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Pre-closing disputes in M&A

Pre-closing disputes in M&A. Setting the scene Prof. Henry Peter Warsaw, 13-14 May 2010. I. Main phases. Signing. Closing. Events. Time Line. Pre-signing. Post-signing. Pre-closing. Post-closing. Phases. Post-signing and pre-closing.

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Pre-closing disputes in M&A

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  1. Pre-closing disputes in M&A Setting the scene Prof. Henry Peter Warsaw, 13-14 May 2010

  2. I. Main phases Signing Closing Events Time Line Pre-signing Post-signing Pre-closing Post-closing Phases Post-signing and pre-closing

  3. II. Chronology (and logics) of the pre-closing phase • Buyer’s due diligence (data room) • (Audit) • Bidding • process • Signing • Closing Facts • (Vendor’s due diligence) • (Binding) • offer • Negotiations Time Line • Confidentiality/ exclusivity agreement (s) • Purchase • agreement • (SPA) Docs./ clauses • Information • memorandum • Closing condition(s) (precedent) • Letter of intent

  4. III. Possible disputes • Procedural • Applicable law • Jurisdiction • Valid arbitration clause ? • Interim relief: where and what ? • Merit: where and what ? • Specific performance • Pre-signing: order to sign ? • Post-signing / pre-closing: order to close ? • Order to disclose ?

  5. III. Possible disputes • Merit • Letter of intent • Binding ? • Obligation to negotiate / act in good faith (culpa in contrahendo) ? • Obligation to inform ? • Type of damages • Benefit of the deal (“positive” interest in the performance of the contract) • Reliance damages (“negative” interest in the entering into the contract)

  6. Peterlegal SAAttorneys-at-Law and Notaries PublicVia Canonica 5 - P.O. Box 62806901 LuganoSwitzerlandTel. +41 91 910 19 00 - Fax +41 91 910 19 01henry.peter@peterlegal.comwww.peterlegal.com

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