313 Search Results

May 17, 2019 |
In the Wake of International Protectionism, France Strengthens Its Enforcement Scheme Applicable to Foreign Investments

Click for PDF On May 16, 2019, the French Constitutional Court (Conseil constitutionnel) cleared most of the provisions of the ambitious so-called “Pacte” Statute on the development and transformation of businesses. Pacte addresses a number of significant legal issues. Among them, in the wake of international protectionism and EU regulation on establishing a framework for the screening of foreign direct investments (see Gibson Dunn’s alert of March 5, 2019), Pacte significantly strengthens the French enforcement scheme applicable to foreign investments. Government Approval Required for Foreign Investments in Strategic Business Sectors Existing French regulation requires foreign investors, prior to making an investment in one of 14 specified sectors[1], irrespective of its size, to obtain an authorization from the French Minister of the Economy. The affected business sectors comprise those impacting France’s public order, public safety or national defense interests. Since November 29, 2018, are also covered certain R&D activities regarding cybersecurity and artificial intelligence as well as the hosting of data pertaining to sensitive businesses. During the discussions in Parliament on Pacte, the French Government indicated it would further broaden the scope of the business sectors affected to better protect “industries of the future” and innovation. The authorization process applies to EU and non-EU investors who acquire: directly or indirectly a controlling stake in a company whose registered office is located in France; or all or part of a line of business of a company whose registered office is located in France. It applies also to non-EU investors who acquire more than 33.33% of the stock or voting rights of a company whose registered office is located in France. The Minister of the Economy may order an investor in breach of this process to withdraw from the investment, to modify the scope of its investment or to revert it. Failure to abide by the Minister’s order exposes the investor to a fine in a maximum amount equal to two times the investment amount (in addition to the potential cancellation of the investment). Pacte Strengthens the Sanctioning Power of the French Minister of the Economy Under Pacte, the French Minister of the Economy is entrusted with a new power of injunction against an investor in breach of either the authorization process or the terms of the authorization[2]. The Minister may, thus, without delay and without any requirement for a prior Court approval, force the investor, under a daily penalty[3], to abide by the process (or by the conditions imposed as part of the authorization), to revert the investment at its cost or to modify its terms. The Minister may also now withdraw its authorization. If an investment has been made without authorization, the Minister may appoint a representative in charge of ensuring that -within the conduct of the acquired business- France’s interests will be protected; to this effect, the representative will be empowered to block any management decision likely to undermine these interests. In situations where France’s interests are or may be compromised, the Minister of the Economy may take new additional interim protective measures and: suspend voting rights attached to the fraction of the share capital held in violation of the authorization process; freeze or restrict distributions and remunerations pertaining to the share capital held in violation of the authorization process; and suspend, restrict or temporary prohibit the disposal of all or part of the assets falling within the ambit of the strategic business sectors. While none of these measures is subject to a prior Court approval, the investor must be given a formal notice and a 15-day delay to present its arguments, except in case of an emergency, exceptional circumstances or imminent breach of public order, public security or national defense. Effective implementation of the Minister’s extended powers will be outlined in decrees to be released later this year by the French government which will be important to monitor. Pacte Increases Fines Against Non-Complying Investors In addition, Pacte increases the amount of the fines that may be imposed by the Minister on an investor in breach of either the process or the terms of the authorization. The maximum fine that can be inflicted may amount to the higher of the following: two times the amount of the investment, 10 percent of the annual turnover (excluding taxes) of the company engaged in the strategic business sector, or 5 million euros for legal entities and 1 million euros for individuals. Pacte Improves the French Parliament’s Information on Foreign Investments Eventually, in line with the EU Regulation, Pacte aims at improving transparency regarding foreign investments and compels: the Minister of the Economy to disclose annually to the Parliament statistical no-names data regarding the screening of foreign investments in France; and the French government to provide annually to certain members of the Parliament (e.g., the chairmen of the Commissions in charge of economic matters and the secretary (rapporteurs) of the finance Commissions) a report containing qualitative and statistical information on measures taken to protect and promote national interests and strategic business sectors as well as on the screening of foreign investments and the outcomes achieved thanks to the new legislation.    [1]   The list of the 14 covered business sectors is as follows: 1°) gambling industry (except casinos); 2°) private security services; 3°) research and development or manufacture of means of fighting the illegal use of toxics; 4°) wiretapping and mail interception equipment; 5)° security of information technology systems and products; 6°) security of the information systems of companies managing critical infrastructure; 7°) dual-use items and technology; 8°) cryptology goods and services; 9°) companies dealing with classified information; 10°) research, development and sale of weapons; 11°) companies that have entered into supply contract with the French Ministry of Defense regarding goods or services involving dual-use items and technology, cryptology goods and services, classified information or research, development and sale of weapons; 12°) activities related to goods, products or services, essential to preserve French interests in relation to public order, public security and national defense (such as energy supply water supply, electronic communication networks and services); 13°) R&D in relation to business sectors 4°), 8°), 9°) or 12°) regarding cybersecurity, artificial intelligence, robotics; 14)° data hosting with respect to data pertaining to business sectors 11°) to 13°).    [2]   The Minister may in particular order the investor to dispose of all or part of the concerned business.    [3]   The amount of which will be defined by a decree to be released later by the French government. Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding the issues discussed in this update. For further information, please contact the Gibson Dunn lawyer with whom you usually work or any of the following members of the Paris office by phone (+33 1 56 43 13 00) or by email (see below): Nicolas Baverez –nbaverez@gibsondunn.com Benoît Fleury – bfleury@gibsondunn.com Jean-Philippe Robé – jrobe@gibsondunn.com Nicolas Autet – nautet@gibsondunn.com © 2019 Gibson, Dunn & Crutcher LLP Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

May 9, 2019 |
UK Nationalisation – Investment Treaties can offer opportunities to reorganise now to protect valuations

Click for PDF The political instabilities caused by Brexit raise the possibility that a General Election may be held in the UK sooner than the scheduled 5 May 2022.  Given current political turbulence, the prospect of Labour winning any such snap election can no longer be dismissed.  If this happens, a future Labour government led by Jeremy Corbyn and John McDonnell is expected to consider nationalising a range of assets, including utilities (such as water, rail and energy), the Royal Mail and possibly even certain private finance initiative (PFI) companies.  Nationalising profitable UK companies on this scale  has not happened since the post-WWII 1945 Labour government. How might nationalisation happen? There is not yet much detail on how any nationalisation programme would be carried out.  Industry-specific regulations and arrangements mean that the process will probably differ depending on the sector.  Some businesses – e.g. rail, certain PFI contracts – are run under  time-limited franchises and a Labour government might simply allow these contracts to run their course before bringing them back under government control.  However, other utilities are run under perpetual licences (e.g. regional water franchises in England and Wales were sold, not leased).  Here, the Government would need to impose a compulsory takeover, possibly issuing Government bonds to shareholders in exchange for their shares in the company owning the asset. Valuations It will not be possible to prevent the expropriation of these assets if it is approved by the UK Parliament.  However, a key question will be how the owners of such nationalised assets will be compensated.  Valuing shares is typically complex (especially with unlisted SPV ownership structures).  Labour has suggested valuations would be made on a case by case basis, with a role for Parliament in the process.  There is a concern, however, that Labour may seek to save money by refusing to pay full market value for the expropriated assets, or that the use of Government bonds as consideration may mean that payment is deferred over extremely long periods (some of the stock issued as consideration for the post-WWII nationalisations was not redeemable for 40 years). Valuations that are seen as unfair will inevitably trigger compensation claims by investors.  There are a number of routes to possible claims, such as under the Human Rights Act 1998 and/or the European Convention on Human Rights.  However, investment treaties may offer some investors a better chance of reclaiming the full value of their expropriated investments.  The standard of compensation under most investment treaties is fair market value.  In order to take advantage of an investment treaty, an investor will need to have in place a corporate structure which includes an entity located in a jurisdiction that is party to an investment treaty with the UK to pursue a treaty claim. What is an investment treaty? An investment treaty is an agreement between states that helps facilitate private foreign direct investment by nationals and companies of one state into the other.  Most investment treaties are bilateral (known as “bilateral investment treaties” or “BITs”), but the UK is also a party to the Energy Charter Treaty, which is a multilateral investment treaty with 51 signatories.  The purpose of an investment treaty is to stimulate foreign investment by reducing political risk.  Amongst other things, it is intended to protect an international investor if an asset it owns in the other state is subsequently nationalised without adequate compensation.  Investment treaties generally provide that the overseas investor will receive fair and equitable treatment and that the compensation for any nationalisation will be appropriate and adequate.  There are currently more than 3,200 BITs in force worldwide. The definition of what constitutes an investment is usually quite broad including, for example, security interests, rights under a contract and rights derived from shares of a company. Importantly, most investment treaties provide investors with a right to commence arbitration proceedings and seek compensation if the state has breached its obligations under the treaty (e.g. for failing to provide adequate compensation for a nationalisation).  This means a UK investment treaty could offer an avenue of protection for an overseas investor of a nationalised UK asset.  A list of countries with a UK BIT is here. How to benefit from a UK investment treaty? Some investors in UK assets that may be the subject of nationalisations are considering restructuring their UK investments to take advantage of investment treaties to which the UK is a party.  In some circumstances, this can be achieved by simply including a holding company in the corporate chain which is located in a jurisdiction that has an investment treaty with the UK.  So long as the restructuring is completed before a dispute regarding nationalisation arises, it will be effective.  Therefore, investors who hold UK assets that potentially may be the subject of nationalisation should consider restructuring now. The UK has investment treaties in force with over 100 jurisdictions but not all of them will be suitable for a restructuring.  Investors will want to analyse not only the substance of the UK investment treaty to which the host country is a signatory (some are more rudimentary than others) but also other risk factors.   In particular, investors will want to check the tax treatment of a particular investment vehicle, including making sure that the new company is not obliged under local rules to withhold tax on any interest or dividends.  Equally, some jurisdictions may be considered unattractive because of geopolitical uncertainties or because their courts and professionals have limited business experience.  The costs and governance associated with any possible restructuring would also need to be carefully considered, especially if the restructuring involves a jurisdiction where the new entity will be required to establish a more substantive business presence.  Given all these risks, there are probably only a very small set of  jurisdictions where investors might consider incorporating an entity within their deal structures. Each investment treaty is different and the possible structure will depend on the exact terms of the relevant treaty.  However, in general terms, the restructuring would usually involve the insertion of a new entity incorporated at the top of the corporate structure that holds the UK assets (but below any fund) via a share-for-share exchange with the existing holding entity. Conclusion If a future Labour government seeks to nationalise private assets it is inevitable that claims will be made, particularly regarding the amount of compensation paid to owners.  Although it is not yet clear how a Labour government would assess compensation levels, investors may wish to consider structuring their investments so that they will have the option of using a UK investment treaty for any valuation disputes. This client alert was prepared by London partners Charlie Geffen, Nicholas Aleksander and Jeffrey Sullivan, of counsel Anne MacPherson and associate Tamas Lorinczy. Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these developments.  Please feel free to contact the Gibson Dunn lawyer with whom you usually work or any of the following lawyers: Jeffrey Sullivan – International Arbitration jeffrey.sullivan@gibsondunn.com Tel: 020 7071 4231 Sandy Bhogal – Tax SBhogal@gibsondunn.com Tel: 020 7071 4266 Charlie Geffen – Corporate CGeffen@gibsondunn.com Tel: 020 7071 4225 Nicholas Aleksander – Tax NAleksander@gibsondunn.com Tel: 020 7071 4232 Tamas Lorinczy – Corporate tlorinczy@gibsondunn.com Tel: 020 7071 4218 © 2019 Gibson, Dunn & Crutcher LLP Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

April 29, 2019 |
Investments in MENA-Based Assets: Please proceed to the Exit in an orderly fashion

Click for PDF Following the influx of capital into the MENA region in the last two decades, private equity (PE) firms and institutional investors who acquired businesses during that period, and who generally hold on to such assets for a period of 3-7 years, are now seeking to divest these assets and provide returns to their investors. Whilst more developed regions have a strong track record of successful exits, exits from investments in MENA based assets are traditionally more difficult to realise. This article sets out a number of methods to streamline exit processes and potentially increase returns. TURNKEY TRANSACTION The timeframe for the execution phase of a non-complex PE sale transaction (i.e. the period between entering negotiations on a term sheet and closing the deal) is often significantly longer in MENA than it is in developed markets. Even with the best of intentions, it is not uncommon for simple dispositions in the MENA region to drag on for nine to 12 months and regularly it takes much longer. To help shorten this timeframe, private equity and corporate sellers alike should pre-empt issues and attempt to provide the purchaser with a potential “turnkey transaction”. Pre-sale diligence and clean-up The first step in offering a turnkey solution is ensuring that the target group undergoes an extensive vendor due diligence review prior to taking it to market. From a legal perspective, this review should usually include (as a minimum): (i) ensuring that each member of the target group has the requisite licences to operate in its jurisdiction of operation; (ii) simplifying the corporate structure of the target group to make the disposition smooth and marketable; (iii) renewing commercial contracts with key customers and suppliers; (iv) ascertaining (and minimising) which counterparties of the target group’s commercial and financial arrangements will be required to consent to the transaction; and (v) setting up and maintaining a well organised virtual data room. Identifying and resolving issues prior to entering into a formal sales process ensures time is not wasted trying to solve them contractually later in the process. Preparation of a vendor due diligence report also means bidders do not have to carry out due diligence cold. Undertaking these steps prior to going to market will streamline the process to signing, reduce the number of conditions precedent and specific indemnities requested by potential purchasers (which will leave the seller in a stronger negotiating position) and limit the time from signing to completion. Taken together, this should result in significant cost savings. Additionally, a well organised and structured corporate group, with a limited number of identified issues, will be a more attractive proposition for purchasers and could lead to higher asset valuations. W&I insurance A pre-negotiated warranty and indemnity insurance policy is now commonly offered by private equity sellers in developed markets and is emerging as a tool in the MENA market. Whilst its prominence in the region is growing, it is still somewhat of an unknown option for many market participants. To give this issue context, generally speaking, PE sellers will not give warranties or indemnities except as to title and any SPV seller will immediately distribute the proceeds to investors. As a result, the purchaser will have limited recourse for any claims under the SPA. Comprehensive W&I insurance can help to bridge this gap, giving purchasers the security they need and allowing the seller to determine its internal rate of return on the transaction on completion and to distribute the proceeds to its investors without delay. With a stapled W&I policy in place, negotiations of the SPA warranty package are also often more efficient, although W&I insurance providers will be reluctant to insure a one-sided suite of warranties based on limited due diligence. Stapled financing Another option to facilitate a smooth exit is for the seller to arrange stapled financing. Essentially, stapled financing is a financing package pre-arranged by the seller and its advisors prior to going to market, which is then offered to potential purchasers. This form of financing offers both sellers and purchasers a number of advantages. Although in more developed jurisdictions the debt markets are relatively competitive and acquisition financing is more easily attainable, in MENA obtaining acquisition finance has, historically, often been somewhat challenging. Stapled finance packages offer potential purchasers easier access to debt they may otherwise have found very difficult to raise, especially in a truncated timeframe. Importantly, stapled financing also provides an indication of the expected sale price as it demonstrates the debt multiple the business can sustain. In an auction process (further discussed below), offering stapled financing means there could be an increase in the number of fully funded bidders, which should increase competition and potentially lead to a higher sale price. In a transaction with a split signing and completion, offering stapled financing also provides increased deal certainty to the seller by reducing the risk of the successful purchaser being unable to fund the transaction at completion. For purchasers, stapled financing can help streamline the process of securing acquisition financing.  Even if a successful purchaser decides not to move ahead with the stapled terms as offered, from the outset of the transaction they should have a well negotiated facilities agreement and term sheet which they can build on and potentially use to negotiate better terms. This should save the potential purchaser a considerable amount of time and effort and reduce their legal fees. SECONDARY BUYOUTS In the first half of 2018, secondary buyouts (i.e. a disposition of an asset by a financial sponsor or PE firm to a different financial sponsor or PE firm) accounted for over 40% of all dispositions by PE firms in the US. The proliferation of secondary buyouts has been a growing trend in developed markets since 2010, but it is fair to say that this has not yet extended to the Middle East. Indeed secondary buyouts are relatively rare. There are two primary reasons for this: (1) there are fewer players in the market; and (2) there is possible mistrust between competitors. Potential purchasers fear that the seller will have extracted most of the value from the asset prior to the sale and sellers fear that the purchaser may be able to re-sell the asset within a short timeframe for a significantly higher price. Although there is nothing you can do to increase the number of players in the MENA PE market, there are several methods that sellers can employ to alleviate both their own trust concerns and those of a potential PE purchaser. The first is the inclusion of “anti-embarrassment” provisions in the share purchase agreement. Anti-embarrassment provisions require the purchase price of the secondary buyout to be recalculated and to be subject to an upwards adjustment if the purchaser sells on the asset at a higher price within a certain period (normally 1-2 years) following completion of the original transaction. Although anti-embarrassment provisions are less common than they used to be in more developed markets, as asset prices are generally quite stable, market participants have strong relationships and short hold periods are relatively uncommon, this could be a useful tool in MENA where the market is more volatile. To assuage the concerns of potential purchasers that the value of the asset has been maximised and there is no further ‘upside’ available, sellers could also consider rolling-over a small stake in the business (e.g. 10 to 20%), showing faith in the future of the business and aligning themselves with the buyer. If rolling-over a stake in the asset, it will be necessary, however, to ensure that this is permitted under the relevant fund documentation of the seller and to include appropriate minority protections (i.e. tag rights) under a shareholders’ agreement or similar arrangement. It is also important for a seller who is rolling-over to trust the buyer and understand the only realistic option for selling the rolled-over stake will be to exit on the buyer’s terms. RUNNING AN EFFECTIVE AUCTION PROCESS Studies have shown that where there is competition for a business the best way to maximise a financial investor’s return on any investment can be to run the exit process as an auction, rather than as a bilateral sale process. The benefits of this are clear: more potential purchasers come to market, which leads to increased competition, which should lead to a higher sale price. However, while a failed bilateral sale is a private matter, an unsuccessful auction process may become widely known in the market, which could result in other potential purchasers becoming wary of the asset. To try to prevent this from happening, sellers should ensure they run their auction process efficiently and with appropriate ‘gates’ at different stages of the process (such as letters of intent or non-binding indicative bids). This also allows for a pre-emptive bid to emerge should that be available. During the preparation stage of the auction process, the seller or its investment banking team on the transaction should consider the bidder universe, identify those bidders (both financial and strategic) that might be key players in an auction, and be comfortable that those invited to participate will participate meaningfully in the process. Usually they will circulate a teaser containing a limited amount of financial and other information on the business before bidders formally enter the auction process. If there are insufficient meaningful bidders to create competitive tension, the seller will lose its leverage in the process and the advantage of running an auction process is gone. Throughout the auction sale, in order to ensure the potential purchasers maintain discipline, and provided there is competitive tension it is vital to stick to the timeline and process set out in the process letter and remove those parties from the process who fail to do so. The non-disclosure agreement (NDA) will be the first legal document prospective bidders will see in an auction so it is likely to set the stage for the whole process. To help limit legal costs, the NDA should contain market standard terms that will not need to be heavily negotiated (when sending this document to prospective bidders, it is useful to inform them as such). Before moving on to the initial bidding stage of the process, the seller should instruct its legal advisors to prepare a well advanced, reasonably commercial template share purchase agreement (and shareholders’ agreement if rolling-over a stake in the business). This will help to prevent the legal costs of the transaction from spiralling and portray to potential bidders that the seller is a professional outfit who is looking to run an efficient, fair process and enter into a market standard transaction. Few things frustrate a bidder (and their legal advisers) as much as an unreasonably one-sided first draft SPA. When reviewing initial bids, the seller and the financial advisers should be careful to balance the desire to keep as many potential bidders in the process as possible with the need to ensure only qualified (by reference to the criteria set out in the process letter) and serious bidders move to the next stage of the process, when the potential bidders will receive access to the data room. It is not uncommon for companies to enter auctions primarily in order to gain confidential information on a competitor. Moreover, if the process is competitive, the seller should restrict the number of questions that bidders can submit to the management team (based on their due diligence findings) to ensure only those which are material need to be answered. Often bidders submit an excessive list of questions many of which are unnecessary and answering them can become a drain on management and lead to the incurrence of excessive legal fees. The inclusion of a vendor due diligence report in the data room should also help to limit the number of questions bidders and their advisers feel the need to ask. In the final stage of the auction process, the seller should seek to limit the exclusivity period provided to any final bidder and move to signing as soon as practicable (ideally within 24/48 hours). A shorter timeframe will add pressure on the purchaser to finalise the deal and will also leave open the option of returning to one of other bidders as a ‘white knight’ if the deal with the final bidder falls through. CONCLUSION In a market where successful sales by PE firms and financial institutions are difficult to come by, it would be prudent for sellers to consider implementing some (if not all) of the steps outlined above to streamline the transaction process, increase competition and maximise the consideration received in an exit situation. Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding the issues discussed in this update.  Gibson Dunn has been advising leading Middle Eastern institutions, companies, financial sponsors, sovereign wealth funds and merchant families on their global and regional transactions and disputes for more than 35 years.  For further information, please contact the Gibson Dunn lawyer with whom you usually work, or the following authors in the firm’s Dubai office, with any questions, thoughts or comments arising from this update. Fraser Dawson  (+971 (0)4 318 4619, fdawson@gibsondunn.com) Ciarán Deeny (+971 (0)4 318 4622, cdeeny@gibsondunn.com) © 2019 Gibson, Dunn & Crutcher LLP Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

April 25, 2019 |
Gibson Dunn Earns 79 Top-Tier Rankings in Chambers USA 2019

In its 2019 edition, Chambers USA: America’s Leading Lawyers for Business awarded Gibson Dunn 79 first-tier rankings, of which 27 were firm practice group rankings and 52 were individual lawyer rankings. Overall, the firm earned 276 rankings – 80 firm practice group rankings and 196 individual lawyer rankings. Gibson Dunn earned top-tier rankings in the following practice group categories: National – Antitrust National – Antitrust: Cartel National – Appellate Law National – Corporate Crime & Investigations National – FCPA National – Outsourcing National – Real Estate National – Retail National – Securities: Regulation CA – Antitrust CA – Environment CA – IT & Outsourcing CA – Litigation: Appellate CA – Litigation: General Commercial CA – Litigation: Securities CA – Litigation: White-Collar Crime & Government Investigations CA – Real Estate: Southern California CO – Litigation: White-Collar Crime & Government Investigations CO – Natural Resources & Energy DC – Corporate/M&A & Private Equity DC – Labor & Employment DC – Litigation: General Commercial DC – Litigation: White-Collar Crime & Government Investigations NY – Litigation: General Commercial: The Elite NY – Media & Entertainment: Litigation NY – Technology & Outsourcing TX – Antitrust This year, 155 Gibson Dunn attorneys were identified as leading lawyers in their respective practice areas, with some ranked in more than one category. The following lawyers achieved top-tier rankings:  D. Jarrett Arp, Theodore Boutrous, Jessica Brown, Jeffrey Chapman, Linda Curtis, Michael Darden, William Dawson, Patrick Dennis, Mark Director, Scott Edelman, Miguel Estrada, Stephen Fackler, Sean Feller, Eric Feuerstein, Amy Forbes, Stephen Glover, Richard Grime, Daniel Kolkey, Brian Lane, Jonathan Layne, Karen Manos, Randy Mastro, Cromwell Montgomery, Daniel Mummery, Stephen Nordahl, Theodore Olson, Richard Parker, William Peters, Tomer Pinkusiewicz, Sean Royall, Eugene Scalia, Jesse Sharf, Orin Snyder, George Stamas, Beau Stark, Charles Stevens, Daniel Swanson, Steven Talley, Helgi Walker, Robert Walters, F. Joseph Warin and Debra Wong Yang.

April 19, 2019 |
Gibson Dunn Ranked in Legal 500 EMEA 2019

The Legal 500 EMEA 2019 has recommended Gibson Dunn in 14 categories in Belgium, France, Germany and UAE.  The firm was recognized in Competition – EU and Global in Belgium; Administrative and Public Law, Dispute Resolution – Commercial Litigation Industry Focus – IT, Telecoms and the Internet, Insolvency, Insurance, Mergers and Acquisitions, and Tax in France; Antitrust, Compliance, Internal Investigations and Private Equity in Germany; and Corporate and M&A and Investment Funds in UAE. Chézard Ameer, Ahmed Baladi,  Jean-Pierre Farges and Dirk Oberbracht were all recognized as Leading Individuals. Jérôme Delaurière was listed as a “Next Generation Lawyer.”  

March 19, 2019 |
China Revamps Laws on Foreign Investments

Click for PDF On March 15, 2019, the National People’s Congress of China passed the Foreign Investment Law (the “Foreign Investment Law”) which, upon taking effect on January 1, 2020, will replace some of the basic laws and regulations relating to foreign investments in China (the “Existing Laws”).  This new law represents a major overhaul of China’s foreign investment regulatory regime developed over the last four decades. Current Regime The Existing Laws consist primarily of three pieces of legislation:  the Sino-Foreign Joint Venture Law (the “Equity JV Law”), the Foreign Enterprise Law (the “WFOE Law”) and the Sino-Foreign Co-operative Joint Venture Law (the “Co-operative JV Law”).  Each of these laws allows foreign investors to invest in a particular type of legal entity in China.  Under the WFOE Law, for example, a foreign investor can incorporate a wholly foreign owned enterprise (a “WFOE”).  Similarly, under the Equity JV Law and the Co-operative JV Law, foreign investors can set up equity or co-operative joint ventures with Chinese partners (the “Joint Ventures”).  The WFOEs and the Joint Ventures are collectively referred to as foreign invested enterprises (the “FIEs”).  Apart from these laws, China has (and periodically updates) a foreign investment catalogue (the “Foreign Investment Catalogue”) which divides foreign investments into those that are encouraged and those that are on a negative list (the “Negative List”).  The Negative List contains two sub-categories: the prohibited (i.e., no foreign investment is allowed) and the restricted (i.e., foreign investment is allowed subject to satisfaction of certain conditions).  Those sectors that are not on the encouraged list or the Negative List are treated as permitted. The overriding feature of China’s regulation of foreign investments is that the FIEs are treated very differently from companies that are not owned by foreign investors (the “Domestic Companies”).  While China is not unique in this regard, it is the degree of such difference that sets China apart from many other countries.  For instance, the FIEs not only have to satisfy the requirements under the Foreign Investment Catalogue, they also must be registered as different legal entities and subject to different governance procedures compared with the Domestic Companies.  Furthermore, the FIEs are often required to obtain more approvals and enjoy less benefits than the Domestic Companies. Over the last several years, partly as a result of complaints and pressure from foreign governments and businesses, China has taken steps to grant more equal treatment to the FIEs.  While the incorporation documents for all FIEs had to be reviewed and approved by China’s Ministry of Commerce (“MOFCOM”), such requirement is now only applicable to investments in sectors on the Negative List.  The Foreign Investment Law can be seen as another step towards creating a more level playing field in China for both the FIEs and the Domestic Companies. Major Provisions The major provisions of the Foreign Investment Law include the following: National Treatment The Foreign Investment Law specifically provides that the market entry management system for foreign investments in China consists of national treatment plus complying with the Negative List.  In other words, unless otherwise required under the Negative List, the FIEs should be treated in the same way as the Domestic Companies.  This is the first time such national treatment principle is expressly and unequivocally provided in a national law in China. The law also includes some specific requirements for national treatment, including that government policies in supporting business development be applied equally to the FIEs and that equal treatment be accorded to the FIEs in respect of government procurements. Moreover, after the Foreign Investment Law becomes effective, the FIEs will undergo the same incorporation process required under the PRC Company Law (instead of the Existing Laws) as the Domestic Companies.  The FIEs will also be governed in the same way as the Domestic Companies. Protection of Foreign Investments In addition to national treatment, the Foreign Investment Law also contains some  general principles which apparently are aimed at allaying concerns over lack of protection of foreign investments in China, including: there will be no expropriation of foreign investments, unless in special circumstances required for public interest and conducted through a legal process with fair and reasonable compensation made in a timely fashion; the intellectual property rights of the foreign investors and FIEs will be protected and infringements of such rights will be prosecuted strictly according to law; while voluntary technological cooperation between Chinese and foreign investors is encouraged, the terms of such cooperation should be discussed by the investing parties themselves based on principles of fairness and equality, and government authorities or officials may not force transfer of technology through administrative means; government authorities and officials must keep confidential commercial secrets obtained from the foreign investors and FIEs while performing normal government functions; government authorities may not decrease the lawful rights of the FIEs, increase their obligations, impose market entry or exit conditions or interfere with their normal business activities, unless otherwise required by law; local government authorities must honor and perform promises to and contracts with the foreign investors and FIEs made pursuant to law; and a mechanism will be established to collect and address complaints from the FIEs. Requirements under Other Laws The Foreign Investment Law also refers to a number of other laws and regulations relating to foreign investments in China, such as the PRC Anti-Monopoly Law and regulations relating to national security review.  These laws and regulations will continue to be applicable after the Foreign Investment Law comes into effect. Unanswered Questions The Foreign Investment Law is generally viewed as an improvement over the Existing Laws, but it also leaves some important questions unanswered.  One glaring example is that MOFCOM issued a prior draft of the Foreign Investment Law in 2015 for public comments (the “2015 Draft”), which, among other things, dealt with issues relating to variable interest entities (the “VIEs”) (please click here for our comments on the 2015 Draft).  However, the VIE related provisions have all been dropped from the promulgated Foreign Investment Law.  As the VIE structure has been widely used in investments in certain sectors in China for many years, the fact that the Chinese government is still unwilling or unready to tackle this issue is a disappointment to many foreign investors. Furthermore, the Foreign Investment Law is a rather short piece of legislation which contains primarily broad language on general principles.  The extent to which it will actually improve the environment for foreign investments in China will depend on what specific rules and policies will be adopted to implement the law.  For instance, the current Negative List was issued in June 2018.  Many foreign investors are hoping that, with the passage of the Foreign Investment Law, the Negative List will be updated again to further liberalize restrictions on foreign investments in certain sectors.  Similarly, the Foreign Investment Law provides that foreign investors can freely remit out of China their earnings, royalties, capital gains and proceeds from disposal of assets.  However, given China’s tight foreign exchange controls, foreign investors often encounter obstacles and delays in actually making such remittance.  One encouraging development was that three days after the Foreign Investment Law was passed, China’s forex authority issued a circular revising and simplifying rules on cross border financing activities by multinational companies. The Foreign Investment Law is intended to promote and protect foreign investments by making the FIEs less “foreign” in China.  This is a challenge as well as a welcome step in a country which traditionally has believed strongly that there is a big difference between what is domestic and what is foreign.  It remains to be seen whether the purported benefits for foreign investors under  the Foreign Investment Law will be fully realized in real life. Gibson, Dunn & Crutcher’s lawyers are available to assist in addressing any questions you may have about this development.  Please contact the Gibson Dunn lawyer with whom you usually work or the following authors: Yi Zhang – Hong Kong (+852 2214 3988, yzhang@gibsondunn.com) Fang Xue – Beijing (+86 10 6502 8687, fxue@gibsondunn.com) Keron Guo – Beijing (+86 10 6502 8505, kguo@gibsondunn.com) © 2019 Gibson, Dunn & Crutcher LLP Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

February 6, 2019 |
Webcast: The Capital Markets and Private Equity: From Pre-IPO Planning through Public Company Life

Private equity continues to play a prominent role in the life of public and private U.S. companies. This presentation will explain and explore the life cycle of a PE-sponsored public company, from initial acquisition to pre-IPO planning and structuring, governance considerations, and how public companies access the capital markets through private equity. Our team of capital markets and private equity panelists will discuss market trends, legal developments and our recommendations. View Slides (PDF) PANELISTS: Andrew L. Fabens will share insights based on his experience with initial public offerings of PE-sponsored companies. He is a partner in Gibson Dunn’s New York office, Co-Chair of the firm’s Capital Markets Practice Group and a member of the firm’s Securities Regulation and Corporate Governance Practice Group. Mr. Fabens advises companies on long-term and strategic capital planning, disclosure and reporting obligations under U.S. federal securities laws, corporate governance issues and stock exchange listing obligations. He represents issuers and underwriters in public and private corporate finance transactions, both in the United States and internationally. Andrew M. Herman will share the private equity firm’s perspective on participating in the U.S. capital markets. He is a partner in Gibson Dunn’s Washington, D.C. office and a member of the firm’s Mergers and Acquisitions and Private Equity Practice Groups. Mr. Herman’s practice focuses on advising private equity sponsors and their portfolio companies on leveraged buyouts, growth equity investments and other transactions. He also advises public companies on mergers and acquisitions transactions, securities law compliance and corporate governance. He is experienced in advising on the acquisition and sale of sports franchises. Hillary H. Holmes will share insights and trends regarding PE participation in the capital markets for public companies. She is a partner in Gibson Dunn’s Houston office, Co-Chair of the firm’s Capital Markets practice group, and a member of the firm’s Oil and Gas, Securities Regulation and Corporate Governance, and Private Equity Practice Groups. Ms. Holmes’ practice focuses on securities law and governance counseling in the oil & gas energy industry. She represents private equity, public companies, private companies, MLPs, investment banks and management teams in all forms of capital markets transactions. She also advises boards of directors, conflicts committees, and financial advisors in complex transactions. Julia Lapitskaya will share our views regarding corporate governance of a PE-sponsored company. She is Of Counsel in Gibson Dunn’s New York office and a member of the Securities Regulation and Corporate Governance Practice Group. Ms. Lapitskaya’s practice focuses on corporate governance, SEC and Securities Exchange Act of 1934 compliance, securities and corporate governance disclosure issues, state corporate laws, the Dodd-Frank Act of 2010, SEC regulations and executive compensation disclosure issues. Peter W. Wardle will share insights based on his experience with initial public offerings of PE-sponsored companies. He is a partner in Gibson Dunn’s Los Angeles office and Co-Chair of the firm’s Capital Markets Practice Group. Mr. Wardle’s practice includes representation of issuers and underwriters in equity and debt offerings, including IPOs and secondary public offerings, and representation of both public and private companies in mergers and acquisitions, including private equity, cross border, leveraged buy-out, distressed and going private transactions. He also advises clients on a wide variety of disclosure and reporting obligations, stock exchange listing issues, and general corporate and securities law matters, including corporate governance issues. MCLE CREDIT INFORMATION: This program has been approved for credit in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 1.0 credit hour, of which 1.0 credit hour may be applied toward the areas of professional practice requirement. This course is approved for transitional/non-transitional credit. Attorneys seeking New York credit must obtain an Affirmation Form prior to watching the archived version of this webcast. Please contact Jeanine McKeown (National Training Administrator), at 213-229-7140 or jmckeown@gibsondunn.com to request the MCLE form. This program has been approved for credit in accordance with the requirements of the Texas State Bar for a maximum of 1.0 credit hour, of which 1.0 credit hour may be applied toward the area of accredited general requirement. Attorneys seeking Texas credit must obtain an Affirmation Form prior to watching the archived version of this webcast. Please contact Jeanine McKeown (National Training Administrator), at 213-229-7140 or jmckeown@gibsondunn.com to request the MCLE form. Gibson, Dunn & Crutcher LLP certifies that this activity has been approved for MCLE credit by the State Bar of California in the amount of 1.0 hour. California attorneys may claim “self-study” credit for viewing the archived version of this webcast.  No certificate of attendance is required for California “self-study” credit.

January 22, 2019 |
M&A Report – A New Twist in the Oxbow Joint Venture Saga: Delaware Supreme Court Rules the Covenant of Good Faith and Fair Dealing Cannot Save the Day

Click for PDF The Delaware Supreme Court recently overruled a Court of Chancery opinion that had relied on the covenant of good faith and fair dealing to allow the minority owners in a joint venture to force an exit transaction. In its opinion, the Delaware Supreme Court offered useful guidance for parties seeking to draft joint venture exit provisions and indicated that parties should not expect to rely on the implied covenant of good faith and fair dealing to deliver them from a harsh outcome dictated by clear contractual language. In Oxbow Carbon & Minerals Holdings, Inc. v. Crestview-Oxbow Acquisition, LLC, No. 536, 2018, 2019 WL 237360 (Del. Jan. 17, 2019), the Delaware Supreme Court refused to invoke the implied covenant of good faith and fair dealing to resolve a dispute over whether certain minority members of Oxbow Carbon LLC (“Oxbow”) had a contractual right under Oxbow’s limited liability company agreement (the “LLC Agreement”) to force Oxbow to engage in an “Exit Sale.” The decision highlights the need for parties to devote special attention when drafting joint venture exit provisions and to take care when admitting new members to ensure that such admission does not create unintended consequences for the forced sale or other provisions in the agreements. The dispute arose when two minority members of Oxbow, both of which were owned by the private equity fund Crestview Partners L.P. (“Crestview”) and together owned approximately one-third of the outstanding equity of Oxbow, sought to enforce a contractual right under the LLC Agreement to force Oxbow to engage in an Exit Sale. The LLC Agreement contained an exit sale provision which provided that, beginning on the seventh anniversary of Crestview’s investment (May 2014), Crestview had the right to force Oxbow to engage in an Exit Sale. The LLC Agreement defined an “Exit Sale” as a “Transfer of all, but not less than all, of the then-outstanding Equity Securities of [Oxbow] and/or all of the assets of [Oxbow].” The Exit Sale provision also stated that the exercising party “may not require any other Member to engage in such Exit Sale unless the resulting proceeds to such Member equal at least 1.5 times such Member’s aggregate Capital Contributions through such date.” The dispute centered on two small holders (the “Small Holders”) of Oxbow securities, both of which were controlled by the CEO, founder and majority member of Oxbow, William Koch (“Koch”). Notably, when the Small Holders were admitted as members of Oxbow in 2011 and 2012, respectively, Oxbow (controlled by Koch) failed to follow the procedures required by the LLC Agreement and did not obtain all requisite approvals for the admission of the new members. In connection with the admission of the Small Holders, the existing members should have been asked to waive their preemptive rights; because it was a related party transaction, the admission of the Small Holders should have been approved by a supermajority vote of the existing members; and the Small Holders should have delivered counterpart signature pages to the LLC Agreement. None of these conditions were satisfied, except that signature pages were delivered after the commencement of litigation. Nevertheless, the other members (including Crestview) treated the Small Holders as members and did not raise the defects in their admission until the dispute regarding the Exit Sale arose. Under the terms of Crestview’s proposed Exit Sale, the Small Holders would not receive the 1.5 times return on investment required by the terms of the Exit Sale provision in the LLC Agreement. As a result, Koch and the Small Holders brought suit seeking a declaratory judgment from the Court of Chancery that, absent a 1.5 times return on investment for all members of Oxbow including the Small Holders, Crestview did not have the right to force the proposed Exit Sale. The Small Holders argued that if an Exit Sale does not satisfy the 1.5 times requirement for any member, and that member chooses not to participate, then the Exit Sale cannot go forward because it no longer would involve “all, but not less than all, of the then-outstanding Equity Securities of [Oxbow].” The Court of Chancery referred to this argument as the “Blocking Theory.” In contrast, Crestview argued that if an Exit Sale does not satisfy the 1.5 times requirement for any member, then that member can choose to participate in the Exit Sale, but cannot be forced to sell, and the Exit Sale can proceed without such member. The Court of Chancery referred to this argument as the “Leave Behind Theory.” Crestview also argued that, assuming the Small Holder’s preferred Blocking Theory was adopted and assuming the Exit Sale would not satisfy the 1.5 times requirement for the Small Holders, the Exit Sale should still be able to proceed if the Small Holders receive additional funds sufficient to satisfy the 1.5 times requirement—i.e., if the Small Holders are provided with an additional amount of the sale proceeds such that they receive the 1.5 times return on investment required by the Exit Sale provision. The Court of Chancery referred to this argument as the “Top Off Theory.” The Small Holders responded to Crestview’s Top Off Theory-argument by citing the equal treatment provision in the LLC Agreement which stated that an Exit Sale must treat all members equally by offering “the same terms and conditions” to each member and allocating proceeds “by assuming that the aggregate purchase price was distributed” pro rata to all unitholders and that the unequal distribution proposed by the Top Off Theory would violate such requirement. The Court of Chancery held that the plain language of the LLC Agreement foreclosed Crestview’s arguments in favor of the Leave Behind Theory and Top Off Theory. The Court of Chancery noted that in interpreting contract language, the court must construe the agreement as a whole and give effect to all of its provisions. The Court of Chancery pointed out that while the language of the Exit Sale provision in isolation could be interpreted as supporting Crestview’s Leave Behind Theory, the Leave Behind Theory was inconsistent with the definition of “Exit Sale,” which did not contemplate a partial exit, and Crestview’s Top Off Theory was inconsistent with language in the LLC Agreement requiring payments in an Exit Sale be made on a pro rata basis. Crestview also contended that the Small Holders were not properly admitted as members because the required approvals had not been obtained and required procedures had not been followed in connection with their admission. As a result, according to Crestview, because the Small Holders had not properly been admitted as members, the dispute over the 1.5 times return on investment was moot. The Court of Chancery rejected this argument based on the equitable defense of laches – that Crestview had known about the admission of the Small Holders as far back as 2011 and had not objected until this dispute arose. Notwithstanding the rejection of Crestview’s arguments based on the contractual language and the defective admission of the Small Holders, the Court of Chancery nevertheless invoked the implied covenant of good faith and fair dealing to allow the Exit Sale to proceed. The Court of Chancery noted that the implied covenant ensures that the parties’ contractual expectations are fulfilled in unforeseen circumstances, and the implied covenant supplies terms to fill gaps in the contract. In this case, the Court of Chancery determined that, while the LLC Agreement clearly contemplated the possibility of adding additional members, the LLC Agreement did not specify the rights that later-admitted members would have. Instead, the LLC Agreement empowered Oxbow’s board to determine such rights when additional members were admitted. However, when the Small Holders were admitted, Oxbow failed to follow required procedures, which resulted in the board of Oxbow not determining the rights of the Small Holders. Consequently, according to the Court of Chancery, there were gaps as to how the LLC Agreement and the 1.5 times return on investment requirement were intended to apply to the Small Holders. Ultimately, the Court of Chancery held that the 1.5 times requirement did not give the Small Holders a blocking right. In reaching this decision, the Court of Chancery appeared sympathetic to Crestview, particularly in light of the fact that the failure of the board to determine the rights of the Small Holders arguably stemmed from failures of Oxbow (as controlled by Koch), and stated that an alternative finding would have “produce[d] a harsh result by effectively blocking an Exit Sale.” The Court of Chancery further determined that, had the parties considered the rights of the Small Holders at the time of their admission, Crestview never would have agreed to a re-set of the 1.5 times clause. Koch and the Small Holders appealed the Court of Chancery’s decision to the Delaware Supreme Court. On appeal, the Delaware Supreme Court agreed with the Court of Chancery’s determination that the plain language of the LLC Agreement foreclosed Crestview’s arguments in favor of the Leave Behind Theory and Top Off Theory. However, the Delaware Supreme Court disagreed with the lower court’s conclusion that there had been any “gaps” in the LLC agreement. The Delaware Supreme Court held that the LLC Agreement conferred discretion on the board to determine the terms and conditions applicable to newly admitted members (such as the Small Holders) when they were admitted, and this deferral of determination until admission was a contractual choice and did not create a gap in the LLC Agreement. That is, the fact that the board had discretion to set the terms and conditions applicable to the Small Holders, but it did not require that the Small Holders be treated differently for purposes of determining whether an Exit Sale could proceed, did not create a contractual gap. Rather, the failure to set such terms and conditions resulted from Crestview’s “sloppiness and failure to consider the implications of the Small Holders’ investment.” The Supreme Court pointed out that, while not every procedural formality in connection with the Small Holders’ admission had been followed, Crestview approved the admission of the Small Holders, received a distribution based on the investment from the Small Holders and treated the Small Holders as members. Indeed, the Court of Chancery had held that the equitable defense of laches foreclosed Crestview from arguing that the Small Holders had not been admitted. The Supreme Court noted that the Court of Chancery’s determinations both that Crestview had approved the admission of the Small Holders (notwithstanding the failure to follow certain formalities for admission) and that a contractual gap exists resulting from such failure created “an untenable tension.” The Supreme Court further cautioned that use of the implied covenant of good faith and fair dealing is a limited and extraordinary legal remedy that does not apply when the contract addresses the conduct at issue. The Supreme Court agreed with the Court of Chancery that the plain language of the LLC Agreement foreclosed Crestview’s arguments based on the contractual language. This case highlights the need for parties to devote special attention when drafting joint venture exit provisions in limited liability company agreements and to take care when admitting new members to ensure that such admission does not create unintended consequences for the forced sale or other provisions in the agreements. As a starting point, parties should be careful to address how any minimum return on investment requirement, such as the LLC Agreement’s 1.5 times requirement, will apply to members who are admitted as members at different times. The parties should also consider whether, in the case of a minimum return requirement, they desire to have the flexibility of a topping off option or if the minimum return requirement may only be satisfied upon pro rata and equal distribution of an exit sale’s proceeds. In addition, the parties should be explicit about what type of exit sale a joint venture partner can force. That is, parties should consider whether such provisions should be limited only to equity sales, changes of control or sales of assets, and they should think through how a sale of assets would be accomplished if a holder is entitled to stay behind and not participate in a sale. Further, parties should be extremely careful when using defined terms that also apply to other provisions because such overlapping usage may incorporate concepts not intended to be applied to an exit sale. For example, in the LLC Agreement, the definition of “Exit Sale” also applied to the drag-along provision, and the equal treatment provision applied to the drag-along and other provisions. While the definition and the equal treatment provision made sense in the context of the drag-along provision, they raised issues in the context of Crestview’s right to force a sale because they effectively granted the Small Holders a blocking right. If the exit provision includes a minimum return on investment requirement, the exit provision language should make clear whether the minimum return on investment requirement creates a blocking right or a leave behind right. If the leave behind concept applies, the parties should be explicit about how such leave behind would work in the event of a sale of all the assets of the company. In sum, parties should take care to address all potential contingencies in drafting exit provisions, including how such provisions will apply to newly admitted members, and, in particular, should ensure they do not inadvertently create a blocking right over a forced sale. As demonstrated by the Delaware Supreme Court’s opinion, courts are unlikely to use the implied covenant of good faith and fair dealing to rescue a party faced with “an extreme, harsh and unforeseen result arising from a plain reading” of the contract in question. Gibson Dunn’s lawyers are available to assist with any questions you may have regarding these issues. For further information, please contact the Gibson Dunn lawyer with whom you usually work or the following authors: Robert B. Little – Dallas (+1 214-698-3260, rlittle@gibsondunn.com) Eric B. Pacifici – Dallas (+1 214-698-3401, epacifici@gibsondunn.com) Please also feel free to contact any of the following practice group leaders: Mergers and Acquisitions Group: Barbara L. Becker – New York (+1 212-351-4062, bbecker@gibsondunn.com) Jeffrey A. Chapman – Dallas (+1 214-698-3120, jchapman@gibsondunn.com) Stephen I. Glover – Washington, D.C. (+1 202-955-8593, siglover@gibsondunn.com) Private Equity Group: Sean P. Griffiths – New York (+1 212-351-3872, sgriffiths@gibsondunn.com) Ari Lanin – Los Angeles (+1 310-552-8581, alanin@gibsondunn.com) Steven R. Shoemate – New York (+1 212-351-3879, sshoemate@gibsondunn.com) Charlie Geffen – London (+44 (0)20 7071 4225, cgeffen@gibsondunn.com) Scott Jalowayski – Hong Kong (+852 2214 3727, sjalowayski@gibsondunn.com) © 2019 Gibson, Dunn & Crutcher LLP Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

January 18, 2019 |
Gibson Dunn Ranked in Legal 500 Asia Pacific 2019

Gibson Dunn has been recognized in 12 categories in the 2019 edition of The Legal 500 Asia Pacific. The Singapore office was ranked in the following Foreign Firms categories: Banking and Finance, Corporate and M&A, Energy and Restructuring.  The Hong Kong office was ranked in the Antitrust and Competition, Corporate (including M&A), Private Equity, Projects and Energy, and Regulatory: Anti-Corruption and Compliance categories.  Additionally, the firm was ranked for its work in India, Indonesia and the Philippines.  Brad Roach was named as a Leading Lawyer in the Singapore: Energy – Foreign Firms and Indonesia: Foreign Firms categories; Kelly Austin was named as a Leading Lawyer in the Hong Kong: Regulatory: Anti-Corruption and Compliance category; Michael Nicklin was named as a Leading Lawyer in the Hong Kong: Banking & Finance category; Scott Jalowayski and Brian Schwarzwalder were named as Leading Lawyers in the Hong Kong: Private Equity category; and Troy Doyle was named as a Leading Lawyer in the Singapore: Restructuring & Insolvency – Foreign Firms category; and John Fadely and Albert Cho were named as Leading Lawyers in the Hong Kong: Investment Funds category. Youjung Byon has also been named as a Next Generation Lawyer for Hong Kong: Investment Funds.

December 19, 2018 |
Webcast: CFIUS Reform: Implications for Private Equity Investments

On August 13, 2018, President Trump signed legislation that will significantly expand the scope of inbound foreign investments subject to review by the Committee on Foreign Investment in the United States (“CFIUS” or “the Committee”). The Foreign Investment Risk Review Modernization Act (“FIRRMA”) expanded the scope of transactions subject to the Committee’s review by granting CFIUS the authority to examine the national security implications of a foreign acquirer’s non-controlling investments in U.S. businesses that deal with critical infrastructure, critical technology, or the personal data of U.S. citizens. Critically, an express carve-out for indirect foreign investment through certain investment funds may prevent many transactions by private equity funds from falling into the Committee’s expanded jurisdiction. In this webcast presentation, our panelists discuss the new CFIUS legislation and its impact on private equity investments. View Slides (PDF) PANELISTS: Judith Alison Lee, a partner in Gibson Dunn’s Washington, D.C. office, is Co-Chair of the firm’s International Trade Practice Group. She practices in the areas of international trade regulation, including USA Patriot Act compliance, economic sanctions and embargoes, export controls, and national security reviews (“CFIUS”). She also advises on issues relating to virtual and digital currencies, blockchain technologies and distributed cryptoledgers. Jose W. Fernandez, a partner in Gibson Dunn’s New York office and Co-Chair of the firm’s Latin America Practice Group, previously served as Assistant Secretary of State for Economic, Energy and Business Affairs during the Obama Administration, and led the Bureau that is responsible for overseeing work on sanctions and international trade and investment policy. His practice focuses on mergers and acquisitions and finance in emerging markets in Latin America, the Middle East, Africa and Asia. Stephanie L. Connor, a senior associate in Gibson Dunn’s Washington D.C. office, practices primarily in the areas of international trade compliance and white collar investigations. She focuses on matters before the U.S. Committee on Foreign Investment in the United States (“CFIUS”) and has served on secondment to the Legal and Compliance division of a Fortune 100 company. Michael Garson is a Senior Managing Director at Ankura with more than 20 years of experience as an attorney in private practice, an in-house general counsel, and a C-suite operations and compliance executive. In those roles, he advised companies and enterprises of all sizes on US federal, state, and municipal procurements and grants and has specific expertise in defense and technology matters. MCLE CREDIT INFORMATION: This program has been approved for credit in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 1.50 credit hours, of which 1.50 credit hours may be applied toward the areas of professional practice requirement. This course is approved for transitional/non-transitional credit. Attorneys seeking New York credit must obtain an Affirmation Form prior to watching the archived version of this webcast. Please contact Jeanine McKeown (National Training Administrator), at 213-229-7140 or jmckeown@gibsondunn.com to request the MCLE form. This program has been approved for credit in accordance with the requirements of the Texas State Bar for a maximum of 1.50 credit hours, of which 1.50 credit hour may be applied toward the area of accredited general requirement. Attorneys seeking Texas credit must obtain an Affirmation Form prior to watching the archived version of this webcast. Please contact Jeanine McKeown (National Training Administrator), at 213-229-7140 or jmckeown@gibsondunn.com to request the MCLE form. Gibson, Dunn & Crutcher LLP certifies that this activity has been approved for MCLE credit by the State Bar of California in the amount of 1.50 hours. California attorneys may claim “self-study” credit for viewing the archived version of this webcast. No certificate of attendance is required for California “self-study” credit.  

December 20, 2018 |
Gibson Dunn Ranked in the Legal 500 Deutschland 2019

The Legal 500 Deutschland 2019 ranked Gibson Dunn in four practice areas and named Frankfurt partner Dirk Oberbracht as Leading Lawyer in Private Equity. The firm was recognized in the following categories: Antitrust, Compliance, Compliance: Internal Investigations, and Private Equity: Transactions. Oberbracht is a leading Private Equity and M&A lawyer. He advises private equity investors, corporate clients, families and management teams. He has extensive expertise in cross-border and domestic deals, including carve-outs, joint ventures, minority investments, corporate restructurings and management equity programs.

December 18, 2018 |
Getting a Take Private Off the Ground in the UK

Click for PDF Through discussions with bankers and other market participants, we anticipate that the number of UK take privates will continue to gather pace in 2019.  The UK takeover regime brings particular challenges to take private transactions.  Set out below is a reminder of a few of the early stage issues that arise and how they can be overcome. 1.   Who can management talk to? Senior executives owe duties to act in the best interests of their companies and so need to tread carefully.  However, they are free to have exploratory conversations with potential bidders provided they comply with a few basic principles: they need to be sure they have internal authority and support – keeping the Chairman of the Board informed is usually sufficient during the early stages.  (In the UK, the role of the Chairman and the CEO are invariably separate roles.) they must not disclose any confidential information to third parties – but usually there will be enough public information to allow for preliminary discussions. the number of people they speak to should be limited, both to minimize the risk of a leak and to ensure compliance with the Panel’s “rule of six” (meaning that there should be no more than six “live” discussions at any one time). advice must be taken from financial advisers and lawyers prior to engaging in any discussion around management incentive arrangements or any possible equity participation in the bidder. Once a bidder is willing to submit a written proposal to the target company, the Chairman will inform the entire board and an independent committee of the board, excluding anyone who might be involved with the bidder, will be established.  The independent committee will determine what information can be disclosed to bidders and management have an obligation to share with the board any information it discloses to potential bidders.  It should be remembered that any information disclosed to one bidder has to be disclosed to other potentially less welcome bidders. 2.   Diligence, costs and timing The due diligence process will be run by the independent committee so management should avoid disclosing any non-public information without prior approval from the independent committee. Target companies are not permitted to underwrite bidders’ costs although if a white knight bid is made in response to a hostile offer then an inducement fee, capped at 1%, is possible. There is also a rule (“Put up or shut up”) that requires a formal offer to be announced not later than 28 days following the first public announcement of a possible offer.  However, if discussions are ongoing it is usually possible to obtain an extension. 3.   Management and other significant shareholdings Sometimes management will own shares in the target company which are material in the context of an offer.  Under the Takeover Code all target shareholders have to be treated equally.  Therefore, if management wish to roll over their shares into shares of the bidder then either (i) all target shareholders must be offered the same opportunity to take equity in the bidder (which may result in the financial sponsor having to accommodate unwanted minority shareholders in the bidder) or (ii) independent shareholder approval must be obtained to management being treated differently.  The other structural alternative is for the Takeover Panel to agree that those “rolling over” can be treated as joint offerors with the financial sponsor – this is not an easy test to satisfy.  For these reasons great care needs to be taken before any discussions take place around management’s future interests in the bidder. It is worth noting that if management own a material interest in the target, a financial sponsor may be able to secure significant deal certainty by negotiating with management either a hard irrevocable undertaking to accept the offer or a hurdle irrevocable (under which management can only accept an alternative offer if the second offer is circa 15% higher than the initial offer). 4.   No financing condition and no MAC It must be remembered that in the UK a formal offer can only be made when there are “certain funds” in place to satisfy the cash consideration.  Financing conditions are not permitted and, for all practical purposes, there can be no MAC condition either.  The only substantive conditions that are permitted are regulatory and the requirement for acceptances of up to 90%.  This means that all financing needs to be in place on an unconditional basis at the time the offer is announced. Gibson Dunn’s lawyers are available to assist with any questions you may have regarding these issues.  For further information, please contact the Gibson Dunn lawyer with whom you usually work, any member of the firm’s Mergers and Acquisitions and Private Equity practice groups, or the following lawyers in London: Nigel Stacey (+44 (0)20 7071 4201, nstacey@gibsondunn.com) Jonathan Earle (+44 (0)20 7071 4211, jearle@gibsondunn.com) Charlie Geffen (+44 (0)20 7071 4225, cgeffen@gibsondunn.com) Selina Sagayam (+44 (0)20 7071 4263, ssagayam@gibsondunn.com) Jeremy Kenley (+44 (0)20 7071 4255, jkenley@gibsondunn.com) Anna Howell (+44 (0)20 7071 4241, ahowell@gibsondunn.com) Mark Sperotto (+44 (0)20 7071 4291, msperotto@gibsondunn.com) Nicholas Tomlinson (+44 (0)20 7071 4272, ntomlinson@gibsondunn.com) James R. Howe (+44 (0)20 7071 4214, jhowe@gibsondunn.com) Chris Haynes (+44 (0)20 7071 4238 , chaynes@gibsondunn.com) Alan Samson (+44 (0)20 7071 4222, asamson@gibsondunn.com) Thomas M. Budd (+44 (0)20 7071 4234, tbudd@gibsondunn.com) Amy Kennedy (+44 (0)20 7071 4283, akennedy@gibsondunn.com) © 2018 Gibson, Dunn & Crutcher LLP Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

November 30, 2018 |
The Hollywood Reporter Names Sean Griffiths Among Hollywood’s Top Dealmakers

New York partner Sean Griffiths was named as one of “Hollywood’s Top 20 Dealmakers of 2018” by The Hollywood Reporter. He was recognized for his representation of Investcorp and PSP Investments in the acquisition of a minority stake in United Talent Agency, a leading global talent and entertainment company. Griffiths has extensive experience representing private equity firms and their portfolio companies and companies in complex carve out and spin-off transactions and acquisitions. He also has extensive experience in corporate finance in both public and private capital markets, troubled company representation (crisis management), and general corporate and securities compliance matters.  The feature was published on November 30, 2018.

November 29, 2018 |
Gibson Dunn Ranked in 2019 Chambers Asia Pacific

Gibson Dunn earned 12 firm rankings and 21 individual rankings in the 2019 edition of Chambers Asia-Pacific. The firm was recognized in the Asia-Pacific Region-wide category for Investment Funds: Private Equity as well as the following International Firms categories: China Banking & Finance: Leveraged & Acquisition Finance; China Competition/Antitrust; China Corporate Investigations/Anti-Corruption; China Corporate/M&A: Highly Regarded; China Investment Funds: Private Equity; China Private Equity: Buyouts & Venture Capital Investment; India Corporate/M&A; Indonesia Corporate & Finance; Philippines Projects, Infrastructure & Energy; Singapore Corporate/M&A; and Singapore Energy & Natural Resources. The following lawyers were ranked individually in their respective categories: Kelly Austin – China Corporate Investigations/Anti-Corruption Albert Cho – China Investment Funds Troy Doyle – Singapore Restructuring/Insolvency Sébastien Evrard – China Competition/Antitrust John Fadely – China Investment Funds Scott Jalowayski – China Private Equity: Buyouts & Venture Capital Investment Michael Nicklin –  China Banking & Finance: Leveraged & Acquisition Finance Jai Pathak – India Corporate/M&A, and Singapore Corporate/M&A Brad Roach – Indonesia Projects & Energy, Singapore Energy & Natural Resources, and Singapore Energy & Natural Resources: Oil & Gas Saptak Santra – Singapore Energy & Natural Resources Brian Schwarzwalder – China Private Equity: Buyouts & Venture Capital Patricia Tan Openshaw – China Projects & Infrastructure, and Philippines Projects, Infrastructure & Energy Jamie Thomas – India Banking & Finance, Indonesia Banking & Finance, and Singapore Banking & Finance Graham Winter – China Corporate/M&A: Hong Kong-based Yi Zhang – China Corporate/M&A: Hong Kong-based The rankings were published on November 29, 2018.

November 21, 2018 |
Gibson Dunn Ranked in the 2019 UK Legal 500

The UK Legal 500 2019 ranked Gibson Dunn in 13 practice areas and named six partners as Leading Lawyers. The firm was recognized in the following categories: Corporate and Commercial: Equity Capital Markets Corporate and Commercial: M&A – Upper Mid-Market and Premium Deals, £250m+ Corporate and Commercial: Private Equity – High-value Deals Dispute Resolution: Commercial Litigation Dispute Resolution: International Arbitration Finance: Acquisition Finance Finance: Bank Lending: Investment Grade Debt and Syndicated Loans Human Resources: Employment – Employers Public Sector: Administrative and Public Law Real Estate: Commercial Property – Hotels and Leisure Real Estate: Commercial Property – Investment Real Estate: Property Finance Risk Advisory: Regulatory Investigations and Corporate Crime The partners named as Leading Lawyers are Sandy Bhogal – Corporate and Commercial: Corporate Tax; Steve Thierbach – Corporate and Commercial: Equity Capital Markets; Philip Rocher – Dispute Resolution: Commercial Litigation; Cyrus Benson – Dispute Resolution: International Arbitration; Jeffrey Sullivan – Dispute Resolution: International Arbitration; and Alan Samson – Real Estate: Commercial Property and Real Estate: Property Finance. Claibourne Harrison has also been named as a Next Generation Lawyer for Real Estate: Commercial Property.

October 30, 2018 |
Webcast: Spinning Out and Splitting Off – Navigating Complex Challenges in Corporate Separations

In the current strong market environment, spin-off deals have become a regular feature of the M&A landscape as strategic companies look for ways to maximize the value of various assets. Although the announcements have become routine, planning for and completing these transactions is a significant and multi-disciplinary undertaking. By its nature, a spin-off is at least a 3-in-1 transaction starting with the reorganization and carveout of the assets to be separated, followed by the negotiation of separation-related documents and finally the offering of the securities—and that does not even account for the significant tax, corporate governance, finance, IP and employee benefits aspects of the transaction. In this program, a panel of lawyers from a number of these key practice areas provided insights based on their recent experience structuring and executing spin-off transactions. They walked through the hot topics, common issues and potential work-arounds. View Slides (PDF) PANELISTS: Daniel Angel is a partner in Gibson Dunn’s New York office, Co-Chair of the firm’s Technology Transactions Practice Group and a member of its Strategic Sourcing and Commercial Transactions Practice Group. He is a transactional attorney who has represented clients on technology-related transactions since 2003. Mr. Angel has worked with a broad variety of clients ranging from market leaders to start-ups in a wide range of industries including financial services, private equity funds, life sciences, specialty chemicals, insurance, energy and telecommunications. Michael J. Collins is a partner in Gibson Dunn’s Washington, D.C. office and Co-Chair of the Executive Compensation and Employee Benefits Practice Group. His practice focuses on all aspects of employee benefits and executive compensation. He represents buyers and sellers in corporate transactions and companies in drafting and negotiating employment and equity compensation arrangements. Andrew L. Fabens is a partner in Gibson Dunn’s New York office, Co-Chair of the firm’s Capital Markets Practice Group and a member of the firm’s Securities Regulation and Corporate Governance Practice Group. Mr. Fabens advises companies on long-term and strategic capital planning, disclosure and reporting obligations under U.S. federal securities laws, corporate governance issues and stock exchange listing obligations. He represents issuers and underwriters in public and private corporate finance transactions, both in the United States and internationally. Stephen I. Glover is a partner in Gibson Dunn’s Washington, D.C. office and Co-Chair of the firm’s Mergers and Acquisitions Practice Group. Mr. Glover has an extensive practice representing public and private companies in complex mergers and acquisitions, including spin-offs and related transactions, as well as other corporate matters. Mr. Glover’s clients include large public corporations, emerging growth companies and middle market companies in a wide range of industries. He also advises private equity firms, individual investors and others. Elizabeth A. Ising is a partner in Gibson Dunn’s Washington, D.C. office, Co-Chair of the firm’s Securities Regulation and Corporate Governance Practice Group and a member of the firm’s Hostile M&A and Shareholder Activism team and Financial Institutions Practice Group. She advises clients, including public companies and their boards of directors, on corporate governance, securities law and regulatory matters and executive compensation best practices and disclosures. Saee Muzumdar is a partner in Gibson Dunn’s New York office and a member of the firm’s Mergers and Acquisitions Practice Group. Ms. Muzumdar is a corporate transactional lawyer whose practice includes representing both strategic companies and private equity clients (including their portfolio companies) in connection with all aspects of their domestic and cross-border M&A activities and general corporate counseling. Daniel A. Zygielbaum is an associate in Gibson Dunn’s Washington, D.C. office and a member of the firm’s Tax and Real Estate Investment Trust (REIT) Practice Groups. Mr. Zygielbaum’s practice focuses on international and domestic taxation of corporations, partnerships (including private equity funds), limited liability companies, REITs and their debt and equity investors. He advises clients on tax planning for fund formations and corporate and real estate acquisitions, dispositions, reorganizations and joint ventures. MCLE CREDIT INFORMATION: This program has been approved for credit in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 1.50 credit hours, of which 1.50 credit hours may be applied toward the areas of professional practice requirement. This course is approved for transitional/non-transitional credit. Attorneys seeking New York credit must obtain an Affirmation Form prior to watching the archived version of this webcast. Please contact Jeanine McKeown (National Training Administrator), at 213-229-7140 or jmckeown@gibsondunn.com to request the MCLE form. This program has been approved for credit in accordance with the requirements of the Texas State Bar for a maximum of 1.50 credit hours, of which 1.50 credit hour may be applied toward the area of accredited general requirement. Attorneys seeking Texas credit must obtain an Affirmation Form prior to watching the archived version of this webcast. Please contact Jeanine McKeown (National Training Administrator), at 213-229-7140 or jmckeown@gibsondunn.com to request the MCLE form. Gibson, Dunn & Crutcher LLP certifies that this activity has been approved for MCLE credit by the State Bar of California in the amount of 1.50 hours. California attorneys may claim “self-study” credit for viewing the archived version of this webcast. No certificate of attendance is required for California “self-study” credit.

October 22, 2018 |
IRS Provides Much Needed Guidance on Opportunity Zones through Issuance of Proposed Regulations

Click for PDF On October 19, 2018, the Internal Revenue Service (the “IRS“) and the Treasury Department issued proposed regulations (the “Proposed Regulations“) providing rules regarding the establishment and operation of “qualified opportunity funds” and their investment in “opportunity zones.”[1]  The Proposed Regulations address many open questions with respect to qualified opportunity funds, while expressly providing in the preamble that additional guidance will be forthcoming to address issues not resolved by the Proposed Regulations.  The Proposed Regulations should provide investors, sponsors and developers with the answers needed to move forward with projects in opportunity zones. Opportunity Zones Qualified opportunity funds were created as part of the tax law signed into law in December 2017 (commonly known as the Tax Cuts and Jobs Act (“TCJA“)) to incentivize private investment in economically underperforming areas by providing tax benefits for investments through qualified opportunity funds in opportunity zones.  Opportunity zones are low-income communities that were designated by each of the States as qualified opportunity zones – as of this writing, all opportunity zones have been designated, and each designation remains in effect from the date of designation until the end of the tenth year after such designation. Investments in qualified opportunity funds can qualify for three principal tax benefits: (i) a temporary deferral of capital gains that are reinvested in a qualified opportunity fund, (ii) a partial exclusion of those reinvested capital gains on a sliding scale and (iii) a permanent exclusion of all gains realized on an investment in a qualified opportunity fund that is held for a ten-year period. In general, all capital gains realized by a person that are reinvested within 180 days of the recognition of such gain in a qualified opportunity fund for which an election is made are deferred for U.S. federal income tax purposes until the earlier of (i) the date on which such investment is sold or exchanged and (ii) December 31, 2026. In addition, an investor’s tax basis in a qualified opportunity fund for purposes of determining gain or loss, is increased by 10 percent of the amount of gain deferred if the investment is held for five years prior to December 31, 2026 and is increased by an additional 5 percent (for a total increase of 15 percent) of the amount of gain deferred if the investment is held for seven years prior to December 31, 2026. Finally, for investments in a qualified opportunity fund that are attributable to reinvested capital gains and held for at least 10 years, the basis of such investment is increased to the fair market value of the investment on the date of the sale or exchange of such investment, effectively eliminating any gain (other than the deferred gain that was reinvested in the qualified opportunity fund and taxable or excluded as described above) in the investment for U.S. federal income tax purposes (such benefit, the “Ten Year Benefit“). A qualified opportunity fund, in general terms, is a corporation or partnership that invests at least 90 percent of its assets in “qualified opportunity zone property,” which is defined under the TCJA as “qualified opportunity zone business property,” “qualified opportunity zone stock” and “qualified opportunity zone partnership interests.”  Qualified opportunity zone business property is tangible property used in a trade or business within an opportunity zone if, among other requirements, (i) the property is acquired by the qualified opportunity fund by purchase, after December 31, 2017, from an unrelated person, (ii) either the original use of the property in the opportunity zone commences with the qualified opportunity fund or the qualified opportunity fund “substantially improves” the property by doubling the basis of the property over any 30 month period after the property is acquired and (iii) substantially all of the use of the property is within an opportunity zone.  Essentially, qualified opportunity zone stock and qualified opportunity zone partnership interests are stock or interests in a corporation or partnership acquired in a primary issuance for cash after December 31, 2017 and where “substantially all” of the tangible property, whether leased or owned, of the corporation or partnership is qualified opportunity zone business property. The Proposed Regulations – Summary and Observations The powerful tax incentives provided by opportunity zones attracted substantial interest from investors and the real estate community, but many unresolved questions have prevented some taxpayers from availing themselves of the benefits of the law.  A few highlights from the Proposed Regulations, as well as certain issues that were not resolved, are outlined below. Capital Gains The language of the TCJA left open the possibility that both capital gains and ordinary gains (e.g., dealer income) could qualify for deferral if invested in a qualified opportunity fund.  The Proposed Regulations provide that only capital gains, whether short-term or long-term, qualify for deferral if invested in a qualified opportunity fund and further provide that when recognized, any deferred gain will retain its original character as short-term or long-term. Taxpayer Entitled to Deferral The Proposed Regulations make clear that if a partnership recognizes capital gains, then the partnership, and if the partnership does not so elect, the partners, may elect to defer such capital gains.  In addition, the Proposed Regulations provide that in measuring the 180-day period by which capital gains need to be invested in a qualified opportunity fund, the 180-day period for a partner begins on the last day of the partnership’s taxable year in which the gain is recognized, or if a partner elects, the date the partnership recognized the gain.  The Proposed Regulations also state that rules analogous to the partnership rules apply to other pass-through entities, such as S corporations. Ten Year Benefit The Ten Year Benefit attributable to investments in qualified opportunity funds will be realized only if the investment is held for 10 years.  Because all designations of qualified opportunity zones under the TCJA automatically expire no later than December 31, 2028, there was some uncertainly as to whether the Ten Year Benefit applied to investments disposed of after that date.  The Proposed Regulations expressly provide that the Ten Year Benefit rule applies to investments disposed of prior to January 1, 2048. Qualified Opportunity Funds The Proposed Regulations generally provide that a qualified opportunity fund is required to be classified as a corporation or partnership for U.S. federal income tax purposes, must be created or organized in one of the 50 States, the District of Columbia, or, in certain cases a U.S. possession, and will be entitled to self-certify its qualification to be a qualified opportunity fund on an IRS Form 8996, a draft form of which was issued contemporaneously with the issuance of the Proposed Regulations. Substantial Improvements Existing buildings in qualified opportunity zones generally will qualify as qualified opportunity zone business property only if the building is substantially improved, which requires the tax basis of the building to be doubled in any 30-month period after the property is acquired.  In very helpful rule for the real estate community, the Proposed Regulations provide that, in determining whether a building has been substantially improved, any basis attributable to land will not be taken into account.  This rule will allow major renovation projects to qualify for qualified opportunity zone tax benefits, rather than just ground up development.  This rule will also place a premium on taxpayers’ ability to sustain a challenge to an allocation of purchase price to land versus improvements. Ownership of Qualified Opportunity Zone Business Property In order for a fund to qualify as a qualified opportunity fund, at least 90 percent of the fund’s assets must be invested in qualified opportunity zone property, which includes qualified opportunity zone business property.  For shares or interests in a corporation or partnership to qualify as qualified opportunity zone stock or a qualified opportunity zone partnership interest, “substantially all” of the corporation’s or partnership’s assets must be comprised of qualified opportunity zone business property. In a very helpful rule, the Proposed Regulations provide that cash and other working capital assets held for up to 31 months will count as qualified opportunity zone business property, so long as (i) the cash and other working capital assets are held for the acquisition, construction and/or or substantial improvement of tangible property in an opportunity zone, (ii) there is a written plan that identifies the cash and other working capital as held for such purposes, and (iii) the cash and other working capital assets are expended in a manner substantially consistent with that plan. In addition, the Proposed Regulations provide that for purposes of determining whether “substantially all” of a corporation’s or partnership’s tangible property is qualified opportunity zone business property, only 70 percent of the tangible property owned or leased by the corporation or partnership in its trade or business must be qualified opportunity zone business property. Qualified Opportunity Funds Organized as Tax Partnerships Under general partnership tax principles, when a partnership borrows money, the partners are treated as contributing money to the partnership for purposes of determining their tax basis in their partnership interest.  As a result of this rule, there was uncertainty regarding whether investments by a qualified opportunity fund that were funded with debt would result in a partner being treated, in respect of the deemed contribution of money attributable to such debt, as making a contribution to the partnership that was not in respect of reinvested capital gains and, thus, resulting in a portion of such partner’s investment in the qualified opportunity fund failing to qualify for the Ten Year Benefit.  The Proposed Regulations expressly provide that debt incurred by a qualified opportunity fund will not impact the portion of a partner’s investment in the qualified opportunity fund that qualifies for the Ten Year Benefit. The Proposed Regulations did not address many of the other open issues with respect to qualified opportunity funds organized as partnerships, including whether investors are treated as having sold a portion of their interest in a qualified opportunity fund and thus can enjoy the Ten Year Benefit if a qualified opportunity fund treated as a partnership and holding multiple investments disposes of one or more (but not all) of its investments.  Accordingly, until further guidance is issued, we expect to see most qualified opportunity funds organized as single asset corporations or partnerships. Effective Date In general, taxpayers are permitted to rely upon the Proposed Regulations so long as they apply the Proposed Regulations in their entirety and in a consistent manner.    [1]   Prop. Treas. Reg. §1.1400Z-2 (REG-115420-18). Gibson Dunn’s lawyers are available to assist with any questions you may have regarding these developments.  For further information, please contact the Gibson Dunn lawyer with whom you usually work, any member of the Tax Practice Group, or the following authors: Brian W. Kniesly – New York (+1 212-351-2379, bkniesly@gibsondunn.com) Paul S. Issler – Los Angeles (+1 213-229-7763, pissler@gibsondunn.com) Daniel A. Zygielbaum – New York (+1 202-887-3768, dzygielbaum@gibsondunn.com) Please also feel free to contact any of the following leaders and members of the Tax practice group: Jeffrey M. Trinklein – Co-Chair, London/New York (+44 (0)20 7071 4224 / +1 212-351-2344), jtrinklein@gibsondunn.com) David Sinak – Co-Chair, Dallas (+1 214-698-3107, dsinak@gibsondunn.com) David B. Rosenauer – New York (+1 212-351-3853, drosenauer@gibsondunn.com) Eric B. Sloan – New York (+1 212-351-2340, esloan@gibsondunn.com) Romina Weiss – New York (+1 212-351-3929, rweiss@gibsondunn.com) Benjamin Rippeon – Washington, D.C. (+1 202-955-8265, brippeon@gibsondunn.com) Hatef Behnia – Los Angeles (+1 213-229-7534, hbehnia@gibsondunn.com) Dora Arash – Los Angeles (+1 213-229-7134, darash@gibsondunn.com) Scott Knutson – Orange County (+1 949-451-3961, sknutson@gibsondunn.com) © 2018 Gibson, Dunn & Crutcher LLP Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

October 17, 2018 |
SEC Warns Public Companies on Cyber-Fraud Controls

Click for PDF On October 16, 2018, the Securities and Exchange Commission issued a report warning public companies about the importance of internal controls to prevent cyber fraud.  The report described the SEC Division of Enforcement’s investigation of multiple public companies which had collectively lost nearly $100 million in a range of cyber-scams typically involving phony emails requesting payments to vendors or corporate executives.[1] Although these types of cyber-crimes are common, the Enforcement Division notably investigated whether the failure of the companies’ internal accounting controls to prevent unauthorized payments violated the federal securities laws.  The SEC ultimately declined to pursue enforcement actions, but nonetheless issued a report cautioning public companies about the importance of devising and maintaining a system of internal accounting controls sufficient to protect company assets. While the SEC has previously addressed the need for public companies to promptly disclose cybersecurity incidents, the new report sees the agency wading into corporate controls designed to mitigate such risks.  The report encourages companies to calibrate existing internal controls, and related personnel training, to ensure they are responsive to emerging cyber threats.  The report (issued to coincide with National Cybersecurity Awareness Month) clearly intends to warn public companies that future investigations may result in enforcement action. The Report of Investigation Section 21(a) of the Securities Exchange Act of 1934 empowers the SEC to issue a public Report of Investigation where deemed appropriate.  While SEC investigations are confidential unless and until the SEC files an enforcement action alleging that an individual or entity has violated the federal securities laws, Section 21(a) reports provide a vehicle to publicize investigative findings even where no enforcement action is pursued.  Such reports are used sparingly, perhaps every few years, typically to address emerging issues where the interpretation of the federal securities laws may be uncertain.  (For instance, recent Section 21(a) reports have addressed the treatment of digital tokens as securities and the use of social media to disseminate material corporate information.) The October 16 report details the Enforcement Division’s investigations into the internal accounting controls of nine issuers, across multiple industries, that were victims of cyber-scams. The Division identified two specific types of cyber-fraud – typically referred to as business email compromises or “BECs” – that had been perpetrated.  The first involved emails from persons claiming to be unaffiliated corporate executives, typically sent to finance personnel directing them to wire large sums of money to a foreign bank account for time-sensitive deals. These were often unsophisticated operations, textbook fakes that included urgent, secret requests, unusual foreign transactions, and spelling and grammatical errors. The second type of business email compromises were harder to detect. Perpetrators hacked real vendors’ accounts and sent invoices and requests for payments that appeared to be for otherwise legitimate transactions. As a result, issuers made payments on outstanding invoices to foreign accounts controlled by impersonators rather than their real vendors, often learning of the scam only when the legitimate vendor inquired into delinquent bills. According to the SEC, both types of frauds often succeeded, at least in part, because responsible personnel failed to understand their company’s existing cybersecurity controls or to appropriately question the veracity of the emails.  The SEC explained that the frauds themselves were not sophisticated in design or in their use of technology; rather, they relied on “weaknesses in policies and procedures and human vulnerabilities that rendered the control environment ineffective.” SEC Cyber-Fraud Guidance Cybersecurity has been a high priority for the SEC dating back several years. The SEC has pursued a number of enforcement actions against registered securities firms arising out of data breaches or deficient controls.  For example, just last month the SEC brought a settled action against a broker-dealer/investment-adviser which suffered a cyber-intrusion that had allegedly compromised the personal information of thousands of customers.  The SEC alleged that the firm had failed to comply with securities regulations governing the safeguarding of customer information, including the Identity Theft Red Flags Rule.[2] The SEC has been less aggressive in pursuing cybersecurity-related actions against public companies.  However, earlier this year, the SEC brought its first enforcement action against a public company for alleged delays in its disclosure of a large-scale data breach.[3] But such enforcement actions put the SEC in the difficult position of weighing charges against companies which are themselves victims of a crime.  The SEC has thus tried to be measured in its approach to such actions, turning to speeches and public guidance rather than a large number of enforcement actions.  (Indeed, the SEC has had to make the embarrassing disclosure that its own EDGAR online filing system had been hacked and sensitive information compromised.[4]) Hence, in February 2018, the SEC issued interpretive guidance for public companies regarding the disclosure of cybersecurity risks and incidents.[5]  Among other things, the guidance counseled the timely public disclosure of material data breaches, recognizing that such disclosures need not compromise the company’s cybersecurity efforts.  The guidance further discussed the need to maintain effective disclosure controls and procedures.  However, the February guidance did not address specific controls to prevent cyber incidents in the first place. The new Report of Investigation takes the additional step of addressing not just corporate disclosures of cyber incidents, but the procedures companies are expected to maintain in order to prevent these breaches from occurring.  The SEC noted that the internal controls provisions of the federal securities laws are not new, and based its report largely on the controls set forth in Section 13(b)(2)(B) of the Exchange Act.  But the SEC emphasized that such controls must be “attuned to this kind of cyber-related fraud, as well as the critical role training plays in implementing controls that serve their purpose and protect assets in compliance with the federal securities laws.”  The report noted that the issuers under investigation had procedures in place to authorize and process payment requests, yet were still victimized, at least in part “because the responsible personnel did not sufficiently understand the company’s existing controls or did not recognize indications in the emailed instructions that those communications lacked reliability.” The SEC concluded that public companies’ “internal accounting controls may need to be reassessed in light of emerging risks, including risks arising from cyber-related frauds” and “must calibrate their internal accounting controls to the current risk environment.” Unfortunately, the vagueness of such guidance leaves the burden on companies to determine how best to address emerging risks.  Whether a company’s controls are adequate may be judged in hindsight by the Enforcement Division; not surprisingly, companies and individuals under investigation often find the staff asserting that, if the controls did not prevent the misconduct, they were by definition inadequate.  Here, the SEC took a cautious approach in issuing a Section 21(a) report highlighting the risk rather than publicly identifying and penalizing the companies which had already been victimized by these scams. However, companies and their advisors should assume that, with this warning shot across the bow, the next investigation of a similar incident may result in more serious action.  Persons responsible for designing and maintaining the company’s internal controls should consider whether improvements (such as enhanced trainings) are warranted; having now spoken on the issue, the Enforcement Division is likely to view corporate inaction as a factor in how it assesses the company’s liability for future data breaches and cyber-frauds.    [1]   SEC Press Release (Oct. 16, 2018), available at www.sec.gov/news/press-release/2018-236; the underlying report may be found at www.sec.gov/litigation/investreport/34-84429.pdf.    [2]   SEC Press Release (Sept. 16, 2018), available at www.sec.gov/news/press-release/2018-213.  This enforcement action was particularly notable as the first occasion the SEC relied upon the rules requiring financial advisory firms to maintain a robust program for preventing identify theft, thus emphasizing the significance of those rules.    [3]   SEC Press Release (Apr. 24, 2018), available at www.sec.gov/news/press-release/2018-71.    [4]   SEC Press Release (Oct. 2, 2017), available at www.sec.gov/news/press-release/2017-186.    [5]   SEC Press Release (Feb. 21, 2018), available at www.sec.gov/news/press-release/2018-22; the guidance itself can be found at www.sec.gov/rules/interp/2018/33-10459.pdf.  The SEC provided in-depth guidance in this release on disclosure processes and considerations related to cybersecurity risks and incidents, and complements some of the points highlighted in the Section 21A report. Gibson Dunn’s lawyers are available to assist with any questions you may have regarding these issues.  For further information, please contact the Gibson Dunn lawyer with whom you usually work in the firm’s Securities Enforcement or Privacy, Cybersecurity and Consumer Protection practice groups, or the following authors: Marc J. Fagel – San Francisco (+1 415-393-8332, mfagel@gibsondunn.com) Alexander H. Southwell – New York (+1 212-351-3981, asouthwell@gibsondunn.com) Please also feel free to contact the following practice leaders and members: Securities Enforcement Group: New York Barry R. Goldsmith – Co-Chair (+1 212-351-2440, bgoldsmith@gibsondunn.com) Mark K. Schonfeld – Co-Chair (+1 212-351-2433, mschonfeld@gibsondunn.com) Reed Brodsky (+1 212-351-5334, rbrodsky@gibsondunn.com) Joel M. Cohen (+1 212-351-2664, jcohen@gibsondunn.com) Lee G. Dunst (+1 212-351-3824, ldunst@gibsondunn.com) Laura Kathryn O’Boyle (+1 212-351-2304, loboyle@gibsondunn.com) Alexander H. Southwell (+1 212-351-3981, asouthwell@gibsondunn.com) Avi Weitzman (+1 212-351-2465, aweitzman@gibsondunn.com) Lawrence J. Zweifach (+1 212-351-2625, lzweifach@gibsondunn.com) Washington, D.C. Richard W. Grime – Co-Chair (+1 202-955-8219, rgrime@gibsondunn.com) Stephanie L. Brooker  (+1 202-887-3502, sbrooker@gibsondunn.com) Daniel P. Chung (+1 202-887-3729, dchung@gibsondunn.com) Stuart F. Delery (+1 202-887-3650, sdelery@gibsondunn.com) Patrick F. Stokes (+1 202-955-8504, pstokes@gibsondunn.com) F. Joseph Warin (+1 202-887-3609, fwarin@gibsondunn.com) San Francisco Marc J. Fagel – Co-Chair (+1 415-393-8332, mfagel@gibsondunn.com) Winston Y. Chan (+1 415-393-8362, wchan@gibsondunn.com) Thad A. Davis (+1 415-393-8251, tdavis@gibsondunn.com) Charles J. Stevens (+1 415-393-8391, cstevens@gibsondunn.com) Michael Li-Ming Wong (+1 415-393-8234, mwong@gibsondunn.com) Palo Alto Paul J. Collins (+1 650-849-5309, pcollins@gibsondunn.com) Benjamin B. Wagner (+1 650-849-5395, bwagner@gibsondunn.com) Denver Robert C. Blume (+1 303-298-5758, rblume@gibsondunn.com) Monica K. Loseman (+1 303-298-5784, mloseman@gibsondunn.com) Los Angeles Michael M. Farhang (+1 213-229-7005, mfarhang@gibsondunn.com) Douglas M. Fuchs (+1 213-229-7605, dfuchs@gibsondunn.com) Privacy, Cybersecurity and Consumer Protection Group: Alexander H. Southwell – Co-Chair, New York (+1 212-351-3981, asouthwell@gibsondunn.com) M. Sean Royall – Dallas (+1 214-698-3256, sroyall@gibsondunn.com) Debra Wong Yang – Los Angeles (+1 213-229-7472, dwongyang@gibsondunn.com) Christopher Chorba – Los Angeles (+1 213-229-7396, cchorba@gibsondunn.com) Richard H. Cunningham – Denver (+1 303-298-5752, rhcunningham@gibsondunn.com) Howard S. Hogan – Washington, D.C. (+1 202-887-3640, hhogan@gibsondunn.com) Joshua A. Jessen – Orange County/Palo Alto (+1 949-451-4114/+1 650-849-5375, jjessen@gibsondunn.com) Kristin A. Linsley – San Francisco (+1 415-393-8395, klinsley@gibsondunn.com) H. Mark Lyon – Palo Alto (+1 650-849-5307, mlyon@gibsondunn.com) Shaalu Mehra – Palo Alto (+1 650-849-5282, smehra@gibsondunn.com) Karl G. Nelson – Dallas (+1 214-698-3203, knelson@gibsondunn.com) Eric D. Vandevelde – Los Angeles (+1 213-229-7186, evandevelde@gibsondunn.com) Benjamin B. Wagner – Palo Alto (+1 650-849-5395, bwagner@gibsondunn.com) Michael Li-Ming Wong – San Francisco/Palo Alto (+1 415-393-8333/+1 650-849-5393, mwong@gibsondunn.com) Ryan T. Bergsieker – Denver (+1 303-298-5774, rbergsieker@gibsondunn.com) © 2018 Gibson, Dunn & Crutcher LLP Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

October 15, 2018 |
M&A Report – Flood v. Synutra Refines “Ab Initio” Requirement for Business Judgment Review of Controller Transactions

Click for PDF On October 9, 2018, in Flood v. Synutra Intth’l, Inc.,[1] the Delaware Supreme Court further refined when in a controller transaction the procedural safeguards of Kahn v. M & F Worldwide Corp.[2] (“MFW“) must be implemented to obtain business judgment rule review of the transaction.  Under MFW, a merger with a controlling stockholder will be reviewed under the deferential business judgment rule standard, rather than the stringent entire fairness standard, if the merger is conditioned “ab initio” upon approval by both an independent, adequately-empowered Special Committee that fulfills its duty of care, and the uncoerced, informed vote of a majority of the minority stockholders.[3]  Writing for the majority in Synutra, Chief Justice Strine emphasized that the objective of MFW and its progeny is to incentivize controlling stockholders to adopt the MFW procedural safeguards early in the transaction process, because those safeguards can provide minority stockholders with the greatest likelihood of receiving terms and conditions that most closely resemble those that would be available in an arms’ length transaction with a non-affiliated third party.  Accordingly, the Court held that “ab initio” (Latin for “from the beginning”) requires that the MFW protections be in place prior to any substantive economic negotiations taking place with the target (or its board or Special Committee).  The Court declined to adopt a “bright line” rule that the MFW procedures had to be a condition of the controller’s “first offer” or other initial communication with the target about a potential transaction. Factual Background Synutra affirmed the Chancery Court’s dismissal of claims against Liang Zhang and related entities, who controlled 63.5% of Synutra’s stock.  In January 2016, Zhang wrote a letter to the Synutra board proposing to take the company private, but failed to include the MFW procedural prerequisites of Special Committee and majority of the minority approvals in the initial bid.  One week after Zhang’s first letter, the board formed a Special Committee to evaluate the proposal and, one week after that, Zhang submitted a revised bid letter that included the MFW protections.  The Special Committee declined to engage in any price negotiations until it had retained and received projections from its own investment bank, and such negotiations did not begin until seven months after Zhang’s second offer. Ab Initio Requirement The plaintiff argued that because Zhang’s initial letter did not contain the dual procedural safeguards of MFW as pre-conditions of any transaction, the “ab initio” requirement of MFW was not satisfied and therefore business judgment standard of review had been irreparably forfeited.  The Court declined to adopt this rigid position, and considered that “ab initio” for MFW purposes can be assessed more flexibly.  To arrive at this view, the Court explored the meaning of “the beginning” as used in ordinary language to denote an early period rather than a fixed point in time.  The Court also parsed potential ambiguities in the language of the Chancery Court’s MFW opinion, which provided that MFW pre-conditions must be in place “from the time of the controller’s first overture”[4] and “from inception.”[5] Ultimately, the Court looked to the purpose of the MFW protections to find that “ab initio” need not be read as referring to the single moment of a controller’s first offer.  As Synutra emphasizes, the key is that the controller not be able to trade adherence to MFW protections for a concession on price.  Hence the “ab initio” analysis focuses on whether deal economics remain untainted by controller coercion, so that the transaction can approximate an arms’ length transaction process with an unaffiliated third party.  As such, the Court’s reasoning is consistent with the standard espoused by the Chancery Court in its prior decision in Swomley v. Schlecht,[6] which the Court summarily affirmed in 2015, that MFW requires procedural protections be in place prior to the commencement of negotiations.[7] In a lengthy dissent, Justice Valihura opined that the “ab initio” requirement should be deemed satisfied only when MFW safeguards are included in the controller’s initial formal written proposal, and that the “negotiations” test undesirably introduces the potential for a fact-intensive inquiry that would complicate a pleadings-stage decision on what standard of review should be applied.  Chief Justice Strine acknowledged the potential appeal of a bright line test but ultimately rejected it because of the Court’s desire to provide strong incentive and opportunity for controllers to adopt and adhere to the MFW procedural safeguards, for the benefit of minority stockholders.  In doing so, the Court acknowledged that its approach “may give rise to close cases.”  However, the Court went on to add, “our Chancery Court is expert in the adjudication of corporate law cases.”  The Court also concluded that the facts in Synutra did not make it a close case.[8] Duty of Care The Court also upheld the Chancery Court’s dismissal of plaintiff’s claim that the Special Committee had breached its duty of care by failing to obtain a sufficient price.  Following the Chancery Court’s reasoning in Swomley, Synutra held that where the procedural safeguards of MFW have been observed, there is no duty of care breach at issue where a plaintiff alleges that a Special Committee could have negotiated differently or perhaps obtained a better price – what the Chancery Court in Swomley described as “a matter of strategy and tactics that’s debatable.”[9]  Instead, the Court confirmed that a duty of care violation would require a finding that the Special Committee had acted in a grossly negligent fashion.  Observing that the Synutra Special Committee had retained qualified and independent financial and legal advisors and engaged in a lengthy negotiation and deal process, the Court found nothing to support an inference of gross negligence and thus deferred to the Special Committee regarding deal price.[10] Procedural Posture Synutra dismissed the plaintiff’s complaint at the pleadings stage.  In its procedural posture, the Court followed Swomley, which allowed courts to resolve the MFW analysis based on the pleadings.  The dissent noted that adoption of a bright-line test would be more appropriate for pleadings-stage dismissals.  However, the Court established that it would be willing to engage some degree of fact-finding at the pleadings stage in order to allow cases to be dismissed at the earliest opportunity, even using the Court’s admittedly more flexible view of the application of MFW. Takeaways Synutra reaffirms the Court’s commitment to promoting implementation of MFW safeguards in controller transactions.  In particular: The Court will favor a pragmatic, flexible approach to “ab initio” determination, with the intent of determining whether the application of the MFW procedural safeguards have been used to affect or influence a transaction’s economics; Once a transaction has business judgment rule review, the Court will not inquire further as to sufficiency of price or terms absent egregious or reckless conduct by a Special Committee; and Since the goal is to incentivize the controller to follow MFW at a transaction’s earliest stages, complaints can be dismissed on the pleadings, thus avoiding far more costly and time consuming summary judgment motions. Although under Synutra a transaction may receive business judgment rule review despite unintentional or premature controller communications that do not reference the MFW procedural safeguards as inherent deal pre-conditions, deal professionals would be well advised not to push this flexibility too far.  Of course, there can be situations where a controller concludes that deal execution risks or burdens attendant to observance of the MFW safeguards are too great (or simply not feasible), and thus is willing to confront the close scrutiny of an entire fairness review if a deal is later challenged.  However, if a controller wants to ensure it will receive the benefit of business judgment rule review, the prudent course is to indicate, in any expression of interest, no matter how early or informal, that adherence to MFW procedural safeguards is a pre-condition to any transaction.  Synutra makes clear that the availability of business judgment review under MFW will be a facts and circumstances assessment, but we do not yet know what the outer limits of the Court’s flexibility will be, should it have to consider a more contentious set of facts in the future. [1]       Flood v. Synutra Int’l, Inc., No. 101, 2018 WL 4869248 (Del. Oct. 9, 2018). [2]      Kahn v. M&F Worldwide Corp., 88 A.3d 635 (Del. 2014). [3]      Id. at 644. [4]      In re MFW Shareholders Litigation, 67 A.3d 496, 503 (Del. Ch. 2013). [5]      Id. at 528. [6]      Swomley v. Schlecht, 2014 WL 4470947 (Del. Ch. 2014), aff’d 128 A.3d 992 (Del. 2015) (TABLE). [7]      The Court did not consider that certain matters that transpired between Zhang’s first and second offer letters, namely Synutra’s granting of a conflict waiver to allow its long-time counsel to represent Zhang (the Special Committee subsequently hired separate counsel), constituted substantive “negotiations” for this purpose since the waiver was not exchanged for any economic consideration. [8]      Synutra, 2018 WL 4869248, at *8. [9]      Id. at *11, citing Swomley, 2014 WL 4470947, at 21. [10]     In a footnote, the Court expressly overruled dicta in its MFW decision that the plaintiff cited to argue that a duty of care claim could be premised on the Special Committee’s obtaining of an allegedly insufficient price.  Id. at *10, Footnote 81. The following Gibson Dunn lawyers assisted in preparing this client update: Barbara Becker, Jeffrey Chapman, Stephen Glover, Mark Director, Eduardo Gallardo, Marina Szteinbok and Justice Flores. Gibson Dunn’s lawyers are available to assist with any questions you may have regarding these issues.  For further information, please contact the Gibson Dunn lawyer with whom you usually work, the authors, or any of the following leaders and members of the firm’s Mergers and Acquisitions practice group: Mergers and Acquisitions Group / Corporate Transactions: Barbara L. Becker – Co-Chair, New York (+1 212-351-4062, bbecker@gibsondunn.com) Jeffrey A. Chapman – Co-Chair, Dallas (+1 214-698-3120, jchapman@gibsondunn.com) Stephen I. Glover – Co-Chair, Washington, D.C. (+1 202-955-8593, siglover@gibsondunn.com) Dennis J. Friedman – New York (+1 212-351-3900, dfriedman@gibsondunn.com) Jonathan K. Layne – Los Angeles (+1 310-552-8641, jlayne@gibsondunn.com) Mark D. Director – Washington, D.C./New York (+1 202-955-8508/+1 212-351-5308, mdirector@gibsondunn.com) Eduardo Gallardo – New York (+1 212-351-3847, egallardo@gibsondunn.com) Saee Muzumdar – New York (+1 212-351-3966, smuzumdar@gibsondunn.com) Mergers and Acquisitions Group / Litigation: Meryl L. Young – Orange County (+1 949-451-4229, myoung@gibsondunn.com) Brian M. Lutz – San Francisco (+1 415-393-8379, blutz@gibsondunn.com) Aric H. Wu – New York (+1 212-351-3820, awu@gibsondunn.com) Paul J. Collins – Palo Alto (+1 650-849-5309, pcollins@gibsondunn.com) Michael M. Farhang – Los Angeles (+1 213-229-7005, mfarhang@gibsondunn.com) Joshua S. Lipshutz – Washington, D.C. (+1 202-955-8217, jlipshutz@gibsondunn.com) Adam H. Offenhartz – New York (+1 212-351-3808, aoffenhartz@gibsondunn.com) © 2018 Gibson, Dunn & Crutcher LLP Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.

October 11, 2018 |
Financing Arrangements and Documentation: Considerations Ahead of Brexit

Click for PDF Since the result of the Brexit referendum was announced in June 2016, there has been significant commentary regarding the potential effects of the UK’s withdrawal from the EU on the financial services industry. As long as the UK is negotiating its exit terms, a number of conceptual questions facing the sector still remain, such as market regulation and bank passporting. Many commentators have speculated from a ‘big picture’ perspective what the consequences will be if / when exit terms are agreed.  From a contractual perspective, the situation is nuanced. This article will consider certain areas within English law financing documentation which may or may not need to be addressed. Bank passporting The EU “passporting” regime has been the subject of much commentary since the result of the Brexit referendum.  In short, in some EU member states, lenders are required under domestic legislation to have licences to lend.  Many UK lenders have relied on EU passporting (currently provided for in MiFID II), which allows them to lend into EU member states simply by virtue of being regulated in the UK (and vice versa). The importance for the economy of the passporting regime is clear. Unless appropriate transitional arrangements are put in place to ensure that the underlying principle survives, however, there is a risk that following Brexit passporting could be lost.  Recent materials produced by the UK Government suggest that the loss of passporting may be postponed from March 2019 until the end of 2020, although financial institutions must still consider what will happen after 2020 if no replacement regime is agreed.  The UK Government has committed to legislate (if required) to put in place a temporary recognition regime to allow EU member states to continue their financial services in the UK for a limited time (assuming there is a “no deal” scenario and no agreed transition period). However, there has not to date been a commitment from the EU to agree to a mirror regime. Depending on the outcome of negotiations on passporting, financial institutions will need to consider the regulatory position in relation to the performance of their underlying financial service, whether that is: lending, issuance of letters of credit / guarantees, provision of bank accounts or other financial products, or performing agency / security agency roles. Financial institutions may need to look to transfer their participations to an appropriately licensed affiliate (if possible) or third party, change the branch through which it acts, resign from agency or account bank functions, and/or exit the underlying transaction using the illegality protections (although, determining what is “unlawful” for these purposes in terms of a lender being able to fund or maintain a loan will be a complex legal and factual analysis).  More generally, we expect these provisions to be the subject of increasing scrutiny, although there seems to be limited scope for lenders to move illegality provisions in their favour and away from an actual, objective illegality requirement, owing to long-standing commercial convention. From a documentary perspective, it will be necessary to analyse loan agreements individually to determine whether any provisions are invoked and/or breached, and/or any amendments are required.  For on-going structuring, it may be appropriate for facilities to be tranched – such tranches (to the extent the drawing requirements of international obligor group can be accurately determined ahead of time) being “ring-fenced”, with proportions of a facility made available to different members of the borrower group and to be participated in by different lenders – or otherwise structured in an alternative, inventive manner – for example, by “fronting” the facility with a single, adequately regulated lender with back-to-back lending mechanics (e.g. sub-participation) standing behind.  In the same way, we also expect that lenders will exert greater control – for example by requiring all lender consent in all instances – on the accession of additional members of the borrowing group to existing lending arrangements in an attempt to diversify the lending jurisdictions.  Derivatives If passporting rights are lost and transitional relief is not in place, this could have a significant impact on the derivatives markets.  Indeed, without specific transitional or equivalence agreements in place between the EU and the UK, market participants may not be able to use UK clearing houses to clear derivatives subject to mandatory clearing under EMIR.  Additionally, derivatives executed on UK exchanges could be viewed as “OTC derivatives” under EMIR and would therefore be counted towards the clearing thresholds under EMIR.  Further, derivatives lifecycle events (such as novations, amendments and portfolio compressions) could be viewed as regulated activities thereby raising questions about enforceability and additional regulatory restrictions and requirements. In addition to issues arising between EU and UK counterparties, equivalence agreements in the derivatives space between the EU and other jurisdictions, such as the United States, would not carry over to the UK.  Accordingly, the UK must put in place similar equivalence agreements with such jurisdictions or market participants trading with UK firms could be at a disadvantage compared to those trading with EU firms. As a result of the uncertainty around Brexit and the risk that passporting rights are likely to be lost, certain counterparties are considering whether to novate their outstanding derivatives with UK derivatives entities to EU derivatives entities ahead of the exit date.  Novating derivatives portfolios from a UK to an EU counterparty is a significant undertaking involving re-documentation, obtaining consents, reviewing existing documentation, identifying appropriate counterparties, etc. EU legislation and case law Loan agreements often contain references to EU legislation or case law and, therefore, it is necessary to consider whether amendments are required. One particular area to be considered within financing documentation is the inclusion of Article 55 Bail-In language[1].  In the last few years, Bail-In clauses have become common place in financing documentation, although they are only required for documents which are governed by the laws of a non-EEA country and where there is potential liability under that document for an EEA-incorporated credit institution or investment firm and their relevant affiliates, respectively.  Following withdrawal from the EU, the United Kingdom will (subject to any transitional or other agreed arrangements) cease to be a member of the EEA and therefore English law governed contracts containing in-scope liabilities of EU financial institutions may become subject to the requirements of Article 55.  Depending on the status of withdrawal negotiations as we head closer to March 2019, it may be appropriate as a precautionary measure to include Bail-In clauses ahead of time – however, this analysis is very fact specific, and will need to be carefully considered on a case-by-case basis. Governing law and jurisdiction Although EU law is now pervasive throughout the English legal system, English commercial contract law is, for the most part, untouched by EU law and therefore withdrawal from the EU is expected to have little or no impact.  Further, given that EU member states are required to give effect to the parties’ choice of law (regardless of whether that law is the law of an EU member state or another state)[2], the courts of EU member states will continue to give effect to English law in the same way they do currently.  Many loan agreements customarily include ‘one-way’ jurisdiction clauses which limit borrowers/obligors to bringing proceedings in the English courts (rather than having the flexibility to bring proceedings in any court of competent jurisdiction). This allows lenders to benefit from the perceived competency and commerciality of the English courts as regards disputes in the financial sector. Regardless of the outcome of the Brexit negotiations, such clauses  are likely to remain unchanged due to the experience of English judges in handling such disputes and the certainty of the common law system. It is possible that the UK’s withdrawal will impact the extent to which a judgement of the English courts will be enforceable in other EU member states.  Currently, an English judgement is enforceable in all other EU member states pursuant to EU legislation[3].  However, depending on the withdrawal terms agreed with the EU, the heart of this regulation may or may not be preserved. In other words, English judgements could be in the same position to that of, for example, judgements of the New York courts, where enforceability is dependent upon the underlying law of the relevant EU member state; or, an agreement could be reached for automatic recognition of English judgements across EU member states.  In the same vein, the UK’s withdrawal could also impact the enforcement in the UK of judgements of the courts of the remaining EU member states. Conclusion Just six months ahead of the UK’s 29 March 2019 exit date, there remains no agreed legal position as regards the terms of the UK’s withdrawal from the EU. It is clear that, for so long as such impasse remains, the contractual ramifications will continue to be fluid and the subject of discussion.  However, what is apparent is that the financial services sector, and financing arrangements more generally, are heavily impacted and it will be incumbent upon contracting parties, and their lawyers, to consider the relevant terms, consequences and solutions at the appropriate time. [1]   Article 55 of the Bank Resolution and Recovery Directive [2]   Rome I Regulation [3]   Brussels I regulation. Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these issues. Please contact the Gibson Dunn lawyer with whom you usually work, any member of the firm’s Global Finance practice group, or the authors: Amy Kennedy – London (+44 (0)20 7071 4283, akennedy@gibsondunn.com) Jeffrey L. Steiner – Washington, D.C. (+1 202-887-3632, jsteiner@gibsondunn.com) Alex Hillback – Dubai (+971 (0)4 318 4626, ahillback@gibsondunn.com) Please also feel free to contact the following leaders and members of the Global Finance and Financial Institutions practice groups: Global Finance Group: Thomas M. Budd – London (+44 (0)20 7071 4234, tbudd@gibsondunn.com) Gregory A. Campbell – London (+44 (0)20 7071 4236, gcampbell@gibsondunn.com) Richard Ernest – Dubai (+971 (0)4 318 4639, rernest@gibsondunn.com) Jamie Thomas – Singapore (+65 6507 3609, jthomas@gibsondunn.com) Michael Nicklin – Hong Kong (+852 2214 3809, mnicklin@gibsondunn.com) Linda L. Curtis – Los Angeles (+1 213 229 7582, lcurtis@gibsondunn.com) Aaron F. Adams – New York (+1 212 351 2494, afadams@gibsondunn.com) Financial Institutions Group: Arthur S. Long – New York (+1 212-351-2426, along@gibsondunn.com) Michael D. Bopp – Washington, D.C. (+1 202-955-8256, mbopp@gibsondunn.com) Jeffrey L. Steiner – Washington, D.C. (+1 202-887-3632, jsteiner@gibsondunn.com) Carl E. Kennedy – New York (+1 212-351-3951, ckennedy@gibsondunn.com) © 2018 Gibson, Dunn & Crutcher LLP Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.