Advisory Board

  • Cai Hongbin
  • Peking University Guanghua School of Management
  • Peter Clarke
  • Barry Diller
  • IAC/InterActiveCorp
  • Fu Chengyu
  • China National Petrochemical Corporation (Sinopec Group)
  • Richard J. Gnodde
  • Goldman Sachs International
  • Lodewijk Hijmans van den Bergh
  • De Brauw Blackstone Westbroek N.V.
  • Jiang Jianqing
  • Industrial and Commercial Bank of China, Ltd. (ICBC)
  • Handel Lee
  • King & Wood Mallesons
  • Richard Li
  • PCCW Limited
  • Pacific Century Group
  • Liew Mun Leong
  • Changi Airport Group
  • Martin Lipton
  • New York University
  • Wachtell, Lipton, Rosen & Katz
  • Liu Mingkang
  • China Banking Regulatory Commission (CBRC)
  • Dinesh C. Paliwal
  • Harman International Industries
  • Leon Pasternak
  • BCC Partners
  • Tim Payne
  • Brunswick Group
  • Joseph R. Perella
  • Perella Weinberg Partners
  • Baron David de Rothschild
  • N M Rothschild & Sons Limited
  • Dilhan Pillay Sandrasegara
  • Temasek International Pte. Ltd.
  • Shao Ning
  • State-owned Assets Supervision and Administration Commission of the State Council of China (SASAC)
  • John W. Snow
  • Cerberus Capital Management, L.P.
  • Former U.S. Secretary of Treasury
  • Bharat Vasani
  • Tata Group
  • Wang Junfeng
  • King & Wood Mallesons
  • Wang Kejin
  • China Banking Regulatory Commission (CBRC)
  • Wei Jiafu
  • Kazakhstan Potash Corporation Limited
  • Yang Chao
  • China Life Insurance Co. Ltd.
  • Zhu Min
  • International Monetary Fund

Legal Roundtable

  • Dimitry Afanasiev
  • Egorov Puginsky Afanasiev and Partners (Moscow)
  • William T. Allen
  • NYU Stern School of Business
  • Wachtell, Lipton, Rosen & Katz (New York)
  • Johan Aalto
  • Hannes Snellman Attorneys Ltd (Finland)
  • Nigel P. G. Boardman
  • Slaughter and May (London)
  • Willem J.L. Calkoen
  • NautaDutilh N.V. (Rotterdam)
  • Peter Callens
  • Loyens & Loeff (Brussels)
  • Bertrand Cardi
  • Darrois Villey Maillot & Brochier (Paris)
  • Santiago Carregal
  • Marval, O’Farrell & Mairal (Buenos Aires)
  • Martín Carrizosa
  • Philippi Prietocarrizosa & Uría (Bogotá)
  • Carlos G. Cordero G.
  • Aleman, Cordero, Galindo & Lee (Panama)
  • Ewen Crouch
  • Allens (Sydney)
  • Adam O. Emmerich
  • Wachtell, Lipton, Rosen & Katz (New York)
  • Rachel Eng
  • WongPartnership (Singapore)
  • Sergio Erede
  • BonelliErede (Milan)
  • Kenichi Fujinawa
  • Nagashima Ohno & Tsunematsu (Tokyo)
  • Manuel Galicia Romero
  • Galicia Abogados (Mexico City)
  • Danny Gilbert
  • Gilbert + Tobin (Sydney)
  • Vladimíra Glatzová
  • Glatzová & Co. (Prague)
  • Juan Miguel Goenechea
  • Uría Menéndez (Madrid)
  • Andrey A. Goltsblat
  • Goltsblat BLP (Moscow)
  • Juan Francisco Gutiérrez I.
  • Philippi Prietocarrizosa & Uría (Santiago)
  • Fang He
  • Jun He Law Offices (Beijing)
  • Christian Herbst
  • Schönherr (Vienna)
  • Lodewijk Hijmans van den Bergh
  • De Brauw Blackstone Westbroek N.V. (Amsterdam)
  • Hein Hooghoudt
  • NautaDutilh N.V. (Amsterdam)
  • Sameer Huda
  • Hadef & Partners (Dubai)
  • Masakazu Iwakura
  • TMI Associates (Tokyo)
  • Christof Jäckle
  • Hengeler Mueller (Frankfurt)
  • Michael Mervyn Katz
  • Edward Nathan Sonnenbergs (Johannesburg)
  • Handel Lee
  • King & Wood Mallesons (Beijing)
  • Martin Lipton
  • Wachtell, Lipton, Rosen & Katz (New York)
  • Alain Maillot
  • Darrois Villey Maillot Brochier (Paris)
  • Antônio Corrêa Meyer
  • Machado, Meyer, Sendacz e Opice (São Paulo)
  • Sergio Michelsen Jaramillo
  • Brigard & Urrutia (Bogotá)
  • Zia Mody
  • AZB & Partners (Mumbai)
  • Christopher Murray
  • Osler (Toronto)
  • Francisco Antunes Maciel Müssnich
  • Barbosa, Müssnich & Aragão (Rio de Janeiro)
  • I. Berl Nadler
  • Davies Ward Phillips & Vineberg LLP (Toronto)
  • Umberto Nicodano
  • BonelliErede (Milan)
  • Brian O'Gorman
  • Arthur Cox (Dublin)
  • Robin Panovka
  • Wachtell, Lipton, Rosen & Katz (New York)
  • Sang-Yeol Park
  • Park & Partners (Seoul)
  • José Antonio Payet Puccio
  • Payet Rey Cauvi (Lima)
  • Kees Peijster
  • COFRA Holding AG (Zug)
  • Juan Martín Perrotto
  • Uría & Menéndez (Madrid/Beijing)
  • Philip Podzebenko
  • Herbert Smith Freehills (Sydney)
  • Geert Potjewijd
  • De Brauw Blackstone Westbroek (Amsterdam/Beijing)
  • Qi Adam Li
  • Jun He Law Offices (Shanghai)
  • Biörn Riese
  • Jurie Advokat AB (Sweden)
  • Mark Rigotti
  • Herbert Smith Freehills (Sydney)
  • Rafael Robles Miaja
  • Robles Miaja (Mexico City)
  • Alberto Saravalle
  • BonelliErede (Milan)
  • Maximilian Schiessl
  • Hengeler Mueller (Düsseldorf)
  • Cyril S. Shroff
  • Cyril Amarchand Mangaldas (Mumbai)
  • Shardul S. Shroff
  • Shardul Amarchand Mangaldas & Co.(New Delhi)
  • Klaus Søgaard
  • Gorrissen Federspiel (Denmark)
  • Ezekiel Solomon
  • Allens (Sydney)
  • Emanuel P. Strehle
  • Hengeler Mueller (Munich)
  • David E. Tadmor
  • Tadmor & Co. (Tel Aviv)
  • Kevin J. Thomson
  • Barrick Gold Corporation (Toronto)
  • Yu Wakae
  • Nagashima Ohno & Tsunematsu (Tokyo)
  • Wang Junfeng
  • King & Wood Mallesons (Beijing)
  • Tomasz Wardynski
  • Wardynski & Partners (Warsaw)
  • Rolf Watter
  • Bär & Karrer AG (Zürich)
  • Xiao Wei
  • Jun He Law Offices (Beijing)
  • Xu Ping
  • King & Wood Mallesons (Beijing)
  • Shuji Yanase
  • OK Corporation (Tokyo)
  • Alvin Yeo
  • WongPartnership LLP (Singapore)

Founding Directors

  • William T. Allen
  • NYU Stern School of Business
  • Wachtell, Lipton, Rosen & Katz
  • Nigel P.G. Boardman
  • Slaughter and May
  • Cai Hongbin
  • Peking University Guanghua School of Management
  • Adam O. Emmerich
  • Wachtell, Lipton, Rosen & Katz
  • Robin Panovka
  • Wachtell, Lipton, Rosen & Katz
  • Peter Williamson
  • Cambridge Judge Business School
  • Franny Yao
  • Ernst & Young

Monthly Archives: November 2016

AUSTRALIAN UPDATE – deal landscape, origin of bidders and deal structures

Editors’ Note: This report was contributed by Philip Podzebenko, a member of XBMA’s legal roundtable. Mr Podzebenko is a partner at Herbert Smith Freehills in the Corporate Group. This paper was based on research conducted by other Herbert Smith Freehills staff, Paul Branston, Partner and Sophie Mony de Kerloy, Solicitor.

 

Highlights

  • The Australian public M&A market has seen steady activity levels, with modest growth in deal volumes (by value) in the 12 months to 30 June 2016 (FY16).
  • Success rates have remained steady, with 73% of deals announced in FY16 being completed.
  • The level of contested bid activity rebounded in FY16 with 6 targets attracting multiple bidders.
  • The industrials and utilities sectors dominated activity, with deals in those sectors comprising 70% of deal value.
  • Inbound public M&A remained steady, but with a significant increase in bid activity originating from North America.

Deal landscape

Levels of public M&A activity in FY16 remained steady, with 50 deals announced and $33 billion committed by bidders, compared with 55 deals announced and $28 billion committed in the previous 12 months. The proportion of deals exceeding $1 billion remained steady, with 6 deals announced in this category in FY16, including one contested bid (compared with 7 in FY15), and deals in this category accounting for 80% of all deal activity by value.

Success rates also remained steady in FY16 at 73% (FY15, 70%).

Overall, the proportion of bids launched in FY16 without support from the target board from the outset (45%) was consistent with previous years (FY15, 44%). Of the unsolicited bids, 61% were ultimately successful. All of the unsolicited bids which were successful were recommended by the target board (either in the board’s initial response, or following negotiations). None of the unsolicited bids which were resisted by the target board throughout the bid period were successful.

The number of contested bids rebounded in FY16, with 7 targets the subject of multiple bidders, up from 2 targets attracting competing bids in FY15. In each of the cases where a competing bid announced in FY16 has completed, the overbidder has been successful. Encouraging a competing bidder has been an effective strategy for target boards confronted by an unsatisfactory bid.

 

success-rates-in-hostile-and-friendly-deals

Merger and acquisition activity in the industrials and utilities sectors featured strongly in FY16, representing $23.3b (70%) of overall deal value. In contrast, challenging business conditions in the energy and resources sectors, which were characterised by low commodity prices in oil, iron ore and coal, slow growth and uncertainty, affected the level of deal activity, with these sectors contributing only $1.1b to total deal value.

Private equity participation remained steady in FY16, with 18% of deals involving private equity bidders (FY15, 18%), although target values were larger. Consistently with broader trends in the market, private equity acquirers bid across a range of industry sectors.

 

Origin of bidders

Foreign bidders accounted for 44% of all deals in FY16, by value. This represents a slight increase in funds committed by foreign bidders in FY16 relative to FY15. Unlike previous years, foreign bidder activity was not concentrated in energy and resources, with foreign bidders being active in the industrials and utilities sectors.

North American bidders were more prominent in FY16 than in previous years, with 27% of all bidders coming from North America (FY15, 15% ), representing 40% of all deals by value. North American bidders were particularly active in larger transactions, with 3 of the 6 deals exceeding $1bn involving North American bidders.

 

percentage-of-deals-by-origin-of-bidder

Deal structure

The preference for schemes of arrangement remained steady in FY16, with 44% of all deals involving schemes, compared with 45% in FY15. The use of schemes continued to dominate transactions exceeding $1 billion, with 86% of deals in this category implemented by scheme.

Cash consideration continued to feature prominently in FY16, and was the sole form of consideration in 62% of transactions (up from 58% in FY15). There was a strong preference for cash consideration in unsolicited deals, with 80% of all unsolicited bids being cash-only or having an all-cash alternative.

 

success-rates-by-consideration-offered-in-hostile-deals

Bids with cash-only consideration were more successful in FY16 than in the FY13-15 period, with cash-only bids (including both friendly and hostile bids) having an 80% success rate overall.

FY16 saw a further increase in deals involving an initial premium in the 20-40% range (46%), as well as an increase in bids offering an initial premium exceeding 40%.

Success rates in FY16 continued FY15’s trend, showing a positive correlation between size of premium and bid success, with bids involving an initial premium in the 20-40% range having a 70% success rate, and those with an initial premium exceeding 40% having a 92% success rate.

Consistently with previous practice, material adverse change conditions continued to be included in the majority of bids and conditional deals. However the continued increase in the use of carve outs from the material adverse change conditions for external factors such as changes in law or accounting policy,  general economic conditions, industry conditions and stock markets reflect that bidders are more willing to accept commercial risk when making a bid.

Deal protection mechanisms continued to feature in negotiated transactions, with an increase in toe-holds during FY16, compensating for a decrease in other forms of lock-up from target shareholders. ‘Truth in takeovers’ statements (being public statements of intent to accept or otherwise support a bid by target shareholders) remained the preferred form of lock-up, with 75% of lock-ups taking the form of truth in takeovers statements only, despite Takeovers Panel guidance raising concerns that such statements have been misused as lock-up structures.

Notification and matching rights continued to their popularity with notification and matching rights being found in 100% and 93% respectively of negotiated deals. Use of break fees and reverse break fees also increased, with 86% of negotiated deals having a break fee and 32% of deals also having a reverse break fee.

The views expressed herein are solely those of the author and have not been endorsed, confirmed, or approved by XBMA or any of the editors of XBMA Forum, nor by XBMA’s founders, members, contributors, academic partners, advisory board members, or others. No inference to the contrary should be drawn.

FRENCH UPDATE – M&A: Key Takeaways for Dealmakers on the Modernization of French Contract Law

Editors’ Note: Bertrand Cardi, a partner at Darrois Villey Maillot Brochier and a member of XBMA’s Legal Roundtable, contributed this article. Laurent Aynès, Emmanuel Brochier, Bertrand Cardi and Forrest G. Alogna, partners of Darrois Villey Maillot Brochier, authored the following article. Laurent Aynès is a preeminent contracts law scholar and one of the most highly-regarded civil law lawyers in Europe. Darrois Villey Maillot Brochier is the leading firm in France in the practice of M&A and Takeovers.

Executive Summary/Highlights:

October 1 saw the coming into effect of the most significant reform of French contract law since the Napoleonic code was first promulgated in 1804.  We survey below some of the key takeaways for dealmakers.

The reform was notably motivated by a desire to maintain the attractiveness of French law. One of the foremost goals in this respect was to codify French jurisprudence in order to make the law clearer and more accessible.  Other changes were designed to modernize French contract law by eliminating archaic formalisms, providing parties with contractual tools consistent with those available in other jurisdictions, and resolving doctrinal disputes and areas where French courts had reached inconsistent results.

For present purposes, we are principally in the realm of contracts, and certain of the changes can be contracted around.  However, even these provisions merit some attention: First, sophisticated parties to business transactions should actively and affirmatively contract around certain provisions.  Second, because certain changes relate to the pre-contractual period, the parties will need to consider and treat these issues at an early stage of their negotiation (likely in the confidentiality agreement entered into at the start of their discussions).

Others provisions cannot be contracted around.  We provide some initial, general thoughts on how parties may seek to change their conduct in the face of these new provisions.  Evidently, doing so effectively and judiciously will be a case-by-case exercise, drawing on the experience and creativity of the parties and their advisors.

Click here to see the full article.

The views expressed herein are solely those of the author and have not been endorsed, confirmed, or approved by XBMA or any of the editors of XBMA Forum, nor by XBMA’s founders, members, contributors, academic partners, advisory board members, or others. No inference to the contrary should be drawn.

CHINESE UPDATE – Outbound Investment — Managing risks and exiting with grace

Editors’ Note: Susan Ning, a member of XBMA’s Legal Roundtable, contributed this paper.  Ms. Ning heads King & Wood Commercial and Regulatory Group and is widely recognized as one of the leading experts in the field, with many years of experience working with MOFCOM to secure merger clearance.  This article was authored by King & Wood Mallesons partner Neil Carabine, of the firm’s Hong Kong office.

Executive Summary/Highlights:

China’s outward foreign direct investment (FDI) has increased substantially over the past decade.  At US$111.5 billion in total in 2015, outbound FDI exceeded inbound FDI for the second year running.  Aided by the creation of new / simplified regulatory channels, China’s outbound FDI is expected to grow more than 10% per year for the next five years .  China’s 13th Five Year Plan has also encouraged acquisitions and investments by Chinese investors in a wider range of sectors (e.g. fintech, high-end manufacturing and real estate).

A significant increase in infrastructure investment is also expected following the implementation of China’s “Silk Road Economic Belt” and “21st Century Maritime Silk Road” policy (known as One Belt, One Road or OBOR).  In just the first quarter of 2016, Chinese investors have already made US$3.59 billion of direct investment into OBOR countries (mainly Singapore, India and Indonesia), a 40.2% increase versus the same period in 2015 (according to MOFCOM).

Effecting planning and management of outbound FDI projects is key to allowing investors to managing risks effectively and maximising the protections available.  In particular investors should:

  • engage external advisors at an early stage to help evaluate and navigate the risks associated with outbound investments, which can be factored into the overall investment costs.
  • look to structure investments to maximise the comprehensive protections available under certain BITs in tax favourable jurisdictions; and
  • include an effective deadlock clause with appropriate exit rights in any joint venture agreements to provide for a smooth exit in the event that things go wrong, as well as including provisions dealing with whether technology and service arrangements should survive exit.

Click here to see the full article.

The views expressed herein are solely those of the author and have not been endorsed, confirmed, or approved by XBMA or any of the editors of XBMA Forum, nor by XBMA’s founders, members, contributors, academic partners, advisory board members, or others. No inference to the contrary should be drawn.

CANADIAN UPDATE – Significant changes in proposed amendments to Canada Business Corporations Act

Editors’ Note: This article was contributed by Christopher Murray, a partner of Osler and leader of the Osler Asia-Pacific initiative whose practice focuses on public company M&A as well as corporate finance principally involving REIT Income Funds, mining and energy businesses.  This article was authored by Osler partners Andrew MacDougall and Robert M. Yalden and associates Justin Dharamdial and John M. Valley in the Osler Corporate group.

Executive Summary/Highlights: 

On September 28, 2016, the Canadian federal government introduced Bill C-25: An Act to amend the Canada Business Corporations Act et al. The proposed amendments are the culmination of the first substantive review of the Canada Business Corporations Act (the CBCA) in 15 years and are the result of a consultation process initiated in 2013. The stated objectives of the proposed amendments are to, among other things:

  • reform the process for electing directors of certain corporations;
  • modernize communications between corporations and their shareholders; and
  • require disclosure of information respecting diversity among directors and senior management.

Click here to see the full article.

The views expressed herein are solely those of the author and have not been endorsed, confirmed, or approved by XBMA or any of the editors of XBMA Forum, nor by XBMA’s founders, members, contributors, academic partners, advisory board members, or others. No inference to the contrary should be drawn.

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