Tailormade legal guidance

CORPORATE

Acquisitions & Mergers

1/ The firm acted for one of Belgium’s best known and largest food retailers in relation to various strategic acquisitions pursued by the group. The firm represented the client in a strategic acquisition aiming to dramatically increase the market share of the client in a complementary niche market. The acquisition was structured through a share sale and purchase agreement. The firm was also asked to assist the client in a private auction procedure, managed by a Dutch investment banker, to which only a few prospective purchasers had been invited. The private auction followed an earlier rejected bid by the client to the sellers (a well known private equity fund and the founding shareholders) of the target. In order to increase the competition among the candidate buyers, the sellers preferred to organise a private auction, including a full due diligence, financial audit, marking-up of a proposed vendor SPA and the processing of a well structured purchase offer.

2/ The firm acted on a restructuring of the European operations, headquartered in Brussels, of a major US-parentage insurance company, which was subject to the supervision of the Belgian insurance supervisory authority. The transaction resulted in the cross-border merger of the 1.2 billion USD Belgian legal entity into a newly constituted European Company (SE) governed by English law. This transaction was highly innovative both in Belgium and the UK, the client being the first Belgian company that will merge into an SE and that has officially published its intention to do so. The transaction was also the first cross-border merger of this kind.

3/ The firm acted as Belgian counsel to a group of UK private equity entities with respect to the world wide acquisition of a jeans manufacturing company. In particular, the firm assisted with the legal due diligence of the Belgian company, the drafting and finalizing of the share sale agreement and various other matters, including Belgian and EU merger control requirements. Shortly after the closing of the acquisition, a refinancing operation was computed involving participation by the Belgian company in group refinancing as guarantor and pledgor, securing the liabilities of the parent company borrowers.

4/ The firm acted as leading counsel for one of Netherlands’ former largest food retailers, in a number of matters, including the sale of its remaining activities in Belgium.

The transaction involved the sale of (i) the entire whole sale division of the Belgian group operating as a supplier to independent franchisees, (ii) 35 supermarkets to other large Belgian food retailers and independent franchisees; and (iii) all of its real estate interests located in Belgium to various real estate investors.

5/ The firm assisted the two founders of a fast growing Belgian enterprise providing industry-specific consultancy services (including business process management, IT project management, IT testing services and transformation management to mainly the financial, the pharmaceutical and the telecom sector) with a sale of the entire share capital to a leading international consultancy group, headquartered in Paris and listed on Euronext Paris.

6/ The firm assisted a Hong Kong established investment fund in setting up a joint venture through the acquisition of a minority participation in a Belgian holding company grouping subsidiaries in Belgium, France and Poland active in design and printing of packaging labels, with a focus on the beer bottling industry. Assistance related to the negotiation, drafting and execution of a share purchase agreement, a shareholder agreement and a share pledge agreement.

 

Joint Ventures

1/ The firm acted as counsel to a Belgian manufacturer of food products, in connection with a joint-venture with a well-known large Spanish food group. The matter involved the transfer of know-how and technology to the Spanish company for the Spanish and Portuguese market and the setting-up of a local production facility to facilitate penetration of the Spanish and Portuguese market. The joint-venture is structured through a limited liability company incorporated under Spanish law, in which the Belgian entity holds a significant interest.

2/ The firm represented a French group active all over Europe in the development and commercialization of gift vouchers and gift concepts and its Belgian subsidiary in setting-up a joint venture with its most important competitor in the Dutch market. The joint-venture the client aimed to set up involved first buying out the current majority shareholder in order to subsequently enter into a joint venture with the current minority shareholder of the Dutch company in which the client would hold a vast majority of the shares and in which a guaranteed exit was provided for the minority shareholder if certain conditions were being met.

3/ The firm assisted a fast growing Belgian enterprise providing industry-specific consultancy services including Project Staffing, Business Support Services and Digital Business Solutions to the ICT sector, with regard to the acquisition of one of its main competitors in the ICT consulting market. The acquisition was structured as a joint-venture involving a contribution-in-kind of a majority percentage into a new holding company and a straight forward sale of the remaining minority percentage to the holding company.

 

Restructuring

1/ The firm acted as counsel to a major Belgian registered and regulated insurance company with respect to the restructuring/transfer of its activities to another EU jurisdiction. This restructuring with EU wide effects, was done in accordance with specific provisions on the transfer of a universality as provided for by the Belgian Company Code. This matter had consequences for the company’s branches in a large number of European jurisdictions, which raised interesting conflicts of laws issues regarding the binding effect of the Belgian Company Code outside Belgium.

2/ The firm acted as European lead counsel to a leading international hotel group with respect to an intra-group restructuring following the acquisition of the entire international business operated by the group’s most important competitor. The intra-group restructuring concerned a US$3.2 billion acquisition loan as well as US$1.1 billion convertible debt instruments, and was implemented in seven steps involving transactions in Gibraltar, the Grand Duchy of Luxembourg, USA and Belgium. It ultimately resulted in a US$1.16 billion contribution in kind in a Belgian holding company of the client, as well as the re-negotiation of the concerned outstanding loan and granting of security in various jurisdictions.

3/ The firm acted as Belgian counsel to an international hotel group in a worldwide restructuring of all of the Group’s operations situated outside of the USA, including the hotel activities of the Group in Belgium. The restructuring aimed to facilitate the preservation, growth and optimization of the Group brands in markets outside the USA. The Corporate Realignment, which involved not less than 280 transaction steps taking place all over the world.

4/ The firm continued to assist, alongside Steptoe & Johnson LLP Brussels’s office, a US insurance group with the domestic Belgian law aspects and documentation of the restructuring of its Belgian holding structure and its subsidiaries in order to address the Solvency II requirements. This restructuring, although intra group, took place under the supervision of the competent regulators and all steps must be documented as if it were transactions with third parties. The various transactions governed by Belgian law include the transfer of the shares of the Belgian subsidiaries, the incorporation of a new Belgian holding structure, the emission and assignment of promissory notes, as well as the approval of these transactions by the Belgian corporate bodies. The total value of the Belgian law governed transactions in the past year, easily exceeds € 100 million.

5/ The firm advised at the request of the New York based legal department of a large US insurance group, on the Belgian corporate aspects of the financial restructuring of its captive Belgian reinsurance company. The assignment involved a €40 million capital decrease, as well as the decision to grant an intermediate multiple tens of millions euro super-dividend to the shareholders, and repatriation and payment of these sums to the US parent company.

6/ The firm devised and negotiated a multi-layer transaction aiming to safeguard the continuity and existence of a small Antwerp based diamond cutting company well known in its niche market for its highly advanced technology to manufacture top quality rough diamonds. The creative legal approach embodied in this transaction has not only prevented the Company from being declared bankrupt, but has also set the terms for a renewed business model.

Shareholder disputes and Governance

1/ The firm was retained as counsel by a significant percentage of shareholders and directors of a major well known Belgian manufacturer, for their defence in lawsuits by other shareholders and directors. The outcome of the litigation was vitally important not only for the shareholders and directors, but also for the company's other stakeholders, as well as the company's survival as an independent manufacturer.

2/ The firm acted as counsel for the French individual who was the sole minority shareholder of the Belgian privately held parent company of a French captive well known global manufacturer of  travel goods. The matter concerns a corporate litigation between the company and the minority shareholder, as well as a dispute between the minority shareholder and the majority shareholder, that resulted in multiple legal proceedings in Belgium, as well as litigation in The Netherlands and France. Ultimately, the matter was amicably settled by a significant payment to our client as purchase price for his shares.

3/ The firm represented two minority shareholders (holding 40 %) of a privately held holding company with multiple subsidiaries grouping several pharmacy stores. Following a major dispute with the other 40 % minority shareholder in which the clients were to lose all pharmacies they had developed over the years, a complex group restructuring was achieved in after more than one year of tense negotiations. A creative legal approach enabled our clients to recover a number of regulated retail stores within their proper holding structure and to re-build their own holding structure with a view to a future sale. The combination of multiple transactions, including a partial demerger of one of the holding’s subsidiaries allowing to transfer one of the retail stores to a separate legal entity, five share sale transactions and multi level shareholder agreements, was embodied in a complex framework agreement and a quite technical valuation and pricing structure.

4/  The firm acts as outside general counsel to Jensen-Group, a worldwide market leader in the laundry industry, with headquarters in Switzerland and which is listed on Euronext, Brussels.  

 

COMMERCIAL CONTRACTS

 1/ The firm was the counsel of choice of a leading Dublin-based developer of anti-money laundering and anti-fraud software assisting the client in various licensing and intellectual property related matters. The firm has frequently assisted the company as well as its two Belgian subsidiaries in negotiations on licensing its software to a broad range of financial institutions and insurance companies (the prime customers targeted by the client), based in a number of key EU jurisdictions. The contracts entered into are tailor made to fit the individual needs of each individual client (whereby those individual needs are partially driven by the regulatory environment in which the client is operating).  

2/ The firm assisted the Belgian subsidiary of a leading US manufacturer of office equipment with drafting, reviewing and negotiating a wide range of commercial contracts (such as distribution agreements, commercial agency agreements and contract manufacturing agreements). A very noteworthy assignment (due to the complex legal issues that arose), consisted of assisting the client with negotiating a technology licensing agreement with a consortium of other companies. As the licensing of the technology was linked to exclusive distribution rights of the products manufactured under the technology license, major competition law issues arose, and forced the parties to remodel their agreement to remain compliant with EU competition law.

3/ The firm acted as counsel to a Belgian company offering innovative solutions based on medical imaging to support diagnosis therapy and surgery in a wide range of commercial matters.

Recent assignments include setting up a joint venture with Belgian medical practitioners, and the worldwide licensing of one of the client’s top selling products to the world’s leading supplier of dental implants.

4/ The firm assisted the Belgian Master Franchisee of one of the world’s leading car servicing companies with the setting-up of a network of franchisees throughout Belgium, ensuring compliance of this franchising structure with cumbersome Belgian legislation applying to commercial cooperation agreements (including franchising agreements)

TRADE PRACTICES

1/ The firm advised a major electronics retailer on a number of issues in its daily activities. Most of these issues deal with compliance of intended marketing campaigns with trade practices, warranty issues and consumer protection, and a number of IP-related issues (including trade names and copyright on advertising campaigns).

2/ The firm acted for the Belgian subsidiary of one of the world’s leading providers of water technology products. The team assisted this client in its defence against alleged unfair trade practices, in a series of legal proceedings initiated by Dutch and Belgian competitors. In an initial first significant court victory, the team successfully managed to reverse a court order (granted ex parte to the opposing parties) allowing them to carry out a ‘dawn raid’ on this client’s premises in order to seize documents that could help them to substantiate their claim on the merits. This decision, leading to the opposing parties returning the documents seized (and precluding them from using any such documents in the proceedings on the merits), had restricted their ability to substantiate their claims to such an extent, that they finally were forced to drop their claims.

3/ The firm was instructed by an upcoming Belgian contractor specializing in the construction of concrete constructions to defend the company against allegations of unfair trade practices. The proceedings had been launched by the various players on the market. The matter was vital to the position of all involved parties in the niche market. In a pre-emptive strike, the team ensured that the enquiries and the resulting report of an expert appointed at the request of the other party (prior to our involvement) were held to be null and void, seriously limiting the chances of success for the other party in its claim on the merits.

4/ The firm acted as lead counsel to the Belgian subsidiary of a well-known US-based multi-level marketing company. The team assisted this client in cease and desist proceedings initiated by it against a number of legal entities with whom the client used to have contractual ties. The client’s position was that those entities unlawfully used the client’s typical business model and terminology developed for the client’s sales structure. The claim, based on the infringement of the client’s intellectual rights on the one hand, and on the fact that the defendants’ acts constitute unfair trade practices on the other hand, resulted in the court ordering the defendants to cease and desist from using this terminology and business model.

PROPERTY AND REAL ESTATE

1/ The firm acts as strategic corporate and commercial counsel to a rapidly expanding privately held group of companies that invests throughout Belgium in the accommodation needs of the “graying” population. The legal services comprised the incorporation of special purpose vehicles, the drafting of shareholder agreements, the advice on legal aspects of the innovative commercial and business model, a private placement, the negotiation of the legal aspects of the construction contract and the multi-million Euro project finance provided by a publicly held private equity provider and by a bank for the building of a first campus.

In addition, the firm assisted the client with the sale & lease back of an innovative and large scale housing project, including the negotiation of the financing arrangements for the additional construction works. The transactions had a combined total value in excess of € 65 million. The involved parties were our client and a large Belgian insurance company. The transaction was mediated by real estate broker Cushman & Wakefield.

2/ The firm was frequently instructed by a major European retailer of consumer electronics and domestic appliances to assist it with the negotiation of its lease agreements (when opening new stores) and with handling various disputes with its landlords.

3/ The firm assisted one of Netherland’s former largest food retailers with the disposal, following the sale of its Belgian business, of its entire real estate in Belgium to various real estate investors. The transaction involved the transfer of multiple commercial lease contracts, the transfer of various long lease (“erfpacht”) and building rights (“opstalrecht”) and the transfer of fully owned property, including dealing with all aspects of soil decontamination, environmental permits, socio-economic permits, building permits and other operating permits.

4/ The firm acted as Belgian counsel to an international hotel group with regard to the opening of a new luxury hotel operated in the very centre of Brussels. This hotel was taken over by a Russian property group following the bankruptcy of the previous hotel owner. The firm has advised the hotel group on various key contractual, corporate and corporate governance aspects of a complex international management agreement, the collective labour law aspects in relation to the transfer of the hotel personnel out of the bankruptcy of the former operator and the structuring of the management over the hotel personnel employed by the hotel owner.

DISPUTE RESOLUTION

1/ The firm represented a private equity fund that is the 50% shareholder and managing director of the sole shipyard in Belgium capable to service very large sized Oceangoing vessels, in a dispute with its Dutch co-shareholder who operates a competing shipyard in Amsterdam. The dispute resulted in court proceedings and finally, the acquisition by our client of all shares of the shipyard company.

2/ The firm represented the Belgian subsidiary of a US-based multinational, in a dispute with one of its main packaging services suppliers, a French company. The dispute mainly concerned the French company’s demand to review contractual terms, and the allegations that the client’s refusal to meet the French company’s demands where unlawful thus making the client liable for damages. The firm’s hands-on and energetic approach caused the French company to drop all of its claims.

3/ The firm has been representing an Irish life insurance company in a series of legal proceedings initiated against it by both policy holders and insurance brokers. All claims deal with alleged misrepresentation of life insurance products and the alleged failure by the insurer to comply with applicable Belgian laws and regulations in selling its fund-related life insurance products on the Belgian market. 

4/ The firm successfully represented a Belgian contractor in a complex litigation initiated against it by a building commissioner and a series of other contractors and subcontractors. The claimants held that the client was liable for damages, as a result of alleged deficient performance under a construction contract. Our team’s vigorous resistance against these claims and the refusal to give in to the other parties’ requests to make substantial concessions in order to come to a final settlement, caused the main contractor and the building commissioner to finally drop all of their claims against the client.

5/ The firm represented a real estate development company in a dispute with a major European bank concerning the validity of complex interest rate swaps concluded for €10 million. That litigation is a matter of principle that could set a negative precedent with potential effect for all Bermuda swaps concluded in Belgium as from 2008. It was the first in Belgium under the EU MiFID Regulation and implementing legislation with respect to a delayed Bermuda Swap.

Following a judgment in first instance and the dismissal of our client’s claim, the firm continues to represent the client at the appellate level.  This litigation concerns the largest dispute regarding Bermuda-swaps in Belgium and resulted in the recent publication of a special report by the Belgian financial markets’ supervisor, the FSMA on the subject matter. Notwithstanding the FSMA’s recent instruction to the involved Belgian banks to take corrective action, the litigation is likely to continue and it is a matter of principle with potential effect for all Bermuda swaps concluded in Belgium as from 2008 under the EU MiFID Regulation and implementing domestic legislation.

6/ The firm represented the Belgian subsidiary of a Denmark-based multinational, in a post-closing dispute. Following the acquisition by the client of a business activities, the client discovered material infringements of the representations and warranties by the seller in the asset purchase agreement. The client also discovered that the seller and its former managing director, who were under the obligation to provide specific services to the client during a post-closing transitional period, have materially breached that services agreement depriving the client of substantial revenues.

7/ The firm represented the Belgian subsidiary of a US-based multinational, in a dispute with one of its main packaging services suppliers, a French company. The dispute mainly concerned the French company’s demand to review contractual terms, and the allegations that the clients’ refusal to meet the French company’s demands where unlawful thus making the client liable for damages. The firm’s hands-on and energetic approach caused the French company to drop all of its claims.

8/ The firm represented a Belgian company offering online B2C hotel arrangements. The firm has successfully defended the company in injunction proceedings brought against it by a Dutch company, following the Belgian company’s decision to terminate, with immediate effect, an agreement it had with the Dutch company pursuant to which the Belgian company was granted the right to exploit, in Belgium and Luxembourg, the online booking platform initially developed by the Dutch company. The Dutch company challenged the validity of the Belgian company’s decision to terminate for material breach of contract by the Dutch company. The Dutch company’s claim, aimed at ordering the company to continue to perform the Agreement and to release funds the company was withholding to secure its claim for damages against the Dutch company, was entirely dismissed by the President of the Brussels Court of Commerce.

9/ The firm represented a Leuven based company, experiencing though times, in a dispute with a major Belgian bank with respect to the long term refinancing of an investment valued at € 33 million. That dispute was resolved by an amicable settlement resulting in a very long term bank financing arrangement, following the start of earlier litigation initiated by our client on the basis of new legislation published on bank financing of SME enterprises.  This dispute was a ‘bet-the-company’ matter for the firm’s client and involved the first court action based on new SME bank financing legislation. The handling of this matter required respecting the delicate balance between assertive legal action vis-à-vis the bank while simultaneously maintaining the dialogue that eventually allowed the settlement.

LABOUR AND EMPLOYMENT LAW

1/ The firm continues to represent the Belgian subsidiary of a German multinational on various labor and employment matters. The firm advised this company on a number of post-acquisition employment matters and disputes in the context of its merger. This international transaction created a global producer of infrastructure software and Business Process Management software with more than 6,000 employees and in excess of €1 billion in revenue worldwide. In general the firm acts as the local company’s Belgian counsel of choice and among other matters recently provided assistance at the occasion of visits by the social inspection and advised on a number of dismissals.

2/ The firm continues to act as the Belgian counsel for the Belgian subsidiary of a multinational service provider in information protection, business process management solutions and storage. The firm assists the client with a number of strategic employment issues in Belgium, amongst which advice on data protection and privacy related issues.

3/ The firm assisted a leading international hotel group in the collective and individual labor law related issues of the international hotel group. Following a decision to transfer a five star hotel operated under the Group’s brand in Brussels to another operator, the firm has assisted the client with all employment aspects of the transfer of the hotel to the new operator. The matter was complex due to the particular employment set up at the hotel and the pressure exercised by the unions.

More recently, the firm’s support related to the individual and collective employment issues resulting from and in connection with the take over of the management of a hotel operation from the former operator’s bankruptcy, including 120 team members and the structuring of management over the hotel personnel employed by the new hotel owner.

4/ The firm was chosen to act as the strategic labor counsel to an international Dublin-based developer of anti-money laundering and anti-fraud software in connection with all Belgian employee related issues such as dismissals, non-compete and confidentiality issues, etc.

5/ The firm assisted a Belgian subsidiary of a German manufacturer of industrial fittings with the restructuring is its activities following the deterioration of the market circumstances and the financial and economical crisis. The firm guided the client with the application of highly regulated, restrictive and cumbersome Belgian collective dismissal procedures. The firm’s representation included all official notifications to governments and unions, negotiations with the unions, assistance with the application to various authorities for a formal recognition as “company in financial distress” and the preparation and drafting of termination documents.

6/ The firm assisted a rapidly growing Belgian market leader providing transport and logistic services to off-shore industry activities with a number of strategic employment issues in Belgium, amongst which advice on data protection and privacy related issues.