or by reference to: (a) any income profits or gains for any period which ended on or before the Accounts Date; or (b) any distributions made on or before the Accounts Date or provided for in the Accounts; or (c) any event occurring on or before the Accounts Date.

B.7.3 Verify compliance with A.7.3.

A.7.4 Full potential provision has been made and shown (or disclosed by way of note) in the Accounts for deferred taxation.

B.7.4 Verify compliance with A.7.4.

A.7.5 The Company has not in the period of three years ending on the date of this Agreement been party to any nonarm’s length transaction.

B.7.5 Verify compliance with A.7.5.

A.8

Subsidiaries

A.8.1 The Company: (a) has never had any subsidiary; (b) has not since its incorporation been a subsidiary of any company; and (c) holds no shares in the capital of any other company.

A.9

Real Estates

A.9.1 The Company legitimately owns or uses the Real Estates, which are listed hereunder [fill in as appropriate], is the legal and beneficial owner or occupier in possession of each of the Real Estates and is in exclusive occupation of any of them. There are no circumstances that may prevent the Company, upon Closing, from owning and using the Real Estates as they currently are. All Real Estates that are owned by the Company are free of any Encumbrances.

42

B.8.1 Verify compliance with B.8.1 and list possible exceptions.

B.9.1 Verify the title of each Real Estate, the absence of third parties’ rights, whether or not resulting from public registries. Verify that there are no encumbrances, also with reference to possible rights claimed by the tax authorities (e.g. due to succession). Verify that there are no limitations to the possibility for a company owned by a foreign entity to maintain property on lands and buildings.

SCHEDULES

A.9.2 The Company has not received any notice or order affecting any Real Estates or their relevant use nor is it aware of any circumstance which might form the basis for any such notice or order. There are no proposals on the part of any authority which would adversely affect any Real Estates including, without limitation, those relating to compulsory purchase or public utility works.

B.9.2 Verify compliance with A.9.2.

A.9.3 All Real Estates which are leased or licensed by the Company are held on the basis of validly and existing agreements and there are no circumstances under which any such agreements may be terminated before their term or declared null and void. The Company has always timely made all payments due under the relevant agreements.

B.9.3 Verify compliance with A.9.3. In particular, verify that the lease agreements do not provide for termination clauses in case of change in control of the Company.

A.9.4 The Company has obtained all necessary permits, licenses and authorisations to use the Real Estates 6 as they currently are. The Real Estates fully comply with all zoning or planning rules and regulations.

B.9.4 Verify compliance with A.9.4.

A.9.5 The Company does not use or occupy or have any interest in any land and/or buildings other than the Real Estates.

B.9.5 Verify compliance with A.9.5.

A.10

Environmental Matters

A.10.1 The Company: (a) complies and has at all relevant times complied with all Environmental Laws and Environmental Licences 7; (b) has obtained and maintained in full force and effect all Environmental Licences, and there are no conditions, facts or circumstances which could endanger the continuance or renewal of such Environmental License.

B.10.1 Verify compliance with A.10.1. Due to the possible difficulties in attributing the responsibility for actions having an impact on these warranties, the parties will have to determine who will bear the risk of events whose causes may not be clearly assessed. The parties may for example fix a special threshold for the liability of the seller. They may also appoint an independent expert for analysing the environmental conditions and determining the remedy costs: closing could then be conditional on the remedy cost not exceeding a certain amount or on the Seller’s obligation to bear the difference.

A.10.2 No claim in relation to environmental matters has been made in writing or so far as the Seller is aware threatened against the Company or any occupier of any property at any time owned or leased by the Company.

B.10.2 Verify compliance with A.10.2.

6 The parties should consider whether it would be appropriate to include specific warranties related to the physical conditions of the Real Estates. 7 This Warranty may be appropriate in some circumstances. However, the parties may agree to delete this warranty and to rely on an environmental survey commissioned by the Buyer or Seller, especially if there are “dirty” sites involved.

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ICC MODEL MERGERS AND ACQUISITIONS CONTRACT (I - SHARE PURCHASE AGREEMENT)

A.10.3 There are attached details (including, where appropriate copies of relevant reports or other documents) of any investigations, or analyses in relation to environmental matters relating to the Company or any property now or previously owned, leased or occupied by the Company which are in the possession or come to the notice of the Seller.

B.10.3 Verify compliance with A.10.3. This clause has of course a considerable impact on the actions that the parties may take within the framework of B.10.1.

A.10.4 The company has complied with all its obligations with mandatory to required inspections, studies, audits, tests, reviews, etc.

B.10.4 Verify compliance with A.10.4.

A.10.5 There are attached in B.10.5, a list of all Environmental Licences, orders, notices and reports and any other materials, written communications relating to or in connection with any Environmental Licence.

B.10.5 Verify compliance with A.10.5.

A10.6 None of the Real Estates have been contaminated by any hazardous substance in breach of applicable Environmental Law.

B.10.6 Verify compliance with A.10.6.

A.11

Assets

A.11.1 The Company owns all the assets reflected in the Accounts, free and clear from any Encumbrance or right of any third party.

B.11.1 Fill in as appropriate. Verify compliance with A.11.1.

A.11.2 All tangible assets used in connection with the business of the Company belong to or are legitimately used by the Company and are in the possession and under the control of the Company.

B.11.2 Verify that no assets of the Company are at third parties’ premises, in which event the regular keeping of appropriate ledgers should be verified.

A.11.3 All tangible assets used in connection with the business of the Company are free from any option, lease, hire or hire purchase agreement, agreement for payment on deferred terms or Encumbrances whatsoever and there are no agreements or arrangements restricting the freedom of the Company to use or dispose of the same as it thinks fit.

B.11.3 Verify compliance with A.11.3 and provide a list of all the assets that are used by the Company under lease agreements or other agreements. In addition verify that no securities have been granted on the assets owned or used by the Company.

A.11.4 All tangible assets with a book value in excess of ] of the Company are in reasonable [(amount) condition given fair wear and tear 8. They comply with all environmental, safety, health and any other applicable rules and regulations concerning their use and maintenance.

B.11.4 Verify compliance with A.11.4. This clause is connected with other warranties in relation to environmental matters, health and safety at work and labour matters. The parties should therefore check the consistency between the different warranties.

8 It may be sensible to delete the first sentence of A.11.4, for example if the business carried on by the Company is manufacturing it could be industry practice to run certain equipment down to the ground.

44

SCHEDULES

A.11.5 The assets, whether tangible or intangible, owned and lawfully used by the Company comprise all the assets necessary to continue to operate the business of the Company in the same manner and to the same extent as the operation of the business of the Company immediately prior to Closing.

A.12

B.11.5 Verify compliance with A.11.5.

Insurance

A.12.1 All the assets and undertaking of the Company of an insurable nature are and have at all times been insured in amounts representing their full replacement or reinstatement value against risks normally insured against by persons carrying on the same classes of business as those carried on by the Company, and the Company is now and has at all times been adequately covered against accident, damage, injury, third-party loss, product liability, warranty claims, loss of profits and other risks normally covered by insurance by persons carrying on the same classes of business as those carried on by the Company.

B.12.1 Verify compliance with A.12.1. In particular the seller must consider on the basis of the activity carried output by the Company, and the risks that are of an insurable nature, and check whether these have been adequately covered.

A.12.2 Summary particulars of all insurances maintained by the Company and details of all insurance claims outstanding and which have been made within 12 months prior to Closing are set out in B.12.1.

B.12.2 Attach list made according to A.12.2.

A.12.3 All insurances maintained by the Company are and have at all relevant times been in force and no claims have been made by the Company against its insurers or are contemplated or outstanding.

B.12.3 Verify compliance with A.12.3 and list all possible claims made on the insurers or other relevant matters regarding A.12.3.

A.12.4 All insurance premiums in respect of all insurances maintained by the Company are fully paid and up-todate.

A.13

Bank Accounts

A.13.1 The Seller has set out in B.13.1 full details of all of the Company’s investment, deposit and bank accounts and details of the banks and other financial institutions at which they are kept.

B.13.1 Attach list made according to A.13.1.

A.13.2 Seller has set out in B.13.2 full details of all overdraft, loan and other financial facilities available to the Company and no person who provides any of those facilities has given any indication that they are considering withdrawing or altering any of such facilities.

B.13.2 Attach list made according to A.13.2 and list possible exceptions.

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ICC MODEL MERGERS AND ACQUISITIONS CONTRACT (I - SHARE PURCHASE AGREEMENT)

A.13.3 Neither the Seller nor the Company has done or omitted to do anything whereby the continuance of the facilities referred to in B.13.2 above may be prejudiced or affected.

B.13.3 Verify compliance with A.13.3 and list all possible claims made on the insurers or other relevant matters regarding A.13.3.

A.13.4 The Seller has set out in B.13.4 full details of all outstanding borrowings and other indebtedness of the Company other than amounts owed to trade creditors.

B.13.4 Attach list made according to A.13.4 and list possible exceptions.

A.13.5 There are no unpresented cheques drawn by the Company otherwise than in the normal course of dealing.

B.13.5 Verify compliance with A.13.5.

A.13.6 The financial position of the Company as at three days preceding the date of this Agreement reflects the existence of immediately disposable cash and items disposable at short term as follows: (i) Credit balance with banks: […] (ii) Term deposit: […] (iii) Cash accounts: […] (iv) Short-term receivables: […] Such amounts of cash or disposable items have not been modified other than as required in the ordinary course of business since that date.

B.13.6 Verify compliance with A.13.6.

A.13.7 The Company, its directors, employees and agents have at all times complied with all material terms and conducted business in accordance with all material requirements laid down by the banks and any other sources of finance used by the Company (see A.14.2).

B.13.7 Verify compliance with A.13.7.

A.14

Conduct of Business, Commercial Contracts and Joint Ventures

A.14.1 The Company is not a party to: (a) any agreements or arrangements (whether executed or executory) entered into by the Company otherwise than by way of bargain at arm’s length or otherwise than in the ordinary course of business; or (b) any contracts or transactions which involve obligations of an unusual, onerous or long-term nature.

B.14.1 Verify compliance with A.14.1 and indicate possible exceptions.

A.14.2 The Seller has set out under B.14.2 full details of all powers of attorney given by the Company or any other authority (express or implied) by which any person may enter into any contract or commitment on behalf of the Company. There are no powers of attorney other than those listed thereunder.

B.14.2 Attach list made according to A.14.2.

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SCHEDULES

A.14.3 The Company has never been and is not party to any joint venture, consortium or partnership agreement or a member of any unincorporated association.

B.14.3 Verify compliance with A.14.3 and indicate possible exceptions 9.

A.14.4 The Company is not in material breach of any arrangement or contract to which it is a party. No event or omission has occurred which would entitle any third party to terminate prematurely any contract to which the Company is a party or call in any money before the date on which payment thereof would normally be due.

B.14.4 Verify compliance with A.14.4.

A.14.5 There is no claim against and there are no circumstances which may lead to a claim against the Company for defective products, services, or breach of representation, warranty, condition, or for delays in delivery, or completion of contracts, or for deficiencies of design or performance relating to liability for products or services sold or supplied by the Company.

B.14.5 Verify compliance with A.14.5.

A.14.6 After Closing whether by reason of an existing agreement or arrangement or as a result of the acquisition of the Shares by the Buyer or otherwise: (a) no material supplier of the Company will cease or be entitled to cease supplying the Company or substantially to reduce its supplies to the Company; (b) no material customer, supplier or other third party with whom the Company deals will cease or be entitled to cease to deal with the Company or substantially to reduce its existing level of business with the Company; (c) no other contracts where the Company is a party to may be terminated by the other party.

B.14.6 Verify compliance with A.14.7. Check in particular contracts with major suppliers and customers and other contracts, for instance, agency, distributorship, licenses, etc.

A.14.7 Not more than 20 per cent in value of purchases by the Company are placed in any year with any one supplier and not more than 20 per cent in value of sales by the Company are made in any year to any one customer10.

B.14.7 Verify compliance with A.14.7.

A.14.8 The Company’s stock and stock-in-trade is currently at a normal level, and is capable of being sold by the Company in the ordinary course of its business. Slowmoving or obsolete items have been adequately devaluated.

B.14.8 Verify compliance with A.14.8 and check whether the Company has adopted consistent criteria in view of depreciating slow-moving or obsolete items. The parties should agree on the accounting treatment of slowmoving and obsolete stock.

A.14.9 The Company has sufficient working capital for the purposes of continuing to carry on its business in its present form and at its present level of turnover for the foreseeable future and for the purposes of executing, carrying out and fulfilling in accordance with their terms all orders, projects and contractual obligations which have been placed with or undertaken by it.

B.14.9 Verify compliance with A.14.9.

9 All clubs and trade associations need to be disclosed. 10 The percentages in this Warranty will depend on the type of business.

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A.14.10 The Company has obtained all licences, permits and permissions required for the carrying on of its business and such licences and permissions are in full force and effect and there are no conditions, facts or circumstances which could endanger the continuance or renewal of such licences or permissions.

B.14.10 Verify compliance with A.14.10 and indicate possible exceptions.

A.14.11 The Company has no branch, place of business or substantial assets outside the Company’s country of registration or any permanent establishment in any foreign country that may give rise to taxation of income or property of the Company in such foreign country or subject to regulatory supervision.

B.14.11 Verify compliance with A.14.11.

A.14.12 The Company has not given any gifts, bribes or inducements to any person during the period of one year prior to the date hereof.

B.14.12 Verify compliance with A.14.12.

A.14.13 All material details and copies of contracts for all sources of current revenue of the Company in excess of [ ] per annum are attached at B.14.13.

B.14.13 Verify compliance with A.14.10 and indicate possible exceptions.

A.15

Agency and Distribution Agreements

A.15.1 The Seller has set out in B.15.1 full details (including the relevant contracts, if made in writing) of all commercial agency, distributorship, occasional intermediaries and other similar contracts.

B.15.1 Attach list made according to A.15.1 with annexed the relevant contracts. In this context parties should decide if the above contracts should continue or if they should be terminated by the Company (e.g. if the buyer has an existing distribution network) and, in the latter case, who should bear the respective costs. In this case, the parties should also check if the agreements contain post-contractual non-competition obligations for the agent/distributor.

A.15.2 The Company has complied in all material respects at all times with all obligations arising out of the above agreements and any relevant provisions of the applicable law.

B.15.2 Verify compliance with A.15.2.

A.16

Personnel

A.16.1 The Company has in relation to each of its employees, managers and directors (and, so far as relevant, to each of its former employees, managers and directors) complied with:

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B.16.1 Verify compliance with B.16.1.

SCHEDULES

(a) obligations imposed on it by all statutes, regulations, codes of conduct and practice relevant to the relations between it and its employees, managers and directors (including without limitation any obligation concerning social security, data protection, health and safety) or any trade union or employee representatives; (b) all collective agreements, recognition agreements, customs and practices for the time being dealing with such relations or the conditions of service of its employees; and (c) all relevant orders and awards made under any relevant statute, regulation or code of conduct and practice affecting the conditions of service of its employees, managers and directors. A.16.2 Full and accurate particulars11 of the terms and conditions of employment of the employees, managers and directors (including the relevant contracts, if made in writing) including without limitation contractual terms of notice of the Company and a full list of all the employees of the Company including names, dates of commencement of employment, dates of birth, annual holiday entitlement and gender are set out by the Seller in B.16.2, and since the Accounts Date no change has been made nor agreed to be made in such terms and conditions of employment by the Company of any person and in particular since the Accounts Date no employee, manager or director of the Company has received or is entitled to receive from the Company any sum or any benefit greater than that received by him (or which he was entitled to receive) in respect of the accounting period ended on the Accounts Date.

B.16.2 Attach list made according to A.16.1 with annexed the relevant contracts and indicate possible exceptions. In case of standard contracts one copy will be sufficient.

A.16.3 The Company has not offered, promised or agreed for the future any variation in the contract of employment or contract for services of its employees, managers and directors (including but not limited to any increase in remuneration or benefits) or collective agreement, recognition agreement and customs and practices.

B.16.3 Verify compliance with A.16.3.

A.16.4 There are not in existence: (a) any service agreements or other contracts with employees, managers and directors of the Company which cannot be terminated by six months’ notice or less without giving rise to any claim for damages or compensation; or (b) any other contracts or arrangements of whatsoever kind (whether legally enforceable or not) between the Company and existing or former employees, managers and directors of the Company for the benefit of any existing or former employees, managers and directors; or

B.16.4 Verify compliance with A.16.4 and indicate possible exceptions. As to the possibility of terminating the contracts, check if 16.4 (a) is consistent which the applicable labour and company law (in certain countries termination without compensation is not permitted).

11 Consider altering Warranty so that just material particulars of employment terms need to be disclosed. Some employees may have unique or unusual conditions.

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(c) any consultancy agreements between the Company and any other person, firm or company; or (d) any arrangements by which any person has the use of any credit or charge card or account for which the Company is responsible. A.16.5 There are no arrangements to which the Company is a party involving share options, profit sharing or bonus, incentive or other similar payments for employees, managers and directors.

B.16.5 Verify compliance with A.16.5.

A.16.6 There is no actual or threatened dispute between the Company and any of its current or former employees, managers and directors, nor any circumstances likely to give rise to any such dispute; there have been no strikes or industrial action (official or unofficial) by any of the Company’s employees, managers and directors during the period of six years immediately preceding the Accounts Date.

B.16.6 Verify compliance with A.16.6 and indicate possible exceptions.

A.16.7 There is no outstanding claim against the Company on the part of any person who has been or is its employee, manager or director or any actual or known liability to make any payment to reinstate, reengage or take or refrain from any action in relation to any person including under all the applicable laws.

B.16.7 Verify compliance with A.16.7 and indicate possible exceptions.

A.16.8 Within a period of three years preceding the date hereof the Company has not: (a) given notice of any redundancies to the competent authorities or started consultations with any trade union or unions or employee representation under any applicable laws; or (b) failed to comply with any duty to inform and consult any trade unions or employee, manager and director representatives.

B.16.8 Verify compliance with A.16.8 and indicate possible exceptions.

A.16.9 The Company has not made any loan or advance to any of its employees, managers and directors, which remains outstanding.

B.16.9 Verify compliance with A.16.9 and indicate possible exceptions.

A.16.10 There are no arrangements, whether contractual or otherwise, entitling any of the employees, managers and directors of the Company to any payments by the Company or other benefits from the Company arising from the sale or disposal of the Sale Shares.

B.16.10 Verify compliance with A.16.10 and indicate possible exceptions.

A.16.11 The Seller has set out in B.16.11 full particulars of any outstanding offer of employment made to any person by the Company, and there is no person who has accepted such an offer in writing but whose employment has not yet started.

B.16.11 Attach list made according to A.16.11 with annexed the relevant offers (if made in writing).

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A.16.12 No employee, manager or director has been given notice to terminate, or is under notice of termination of, his contract of employment nor are there any grounds to believe that any employee, manager or director may give, or may be given, notice to terminate his contract of employment with the Company.

B.16.12 Verify compliance with A.16.12 and indicate possible exceptions.

A.16.13 The Company has no maternity, paternity or training schemes (whether legally enforceable or not) that vary the rights granted to an employee by law.

B.16.13 Verify compliance with A.16.13.

A.16.14 No employee, manager or director has within 12 months of the date of this Agreement received an increase or change in remuneration of more than 5 per cent.

B.16.14 Verify compliance with A.16.14.

A.16.15 The Seller has set out in B.16.15 a list of key employees, managers and directors together with their relevant obligations not to leave the company for a period of [ ] years and not to render their services in favour of an entity competing with the Company for a period of [ ] years after their legitimate leave.

B.16.15 The parties should assess whether there is any key personnel and in such event check whether the commitments mentioned under A.16.5 are possible under the applicable law. A possible alternative is to provide that the Seller prior to closing procures any such commitments.

A.16.16 All payments, bonuses and other forms of remuneration due to the employees and directors of the Company have been paid and are up-to-date. A.16.17 All part-time, temporary and fixed-term employees of the Company enjoy the same benefits as full-time employees of the Company.

A.17

Pensions

A.17.1 There are no agreements, customs or practices (whether legally enforceable or not) in operation at the date hereof for the payment of or contribution towards any pensions, pension plans, allowances, or other benefits on retirement or on death or during periods of sickness or disablement for the benefit of any of the Company’s employees, managers or directors, or former employees, managers or directors nor has any proposal to establish any such agreement been announced 12.

A.18

B.17.1 Verify compliance with A.17.1. In particular verify the nature and structure of contributions made by the Company during the period of the employment agreements (e.g. payments to social security, differed compensations, etc.), it being understood that this type of payments should be excluded. In the event that pension plans are in force, specific and appropriate provisions should deal with the matter.

Intellectual Property Rights

A.18.1 The Seller has set out in B.18.1 full particulars of all Intellectual Property Rights owned by or licensed to it.

B.18.1 Attach list made according to A.18.1 with annexed all certificates and agreements which exist in writing.

12 If there are pension schemes then specialist advice should be sought.

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A.18.2 The Company owns or is validly licensed to use all Intellectual Property Rights relating to products manufactured by it or on its behalf or used by it in connection with its business free from all liens, charges or other securities or Encumbrances whatsoever.

B.18.2 Verify compliance with A.18.2 and indicate possible exceptions.

A.18.3 All the Intellectual Property Rights are valid and in full force and effect, and all relevant renewal or other fees have been paid on their respective due dates.

B.18.3 Verify compliance with A.18.3 and indicate possible exceptions.

A.18.4 There are no existing contracts under which the Company grants to any third party any rights in or over the Intellectual Property Rights nor has the Company disclosed, save in the ordinary course of business, any know-how or confidential information comprised in the Intellectual Property Rights. A.18.5 The Company has not infringed and no person for whose acts or omission the Company is liable has infringed the Intellectual Property Rights of any other person, firm or company, nor has any other party claimed that any such infringement by the Company or any such person has occurred. A.18.6 Neither the Seller nor the Company are party to any nondisclosure agreements and similar agreements other than those disclosed as B.18.6 for the purposes of this Agreement which may restrict the use or disclosure of the Intellectual or Industrial Property rights, confidential information or the Company’s products.

A.19

B.18.4 Verify compliance with A.18.4 and indicate possible exceptions.

B.18.5 Verify compliance with A.18.5.

B.18.6 Verify compliance with A.18.6 and indicate possible exceptions 13.

Litigation

A.19.1 The Company is not engaged in any litigation (whether criminal, civil, administrative or tax), arbitration, alternative dispute resolution process and there are no facts or circumstances likely to give rise to such litigation, arbitration, or any alternative dispute resolution process nor is there any litigation, arbitration or dispute resolution process threatened against the Company. No injunction has been served against the Company and the Company has given no undertaking to any Court or to any third party arising out of any legal proceedings.

B.19.1 Verify compliance with A.19.1 and indicate possible exceptions. It may be appropriate to exclude from A.19.1 certain small claims (like routine debt collection), provided that their aggregate amount is not material considering the size of the business.

13 Potentially by disclosing such matters contractual obligations in confidential agreements will be breached. Consider this when advising on the disclosure of such items as it is illegal under English law to encourage someone to break a contractual obligation/commit an illegal act. If such acts are disclosed they should be disclosed at the last minute.

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SCHEDULES

A.19.2 The Company has not received notification that it has violated any requirement of any applicable laws, any ruling penalty or sanction which could adversely affect the business or financial condition of the Company and in particular, no violation of any law or regulation relating to Tax, health and safety, consumer protection, employment, industrial or labour relations, competition or the Environment.

B.19.2 Verify compliance with A.19.2.

A.19.3 No person for whose acts and defaults the Company may be vicariously liable is at present engaged whether as claimant, defendant or otherwise in any legal action, proceeding or arbitration which is either in progress, threatened or pending and relevant to the Company.

B.19.3 For example, if an employee runs someone over in a Company vehicle the driver could be personally liable and the Company could be vicariously liable.

A.19.4 There is no outstanding enforceable arbitral award, judgment or Court Order in favour of or against the Company.

B.19.4 Verify compliance with A.19.4 and indicate possible exceptions.

A.20

Grants

A.20.1 The Seller has set out in B.20.1 full particulars of all grants, subsidies, subsidised loans and other similar facilities. A.20.2 The Company has not done or omitted to do anything as a result of which any of such grants, subsidies, subsidy loans and other similar facilities, as well as any payment (whether made on a provisional or final basis and whether partial or in full) made or to be made to the Company, plans or other undertakings on the part of the relevant entity may be terminated, cancelled or revoked, whether in full or in part, nor there are any circumstances under which the Company may be obliged to reimburse, in whole or in part, any sums or other facilities received.

A.21

B.20.1 Attach list made according to A.20.1 with annexed all relevant agreements and indicate possible exceptions. B.20.2 Verify compliance with A.20.2.

Special Contracts and Arrangements

A.21.1 The Seller has set out in B.21.1 full particulars of all agreements, practices and arrangements to which the Company is a party, which are registerable with any relevant authority. All these agreements have been correctly registered and there are no further agreements that require a registration or any other kind of filing with any authority or third party.

B.21.1 Attach list made according to A.21.1 with annexed all relevant agreements.

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ICC MODEL MERGERS AND ACQUISITIONS CONTRACT (I - SHARE PURCHASE AGREEMENT)

A.22

Transactions with Shareholders or Directors

A.22.1 No transactions or contracts (with the exception of directors’ service agreements and employment contracts) have been entered into during the three years prior to the date of this Agreement to which the Company is a party in which a shareholder in or director of the Company or any person connected with a shareholder in or director of the Company has been interested whether directly or indirectly.

B.22.1 Verify compliance with A.22.1. In particular, verify matters which may give rise to a conflict of interest (e.g. agreements with companies where the directors or their relatives or spouses are shareholders or have different kind of interests, are employees, consultants, directors, etc.).

A.22.2 No monies are owed by the Company to any director of the Company or to the Seller or to any person connected with any such director or the Seller or to any company or partnership in which any of such directors or the Seller (or their spouses) are directly or indirectly interested other than as holders of listed securities.

B.22.2 Verify compliance with B.22.2. In particular, verify payments due under the agreements mentioned under B.22.1 above, or outstanding amounts which are due to the directors with reference to their respective offices and activities.

A.22.3 The Company has no debts owed to any of its directors or the Seller (or a person connected with any such director or the Seller) or by any company in which the directors of the Company or the Seller (or any person connected with any of them) are directly or indirectly interested (other than as holders of listed securities); nor do the Seller or any of the Company’s directors (or any person connected with any of them) or any such company as aforesaid have any claims against the Company including claims for compensation for loss of office or for unfair dismissal or redundancy payment.

B.22.3 Verify compliance with A.22.3.

A.23

Competition Matters

A.23.1 The Company has not received notification by any competent antitrust or competition authority that it is, or has been party to, or concerned in any agreement, arrangement, understanding or concerted practice, which: (a) infringes any competition rule including, without prejudice to the generality of the foregoing, any rule relating to state aid, public procurement, or antidumping; or (b) constitutes a breach of any term or condition of any licence, authorisation, appointment, code or similar instrument applicable to the Company and business.

B.23.1 Verify compliance with B.23.1 and list possible exceptions.

A.23.2 The Company is not subject to any publication, order, condition, undertaking or similar measure or obligation imposed by or under any of the laws referred to in A.23.1.

B.23.2 Verify compliance with B.23.2 and list possible exceptions.

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SCHEDULES

A.23.3 The Company has not received notification that it is, nor has been, subject to any investigation, request for information, notice or other communication by any court, governmental or regulatory authority pursuant to any of the laws referred to in A.23.1.

B.23.3 Verify compliance with B.23.3 and list possible exceptions.

A.23.4 The Company has no reason to believe that any such action as is mentioned in A.23.1 will be taken against it in relation to any of its current activities.

B.23.4 Verify compliance with B.23.4 and list possible exceptions.

A.23.5 The Company is not a party to, nor has it entered into any kind of commitment or agreement which may in any manner limit its activity.

A.23.5 Verify compliance with A.23.5 and list possible exceptions. In particular, verify possible provisions under license, agency and distribution agreements, agreements with reference to grants or any other kind of financial facilities, etc.

A.24

Information Technology Systems

A.24.1 The Seller has set out in B.24.1 copies of all the agreements required to use, support, maintain and/or develop all components of the computer systems (including all Licenses, development agreements, software maintenance and support agreements, hardware maintenance agreements, source code escrow agreements and disasterrecovery agreements).

B.24.1 Attach list made according to B.45.1. It could be advisable to agree on a materiality threshold (e.g. by matter or system), to avoid attaching irrelevant documents.

A.24.2 The Company has not breached any of its obligations under any of the agreements referred to in B.24.1; those agreements all remain in full force and effect as at Closing and no notice has been served by any party to terminate any of those agreements.

B.24.2 Verify compliance with B.24.2 and list possible exceptions.

A.24.3 Save as stated in the agreements referred to in A.24.1, the Company is not restricted in any way in using the computer systems (whether by way of a technical device or otherwise).

B.24.3 Verify compliance with A.24.2 and list possible exceptions. For instance, should the Company be a manufacturer where the core business (or a significant part thereof) is represented by activities covered under license agreements, the Seller should verify whether the relevant License agreements or other relevant agreements set forth restrictions to the ability of the Company to use possible parts of the computer systems in connection with the change in control of the Company.

A.24.4 The use of the computer systems by the Company does not, and the continued use of the computer systems by the Buyer after Closing will not, infringe the Intellectual Property rights of any third party.

B.24.4 Verify compliance with B.24.4 and list possible exceptions.

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ICC MODEL MERGERS AND ACQUISITIONS CONTRACT (I - SHARE PURCHASE AGREEMENT)

A.24.5 The Company has exclusive control of the operation of the computer systems and of the storage, processing and retrieval of all data stored on the computer systems, and solely the Company owns any Intellectual Property rights in such data.

B.24.5 Verify compliance with B.24.5 and list possible exceptions.

A.24.6 All Intellectual Property Rights in the developed software are owned by the Company and the Company has in its possession an up-to-date, useable and complete copy of the source code for all developed software together with copies of all programmers’ commentaries and technical documentation required to allow the continuing maintenance and development of that software by the Buyer.

B.24.6 Verify compliance with B.24.6 and list possible exceptions.

A.24.7 The computer systems have adequate functionality, capability and capacity for the present requirements of the Company, and each part of the computer systems is compatible with each other part14.

B.24.7 Verify compliance with B.24.7 and list possible exceptions.

A.24.8 The computer systems have not been used to hold or process data in any manner that contravenes the applicable laws.

B.24.8 Verify compliance with B.24.8 and list possible exceptions.

A.25

Effect of this Agreement

A.25.1 Compliance with the terms of this Agreement does not and will not: (a) conflict with or result in a breach of or constitute a default under any of the terms, conditions or provisions of any agreement or instrument to which the Company is a party or any provision of the Memorandum or Articles of Association of the Company or any lease, contract, order, judgement, award, injunction, regulation, encumbrance, restriction or obligation of any kind or character by which or to which any asset of the Company is bound or subject; or (b) relieve any person from any obligation to the Company (whether contractual or otherwise) or enable any person to determine any such obligation or any right or benefit enjoyed by the Company or to exercise any right, whether under an agreement with or otherwise in respect of the Company; or (c) result in the creation, crystallisation or enforcement of any encumbrance whatsoever on any of the assets of the Company; or (d) result in any present indebtedness of the Company becoming due or capable of being declared due and payable prior to its stated maturity.

B.25.1 Verify compliance with B.25.1 and list possible exceptions.

NOTE: Change of control clauses in existing contracts will need to be disclosed.

14 This Warranty may not be appropriate as it quickly becomes out of date.

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Appendix

UNIDROIT Principles

of international commercial contracts* PREAMBLE – PURPOSE OF THE PRINCIPLES These Principles set forth general rules for international commercial contracts. They shall be applied when the parties have agreed that their contract be governed by them. They may be applied when the parties have agreed that their contract be governed by “general principles of law”, the “lex mercatoria” or the like. They may provide a solution to an issue raised when it proves impossible to establish the relevant rule of the applicable law. They may be used to interpret or supplement international uniform law instruments. They may serve as a model for national and international legislators. CHAPTER 1 – GENERAL PROVISIONS ARTICLE 1.1. (FREEDOM OF CONTRACT) The parties are free to enter into a contract and to determine its content. ARTICLE 1.2. (NO FORM REQUIRED) Nothing in these Principles requires a contract to be concluded in or evidenced by writing. It may be proved by any means, including witnesses. ARTICLE 1.3. (BINDING CHARACTER OF CONTRACT) A contract validly entered into is binding upon the parties. It can only be modified or terminated in accordance with its terms or by agreement or as otherwise provided in these Principles. ARTICLE 1.4. (MANDATORY RULES) Nothing in these Principles shall restrict the application of mandatory rules, whether of national, international or supranational origin, which are applicable in accordance with the relevant rules of private international law. ARTICLE 1.5. (EXCLUSION OR MODIFICATION BY THE PARTIES) The parties may exclude the application of these Principles or derogate from or vary the effect of any of their provisions, except as otherwise provided in the Principles. ARTICLE 1.6. (INTERPRETATION AND SUPPLEMENTATION OF THE PRINCIPLES) 1. In the interpretation of these Principles, regard is to be had to their international character and to their purposes including the need to promote uniformity in their application. 2. Issues within the scope of these Principles but not expressly settled by them are as far as possible to be settled in accordance with their underlying general principles. ARTICLE 1.7. (GOOD FAITH AND FAIR DEALING) 1. Each party must act in accordance with good faith and fair dealing in international trade. 2. The parties may not exclude or limit this duty.

(*)

Reproduced with the permission of UNIDROIT. The integral version of the UNIDROIT Principles contains not only the black letter rules here reproduced but also comments on each article and, where appropriate, illustrations. The integral version of the UNIDROIT Principles is available on UNIDROIT website (http://www.unidroit.org/english/principles/contents.htm).

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ARTICLE 1.8. (USAGES AND PRACTICES) 1. The parties are bound by any usage to which they have agreed and by any practices which they have established between themselves. 2. The parties are bound by a usage that is widely known to and regularly observed in international trade by parties in the particular trade concerned except where the application of such usage would be unreasonable. ARTICLE 1.9. (NOTICE) 1. Where notice is required it may be given by any means appropriate to the circumstances. 2. A notice is effective when it reaches the person to whom it is given. 3. For the purpose of paragraph 2 a notice “reaches” a person when given to that person orally or delivered at that person’s place or business or mailing address. 4. For the purpose of this article “notice” includes a declaration, demand, request or any other communication of intention. ARTICLE 1.10. (DEFINITIONS) – In these Principles – “court” includes an arbitral tribunal; – where a party has more than one place of business the relevant “place of business” is that which has the closest relationship to the contract and its performance having regard to the circumstances known to or contemplated by the parties at any time before or at the conclusion of the contract; – “obligor” refers to the party who is to perform an obligation and “obligee” refers to the party who is entitled to performance of that obligation. – “writing” means any mode of communication that preserves a record of the information contained therein and is capable of being reproduced in tangible form. CHAPTER 2 – FORMATION ARTICLE 2.1. (MANNER OF FORMATION) A contract may be concluded either by the acceptance of an offer or by conduct of the parties that is sufficient to show agreement. ARTICLE 2.2. (DEFINITION OF OFFER) A proposal for concluding a contract constitutes an offer if it is sufficiently definite and indicates the intention of the offeror to be bound in case of acceptance. ARTICLE 2.3. (WITHDRAWAL OF OFFER) 1. An offer becomes effective when it reaches the offeree. 2. An offer, even if it is irrevocable, may be withdrawn if the withdrawal reaches the offeree before or at the same time as the offer. ARTICLE 2.4. (REVOCATION OF OFFER) 1. Until a contract is concluded an offer may be revoked if the revocation reaches the offeree before it has dispatched an acceptance. 2. However, an offer cannot be revoked a) if it indicates, whether by stating a fixed time for acceptance or otherwise, that it is irrevocable; or b) if it was reasonable for the offeree to rely on the offer as being irrevocable and the offeree has acted in reliance on the offer. ARTICLE 2.5. (REJECTION OF OFFER) An offer is terminated when a rejection reaches the offeror.

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APPENDIX: UNIDROIT PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS

ARTICLE 2.6. (MODE OF ACCEPTANCE) 1. A statement made by or other conduct of the offeree indicating assent to an offer is an acceptance. Silence or inactivity does not in itself amount to acceptance. 2. An acceptance of an offer becomes effective when the indication of assent reaches the offeror. 3. However, if, by virtue of the offer or as a result of practices which the parties have established between themselves or of usage, the offeree may indicate assent by perfoming an act without notice to the offeror, the acceptance is effective when the act is performed. ARTICLE 2.7. (TIME OF ACCEPTANCE) An offer must be accepted within the time the offeror has fixed or, if no time is fixed, within a reasonable time having regard to the circumstances, including the rapidity of the means of communication employed by the offeror. An oral offer must be accepted immediately unless the circumstances indicate otherwise. ARTICLE 2.8. (ACCEPTANCE WITHIN A FIXED PERIOD OF TIME) 1. A period of time for acceptance fixed by the offeror in a telegram or a letter begins to run from the moment the telegram is handed in for dispatch or from the date shown on the letter or, if no such date is shown, from the date shown on the envelope. A period of time for acceptance fixed by the offeror by means of instantaneous communication begins to run from the moment that the offer reaches the offeree. 2. Official holidays or non-business days occurring during the period for acceptance are included in calculating the period. However, if a notice of acceptance cannot be delivered at the address of the offeror on the last day of the period because that day falls on an official holiday or a non-business day at the place of business of the offeror, the period is extended until the first business day which follows. ARTICLE 2.9. (LATE ACCEPTANCE. DELAY IN TRANSMISSION) 1. A late acceptance is nevertheless effective as an acceptance if without undue delay the offeror so informs the offeree or gives notice to that effect. 2. If a letter or other writing containing a late acceptance shows that it has been sent in such circumstances that if its transmission had been normal it would have reached the offeror in due time, the late acceptance is effective as an acceptance unless, without undue delay, the offeror informs the offeree that it considers the offer as having lapsed. ARTICLE 2.10. (WITHDRAWAL OF ACCEPTANCE) An acceptance may be withdrawn if the withdrawal reaches the offeror before or at the same time as the acceptance would have become effective. ARTICLE 2.11. (MODIFIED ACCEPTANCE) 1. A reply to an offer which purports to be an acceptance but contains additions, limitations or other modifications is a rejection of the offer and constitutes a counter-offer. 2. However, a reply to an offer which purports to be an acceptance but contains additional or different terms which do not materially alter the terms of the offer constitutes an acceptance, unless the offeror, without undue delay, objects to the discrepancy. If the offeror does not object, the terms of the contract are the terms of the offer with the modifications contained in the acceptance. ARTICLE 2.12. (WRITINGS IN CONFIRMATION) If a writing which is sent within a reasonable time after the conclusion of the contract and which purports to be a confirmation of the contract contains additional or different terms, such terms become part of the contract, unless they materially alter the contract or the recipient, without undue delay, objects to the discrepancy.

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ARTICLE 2.13. (CONCLUSION OF CONTRACT DEPENDENT ON AGREEMENT ON SPECIFIC MATTERS OR IN A SPECIFIC FORM) Where in the course of negotiations one of the parties insists that the contract is not concluded until there is agreement on specific matters or in a specific form, no contract is concluded before agreement is reached on those matters or in that form. ARTICLE 2.14. (CONTRACT WITH TERMS DELIBERATELY LEFT OPEN) 1. If the parties intend to conclude a contract, the fact that they intentionally leave a term to be agreed upon in further negotiations or to be determined by a third person does not prevent a contract from coming into existence. 2. The existence of the contract is not affected by the fact that subsequently a) the parties reach no agreement on the term; or b) the third person does not determine the term, provided that there is an alternative means of rendering the term definite that is reasonable in the circumstances, having regard to the intention of the parties. ARTICLE 2.15. (NEGOTIATIONS IN BAD FAITH) 1. A party is free to negotiate and is not liable for failure to reach an agreement. 2. However, a party who negotiates or breaks off negotiations in bad faith is liable for the losses caused to the other party. 3. It is bad faith, in particular, for a party to enter into or continue negotiations when intending not to reach an agreement with the other party. ARTICLE 2.16. (DUTY OF CONFIDENTIALITY) Where information is given as confidential by one party in the course of negotiations, the other party is under a duty not to disclose that information or to use it improperly for its own purposes, whether or not a contract is subsequently concluded. Where appropriate, the remedy for breach of that duty may include compensation based on the benefit received by the other party. ARTICLE 2.17. (MERGER CLAUSES) A contract in writing which contains a clause indicating that the writing completely embodies the terms on which the parties have agreed cannot be contradicted or supplemented by evidence of prior statements or agreements. However, such statements or agreements may be used to interpret the writing. ARTICLE 2.18. (WRITTEN MODIFICATION CLAUSES) A contract in writing which contains a clause requiring any modification or termination by agreement to be in writing may not be otherwise modified or terminated. However, a party may be precluded by its conduct from asserting such a clause to the extent that the other party has acted in reliance on that conduct. ARTICLE 2.19. (CONTRACTING UNDER STANDARD TERMS) 1. Where one party or both parties use standard terms in concluding a contract, the general rules on formation apply, subject to Articles 2.20–2.22. 2. Standard terms are provisions which are prepared in advance for general and repeated use by one party and which are actually used without negotiation with the other party. ARTICLE 2.20. (SURPRISING TERMS) 1. No term contained in standard terms which is of such a character that the other party could not reasonably have expected it, is effective unless it has been expressly accepted by that party. 2. In determining whether a term is of such a character regard shall be had to its content, language and presentation.

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ARTICLE 2.21. (CONFLICT BETWEEN STANDARD TERMS AND NON-STANDARD TERMS) In case of conflict between a standard term and a term which is not a standard term the latter prevails. ARTICLE 2.22. (BATTLE OF FORMS) Where both parties use standard terms and reach agreement except on those terms, a contract is concluded on the basis of the agreed terms and of any standard terms which are common in substance unless one party clearly indicates in advance, or later and without undue delay informs the other party, that it does not intend to be bound by such a contract. CHAPTER 3 – VALIDITY ARTICLE 3.1. (MATTERS NOT COVERED) These Principles do not deal with invalidity arising from a) lack of capacity; b) lack of authority; c) immorality or illegality. ARTICLE 3.2. (VALIDITY OF MERE AGREEMENT) A contract is concluded, modified or terminated by the mere agreement of the parties, without any further requirement. ARTICLE 3.3. (INITIAL IMPOSSIBILITY) 1. The mere fact that at the time of the conclusion of the contract the performance of the obligation assumed was impossible does not affect the validity of the contract. 2. The mere fact that at the time of the conclusion of the contract a party was not entitled to dispose of the assets to which the contract relates does not affect the validity of the contract. ARTICLE 3.4. (DEFINITION OF MISTAKE) Mistake is an erroneous assumption relating to facts or to law existing when the contract was concluded. ARTICLE 3.5. (RELEVANT MISTAKE) 1. A party may only avoid the contract for mistake if, when the contract was concluded, the mistake was of such importance that a reasonable person in the same situation as the party in error would only have concluded the contract on materially different terms or would not have concluded it at all if the true state of affairs had been known, and a) the other party made the same mistake, or caused the mistake, or knew or ought to have known of the mistake and it was contrary to reasonable commercial standards of fair dealing to leave the mistaken party in error; or b) the other party had not at the time of avoidance acted in reliance on the contract. 2. However, a party may not avoid the contract if a) it was grossly negligent in committing the mistake; or b) the mistake relates to a matter in regard to which the risk of mistake was assumed or, having regard to the circumstances, should be borne by the mistaken party. ARTICLE 3.6. (ERROR IN EXPRESSION OR TRANSMISSION) An error occurring in the expression or transmission of a declaration is considered to be a mistake of the person from whom the declaration emanated. ARTICLE 3.7. (REMEDIES FOR NON-PERFORMANCE) A party is not entitled to avoid the contract on the ground of mistake if the circumstances on which that party relies afford, or could have afforded, a remedy for non-performance.

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ARTICLE 3.8. (FRAUD) A party may avoid the contract when it has been led to conclude the contract by the other party’s fraudulent representation, including language or practices, or fraudulent non-disclosure of circumstances which, according to reasonable commercial standards of fair dealing, the latter party should have disclosed. ARTICLE 3.9. (THREAT) A party may avoid the contract when it has been led to conclude the contract by the other party’s unjustified threat which, having regard to the circumstances, is so imminent and serious as to leave the first party no reasonable alternative. In particular, a threat is unjustified if the act or omission with which a party has been threatened is wrongful in itself, or it is wrongful to use it as a means to obtain the conclusion of the contract. ARTICLE 3.10. (GROSS DISPARITY) 1. A party may avoid the contract or an individual term of it if, at the time of the conclusion of the contract, the contract or term unjustifiably gave the other party an excessive advantage. Regard is to be had, among other factors, to a) the fact that the other party has taken unfair advantage of the first party’s dependence, economic distress or urgent needs, or of its improvidence, ignorance, inexperience or lack of bargaining skill; and b) the nature and purpose of the contract. 2. Upon the request of the party entitled to avoidance, a court may adapt the contract or term in order to make it accord with reasonable commercial standards of fair dealing. 3. A court may also adapt the contract or term upon the request of the party receiving notice of avoidance, provided that that party informs the other party of its request promptly after receiving such notice and before the other party has acted in reliance on it. The provisions of Article 3.13 (2) apply accordingly. ARTICLE 3.11. (THIRD PERSONS) 1. Where fraud, threat, gross disparity or a party’s mistake is imputable to, or is known or ought to be known by, a third person for whose acts the other party is responsible, the contract may be avoided under the same conditions as if the behaviour or knowledge had been that of the party itself. 2. Where fraud, threat or gross disparity is imputable to a third person for whose acts the other party is not responsible, the contract may be avoided if that party knew or ought to have known of the fraud, threat or disparity, or has not at the time of avoidance acted in reliance on the contract. ARTICLE 3.12. (CONFIRMATION) If the party entitled to avoid the contract expressly or impliedly confirms the contract after the period of time for giving notice of avoidance has begun to run, avoidance of the contract is excluded. ARTICLE 3.13. (LOSS OF RIGHT TO AVOID) 1. If a party is entitled to avoid the contract for mistake but the other party declares itself willing to perform or performs the contract as it was understood by the party entitled to avoidance, the contract is considered to have been concluded as the latter party understood it. The other party must make such a declaration or render such performance promptly after having been informed of the manner in which the party entitled to avoidance had understood the contract and before that party has acted in reliance on a notice of avoidance. 2. After such a declaration or performance the right to avoidance is lost and any earlier notice of avoidance is ineffective. ARTICLE 3.14. (NOTICE OF AVOIDANCE) The right of a party to avoid the contract is exercised by notice to the other party.

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ARTICLE 3.15. (TIME LIMITS) 1. Notice of avoidance shall be given within a reasonable time, having regard to the circumstances, after the avoiding party knew or could not have been unaware of the relevant facts or became capable of acting freely. 2. Where an individual term of the contract may be avoided by a party under Article 3.10, the period of time for giving notice of avoidance begins to run when that term is asserted by the other party. ARTICLE 3.16. (PARTIAL AVOIDANCE) Where a ground of avoidance affects only individual terms of the contract, the effect of avoidance is limited to those terms unless, having regard to the circumstances, it is unreasonable to uphold the remaining contract. ARTICLE 3.17. (RETROACTIVE EFFECT OF AVOIDANCE) 1. Avoidance takes effect retroactively. 2. On avoidance either party may claim restitution of whatever it has supplied under the contract or the part of it avoided, provided that it concurrently makes restitution of whatever it has received under the contract or the part of it avoided or, if it cannot make restitution in kind, it makes an allowance for what it has received. ARTICLE 3.18. (DAMAGES) Irrespective of whether or not the contract has been avoided, the party who knew or ought to have known of the ground for avoidance is liable for damages so as to put the other party in the same position in which it would have been if it had not concluded the contract. ARTICLE 3.19. (MANDATORY CHARACTER OF THE PROVISIONS) The provisions of this Chapter are mandatory, except insofar as they relate to the binding force of mere agreement, initial impossibility or mistake. ARTICLE 3.20. (UNILATERAL DECLARATIONS) The provisions of this Chapter apply with appropriate adaptations to any communication of intention addressed by one party to the other. CHAPTER 4 – INTERPRETATION ARTICLE 4.1. (INTENTION OF THE PARTIES) 1. A contract shall be interpreted according to the common intention of the parties. 2. If such an intention cannot be established, the contract shall be interpreted according to the meaning that reasonable persons of the same kind as the parties would give to it in the same circumstances. ARTICLE 4.2. (INTERPRETATION OF STATEMENTS AND OTHER CONDUCT) 1. The statements and other conduct of a party shall be interpreted according to that party’s intention if the other party knew or could not have been unaware of that intention. 2. If the preceding paragraph is not applicable, such statements and other conduct shall be interpreted according to the meaning that a reasonable person of the same kind as the other party would give to it in the same circumstances. ARTICLE 4.3. (RELEVANT CIRCUMSTANCES) In applying Articles 4.1 and 4.2, regard shall be had to all the circumstances, including a) preliminary negotiations between the parties; b) practices which the parties have established between themselves; c) the conduct of the parties subsequent to the conclusion of the contract;

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d) the nature and purpose of the contract; e) the meaning commonly given to terms and expressions in the trade concerned; f) usages. ARTICLE 4.4. (REFERENCE TO CONTRACT OR STATEMENT AS A WHOLE) Terms and expressions shall be interpreted in the light of the whole contract or statement in which they appear. ARTICLE 4.5. (ALL TERMS TO BE GIVEN EFFECT) Contract terms shall be interpreted so as to give effect to all the terms rather than to deprive some of them of effect. ARTICLE 4.6. (CONTRA PROFERENTEM RULE) If contract terms supplied by one party are unclear, an interpretation against that party is preferred. ARTICLE 4.7. (LINGUISTIC DISCREPANCIES) Where a contract is drawn up in two or more language versions which are equally authoritative there is, in case of discrepancy between the versions, a preference for the interpretation according to a version in which the contract was originally drawn up. ARTICLE 4.8. (SUPPLYING AN OMITTED TERM) 1. Where the parties to a contract have not agreed with respect to a term which is important for a determination of their rights and duties, a term which is appropriate in the circumstances shall be supplied. 2. In determining what is an appropriate term regard shall be had, among other factors, to a) the intention of the parties; b) the nature and purpose of the contract; c) good faith and fair dealing, d) reasonableness. CHAPTER 5 – CONTENT ARTICLE 5.1. (EXPRESS AND IMPLIED OBLIGATIONS) The contractual obligations of the parties may be express or implied. ARTICLE 5.2. (IMPLIED OBLIGATIONS) Implied obligations stem from a) the nature and purpose of the contract; b) practices established between the parties and usages; c) good faith and fair dealing; d) reasonableness. ARTICLE 5.3. (CO-OPERATION BETWEEN THE PARTIES) Each party shall co-operate with the other party when such co-operation may reasonably be expected for the performance of that party’s obligations. ARTICLE 5.4. (DUTY TO ACHIEVE A SPECIFIC RESULT. DUTY OF BEST EFFORTS) 1. To the extent that an obligation of a party involves a duty to achieve a specific result, that party is bound to achieve that result. 2. To the extent that an obligation of a party involves a duty of best efforts in the performance of an activity, that party is bound to make such efforts as would be made by a reasonable person of the same kind in the same circumstances.

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ARTICLE 5.5. (DETERMINATION OF KIND OF DUTY INVOLVED) In determining the extent to which an obligation of a party involves a duty of best efforts in the performance of an activity or a duty to achieve a specific result, regard shall be had, among other factors, to a) the way in which the obligation is expressed in the contract; b) the contractual price and other terms of the contract; c) the degree of risk normally involved in achieving the expected result; d) the ability of the other party to influence the performance of the obligation. ARTICLE 5.6. (DETERMINATION OF QUALITY OF PERFORMANCE) Where the quality of performance is neither fixed by, nor determinable from, the contract a party is bound to render a performance of a quality that is reasonable and not less than average in the circumstances. ARTICLE 5.7. (PRICE DETERMINATION) 1. Where a contract does not fix or make provision for determining the price, the parties are considered, in the absence of any indication to the contrary, to have made reference to the price generally charged at the time of the conclusion of the contract for such performance in comparable circumstances in the trade concerned or, if no such price is available, to a reasonable price. 2. Where the price is to be determined by one party and that determination is manifestly unreasonable, a reasonable price shall be substituted notwithstanding any contract term to the contrary. 3. Where the price is to be fixed by a third person, and that person cannot or will not do so, the price shall be a reasonable price. 4. Where the price is to be fixed by reference to factors which do not exist or have ceased to exist or to be accessible, the nearest equivalent factor shall be treated as a substitute. ARTICLE 5.8. (CONTRACT FOR AN INDEFINITE PERIOD) A contract for an indefinite period may be ended by either party by giving notice a reasonable time in advance. CHAPTER 6 – PERFORMANCE Section 1 – Performance in General ARTICLE 6.1.1. (TIME OF PERFORMANCE) A party must perform its obligations: a) if a time is fixed by or determinable from the contract, at that time; b) if a period of time is fixed by or determinable from the contract, at any time within that period unless circumstances indicate that the other party is to choose a time; c) in any other case, within a reasonable time after the conclusion of the contract. ARTICLE 6.1.2. (PERFORMANCE AT ONE TIME OR IN INSTALMENTS) In cases under Article 6.1.1(b) or (c), a party must perform its obligations at one time if that performance can be rendered at one time and the circumstances do not indicate otherwise. ARTICLE 6.1.3. (PARTIAL PERFORMANCE) 1. The obligee may reject an offer to perform in part at the time performance is due, whether or not such offer is coupled with an assurance as to the balance of the performance, unless the obligee has no legitimate interest in so doing. 2. Additional expenses caused to the obligee by partial performance are to be borne by the obligor without prejudice to any other remedy. ARTICLE 6.1.4. (ORDER OF PERFORMANCE) 1. To the extent that the performances of the parties can be rendered simultaneously, the parties are bound to render them simultaneously unless the circumstances indicate otherwise.

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2. To the extent that the performance of only one party requires a period of time, that party is bound to render its performance first, unless the circumstances indicate otherwise. ARTICLE 6.1.5. (EARLIER PERFORMANCE) 1. The obligee may reject an earlier performance unless it has no legitimate interest in so doing. 2. Acceptance by a party of an earlier performance does not affect the time for the performance of its own obligations if that time has been fixed irrespective of the performance of the other party’s obligations. 3. Additional expenses caused to the obligee by earlier performance are to be borne by the obligor, without prejudice to any other remedy. ARTICLE 6.1.6. (PLACE OF PERFORMANCE) 1. If the place of performance is neither fixed by, nor determinable from, the contract, a party is to perform: a) a monetary obligation, at the obligee’s place of business; b) any other obligation, at its own place of business. 2. A party must bear any increase in the expenses incidental to performance which is caused by a change in its place of business subsequent to the conclusion of the contract. ARTICLE 6.1.7. (PAYMENT BY CHEQUE OR OTHER INSTRUMENT) 1. Payment may be made in any form used in the ordinary course of business at the place for payment. 2. However, an obligee who accepts, either by virtue of paragraph (1) or voluntarily, a cheque, any other order to pay or a promise to pay, is presumed to do so only on condition that it will be honoured. ARTICLE 6.1.8. (PAYMENT BY FUNDS TRANSFER) 1. Unless the obligee has indicated a particular account, payment may be made by a transfer to any of the financial institutions in which the obligee has made it known that it has an account. 2. In case of payment by a transfer the obligation of the obligor is discharged when the transfer to the obligee’s financial institution becomes effective. ARTICLE 6.1.9. (CURRENCY OF PAYMENT) 1. If a monetary obligation is expressed in a currency other than that of the place for payment, it may be paid by the obligor in the currency of the place for payment unless a) that currency is not freely convertible; or b) the parties have agreed that payment should be made only in the currency in which the monetary obligation is expressed. 2. If it is impossible for the obligor to make payment in the currency in which the monetary obligation is expressed, the obligee may require payment in the currency of the place for payment, even in the case referred to in paragraph (1) (b). 3. Payment in the currency of the place for payment is to be made according to the applicable rate of exchange prevailing there when payment is due. 4. However, if the obligor has not paid at the time when payment is due, the obligee may require payment according to the applicable rate of exchange prevailing either when payment is due or at the time of actual payment. ARTICLE 6.1.10. (CURRENCY NOT EXPRESSED) Where a monetary obligation is not expressed in a particular currency, payment must be made in the currency of the place where payment is to be made. ARTICLE 6.1.11. (COSTS OF PERFORMANCE) Each party shall bear the costs of performance of its obligations.

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ARTICLE 6.1.12. (IMPUTATION OF PAYMENTS) 1. An obligor owing several monetary obligations to the same obligee may specify at the time of payment the debt to which it intends the payment to be applied. However, the payment discharges first any expenses, then interest due and finally the principal. 2. If the obligor makes no such specification, the obligee may, within a reasonable time after payment, declare to the obligor the obligation to which it imputes the payment, provided that the obligation is due and undisputed. 3. In the absence of imputation under paragraphs (1) or (2), payment is imputed to that obligation which satisfies one of the following criteria and in the order indicated: a) an obligation which is due or which is the first to fall due; b) the obligation for which the obligee has least security; c) the obligation which is the most burdensome for the obligor; d) the obligation which has arisen first. If none of the preceding criteria applies, payment is imputed to all the obligations proportionally. ARTICLE 6.1.13. (IMPUTATION OF NON-MONETARY OBLIGATIONS) Article 6.1.12 applies with appropriate adaptations to the imputation of performance of non-monetary obligations. ARTICLE 6.1.14. (APPLICATION FOR PUBLIC PERMISSION) Where the law of a State requires a public permission affecting the validity of the contract or its performance and neither that law nor the circumstances indicate otherwise a) if only one party has its place of business in that State, that party shall take the measures necessary to obtain the permission; b) in any other case the party whose performance requires permission shall take the necessary measures. ARTICLE 6.1.15. (PROCEDURE IN APPLYING FOR PERMISSION) 1. The party required to take the measures necessary to obtain the permission shall do so without undue delay and shall bear any expenses incurred. 2. That party shall whenever appropriate give the other party notice of the grant or refusal of such permission without undue delay. ARTICLE 6.1.16. (PERMISSION NEITHER GRANTED NOR REFUSED) 1. If, notwithstanding the fact that the party responsible has taken all measures required, permission is neither granted nor refused within an agreed period or, where no period has been agreed, within a reasonable time from the conclusion of the contract, either party is entitled to terminate the contract. 2. Where the permission affects some terms only, paragraph (1) does not apply if, having regard to the circumstances, it is reasonable to uphold the remaining contract even if the permission is refused. ARTICLE 6.1.17. (PERMISSION REFUSED) 1. The refusal of a permission affecting the validity ot the contract renders the contract void. If the refusal affects the validity of some terms only, only such terms are void if, having regard to the circumstances, it is reasonable to uphold the remaining contract. 2. Where the refusal of a permission renders the performance of the contract impossible in whole or in part, the rules on non-performance apply.

Section 2 – Hardship ARTICLE 6.2.1. (CONTRACT TO BE OBSERVED) Where the performance of a contract becomes more onerous for one of the parties, that party is nevertheless bound to perform its obligations subject to the following provisions on hardship.

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ARTICLE 6.2.2. (DEFINITION OF HARDSHIP) There is hardship where the occurrence of events fundamentally alters the equilibrium of the contract either because the cost of a party’s performance has increased or because the value of the performance a party receives has diminished, and a) the events occur or become known to the disadvantaged party after the conclusion of the contract; b) the events could not reasonably have been taken into account by the disadvantaged party at the time of the conclusion of the contract; c) the events are beyond the control of the disadvantaged party; and d) the risk of the events was not assumed by the disadvantaged party. ARTICLE 6.2.3. (EFFECTS OF HARDSHIP) 1. In case of hardship the disadvantaged party is entitled to request renegotiations. The request shall be made without undue delay and shall indicate the grounds on which it is based. 2. The request for renegotiation does not in itself entitle the disadvantaged party to withhold performance. 3. Upon failure to reach agreement within a reasonable time either party may resort to the court. 4. If the court finds hardship it may, if reasonable, a) terminate the contract at a date and on terms to be fixed; or b) adapt the contract with a view to restoring its equilibrium. CHAPTER 7 – NON-PERFORMANCE Section 1 – Non-Performance in General ARTICLE 7.1.1. (NON-PERFORMANCE DEFINED) Non-performance is failure by a party to perform any of its obligations under the contract, including defective performance or late performance. ARTICLE 7.1.2. (INTERFERENCE BY THE OTHER PARTY) A party may not rely on the non-performance of the other party to the extent that such non-performance was caused by the first party’s act or omission or by another event as to which the first party bears the risk. ARTICLE 7.1.3. (WITHHOLDING PERFORMANCE) 1. Where the parties are to perform simultaneously, either party may withhold performance until the other party tenders its performance. 2. Where the parties are to perform consecutively, the party that is to perform later may withhold its pertormance until the first party has performed. ARTICLE 7.1.4. (CURE BY NON-PERFORMING PARTY) 1. The non-performing party may, at its own expense, cure any non-performance, provided that a) without undue delay, it gives notice indicating the proposed manner and timing of the cure; b) cure is appropriate in the circumstances; c) the aggrieved party has no legitimate interest in refusing cure; and d) cure is effected promptly. 2. The right to cure is not precluded by notice of termination. 3. Upon effective notice of cure, rights of the aggrieved party that are inconsistent with the nonperforming party’s performance are suspended until the time for cure has expired. 4. The aggrieved party may withhold performance pending cure. 5. Notwithstanding cure, the aggrieved party retains the right to claim damages for delay as well as for any harm caused or not prevented by the cure.

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ARTICLE 7.1.5. (ADDITIONAL PERIOD FOR PERFORMANCE) 1. In a case of non-performance the aggrieved party may by notice to the other party allow an additional period of time for performance. 2. During the additional period the aggrieved party may withhold performance of its own reciprocal obligations and may claim damages but may not resort to any other remedy. If it receives notice from the other party that the latter will not perform within that period, or if upon expiry of that period due performance has not been made, the aggrieved party may resort to any of the remedies that may be available under this Chapter. 3. Where in a case of delay in performance which is not fundamental the aggrieved party has given notice allowing an additional period of time of reasonable length, it may terminate the contract at the end of that period. If the additional period allowed is not of reasonable length it shall be extended to a reasonable length. The aggrieved party may in its notice provide that if the other party fails to perform within the period allowed by the notice the contract shall automatically terminate. 4. Paragraph (3) does not apply where the obligation which has not been performed is only a minor part of the contractual obligation of the non-performing party. ARTICLE 7. 1.6. (EXEMPTION CLAUSES) A clause which limits or excludes one party’s liability for non-performance or which permits one party to render performance substantially different from what the other party reasonably expected may not be invoked if it would be grossly unfair to do so, having regard to the purpose of the contract. ARTICLE 7.1.7. (FORCE MAJEURE) 1. Non-performance by a party is excused if that party proves that the non performance was due to an impediment beyond its control and that it could reasonably be expected to have taken the impediment into account at the time of conclusion of the contract or to have avoided or overcome it or its consequences. 2. When the impediment is only temporary, the excuse shall have effect for such period as is reasonable having regard to the effect of the impediment on the performance of the contract. 3. The party who fails to perform must give notice to the other party of the impediment and its effect on its ability to perform. If the notice is not received by the other party within a reasonable time after the party who fails to perform knew or ought to have known of the impediment, it is liable for damages resulting from such non receipt. 4. Nothing in this article prevents a party from exercising a right to terminate the contract or to withhold performance or request interest on money due.

Section 2 – Right to Performance ARTICLE 7.2.1. (PERFORMANCE OF MONETARY OBLIGATION) Where a party who is obliged to pay money does not do so, the other party may require payment. ARTICLE 7.2.2. (PERFORMANCE OF NON-MONETARY OBLIGATION) Where a party who owes an obligation other than one to pay money does not perform, the other party may require performance, unless a) performance is impossible in law or in fact; b) performance or, where relevant, enforcement is unreasonably burdensome or expensive; c) the party entitled to performance may reasonably obtain performance from another source; d) performance is of an exclusively personal character; or e) the party entitled to performance does not require performance within a reasonable time after it has, or ought to have, become aware of the non-performance.

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ARTICLE 7.2.3. (REPAIR AND REPLACEMENT OF DEFECTIVE PERFORMANCE) The right to performance includes in appropriate cases the right to require repair, replacement, or other cure of defective performance. The provisions of Articles 7.2.1 and 7.2.2 apply accordingly. ARTICLE 7.2.4. (JUDICIAL PENALTY) 1. Where the court orders a party to perform, it may also direct that this party pay a penalty if it does not comply with the order. 2. The penalty shall be paid to the aggrieved party unless mandatory provisions of the law ot the forum provide otherwise. Payment of the penalty to the aggrieved party does not exclude any claim for damages. ARTICLE 7.2.5. (CHANGE OF REMEDY) 1. An aggrieved party who has required performance of a non-monetary obligation and who has not received performance within a period fixed or otherwise within a reasonable period of time may invoke any other remedy. 2. Where the decision of a court for performance of a non-monetary obligation cannot be enforced, the aggrieved party may invoke any other remedy.

Section 3 – Termination ARTICLE 7.3.1. (RIGHT TO TERMINATE THE CONTRACT) 1. A party may terminate the contract where the failure of the other party to perform an obligation under the contract amounts to a fundamental non-performance. 2. In determining whether a failure to perform an obligation amounts to a fundamental non-performance regard shall be had, in particular, to whether a) the non-performance substantially deprives the aggrieved party of what it was entitled to expect under the contract unless the other party did not foresee and could not reasonably have foreseen such result; b) strict compliance with the obligation which has not been performed is of essence under the contract; c) the non-performance is intentional or reckless; d) the non-performance gives the aggrieved party reason to believe that it cannot rely on the other party’s future performance; e) the non-performing party will suffer disproportionate loss as a result of the preparation or performance if the contract is terminated. 3. In the case of delay the aggrieved party may also terminate the contract if the other party fails to perform before the time allowed it under Article 7.1.5 has expired. ARTICLE 7.3.2. (NOTICE OF TERMINATION) 1. The right of a party to terminate the contract is exercised by notice to the other party. 2. If performance has been offered late or otherwise does not conform to the contract the aggrieved party will lose its right to terminate the contract unless it gives notice to the other party within a reasonable time after it has or ought to have become aware of the offer or of the non-conforming performance. ARTICLE 7.3.3. (ANTICIPATORY NON-PERFORMANCE) Where prior to the date for performance by one of the parties it is clear that there will be a fundamental non-performance by that party the other party may terminate the contract. ARTICLE 7.3.4. (ADEQUATE ASSURANCE OF DUE PERFORMANCE) A party who reasonably believes that there will be a fundamental non-performance by the other party may demand adequate assurance of due performance and may meanwhile withhold its own performance. Where this assurance is not provided within a reasonable time the party demanding it may terminate the contract.

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APPENDIX: UNIDROIT PRINCIPLES OF INTERNATIONAL COMMERCIAL CONTRACTS

ARTICLE 7.3.5. (EFFECTS OF TERMINATION IN GENERAL) 1. Termination of the contract releases both parties from their obligation to effect and to receive future performance. 2. Termination does not preclude a claim for damages for non-performance. 3. Termination does not affect any provision in the contract for the settlement of disputes or any other term of the contract which is to operate even after termination. ARTICLE 7.3.6. (RESTITUTION) 1. On termination of the contract either party may claim restitution of whatever it has supplied, provided that such party concurrently makes restitution of whatever it has received. If restitution in kind is not possible or appropriate allowance should be made in money whenever reasonable. 2. However, if performance of the contract has extended over a period of time and the contract is divisible, such restitution can only be claimed for the period after termination has taken effect.

Section 4 – Damages ARTICLE 7.4.1. (RIGHT TO DAMAGES) Any non-performance gives the aggrieved party a right to damages either exclusively or in conjunction with any other remedies except where the non-performance is excused under these Principles. ARTICLE 7.4.2. (FULL COMPENSATION) 1. The aggrieved party is entitled to full compensation for harm sustained as a result of the non-performance. Such harm includes both any loss which it suffered and any gain of which it was deprived, taking into account any gain to the aggrieved party resulting from its avoidance of cost or harm. 2. Such harm may be non-pecuniary and includes, for instance, physical suffering or emotional distress. ARTICLE 7.4.3. (CERTAINTY OF HARM) 1. Compensation is due only for harm, including future harm, that is established with a reasonable degree of certainty. 2. Compensation may be due for the loss of a chance in proportion to the probability of its occurrence. 3. Where the amount of damages cannot be established with a sufficient degree of certainty, the assessment is at the discretion of the court. ARTICLE 7.4.4. (FORESEEABILITY OF HARM) The non-performing party is liable only for harm which it foresaw or could reasonably have foreseen at the time of the conclusion of the contract as being likely to result from its non-performance. ARTICLE 7.4.5. (PROOF OF HARM IN CASE OF REPLACEMENT TRANSACTION) Where the aggrieved party has terminated the contract and has made a replacement transaction within a reasonable time and in a reasonable manner it may recover the difference between the contract price and the price of the replacement transaction as well as damages for any further harm. ARTICLE 7.4.6. (PROOF OF HARM BY CURRENT PRICE) 1. Where the aggrieved party has terminated the contract and has not made a replacement transaction but there is a currernt price for the performance contracted for, it may recover the difference between the contract price and the price current at the time the contract is terminated as well as damages for any further harm. 2. Current price is the price generally charged for goods delivered or services rendered in comparable circumstances at the place where the contract should have been performed or, if there is no current price at that place, the current price at such other place that appears reasonable to take as a reference.

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ARTICLE 7.4.7. (HARM DUE IN PART TO AGGRIEVED PARTY) Where the harm is due in part to an act or omission of the aggrieved party or to another event as to which that party bears the risk, the amount of damages shall be reduced to the extent that these factors have contributed to the harm, having regard to the conduct of each of the parties. ARTICLE 7.4.8. (MITIGATION OF HARM) 1. The non-performing party is not liable for harm suffered by the aggrieved party to the extent that the harm could have been reduced by the latter party’s taking reasonable steps. 2. The aggrieved party is entitled to recover any expenses reasonably incurred in attempting to reduce the harm. ARTICLE 7.4.9. (INTEREST FOR FAILURE TO PAY MONEY) 1. If a party does not pay a sum of money when it falls due the aggrieved party is entitled to interest upon that sum from the time when payment is due to the time of payment whether or not the non-payment is excused. 2. The rate of interest shall be the average bank short-term lending rate to prime borrowers prevailing for the currency of payment at the place for payment, or where no such rate exists at that place, then the same rate in the State of the currency of payment. In the absence of such a rate at either place the rate of interest shall be the appropriate rate fixed by the law of the State of the currency of payment. 3. The aggrieved party is entitled to additional damages if the non-payment caused it a greater harm. ARTICLE 7.4.10. (INTEREST ON DAMAGES) Unless otherwise agreed, interest on damages for non-performance of non-monetary obligations accrues as from the time of non-performance. ARTICLE 7.4.11. (MANNER OF MONETARY REDRESS) 1. Damages are to be paid in a lump sum. However, they may be payable in instalments where the nature of the harm makes this appropriate. 2. Damages to be paid in instalments may be indexed. ARTICLE 7.4.12. (CURRENCY IN WHICH TO ASSESS DAMAGES) Damages are to be assessed either in the currency in which the monetary obligation was expressed or in the currency in which the harm was suffered, whichever is more appropriate. ARTICLE 7.4.13. (AGREED PAYMENT FOR NON-PERFORMANCE) 1. Where the contract provides that a party who does not perform is to pay a specified sum to the aggrieved party for such non-performance, the aggrieved party is entitled to that sum irrespective of its actual harm. 2. However, notwithstanding any agreement to the contrary the specified sum may be reduced to a reasonable amount where it is grossly excessive in relation to the harm resulting from the non-performance and to the other circumstances.

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ICC at a glance

ICC is the world business organization. It is the only representative body that speaks with authority on behalf of enterprises from all sectors in every part of the world. ICC’s purpose is to promote an open international trade and investment system and the market economy worldwide. It makes rules that govern the conduct of business across borders. It provides essential services, foremost among them the ICC International Court of Arbitration, the world’s leading institution of its kind. Within a year of the creation of the United Nations, ICC was granted consultative status at the highest level with the UN and its specialized agencies. Today ICC is the preferred partner of international and regional organizations whenever decisions have to be made on global issues of importance to business. Business leaders and experts drawn from ICC membership establish the business stance on broad issues of trade and investment policy as well as on vital technical or sectoral subjects. These include financial services, information technologies, telecommunications, marketing ethics, the environment, transportation, competition law and intellectual property, among others. ICC was founded in 1919 by a handful of far-sighted business leaders. Today it groups thousands of member companies and associations from over 130 countries. National committees in all major capitals coordinate with their membership to address the concerns of the business community and to put across to their governments the business views formulated by ICC. Some ICC Services n ICC International Court of Arbitration (Paris) n ICC International Centre for Expertise (Paris) n ICC World Chambers Federation (Paris) n ICC Institute of World Business Law (Paris) n ICC Centre for Maritime Co-operation (London) n ICC Commercial Crime Services (London), grouping: l The ICC Counterfeiting Intelligence Bureau l The ICC Commercial Crime Bureau l The ICC International Maritime Bureau ICC Publishing S.A. ICC Publishing, the publishing subsidiary of ICC, produces and sells the works of ICC commissions and experts as well as guides and corporate handbooks on a range of business topics. Some 100 titles – designed for anyone interested in international trade – are available from ICC Publishing. For more detailed information on ICC publications and on the above-listed activities, and to receive the programme of ICC events, please contact ICC Headquarters in Paris or the ICC national committee in your country.

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ICC MODEL MERGERS AND ACQUISITIONS CONTRACT (I - SHARE PURCHASE AGREEMENT)

Selected ICC publications E: English – F: French – D: German – S: Spanish – I: Italian – EF: bilingual edition – E-F: separate editions in each language ICC MODEL CONTRACTS SERIES

ICC Model Contract for the Turnkey Supply of an Industrial Plant (with CD-ROM)

This new title in the ICC series of model contracts covers a particular category of turnkey contract, one that is limited to the plant or production line and does not extend to items which “surround” the plant, such as buildings, supply of energy, etc. Turnkey contracts take a range of forms and at present no single model contract covers them all. This ICC model has special characteristics: the supplier’s main obligation is to supply the equipment and assist the purchaser during erection and start up; the supplier performs its obligations within facilities that are under the purchaser’s control; this model contract is generally governed by the rules on sale contracts. This model contract takes account of all of these specifics and contains enough flexibility for the parties to work out special situations for themselves.

E

120 pages

ISBN 92-842-1323-1

No. 653

ICC Model Commercial Agency Contract, 2nd edition (with CD-ROM)

Fully revised edition of a tried and tested ICC model that takes into account recent developments in the laws of agency, including Internet sales. Including a detailed introduction that explains the scope of the contract and its uses, this edition includes the following new appendices: EC Directive 86/653; the UNIDROIT Principles of International Commercial Contracts, plus a list of indications on national laws on commercial agency.

E-F

68 pages

ISBN 92-842-1313-4

No. 644

ICC Model International Sale Contract (with CD-ROM)

A flexible and clear model contract providing directions to sellers and buyers of manufactured goods. Allows users either to incorporate only the general conditions or to include the specific conditions, which set out standard terms common to all contracts with the ICC General Conditions of Sale. A diskette provides the text of the model, and useful annexes include the preambles of Incoterms 2000 and the United Nations Convention for the International Sale of Goods. Easy to use for first-time traders, but also providing the legal protection demanded by experienced practitioners. Electronic format also available from www.iccbooks.com.

E-F

64 pages

ISBN 92-842-1210-3

No. 556

ICC Model Distributorship Contract (sole importer-distributor) 2nd edition (with CD-ROM)

Distributorship contracts are one of the most frequently used means for organising the distribution of goods in a foreign country. Almost every company engaged in international trade has at least some agents abroad and so most exporters will at some stage be faced with drafting an international distributorship agreement. The revised edition takes into account important changes since the publication of the first model, particularly concerning the EC antitrust rules on vertical restraints, and the need to harmonize with the ICC Short Form Model Contract, published in 2001 (ICC publication 518).

E-F 74

68 pages

ISBN 92-842-1315-0

No. 646

SELECTED ICC PUBLICATIONS

INCOTERMS

Incoterms 2000

ICC’s standard definitions of trade terms.Incoterms 2000 describes and interprets the meaning of the 13 basic terms used in international sales contracts. These terms are regularly incorporated into sales contracts worldwide and have become part of the daily language of international trade. The 2000 edition contains many innovations in format and substance. It will provide importers, exporters, bankers, lawyers, and transport officials with a modern text reflecting the latest changes in the trading environment.

EF

272 pages

ISBN 92-842-1199-9

No. 560

ICC Guide to Incoterms 2000

Written by Professor Jan Ramberg, international expert, chair of the revision of Incoterms 2000 and author of Guide to Incoterms 1990, this clearly written and authoritative guide provides a term-by-term review of the new Incoterms, with commentary on each obligation of the seller and the buyer. The indispensable companion to the Incoterms 2000.

E-F

192 pages

ISBN 92-842-1269-3

No. 620

Incoterms 2000 Wall Chart

A full-colour chart, ideal for hanging on the office wall or for slotting into a file. Thanks to the clear illustration of the buyers’ and sellers’ responsibilities under each of the Incoterms, plus a list of the critical points, traders will find this the ideal tool for quick reference at a glance.

E

29.7 x 63 cm

No. 614

Incoterms 2000 Multimedia Expert

Available in single-user or LAN version, the Incoterms 2000 Multimedia Expert is a lively, interactive software designed to help you make sense of the 13 Incoterms 2000. Expert is not only an ideal visual tool for teachers and trainers, it is also a valuable everyday reference in the work place for those needing a detailed knowledge of Incoterms.

E

CD-Rom

ISBN 92-842-1280-4

No. 616

Incoterms 2000: a Forum of Experts

Four experts who drafted Incoterms 2000 describe the ins and outs of the new rules in this wordfor-word transcript of the ICC conference held to launch them. Providing an in-depth view into the changes in these important commercial terms, the experts discuss the following issues: an overview of the terms and how they have changed (or haven’t); Incoterms, transport procedures and techniques; Incoterms and customs clearance procedures; Incoterms and documentary practices. Each presentation is followed by a series of questions and answers. The perfect complement to help you fully understand the Incoterms.

E

128 pages

ISBN 92-842-1270-7

No. 617

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ICC MODEL MERGERS AND ACQUISITIONS CONTRACT (I - SHARE PURCHASE AGREEMENT)

TOOLS FOR TRADE

A to Z of International Trade

By Frank Reynolds More than a dictionary, A to Z doubles as a reference book, developing terms in context and showing how they interact. Including 2000 definitions and acronyms as well as website addresses, the dictionary’s thorough cross referencing system enables you to define a word from start to finish. And A to Z takes you further, with its nine “Focus on” sections, providing well-researched introductions on air transport, bank collections, e-commerce, Incoterms, insurance, letters of credit, sales contracts, liner vessel shipping and vessel chartering. A to Z helps you understand the language of international trade.

E

343 pages

ISBN 92-842-1277-4

No. 623

Guide to Export-Import Basics (2nd edition)

A fully revised edition of this ICC bestseller. Providing clear explanations of the core mechanics of trade, this guide takes a lucid look at the legal, financial, transport and e-commerce issues. Fully indexed, it also includes a handy glossary of the principal terms and abbreviations.

E

360 pages

ISBN 92-842-1309-6

No. 641

Key Words in International Trade (4th edition)

Over 3000 translations of the terms and abbreviations most commonly used in international law and commerce, taken from the fields of banking, transport, management, marketing, arbitration, trade, telecommunications and international organizations.

EFSDI

408 pages

ISBN 92-842-1187-5

HOW TO OBTAIN ICC PUBLICATIONS

ICC Publications are available from ICC national committees or councils which exist in nearly 80 countries or from:

ICC PUBLISHING S.A. 38, Cours Albert 1er, 75008 Paris France Tel: +33 1 49 53 29 23/28 89 Fax: +33 1 49 53 29 02 e-mail: [email protected]

ICC PUBLISHING, INC. 156 Fifth Avenue, Suite 417 New York, NY 10010 (U.S.A) Tel: +1 (212) 206 1150 Fax: +1 (212) 633 6025 e-mail: [email protected]

Interested in other ICC Publishing titles? Want to purchase on the Internet?

Go to www.iccbooks.com 76

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