Mr. Juan P. Morillo
Mr. Philippe Pinsolle
Mr. David M. Orta
Mr. Daniel Pulecio-Boek
Mr. Lucas Loviscek
Quinn Emanuel Urquhart & Sullivan, LLP
1300 I Street, NW, Suite 900
Washington, DC 20005, USA
Tel. +1 202 538 8000
Fax +1 202 538 8100
c/o Cainvest and Trust Limited
103 South Church Street
PO Box 1353
Grand Cayman KY1 1108, Cayman Islands
Responding Party 3 is a company incorporated under the laws of Germany.
Section 10.4 Jurisdiction, Service of Process and Waiver of Jury Trial. Subject to Section 2.2(c), Section 2.7 and Section 6.20, any dispute, claim or controversy resulting from, relating to or arising out of this Agreement, including the breach, termination enforcement, interpretation or validity thereof, shall be submitted to final and binding arbitration administered by the International Court of Arbitration of the International Chamber of Commerce ("ICC") in accordance with its Rules of Arbitration then in effect ("Rules"), except as modified herein.
(a) There shall be three (3) arbitrators, of whom the claimant, or claimants jointly, shall nominate one, and the respondent, or respondents jointly, shall nominate another, in each case within twenty (20) days of the date of delivery of the request for arbitration. The two party-nominated arbitrators shall appoint the third arbitrator, who shall be the president of the tribunal, within thirty (30) days of the date of confirmation of the appointment of the second arbitrator. If, for any reason, any arbitrator is not timely nominated as provided herein, then such arbitrator, or the tribunal if required under the Rules, shall be appointed by the ICC upon the written request of any party.
(b) The seat of arbitration shall be New York City, New York. The language of the arbitration proceedings, and of the award, shall be the English language.
(c) By agreeing to arbitration, the Parties do not intend to deprive any court of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment or other temporary or interim order in aid of arbitration proceedings. In any such action, each of the parties hereto irrevocably and unconditionally (i) submits to the exclusive jurisdiction and venue of the United States District Court for the Southern District of New York located in New York County, New York, or, if such court does not have jurisdiction, the Supreme Court of the State of New York or any court of competent civil jurisdiction sitting in New York County, New York ("New York Courts"); (ii) waives, and agrees not to assert, by motion or otherwise, that it is not subject the jurisdiction and venue of such courts, that its property is exempt or immune from attachment or execution in the New York Courts, that such action is brought in an inconvenient forum, that the action should be transferred or removed to any court other than one of the New York Courts, that such action should be stayed by reason of the pendency of some other proceeding in any other court other than one of the New York Courts, or that this Agreement or the subject matter hereof may not be enforced in or by the New York Courts; (iii) consents to service of process in any manner provided for by applicable law, through the manner provided for giving notices in Section 10.5 (Notices), or, in the case of the Buyer, through CT Corporation System (the "Agent") located at 111 Eighth Avenue, 13th Floor, New York, New York 10011, who Buyer hereby irrevocably appoint as their agent to receive service of process in such action; and (iv) WAIVES ANY RIGHT TO TRIAL BY JURY. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court, the arbitral tribunal, or the emergency arbitrator to the extent and as provided in the Rules, shall have full authority to grant provisional remedies and to direct the parties to request that any court modify or vacate any temporary or preliminary relief issued by such court, and to award damages for the failure of any party to respect the arbitral tribunal's orders to that effect. Further to its appointment, which shall have been confirmed in writing by the Agent, Buyer shall have granted a notarized irrevocable power of attorney (poder irrevocable para pleitos y cobranzas) to the persons listed in Exhibit O, on the terms set forth in such Exhibit O. Each party agrees that the failure of such agent to give notice to it of any such service shall not impair or affect the validity of such service or any judgment rendered in any action, suit or proceeding based thereon. If for any reason such agent shall cease to be available to act as such, each such party agrees to designate a new agent in the Borough of Manhattan, The City of New York, on the terms and for the purposes of this Section and each party shall, as soon as practicable, give notice to the other party of such new agent. Nothing herein shall be deemed to limit the ability of any other party hereto to serve any such legal process in any other manner permitted by applicable Law or to obtain jurisdiction over any such party or bring actions, suits or proceedings against as may be permitted by applicable Law.
(d) An award of the tribunal shall be final and binding on the parties thereto, and judgment thereon may be entered or enforced in any court of competent jurisdiction, or any court where a party or its assets is located (to whose jurisdiction the parties consent for the purposes of entering or enforcing an award).2
- Enjoining the Sellers from making any efforts to market, sell or transfer DB México and DB Broker, including any of their businesses, and any shares or portion of the Sellers' equity in these companies to any third party, and directing them to immediately suspend any sales process of DB México and DB Broker, including, but no limited, by refraining from accepting any offer, signing purchase agreements or any other instruments and from seeking any approval from the Mexican regulators in relation to any sale, during the pendency of the arbitration;
- Directing the Sellers to pay the Applicant the full costs of these proceedings, including but not limited to compensation for all Emergency Arbitrator's fees and costs, and legal fees and expenses incurred by the Applicant in connection with the present proceedings.
Regulatory Approval. The parties had to obtain approval from Mexico's banking regulator ("CNBV") and antitrust regulator ("COFECE") to transfer the shares of DB Mexico and DB Broker from Responding Parties 1 and 2 to the Applicant. Id. § 7.1(a) and Exhibit J (Requisite Regulatory Approvals).
The Applicant’s Representations. As of the "Closing Date", the Applicant's "Fundamental Representations" (id. § 1.1(u)) must be true and correct "in all respects" and the Applicant's other representations and warranties (id., Article V) must be true and correct "in all material respects". Id. § 7.3(a); see also id. § 2.3 (Closing).
The Applicant’s Covenants. The Applicant must have performed all material obligations and complied with all required covenants under the Purchase Agreement. Id. § 7.3(b).
Outside Date. The Outside Date for closing was set at 30 June 2018. Id. ¶ 23.
Purchase Price Increases. The purchase price would step up if the transaction did not close by certain dates. Specifically, the purchase price would step up by USD 5 million if the transaction did not close by 18 May 2018. And it would step up by another USD 5 million if the transaction did not close by 18 June 2018. Id. ¶ 3.
Release of Escrow. The Applicant agreed that if the closing did not occur in accordance with the terms of the Purchase Agreement, a USD 10 million purchase price escrow payment the Applicant had made would be released to Responding Parties 1 and 2 and remain with them in the event that they terminated the Purchase Agreement. Id. ¶¶ 4, 12.
(1) Has the applicant established a prima facie case on the merits?
(2) Is there a risk that the applicant will suffer serious or irreparable harm?
(3) Is the risk of harm imminent? (i.e., urgency)
(4) Does the balance of hardships weigh in the applicant's favor?
(5) Can the arbitral tribunal decide to grant the requested measures without prejudging the merits of the parties' dispute?
See Ali Yesilirmak, Interim and Conservatory Measures in ICC Arbitral Practice, 1999-2008, ICC Bulletin Special Supplement (2011), Ex. CL4, at 11-12 (explaining the criteria arbitrators often use in considering applications for interim measures). See also Interim Award in Case 12361 (Extract), ICC Bulletin Special Supplement (2011) ("Award 12361"), Ex. CL5, at 5 (noting that the "granting of interim relief constitutes an exceptional measure").
Application ¶¶ 6-9, 55-69.
Section 10.13 Specific Performance. The parties hereto hereby acknowledge and agree that immediate, extensive and irreparable damage would result, no adequate remedy at law would exist and damages would be difficult to determine in the event that any provision of this Agreement is not performed in accordance with its specific terms or otherwise breached. Accordingly, the parties hereto shall be entitled to specific performance of the terms hereof and immediate injunctive relief and other equitable relief, without the necessity of proving the inadequacy of money damages as a remedy, and the parties hereto shall waive any requirement for the securing or posting of a bond in connection with the obtaining of such injunctive or other equitable relief. Each of the parties hereto hereby acknowledges that the existence of any other remedy contemplated by this Agreement does not diminish the availability of specific performance of the obligations hereunder or any other injunctive relief and the parties' entitlement to seek specific performance of the terms hereof, is in addition to any other remedy at law or in equity available to such party. Each of the parties hereto further acknowledges and agrees that injunctive relief and/or specific performance will not cause an undue hardship to such party. Notwithstanding the foregoing, following the termination of this Agreement pursuant to Section 8.1, no party hereto shall be entitled to seek or obtain specific performance or any other equitable remedy with respect to the enforcement of any party's obligation to consummate the Closing and any other related obligations.
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