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October Issue 2011
ACQUISITION INTERNATIONAL The Voice of Corporate Finance
The logic behind the deal Acquisition International speaks to Marc Thiery, Managing Partner at Parcom Deutsche Private Equity, (DPE) about the rationale behind their recent disposal of iloxx.
Also in this issue... • Spigraph Acquisition of ALOS • V&P Law Firm explains how Greece attracts foreign investment • Protecting Intellectual Property in M&A transactions • Securities Lending & Repo Markets
www.acquisition-intl.com
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Forming Futures and Trading in Zambia
Editor’s comment
With Q3 Deals stats reflecting a steep decline in activity, one can only ask for a better end to 2011; a year which has been plagued by the Eurozone debt crisis. With uncertainty across global markets, it is no wonder private equity has been affected, with only 26 buyouts recorded in the European middle market last quarter, 40% down on Q3 2010. It seems those who are confident enough to pursue opportunities lack leverage and those who have leverage lack confidence. But as always there are green shoots…. On the 19th of October, Britain’s leading share index closed higher than on the 18th of October, by close of play the FTSE 100 index of leading British blue-chip stocks was up 0.7 percent, or 40.14 points, at 5,450.49, snapping a two-day losing run, but still leaving the index down slightly on the week. This Month, Acquisition International speaks to the deal makers that are getting deals done in a challenging environment and speaks to the experts about how to attract foreign investment and how to protect your IP in M&A. Enjoy the issue! Charlotte Abbott, Editor charlotte.abbott@acquisition-intl.com
Contents
12
News
4
Deal Guru
Lead Mandate
6
Parcom Deutsche Private Equity Sale of iloxx to DPD - 'Deal of the Month' Spigraph Acquisition of ALOS
Sector Spotlight
10 11
Forming Futures and Trading in Zambia 12 How to Attract Foreign Investment 14 Doing Business in the Seychelles 22 Humantica- Post Merger Intergration 23 Protecting Intellectual Property in M&A transaction 24 Global Patterns of Project Finance 31 Employment Law issues in M&A Transactions 32 Securities Lending & Repo Markets 34 Resolving Conflicts Through Mediation 36 International Company Formations: Doing Business in… 38 Investing & Trading in South Africa 53 Turkey: Defeating the Odds 54 What's in a Name? 56
Deal Diary
57
How to contact AI AI welcomes news and views from its readers. Correspondence should be sent to Acquisition International, Blakenhall Park, Barton under Needwood, Burton on Trent, DE13 8AJ. Telephone 0844 809 4788 or email reception@acquisition-intl.com. For more information visit www.acquisition-intl.com Production by Grapevine Print & Marketing Ltd. 01903 531 531.
Three
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News
Investec provides £14 million funding to management of Clyde Blowers Capital
Investec Specialist Bank’s (‘Investec’) Fund Finance team has provided a £14 million debt facility to the management of Clyde Blowers Capital (CBC), a leading investor in industrial businesses. The four year loan facility will enable the management of CBC to co-invest in the Clyde Blowers Capital Fund III (CBC Fund III). The target fund size of CBC Fund III is £350m with a hard cap of £400m. A second close is planned for later in the year. This will allow CBC to pursue the strong pipeline of deal opportunities it continues to build. CBC Fund II, a £250m fund raised in 2008, is now over 90% invested. The first divestment from CBC Fund II, the disposal of Clyde Union Pumps to SPX Corporation, was announced last month. Headquartered in Glasgow and with offices in China, CBC was founded in 1992 and now incorporates 83 companies operating in a total of 27 countries, employing approximately 5,000 staff. Simon Hamilton, Investec Fund Finance, said, “The management team at CBC has a fantastic track-record of growing companies and exiting investments, or parts of them, at the optimal stage in their life cycle. Our loan facility will enable the management team to personally invest more in the fund which not only leads to a stronger alignment with their investors but also helps them to benefit from their performance. This transaction highlights our flexible funding solutions and the innovative approach we offer to the investment community “We are delighted to be working with CBCs to support its expansion plans and ensure its staff are able to participate in the long term success of its investment programme.”
Four
Value of UK M&A deal activity up 15 per cent so far this year, according to Experian Corpfin
M
anchester, October 2011 Experian®, the global information services company, today revealed that the total value of UK mergers, acquisitions, flotations, rights issues and placements was £181.4 billion in the first nine months of 2011, an increase of 15.7 per cent
on the same period in 2010. This was despite the overall volume of deals falling by 6.7 per cent to 3,169. The value of UK mid-market transactions where a consideration was disclosed was up by 18 per cent to £159.5 billion on the year,
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News
Growth Capital Partners adds to its Investment Team
against just one per cent fewer transactions (549). Rothschild has been the most active financial advisor by volume with 58 deals, while HSBC topped the value league with deals worth a total of ÂŁ42.3 billion. The leading legal advisors were Eversheds (91 transactions) and Sullivan & Cromwell LLP (ÂŁ43 billion total deal value) 44.7 per cent of all European transactions involved a UK firm, while 13.8 per cent of UK deals a US firm.
of eight per cent on the corresponding period in 2010. There were 19 per cent fewer transactions (7,091). • In the USA volumes were down in the year to date by 31.9 per cent, while values were up by 20.5 per cent. • Asia Pacific witnessed declines in both volume and value during first nine months of 2011, by 10.9 per cent and eight per cent respectively. Wendy Smith, Business Development Manager at Experian Corpfin, said: “Deal flow in the UK has been suppressed this year, although the value of activity is remarkably resilient. The North West is the only English region to increase both the volume and value of its deals over the period.â€?
Growth Capital Partners (GCP), the provider of flexible debt and equity to the UK’s small to medium sized businesses today announces the appointment of Alex Thomson as an Investment Manager. Alex joins from Investec Investment Banking. At Investec, Alex spent four years in the Corporate Finance department working on a range of public and private transactions, principally in the consumer and healthcare sectors. Prior to this, Alex qualified as a chartered accountant with PwC, working in the Banking & Capital Markets and Forensic Services divisions. Alex commented: "As a first move into private equity, I was keen to join an investor with an innovative approach to funding businesses and the ability to execute deals in all market conditions. GCP is in a strong position to do this as it does not rely on third party bank debt and provides the majority or all of the funding in any transaction. I was also keen to be involved with small and medium sized businesses where there are some excellent value growth opportunities. GCP has recently raised its third fund at a level of £160m and is therefore well placed to make investments."
ÇŻ ÇŻ Çż
Europe and the rest of the world • The value of European transactions in the year to date was £525.6 billion, an increase
Čą Š Âœ Â? ÂŽ › Âœ Čą Â’ —ȹ Š ǯ ÇŻ Čą Â˜ÂĄČą ĹžĹ? Ĺš Ĺ– Ĺ– Ĺ— Ĺ– Ĺž Ĺ–Čą
Čą –œ Â? ÂŽ › Â?Š –
Çą Čą Ƹ Ĺ™ Ĺ— Čą Ĺ˜ Ĺ– Čą Ĺ™ Ĺ– Ĺ— Čą Ĺ› Ĺ› Čą śś Çą Čą Â’ —Â? Â˜Č“Â› žœ Âœ ÂŽ • • ÇŻ —•
   ǯ › žœ Âœ ÂŽ • • ÇŻ —•
Bill Crossan, Managing Partner of GCP, commented: "We have made enormous progress this year. Since January, we closed our third fund which was oversubscribed, we successfully exited two businesses and we have significantly increased the size of our team – all of which send a clear message that we are well placed to do deals in the UK lower mid market and endorses our innovative approach to investing across the capital structure. We are delighted to have Alex on board and welcome him to the team." GCP have been named joint winners in the 2011 Unquote Awards' Fundraising category.
Five
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The
The Deal Guru
DEAL
GURU Abdalla Hamed
The Libyan Banking System
F
or this month, AI focuses on the banking
Operational banks in Libya
and infrastructure. Most banks are not linked
Dr. Abdalla Hamed, a chartered accountant
and commercial banks jointly started implementing
connection is not allowed for security reason (unless
system in Libya. This article was written by
and General Manager of Consultancy House, with
special thanks to Mr. Sedeeg Khanfer, General
In the end of 2004, Central Bank of Libya (CBL)
technological developments in the area of
information technology called the National Payment
Manager Assistance of finance in the commercial
System. This program was preceded by approving a
of National Payment System project for the
activities and aimed to connect all banks in Libya to
bank of Libya and central bank committee member information provided.
Introduction on the banking system in Libya
plan, set by a committee of experts in the banking
probably with data center, the Two Ways satellite
from government with a significant monthly charge).
Another issue was IT Support. Most of the IT
support for the central bank of Libya and the other
one central database to enable banks to provide new
commercial banks was not up to the standard to
Gross Settlement (RTGS), Clearing House (ACH),
of the It supporting firms stopped working during
services to clients. The project includes Real-Time
cope with daily demand in services. In addition most
In Libya there are three types of banks, four
Automated Checks Processing (ACP), Automated
the 6 months of the war as most of their staff had
Sahari bank, and Libyan commercial bank)), six
Core Banking System to develop technologies and
positions specially that IT employees in banks are
commercial banks (Gumhouria bank, Wahda bank, private banks (Aman, Waha, Al Ejmah Al Arabi, al
Mutahed bank abd Ahlee bank) and four other
specialized banks (agriculture banks, development bank, saving and property investment bank and
Refee bank). Collectively assists of 40.7 billion and 538 branches.
International banks has found ways into the
Libyan banking market. The French PNP bought
19% of Al Sahari bank. the same is for the Arab bank
bought 19% of Al Wahda bank, also, a 50%-50% Joint Venture was created between Economic and
development found with Gulf first bank. Other international banks (such as HSBC and Bank of Valletta) have a representative office.
Six
Teller Machines (ATM), Points of Sales (POS) and
techniques for banking activities.
Now and after 7 years since the project started,
there are still some unsettled issues that still effect
left the country which placed banks in difficult not well prepared to deal with complicated issues.
Training: There are no highly professional
employees in banking sector, even though the
the use of the banking services in Libya with links
central banks of Libya have designed some training
introduction of credit and debit cards is limited,
time came most of these people found difficulty to
between banks and branches still not finished. The ATM machines are available only in big cities with
limited access. Other services such as Internet
banking and point of sale still not available for
consumers at least for shops and hotels.
Having said that, not all the problems are the
bank sector responsibility, as there are issues
relating to other sectors such as Telecommunication
program to cope with issue. However, once the real cope with the challenge. Also, for new banking
products and services, most of employees are not
Libyans.:
Opportunities in banking sector
In order for the banking sector to catch up with
the international standard of banking services and
overcome the obstacles that are affecting banking
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The Deal Guru
activity in Libya, the bank needs consulting from
Arabic and possess a basic knowledge on banking
to international companies to help.
needed. Also, other courses in customer relations,
done. This of course will gives a great opportunity
Telecommunication
infrastructure:
services. Special courses in foreign languages is
marketing, banking, insurance and accounting can be very beneficial for them. Other training courses
Telecommunication infrastructure will be one of the
for decision makers and high level managers are
that after 6 months of fighting, most of the
decision
most important issues for banking sector. Especially telecommunication infrastructure that linked the
east and west of Libya has been badly affected.
• IT Companies: IT companies will have
imperative opportunities in Libya's banks to
develop the services and look after IT problem. IT
opportunities can be summarized as follow:
• IT SUPPORT: for looking after banks internal
system and maintenance. With 538 branches to be
linked and Hardware and software installations
and datacenters and servers to be monitored and updated, this can be a good opportunity.
considered necessary especially in the area of
leadership.
making,
time
management
and
• Consultations: Companies who are specialized
in bank consulting maybe capable of helping as
well. Most of Libya's banks hoping to introduce
new products and added value services for clients.
One example, the commercial bank of Libya
considers introducing Islamic window for two
branches across Libya. Also other services can be
introduced such as Life-Insurance, Internet
banking, investments in stock and FOREX.
• Banks equipments (ATM/Point of Sale):
Companies who are working in producing or
• E-Banking application and web designing:
distributing ATM and Point of sale machine can
between banks and Central bank data
for point of sale machines that have to be
National Payment System focuses only on the links
center. Each bank has to develop its own
applications and services. Most of banks in Libya
Abdalla Hamed abdalla@consultancy-house.com www.consultancy-house.com
The majority of Libyan employees speak only
International organizations. There is a lot to be
have no electronic services available, therefore, Internal e-banking application, web designing,
database developing, e-marketing and online
payment application firms will have a pure market
that will need most of their services. Also,
57-58-59 Al Fatah Tower, First floor, Tripoli, Libya
banking applications will be very important for the
Tel:+218 21 335 1246/7 Mobile: +218 91 381 2004
• Training: Training is another important matter.
Telephone banking, Internet banking and Mobile
Libyan banks.
find a good opportunity in the market. Especially
distributed in the whole area of Libya. Such
opportunity can agreed directly with banks or by
selling to individuals in the market.
Other opportunities: The banking sector is
wide area and there are many other opportunities
can be offered for them directly or to the end users. One example, number of commercial bank branches
has been destroyed through this 6 months and need
to re- furbished and re-furnished completely. Also stationery and office equipment is always in demand
by banks.
Seven
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Sector Talk
Support Services Deals S
upport services, which encompass business services, financial services, outsourcing and consumer services, is a prominent sector within the private equity industry, representing over 2,000 deals and $250bn in deal flow since 2006.
flow has consistently hovered around the 33-35% mark, while Asia and Rest of World has witnessed increasing prominence in the market, going from representing 10% of support services deals in 2006, to 14% in 2011 to date.
Support services deal flow peaked in H1 2007 at the height of the buyout boom era, with 233 deals valued at $67.8bn during that period, more than double the next best half-year when $33.6bn in buyouts were completed in H1 2006. With the onset of the financial crisis in mid2008, deal flow declined rapidly across all sectors in private equity, with support services deals hitting a low of 100 deals valued at $7.1bn in H1 2009. As credit markets gradually improved into 2010, we have witnessed a rise in deal flow in the support services sector to around the $15bn in deals per half-year mark, a figure which looks set to be surpassed by the current half-year, as 128 deals valued at $13.3bn have been announced in the support services sector in H2 2011 YTD.
Leveraged buyouts account for the majority of activity in the support services sector, with 40% of the number and 42% of the aggregate value of all deals in 2011 falling into this category. In 2011, a massive 40% of all support services deals have been add-ons, a higher proportion than the average of 34% across all industries, an indication that companies in the services sectors are consolidating their market positions right now. While public-to-privates account for just 8% of deals, 38% of the value of service sector deals were take privates by private equity firms.
When looking at deals by region, the majority of support services deals are located in North America, with over 50% of deals consistently in this region from 2006 to present. European support services deal
Eight
The largest services sector deal in the 2011 to date has been the $3bn take private of Emdeon, a leading provider of revenue and payment cycle solutions, by the Blackstone Group. Blackstone offered $19 per share for the firm, and selling shareholders include Hellman & Friedman, who will continue to retain a minority stake post transaction.
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Sector Talk
Number of Support Services Buyout Deals By Region: 2006 - 2011 YTD
Proportion of Support Services Buyout Deals By Region: 2006 - 2011 YTD
Aggregate Value of Support Services Buyout Deals By Region: 2006 - 2011 YTD ($bn)
Nine
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Parcom Deutsche Private Equity
The logic behind the deal A
cquisition International speaks to Marc Thiery, Managing Partner at Parcom Deutsche Private Equity (DPE), about the rationale behind their recent disposal of iloxx, the e-commerce logistics service provider to one of the leading international parcel service providers, DPD. Nuremberg-based iloxx AG is a logistics services provider for small and mid-range ecommerce businesses in Germany. Founded in 1999, the company offers private and business clients a range of shipping services, from the delivery of standardised packages to the specialist shipping of sensitive and bulky goods. Its shipping portal, www.iloxx.de, allows all shipping services to be ordered and managed on a one-stop-shop basis. In 2010, the business had a turnover of €29.4m and currently employs 118 people. iloxx initially received seed funding from Star Ventures and private investors in 2000, eight years later DPE acquired a majority stake in iloxx for an undisclosed amount. Since then, DPE has improved the company's management structure and increased its staff from 70 to 118. Additionally, dispatch volume has been increased from 2.2 million to over 4 million deliveries a year, with turnover rising from €19.0m in 2007 to €29.4m in 2010. In mid-2010, DPE were approached by DPD, one of the parcel companies with whom they were in regular contact since 2008. DPD expressed their interest to acquire iloxx. After initial discussions and based on the strong interest expressed by DPD, Parcom Deutsche Private Equity believed that the transaction will have a high probability of closing and entered into an exclusive sale process with DPD, which completed in June 2011. Through the acquisition by DPD, iloxx will be able to further invest in the next stage of expansion thereby offering new opportunities for iloxx staff and management. iloxx will benefit from DPD’s strong reputation and large customer base including old economy companies which offers substantial crossselling potential. Whilst iloxx had a historic focus on the e-commerce market, it now can – together with DPD – access the whole B to C segment (of senders with less than 500 shipments per month), therefore increasing the accessible market by a factor of 10. So Marc how long were DPE contemplating the sale before you started in earnest? “We were not considering a sale of iloxx this early in our holding period, as we aim to support and develop growth companies over periods of 5-7 years. As the company was
Ten
performing very well and enjoyed excellent long term growth prospects, we were repeatedly approached by strategic buyers who valued the unique market position of the company, its high growth e-commerce customer base, the excellent reputation of the management and its highly automated IT platform. It was ultimately the logic of the proposed deal that led us to consider its merits. How did you prepare the company for sale? “We did position iloxx right from the beginning for the right exit. When we acquired iloxx AG in 2008, we considered a sale to a strategic buyer as the preferred and most likely exit route. We also knew that our portfolio company’s unique sales approach, our automated IT systems and ultimately the parcel volume will have a great value. By putting the parcel volume through his own network, a strategic buyer can generate significant synergies. We were hoping to capture some of that synergies from a strategic buyer. “ “So we did everything to grow the business aggressively during our holding period which at times took gutsy decisions to keep investing in growth at a time when the economy and the logistics sector were going through a horrible downturn (some segments were down 40%). In the face of stiff competition and a heavy price war, we kept investing in the expansion of sales activities. We also invested time and effort to reduce iloxx’ customer churn, e.g. through introduction of customer segmentation and an improvement and differentiation of customer service and complaints management. These initiatives led to a higher customer retention and a significant reduction of customer complaints. More detailed reporting around product profitability also contributed to these efforts.“ “In addition to the strategic focus on increasing the customer base and parcel volumes, we overall contributed to the development of the corporate infrastructure to ensure that iloxx can manage its current and future growth. We strengthened the management structures by hiring a CFO, a new Head of Freight Management and new Head of IT. The Supervisory Board was also expanded with two renowned e-commerce and logistics experts.” How did you ensure the best possible price? “We sold the company on the basis of its fundamental value, but also wanted to make sure that the company continues its growth path with the right partner. It is always important to DPE to hand over a well-managed company which offers good prospects to its
management and employees. As unusual as it may sound, there was no M&A trickery; it was simply a professionally run process with the right potential buyer. We were not disappointed as the buyer delivered on everything that was promised, so in retrospect it was the right decision not to run a broad auction process. “We can claim some credit for picking a business model that would gain in strategic value as trade players “discovered” the growth and profit potential of the lower end ecommerce market and specifically B-C shipments. We specifically prepared the company for a sale to a trade player at a time when the generally accepted industry logic did not dictate growing in iloxx’s market segment. Also, in our negotiations we made sure that we capture some of the substantial synergies the buyer would reap. Through market intelligence we had a pretty good idea what the incremental contribution margin of the buyer would be.” What was the most difficult element of doing the deal? “Running an exclusive and highly confidential sale process from the start is always challenging. The obvious risks were mitigated by the fact that we would have happily continued to hold our investment for several more years, and secondly that we were working with a credible and trustworthy buyer who evidenced his serious interest through a professional M&A process run by a committed team with senior management support. “With help from our excellent team of legal and M&A advisors we overcame these potentially difficult elements. Our M&A advisor, Werner Osterchrist of Condis in Munich, served as an excellent sparring partner in optimizing the negotiation strategy. Jochen Ettinger from Dissman Orth and Michael Haidinger from Freshfields were instrumental in negotiating the agreements and finding solutions to some structural issues.” So if you were starting the process again, what would you do differently? “There were some structural problems related to the management equity plan and to the treatment of a potential escrow account. These issues were hard to overcome and almost had an adverse impact on the deal - the opposite of what a management equity plan is due to achieve. However, we were able to overcome these issues through the use of warranty indemnity insurance and creative legal advice.”
Marc Thiery Managing Partner info@pdpe.de www.pdpe.com Ludwigstr. 7, 80539 Munich, Germany +49 89 2000 30
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Lead Mandate
Spigraph acquires Alos Group F
rench Group Spigraph, recently acquired Alos Group, a Swiss and German value added reseller specialized in document capture and management solutions (software, hardware and services) for professional use. Acquisition International speaks Daniel Chautard President & CEO at SPIGRAPH Group about the rationale behind the deal that took approximately 4 months between the execution of the LOI and the final closing in July. Headquartered in Lyon, with offices in France, Scandinavia and Northern Africa, Spigraph is a leading player in the French market for document capture and a strong challenger on a European scale. Spigraph currently has 110 employees and is a fast growing company (25% internal growth rate in 2010) implementing a build up strategy. Backed by BNP Paribas Private Equity, Spigraph Group together with Alos management took over Alos Group from the founders’ families to give birth to the second largest player in the European market.
was to develop a strategic presence in Europe and to replicate throughout Europe a successful business model fine-tuned in France. Others reasons include the search of economy of scale through better trading and purchasing policies and optimization of assets management (inventories for example).”
& ALOS has a true European specialist of DMS and associated services with a high level of expertise and professionalism in Europe. Customers as well as suppliers will deal from now on with a challenging Group ranking n°2 in Europe cumulating more than 55 Million Euros in sales and showing a double digit rate of growth.”
How do you plan to integrate Alos Group into the organization? “Alos will continue to follow its development pattern as a VAR (value added retailer); the VAD development will be managed in Germany & Switzerland through dedicated SPIGRAPH subsidiaries. All VAR & VAD activities will be monitored under a common management holding entity.”
How will you assess whether the deal has been a success when you look back in one year's time? “The success of such a deal will be assessed of course through business development: sales & increasing profitability but also through the integration of multicultural teams in a single set of entrepreneurial values. “
What other synergies do you foresee from the transaction? “The main synergies & benefits basically lie in the exchange of best business practices, trading knowledge & expertise namely in the fields of logistics, marketing & R&D.”
On a lighter note, what is the best piece of advice given to you? “Act as if it is impossible to fail” Winston Churchill.
Founded in 1946 Alos Group is specialized in the distribution of document scanning solutions (Hardware, software and services). Alos Group achieved in 2010 more than €20m in sales to large corporate and SME, with a 110-employee team in Germany and Switzerland.
Will there be changes to the management team of the business post transaction? “The top & most of the middle management of the acquired companies are an integrant part of the deal as minority shareholders’ of the holding company specially created for the acquisition purpose.”
Achieving more than €55m revenues with a team of 230 employees, the new group offers a homogeneous range of high valueadded professional scanning solutions and is now located in 7 countries in Europe and North Africa: France, Germany, Switzerland, Sweden, Morocco, Algeria and Tunisia.
Are you looking for further acquisitions and if as so are they in the same or a different sector? “Spigraph is primarily looking for acquisitions in the same sector (DMS & services associated to DMS) in other European areas (UK & Continental Europe)”
Daniel what was the strategic reason for Alos Group acquisition? “The strategic reasons were numerous and of different nature but the most significant of
What will this deal mean for customers and suppliers of the business? What changes will they see? “Customers & suppliers will see Spigraph
Daniel Chautard President & CEO T: 33 (0)4 74 94 62 60 www.spigraph.com Spigraph SA 31 Boucle de la Ramée, 38297 Saint Quentin Fallavier France
Eleven
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Forming Futures and Trading in Zambia
Forming Futures and Trading in
Zambia A
ccording to the World Bank, Zambia ranks number 76 out of 183 economies when it comes to the overall ease of trading. Strategically located and surrounded by 8 countries it is an ideal location for trade and investment; the improvements we have witnessed over the last 3 years in the country’s business climate (including an average growth rate of 6.2%) are vast and there are plenty of opportunities for savvy investors. Acquisition International speaks… Mosho Lewis is Partner in a Law Firm in Zambia known as Lewis Nathan Advocates. He heads the Financial Markets and Commercial Law Division of the Firm. What factors have helped Zambia rank number 76 out of 183 economies when it comes to the overall ease of trading? Mosho Lewis: “The factors that have helped Zambia rank number 76 out of 183 economies when it comes to overall ease of trading include:
(a) Well Capitalized Banking Sector Most Zambian banks are well capitalized with adequate liquidity. The Banking sector is highly competitive and there is increasing access to financing. Opening and maintaining of company bank accounts is relatively easy. (b) Easy Company Formation Forming a Company in Zambia is very easy and straight forward; there is a one stop office known as Patents and Companies Registration Agency (PACRA) where one will lodge all the necessary documents required by the Companies Act to be lodged when incorporating a Company. If one does not have an idea as to what they documents are, the officers at PACRA will advise them. Payment of stamp duty is also done at the same office and once all the documents have been lodged and stamp duty has been paid the Company will be incorporated within 2
Twelve
to 3 days and a certificate of incorporation will be issued. (c) Location Zambia is located in the Southern African Sub-region. It is a landlocked country bordered by the Democratic Republic of Congo, Tanzania, Angola, Namibia, Malawi, Mozambique, Zimbabwe and Botswana. The mean altitude rises about 1200 meters above sea level and the country is situated between latitude 8 and 18 degrees East and longitude 22 and 34 degrees South.Zambia’s geographical position and high altitude provides the country with sub-tropical vegetation and climatic conditions. With its natural beauty (including the Victoria Falls, which is one of the most renowned beautiful transcendental Seven Natural Wonders of the World) and the wealth of wildlife have yet to be fully exploited, the Country’s tourism sector has huge potential for growth. Zambia has 19 national parks and 34 game management areas with a total of 65,000 km2 set aside for wildlife conservation. (d) Protection of Investors The Zambia Development Act assures investors that property rights shall be respected. No investment of any description can be expropriated unless Parliament has passed an Act relating to the compulsory acquisition of that property. Also, in case of expropriation full compensation shall be made at market value and shall be convertible at the current exchange rate. Zambia is a signatory to the Multilateral Investment Guarantee Agency (MIGA) of the World Bank and other international agreements. This guarantees foreign investment protection in cases of war, strife, disasters, and other disturbances or in cases of expropriation. Zambia has signed bilateral reciprocal promotional and protection of investment protocols with number of countries.include those in 4
above and the incentives in 3 above which have attracted a number of both local and foreign investors ti invest in Zambia. What opportunities are currently available in Zambia? Which industries are attracting the most interest and what are the potential returns? Mosho Lewis : “The Mining, Hotel, Tourism, Energy, Transport, Telecommunication and Financial sectors are currently attracting the most interest from investors. “Despite the interest that is being attracted there is still plenty of room in these sectors and other sectors such as the manufacturing, Education and Health sectors.” How does the local economy benefit directly from the foreign investments? What has the government done to ensure a balance between investment and return? Mosho Lewis : “The local economy has benefited greatly from the investments as jobs have been created for the Zambians. There is increased revenue from taxes due to increased production. The economy has also benefited from building of infrastructure.”
Mwisa Costa cmwisa@yahoo.com P.O Box 90020, Copperbelt Province, Luanshya, Zambia Lewis Nathan Advocates Lewis Chisanga Mosho T: +260 211 262009 +260 211 261995 lewis@zamnet.zm Plot No. 758 Impendence Avenue, Woodlands, Lusaka, Zambia
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Forming Futures and Trading in Zambia
Agile Logistics Consultancy Ltd Mosho Lewis T: +260 977 47 25 01 nyambe1980@hotmail.com Plot 183, Kasangula Road, Lusaka, Zambia. enterprises approved by it and enforces compliance with the terms and conditions of the investment certificates approved under the Act. In fact “Past trade activities shows a steady growth in both Primary and Secondary activities, these have currently gone up as we saw the increase in the Primary Sector specifically in the mining sector with the opening of Lumwana Mine in Solwezi, North Western of Zambia and also the boosting of copper production in the Copperbelt Province of Zambia. “Also the Chinese boosted the production of coal by opening a Coal Mining in Southern Province. Nickel Mining and Stone quarrying in Kafue.
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gile Logistics Consultancy is a Zambian registered company solely owned by Zambians and involved in Logistics and Transport Consultancy. It’s basically involved in improving logistics and transport operations of organizations through auditing and monitoring control measures, methods and processes that improves efficiency and reduces costs,. Also it helps candidates that are involved in Research Project Work for the Advanced Diploma for the Chartered Institute of Logistics and Transport (CILT) Malindi Nyambe is Managing Consultant for the organization with Nine (9) years experience in the Logistics and Transport Industry. Two (2) years spent at Chirundu border, the busiest corridor of entry and exit of international goods that borders Zambia and Zimbabwe as a Customs Clearing Agent. Please summarise the primary statutes and regulations that govern trade in Zambia and the current level
of import/exports within the region. Malindi Nyambe : “The Ministry of Commerce, Trade and Industry's key responsibilities lie in administering national policy for development in the private sector. It acts as a central authority for coordinating commercial, industrial and trade affairs, whilst working with both public and private organisations to oversee the successful implementation of governmental policies.” “Various bodies are there to regulate the kind of businesses involved, but all profit making organisations must register with the Patents and Companies Registration Office (PACRO). “With foreign companies despite registering with s PACRA, they will need to obtain an Investment Licence from the Zambia Investment Centre that was establised under the Zambian Investment Act, 1993, it promotes and co-ordinates government policies on investment. It therefore monitors the performance of
“Generally speaking there are many prospects of finding more and of variety minerals in almost all the provinces including Western and Eastern Provinces. There have been incidences where Investors have been obtaining Prospecting Licenses instead they use such to mine and export and trade in minerals. “So we are much endowed in natural resources, timber is being exported to China, Sugar to the European Union, Energy to DRC Congo, Cement to Burundi and Rwanda. “In agriculture we may be regarded as the bread basket of central Africa, the government supported the agriculture industry through the subsidisation of agriculture inputs such as seeds and fertilizers. Most of “the maize is being exported to the neighbouring country Zimbabwe. We still have maize marooned at some Food Reserve Agency depots. The displacement of white farmers in Zimbabwe through that country’s land policy increased the agriculture outputs in the country as they re-allocated here in Zambia.”
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How to Attract Foreign Investment
How to Attract
Foreign Investment
M
ost international governments are keen to attract foreign direct investment; with the creation of new jobs, improvements to infrastructure and the promotion of growth and employment, there is little to complain about. As our global economies emerge from recession, attracting this investment remains very much a global
Azanne Kofi Akainyah akainyah@aalawconsult.com www.aalawconsult.com T: + 233 302 760 164 Villa Almaz, 7A, Roman Road, Roman Ridge, Accra, Ghana
priority however some countries are considerably more successful in doing so than others. For firms looking to invest abroad there are a number of key topics that have to be faced before making a decision on location. The local workforce, laws, regulations and practices have
Thierry Rajaona trajaona@fthm.mg fthm@moov.mg www.fthm.mg
a big impact on this, for example, excessive red tape can slow progress when it comes to starting a business, lease land or settle a commercial dispute. Corporation tax is also a major consideration as is the level of corruption and political stability. Acquisition International speaks to the experts… Azanne Kofi Akainyah is a partner in A & A Law Consult a law firm in Ghana focused on the provision of Corporate, Investment and Energy advice and assistance. Goce Adamceski is Co-founder and Managing Director of ACT! Consultancy Services. Darko Janevski, Co- founder and legal consultant. Amira Musa is Partner & Managing Director at Allied Auditors.
Goce Adamceski, Darko Janevski T: +38923224131 g.adamceski@act.com.mk d.janevski@act.com.mk www.act.com.mk Crvena Voda Str. 7/13, 1000 Skopje, Republic of Macedonia
Ajibola Olomola T: +234 1 271 8933 aolomola@kpmg.com www.kpmg.com
Amira Musa amira.musa@alliedauditors.sd www.alliedauditors.sd
Suresh R.I.Perera T: +94 115 390 320 sperera@kpmg.com lk.kpmg.com
18A Temple Road, Ikoyi Lagos, Nigeria
32 A, Sir Mohamed Macan Markar Mawathe, Colombo 03, Sri Lanka
Azmi Mohd Ali azmi@azmilaw.com www.azmilaw.com www.azmiandassociates.sg 14th Floor, Menara Keck Seng, 203, Jalan Bukit Bintang, 55100 Kuala Lumpur, Malaysia.
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Morris & Sojnocki
Wayne Morris T: 677 21851 wayne @msca.com.sb PO Box 70 Honiara Solomon Islands 1st Floor City Centre Building Mendana Avenue Honiara Solomon Islands
Azmi Mohd Ali is Senior Partner of Azmi & Associates, a corporate and commercial law firm of approximately 50 lawyers based in Kuala Lumpur, Malaysia. Suresh R.I. Perera, Principal, Tax & Regulatory – KPMG in Sri Lanka.
Andrés L. Halvorssen T: +58-212-9520995 ahalvorssen@rdhoo.com www.rdhoo.com Torre Forum, Piso 11, Calle Guaicaipuro, El Rosal, Caracas 1060 Venezuela
Vo Ha Duyen T: (84-8) 3827 7300 duyen@vilaf.com.vn www.vilaf.com.vn Kumho Asiana Plaza, Unit 404-406, 39 Le Duan Street, District 1, Ho Chi Minh City, Vietnam
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How to Attract Foreign Investment Established in July, 1996 by Theodore Hoegah, a former legal & Fiscal adviser, and Michel ETTE, lawyer, the Hoegah & Etté Firm, (“the Firm“) is located in Abidjan, in the district of Plateau. Mariette Flora N'dohi is a legal adviser at Hoegah & Ette, associated lawyers. VILAF was one of the first business law firms formed after Vietnam opened its door to foreign investment in the early 1990s and has grown steadily with the growth of Vietnam’s investment laws. At present we have about 45 lawyers. Vo Ha Duyen is Executive Partner at VILAF. Please provide a brief history of your firm and outline your experience in foreign investment. Azanne Kofi Akainyah: ” The firm was established in 2007 as a new partnership but has a long history and deep experience in the legal field. We act for several foreign investors and have excellent relations with the regulatory agencies in this field.” Goce Adamceski : “Established in 2008. Started to provide legal support to LUKOIL Macedonia ltd. (daughter company of the Russian petroleum company OAO LUKOIL) as well consultancy services to projects in INVEST Macedonia, Ministry of Economy, Public Procurement Bureau, USAID.” What gives you an advantage over local and global competitors in your areas of expertise? Azanne Kofi Akainyah: “We consider our clients to be partners. Our partners were all trained in the United Kingdom and some of them have had lengthy experience in working in England. We are therefore familiar with and practise the standard of client care to be expected by clients from that and similar jurisdictions. Our partner Azanne Kofi Akainyah is the Winner of the International Law Office Client Choice Award in 2011 in the Energy & Natural Resources category. No other lawyer in the West Africa sub regions received an award in any category in 2011.” Goce Adamceski : “The experience gained by working with and for entities from the EU, USA, gulf countries and Russia allows us to be very flexible and adapt on different corporate cultures. Unlike most of the competitors ACT! staff has experience and close relations to both private and public sector.” Amira Musa : “Our team includes professional internationally licensed chartered and certified accountants as well as competent assistants with various local and international experiences. Allied Auditors understands consultations are always business emergent. We believe in formal association with our client in terms of collective thinking.” Azmi Mohd Ali: “We are client centric in our approach in that we are always conscious of our client’s interest. Furthermore, we are also the sole member from Malaysia for the TerraLex law firm network which has around 16,500 lawyers. In addition, we are alsomembers in other law firm networks such as First Law International network and the European Association of Lawyers (AEA). “Through our networks, we have access to new referral sources, creating a bigger and wider scope of client base. This, in a way enables us to compete more successfully for larger clients. The market perception is that if a law firm only handles local matters, this prevents the lawyer from winning larger, more lucrative clients.
“Through this network, the Firm is able to retain its competitive edge through a better understanding of how other local firms run their practices.” Suresh R.I. Perera : “KPMG Sri Lanka is one of the largest Professional Service firms of Chartered Accountants in Sri Lanka with an illustrious history dating back to 1897. The firm is presently the auditor for a vast number of banks in Sri Lanka including local operations of multinationals, commercial banking entities, listed banking entities and specialized banks.” Vo Ha Duyen: “We offer the unique combination of international professional expertise and the local in-depth understanding of the country’s evolving, complex political and legal system. The availability of both of these factors in one single law firm in Vietnam is rare but is important for clients in Vietnam’s developing and dynamic environment.” Who is a typical client? Azanne Kofi Akainyah: “Our typical client is a foreign investor typically service provider in the Oil & Gas sector. We also regularly advise several embassies and High Commissions. Our partner Azanne Kofi Akainyah is the Honorary Legal Adviser of the British High Commissioner in Ghana. Suresh R.I. Perera: “KPMG has a large clientele ranging from large local conglomerates to multinational companies across a wide range of industries such as banking, insurance, apparel, plantations, shipping, logistics, tourism etc.” Mariette Flora N'dohi: “Our typical client is, almost exclusively, a company. It can be a local company, which requires the assistance of our firm for the problems encountered every day in practice of its activity, as well as a foreign investor wishing to create a business and start up a company in the country. It can also be a foreign company requiring our expertise for a specific matter. “Thus, we assisted many companies from their establishment in Ivory Coast, and are still providing them legal advises and assistance in every fields of practice.” Please summarise the primary statutes and regulations that govern foreign investment in your jurisdiction and its current level. Azanne Kofi Akainyah: “There are three major gateway statutes regulating investment. These are namely: “Ghana Investment Promotion Centre Act, 1994 (Act 478) “Free Zones Board Act 1995, (Act 504).” Ghana National Petroleum Corporation Law Act 1983, (PNDCL 64) Goce Adamceski : “There are laws on FDI agency and Law on Technical Industrial Development Zones, which establish and regulate the national system and institutions responsible for the foreign investments. The main legal framework relevant to the foreign investors consists of laws and by-laws in the areas of: Labour Law, Company Law Construction Law, Construction land law, law on urban and spatial planning, Law on Ownership and Other Real Rights, VAT law, profit tax law, personal income law, Company law, Law on employment and work of foreigners, 20+ agreements on avoidance of double taxation
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How to Attract Foreign Investment Amira Musa : “Foreign investment is governed by Investment Encouragement Act 1999 amended 2003. This Law is enforced at both federal and state levels. Companies Act 1925 governs the companies registration.” How do the regulatory authorities enforce these laws and regulations? And how are they supervised by their regulatory authorities? Goce Adamceski : “The government has quite strong tool in regulation and surveillance on how the laws enforcement by being superior to the inspectorate services and agencies on the field. “There are independent regulatory bodies in some business areas such as energy, broadcasting, telecommunications and aviation and they have responsibility for the development in those sectors. “The government and its agencies are controlled by the Parliament in which the ruling coalition has strong majority and sometimes there is lack of adequate control and supervision by the legislative. “ Amira Musa : “Through application of companies act, and fulfilling the requirements (as defined by the Act)for granting investment licences by the investment authorities & commission.” Mariette Flora N'dohi: “Regulatory authorities, such as Ministries and national agencies, generally implement correctly these laws and regulations. The enforcement of these laws and regulations is supervised by these authorities, who set up simplified administrative proceedings, and manage their best to ensure checking. The non compliance with the regulations is generally penalised by the payment of penalties” What methods are available in your jurisdiction to boost global investment competitiveness? Azanne Kofi Akainyah: “Recent successive governments have declared that Ghana is open for business. The country is being positioned as a regional hub in west Africa. This message is pushed through a diplomatic service which accentuates Economic Diplomacy, transparency and non alignment. The regulatory authorities already mentioned also proactively search the globe for business investors Amira Musa : “The law provides guarantee to investors that their projects will not be nationalized. The procedures governing applications from investors have been simplified and restrictions lifted on the right of the investors to repatriate their profits. This in addition to other privillages including exemption from customs and exemption from business profit tax for period of 5 to 10 years.” Azmi Mohd Ali: “The laws relating to the foreign investment have been liberalised back in 2009. Previously there was a general requirement that a company shall maintain certain Bumiputera (native of Malay) percentage in the shareholding level of the company. However, on 30th June 2009, the Government of Malaysia had announced on the deregulation of this requirement as an effort to facilitate greater investments by foreign interests. Apart from that, the Government of Malaysia also offers a wide range of tax incentives for manufacturing and service projects in Malaysia. There are various financial and non-financial incentives offered by The Malaysian Industrial Development Authority, one of the government
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agency, in order to promote specified types of business activities including activities having Pioneer Status and Bio Nexus Status. The introduction of the new Competition Act which will come into force on 1st January 2012 would also promote a competitive market environment and provide a level playing field for all players in the market.” Mariette Flora N'dohi : “The government developed incentive measures to encourage foreign investment, such as the set up of national agencies for the facilitation of the set up proceedings, but also fiscal measures, such as 100% to 25% tax exemption, reduction/exemption of customs duties, exemption of VAT, etc.” Vo Ha Duyen : “After Vietnam’s dramatic leap in joining the WTO, over the last five years, the Government has tried to simplify investment procedures and to put foreign and domestic investors on equal footing. A big step of administrative reforms has been the change of the approval power for most foreign owned projects from the Ministry of Planning and Investment to local People’s Committees. “Nevertheless, the Government is facing a difficult need to find appropriate measures which enable them to both meet Vietnam’s WTO promise to grant equal treatments to foreign and local investors and also to be able to monitor foreign investors’ compliance with Vietnam’s WTO schedule for investment in services. This dynamics might cause increasing procedural challenges, transaction costs and some uncertainties in M&A transactions. This confusion may continue but should be settled in a few years. “Vietnam is an attractive investment destination with a low-cost and hard-working labor force, large market and stable political system. Western and Japanese investors are also increasingly seeing Vietnam as the choice to disperse investment risks (“China + 1”). Vietnam will be very competitive when the regulatory and political confusion in the implementation of WTO commitments have been settled.” Has the economic crisis altered the level of foreign investment in your jurisdiction? Azanne Kofi Akainyah: “Foreign investment in Ghana has been on an upward trend since the discovery of high grade oil and gas in commercial quantities in 2007. The global economic crisis has not had a discernible negative impact on the local economy. Indeed the crisis has coincided with the rise in the price of cocoa and gold two of the major exports of Ghana. Goce Adamceski : “Macedonian economy has modest capacity and foreign investment inflow; therefore the economic crisis did not have significant impact on the investment, though some announced investments were postponed.” Amira Musa : “Economic crisis slowed down foreign investment in Sudan. Most investors are from Gulf countries and since these countries are affected by the economic crisis and drop in Oil prices, therefore more financial resources will be needed to meet their domestic budget spending, and therefore less capital will be available for investment in Sudan.” Suresh R.I. Perera: “Initially yes, but the national advantage of access to resources such as labor, natural resources and fast developing
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How to Attract Foreign Investment infrastructure has helped Sri Lanka to remain relatively resilient to the economic crisis. Sri Lanka’s improving economic environment has also resulted in an influx of foreign direct investment between 2009 and the first half of 2011. “ Mariette Flora N'dohi: “Foreign investment has always been important in our country. But it has been weakened in the last 12 months, due to the political crisis. There has been no new investment in the last 24 months; the most important investments made over this period are safeguard investments. “But since the end of crisis, foreign investors coming from much more various horizons start to pay interest to local business again, and the country is experiencing an increase in foreign investment.” What are the current global patterns of foreign investment? Where are the current hot spots? Azanne Kofi Akainyah: “Ghana is not yet a hotspot for global investment. However, given its geographical position, peace and the relative diversity of its economy (including a vibrant services sector) as well as its ambition to be the sub regional hub there is no doubt that it will attract more investment and financial interest in the near future. Amira Musa : “In 2000-2005 Foreign investment was mainly from Malaysia, China and India towards the oil sector and the remaining towards agriculture, construction and transport. From 2006 Foreign investment attracted the Arab investors from Gulf countries.” Suresh R.I. Perera : “The current hot spots in the Sri Lankan scenario are the tourism, infrastructure and power generation industries. Sri Lanka has a splendid natural landscape comprising sandy beaches and a lush mountain terrain as well as cultural heritage sites and wild life parks making the country an ideal tourism destination which has remained untapped for many years. With increasing development in the spheres of road ways, ports, airports and industrial factories as well as increasing energy demands, Sri Lanka is becoming an attractive destination for
infrastructure service providers and power companies.” Mariette Flora N'dohi: “Over the last months, the main fields of investment in the country are the oil and mining sectors. Some important investments are also made in banking, agribusiness and industry, construction and civil engineering.” Why are some countries more conducive than others in attracting foreign investment? What incentives do they use to attract foreign investors? Azanne Kofi Akainyah: “In Africa stability in peace, democratic governance and the rule of law are attractive credentials especially where there is a deep natural resource base.” Goce Adamceski : “Besides the economic incentives (fiscal or financial) the countries doing well offer non economic incentives such as: simplified administrative procedures, one stop shops services by the government agencies, pre- urbanized land slots.” Suresh R.I. Perera : “I believe that each country would have its own proposition to offer foreign investors. Sri Lanka is presently experiencing an influx of investment across many sectors. The interest is fueled by strong economic growth and Sri Lanka emerging to be a sought after investment destination with attractive market and export potential. A number of investment incentives are also available for investments of certain qualifying magnitude.” As the world becomes smaller and markets intermingle, what are your predictions regarding foreign investment, both globally and locally, over the next 24 months? Azanne Kofi Akainyah: “No matter what happens in global terms Ghana is destined to be a star. We have wasted a great deal of our life as an independent nation but the lessons have been learnt and although we are coming from behind we intend to be leaders not only sub regional but also on the world stage.” Goce Adamceski : “As the predictions for new storm in the global economy become more
intensive the investors will be more cautious where they place their resources. Companies will invest in stable economies trying to minimize the risk. The countries will attract investment mainly as a result of a promotion done by the satisfied companies that have already invested in those countries. Therefore in this period it will be more important to keep the investors and stimulate them to increase the operations in the location in which they are already settled.” Azmi Mohd Ali : “In the first half of the year 2011, Malaysia has achieved an increase of 76% from RM12.1 billion last year to RM21.3 billion this year in foreign direct investment. During the recent World Economic Forum, through the World Competitiveness Report, Malaysia is placed second among ASEAN countries and sixth in the Asia Pacific region. This shows that foreign investors are aware of the advantages of investing in Malaysia. I’d think that more investors will be investing in Malaysia because of the numerous incentives and because of the economic opportunities here.” Suresh R.I. Perera : “I believe that there is a lot of opportunity in developing lesser developed nations. This is because there is so much that can be done and so much opportunity. Most of these countries have good natural resources and untapped human capital. Given the right investment and technology transfer, we could surely see more countries emerging to reach global benchmarks. In Sri Lanka, we have seen significant growth taking place during the recent 18 months and the 24 months ahead could be even more interesting. As infrastructure is put in place we believe that industry will develop across the country” Mariette Flora N'dohi: “Locally, there will probably be an increase of no less than 25% in foreign investment, compared with the year 2010, due to political and social stability, and a more participative and welcoming economic climate. “Globally, there will probably be a massive transfer of foreign investments in emerging countries, mainly due to the crisis encountered by European countries.”
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How to Attract Foreign Investment
CASE STUDY
Thierry Rajaona is a partner in FTHM Conseils, a consulting company, leader in the sub-region of the Indian Ocean. He is in charge of financial engineering that covers privatization as well as acquisitions. FTHM Conseils, established in 1994, received among other mandates, the privatization of the national oil company and conducted studies on the public-private partnership of the national airline company and the national airport system. Similarly, the consulting firm had the mandate to privatize the Development Bank of the Comoros, the very first privatization launched in this country. FTHM Conseils accompanied many Mauritian investors in Madagascar and carried out the largest Madagascan acquisition transaction in the Island of Reunion. Foreign investment in Madagascar has reached the amount of $ 2 billion in 2008, thanks particularly to the mining investment. The subsoil of the country is full of mineral resources (sapphire, nickel, cobalt, ilmenite, coal, shale, iron …) which are largely under –exploited. The law on large mining investments is a model of its kind to secure investors in this sector. Unfortunately, the political crisis that has been shaking the country since 2009 has undermined the country’s ability to attract new investors. Political stability is an essential prerequisite for every investor, not to mention legal certainty. As soon as the political stability is restored, there is reasons to believe that investors will come back in the mining sector as well as in other promising ones, such as Tourism because of the quality of biodiversity and of the Malagasy people’s hospitality, Textile due to the quality and the very low cost of labour, and Agriculture because of the large available arable land.
R
dHOO has rendered legal services since 1990 to major domestic and foreign clients doing business in Venezuela and has extensive expertise in foreign investment and related matters, including exchange control, investment protection and tax issues. Andrés L. Halvorssen is partner in charge of the tax department of Raffalli de Lemos Halvorssen Ortega y Ortiz (RDHOO). The principal statute that governs foreign investments is Decree No. 2095 of 1992, which sets forth the guidelines under which foreign investments are treated in Venezuela. Contributions of cash and assets, as well as investments resulting from intangible technological contributions (such as trademarks, patents, industrial models, technical assistance and technical know-how) are considered direct foreign investments. The position of foreign investors is, in general terms, the same as that of national and regional investors. Almost all sectors of the national economy are open to foreign investors, except for areas specially reserved to government-owned companies (such as oil, gas and iron ore), areas that are exploitable through concessions and areas specially reserved to national companies, such as TV and radio broadcasting, newspapers in Spanish and regulated professional services. Foreign investors may freely acquire shares or rights in any local corporation held by national or foreign investors without prior authorisation, provided that the acquisition does not constitute an investment in any of the
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reserved areas indicated above. Licence agreements regarding the use and exploitation of trademarks, patents and technology transfer agreements are allowed to be executed without prior authorisation but are required to comply with certain formal requirements and must be registered with the Superintendence of Foreign Investment (SIEX) and at the trademark office when applicable. Due to the exchange control regime in force since February 2003, the remittance of net profits, dividends and royalties abroad requires the previous registration of the direct foreign investment with SIEX, the registration of the subsidiary or branch with the Registry of Users of the Exchange Control System (RUSAD) as well as the necessary approval of the Commission of Foreign Exchange Administration (CADIVI). Changes in the exchange control regime in May 2010 have resulted in there being only three legal alternatives to purchase or sell foreign currency (CADIVI, SITME and SICOTME), each with a different exchange rate, and in practical terms they imply severe restrictions in the effective purchase of foreign currency. Venezuela has an extensive network of bilateral investment treaties (BITs), as well as double taxation avoidance treaties. The level of foreign investments has been affected by exchange control restrictions and more recently by numerous expropriations (among other factors) and thus a comprehensive understanding of the exchange control regime and BITs have become crucial aspects in the structuring of foreign investments in Venezuela.”
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How to Attract Foreign Investment Ajibola Olomola Partner
18A Temple Road, Ikoyi Lagos, Nigeria
Tel: +234 1 271 8933; +234 803 402 1039 Email: aolomola@kpmg.com Web: www.kpmg.com KPMG Professional Services is the KPMG International member firm in Nigeria. The partners and people have been operating in Nigeria since 1978, providing multidisciplinary professional services to both local and international organisations within the Nigerian business community. KPMG has been working together with the Central Bank of Nigeria to develop the policies targeted at reforming the banking and other financial services industry and has also been involved in negotiations with various other statutory agencies to ensure a seamless implementation of the banking reforms. In addition, the firm has assisted various local and international banks operating in the country under the erstwhile universal banking regime to restructure their operations, in line with the new banking reforms. Foreign Investment in Nigeria is principally governed by the provisions of the Nigerian Investment Promotion Commission Act and the Foreign Exchange (Monitoring and Miscellaneous) Provisions Act. Foreign investment in Nigeria is essentially encouraged by the lack of restriction on foreign shareholding thresholds, the guaranteed freedom from expropriation by the government, and the freedom to repatriate profits and capital subject to compliance with established administrative procedures. Tax and export incentives exist in the form of tax holidays, tax exemption on certain items and profits, and for transactions carried out in certain designated locations. Reduced tax rates on certain income due to residents of tax treaty countries are also available, amongst others. These incentives are monitored and enforced through the respective government agencies saddled with the responsibilities. While 2007 was a record year for foreign direct investment (FDI) in Nigeria, the later years witnessed the cascading impact of the global economic crises as there was significant evidence of pressure and weakening of investment, corporate and project
finance in the country. This was manifested in the fall in stock market and oil prices and the rise in bank interest rates. Data from the Central Bank of Nigeria (CBN) annual report in 2010, shows a steep decline of 78.1 percent in foreign direct investment, and a significant increase of 87.2 percent, in portfolio investments into the Nigerian economy. This is the third consecutive year of decline in FDI inflow into the country. The global economic uncertainty did not however negatively impact on the appetite of foreign investors for investment in paper assets in Nigeria. The trend witnessed in Nigeria is altogether not unconnected to the recent trends of global foreign investment, which appears to be focused on diversification and primarily geared towards China and other emerging economies. We are optimistic that foreign investment in the Nigerian market will steadily improve in the coming years, in view of the continuing reforms to revamp the local economy. This optimism is evidenced in the increasing interest of foreign investors in the banking sector in view of the reforms targeted at strengthening their financial base. The government in making efforts to raise funds for the reforms and has successfully sold out on 8 rounds of debt auction in present year, with the last sovereign bond valued at N93billion ($604.3million). These bonds have been bought by both local and foreign investors. The government has also embarked on various reforms which include the recent policies targeted at the power sector and efforts to curtail the rise in inflation rates. However, issues around political stability, civil and ethnic unrest may threaten these efforts where not urgently addressed. Medium- to long-term prospects also hinge on the ability to address key reforms successfully in Nigeria in order to advance infrastructure development and broaden the economic base through enhanced private-sector participation.
Wayne Morris Partner
PO Box 70 Honiara Solomon Islands, 1st Floor City Centre Building, Mendana Avenue, Honiara, Solomon Islands.
Tel: 677 21851 Email: wayne@msca.com.sb Web: www.msca.com.sb Wayne has been a partner in our firm for over 20 years and has extensive experience in auditing, as well as in the areas of taxation and general business services. Wayne worked for PwC in both Australia and the United Kingdom before coming to the Solomon Islands in 1988 to head the practice. Wayne is a Certified Public Accountant (Solomon Islands) and is a Fellow of the Institute of Chartered Accountants in Australia and CPA Australia. Greg was the principal of Sojnocki Chartered Accountants since the end of 1996, acquiring the practice of Robert V. Emery. He was manager of the firm from 1990 to 1996, which was KPMG Peat Marwick until acquired by Robert V. Emery in 1992. Greg is a Certified Public Accountant (Solomon Islands) and a member of the Canadian Institute of Chartered Accountants. Supporting the partners, are 2 Managers and 17 professional staff (one recruited from PNG, one form Philippines and the rest recruited locally) and 4 support staff (all recruited locally). Generally, locally recruited professional staff has tertiary qualifications, some of which have been gained locally, others overseas. The firm maintains a computer network with IBM compatible equipment. Staff are primarily familiar with Word, Excel, MYOB and Attaché applications. The firm maintains up to date copies of International Auditing Guidelines and the International Accounting Standards promulgated by the International Federation of Accountants, as well as Australian Accounting Standards. In addition, the firm maintains a set of the current laws of Solomon Islands and subscribes to the gazette service to maintain up to date records of all legislative changes. The firm provides a range of services to clients in both the public and private sectors, including major statutory authorities and several of the largest organisations in Solomon Islands.
How do the regulatory authorities enforce these laws and regulations? And how are they supervised by their regulatory authorities? “ Foreign Investors must obtain Foreign Investment registration prior to obtaining any licences to operate in the Solomon Islands. Companies van not be registered unless foreign investment registration is obtained. Annual survey returns must be lodged with Foreign Investment Division failure to do so could lead to cancellation of registration and this would lead to cancellation of any other registration or licences issued. Companies are required to lodge annual returns.” What methods are available in your jurisdiction to boost global investment competitiveness? “Tax incentives are available and must be applied for, the application must include the economic benefit to the national economy against the loss of tax revenue in the short term. Applications are considered on a case by case basis.” What are the current global patterns of foreign investment? Where are the current hot spots? “There is considerable interest in mineral exploration both land and sea. In addition potential investment in onshore fish processing.”
“Foreign Investors must obtain Foreign Investment registration prior to obtaining any licences to operate in the Solomon Islands. Companies van not be registered unless foreign investment registration is obtained. Annual survey returns must be lodged with Foreign Investment Division failure to do so could lead to cancellation of registration and this would lead to cancellation of any other registration or licences issued. Companies are required to lodge annual returns.”
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How to Attract Foreign Investment
A
cquisition International speaks to Elias Tsaoussis, partner of V&P Law Firm about how to attract foreign investment.
(a) investment incentives laws encouraging investment in certain sectors of the economy and geographical areas of Greece,
V&P Law Firm is one of the largest practices in Greece, comprising over 45 lawyers and a substantial administrative and support staff. V&P was established nearly 30 years ago in Piraeus and 20 years ago it opened its Athens office, which is now its head office.
(b) EU support programs, channeling funds to certain public projects and currently implemented under the “National Strategic Reference Framework 20072013 and
Elias Tsaoussis commented: “Our experience in international investments, banking and financial services, asset and project finance, joint ventures, M&As, and corporate reorganizations, development projects and cross-border synergies is vast and the firm is established as one of the country’s highest ranking law firms in the relevant fields.” What gives you an advantage over local and global competitors in your areas of expertise? “The firm’s wide international client base combined with our outstanding performance within the very specialized and demanding Greek market helps us capitalize on industry’s best practices and respond to the needs and concerns of an international investor. We are able to give the personal attention and demonstrate commercial responsiveness and awareness that may be missing elsewhere, while we have managed to develop the professionalism and expertise found in the largest of the international firms.” Who is a typical client? “V&P has worked on some of the largest and most significant transactions in the region and has advised and represented some of the most active developers, multinational retailers, investment funds, contractors and financial institutions, with outstanding success in overseeing a wide range of important projects in Greece.” Please summarise the primary statutes and regulations that govern foreign investment in Greece and its current level. Investment support in Greece is mainly materialized through:
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(c) the regulatory framework for Public Private Partnerships (PPPs) allowing collaboration between public and private sector organizations for the active development of state-owned real estate and the more efficient provision of public goods and services. “The primary investment incentive law currently in force is Law 3908/2011 which was enacted only a few months ago. Law 3908/2011 covers a wide range of investment categories and provides for aids consisting in tax relief, subsidies and soft loans. “Apart from above law, there are various other laws promoting investment in various economy sectors and providing incentives to the shipping industry, to venture capital companies, to portfolio investment companies, to real estate investment companies, to mutual funds, to companies merged, de-merged or transformed, et al.” How do the regulatory authorities enforce these laws and regulations? And how are they supervised by the regulatory authorities? “Among other distinctive features, new Investment Incentives Law 3908/2011 introduces procedural changes and novel implementation mechanisms such as electronic application submission, investment monitoring by new Investor Service Offices, evaluation processes through the newly founded Register of Evaluators and Auditors. However, given the recent enactment of such law, the effectiveness of such new procedures remains to be tested in practice. Generally, investment programs in Greece are run by departments of the public sector, governmental bodies or government appointed committees and so a certain
Elias Tsaoussis elias.tsaoussis@vplaw.gr www.vplaw.gr T: +30 210 7206900 15, Filikis Eterias Sq., 106 73 Athens, Greece amount of bureaucracy, delays and weak tuning is to be expected.” What methods are available in Greece to boost global investment competitiveness? Please can you define how success these methods have been in your answer? “Greece is currently undergoing significant structural and regulatory changes in an effort to invigorate development and alleviate the impact of economic crisis. Some of the methods that are being implemented comprise the following: (a) Favourable Corporate Income Tax Policy: Starting from fiscal year 2012, corporations and Limited Liability companies shall be taxed at a rate of 20%. It is worth noting that in 2001 the above tax rate was 40% and is gradually being reduced since then, while presently there is discussion to bring such rate down to 15%. (b) “Fast track” Investments: New Law 3894/2011 provides for a flexible implementation scheme allowing faster and easier investment procedures for large investments in certain vital economy sectors. (c) “One stop shop” framework: New Law 3853/2010 introduces radical changes with respect to the incorporation of companies in Greece, so that the time for setting up a company can be markedly reduced. (d) Various other pieces of legislation are either passed or are under reform in
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How to Attract Foreign Investment order to simplify business licensing procedures and develop the concept of “one stop agency” for investments. (e) New funds supporting particularly small, medium and innovative enterprises are created, such as the new National Fund for Entrepreneurship and Development. “The success of any such new measure aiming at development and investment boost shall depend on numerous parameters, especially as there are inborn difficulties and hindrances to overcome such as: (i) an overstaffed and unwieldy public sector that generates a large amount of bureaucracy, (ii) a perplexing and incessantly changing regulatory framework (iii) offhanded laws and measures passed to counterbalance large deficits while harming long term development plans and (iv) public services, organizations and unions that are prone to corruption.”
construction and tourist industries. (d) Infrastructure (highways, ports etc.), Logistics & Waste Management: Anticipated competitive processes for concession projects are expected to present solid investment opportunities. Why are some countries more conducive than others in attracting foreign investment? What incentives do they use to attract foreign investors? “First and foremost investment motivation is taxation (in terms of both low rates and tax relief). However, attracting investments relies also on various other crucial determinants such as: (a) Coherent and advanced legislation and regulatory framework (especially in relation to tax obligations, business and employment).
Has the economic crisis altered the level of foreign investment in your jurisdiction? “Greece’s deficit and public debt problems which ensued the global economic crisis, definitely left a serious economic footprint and blocked investment initiatives. On the other hand such adverse economic environment has brought to light inherent systemic deficiencies and brings forth reparative policies and positive reform.”
(b) Swift, reliable and effective judicial system.
What are the current global patterns of foreign investment? Where are the current hot spots? “Post-crisis turbulences and current market volatility impacts on both debt and equity, bringing a growing preference for innovative tools combined with safe long-term investment projects. In Greece but also in the South-East European region, the following sectors are expected to spearhead new investment:
(e) Healthy banking system.
(a) Energy: Greece’s geostrategic position as a transit hub in the energy markets, recent de-regulation of the domestic energy market and rapid development of RES (Renewable Energy Sources) are a precursor of investment growth in this sector.
As the world becomes smaller and markets intermingle, what are your predictions regarding foreign investment, both globally and locally, over the next 24 months? “Current volatility compounded by the risk of a “double dip” makes difficult to predict capital moves and investment tendencies for the near future. Especially for Greece and in view of the irregular economic conditions and the ongoing strangle to attain better fiscal results, the next two years are expected to bring increased investment activity around privatizations and projects for the exploitation of State real property.”
(b) Food and Beverage: This is a traditionally strong sector of Greek industry and still offers advantages for investment. (c) Real estate: Anticipated new legislation on extensive real estate projects for tourist exploitation shall benefit both the
(c) Public sector that is friendly to business and promotes entrepreneurship. (d) Government planning that fosters research and innovative ideas.
(f) Employment regime that supports more flexible employment relationships. (g) Stable political environment and far-sighted governmental policies.
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Doing Business in the Seychelles AAA International Services Ltd T: + 248 4374000 info@aaainternationalservices.sc www.aaainternationalservices.com Global Gateway 8, Rue de la Perle, Providence, Mahe, Seychelles
Doing Business in the Seychelles
T
hrough its investment framework focussing on safeguarding the interests and rights of potential investors, the Seychelles government has been working hard to attract inward investment into the region. The Seychelles is now recognised as one of the worlds’ most developed international business centres; despite its small size and seemingly isolated location, the country offers unlimited opportunities for investment and business in different economic sectors. Acquisition International speaks to Miss Selma Francis, partner at AAA International Services AAA International Services has built its reputation for quality, competence and efficiency among very demanding and discerning clients. We are dedicated to the provision of professional corporate services characterized by independent and creative thinking to maintain our leadership position and credible reputation.“Our work is based on mutual trust with each and every client, international companies as well as small and medium-sized enterprises. Each client's activity, products and professional environment are carefully taken into consideration as our goal is to provide our client with tailor made solutions which take due account of the client's specific business and other corporate services.” Offshore Yacht RegistrationSeychelles is a member of the Unites Nations and the British Commonwealth and also has privileged economic and commercial relationships with the French, African, Caribbean and Pacific nations.Yachts flying the Seychelles flag receive a friendly reception around the globe. Pleasure yachts registered under the flag of Seychelles are subject to maritime laws of the Republic of Seychelles.
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Business and Investing : Despite Seychelles being small in size, there exist unrivalled opportunities for investors and other professional service sectors. The financial sector in the Seychelles Islands continues to grow and evolve as an international business centre. The Seychelles Offshore business law has seen changes over the last few years - Minimum government fees, Unlimited authorized capital and faster speed of establishing offshore companies etc are few features offered that makes Seychelles outstanding compared to other offshore jurisdictions. Host of international banks, and insurance companies have established their branches in Seychelles. Other possibilities in the Seychelles offshore sector include - Companies Special License, Protected Cell Companies, Limited Partnerships, International Trusts, Mutual Funds, Ship/ Aircraft Registration to name just a few. More opportunities exist in the offshore sector including the Seychelles international Trade Zones (SITZ). Seychelles is a member of the Nonaligned Movement (NAM), the African Union, Commonwealth, International Monetary Fund (IMF), Indian Ocean Commission (IOC), La Francophone, and the UN and some of its specialized and related agencies Infrastructure : Seychelles has well established infrastructures on Mahe, the main island of the 115 group of Islands. Seychelles is located outside the Cyclone belt and has excellent sea and air connections with Europe, USA, Asia and Africa and makes it an excellent place to conduct business. Trade is one of the driving forces of globalization and economic integration and Seychelles is well connected with other
countries for exchange of trades. Bulk cargo carriers serving the country from other major international business centers ensure the timely transportation of commodities. The ministry of Information Technology and communication is responsible for regulating the telecommunication sector. The Seychelles International Airport is one of the finest airports compared to other jurisdictions. Presence of large number of foreign embassies like the British, French, Chinese and Indian makes it easier for the clients to legalize their documents at low cost and fast turn around time. History and Politics : Seychelles achieved independence from the British in 1976 and became an independent republic. Seychelles population is multi-ethnic consisting of European Settlers, Africans, traders of Arab, Persian origin and business men from China and India. In 2006, about 4,000 expatriates lived and worked in Seychelles. Seychelles culture is a mixture of French and African (Creole) influences. Creole is the native language of 94% of the people; however, English and French are commonly used. English remains the language of government and commerce. Italian, German, Chinese, and Indian languages are also widely spoken Seychelles has had a multi-party system with the adoption of a new constitution in 1993. Since then, multi-party elections took place in 1993, 1998, 2001, and 2006. The Seychelles People's Progressive Front (SPPF) won the presidency and majority in the National Assembly in all of the elections. President René also won the 1998 and 2003 elections before transferring the Presidency to James Alix Michel in June 2004, who has been re-elected in the elections of 2011.
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Post Merger Integration
Post Merger Integration: Hearding Cats in the Information Age
What are the main reasons why mergers fail? The sad truth is that most transactions fail to create the value that acquirers expect when they do the deal. When you look at root causes, a very interesting but disturbing pattern emerges. Without exception, failure is driven by soft-factor organizational problems in the merging organizations. The most frequent reason given is slow or poor communications during the integration process. Over 30% of surveyed executives from merged firms gave this as the biggest problem. Slow or poor communications plants seeds of uncertainty, which soon turn into a jungle of rumor and misinformation. Other important reasons given by senior leaders include a too strong focus on cost synergies, a lack of inclusive communications with employees in both organizations, and a failure to take local issues into account. Finally, inadequate merger planning was given by around 20% of respondents as a reason for failure. What is amazing is that all root causes are soft-factor, people-related issues. This is what makes M&A so difficult. In a world where managing businesses has become more scientific and quantitative, success in mergers remains an uncomfortably risky psychological process. Winning hearts and minds is a pre-requisite for winning in the market. Why are the soft-factor problems so difficult to manage? Unfortunately, organizational issues can quickly spin out of management’s control. The core of value in transactions today is the knowledgeable employees who drive growth, innovation and adaptation. Their productivity cannot be measured with a stop-watch, and is driven
by voluntary commitment to the company’s goals. Their identification with merger objectives can evaporate quickly based on subtle signals they get in the workplace, like receiving inconsistent information from different sources. And today, each knowledge worker has the means to broadcast cheaply to the rest of the organization through e-mails, blogs, twitter and facebook. Tiny issues can quickly spiral out of control. Management must keep the upper hand with PMI communication, even if this means taking some risk with hard, but true messages upfront. Why isn’t more done to track and control post merger integration performance? The main reason is that there is no benchmark for post-deal performance, and many potential excuses for poor performance. Especially with regard to the organization, managers have an information advantage visà-vis the board, and it’s easy to spin softfactor value destruction as someone else’s fault. There has been a lack of tools to quantitatively benchmark organizational performance and thereby hold management accountable for the PMI process. Explain what Humatica does and how this can make a difference in M&A transactions? Humatica is the leading specialst advisory working with private equity investors and their portfolio companies to increase the value and performance of their organizations. We directly address the critical soft factor and productivity aspects with hard-facts analytics and hands-on transformation support. Our unique data-driven tools enable unprecedented transparency on specific organizational behaviors that are linked with merger success. On the one hand, this allows us to pin-point organizational risks and value
growth opportunities prior to deals. On the other, we help investors and managers realize value post deal and avoid risk. How do you typically work with your clients pre-deal? We are often asked to look at acquisition targets as part of the due diligence process. Depending on access, we usually conduct structured interviews with selected managers in different functions and at different hierarchical levels. Interviews focus on the key human processes used to make and implement decisions in critical functional areas like Sales, Product Development and Finance. By asking the right questions, we can pin-point important disconnects and risks in management processes. In some cases, our information has been instrumental for adjusting deal pricing to reflect hidden organizational risks. Our pre-deal approach is fast and surgical. What is the most common work you do post-deal? We accelerate time-to-value by getting the right organizational set-up in place. In a recent case we helped investors integrate two mid-market companies acquired simultaneously from two different industrial conglomerates. Due to limited pre-deal access, there was little information available about the organizations and management in each company. We supported the board and investors to quickly get a comprehensive and quantitative x-ray of both acquired organizations. Our work was a critical input for management selection decisions at all levels and to mitigate organizational risks. The acquired companies had overlapping functions and large headquarters. We helped investors and the new management pin-point and realize efficiency improvements which resulted in a 20% reduction in SG&A costs within the first 100 days.
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Protecting Intellectual Property in M&A transactions
Protecting Intellectual Property in
M&A transactions Pierre Massot T: + 33 (1) 44 43 53 44 pierre.massot@cabinet-arenaire.com www.cabinet-arenaire.com 33, Rue de Galilée 75116 PARIS
Nandan Pendsey nandan.pendsey@azbpartners.com T: +91 22 6639 6880 23rd floor, Nariman Point, Mumbai-400021
Dr. Giannella Caruana Curran T: (+356) 21255265/6 giannella@demarcoassociates.com www.demarcoassociates.com 9, Britannia House Level 2, Old Bakery Street, Valletta, VLT 1450, Malta
Chinyere Okorocha T: +234-1-4626841 chinyereokorocha@jacksonettiandedu.com www.jacksonettiandedu.com 3-5 Sinari Daranijo Street, Off Ajose Adeogun Street, Victoria Island, Lagos, Nigeria
CADWALDER T: 212 504 6000 cwtinfo@cwt.com www.cadwalader.com One World Financial Center New York, NY 10281
Hsiaoling Fan T: +886-2-2755-7366 Ext. 281 hsiaoling.fan@taiwanlaw.com www.taiwanlaw.com 13F, No. 136, Section 3, Jen-Ai Road, Taipei 106, Taiwan
Xue Min (Nikita) T: +86 21 52135500 nxue@hfgip.com www.hfgip.com 14/F, Hua Qi Building, No. 969 Wuding Road, Shanghai 200040, China
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Nermien Al-Ali T: +2010 176 4546 www.nal-law.com Nasr Street, Maadi Cairo – Egypt
Fresh thinking in IP
Zeev Pearl T: +972-9-972-8000 ZeevP@pczlaw.com www.pczlaw.com 5 Shenkar St. Herzliya, Israel
Carina Ruiz Gallegos T: (+34) 91 435 2880 info@ruizyveiga.com www.ruizyveiga.com C/ Recoletos nº 14, 1º A 28001 - Madrid SPAIN
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ealmakers facing an M&A transaction should know all about what is often the company's most valuable asset: its intellectual property. Understanding how intellectual property rights are involved with M&A is essential given how M&A activity in the intellectual property field has come to dominate these transactions generally. It is key for prospective dealmakers to take every precaution in protecting their IP assets. As such it is of the upmost importance that companies seek professional and comprehensive advice specific to their needs. Acquisition International speaks to the experts. Nandan Pendsey is Senior Associate at AZB & Partners. Pierre Massot is a member of the Paris bar and leads the team of Arenaire, a firm specialized in intellectual property. Cadwalader is the oldest law firm in the US, dating back to 1792. Christopher A. Hughes, Chair of the Intellectual Property Litigation Group and Bartholomew Verdirame, partner in the Intellectual Property Group of the firm Cadwalader, Wickersham & Taft. Guido de Marco & Associates is a middlesized law firm with a diversified business and litigation practice. Our firm has over fifty years of experience serving a broad range of client interests. Dr. Giannella Caruana Curran is the managing partner of Guido de Marco & Associates. Her fields of practice are corporate law, public procurement and criminal law and she heads the privatization department in the firm. Xue Min (Nikita) works at HFG (Law firm & Intellectual Property Consulting) in China since 2003, as the trademark attorney and partner at the firm.
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Protecting Intellectual Property in M&A transactions Chinyere is an Intellectual Property Practitioner/Consultant, and is presently a Partner in the Law Firm of Jackson, Etti & Edu. Zeev Pearl is the Managing Partner of Pearl Cohen Zedek Latzer. Carina Ruiz Gallegos is a Lawyer, member of the Madrid Bar, cofounder and Partner of the Lawfirm Ruiz & Veiga Abogados, with more than 18 years of experience practicing intellectual property law and commercial advice and litigation, including matters involving patents, copyrights, trademarks, false advertising, contract disputes, appellations of origin, geographic names and domain names, helping companies to protect strong IP portfolios. Hsiaoling Fan is Partner as well as Director of Business Development at Formosa Transnational, Attorneys at Law (FT Law). Together with three other partners, she leads the Technology & Law Department, one of the three major practice groups at the firm. Please give a brief synopsis of your personal, and your firms experience advising on IP law. Nandan Pendsey: “My practice focuses on intellectual property transactions and licensing, IP litigation and enforcement and patent and trade mark prosecution and advisory, among others. We regularly provide advice on regulatory issues arising out of drugs, cosmetics, medical devices and clinical trials. We have also advised clients on information technology, domain name protection and enforcement and cyber law related issues. Pierre Massot: “Before creating ARENAIRE in September 2011, I worked during several years alongside a well-known specialist in intellectual property, and developed an in-depth experience in this field, especially in litigation involving trademarks, design rights and copyrights. In December 2009, I co-founded IP-LOGOS, a firm which rapidly gained recognition in intellectual property. Since September 2011, I lead the firm ARENAIRE and advise companies in the design, fashion and industrial sector. In parallel, I lecture on IP law at the Research Institute in Intellectual Property and at the Lieu du Design in Paris.” Xue Min: “HFG Law Firm & Intellectual Property Practice in China consists of three integrated entities: HFG Law Firm (authorized by Ministry of Justice), HFG Intellectual Property Consulting Co. Ltd. (recorded with China Trademark Office) and HFG Intellectual Property Agency Co. Ltd. (licensed under the State of Intellectual Property Office for all patent related practice). “Founded in 2003, HFG currently counts over 60 professionals distributed into 3 offices of Shanghai (main), Beijing and Guangzhou. The 10 partners of HFG are on average 15 years experience each in the legal and intellectual property (IP) field in China. HFG is proud of the highest standard and quality of service rendered with uncompromised understanding of the business interests of clients from all over the world. HFG professionals are highly skilled, with rich expertise in the field of intellectual property (IP) rights in a wide range of industries and professional areas.
“Collectively HFG Intellectual Property Consulting Co. Ltd commands a profound and diversified knowledge base and multilingual communication capability, and represents the clients at various levels before all the state-level agencies and administrative and judicial authorities. HFG provides intellectual property (IP) service, also corporate service, to a number of Fortune 500 size public and private multinational companies and Small-Medium Enterprises. HFG is recommended Practice by Legal500 (No. 1 in Shanghai) and by Managing IP. Moreover, HFG is one of only 3 firms elected as Executive Members of the Shanghai Trademark Association (STMA).” Chinyere Okorocha: “I have over 19 years practical Intellectual Property experience and is internationally recognized as an authority and specialist in the area of intellectual property law, where she has excelled over the years. At present, she advises numerous blue chip clients on all aspects of Intellectual Property, as well as related issues; and is personally responsible for the IP portfolio management of a number of internationally renowned corporations. Chinyere Okorocha: “Jackson, Etti & Edu, is a full service Law Firm with a well known Intellectual Property practice, based in Nigeria. With four branch offices (including an international office), the firm is able to provide services throughout the African Region and beyond. “The firm has acquired a reputation for providing high quality services, with an appreciation of the commercial goals, constraints and concerns of each client. “This is indeed a major driver in ensuring that client’s objectives are achieved in a most efficient and cost effective way. Carina Ruiz Gallegos: “Ruiz & Veiga Abogados was set up in 1996 by the partners Carina Ruiz Gallegos and Eduardo Veiga Conde, both experienced and focused on the Intellectual Property and Competition fields. Ruiz & Veiga Abogados is conceived as an IP Boutique with a small specialized team highly experienced in the core areas of work of the Firm. “The practice areas of our Office are all those relating to the protection of intellectual property (Patents, trademarks, copyright, computer software, appellations of origin, geographic names, domain names) and competition (including Unfair Competition and Anti-trust matters), together with related matters, such as franchising and distribution, advertising, consumers law. RUIZ & VEIGA ABOGADOS is also experienced and active in the Company/ Commercial law area.” Hsiaoling Fan ;”Admitted in Taiwan and the State of New York as well as qualified to practice law in the PRC and with my LL.M. degrees from Harvard Law School and NYU, I frequently represent multinational clients in high-profile patent litigation, commercial and IP-related disputes, technology-related transactions, and antitrust cases. “Formosa Transnational (FT) is one of the largest and most prestigious law firms in Taiwan. Our senior attorneys and patent specialists cooperate in virtually every area of science and technology, and FT law’s team is one of the firms that most frequently succeed at Taiwan’s Intellectual Property Court which was established in 2008. With extensive commercial and industrial knowledge, we are relied
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Protecting Intellectual Property in M&A transactions upon by our clients for quality representation and guidance in various types of IP-related transactions, licensing matters, investments, transfers of IPR assets, government grants, regulatory compliance, general IPR enforcement and anti-counterfeiting actions.” Who is a typical client? Nandan Pendsey: “The Firm handles patent and trademark portfolios of various clients across industries ranging from pharmaceuticals, medical devices, mechanical, consumer goods to banking and financial services. The Firm has advised various clients in the manufacturing and automotive space.” Pierre Massot: “Pierre Massot successfully defended a leading retailer of home decoration and furniture in several litigations in France concerning copyrights and design rights in 2010 and 2011.” Chinyere Okorocha: “Clientele includes a broad spectrum of local & international blue chip firms, ranging from individuals/small private companies, to major multinationals/conglomerates.” Carina Ruiz Gallegos : “Our clients are Companies that wish to have the right IP strategy, be it in order to get the full value of their IP rights in the frame of their business development, be it because they need to enforce or protect their rights before the Civil, Criminal, Contentious-administrative Spanish Courts or before any other competent authority. Our approach is to bring a tailored strategy, so that each client, from smaller domestic companies to major international holdings, receives expert assistance to avoid problems, succeed on the conflicts arisen and take advantage of the possibilities and value of the intangible property they own. There is never a “onefits-all” approach.” What area(s) of Intellectual Property law do you specialise in; and what industry sector(s) do you focus on? Nandan Pendsey: “AZB & Partners is equipped to serve as a one stop shop for all intellectual property matters. AZB & Partners offers practical advice to clients based on an in-depth knowledge of the legal, regulatory and commercial environment within which our clients operate. AZB is also known for its expertise in intellectual property transactions, due diligence and audits.” Pierre Massot: “ARENAIRE regularly advises and represents designers and leading firms in the design, fashion and industrial sector.” Christopher A. Hughes: “Our firm specializes in essentially all areas of intellectual property, such as litigation and trials, patent and trademark prosecution, post grant patent reviews in the USPTO, and in transactions involving IP such as mergers, acquisitions, licensing and bankruptcy.” Guido de Marco & Associates : “Our specialized intellectual property department provides clients with full comprehensive IPrelated consultations and legal services, ranging from the application and registrations of patents, trademarks and designs to intellectual property rights litigation. In conjunction with the corporate department, our firm provides corporate IP strategies and various IP dispute prevention and resolution services (including administrative, civil, criminal actions and alternatives).”
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Chinyere Okorocha: “Advices on all aspects of Intellectual Property, ranging from prosecution, management and protection of Trademarks, Patents, Designs & Copyright, to Anti-counterfeiting matters, IP Litigation, IP Due Diligence and Commercial IP issues (licensing, franchising, distributorship etc). The IP practice also offers advisory services to the Federal Government of Nigeria regarding IP policies, review of IP Laws and Regional perspectives on IP related matters. Other ancillary services, such as NAFDAC (Product registration), SON (Standard Organizational of Nigeria) and NOTAP (National Office for Technology Acquisition and Promotion) are also available. “Industry sector include Pharmaceutical companies, Media, Telecommunication; beverages, Tobacco Companies, Software Industry etc.” Carina Ruiz Gallegos : “RUIZ & VEIGA ABOGADOS offers services to both national and international Companies, providing specialized advice regarding the protection for their brands, designs or packaging, or their inventions, not only in case that conflicts arise in which they need representation in Court, but also when negotiating commercial relationships, drafting contracts or organizing their distribution networks. “These kind of services are not focused to any industry in particular; the IP rights need to be considered in any operation or business development where the intangible rights are involved.” How does your firm stand out from competitors? Pierre Massot: “ARENAIRE stands out from competitors due to an in-depth expertise, a passion for the core business of its clients, and a trustworthy relation with them.” Christopher A. Hughes: “Our firm stands out because we have a trial- and litigation-based full-service IP practice which enhances our advice in prosecution, licensing and transactions involving intellectual property. Having in depth experience in these different areas has enabled us to focus on key issues that are not always apparent to others.” Guido de Marco & Associates: “With its broad experience in the field, Guido de Marco & Associates is in a position to provide an integrated service to clients on a range of contentious and noncontentious IP related issues.” Zeev Pearl: “Our slogan “Fresh Thinking in IP” says it all. We believe we bring a combination of thorough legal analysis and practical advice, coupled with cross-border capabilities and years of experience representing targets and acquirers in M&As.” Carina Ruiz Gallegos: “Ruiz&Veiga Abogados stands out from other Lawfirms because of its flexible and friendly approach, intended to provide a quality and highly specialized specialist service compromised with the client’s needs.” Hsiaoling Fan: “As a full-service law firm, FT Law provides clients with comprehensive solutions to best fit their needs in all fields, from transaction to dispute resolution, from establishment of IPR portfolios to realization of IPR assets. Our relatively large size allows us to divide into different practice groups, which in turn enables each professional
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Protecting Intellectual Property in M&A transactions to pursue a high degree of specialization in his or her particular field of interest, and to cooperate as needed among our different practice groups in individual cases. Most of our attorneys have foreign educational backgrounds, multilingual proficiency, and even multiple bar admissions. Thus FT Law is able to efficiently handle complex cases involving multiple jurisdictions and multinational companies.” What does an IP adviser bring to the deal table? How important is their role? Nandan Pendsey: “The role of an IP advisor can hardly be overstated. Increasingly, in many M&A deals, the value of the target lies in its intellectual property and intangible assets. An IP advisor would be critical in helping the investor to understand the risks associated with acquiring/investing in the target based on the issues unearthed during a comprehensive IP diligence.” Pierre Massot: “An IP adviser is an essential actor at the deal table: he or she brings an expertise on issues which are often related with the core business of the client.” Guido de Marco & Associates: “The IP adviser is extremely important in an M & A. In particular, the IP adviser is essential to: • Advise on the structure of the proposed transaction; • Co-ordinate the due diligence investigation of the seller’s intellectual property rights; • Draft/vet and negotiate the purchase agreement including the representations, warranties, covenants and closing conditions as well as the seller’s disclosure schedules that accompany the purchase agreement; • Draft/vet and negotiate separate agreements providing for transition services and licensing of intellectual property rights. • Assist the buyer with post closing matters, including timely filing of assignments and security interests and the payment of maintenance fees for acquired intellectual property rights. Zeev Pearl: “It changes from deal to deal. When IP is a value driver of the deal, one needs to evaluate the technology, the patents that cover it, the freedom to operate in the field, and numerous other issues. Even mundane tasks can be critically important. For example, upon acquisition, we may ensure that the IP portfolio of a target company is properly assigned, including
abandoned and priority applications. We have encountered situations where this was not done properly, thereby causing problems down the road when the acquired patents were up for resale by the acquirer. More involved issues include IP valuation, the interplay between IP and deal-structuring, taxation issues, complex combination acquisition and license transactions, and issues related to evaluating pending litigation in connection with a transaction (including exposure evaluation, funds in escrow, etc.).” Carina Ruiz Gallegos : “Having the correct IP strategy often proves to be significant in order to reach the commercial targets planned by the Companies. We find that the lack of a correctly built IP portfolio, or leaving for the last stages of a project the decisions on IP, make the agreements or commercial developments unfeasible as initially designed. As an example we can mention the cases where the implementation of a distribution network, or the launch of a certain commercial operation, cannot be correctly put in place because the IP protection has not been correctly ensured or does not have the necessary extent. The neglect of these aspects may even undermine the complete international strategy of a Company.” Hsiaoling Fan : “An IP adviser accurately evaluates IPR assets, identifies potential risks and secures which clients seek to obtain from the transactions. As intangible assets, IPR transactions require even more than traditional tangible assets, including thorough investigation and carefully tailored contractual terms. For example, once we conducted for a client IP due diligence prior to its purchase of a patent portfolio, we clearly identified certain inaccuracies and omissions in the seller’s presentation for offer and thus gave the client a much stronger bargaining position. In another example, our client initiated a very complicated M&A transaction mainly for the purpose of obtaining certain technologies where we assisted in designing the entire safety net, and contractually, financially and legally, to ensure that the core of the targeted technologies have been effectively acquired in the transaction. Without competent IP counsels, this transaction would have been extremely risky.” Why is a company’s intellectual property such a valuable asset? What steps should a company take in protecting their IP? Nandan Pendsey: “IP is increasingly
becoming an effective monetisation tool. Companies need to have effective systems in place to recognise and mine innovations and IP. Periodic audit of the IP assets of the company should also be conducted. IP and content owners should be vigilant and should take prompt action against infringers by way of active monitoring including hiring watchdog services.” Pierre Massot: “Intellectual property, if not easily evaluable, is a strategic asset for every company : it contributes to fix the rights of the company itself and of its competitors on the market. It is highly advisable that a company takes steps to protect its IP before any litigation, by auditing its IP assets and then decide the different ways to protect it (secrecy, patents, trademarks, copyrights, design rights etc.): the key point is to decide this strategy upstream of any litigation. Christopher A. Hughes: “A company’s intellectual property can be one of its most valuable assets. It can protect the company from competition, and be available for licensing to generate addition income or for assertion in litigation if sued by a competitor. It is also the basis for developing new products.” Guido de Marco & Associates: “A company’s intellectual property contributes towards increasing its performance and competitive advantage in the marketplace and allows for the expansion and improvement of its business. “A company should seek legal advice in order to identify what assets in their business might be eligible for a patent, trademark or copyright status. Such identification would in turn, allow for the determination of the most appropriate local and international intellectual property protection measures, which determination should also be based on a cost/benefit analysis.” Chinyere Okorocha: “An I.P adviser offers expert advice on how to maximize clients I.P. Assets for Economic Benefits. “This role helps the client not to lose possible ways of legally protecting its Intellectual Property Rights and for client to appreciate the value of its Intellectual Property Assets; e.g. Conducting Due Diligence on a company, I.P Practitioner identifies all the I. P. issues and advises on them.”
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Protecting Intellectual Property in M&A transactions Zeev Pearl: “In this day and age, smaller technology companies bring IP as the major asset to the deal. This IP may include both formal IP, embodied as IP assets and IP rights (e.g., patents, copyrights, trademarks), as well as the know-how of the acquired personnel. In order to optimize the value of these assets in a transaction, the maximum legal protection for these respective assets must be pursued. With patents, this means pursuing best-practice prosecution strategies (such as consistent international filings, meticulous adherence to disclosure requirements, aggressive continuation practice, etc.). With know-how, this means both affirmative and defensive practices (such as continual review of employment agreements in light of changing national laws, compliance with trade secret protection practices, etc.). For software companies, we also audit their use of open source software to ensure that the final software product is not tainted by an open source license.” Carina Ruiz Gallegos : “A correctly advised Company does not operate on a reactive basis, but creating a structured IP framework. We have to bear in mind that the branding, advertising and packaging of the products or services, the commercialization networks, the licensing, franchising, distribution agreements, the development of the Companies and their image, they all have the IP as a basic instrument. Thus, any commercial project needs to anticipate the company’s needs and risks, and ensure that its rights are duly protected and that the designed operation will not interfere with others’ rights.” Hsiaoling Fan : “IPR assets can create value not only through direct commercialization, licensing, transfer or investment, but also when used as a ground for attacking or deterring competitors in the market. Recent vigorous patent disputes and active transactions involving large patent portfolios in the smart phone industry illustrate this. To assure the value of IPR will not be blurred or diluted, it is essential for companies to have regular enforcement or counterfeiting practices in place. A company should, with the assistance of a competent IP advisor, properly manage its IPR portfolios, regularly review its IPR strategies for transactions and enforcement, and establish action plans that reflect the company’s entire business.” Companies involved in M&A often overlook the intrinsic value of their own IP? Why is this? How are you able to assist prospective clients in this way? Nandan Pendsey: “Companies in India have traditionally not given sufficient importance to IP as an asset. However, things are changing as Indian companies seek to innovate. We have assisted several clients in conducting an audit of their intellectual property to understand the strengths and weaknesses of their IP portfolio.” Guido de Marco & Associates: “Companies involved in M & A often overlook the intrinsic value of their own Intellectual Property, since it is often very difficult to appropriately value such intangible assets. “Guido de Marco & Associates may assist clients in exploiting the full potential of their intellectual property rights. Through our experience in identifying issues such as noncompliance with or changes in local or foreign legislation and the potential of third-party challenges, we would be in good position give an indication of the intrinsic value of the intellectual property assets.”
portfolio and takes the necessary steps to protect it and to secure deals." Christopher A. Hughes: “Companies sometimes overlook the value of their IP by not understanding the nature and scope of the IP protection they already own. It is useful to conduct an “IP audit” wherein the actual (or potential) protection in a portfolio is brought to management’s attention, as for example, a possible source of royalties from licensing, or as a way of entering new fields which competitors may not be able to occupy because of IP held by the company. IP is also an asset that can be sold, to generate additional income or cross-licensed to allow freedom of action.” Zeev Pearl: “Our job as representatives of targets in M&As is to help them highlight andenhance the value of their IP, where it can help the acquirer beyond the scope of the M&A scenario. For example, if the target holds a patent which is dominant in the industry of the acquirer, this should be highlighted as it is a value driver in the deal.” Carina Ruiz Gallegos: “During the negotiation of M&A operations it is often ignored that IP rights need to be correctly appraised and introduced in the agreements. The reasons vary, but frequently these matters are postponed to the latter steps of the process, left aside in the course of complicated negotiations. But it is important that from the first steps the widest view is taken, and thus we assist by providing the full value of the IP rights, helping to understand how the IP rights of the involved Companies will be affected and allowing to make choices knowing the risks of every decision. Many times the IP aspects imply difficulties that were not expected and even confrontations that make agreements fail. There is an enormous advantage to being able to structure agreements considering these aspects, as they will become essential to operate in the market and ensure strong branding and technology exploitation to the resulting Company.” Hsiaoling Fan: “This often occurs because most M&As are handled by businessmen rather than by legal counsels, or by corporate lawyers without the assistance of IP attorneys. Sure that understand the high degree of specialization that our IPR attorneys possess and their importance to the M&A transactions, they will include us in the discussions regarding the M&A transactions at an early stage. This early participation allows us to assist our clients in formulating a proper plan to realize the intrinsic value of their IPR. Through close cooperation with the heads of the clients’ business and financial departments, we are able to bring their IPR value to their attention so as to facilitate further communication and decision-making regarding their comprehensive M&A strategy.” What are you predictions for IP law in your jurisdiction over the coming 12 months? Nandan Pendsey: “A slew of IP legislations are expected to be enacted by the Parliament in the coming 12 months such as the Copyright (Amendment) Bill, 2010 and the Proposed National Innovation Act, 2008. India will witness a growth in IP litigations and especially patent litigations in the coming 12 months.”
Pierre Massot: "IP is often overlooked because it is extremely difficult to estimate the value of IP rights.
Pierre Massot : “In France, I have noticed in 2011, with many other specialists, that the validity of copyrights are more strictly appreciated by the French Courts and it becomes more and more recommended to protect designs and models by registration.”
"Arenaire regularly works alongside its clients to audit their IP
Christopher A. Hughes : “Over the coming 12 months there
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Protecting Intellectual Property in M&A transactions will be additional importance attributable to IP in view of the extensive changes to the patent law that have just been enacted. These changes will convert the US system to a first to file country, placing more emphasis on the prompt filing of patent applications. The new law will also include extensive changes to the post grant review process, enabling companies to challenge issued patents in the USPTO and thus reduce the burden of expensive litigation. And, in litigation, the multi-defendant patent lawsuits will be a thing of the past.” Guido de Marco & Associates: “Intellectual Property assets are increasingly becoming the driving force behind national as well as international merger and acquisition activity and we anticipate that this trend will continue over the coming 12 months.” Xue Min: “China is facing heavy pressure from both international brand owners that have business in China and the domestic innovated brands recently, because it has serious counterfeiting and infringement problems and the legal environment is young. However it is good that we see
improvement and efforts by central and local government on this area by amending the IP laws and implementing new regulations towards some serious IP problems.” Zeev Pearl: “Our job as representatives of targets in M&As is to help them highlight and enhance the value of their IP, where it can help the acquirer beyond the scope of the M&A scenario. For example, if the target holds a patent which is dominant in the industry of the acquirer, this should be highlighted as it is a value driver in the deal. “In Israel, we expect the Israeli Parliament to pass a law requiring publication of patent applications 18 months after filing, as is the case in many other countries. We expect this will make Israel an even more attractive jurisdiction for filing patent applications, as the publication of applications will create prior art against competitors. Also, Israel has recently joined the Madrid Protocol for the international registration of trademarks. This may increase the ability of multinational companies doing business in Israel to register their marks inexpensively and efficiently in Israel.”
Carina Ruiz Gallegos: “In times of crisis the IP lawyers need to help their clients to explore the possibilities of the IP rights in order to be cost effective in the protection and enforcement of rights and to adapt the existing rights to the changes of the Companies. The role of the IP lawyers during the near future will be to provide reliable support to the new ways to operate of businesses in an uncertain scenario.” Hsiaoling Fan: “After establishment in July 2008, Taiwan’s IP Court has obtained a high degree of specialty in IPR litigation and has demonstrated the importance and value of experienced IP advisors, particularly when teamed with and coordinating strategy with litigators and technology specialists, as our teams at FT Law do. The recent amendment of Taiwan’s Trademark Law, which includes substantive revisions that, among other changes, expands the scope of the types of marks that can be registered, was promulgated in June 2011 and is expected to become effective in mid-2012. Taiwan’s Patent Law also has an essential amendment pending in Taiwan’s legislature.”
Nermien Al-Ali
Managing Partner
26 El Lasilki (B) Street, New Maadi, Cairo - Egypt
Tel: +20100 621 3610 Email: nalali@nal-law.com Web: www.nal-law.com Nermien Al-Ali, Managing Partner of NAL & Partners, an international law firm in Cairo, Egypt. Nermien, along with Robert Mihail - Executive Partner, leads a team of commercial, trial and IP lawyers and specialists in counseling and representing clients in commercial transactions, intellectual property matters and a myriad of legal issues and cases. “Nermien Al-Ali is a leading intellectual property lawyer/specialist in Egypt with over fifteen years of experience advising clients on intellectual property law, corporate acquisitions, private placements, and commercial transactions. She graduated with an LLB from Sydney University, Australia and with an LLM in Intellectual Property from Franklin Pierce Law Center, New Hampshire, United States. She is admitted as an appeal lawyer at the Egyptian Bar and is a member of the New South Wales Bar, Australia. She taught intellectual property management courses at Pierce Law, USA and authored Comprehensive Intellectual Capital Management, John Wiley & Sons, New York. Areas of expertise include anti-counterfeiting, IP litigation and licensing, due diligence and commercial transactions. Clients she counseled included Siemens, Johnson & Johnson, Pfizer, Eli Lilly, Rotring, Red Bull, SC Johnson, Vodafone, Electrolux, SysDSoft, Banque Misr, Bank, Beltone, Abraj, EFG-Hermes. What does an IP adviser bring to the deal table? How important is their role? Nermien Al-Ali : “The added value of the IP adviser’s work and approach is two-fold. An IP advisor (1) ensures that title to the most valuable asset (which may be the brand or the IP portfolio of patents or copyrighted software or other works) is perfected (2) uncovers weaknesses and hence risks or threats in the IP portfolio which may affect the market or financial position of the organization. “In one exemplary acquisition, the target’s (major manufacturer of electrical appliances) main brand was threatened by third party rights which when uncovered resulted in reevaluation of the price, in addition to added protection in the warranties and price retention sections of the transaction’s documents. The acquirer reevaluated its plans for investment in the target after acquisition based on the strength and weakness of the target’s IP portfolio.”
Why is a company’s intellectual property such a valuable asset? What steps should a company take in protecting their IP? Nermien Al-Ali: “In the new knowledge age, intellectual property becomes the main distinguisher of products and services, whether such intellectual property is in the brand, the technology or the expression. Protecting IP is not merely applying for trademarks, patents or copyrights. It involves setting a strategy for electing the best type of legal protection, the breadth of protection, the territorial aspects of protection, means of enforcement of rights, monitoring and investigation of infringements, and keeping an open view to offering licenses of the main IP to generate revenue and grow the IP portfolio. An IP strategy makes the core of the business strategy in most industries” Companies involved in M&A often overlook the intrinsic value of their own IP? Why is this? How are you able to assist prospective clients in this way? Nermien Al-Ali : “There is a strong focus on the financial and market position of a company in M&As without realizing that the former are reliant on the strength of the IP portfolio of the company. We assist prospective clients by highlighting how using IP enables the company to sustain growth, enter new markets, and protect its market position after determining the strength of IP portfolio.” What are you predictions for IP law in your jurisdiction over the coming 12 months? Nermien Al-Ali : “With the recent establishment of the Economic Courts in Egypt (specialist courts dealing with commercial and intellectual property matters) we predict better and faster results can be obtained in enforcing intellectual property rights. We predict that with automation of port of entries’ systems that IP owners may have better chances in combating counterfeit imports and exports.” We are a one stop law firm offering comprehensive commercial & intellectual property services. Our in-depth knowledge of local law and practice enables us to secure for our clients the most beneficial treatment under investment, tax and intellectual property laws.
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Protecting Intellectual Property in M&A transactions Rainer A. Kuhnen Senior Partner
Prinz-Ludwig-Strasse 40A, 84354 Freising, Germany
Tel: +49 8161 608 302 Email: RAK@patentfirm.de Web: www.patentfirm.de Kuhnen & Wacker has 35 years of experience in the field of Intellectual Property and over time has acquired an excellent international reputation. Rainer Kuhnen is Senior Partner and Co-Founder of Kuhnen & Wacker, alongside Paul-A. Wacker. The firm has 82 employees and 17 attorneys. Please describe a typical client? “We service both the domestic and overseas markets; from Individual or SME specializing in some technological niche and requiring world-wide protection for its leading edge technology to big corporations needing large numbers of patents around the world.” How does your firm stand out from local competitors in terms of the services you offer? “We are dedicated to service our clients with highest quality at still reasonable costs. We have a fine mix of older attorneys with huge experience over time, and younger very energetic attorneys, who may, in case of need, rely on the experience of their older colleagues.” What does an IP adviser bring to the deal table? “In a word “due diligence”, firstly we conduct an analysis and value assessment of the IP portfolio (patents, trademarks, designs) to be purchased with the company, and
then make the analysis of licensing in and licensing out contracts as to problems or even deal-breakers. “Examples for a show stopper: (a) the company to be purchased has licensed out a very important product to the main competitor, and this contract cannot be quickly terminated; (b) an important product has been licensed in by the company to be purchased, and this contract can be quickly terminated.” Why is intellectual property a company's most valuable asset? And what steps should a company take to protect their IP? “Renowned trademarks are most valuable because they can be maintained infinitely. Important patents (example: block busters) may generate a huge cash flow for many years as no competitor can undercut good prices. Companies should file with PTO’s and invest enough money in initial filing to optimize this.” What are you predictions for IP law in your jurisdiction over the coming 12 months? "Wording of the Regulation for the new unitary EU patent available for all EU countries except Italy and Spain. Will come into effect soon."
Dr. Josette Grech & Dr. Anjelica Camilleri de Marco 9, Britannia House Level 2, Old Bakery Street, Valletta, VLT 1450, Malta
Guido de Marco & Associates is a middle-sized law firm with a diversified business and litigation practice. Our firm has over fifty years of experience serving a broad range of client interests. Dr. Josette Grech is a senior associate at Guido de Marco & Associates and heads the Intellectual Property and Civil Litigation department. She specialized in European law, with particular focus on intellectual property law, at the University of Malta. Dr. Clinton V. Calleja is a senior associate at Guido de Marco & Associates in the Corporate and M&A department. He specialized in European Business law, with particular focus in Mergers & Acquisitions, at the Pallas Consortium of Universities, Amsterdam. Dr. Anjelica Camilleri de Marco is an associate at Guido de Marco & Associates and forms part of the Corporate and M&A department. She specialized in Commercial law, with particular focus on corporate law, at the University of Cambridge. Dr. Gian Luca Caruana Curran is an associate at Guido de Marco & Associates and forms part of the criminal litigation and corporate team. He specialized in financial services, at the University of Malta. “Our firm has assisted in offering legal services in M&A-related IP due diligence processes as well as the preparation of M&A and IP contracts and negotiation terms for transaction deals.
Why is a company’s intellectual property such a valuable asset? What steps should a company take in protecting their IP?
Tel: (+356) 21255265/6 Web: www.demarcoassociates.com Email: jgrech@demarcoassociates.com; acamilleridemarco@demarcoassociates.com
“A company’s intellectual property contributes towards increasing its performance and competitive advantage in the marketplace and allows for the expansion and improvement of its business. “A company should seek legal advice in order to identify what assets in their business might be eligible for a patent, trademark or copyright status. Such identification would in turn, allow for the determination of the most appropriate local and international intellectual property protection measures, which determination should also be based on a cost/benefit analysis.
Companies involved in M&A often overlook the intrinsic value of their own IP? Why is this? How are you able to assist prospective clients in this way? “Companies involved in M & A often overlook the intrinsic value of their own Intellectual Property, since it is often very difficult to appropriately value such intangible assets. “Guido de Marco & Associates may assist clients in exploiting the full potential of their intellectual property rights. Through our experience in identifying issues such as noncompliance with or changes in local or foreign legislation and the potential of third-party challenges, we would be in good position give an indication of the intrinsic value of the intellectual property assets” What are you predictions for IP law in your jurisdiction over the coming 12 months? “Intellectual Property assets are increasingly becoming the driving force behind national as well as international merger and acquisition activity and we anticipate that this trend will continue over the coming 12 months.
Espen Tøndel Filipstad Brygge 1, 0252 Oslo, P.O. Box 2043 Vika, 0125 Oslo Tel: +4792044966 Email: et@simonsenlaw.no Web: www.simonsenlaw.no SIMONSEN law firm assist a wide range of clients in transactions where amongst others IPR is a core value. Our clients range from content owners (such as the music and movie industry), IT companies having developed software and patented solutions, PE and VC companies to mention some. Espen Tøndel SIMONSEN Advokatfirma DA, partner, heading Technology Media working group. Who is a typical client? “We assist international and national content owners (MPA/IFPI), international ITcompanies, (e.g. Oracle, HP, CA Technologies, Steria), major Norwegian media companies (TV2/A-pressen), PE and VC companies as well as start-ups within the technology and media sectors.” What area(s) of Intellectual Property law do you specialise in; and what industry sector(s) do you focus on? “The firm focuses on IT law, copyright law, trade mark law and patent law and transactions within the mentioned areas. The industry sectors covered is the movie, music and the publisher industries, the IT industry and the media industry covering television and print/Internet.”
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Why is a company’s intellectual property such a valuable asset? What steps should a company take in protecting their IP? “It does of course depend on what kind of business you operate, but for the content, technology and many other businesses IP is the core value of a company. Without the IP a company may be worthless and that’s why having a consciousness around IP is so important. Step number one for a company is always to establish a policy and a strategy related to IP; are we going to use proprietary IP or not, shall we patent our IP ((where possible), shall we license from others or not. Based on chosen strategy a business should then be very careful with the formalities around its IP. On all these our assistance will be a key element for a good outcome. “ Companies involved in M&A often overlook the intrinsic value of their own IP? Why is this? How are you able to assist prospective clients in this way? “Many start-ups especially forget to take the formal steps to protect their IP and to document the IP where it is not possible to register or patent. The lawyer’s role is always not to take for granted that this is taken care of. Hence, even with more mature businesses this must always be the lawyers approach. We have a set of questions always asked when being involved with such companies and also procedures in place to take care of lacking protection.”
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Global Patterns of Project Finance
Global Patterns of Project Finance
G
lobal project finance volume reached $179.0 billion in 1H 2011; this may be down 4% on the $186.8 billion recorded during the same period in 2010 but considering that was an all-time high, is this news really so bad for the industry? Increasingly, project financing is emerging as the preferred alternative to conventional methods of financing infrastructure and other large-scale projects worldwide. With many firms adding numbers to their project finance teams and countries such as Japan and India seeing massive growth rates, the project finance market might not be as sick as it seems. As other sources of borrowing have dried up, project finance is generally still available - even if the projects are slightly less risky and the financiers more cautious! The overriding opinion amongst developers and financiers is that the effects of the economic downturn have not been as severe as first thought. There’s no doubt that times are leaner and all parties are going to substantial efforts to ensure the elimination or reduction of risk, but isn’t this re-alignment going on everywhere and frankly more sustainable? Acquisition international speaks to the experts… TDJ is an independent firm, and works with all commercial banks, official government and multilateral agencies, capital markets, private equity funds and institutional investors. TDJ has a global reputation for finding the best capital structure for the client’s project and in protecting the viability of cross-border investments. Project financing entails a carefully negotiated and well-structured allocation of most foreseeable commercial and political risks in each such project. It is not just that the projects are typically very massive capital investments, with a lot at stake for every party involved, it is also that a lot of careful analysis and diligence are put into the decision to allocate capital by each participant in the transaction. Statistically, the ratings agencies have demonstrated that “loss given default” for BBB- rated project financings is considerably lower (meaning, much less write-off for lenders and investors) than a comparably-rated corporate credit. Thus, project financing is a
good way for an investor or lender to assure a more favorable outcome from such an investment. In the USA “In USA, project financing is most frequently applied in power projects, particularly in renewable energy projects (wind and solar). When North American investors develop projects in the oil & gas sectors internationally, project financing is frequently used for midstream and downstream projects, such as pipelines, LNG plants, refineries, and petrochemical facilities. There is also frequent use of project financing for power generation plants, ports, water treatment and other such infrastructure. “Few domestic US banks actually engage in Project Finance inside the USA. The predominant commercial bank participants in the US project finance market are US subsidiaries of European and Japanese banks. The allocation of capital to the project finance sector by European commercial banks is still a matter of considerable discussion amongst senior-most management in each of those banks. Some of them will undoubtedly find it appropriate to curtail capital allocation for project finance type lending, whereas others will find that the historical returns and risk/return balance in the project finance sector, will allow them to allocate even more capital than currently applied. “Although there is adequate liquidity within the commercial bank market in US to fund the relevant demand for well-structured project finance transactions.” Case study National Bank of Greece (NBG) is the largest financial group in Greece and boasts a dynamic profile internationally, particularly in Southeastern Europe. The Group is present in 15 countries and owns 8 banks and 64 companies in the financial services sector. NBG has the capacity and the expertise to provide specialized financing solutions and support for project finance and PPP/PFI projects, both at the stage of structuring a financial deal and at the stage of arranging, participating or
managing medium to long term syndicated loans. The Bank has participated in the financing of all major infrastructure projects that have been implemented in Greece on a PPP basis, as well as other important projects in Greece and abroad. Transport, public infrastructure, energy and industrial projects are its main fields of expertise. NBG also maintains a leading position in project finance and public-private partnerships advisory services in Greece. With a track record spanning more than 15 years of providing comprehensive, innovative advice on a wide range of transactions, its experience and local knowledge enables it to provide integrated solutions both to private entities and the public sector. NBG believes the long term outlook of project finance in Greece is favorable. Implementing important public projects through PPP/PFI is becoming increasingly common, given the strain on public finances and the strong need to modernize and upgrade strategic public infrastructure, such as motorways, schools, hospitals, etc. Furthermore, the Hellenic Republic, assisted by the European Commission, the IMF and the ECB, has prepared a largescale privatization program which, among others, involves the transfer of management of several state assets, such as ports, marinas and regional airports to the private sector, through long-term concession agreements, to be implemented through project finance structures.
NATIONAL BANK OF GREECE
Constantine Stavridis stavridis.eteba@nbg.gr www.nbg.gr T:+30 210 5181381 128-132 Athinon Avenue 104 42, Athens, Greece
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Employment Law Issues in M&A Transactions
Employment Law issues in
M&A Transactions
E
Katja van KranenburgHanspians katja.vankranenburg@cms-dsb.com www.cms-dsb.com +31 20 30 16 402 M: +31 62 1584 432 Amstelplein 8a, 1096 BC, Amsterdam, The Netherlands
Dr. Gábor Göndös gabor.gondos@cms-cmck.com www.cms-cmck.com +36 1 483 4800 Károlyi Mihály utca 12, 1053 Budapest, Hungary
Stephen Oxley stephen.oxley@wilsonslaw.com www.wilsonslaw.com 01722 412412 Steynings House, Summerlock Approach, Salisbury, Wiltshire SP2 7RJ. UK
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mployment Law and HR issues are likely to arise in virtually all M&A transactions. The significance of such issues is likely to vary depending on the specifics of each deal and can often be somewhat complex particularly in crossborder transactions. It is important for prospective purchasers and vendors to address employment law considerations at the earliest opportunity in order to minimise further expense or delay further down the line. Acquisition International speaks to the experts…. Katja van Kranenburg-Hanspians Is Partner in the Employment & Pensions department in CMS Derks Star Busmann Amsterdam office and Board Member of the International Employment & Pensions Practice Group of CMS. Dr. Gábor Göndös, Senior associate coheading the employment practice of CMS in Hungary CMS Cameron McKenna LLP Hungarian Office. Stephen Oxley is Senior Partner, Head of Employment Wilsons Solicitors LLP
What areas of employment law do you (and your team) specialise in? Katja van Kranenburg-Hanspians : “We focus on corporate employment law (the position of the employees in transactions, codetermination, the position of the managing director in relation to shareholders and the supervisory board). Further, we provide assistance to (international) companies with regard to dismissal cases, codetermination/trade unions, employment conditions, employee incentives, and transfer of undertaking.” Gábor Göndös: “We provide full service within employment law, the scope ranging from drafting or reviewing contracts, company policies and collective agreements through Individual and collective dismissals, employee share/stock ownership plans,
employee pension schemes, social security contributions, labour/trade union issues/disputes, works councils at company, national and international level, employee and pensions aspects of mergers and acquisitions, outsourcing, nationalisation, privatisation, right until employment litigation.” Stephen Oxley: “Whilst we act predominately for employer clients, our work comprises both contentious and noncontentious matters ranging from drafting contracts of employment and staff handbooks to dealing with Tribunal claims, and from advising HR departments/businesses on an array of day to day HR matters as and when they arise to undertaking corporate support work relating to the employment aspects of corporate transactions. “Acting for a purchaser on a asset purchase we would seek a wide range employee information from the seller being wary of any data protection issues; we will want a detailed profile of the workforce, looking at staff numbers, employee cost information, a departmental staff breakdown with job titles and details of staff gender to ascertain whether there might be any discrimination or equal pay issues. We will want to have details of the terms and conditions of employment being used by the seller and copies any short or long term incentive schemes or benefit plans in place. A copy of the staff handbook would be requested. We will seek a breakdown of part time and full time staff and details of any temporary workers being used or consultants engaged and the terms of such appointments. With senior staff we will want to carefully examine any restrictive covenants, confidentiality and confidentiality obligations. We will want information about any collective agreements with unions. We will want to ensure that all recent departures of staff are examined to establish that there are no potential employment claims. Similarly we will want details of any disciplinary or grievance process which might
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Employment Law Issues in M&A Transactions
be unresolved. We will be also concerned to look at the seller’s health and safety records as regards any accidents involving staff. Please give a brief synopsis of the firm’s employment law history. Katja van Kranenburg-Hanspians: “CMS Derks Star Busmann is a full service law firm for over a century in The Netherlands and provides employment and pensions advice and assistance to many international and national companies. The employment and pensions lawyers of CMS Derks Star Busmann are member of the international CMS Employment and Pensions Practice Group. CMS has more than 250 lawyers working exclusively on cross-border matters in labour, employment, employee share schemes, immigration and pensions across 22 jurisdictions. Gábor Göndös : “The CMS Budapest employment department, uniquely among multinational law firms in Hungary, is gradually being recognized as the one offering a truly dedicated task force of labour law specialists dealing exclusively with employment retainers, both in terms of individual and collective law, ranging from day-to-day advice on ongoing matters right until high-profile litigious issues. The team is operating since the establishment of law firm in 1989.” What are some of the typical Employment Law/HR issues which can arise in M&A deals? Gábor Göndös : “Firstly, it has to be tested and assessed whether the given M&A transaction qualifies as a business transfer under Hungarian law (such as bank portfolio transfers, sale of business units etc.). If yes, the affected employees shall be migrated to the transferor. In general, rights (benefits) and obligations are transferred without any specific exception, with some variations and disputes arising out of age-old, obscure addendums to collective agreements and/or policies or even unwritten company practices. From a formal point of view, employees’ information and consultation rights and the statutory liability of the parties shall be taken into consideration. Formulating all this into the employment chapter of a transaction master document can be quite challenging e.g. if one of the parties refuses to accept the business transfer idea, would like to ensure benefits to its employees post-transfer or if the transferee is bound to reduce the headcount post closing.” How can you and your team assist prospective acquirers in overcoming Employment Law issues through each stage of a transaction? Katja van Kranenburg-Hanspians :”Our employment law team, which consists of employment lawyers, pension specialists and tax advisors, has in-depth expertise in advising prospective acquirers. We are able to swiftly determine the real issues in a transaction and
our practical approach has resulted in a number of smooth transactions. Also, our assistance does not end with the closing of the deal, we often assist the new owner with post-merger issues (i.e. installation of a new works council, harmonisation employment conditions, reorganisation). Stephen Oxley: “Working closely in conjunction with either in house Counsel or our own Corporate team we will devise the due diligence process in a cost effective and efficient manner. We will report at the completion of the DD process and make recommendations where required highlighting only issues of concern.” What are the firm’s goals for 2011? Katja van Kranenburg-Hanspians : “CMS Derks Star Busmann is focused to be a top notch law firm in The Netherlands. Also, we aim to assist and advise multinationals and listed companies doing crossborder business. With respect to employment and pensions law we focus on high-end and complex matters / transactions with an (inter)national nature.” Gábor Göndös : “Besides an expansion of the practice to cope with the rapid increase of incoming requests (meaning the joining of a freshly qualified trainee starting September 2011), we are keen (and consider ourselves being able) to specialize within the employment practice to add a personal focus for each of us on given hotspots of this area of law (such as litigation matters, collective law, terminations, various language desks etc.)”. Stephen Oxley: “Wilsons is defying most trends with our new office investment in Bristol, 30,000 sq ft of new headquarters in Salisbury, and rapidly expanding our teams across all three offices. We intend to remain ambitious, investing prudently and consistently to ensure our continued growth whilst maintaining our high level of skill and service across all of our practice areas.” Do you have any predictions for the next 12 months? Katja van Kranenburg-Hanspians :”In my view clients will request more often for specialist advice. General matters are dealt with by in-house counsel and the client will only call the law firm in to assist in complex or high-level matters.” Gábor Göndös : “We hope that economic recovery will keep those clients with us during an uphill journey which retained us for redundancy matters during times of the worldwide economic downturn.” Stephen Oxley: “Further redundancies in both public and private sectors will be necessary and employers will continue to restructure their businesses to meet the ever changing economic climate.”
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Securities Lending & Repo Markets in Germany
Securities Lending
S
and Repo Markets in Germany ecurities lending and repo markets are a vital part of our domestic and international financial markets and the global financial crisis has served to highlight just how important they are in terms of providing liquidity and allowing greater flexibility to securities, cash and derivatives markets. Acquisition International speaks to Gösta Feige and Carsten Hiller, Sales and Relationship Manager / Global Securities Financing at Clearstream Banking, looking after clients such as central / commercial / investment / savings banks, asset managers,corporates, and others in Germany among other countries. Services covered include a broad range of securities financing services, including securities lending (both as agent and principal), triparty collateral management and triparty repo. Please summarise the primary statutes and regulations that govern the securities lending and repo markets in your jurisdiction and how they have changed since the onset of the recession. “In general, the legal framework for securities lending transactions is a bilateral agreement, e.g. the Global Master Securities Lending Agreement (GMSLA) as put forward by ISLA (International Securities Lending Association) and its members. In a triparty / agent framework, the bilateral documentation is enriched by e.g. our Collateral Management Services Agreement (CMSA) and supplementary provisions covering sec lend transactions. “From the regulatory perspective, the German Investment Act (InvG) limits in its articles 54-56 the percentage of securities available for lending to one counterparty and
Thirty Four
defines strict requirements on collateralisation. Using a so-called “organised system” as certified by the German Financial Supervisory Authority (BaFin) - where Clearstream as the only institution has received such a certification allows lenders to gain unlimited access to borrowers through enhanced safety. “In repo, counterparts typically engage in a Global Master Repurchase Agreement (GMRA) as drafted by the International Capital Markets Association ICMA and its members. To upgrade this to a triparty environment, again the Collateral Management Services Agreement is being used. “Regulatory-wise, banks are subject to the Basel III accord, beside others requiring “term” funding of at least 31 days. This is then facilitated by e.g. triparty repos as the additional comfort of secured and fully serviced transactions encourages corporates and other institutions to lend over term. “Also the Dodd Franck act will further push for securities lending / repo as it requires market participants to clear their OTC derivatives through Central Counterparts (CCPs) for whose margin requirements they need eligible collateral which can be generated by e.g. collateral upgrade trades.” What are the common characteristics of Repo and Securities Lending? “While both are collateralised transactions (at least when executed via Clearstream Banking), they differ e.g. in the “principal” and hence the underlying business motivation of the transaction. “In securities lending, securities are "principal" (compared to "cash" in a repo) so
Gösta Feige and Carsten Hiller gosta.feige@clearstream.com carsten.hiller@clearstream.com www.clearstream.com Carsten Hiller +49 69 211 127 57 Gösta Feige +49 69 211 323 94 the motivation of a lender here is to e.g. increase revenues for his assets (by collecting the lending fee) while at the same time saving the safekeeping / custody fees as the securities are not hold on his account but lent out. At the same time, the lender benefits from the safety of receiving collateral (to cover the loan exposure) with all operational tasks being performed by Clearstream. “The borrower on the other side needs the principal security to e.g. cover his short positions, or to repo out the loan security again in order to raise cash, or to upgrade his collateral against the loan security. “In a repo trade, the cash lender typically wants to benefit from collecting the negotiated repo rate while relying on the safety of the holding. The collateral allows him to e.g. re-hypothecate (re-use of collateral) in other transactions and gives comfort to engage in longer term trades which he might not want to execute in an unsecured or bilateral manner. “The cash borrower on the other side gains access to stable and reliable sources of financing and can finance a broad range of assets out of his collateral pool. “ In what ways can Securities Lending income be used to offset fund expenses? “Securities lending as offered by Clearstream Banking is highly welcomed by fund managers for the following reasons. “The asset manger can increase the fund’s return by generating additional revenues through lending out the otherwise un-used holdings of the fund. Risk is controlled by carefully selecting the borrowers as well as
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Securities Lending & Repo Markets in Germany by a sound collateral schedule while any operational task is performed by Clearstream. In addition, German asset managers (Kapitalanlagegesellschaften, KAG) can lend beyond typical borrower restrictions imposed by the German Investment Act as Clearstream as only institution has been certified as “organized system” by German Financial Supervisory Authority (BaFin). “In short, asset managers benefit from additional, unfiltered revenues at neither additional costs nor operational tasks while risk is managed reliably. “In addition, funds costs are lowered as obviously no safekeeping / custody fees apply for lent positions (nor are they applied to the collateral although it is held in favor of the asset manager) “Asset managers with no own seclend desk and very limited operational resources can here benefit from the additional revenues while outsourcing the operational burden.” How has the economic crisis altered the Securities Lending and Repo Market in your jurisdiction and globally? “Unsecured (cash) lending is almost impossible to get, at least for term. At the same time, regulatory pressure has increased to a) seek collateralised funding / investment tools and b) ensure term funding for assets. “While (triparty) repo transactions haveuntil a couple of years back - mainly been performed by banks only as corporates often used unsecured bank deposits, they now approach banks and Clearstream to engage into Triparty repo transactions, mainly for the safety aspect but also to minimise operational burden and to focus on the revenue generation. “In the seclend world, beneficial owners are more than ever required to generate additional returns as e.g. from lending out their un-used holdings of the fund. “The usage of CCP-based solutions has increased dramatically (to reduce counterparty risk) and hence the demand for
CCP-margin-eligible collateral has increased. This collateral type is e.g. generated by collateral upgrade trades.” What are your predictions regarding securities lending and repo markets over the next 12 months? Will scrutiny from regulators and clients increase or decrease? “For sure, regulatory pressure will increase and ask for secured solutions in the first place and more / better collateral and termfunding of assets and operations. “This will further drive the development of respective tools and services to handle the new requirements as well as to optimize the use of assets. “To focus on corporate clients in Germany, they are have started reacting on the trends and seek for secured Triparty repo solutions to manage risk while maximizing returns, thereby allowing their cash takers to comply with regulatory requirements as e.g. secured term funding. “At Clearstream Banking, we foresee that true global liquidity solutions, allowing cross-asset and cross-services interconnected usage of cash and collateral are key for counterparts to not only comply with regulatory requirements but also to efficiently and reliably generate returns and manage inventory and risk. “With regulatory pressure increasing in a continued tricky market environment, the need is definitely there for sophisticated and reliable systems and services, which will further contribute not only to the demand for such services but also for them staying cutting-edge technology. “Last not least, regulatory requirements will also continue to bring new customer groups (such as e.g. corporates and asset managers) into these transactions which will consequently bring new liquidity and business opportunities for all players. “We believe that increased demand for high-grade assets to fulfill regulatory or central bank or CCP requirements will create a new collateral class, “regulatory assets”.
Thirty Five
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Resolving Conflicts Through Mediation
Resolving Conflicts Through Mediation C
ommercial disputes can cause a great deal of disruption to a business and can waste a great deal of valuable time. The effort and cost resulting from a legal disagreement is often underestimated and commercial mediation offers an effective solution to companies involved in these legal difficulties. The hiring of a third party neutral commercial mediator provides the necessary structure for practical negotiation. A third party mediator enables the company to foster a constructive dialogue between M&A participants, or those involved in corporate conflicts. Acquisition International speaks to Nigel McEwen, the Commercial Director of Littleton Chambers, about resolving conflicts through mediation. “For over 10 years, Littleton Dispute Resolution Services (LDRS) has been the dedicated mediation arm of Littleton Chambers, a top employment and commercial set of barristers in London. LDRS has over 20 trained and experienced mediators many of whom have conducted over 100 mediations. It mediates professional negligence, employment law, construction, property, corporate disputes, banking and financial services disputes. LDRS operates in the UK and internationally. “ Normally mediators are engaged through solicitors (external and in-house), who value counsel's ability to rapidly absorb
Thirty Six
and analyse complex material, take an unbiased overview that is both commercially realistic and legally informed and to help the parties find innovative solutions that are beyond the powers of a court. However, there is no restriction on who can engage the services of LDRS to provide the right mediator for the job. “The function of a mediator is to help the parties reach their own solution; not to impose one upon them and to this end having a trained mediator with the right skill-set is all-important. The consistently high rate of success in achieving settlement through mediation world-wide is ample testament to its success and to the value of a skilled third-party neutral in achieving such a result far more economically than by pursuing litigation. Mediation is also conducted in private preserving confidentiality and making it easier to deal with sensitive issues. English courts can and do penalise in costs parties who unreasonably refuse to mediate. “Mediation in the UK is currently unregulated and the inexperienced need to be wary of untrained and under-qualified individuals who hold themselves out as “mediators”. LDRS is a member of the Civil Mediation Council (and one of its mediators is on the Board of the Civil Mediation Council) and aims to uphold and improve the standards of mediation across the industry. “
clerks@littletonchambers.co.uk www.littletonchambers.com +44(0)20 7797 8600 3 King’s Bench Walk North Temple London EC4Y 7HR
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Company Formations
International Company Formations:
Doing Business around the world Francis Gichuhi Kamau T: +254721410684 info@a4architect.com www.a4architect.com
Orhan Yavuz Mavioglu T: +90 212 269 56 61 yavuz.mavioglu@admdlaw.com www.admdlaw.com Ebulula Mardin Cad. No.45 1.Levent 34330, Besiktas Istanbul Turkey
Samer Qudah T: +971 4 331 7161 s.qudah@tamimi.com www.tamimi.com Dubai World Trade Centre, 9th Floor, P.O. Box 9275, Dubai, UAE.
Abdul Aziz Bensouda T: +220 4223256/4201995/6644407 aziz@amiebensoudaco.net www.amiebensoudaco.net 78 Hagan Street, P.O Box 907, Banjul, The Gambia
Jean Adolphe Bitenu T:243 99 99 99 037 adobitenu@hotmail.com www.anapi.org Address:54 Ave Colonel Abeya, 2eme Niveau de l'Immeuble ex-Sozabanque, Kinshasa - Gombe, Congo, Dem. Rep.
Thirty Eight
Augustin Yves Mbock Keked T: 23799215938 yvesmbock@yahoo.fr Rue Mermoz BP 2988 AKWA, Douala, 00237, Cameroon
Azmi Bin Mohd Ali azmi@azmilaw.com +603-2118 5001
Oscar Antonio Plaza Ponte T: 591-3-3352121 oscar.plaza@infocenter.com.bo www.infocenter.com.bo Av. Las Americas N° 7, Piso 4º, Torre Cainco, Santa Cruz de la Sierra, Andres Ibañez, 1398 Casilla de Correo, Bolivia
Noureddine Ferchiou T: +216 71 120 500 n.ferchiou@falaw.tn www.falaw.tn
Marcelo Alves T: (+351) 21 384 33 00 malves@barrocas.pt www.barrocas.pt Av. Engenheiro Duarte Pacheco, Amoreiras, Torre 2, 15th floor – A, 1070-274 Lisbon, Portugal.
Chun-yih Cheng (Mr) T: +886-2-27557366 Ext 158 chun-yih.cheng@taiwanlaw.com www.taiwanlaw.com
Cabinet d'Avocats Barthélemy T: +226 50 36 69 37 mepascaloued@yahoo.fr Secteur 28 de la ville de Ouagadougou, 01 BP 2173 Ouagadougou 01, Burkina Faso
Kampala Associated Advocates T: 256 41 344123 www.kaa.co.ug
Mr. Luis Fernández del Pozo T: +34 91 272 18 57 Director.servicioestudios@registradores.org www.registradores.org Diego de León, 21, 7, Madrid, 28006, Spain
13th Floor, Lotus Building, 136 Jen Ai Road Section 3, Taipei, Taiwan
Plot 1, Pilkington Road, Kampala, Uganda
Dr. Muhammad Razikun, CPA T: +62 21 788 37 111 razikun@mucglobal.com www.mucglobal.com MUC Building. Jl. TB Simatupang 15, South Jakarta - Indonesia
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Company Formations
Okonjo, Odiawa & Ebie Patrick Okonjo/Ochei Odiawa T: 234- 1- 875 3787 info@ooelaw.net pokonjo@gmail.com www.ooelaw.net 11 Raymond Njoku Street, Ikoyi, Lagos, Nigeria
Caglayan Orhaner Dundar T: +90 212 274 7694 caglayandundar@orhaner.av.tr www.orhaner.av.tr Ortaklar Cad. Bahceler Sok. No: 17/1 Mecidiyekoy 34360 Istanbul, Turkey
Estefania Elicetche T: (595 21) 663 536 Eulogio Estigarribia N° 4846, Villa Morra, Casilla de Correo 114 Asunción, Paraguay
Surridge Beecheno – Karachi Office T: + 92 (21) 324 272 92 - 94 info@surridgeandbeecheno.com www.surridgeandbeecheno.com Finlay House, I.I. Chundrigar Road, Karachi - 74000, Pakistan
Surridge Beecheno – Lahore Office T: +92(42) 363 051 78, 363 099 16 - 17 surridg@brain.net.pk Ghulam Rasool Building, 60, Shahrah-e-Quaid-e-Azam Lahore, Pakistan
Sam Okudzeto & Associates T: 233-302-666377 Sena Chambers, Total House, Liberia Road, P.O. Box AN5520 Accra, Ghana
C
ompany formations are still big business, the size, scale and clientele may have changed over recent years, but there is still a strong demand for the service. Starting a new business or opening in a foreign location often requires more than the initial assistance when it comes to the registration process; it’s important to consider the ins and outs of employing staff, access to banking and credit facilities, local corporation taxes and the logistics of trading internationally, for this reason, we’re also going to analyse the ease of trading in each representative jurisdiction, examining how different regulatory environments can either benefit or hinder business growth. The process is as complicated as ever, especially when looking towards a foreign jurisdiction and there are many firms out there making big claims that are sometimes too good to be true. In order to guarantee success, the key is to engage a professional adviser. Acquisition International speaks to the experts… Orhan Yavuz Mavioglu is Managing Partner and Attorney at ADMD Law Offices (ADMD) that is a boutique and full service law office with headquarters in Istanbul and capabilities to serve clients at all jurisdictions in Turkey. Al Tamimi & Company is a full service law firm and the largest firm in the Middle East, having 10 offices in 6 countries namely Abu Dhabi, Dubai, Sharjah, Kuwait, Qatar, Saudi Arabia, Jordan and Iraq. Al Tamimi & Company is also one of the few law firms in the region with a dedicated Corporate Structuring practice. Samer Qudah; is Partner & Head of Corporate Structuring at Al Tamimi & Company. Aziz Bensouda is partner at Amie Bensouda & Co.
Surridge Beecheno – Dubai Office T: 971 4 3523141-2 sbecheno@emirates.net.ae 306, 3rd Floor, Mohammed Noor Talib Building Khalid Bin Waleed Road, Bur Dubai, P. O. Box No. 117583, UAE
Azmi & Associates is a Malaysian full-service corporate law firm whose main office is based in the heart of Kuala Lumpur’s Golden Triangle, with other offices covering the southern and eastern regions of Malaysia, as well as Singapore. Azmi Bin Mohd Ali is Senior Partner at Azmi & Associates Advocates & Solicitors.
Vista Bridge Global Resources Ltd Tel: 234-803-4109996 info@vistabridge.net 4b, Stadium Close, Off Stadium Road, Behind Hope Power Nursery & Primary School, Eket, Akwa Ibom State, Nigeria Marcelo Alves is Associate Lawyer in Barrocas Advogados is Corporate Law, Regulatory, M&A, Project Finance, Contracts, Energy. Chun-yih Cheng (Mr) is Senior Partner and Leader of Corporate and Financial Services Practice Group of Formosa Transnational Attorneys at Law in Taiwan. Formosa Transnational is a full service law firm, representing international clients around the world. Muhammad Razikun is the founder of MUC Consulting Group (MUC), a group of consultants that comprise of Registered Tax Consultants, Registered Public Accountants, Transfer Pricing Consultants, Customs Consultants, and Attorney at Law in Jakarta, Surabaya, and Balikpapan. Messrs Patrick Okonjo and Ochei Odiawa are partners respectively in the firm of Okonjo, Odiawa & Ebie. The Firm is a fully integrated and multi dimensional business law practice, providing legal services to local and international corporations, governments, institutions and individual clients in Nigeria and beyond. Areas of expertise including general corporate law, energy law, telecommunication law, international investment, aviation, intellectual property . Orhaner Law Office is a full service legal firm established in 2001 providing legal consultancy services at global level to its domestic and international clientele. Orhaner possesses extensive experience in Turkish commercial law, corporate governance, labour law, intellectual property rights, consumer protection law, litigation and international arbitration. Ms. Caglayan Orhaner Dundar, founding partner of Orhaner, represents the third generation of the legal professionals in her family. She was qualified in 1997 and was admitted to the degree of Master of Laws in International Economics Law by the Law School, University of Warwick. Ms. Orhaner Dundar advises foreign investors and local companies in relation to their merger and acquisition transactions and joint venture transactions in Turkey.
Thirty Nine
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Company Formations Peroni Sosa Tellechea Burt & Narvaja (PSTBN) represents a wide variety of important national and international companies with business activities in Paraguay. The firm provides advisory services in a variety of commercial areas, including the establishment of corporations and other types of businesses. The firm prepares, negotiates, and legalizes commercial contracts at the national and international levels, and represents buyers and sellers in mergers and acquisitions. PSTBN represents local companies in their international commercial transactions, as well as foreign clients in their efforts to establish businesses in Paraguay, including the opening of branch offices and subsidiaries, and joint ventures. The firm has advised clients in the establishment of industrial and agribusiness joint ventures with foreign investors, and is highly regarded for its role in the granting of the first mid-term loan in Euros in Paraguay, awarded to a private Paraguayan firm without a bank guarantee, as well as the purchase of the entire operation of an important local industrial firm by a U.S. company. Estefanía Elicetche is partner at the firm. What are you specific areas of expertise when it comes to company formations? Orhan Yavuz Mavioglu: “As ADMD we provide extensive legal services for company formations. We could represent our clients from start to finish for any type of formations. We could incorporate companies at any jurisdiction, act as fiduciary shareholders or directors on behalf of our clients. Within our organization we also have an affiliate company titled ADMD Business Suites Services, that offers various and consolidated solutions to our clients such as virtual office formations, physical office space, temporary management, accounting and tax submission services.” Samer Qudah: “We have broad based expertise in all matters relating to company formation. UAE provides multi jurisdictional corporate setting up opportunities. Entities may be formed in one of the various purpose built free zones in the UAE or in mainland UAE. “A variety of corporate structures are available in the UAE, including limited liability companies, branch offices of foreign companies, private, partnerships and public joint stock companies (for purposes of listing) . “We advise on corporate structures and restructurings geared specifically for acquisitions of group companies, particularly with a view to exit. Such work is typically required by private equity companies and strategic investors. We also regularly conduct corporate restructuring and reorganization for business groups in the region.” Aziz Bensouda : “Company Formations expertise: setting up of companies, maintenance of company register, nominees services, secretarial services, registered office services, corporate governance advice & support, annual regulatory compliance, statutory declarations, restructuring, joint ventures, shareholders agreements, mergers and acquisitions, preparation & drafting of pre-Contract Agreements and Sale Agreements; advice on Tax and other regulations.” Noureddine Ferchiou: “Ferchiou & Associés handles for its clients, every single step related to company formation until its registration with the relevant authorities and its legal existence.The firm takes care of the drafting of the certificate of incorporation (the only document required for a company in Tunisia), the shareholders agreement (if any), the representation of the constituents of the company in formation before the different administrations and the accomplishment of all the relevant legal and administrative formalities.
Forty
“The firm has also the possibility to provide its clients with all necessary assistance to find acquire or lease the real estate indispensable to the company in formation. “Thanks to its reputation and reliability, Ferchiou & Associés developed, over the years, a strong network of banks and financial institutions eager to invest in the projects recommended by the firm.” Muhammad Razikun: “Our specific area of expertise in business establishment is from Pre-entry stage until setting up stage. These stages include market orientation (such as market research and feasibility study), finding strategic alliance, handling legal entity licenses, corporate law, Accounting, Taxation, Customs and IT infrastructure.” Okonjo, Odiawa & Ebie : “Our firm advises on matters falling within the areas of General Corporate and Commercial laws and related issues including matters under the Companies and Allied Matters Act, concerning operations of businesses in Nigeria, such as the establishment and maintenance of companies whether indigenous or subsidiaries/local affiliates of foreign companies, joint ventures and assets purchase. “We also advise on issues bothering on acceptable legal procedures and forms of business and commercial operations in Nigeria including company formation and operation, company searches, due diligence/ verification, as well as company secretarial services on an on-going basis.” Caglayan Orhaner Dundar: “When it comes to company formations, Orhaner has in depth knowledge in corporate law issues and experience in advising on the company types, formations, and particulars of corporate governance issues. Orhaner not only provides legal services for turn-key establishment of foreign invested companies, branch offices, and liaison offices in Turkey, but also undertakes further legal services with regard to attending the meetings of the board of directors of the companies, organizing the general assembly meetings and concluding any and all procedural work before the relevant authorities. Orhaner also follows up permissions for work permits and resident permits of the foreign national staff to be employed in Turkey. Yet, labour law consultancy is one of the core practice area of Orhaner which is also critically important for many foreign investors.”
CASE STUDY
Serry Law Office” was first established in 1938, and has been offering legal services in the Arab Republic of Egypt for many of the leading national and multinational companies; it ranks as one of the oldest and largest law firms in Egypt, with over 25 attorneys, consultants and support stuff of highly qualified professionals. We are specialized in real estate and corporate legal matters providing our clients with a full gamut of quality legal services, ranging from participating in and advising on pre-contract negotiations, to drafting and preparing international commercial and trade agreements. We advise clients on all aspects of corporate activities under Companies, Investment and Capital Market laws. The Office advises on, and handles matters related to registration of real estate, real estate transactions, incorporation of legal entities, mergers, acquisitions, joint ventures, dissolution, corporate acquisitions, privatization, preparing legal Due Diligence reports, commercial lending, project finance, credit transactions, financial restructuring operations, loan syndication, mortgages and pledges.
Mohamed Serry T: + 202 23920053 1 Talaat Harb Street mail@serrylawoffice.com www.serrylawoffice.com
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Company Formations Please describe the legal requirements when it comes to setting up a company in your jurisdiction. Orhan Yavuz Mavioglu: “Limited liable companies (LLC) and joint stock corporations (JSC) are the most popular forms of business entities in Turkey. For LLC's the minimum requirements are two shareholders and a capital commitment of TRY 5.000 (approximate equivalent to $2,700) by shareholders 1/3 of which shall be paid into the company within three months and the rest within three years following incorporation. Same requirements are applicable for JSC's however; the minimum capital commitment is TRY 50.000 (approximate equivalent to $27.000) to be paid by at least five shareholders. “From a practical point of view, JSC's are more appropriate for larger operations in particular, corporate joint ventures. The legal framework on corporate governance of JSC's are better developed and more flexible. JSC's could issue share certificates (physically) available for many financing purposes as well. On the other hand, LLC's are easier to incorporate and manage and they are more appropriate for new and small scale entries with simpler investment structures. It shall also be noted that company type may be amended later subject to discretion of the shareholders. The main difference between the two of these company types lies in liability perspective. Although they are both capital companies with responsibility limited with their capital payments and commitments of shareholders, LLC shareholders are also liable with their personal assets for State related debts such as taxes and social security premiums of employees.” Aziz Bensouda : “There are very few legal restrictions for company formations in The Gambia and the procedure is significantly liberalized. There are no restrictions on nationality of owners or directors of companies. Businesses in The Gambia may be registered as a company, a sole proprietorship, a partnership, or other forms of businesses (namely co-operatives or subsidiaries/branches of other companies). The Registration process can take from 2 – 5 days and the total costs, taxes and fees involved in company formation are under US$2500.” Noureddine Ferchiou: “Requirements to create a company may differ depending on the type of company the investor intends to create and the sector of activity in which the company will operate. The common requirements to create a company are the following: • Constituents: 1 or more (depends ofthe nature of company).
• A valid certificate of incorporation, with a valid bank account number that contains the initial capital of the company. • A business plan containing finance information on the capital intended to be invested and its source. • Registration of the certificate of incorporation with the trade register. • Obtaining of the tax registration number and the certificate of tax registration. • Publication in the Official Gazette of the Republic of Tunisia ofthe incorporation of the company and registration number. We draw your attention to the fact that certain activities are subject to the obtaining of administrative approvals prior to being performed and/or the compliance with specific terms of reference.” Chun-yih Cheng: “Two most popular types of companies in Taiwan and available for foreign investment are the “limited company” and the “company limited by shares”. According to Taiwan Company Law, a company limited by shares is a company organized by two or more or one government or corporate shareholder, with the total capital of the company being divided into shares and each shareholder being liable for the company in an amount equal to the total value of shares subscribed by him. In addition, a company limited by shares must have at least three directors and at least one supervisor. There is no minimum capital requirement, but the capital still needs to be examined and certified by a local CPA and covers at least the incorporation cost. “As to a limited company, it may be incorporated by one or more shareholders. A limited company shall elect one to three directors, and no supervisor is required. Same as a company limited by shares, there is no minimum capital requirement, but the capital still needs to be examined and certified by a local CPA and covers at least the incorporation cost. “The Statute for Investment by Foreign Nationals (“Statute”) governs foreign investment in Taiwan. The “foreign investment” referred to in the Statute means (1) Holding shares issued by a Taiwanese company or contributing to the capital of a Taiwanese company; (2) Establishment of a branch office, a proprietary business or a partnership in the territory of Taiwan; and (3) Loans provided to the aforementioned establishments for a period of one year or more. “According to the Statute, for foreign investors
to invest in Taiwan (for example, to set up a company limited by shares as a Taiwan subsidiary), an investment application, together with the investment plans and relevant documents shall be submitted to the Investment Commission, Ministry of Economic Affairs (“IC”) for obtaining Foreign Investment Approval (“FIA”). After the Taiwan subsidiary is established, in case the foreign investor intends to assign his investment; for example, to sell and transfer the shares of such subsidiary to another person(s), the assignor and the assignee shall jointly apply to the IC for approval of the assignment in accordance with the Statute. “Except for complicated cases, the IC usually makes its decision on an investment application within 1 week after the completion of the application. Approval could take up to two months if the application is also subject to the approval of the relevant authority in charge of the enterprise/industry in which the foreign investor is planning to invest. “After the FIA is obtained, the foreign investor must implement the investment within a prescribed time limit and submit the foreign exchange memo to the IC for examination of the investment. If, after being granted an FIA, the foreign investor fails to implement the investment, in whole or in part, within the prescribed time limit, the approval of the unimplemented investment shall be revoked. The foreign investor may, prior to the expiration, apply to the IC for an extension of the prescribed time limit with justifiable causes.” “The whole incorporation procedure for a fullfunctioning subsidiary could be as quickly as within 2 months.” Muhammad Razikun : “Every foreign investment company has to own Certificate of Incorporation which consists of composition of shareholders, board of directors, and article of association which is issued by a notary. Further, the company has to register and report its establishment to the Investment Coordinating Board to obtain Company Register.” Caglayan Orhaner Dundar: “The procedure for setting up a foreign-invested company in Turkey may be briefed as follows: i. Preparation and notarization of the articles of association and relevant documents, ii. Application to the Trade Registry for registration and announcement, iii. Notarization of the signature circular of the company iv. Notification to the General Directorate of
Forty One
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Company Formations Foreign Investment, subordinate to the Undersecretariat of Treasury v. Application to the Tax Office vi. Application to the Social Security Authority. In terms of the documents to be provided by the foreign national investors, legal requirements are as follows: i. In case the foreign national investor is a natural person, two copies of the passport (translated and certified by notary public), and four photographs are required. ii. In case the foreign national investor is a legal entity, the Activity Certificate of his or her company prepared by the relevant authority in such investor’s country showing the then current active status of the company and its signature executives is required. iii. Signature Declarations of the foreign national persons authorized to represent the foreign investors in the new company. Foreign national managers and/or directors of the new company, if any should obtain a tax id number in Turkey. iv. Additionally; each of the legal entity investors should adopt a decision at the competent body (i.e. shareholders’ assembly or board of directors) which clearly states the decision to
participate in the new company to be established and its representatives at that new company. It should be noted that, the above mentioned certificates and documents should be undersigned either by Apostle or Turkish Consulates in the foreign investors’ country. Last but not least, although it is possible to open a bank account on behalf of a company under formation, such account is not allowed to remit payment to third parties until the incorporation procedures are completed and the company is registered with the competent tax office. “ Does regulation in your jurisdiction hinder or benefit business growth? What can your jurisdiction offer to prospective companies? Are there any tax benefits? Orhan Yavuz Mavioglu: “Turkey is an attraction centre for international businesses. Its local demand and developing potential is only comparable with China, India and Brazil all around the world. Due to its geopolitical status Turkey offers even more for business growth with its ease of access to neighbouring Middle East, Caucasus, Europe and Russia. Turkish regulations
CASE STUDY
Setting up a company in Poland involves various formalities under the Polish Code of Commercial Companies (CCC). There are two types of company: joint-stock company and limited liability company, as well as four types of partnership (registered, professional, limited and limited joint stock. Limited liability companies (LLC) are the most common form of business organisation in Poland, with more formal joint stock companies (JSC) mostly being used for specific purposes or where compulsory (for banks and insurance for example). The minimum share capital for an LLC is PLN 5,000, while for a JSC it is PLN 100,000. The companies execute their articles of association (LLC) or statutes (JSC) in front of a notary, setting out formal details and appointing management boards and supervisory boards (mandatory for a JSC). Then the company opens a bank account, secures title to office premises and is registered in the National Court Register and for statistical and tax office purposes, and if it conducts business covered by VAT then it must also register as a payer of VAT (in Poland and the EU as applicable). If the company employs employees there are further obligations arising from the labour law, and specific forms of activity may have other obligations under other specific acts of law. Poland is ranked only 70th in the world for ease of doing business; however, things are improving. Polish regulations are generally coming round to support business growth both by encouraging investment, for example through state aid schemes and Special Economic Zones to encourage growth on preferential terms in certain areas, and by removing the barriers to business, for example cutting red tape and coming down hard on corruption. On the brighter side, Poland’s economy has not been badly hit in recent economic crises and is growing. It is relatively easy to obtain credit, and investors are relatively well protected by law.
Forty Two
are liberal and business friendly. Foreign investors are not provided any separate tax benefits but they are treated the same with any local investors and therefore may become eligible for various tax benefits based on different criteria such as volume of investment, field of activity, investment location, number of employees etc.” Samer Qudah: “Regulation in UAE, while robust, is geared towards providing an enabling environment for business growth. “One of the most attractive features of doing business in UAE is that there are no corporate or personal taxes in the free zones or in mainland UAE, except in certain industries such as hospitality, oil and gas. Additionally, UAE has entered into double taxation treaties with various countries.” Aziz Bensouda: ”Regulations are geared toward the promotion of sustainable business growth. New investment legislation offers attractive incentive packages to investors investing in priority investment categories namely agriculture, fisheries, manufacturing, tourism, forestry, energy, mineral exploitation, financial services, healthcare, logistics and
How does ease of trading in your jurisdiction compare to other countries? Please highlight the ease of access to banking and credit facilities and local corporation taxes within your answer The ease of trading in Poland has significantly increased recently due to the long-awaited amendments to the Act on Freedom of Economic Activity. Since July 1 2011, applications to register as a sole trader can be done on-line. However, some forms of economic activity are subject to less liberal legal regimes and require further formalities or concessions. The ease of access to banking and credit facilities is increasing due to the recovery from the economic crisis. Financial institutions are, however, still more likely to grant credit to large and credible companies, with medium and smaller enterprises still encountering difficulties in financing their investments. What are the logistics of trading internationally and what support do you offer to your clients attempting to break into new markets? Poland is well placed in Europe in terms of international trade. It has reasonable infrastructure for exports, though more investment is required and is underway. It is also an attractive economy for foreign investors with opportunities for trade across virtually all sectors, and is approaching the EU average in terms of levels of exports. GLN, with its 19 offices throughout Europe, Asia, Africa and North America and 650 lawyers, offers necessary legal advice and assistance in all areas to a wide range of clients, Polish and foreign. providing ongoing legal services as well as tax and labour law advice.
Dariusz Tokarczuk, Managing partner Tel. +48 22 344 00 72 E: tokarczuk@gide.com
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Company Formations transportation, information communication technology. Such incentives include tax holidays for 5 – 8 years. “For investments over US$250,000 the Government can (upon application) grant import sales tax waivers in respect of the importation of manufacturing plant, construction material and spare parts and raw and intermediate inputs for a period of five years from the date of signing an investment agreement or from the date of commencement of operations. “The Gambia also has incentives for businesses located within designated Export Processing Zones (Customs Territory). For businesses exporting up to 80% of their products/manufactures incentives include a wide variety of exemptions and tax breaks. These incentives can apply for up to 10 years. There are also incentives for businesses exporting up to 30% of their products/manufactures.” Caglayan Orhaner Dundar: “The Foreign Direct Investments Law dated June 17, 2003 abolished the Foreign Capital Encouragement Law, Foreign Capital Framework Decree and the Communiqués on Foreign Capital Framework Decree. Accordingly, all former FDI related screening and approval procedures have been abandoned for business set ups and share transfers. Foreign investors are no longer required to obtain pre approval for these transactions, except for some designated sectors, i.e. banking, special finance institutions, holding companies, financial leasing companies, insurance companies, companies dealing with general stores, and etc. Additionally, the requirement of importing a capital amounting to at least USD 50,000 by each foreign investor into Turkey is also abolished. Therefore, all transactions for establishing a company with foreign capital is the same with establishing a local company. “Any company can start to operate its business activity after the approval and registration of Trade Registry Offices, announcement of which is made by publishing in the Turkish Trade Registry Gazzette. “However, in order to establish a liaison office, the main activity of which is to conduct market research and feasibility studies and to accumulate investment opportunities in the Turkish market on behalf of their head offices, permission should be sought before General Directorate of Foreign Investment. “Finally, in terms of taxation, companies whose legal or business headquarters (as stated in their articles of association) are located in Turkey or whose operations are managed in Turkey are subject to corporation tax on their worldwide income. Turkish tax legislation describes these companies as full liability taxpayers, also known as resident companies. Limited liability taxpayers (non resident companies) include branch offices whose legal headquarters is located abroad. These are subject to corporate tax on their income generated from Turkey only. Current corporate tax rate is 20 %. However, there are several incentives applied in Turkey which foreign invested companies may enjoy same as the local companies. Accordingly, there are tax incentives in industrial zones technology developing zones, free zones, emergency zone and priority development areas, organized industrial zones, and etc.” Estefanía Elicetche: “Legislation in Paraguay benefits business growth. The Constitution proclaims that everyone has the right to choose the economic activity that they desire, under an equal opportunity regime, provided said activity is legal. Paraguay actively promotes foreign investment in the industrial and service sectors by upholding a Foreign Investment Law (No. 117/91) which grants foreigners the same guarantees, rights and obligations
enjoyed by Paraguayan investors, Law 60/90 which grants specific tax incentives to different investment programs and promotes maquila programs in Paraguay. “Paraguay is a party to International Agreements and Treaties for the promotion and protection of investment such as the Multilateral Investment Guarantee Agency (MIGA), Overseas Private Investment Corporation (OPIC), and International Center for the Settlement of Investment Disputes (ICSID) and has signed agreements with several countries regarding reciprocal investment protection (BITs). “Besides ICSID, Paraguay is party to several international conventions and treaties intended to protect foreign investment such as the Inter-American Convention on International Commercial Arbitration and the New York Convention for the Enforcement of Foreign Arbitral Awards and Judgments. Paraguay’s arbitration legislation is contained in Law 1.879 passed on 2002, which regulates domestic and international arbitration. “Paraguay offers one of the world's most comprehensive legal systems regarding foreign investments. Unless an application is filed for incentives granted under Law 60/90 or the Maquiladora or Free Trade Zone Laws, investors need no governmental approval to invest. Besides the Border Security Law, there are no restricted areas, no discrimination and no limitations. The Border Security Law restricts rural property ownership to foreign naturals of Brazil, Bolivia, and Argentina in 50 km range from international border. “Law 60/90 aims at stimulating the investment of capital towards the following objectives: increase the use of domestic raw materials and energy resources; create jobs; increase production of goods, services and exports; substitute imports; incorporate modern technology; and, improving productive efficiency. “The Maquila Regime -inspired in the Mexican Maquiladora System- by which a local company/subsidiary/branch (“Maquiladora”) signs a contract with a foreign entity (“Matriz”) to produce goods and/or provide services for export only, operating “for account and risk of” the foreign entity, who may supply all the raw materials and other inputs to the Maquiladora from any local or foreign supplier. Raw materials and other inputs required for the performance of the Maquila Program can enter Paraguayan territory with suspension of all applicable taxes and duties; a guarantee for an equal value to the suspended taxes is required by Customs authorities (insurance policies, Warrants, or Bank guaranties are accepted). “Production under this regime is subject to a 1% tax on the value added in Paraguayan territory, and no other taxes are applicable. “A number of companies have set up Maquila operations under Law 1064/97 in Paraguay and the Government considers this tax exempt operation as one of the most important instruments in the transformation of Ciudad del Este located in the border with Brazil. This city went from a semi legal commercial operation into a productive legal venture, supplying Brazilian and foreign firms with products or parts manufactured in Paraguay, with a considerable reduction in costs and taxes.” How does ease of trading in your jurisdiction compare to other countries? Please highlight the ease of access to banking and credit facilities and local corporation taxes within your answer.
Forty Three
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Company Formations Orhan Yavuz Mavioglu: “Although the official IFC ratings of Turkey for the purposes are quite moderate, Turkish regulations are very favourable for traders. There are no specific import-export permissions required for general purposes and the custom transactions are considerably easy to handle. As far as the banking system goes, it shall be noted that Turkey is among the top in Europe, the service quality, variation and ease of access are excellent. Almost all top international banks also have local operations and access to credit and loan facilities is considerably effortless. The local corporate tax on profits is also competitive at 20%. Samer Qudah: “UAE has emerged as a trading hub for the entire region as it is ideally located geographically and its laws and taxes are facilitative, making UAE a prime choice for trade. Today many major international companies have their regional distribution hub in the UAE, particularly in Dubai. UAE’s ports are home to numerous large scale logistic companies offering warehousing and shipping services “Corporate entities incorporated in the free zones are exempt from payment of any customs duties if the imported goods are for use of the company itself or for re-export outside of the free zone. Where customs duty is applicable, it is normally 5% of the invoiced value which from international standards is on the lower side. “Regards banking and credit facilities, all major banks around the world have branches in UAE and offer a variety of banking and credit facilities equivalent to any major market.” Aziz Bensouda: “The Gambia is quite competitive in comparison to its regional neighbours in terms of ease of doing business. There has been slow but consistent improvement in business friendliness of trade regulations. Access to banking and credit facilities is notoriously easy although interest rates can be prohibitive but not unusual in the region. Corporation taxes are also currently quite high reaching up to 35%.” Marcelo Alves : “As a developed, modern and particularly open European economy, the ease of trading in Portugal is substantially equivalent in practice to the ease of trading experienced in other countries that are also part of the European Union. “Since 2008, we have experienced a dip in banking activity as a result of the global financial crisis, and more recently of the EU sovereign debt crisis. These two crises have had a negative impact on the ability of banks to fund their clients’ businesses needs. This lack of financing caused an absolute deadlock in the local M&A market and in borrowing in general, which was particularly felt in the corporate and real estate markets. With regard to the latter, and although there was no housing bubble as in other European countries (eg, Ireland and in Spain), construction companies have in general refrained from building more houses deciding instead to internationalize their activities while potential buyers were unable to purchase the ones that were already on the market because banks either do not lend or lend at high rates. However, part of the 78 bn Euro bailout package will be used so as to increase the liquidity of the local banking system, notably by releasing some of the public debt that was taken over by the Portuguese banks, which means there will be in the foreseeable future more liquidity available for banks to restructure their balance sheets and for the Portuguese economy as a whole. “With regard to corporate tax rate applicable in the mainland Portugal, the current standard rate is set at 25%. There is a surcharge levied on profits exceeding 2 million Euro at a rate of 2.5%. Corporate taxpayers located in Madeira and Azores, benefit from a reduction of the corporate rate applicable
Forty Four
in mainland Portugal. In Madeira, tax rate of 10% applies to taxable income up to 12,500 Euro, and 20% on income exceeding that amount. In Azores, the applicable rates are 8,75% and 17,5% respectively. There are two Free Trade Zones in those regions, but the Madeira Free Trade Zone is the only one used by international companies. Companies that have been granted a license to operate in the Madeira Free Trade Zone before 31 December 2000 benefit from full corporate income tax exemption on income derived from transactions entered into with non-resident entities. An intermediate regime applies to companies licensed in the Madeira Free Trade Zone between 1 January 2003 and 31 December 2006. Both regimes terminate on 31 December 2011. Companies with licenses granted between 1 January 2007 and 31 December 2013 benefit from reduced corporate tax, ranging from 3% to 5% until 2020. In order to qualify for the corporate tax reductions, companies incorporated in Madeira must create a predetermined number of jobs and may depending on the number of jobs created be under an additional obligation to undertake an investment of at least 75,000 Euro in the first 6 months of operation. Excess income, if any, is subject to the aforesaid standard statutory rate.” Noureddine Ferchiou: “Trade is strictly regulated in Tunisia and has to be duly authorized by the Tunisian Central Bank and the Trade Minister when performed by foreigners. Most commercial activities have to comply with terms of reference. Some activities have to be approved by the Minister of Trade prior to being exercised. “More generally, trade in Tunisia complies with international standards and with most of the guaranties recognized in international transactions and its banks and credit facilities match international requirements of accessibility and responsiveness. These institutions are able to answer positively and promptly to most of the demands of their clients by furnishing letters of credit or by financing a project as long as it is made inthe proper form. “Nevertheless, it is fundamental to consider that banks and financial institutions operate under the close supervision of the Tunisian Central Bank. The transactions that involve foreign currency are highly regulated: depending on the residency (not the nationality) of the company in Tunisia, currency movements can be submitted or not to the approval of the Central Bank. But generally, for regular operations of imports and exports the use of foreign currency is free. 6) According to the World Bank’s study entitled “Connecting to Compete: Trade Logistics in The Global Economy”, Tunisia ranks as the 60th country in the world out of 150 in terms of quality of its logistics and the first among North African countries.Tunisia is close to the European market. The country has developed a strong and fast manufacturing activityto answer almost immediately demands of European neighbours. The proximity of Tunisia saves transportation costs and time for small high quality orders. Multinational cooperation between Tunisia and Europe concerns activities such as clothing or auto parts. “Tunisia is devoting a great part of its resources to modernize its ways of communication inside and outside the country: the country has a network of approximately 19,000 kilometres of roads. Traffic has registered an annual growth rate of 6.1%. Highways extensions are in progress with the aim to connect the country to Libya and Algeria in the next few years strengthening the role of Tunisia as the North African hub for international trade. In addition to the existing seven commercial harbors, the country is implementing a deep-water port in Enfidha as part of the strategy initiated by Tunisia to modernize international shipments. This mega project will be implemented in full BOT covering an area of 1000 hectares with a total capacity of 5 million TEU (Twenty-foot equivalent unit, a measure used for
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Company Formations capacity in container transportation). The first module of the port with a capacity of 2.2 million containers will be ready in 2012. International Fret by plane is also present in Tunisia around 10% of international transportation. To facilitate international exchange, Tunisia also developed an electronic data interchange system to simplify the customs clearance process. “Thanks to its proficiency in matters of investments and assistance to companies in formation, Ferchiou & Associés has had the opportunity to deal over the years with thousands of companies, creating an international and diversified network in which Ferchiou & Associés operates as a link or as a business incubator able to help new companies to break into new markets” Muhammad Razikun: “In the trading sector, the government of Indonesia has simplified administration and the process to obtain business license. Meanwhile in banking sector, according to index of “doing business” from World Bank, Indonesia is listed in position 122 from total 183 countries. The index is obtained from some categories, such as ease of getting credit information, strength of legal right, Depth of Credit Information, and Public Registry Coverage, “In the field of taxation, Indonesia provide many incentives to business industry, among others by giving lower rate for certain taxpayers as described below: Type of Company Company listed in Indonesia Stock Exchange (IDX)
Tariff of Income Tax
Corporate
20% (5% percent lower normal rate 25%)
than
Company not listed in IDX with turnover not exceed of IDR 4,8 billion
12,5%
Company with turnover not exceed IDR 50 billion
12,5% on taxable income from gross turnover of IDR 4,8 billion
Certain industry that fulfill certain criteria
Obtain tax exemption for 5 years and can be prolonged for 10 years
What support do you offer to your clients attempting to break into new markets? Azmi Bin Mohd Ali: “Throughout Azmi & Associates’ decade of service, our resources extend globally due to the strength of our international alliances. Among our supports to clients attempting to break into new markets are: (i) to help the clients expand internationally and to achieve their international commercial objectives; and (ii) to provide advice on a range of international legal issues including commercial transactions; mergers and acquisitions; commercial property acquisitions, labor/employment law issues, company formation options and debt collection.” What are the logistics of trading internationally and what support do you offer to your clients attempting to break into new markets? Samer Qudah: “As stated, UAE offers numerous benefits to establishing trading hubs linking supply and distribution networks regionally and globally. With our network of offices in key locations in the Middle East we offer seamless support in the jurisdictions where we are present, particularly where traditionally laws are not available in the public domain. In relation to
international trade, our experience in advising multinational companies on optimal regional corporate structuring for providing sales and after sales services is notable. “Al Tamimi & Company has strong experience in dealing with regulators and government organisations in the entire region. Our day to day interaction with such bodies positions us strongly to provide accurate and practice advice for doing business in the region. As such our advantage lies not only in just knowing the law.” Aziz Bensouda: “The River is hailed as the most navigable in Africa and can be navigated up to 300 miles inland by sea-going vessels and commercial barges. The Sea Port has a deep sheltered anchorage with no record of piracy and is internationally recognized as one of the safest and most efficient ports in West Africa. These features make international and re-export trade significant contributors to GDP. As one of the only full service law firms in The Country, with extensive links and affiliations in the region and internationally, our firm is well placed to offer assistance and advice on all aspects of international trade in The Gambia.” Chun-yih Cheng: “Formosa Transnational provide a full range of service to assist Taiwanese and foreign nationals and corporations to establish companies or branch offices in Taiwan or abroad. For example, we provide legal advice regarding management, operation, employment, financing, while suggesting which form of company should be selected. We also assist foreign companies with the application procedure for FIA, incorporation, taxation and any other necessary application, filing, compliance, as well as work permits, permanent residence visas for their expatriates.” Muhammad Razikun: “Indonesia has complete facilities for international trading, for example there are many international air transport and international harbour. Customs administration has simpler and customs tariff has in line with international tariff agreement, since we are member of APEC, WTO and other world organization. “We can help our clients to break into new market by assisting them in
CASE STUDY
Marcos Yanaka & Kelly Andrade work for NDI Company in Brasil and are part of the International Sales staff. Does regulation in your jurisdiction hinder or benefit business growth? The government taxes are very abusive on our field, and every now and then they find some new ways to charge us higher taxes but the government so offer a tax benefits to importers. What are the logistics of trading internationally and what support do you offer to your clients attempting to break into new markets? “A very qualified staff placed all over the main countries that we can introduce suppliers with a competitive price and good quality items. NDI-International is a company that seeks to integrate the business world, offering integrated services outsourcing and procurement, logistics management and operational management, consolidated purchasing, planning, customs and brand management, with extreme efficiency and agility.” Luiza Tosin, NDI International. T: +554136075634 Luiza@ndi-international.com.br www.ndi-international.com.br
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Company Formations registering to the Investment Coordinating Board and Customs Office. We can also provide further assistance if required and link to our network.” Okonjo, Odiawa & Ebie; “Some of the logistics of trading will include importation of funds by investors. “A foreign company wishing to buy shares or invest in a Nigerian company may do so in any convertible currency. (Section 21 of NIPC Act). Investment will be effected with foreign currency imported freely into Nigeria through an authorised dealer and converted into the Naira at the official foreign exchange market as provided under the Foreign Exchange (Monitoring and Miscellaneous Provisions) Act F34 LFN 2004. The Authorized dealer will issue a certificate of capital importation. Imported capital is guaranteed unconditional transferability and repatriation of funds with regard to both earnings and capital. “From our point of view, this will entail the foreign investors having to deal with legal systems which in some cases may be completely different from their traditional jurisdictions. In some cases business customs and practices are different. “We are in a position to assist our foreign clients to understand these in a way that will not disrupt their business. “We also advise generally on local conditions to be met by the intending foreign investor to enable such company engage in business /trading activities there. This will include but not be limited to the acceptable business model and form; requisite permits and licences required to enable such an enterprise
CASE STUDY
Please describe the legal requirements when it comes to setting up a company in your jurisdiction. “To first to develop a trading company we need a office and address then we need some permission from the country government like trade licence, Tax identification certificate, VAT registration, chamber of commerce membership, IRC and ERC, a bank account.”
Does regulation in your jurisdiction hinder or benefit business growth? What can your jurisdiction offer to prospective companies? Are there any tax benefits? “Rregulation is in my control, in our country we have many many garments factories are working already and many more like to start more gament manufacturing projects. We need more marketing to get more order. I think anyone can do a readymade garments importer sourcing office here in Bangladesh as factory is available here to find with good price. For garments we have no tax for the government here as our governments like use our labour in job as its are cheaper. How does ease of trading in your jurisdiction compare to other countries? “Trading is good here for manufacturing of ready made garments. Baking credit facilities is really easy for who has some asset. If I show to the bangk that I have some land to do a big manufacturing project then bank will invest even 70%. And in loan period not tax will be charged from government. Bank will increase their investment if trader meet the instalment schedule properly. “ What are the logistics of trading internationally and what support do you offer to your clients attempting to break into new markets?
Forty Six
operate within the applicable sector. We can help procure actual incorporation of the entity and where applicable set up a temporary and or nominal board that will run the company until such a time as the company representative will physically take up the day to day management of the company” “In some instances, a foreign company can be exempted from incorporation under the Companies and Allied Matters Act or under a treaty to which Nigeria is a party. Such exemption can be granted by the President subject to such conditions as he may prescribe. We will, where this is the case, advise such company how exemption can be achieved. “We also advise as to the practicability of the actual process of funding the business in certain sectors. In certain instances, we have had cause to even match investors with opportunities.” What are the main factors to be considered when employing staff? How can be potential pitfalls be avoided? Please use examples to highlight your answer. Samer Qudah: “Expatriates form an integral part of the human resource available in the UAE. All expatriates working in the UAE must be under a work visa sponsored by their employer. As such the employee cannot work for any other person except for the sponsoring employer. In the foregoing, care must be exercised by companies engaging in business which requires mobilisation of their employees, for instance for after sales or training services. It is important to ensure that employees are not based in customers’ premises for long periods of time, whereby they may reasonably be deemed to be operating from the customers’ premises. For instance, training periods at customers’ premises should be short and few.”
“I will advice to invest in textile project and to buy some land for 2 years as land prices are going up day by day and within 2 years it is coming back with 50%-100% extra. What are the main factors to be considered when employing staff? How can be potential pitfalls be avoided? “You will never know the candidates are honest, responsible and hard working before they work with you. I think for Bangladesh, above 30 aged are better to work with as they are responsible. To care their honesty you have to follow up their billing, working hours, reply, documents. To keep employers safe I will advise to keep 6 months observational period and the job will be permanent when employer will be confirm about honesty, responsibility and working concentration. Nothing is pitfall here to discharge employees when they are not good for work.” As we slowly recover from the economic downturn, do you have any predictions for the next 12 months in terms of doing business in your jurisdiction? “I think who have money they can buy some land properties to keep him safe side with business. We have to use multi0business plan to keep us safe in business. Because we are not sure 1st business will keep us safe side forever.” Upright Textile Supports and Montreal Fashion Bangladesh
upright@dhaka.net, info@uprightbd.com, info@hmmbd.com
www.uprightbd.com, www.hmmbd.com, T: +88 01614030002
31, Lolit Mohon Das Lane,
BGD Super Market, Hazaribag, Dhaka, Bangladesh
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Company Formations Azmi Bin Mohd Ali: “The business should start by identifying what skills, qualities and experience are required in order to allow it to continue to operate successfully. This will require a clear understanding of the exact nature of the firm's practice of areas in which it operates. Labour costs “Another factor to consider is labour costs. Labour costs consist of the cost of the work that goes into the execution of a service. Direct labour costs can be figured by multiplying the cost of labour per hour by the number of employee-hours required to complete the job. This "cost of labour per hour" includes not only hourly wage or salary of the relevant employees, but also the costs of the fringe benefits that those workers receive. How can be potential pitfalls be avoided? “The main legislation regulating terms and conditions of employment is the Employment Act 1955 (“Employment Act”). “Generally, an employee under the Employment Act includes any person whose wages does not exceed RM1,500 per month under a contract of service with an employer or any person who irrespective of the wages earns in a month has entered into a contract of service with an employer and disengaged in manual labour or engaged in the operation of mechanically propelled vehicles. Protection of employee under the Employment Act “The Employment Act confers benefits such as rest days, public holidays, annual leave, sick leave, hospitalization leave, maternity leave and termination benefits. A written contract of employment must be given to every employee where the employment period exceeds 1 month. The contract must include particulars of the terms and conditions of employment and notice period required to terminate it. “Any complaints on employment shall be made by an employee to the nearest Department of Labour Office. Where there are disputes such as unfair dismissal, employees can voice their complaint to the Industrial Relations Department.” Statutory Contributions “It is compulsory for employees and their employers to make monthly contributions to a statutory retirement fund. Expatriate employees are exempted unless they opt to contribute in which case it becomes compulsory too for their employer. The contributions are made to the account of the individual employee. At present, the employer contributes 12% of the employee’s monthly salary while the employee contributes 11%. “Monthly contributions will also have to be made to the Social Security Organisation Fund both by the employer and employees who earn a monthly salary of RM3, 000 and below. The Fund pays compensation for death and invalidity or disablement benefits arising from employment injuries. For those who earn above RM3,000 a month, participation is at their option but once they decide to contribute, their employers will also have to comply.” Muhammad Razikun: “To start doing business in different countries, including in Indonesia is always a challenge. It is because some factors, such as cultural differences with local business community and employees, how to dealing with government officials, the complexity and continuous changes in laws and regulations, the restriction on foreign ownership in some sectors, as well as infrastructures and business facilities.
CASE STUDY
Maiga Mamadou is Head of Legal Affairs and Litigation at Kafojiginew Head Office, a firm that specialises guarantees, judicial recovery, monitoring records, magazines, the analysis of contracts, etc.
The Legal requirements when it comes to starting a business in Mali include the establishment of the statutes by deeds, the completion of the contributions of the partners, the notarized statement of payment and subscription of shares / shares, coupled with a request for entrepreneurship and the registration in the Trade and Personal Property Credit Register, as well as the publication in a journal of legal notices. Business growth in Mali is ensured by the effectiveness of the judiciary and the improving function of justice and the quality of judicial decisions. Malian legislation provides businesses the protection of shareholder right and company assets. The tax benefits within Mali include Investments less than or equal to 150 million FCFA included duty 3-year exemption for import duties on equipment not produced locally. Exemption from IS, RPIC and 1st patent for five fiscal years. Investments in excess of 150 million FCFA included duty and a 3-year exemption for import duties on equipment not produced locally. Exemption from IS, RPIC, and the patent for the 1st 8 years. Transactions are facilitated by the large-value interbank transactions and t he automation of interbank clearing. Payments can be made via credit car and mobile telephone banking. Access to bank credit is enhanced by the existence of several banks, financial institutions and microfinance institutions and the simplification of procedures, the excess liquidity in banks, the diversity of means of payment and guarantees. Domestic taxation of Mali includes Direct and indirect taxes, registration fees and stamp duty. The support offered to investors includes protection, the simplification of procedures, and the existence of adequate infrastructure. The main factors to consider when using the staff from Mali are the hours of work, salary and the employer's contributions. Potential pitfalls to avoid are “The halo effect” where a recruiter must be wary of hasty comparisons and “First impressions”, where the recruiter should not be fooled by appearances.
“When employing staff, a company should be aware starting from the beginning process of staffing to select highly professional people who has integrity and good attitude. To be more specific, as a consultant firm for example, we use the human resource approach in hiring our staff where experience and reputation becomes our main consideration. After passing the selection process, we provide our staff with the assurance of Law of Manpower, labor insurance (Jamsostek) and corporate regulation.” Caglayan Orhaner Dundar : “When a foreign investor opens its first
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Company Formations overseas operation in Turkey, staffing the operation with qualified nationals to be found locally is an important milestone. Without preliminary knowledge of the Turkish Labor Law and the relevant legislation, employing staff might have many pitfalls. Solid advice should be received as to structuring the employment contract so as to avoid considerable amount of time and money which may be spent while terminating the contract with just causes or in respect of underperforming employees. The mandatory provisions of the labor legislation stipulating for employee welfare and benefits should also be well understood, since no contractual provision might be drafted against such mandatory provisions.” As we slowly recover from the economic downturn, do you have any predictions for the next 12 months in terms of doing business in your jurisdiction? Samer Qudah : “Dubai is making a swift but steady recovery which is becoming increasingly visible by the day. Given the improving environment we foresee an encouraging outlook across the board, and a fair amount of growth particularly in health, education, media and publication, human resource development and technology based industries.”
Aziz Bensouda: “As the world recovers from a global recession and investor interest moves to less mature economies we expect that business interests, and Foreign Direct Investment will continue its current rapid state of increase in The Gambia over the next 12 months.” Chun-yih Cheng: “After the impact of the financial crisis starting from year 2008, Taiwan is slowly recovering from the economic downturn and places more importance on the relations with Mainland China. In June 29, 2010, Taiwan and Mainland China signed the Economic Cooperation Framework Agreement (ECFA) to strengthen the integrity of trade and economy, effectively reduce the political risks between Taiwan and Mainland China, and clear out foreign investors’ concerns about the uncertainty of the cross-strait relationship. The ECFA has been helpful to regain the momentum for Taiwan’s economy recovery. However, with the upcoming election for the President in 2012, according to experience, we predict the crossstrait relationship will held on as is; further development will be dependent on the outcome of the election.” Muhammad Razikun : “The downturn in America and Europe as a result of the global
financial crisis in the last five years didn’t cause major impact to Indonesia. On the contrary, the Indonesian economy grows quite significant. According to Thee Kian Wie, a senior economist at the Indonesian Institute of Sciences (LIPI) in Jakarta, the Indonesian economy continued to grow strongly at 5.8 percent during the third quarter of 2010. Even though, the growth was slightly lower than during the second quarter of the year when growth reached 6.2 per cent, the growth is still significant since the decline was not because of negative business climate but due to the unusual weather conditions that had an adverse effect on some sectors, including agriculture, construction and trade. Due to the less need to recover from the global economic downturn and the role of Indonesia in international organizations such as APEC, ASEAN, WTO, and G-20, doing business in Indonesia for the next 12 months can be considered as the perfect choice. According to Indonesia Investment Coordinating Board, the total of investment in the first semester of 2011 reach IDR 115,6 trillion and Foreign Investment grow 16,2%. This confidence also shown by the Indonesian government that set the economic growth rate target of 6.7 percent for year 2012.”
Albert Islami
Managing Partner
Bulevardi i Deshmoreve 58a, nr. 4, 10000 Pristina, Kosovo
Email: info@avokatia.eu Web: www.avokatia.eu Albert Islami is an attorney at law and managing partner of Albert Islami & Partners, with the seat in Pristina, Kosovo. He is member of the Chamber of Advocates of Kosovo, specialized in banking, finance, commercial and corporate law, company formation. “In all cases of company formation, upon previous written agreement with clients (mainly international companies), Albert Islami & Partners offers a variety of professional services in relation to the proceedings of preparation of the documents and more precisely, rendering detailed and thorough advice to the client on the law and procedures, types of business, advantages and disadvantages according to the applicable law in Kosovo, etc. Albert Islami & Partners perform also other duties such as drafting partnership agreements, shareholders' agreements, charters and articles of associations, by-laws, resolutions, as well as legal services to the General Shareholders' meeting, management board, etc. “When it comes to the setting up a company in the Kosovo jurisdiction, every client is requested first of all to make available all personal documents (for natural persons) and/or company registration documents in the country of origin, a memorandum, articles of associations,etc. “The regulation, such as the Law on Foreign Investments, Law on Business (with subsequent amendments) in Kosovo benefit business growth, offering very attractive conditions in the very speedy registration and operation of the businesses, excluding any kind of discrimination as regards both the formation and the operation of the companies including the taxation policy in comparison with national companies. “The trading in Kosovo is based on the applicable laws, European directives, UN conventions, etc. and it is almost similar to most countries in the region. Every prosperous company has unlimited access to banking and credit facilities. The proof is a series of financing projects and loans of international banks, among them, the most important being the Bank for Reconstruction and Development, London, UK. Local corporation tax is the lowest one in the region, i.e. it remains for years at the level of 10 % whereas VAT is in the level of 16 %.
Forty Eight
“With a number of specialized legal staff we offer our international clients all services, starting from the company formation, drafting commercial contracts, to the accounting, taxation and customs advice and ending with arbitration, mediation, conciliation up to the litigation. “When employing staff, the main factors are: experience, specialization, age, high competence in speaking foreign languages, etc. We do our best to avoid any kind of potential pitfalls. Mr. Islami speaks: English, German, French, Polish, Italian, Serbian/Bosnian/Croatian, Macedonian and Albanian“Some would say that Kosovo has not seemingly felt so much the global economic crisis but it is far from being true. Nevertheless, we are confident to predict that doing business in Kosovo . “Mr. Islami has gained a considerable experience in the field of Legal audits and legal due diligences, such as the compliance of specific transactions with the applicable laws in Kosovo, company structure, operation and liabilities; status of commercial licenses, status of assets, real estates, status of investment financing, Contracts, including security documents, etc. In the last six years Mr. Islami has carried out legal audit and legal due diligence investigation for several international companies and financial institution, the most important being the European Bank for Reconstruction and Development.”
“When it comes to the setting up a company in the Kosovo jurisdiction, every client is requested first of all to make
available all personal documents (for natural persons) and/or company registration documents in the country of origin, a memorandum, articles of associations,etc.”
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Company Formations Dahlia A. Joseph, TEP Associate
Juris Building, Charlestown, NEVIS.
Tel: (869) 469-5259 Email: dahlia.joseph@danielbrantley.com Web: www.danielbrantley.com Daniel, Brantley & Associates is the largest law firm in St. Kitts & Nevis and is wellequipped to provide its clients with prompt, efficient and quality legal services. The firm is based in Nevis and prides itself on the wide range of services offered to international clients worldwide, which include incorporation/formation of international business companies/entities and related services, economic citizenship, property acquisition, transactional work and trust and commercial litigation. . Nevis is part of the Federation of St. Christopher (St. Kitts) and Nevis. While Nevis is not an independent State, the Nevis Island Assembly is constitutionally empowered to and has enacted laws in Nevis which are geared towards facilitating the ease with which international clients do business in Nevis. Clients who do business outside of St. Kitts and Nevis benefit from the complete tax exemptions offered to companies incorporated under the Nevis Business Corporations Ordinance, 1984, as amended (NBCO) and limited liability companies under the Nevis Limited Liability Ordinance 1995, as amended. There are also tax benefits for an offshore client who sets up an international trust, an excellent asset protection tool, under the Nevis International Exempt Trust Ordinance 1994, as amended. One of the key features of an international trust established in Nevis is that the Nevis court will not entertain a challenge to the trust after the expiration of 2 years from the date the trust is established. There is also provision for international insurance business under the Nevis International Insurance Ordinance, 2004 as amended as well as for the setting up of mutual funds under the Nevis Mutual Funds Ordinance 2004, as amended. There is international banking available under the Nevis Offshore Banking Ordinance 1996 provided that the licensee is a fully owned subsidiary of a bank licensed to do domestic banking business in Nevis or in its jurisdiction of origin. Nevis is one of the few jurisdictions that has enacted multiform foundations legislation so that a client may benefit from the flexibility and ease of changing the form of the entity, for example from a company foundation to a trust foundation, to adjust to the changing needs of its business. In addition to the setting up of a multiform foundation in Nevis, the Nevis Multiform Foundations Ordinance 2004 as amended, provides for
the seamless redomiciliation of a foreign company to Nevis after which the client may elect the form of the foundation which is most suitable to achieve his/her business goals. An international business entity may be established in Nevis within a single business day. The process may be handled by our firm as a licensed registered agent. In addition to dealing with the incorporation/formation process, our firm also offers registered agency services. There is no requirement for the filing of any documentation on an annual basis and the company will be in good standing once the annual fees are paid. Our firm will also facilitate the setting up of banking facilities for the company, if required. The offshore sector in Nevis is regulated by the Nevis Financial Services: www.nevisfinance.com and has modern KYC and anti money laundering provisions to prevent the abuse of the jurisdiction. To find out more about our firm and doing business in Nevis, please feel free to visit our website at www.danielbrantley.com or contact us at your convenience.
Nevis is part of the Federation of St. Christopher (St. Kitts)
and Nevis. While Nevis is not an independent State, the Nevis Island Assembly is constitutionally empowered to
and has enacted laws in Nevis which are geared towards
facilitating the ease with which international clients do business in Nevis.
Lidija Djeric Associate
Takovska 19 - 11120 Belgrade 35, Serbia
Email: lidija.djeric@ppsp.rs or office@ppsp.rs The Law Office Popovic, Popovic, Samardzija & Popovic is one of the oldest law firms in Serbia. Established in 1933 by Miodrag P. Popovic (1907 – 1987) our Office has continued to serve our clients through wars, the dissolution of Yugoslavia and most recently the transition to a market economy. We have also developed a network of close associates in the newly formed states of the former Yugoslavia. Lidija Djeric is one of the associates, admitted to the Office in 1997, firstly as trainee and than in 2000 as Attorney at Law, specialized in Intellectual Property and Corporate Law. Since 2004 Serbia has started a reform in the field of formations of commercial entities. The Business Registers Agency (BRA) took charge of the implementation of reforms in the area of business registration in accordance with European standards. The new Company Law has been brought on 4 June 2011 but same will be applicable from 1 February 2012. In the meantime, the Company Law which came into force on 30 November 2004 still applies. Also the new Law on Registration Procedure with Business Registers Agency should be enacted by 1 February 2012, when the new Company Law should take effect. In Serbia, the most frequent form of business is a Limited Liability Company (LLC, in Serbian language DOO). For its registration the next steps should be taken: - LLC name should be checked at the BRA website, in order to establish previous identical or similar company names - Determining LLC predominant activity - Writing LLC’s Articles of Association and certifying same before the local court or with Apostille - Determining LLC’s initial capital contribution in cash or in kind (minimum EUR 500) - Payment of the initial capital contribution to the preliminary bank account - Signature Certification of the persons authorized to represent the company - Filing the registration application before the BRA together with payment of fees and filing of relevant supporting documents
- The Decision on Founding should be received within 5 days if all requirements are met - Obtaining a TIN (Tax Identification Number) - Tax Administration filed inspection at the LLC seat to check data stated in application - Opening of a bank account - Submitting documentation to the Tax Authorities - Registering of TIN and bank account with the BRA Serbia represents a new interesting market after its change of regime in 2000, However, its economic structure in year 2000 was at the same level as the economic structure during the second half of the 1970s. In the period 2001-2009, the GDP increased by an average growth rate of 4,4%. Serbian Government tries to attract foreign investment with various kinds of stimulation particularly in production and employment sector with a goal to be competitive within Balkan region. The banking system has been re-established during the last ten years, as well as taxation system. Serbia is recovering from its past and struggles for its place in the European Union. Therefore, an easy ride in Serbia is not guaranteed.
Since 2004 Serbia has started a reform in the field of
formations of commercial entities. The Business Registers
Agency (BRA) took charge of the implementation of reforms in the area of business registration in accordance with European standards.
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Company Formations António de Barros Aguiar Director
Rua 3 de Fevereiro, 10, C.P. 43- S.Tome; S.Tomé e Príncipe, Portugal Tel: + 239 2222457 / 2223472 Email: socogest@cstome.net SOCOGESTA is a consulting and management company who operate in three areas, Human resources management and outsourcing, Economic projects and studies. António de Barros Aguiar is Director of SOCOGESTA; Ltd SOCOGESTA also has been working with foreign investors helping them to incorporate companies in the Sao Tome e Principe internal jurisdiction as well as in the Sao Tome e Principe offshore jurisdiction. Please describe the legal requirements when it comes to setting up a company in your jurisdiction. Foreign nationals are not obliged to have a local partner. Companies are incorporated at “One-Stop-Shop” and it takes 3-5 days to incorporate one company. The information required are: Personal data of the shareholders; Statutes of the company; Copy of the passport of each shareholder; information on the marital statues and the legal regime of marriage; Name of both parents (if the shareholder does not have an Identification Fiscal Number). The legislation allows for the incorporation of Limited Liability Companies, Stock corporations and single member private limited company. The minimum share capital varies, depending on the object of the company, but is usually small. For a limited liability company for instance the minimum capital is 1.000 US$. Does regulation in your jurisdiction hinder or benefit business growth? What can your jurisdiction offer to prospective companies? Are there any tax benefits? “The legislation has been improving in order to create a competitive and business friendly environment. To incorporate a company takes now maximum 5 days. A company can even been incorporated in 1 day if an urgent charge is paid. “Tax laws are also improving. The corporate tax is now 25% of the benefits.”
There is a very competitive offshore legislation for companies working outside the country. How does ease of trading in your jurisdiction compare to other countries? “The country has a very open trading legislation. Custom taxes vary from 5 % to 10%. Luxury goods are taxed at around 20% and alcohol, fuel and some other products have a surcharge. “Interest rates are still high, despite the relative large numbers of banks operating in Sao Tome.” What are the logistics of trading internationally and what support do you offer to your clients attempting to break into new markets? SOCOGESTA has been doing market studies for companies, not only for Sao Tome e Principe but also for the Central and West Africa. The company has a great expertise in finding the best logistics solutions to operate in Sao Tome e Principe and in the region. What are the main factors to be considered when employing staff? How can be potential pitfalls be avoided? The costs of the man power is not high. The labor legislation is a bid old, workers oriented and is in the process of renewal. The best way is to have short term employment contracts (They can be renewed only for a maximum of 3 years) or use an human resources management company. Employers pay of workers 6% of salaries as contribution for Social Security. As we slowly recover from the economic downturn, do you have any predictions for the next 12 months in terms of doing business in your jurisdiction? “Sao Tome e Principe is positioning itself as the hub to do business in the Central and West Africa. The expectations are high and the next month promise to be quite busy, as far as foreign investment is concerned. It is important to keep in mind that Central and West Africa is, potentially the most rich and populous region of Africa.”
Vu Dzung Partner
Suite 1502, The Metropolitan, 235 Dong Khoi Street, Distrct 1, Ho Chi Minh City, Vietnam. Vu Dzung is the Ho Chi Minh City-based partner of YKVN Lawyers, a law firm licensed to operate in Vietnam which focuses on banking and finance, capital markets and corporate matters. Vu Dzung usually advises clients on strategic and structural matters and corporate governance issues when it comes to company formations. The legal requirements applicable to the establishment of a company in Vietnam are governed by the Investment Law and the Enterprises Law. The Investment Law articulates the general principle of investor freedom in choosing investments. Investors (either local or foreign) can invest in any business sector of the Vietnamese economy, except in certain prohibited sectors. Foreigners investing in Vietnam for the first time must have an investment project and comply with procedures to obtain an investment certificate. If the investors choose to establish subsidiaries in Vietnam, they must look into the Enterprises Law for appropriate corporation forms. Most foreign invested enterprises are established as limited liability companies or joint stock companies. The Investment Law and the Enterprises Law were both introduced in 2005 with an intent to promote investments in Vietnam. The laws aim at creating a unified legal regime for investment activities of all participants in Vietnam’s economy on the basis of equality, fair competition, transparency and stability. Foreign investments are specifically encourages in a number of sectors and in remote geographic areas. Investment incentives, typically in the form of tax holidays, exemption of land use fees and others, may be available to varying degrees for encouraged investment projects (e.g., manufacture of hi-tech and bio-tech products, labor intensive industries, infrastructural developments, etc.)
How does ease of trading in your jurisdiction compare to other countries? “Vietnam’s accession to the WTO since January 11, 2007 is the most important milestone affecting Vietnam’s economic and trading development. Vietnam’s commitments to reduce and phase out tariffs under GATT regime, further open its markets to foreign investment and adhere to WTO standards in the areas of intellectual property protection and international commercial relations have marked a significant step in integrating Vietnam into global economy. The access to banking and credit facilities is equally open to both locals and foreign-invested companies. Borrowing from offshore entities, including parent companies, is subject to registration with the State Bank of Vietnam whilst borrowing from commercial banks operating in Vietnam is not required to be approved by any regulator.
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Tel: (84-8) 3822 3155 Email: dzung.vu@ykvn-law.com Web: www.ykvn-law.com
Currently, a uniform corporate income tax rate of 25.0% applies to all domestic and foreignowned companies in Vietnam. Investments in specific encouraged sectors or remote geographical areas may enjoy preferential tax rates of 10.0% and 20.0% for a period of 15 years and 10 years, respectively.”
What are the logistics of trading internationally and what support do you offer to your clients attempting to break into new markets? “We advise foreign investors seeking an opportunity to make investment in Vietnam on various legal matters, including deal structuring, contract drafting and negotiation, licensing and ongoing compliance. For Vietnamese clients, who are attempting to break into new markets, we provide them with legal advice as to structural and procedural matters and also help them to seek approvals from the local authorities.” What are the main factors to be considered when employing staff? “Vietnam’s labor law is traditionally known as prescriptive and includes wide ranging protections for employees. For instance, an employer cannot discretionally terminate an employment contract with an employee without going through lengthy procedures which include the involvement of the labor union and a long notification period (e.g., 30-45 working days). There are many cases whereby the employers’ decisions on immediate termination of employment were challenged by the employees in courts. In most of the cases, the courts’ judgments were in favor of the employees and the employers had to re-recruit the employees and/or pay them compensation for wrong termination.”
As we slowly recover from the economic downturn, do you have any predictions for the next 12 months in terms of doing business in your jurisdiction? “Where the developed countries are slowly recovering from the economic downturn, the recession of Vietnam’s economy appears not to have hit its bottom. Deteriorating economic conditions in Vietnam, including high inflation, currency depreciation and monetary conditions, will continue adversely affecting the business, financial conditions, results of operations and prospects of most, if not all, businesses in this country. The crisis however gives chance to M&A transactions. Many investors and experts believe that because the speculation has come down, companies are now valued at more realistic prices. Cost-wise, it is now more interesting for acquiring companies in Vietnam. The restructuring of commercial banks and state-owned enterprises is another recent phenomenon. In addition, domestic companies also have increasing demands for corporate restructure, private placement of shares, and seeking strategic partners.”
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A
cquisition International speaks to Ravshan I. Rakhmanov, partner at GRATA, a leading independent law firm based in the Central Asian and Caspian regions with more than 100 lawyers spread across 11 offices about Doing Business in Uzbekistan, Turkmenistan, Kyrgyzstan, Tajikistan, Georgia, Azerbaijan and Mongolia. Doing Business in Uzbekistan Uzbekistan is a former soviet state that declared its independence in September 1991. After 20 years of development and growth, by receiving much support and financing from the leading economies and banks of development, Uzbekistan has reached a recognized position in the world market for its dynamic economy and welcoming atmosphere for foreign investment and entrepreneurship. Although Uzbekistan law provides for a wide range of legal forms of commercial entities, as a matter of practice, private business and foreign investors mostly prefer the following forms: JSC or LLC due to failure of other forms to establish a comprehensive legal framework. Additionally, foreign companies may open a structural subdivision (a representative office) in Uzbekistan which is not authorized to conduct business operations. Doing Business in Mongolia After 20 years of development and growth, by receiving much support and financing from the leading economies and banks of development, Mongolia has now reached a recognized position in the world market for its mining, dynamic economy and its welcoming atmosphere for foreign investment and entrepreneurship. Mongolia offers the following competitive advantages to foreign investors: • Strategic location. Mongolia borders the resource-rich, vast Siberian region of Russia to the north and the rapidly emerging China to the south. It has easy access to these large international markets and important global players. • Close to Large Commodity Consumers: China - Siberia - Korea Japan • Close to the Northwest China Industrial Hub • Freight costs to most North Asian markets US$15-20/ Mt lower than competitors Extensive natural resources: Mongolia is blessed with rich mineral resources such as gold, copper, uranium, coal, molybdenum and oil and a great abundance of raw materials deriving from animals, especially, world renowned cashmere, wool and leather. Mongolia has unspoilt nature and a rich cultural and traditional heritage. World-Class Mineral Resources • Over 6000 Occurrences of 80+ Minerals • Copper – Coal – Iron – Zinc – Fluorspar • Some of the World’s Largest Deposits • Potential to Become a Major Global Commodities Player Doing Business in Azerbaijan After regaining its independence in 1991, Azerbaijan has been steadily improving its investment environment and now has become
Company Formations one of the most attractive destinations for foreign investment in the CIS. According to the 2011-2012 Global Competitiveness Index compiled by the World Economic Forum Azerbaijan’s economy is the 55th in the world and the most competitive in the CIS. Such results have been achieved due to steady economic and legal reforms undertaken by the Government of Azerbaijan. For instance, registration of companies is carried out through so called “single window” system where the applicant deals only with one registration authority. State registration of commercial legal entities commonly takes 3 business days and is not very expensive (the state duty ranges from USD 14 to USD 280). Generally, Azerbaijan offers very open national regime for foreign direct investment. Except limited restrictions in banking and insurance sectors, Azerbaijani law neither contains specific requirements regarding the size of share of a foreign company in Azerbaijani entity nor does it establish legal limitations regarding foreign founders’ jurisdiction. Due to simplicity of management and incorporation, most foreign companies prefer to establish a branch office or a limited liability company to carry out business activity in Azerbaijan. Unlike the limited liability company, which formally benefits from separation of management and limitation of liability, the branch office is not regarded as a legal entity and is in full ownership and managerial subordination of the parent company. The law does not stipulate any restrictions for foreign currency cash flows on cross-jurisdictional basis except for a requirement to provide local banks with underlying documents supporting the transfer. Doing Business in Georgia After 19 years of development and growth, since the collapse of the Soviet Union, Georgia has reached a recognized position in the world market for its dynamic economy and welcoming atmosphere for foreign investment and entrepreneurship. Georgia currently is 11 in the World Bank ranking for ease for doing business. As a matter of practice, private business and foreign investors mostly prefer the following legal forms of commercial entities in Georgia: a limited liability company (LLC) or a joint stock company (JSC) as these legal forms establish more comprehensive legal framework for operation in Georgia. Additionally, foreign companies may open a structural subdivision (representative office/branch) in Georgia, which is authorized to conduct business operations. To enhance Georgia’s Investment & Business Climate, the Government has dramatically overhauled its tax system. By implementing a liberal reform agenda, Georgia has simplified its processes and has reduced the number of taxes from 21 to only 6. These improvements have made Georgia one of the most attractive tax regimes globally. In 2008, Forbes Magazine designated Georgia as the “4th Least Tax-Burdened Country”. Furthermore, specialized tax rates and procedures have been adopted for the 3 Tax-Free Regimes such as Free-Industrial Zones
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Company Formations (FIZ), Free Warehouse Enterprise and International Finance Company Designation. Doing Business in Turkmenistan In general the process of company formation/registration in Turkmenistan may be time-consuming and complex due to a degree of the governmental regulation and involvement in this process. This suggests that relying on qualified local counseling is increasingly indispensible in ensuring a successful entry in and doing business at this promising market. Foreign companies may choose one of the following legal forms of their presence in Turkmenistan: • Establishing their Turkmen branches or representative offices; • Setting up a Turkmen subsidiary with foreign participation. Whereas a representative office performs preparatory and auxiliary activities in favor of its parental company and is not allowed to carry out commercial/entrepreneurial operations, a branch is entitled to perform all or part of the functions of its parent company and engage in most of income-generating business activities in Turkmenistan. Neither a representative office nor a branch has a status of legal personality in Turkmenistan. Under Turkmen law, a subsidiary of a foreign company can take the form of a business society or a joint stock society. Accordingly a company shall be considered to be a subsidiary of another company provided that more than 50% of its property or shares in charter capital are owned by the other company. Being a fully pledged legal entity a subsidiary represents the most functional form for conducting businesses in Turkmenistan. There are significant restrictions in Turkmenistan on the set-up and operation of foreign companies registered in tax heaven and offshore territories. Doing Business in Kyrgyzstan A company shall be deemed to be existing in Kyrgyzstan upon its registration as a legal entity. Major reforms were made in the legislation governing establishment of a company in 2008 and the new Law on State Registration of Legal Entities, Branch, and Representative Offices was passed in 2009. The new law introduced “one-stop shop” procedure providing for registration of a legal entity with one public authority without the need for additional registration with the Social Fund and Statistics Committee. The time for registration has been shortened down to three (3) business days and ten (10) business days – for financial and non-banking institutions, noncommercial organizations, branch and representative office of foreign and international organizations. The list of required documents has been shortened by half. The registration procedure of companies established by foreign equity investments is the same as the general registration procedure set for the Kyrgyzstan’s residents. Only the following additional documents shall be provided for the entities founded with the foreign equity investment: Extract from the Trade Register (Certificate of Incorporation) of the parent company/Head Office, regulation of the branch/representative office, Articles of Association of the parent company/Head Office.
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Another advantage is amount of the minimum authorized capital threshold. Its amount for an LLC is not defined by law and may be any amount determined by the founders. Minimum threshold amount of a JSC is approx US$2,222. The Hague Convention Abolishing the Requirement for Legalisation for Foreign Public Documents dated 1961 (the Apostille treaty) entered into force for Kyrgyzstan on July 31, 2011. Doing Business in the Republic of Tajikistan Legislation of the Republic of Tajikistan intends to facilitate business activities, therefore a number of legal acts aimed to protect investors as well as to establish a simplified system for registration of legal entities and individual entrepreneurs known as “one-stop shop” has been adopted. “One-stop shop” registration basically means that representatives of a newly established company shall submit their application documents to one state registration authority. The following documents are required to be submitted in order to register a company: 1. Application for registration; 2. Decision on establishment; 3. Copy of director’s passport or a power of attorney to the representative for submission of documents; 4. A copy of document on identity of each founder (individual), legal entity and a certificate from the tax authorities on absence of the outstanding tax obligations of the founder. The same requirements apply to establishment of a company with foreign shareholding, except for the requirement to submit additional documents such as extract from the commercial register of foreign country. As Tajikistan is not a party to the Hague Convention dated 1961 (the “Apostille treaty”) all official documents issued by the foreign public authorities shall be legalized. Legalization procedure takes approximately one month. Generally, Tajik laws provide equal rights to both domestic and foreign investors in respect of establishing the companies as well as carrying out their activities. Business activities, carried out by the investors are also subject to the special treatment and protection in the Republic of Tajikistan. Thus, pursuant to the Law of the Republic of Tajikistan on State Protection and Support of Entrepreneurship in Tajikistan investors may also be granted the tax benefits.
Ravshan I. Rakhmanov T: +998 71 120 4778 Rrakhmanov@gratanet.com www.gratanet.com 15, Istiqbol Street Tashkent 100047 Uzbekistan
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Investing and Trading in South Africa
Investing and Trading in
A
ccording to the World Economic Forum’s latest Global Competitiveness Index, South Africa has improved its ranking (after a disappointing fall last year) and is now the 50th most competitive region to do business (out of 142 countries surveyed). Bank of America Merrill Lynch has also named South Africa as one of the three global markets showing the most promising growth outlook over the next 10 years; with forecasted stronger-than-expected consumer spending and a hefty government stimulus package growth is predicted to be 4.2%. With overall improvements to regulation, more accountability by private institutions, greater investor protection, technological improvements and an increasingly sustainable business environment South Africa is the most competitive economy in the region and there are not only plenty of opportunities but trustworthy, reliable options for savvy investors. Acquisition International speaks to Chris Bull, Partner of Intellectual Property Commercial Department at Spoor & Fisher Spoor & Fisher is a specialist, full service international IP law firm, with special emphasis on providing services throughout Africa and the Middle East. “Our main offices are situated in South Africa and Jersey, Channel Islands. We were formed in 1920 and we have approximately 300 people on our staff supporting our intellectual property services practice.
South Africa
Spoor & Fisher specialises in all aspects of intellectual property law including patents, trade marks, copyright and registered designs, related litigation, commercial transactions, due diligence, intellectual property valuation and portfolio management. “The size, range and scope of the intellectual property services that we offer are our primary differentiator relative to our competitors in South Africa and Africa as a region. With specific reference to M&A transactions our IP Commercial Department is the largest department with the most extensive international experience within the team relative to our competitors in South Africa and Africa. Our head of department, Chris Bull, was recently recognized amongst the world’s leading 250 patent and technology licensing lawyers under a survey conducted by IAM in 20 major jurisdictions.
international growth projected to take place in emerging markets.
“Our estimates are that less than 2% of mergers and acquisitions in Africa consider the intellectual property that is being acquired in any detail. This is particularly concerning as significant premiums are often paid in M&A transactions based on the underlying intangible asset or intellectual property value. Intellectual property contributes only part of the overall intangible asset value, although in technology based companies or brand and retail companies it can form a significant portion of the overall value of a company. It is therefore surprising how little attention intellectual property receives in merger and acquisition activity, particularly in Africa.”
“Our clients are typically large corporate clients seeking specialist IP advice and services in Africa and the Middle East. In the main our clients are international clients based outside of Africa. “Many have described Africa as “the last great frontier”. We are seeing this reflected in a recent upsurge in intellectual property activity across Africa with increased attention on intellectual property filing and prosecution across Africa. In the last 12 months we have also seen unprecedented interest in international companies acquiring interests in African businesses to establish their presence in Africa. We expect this trend to continue, if not grow, through the next few years with the bulk of
Chris Bull c.bull@spoor.com www.spoor.com T: +27 83 2777 680
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Turkey: Defeating the Odds
Turkey:
Defeating the Odds S
Melis Aritman ALP Lale Giray Yildirim Aylin Aksun info@ayalaw.com www.ayalaw.com T: +90 212 2757476
Kore Şehitleri Cad. No:7/4, Zincirlikuyu, 34394 Merge rs & Sisli, Istanbul, Turkey Acq
uisitio ns
ome of the main economic objections to Turkey joining the EU centred on the relative underdevelopment of Turkey's economy compared to the economies of other EU members. However, Turkey has reported a strong start to 2011 and is recovering from the global economic crisis quicker than some of its neighbouring countries. Turkey is said to have achieved the second-highest number of M&A transactions in the first half of 2011 among Central and Southeast European countries. 130 M&A transactions were reported to have been completed during the first six months of the year worth $6.5 billion and representing a 117% increase when compared with the same period in 2010. The outlook for the remainder of 2011 for the Turkish M&A market remains overwhelmingly positive. Will this trend continue into 2012? Will Turkey continue to enjoy economic stability and growth or is the economy overheating? Acquisition International speaks to the experts… Melis Aritman is one of the Founding Partners of AYA Law Firm which is an Istanbul, Turkey based boutique law firm with extensive local knowledge and cross border transaction experience in Mergers & Acquisitions, financing, capital markets law and energy. Please provide a brief history of your firm and outline your past experience in Mergers & Acquisitions. Melis Aritman : “Formed by three partners formerly of the most reputable law firms in Turkey, members of AYA Law Firm are dedicated to providing timely, thorough and cost-effective Turkish legal advice with a global perspective. “Members of our Firm have advised in countless M&A transactions in Turkey over the past decade, from the banking and
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financial services, retail, healthcare and pharmaceuticals industries, to energy, telecommunications, industrial manufacturing, consumer goods, information technology, logistics and defense sectors.” What gives you an advantage over local and global competitors in your areas of expertise? Melis Aritman: “The founders of AYA Law Firm have determined one principal objective: ascertaining for each client effective and efficient legal solutions by providing constant senior-attorney attention. All attorneys working for AYA Law Firm use their extensive transactional experience in providing thorough legal advice to clients while senior attorneys maintain a very handson approach in each transaction in which the Firm advises. Which Turkish sectors are attracting foreign investors? Please use examples to illustrate your answer. Melis Aritman: “The banking and financial services sector was one of the main sectors preferred by foreign investors entering Turkey prior to the international financial crisis. Following the financial crisis, new acquisitions of Turkish banks by international banks were drastically reduced. Moreover, some foreign investors which had acquired shares in Turkish banks started to sell their stakes. In 2011, for instance, GE Capital sold its stake in Turkiye Garanti Bankasi A.S. to the Spanish Bank BBVA and EFG Eurobank announced its intention to sell its stake in Eurobank Tekfen A.S.. The sectors in which foreign investors are more recently showing interest include healthcare, pharmaceuticals, retail and energy.” The outlook for the remainder of 2011 for the Turkish M&A market remains positive, do you think this trend will continue into 2012 or is the economy
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Turkey: Defeating the Odds overheating? Senol Akture:“While the economies of Central and South European countries stutter along with near-zero growth, Turkish output jumped by 10.2 percent in the first half of this year -- faster even than China. Turkey has a large, young population -- two-thirds of its 73 million people are under 30 – and a burgeoning middle class due to consistent government policies followed since 2003. Particularly in light of the travails of its nearneighbours in the eurozone, Turkey looks like an increasingly good bet. The Turkish economy looks set for a slowdown next year-- however, it's hard to ignore those demographics. Turkey occupies an enviable place in the post-Arab Spring world: it serves as a model of how a stable, democratic and financially strong Muslim country can prosper.
Its businesses can surely become regional powerhouses in the reconstructedMiddle East -- which presents great opportunities for M&A in 2012 and onwards.“ What are your predictions for the next 12 months regarding your specialist area in Turkey? Melis Aritman: Assuming the recent international economic fluctuations are short term fluctuations, we expect continued interest by international investors in the Turkish M&A market in the next 12 months. In our opinion, international investors may be interested in the anticipated privatizations in electricity generation and motorways and bridges, as well as transactions involving the exit strategies of international private equity companies in their existing investments in Turkey. The example of the sale by international private
Teleco
IT & mmun icatio ns Law
equity funds TPG Capital and Actera of shares in a Turkish distiller, MEY Icki, to Diageo Plc for US$ 2.1 bn, which took place in the first half of 2011 is likely, in our view, to be followed by similar transactions in other sectors and industries.” “With respect to privatization, although the earlier tenders for privatisations in the energy sector garnered very high bids and discouraged foreign investors, the fact that certain tenders were cancelled for failure of the winning bidder to actualize the payments of the bids and the eventual cancellation of the relevant tenders set an example. Accordingly, more reasonable bids are anticipated in the upcoming electricity generation and natural gas distribution tenders, presumably once again peaking the interests of foreign investors.”
Haluk Can Özel
Managing Partner
Büyükdere Cad. No: 195 Büyükdere Plaza 6, 34394 Levent, Istanbul, Turkey
Tel: +90 (212) 324 2710 Email: hcozel@ozel.av.tr Web: www.ozel.av.tr Özel & Özel and its experienced staff of lawyers represent clients from various sectors including energy and infrastructure; real estate; banking and finance; private equity and venture capital; telecommunications; IT and high technology; automotive; hotels and tourism; consumer goods; luxury goods; and publicly and privately owned companies engaged in a wide range of manufacturing. The Istanbul office provides legal services to businesses in relation to capital markets, financings, project financings, cross-border mergers and acquisitions, joint ventures, privatisations, PPP (Public Private Partnership), arbitration and dispute resolution, intellectual property issues. Haluk Can Özel. Managing Partner, Ozel & Ozel Attorneys at Law. What factors have driven Turkey to achieve the second-highest number of M&A transactions in the first half of 2011 among Central and Southeast European countries? Haluk Can Özel.: “Turkey is uniquely-positioned to capitalize not only on its large domestic market but also on its strategical geographic location in order to attract investors from the West as well as from the Far and Middle East. Despite the turmoil in the global economy and the general perception as to recession, the spectacular recovery of the Turkish economy and the stability is likely to lead to a rise in the number of deals in 2011. The recent increase in Turkey’s ratings by the international agencies is an important sign for Turkish economy where major economies are suffering decrease in the credit ratings. Not only the private equity funds, but also more large and mid-sized European companies are shifting their focus to Turkey and see it as a potential source for growth. A typical example is Czech energy firm Energopro, which acquired power generation companies for over EUR 300 million in Turkey last year. Remarkable growth rates in the first and second quarters of 2011 will stimulate investments in the energy sector as the supply scarcely meets the demand. Of course, the government’s large scale approach to privatisation is also a strong force that will give a decisive impetus to M&A activity.”
The outlook for the remainder of 2011 for the Turkish M&A market remains positive, do you think this trend will continue into 2012 or is the economy overheating? Haluk Can Özel.: “The general outlook for the Turkish M&A market is positive. The vast majority of business executives expect Turkey to see increased M&A activity over the next 12 month period, fuelled by the country’s extensive privatisation program, favourable regulatory changes including a reformed Turkish Commercial Code (TCC) and an abundance of attractive targets. The expectations of recession in major economies may attract investors to Turkish economy which is capable to maintain current growth rate due to strong position of the Turkish banking system.” With Turkish economy strengthening day by day do you feel that this is the right time for the country to join the EU? Haluk Can Özel.: “Following the crisis in Greece and expected spread of the crisis to the other major economies,monetary union faces some threats. Turkey, unusually strong in this global crisis, has become a target for EU as well. Recent polls with respect to Turkey’s full membership to EU indicate increasing support by the citizens of various EU member states.”
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What's in a Name?
What's in a Name? M any of the world’s most successful companies rely on their trade marks to make them visible in the marketplace. The best trade marks are instantly recognizable and conjure up in the minds of existing or potential customers things like quality dependability, or at the very least the source of the goods or services on offer.
Companies spend copious amounts of time and money developing trade marks and creating widespread demand; they are extremely valuable assets and they pose difficult valuation problems when buying and selling a business. Acquisition International speaks to James Robey a partner of Wilson Gunn Patent & Trade Mark Attorneys. Wilson Gunn has offices in the UK’s foremost commercial centres of London, Manchester and Birmingham and has a worldwide network of international associates. Established in 1864, Wilson Gunn has long been at the forefront of trade mark law in the UK. James Robey has been with the firm since 1996 and his practice includes managing global trade marks portfolios for major brand owners. The firm’s trade mark clients include Manchester United, Polo Ralph Lauren, Mölnlycke Health Care, Zurich Insurance, Chivas Brothers (Pernod Ricard) and Fujifilm. “We deal in all aspects of trade mark law, in particular registration and maintenance of trade mark rights around the world. We are active across all industry sectors, with particular expertise in the sports and apparel, food and beverages, health care, and retail sectors.” “We deliver commercially-focussed advice in a user-friendly manner. We see intellectual property very much as a tool which can be used in a variety of ways to obtain a commercial advantage and aim to ensure that our clients are obtaining the maximum advantage from their rights. Intellectual property law is complex. We deal with the complexity leaving our clients with clear business decisions to make, saving them time and allowing them to get on with running their business.” James, who is a typical client? “There is no typical Wilson Gunn client! We advise a range of different businesses, from start-ups to global corporations. Whilst our client base is largely made up of UK companies, we also have many overseas clients. We are frequently engaged by solicitors, accountants and other professional advisers to assist their clients in our capacity as intellectual property specialists.” What is the process of developing and registering a trademark? “When a client has selected one or more possible new trade marks, the first step is to conduct clearance searches to determine if they are available to use and register, or at least to identify possible risks associated with use of a particular mark. When a trade mark has been decided on, a strategy can be developed to apply for registration of the mark in the territories of interest and for the goods and/or services of interest to the client.”
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How does a company protect its brand from third party infringement? “Registering trade marks is usually the best way to protect a brand. A brand image may comprise a number of different individually protectable trade marks, such as words, logos, strap lines and the use of colours. Additionally, design registration can be useful in protecting packaging design, and other ‘get up’.”
How is brand equity achieved and what methods do you use to determine its worth? “Brand equity arises as a result of use of a brand, in particular through well executed brand-led marketing. There are a variety of ways of valuing brands. Essentially, one is looking to ascertain the extra value a brand adds to equivalent unbranded goods or services.” What does a Trademark adviser bring to the deal table? “We bring a wealth of knowledge and experience of trade marks as property rights. We play a key role in due diligence, including checking ownership and validity of trade marks and other intellectual property rights, identifying any gaps in protection and investigating possible third party conflicts, all of which may impact significantly on the value of the trade marks and other intellectual property rights. Indeed, there have been deals where issues flagged by Wilson Gunn at the due diligence stage have led to a renegotiation on price. Post-completion, we manage the transfer of the acquired rights, address any deficiencies identified in due diligence, and maintain the registrations going forward. We have advised on a number of recent deals, including acquisitions involving major sportswear and fashion brands. As cross border deals increase and the world’s markets intermingle through online mediums, what are the major trademark pitfalls that a company must address when implementing their trademark across international boundaries? “Increasing use of the internet brings new challenges, in particular mapping the territorial nature of trade mark rights onto the inherently global nature of the internet, but does not alter the underlying fundamentals of trade mark infringement. Businesses should therefore continue to ensure that they have appropriate trade mark protection covering the right products and services in the right territories. We always recommend a regular portfolio review to ensure that protection in place meets current business needs.”
James Robey james.robey@wilsongunn.com www.wilsongunn.com T: +44(0)161 827 9400 5th Floor, Blackfriars House, The Parsonage, Manchester M3 2JA, UK.
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Deal Diary
T
his month, F&C Investments has announced the first close of F&C Climate Opportunity Partners LP, a new private equity fund of funds focusing on a climate change investment theme. The fund has so far attracted €30 million from three institutional investors. This new fund offers investors access to investment opportunities arising from global efforts to tackle the causes and impacts of climate change. Policies to cut greenhouse gas emissions, and to adapt to the worst impacts of the changing climate, are having a transformational effect on the global economy, providing a range of opportunities for companies providing climate change solutions. Many of these companies are private and will require private equity backing to capitalise on their climate change business opportunity. The fund is structured as a private equity fund of funds, giving investors a unique chance to gain financially, with reduced risk through diversification, while at the same time addressing the world’s foremost environmental challenge. F&C Climate Opportunity Partners LP will commit to a diversified range of private equity funds and project-focused funds, as well as direct investments, across the entire climate change opportunity set as defined by nine internally identified themes. The new fund builds on the experience of F&C’s Edinburgh-based private equity funds team, headed by Hamish Mair. The team has investments in 98 funds managed by 65 different private equity managers. A significant proportion of these are with emerging private equity managers. With over 70 years of combined investment experience and a top quartile track record, the team currently manages around £500 million in 3 private equity funds of funds. F&C Climate Opportunity Partners’ strategy will benefit not only from the team’s considerable experience in private equity fund investment, in particular in backing emerging managers, but also from the support and expertise of F&C’s Governance & Sustainable Investment (‘GSI’) team which has been involved at the leading
edge of climate change themed investments through the development and monitoring of the nine investment themes: Alternative Energy, Energy Efficiency, Sustainable Mobility, Waste, Advanced Materials, Forestry & Agriculture, Water, Acclimatisation and Supporting Services. The GSI team, headed by Karina Litvack and supported by former Stern Review climate change expert Vicki Bakhshi, will act as an in-house advisor to the fund. F&C will invest at least 70% of the fund in private equity funds offering exposure to climate change themes. Up to 30% may be invested in renewable and sustainable project-focused funds. The majority of investment is expected to be through funds although direct co-investments may represent up to 30% of the total value of the fund. The portfolio will also be diversified by management group, industry, stage, theme and geography. Given the relative immaturity of the investment universe it is likely that there will be a significant proportion of the fund invested with emerging managers. It is anticipated that the portfolio will consist of 12 to 15 funds and be complemented by selective co-investment directly into private companies. The portfolio of co-investments will be constructed to enhance returns whilst maintaining diversification. “We believe private equity represents an attractive way to gain exposure to the climate change investment niche. As an investment theme, climate change is universal in relevance, unprecedented in scale and sustained in longevity. F&C is well positioned to offer this new investment vehicle that combines our experience in private equity investment and our in-house expertise in climate change themed investment” said Hamish Mair, Head of Private Equity Funds at F&C. The fund has been set up as a Scottish Limited Partnership. Management fees will be calculated as 1.5% of total commitments.
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Deal Index
DEAL INDEX All Nippon Airways and Air Asia Joint Venture ALOS Bank of Qatar Axel T端cks GmbH Captain Tortue Chauffage Declercq Connections Education Denny Mushrooms Casetech EBS Ebuzzing Elstat EmPower Research Etanco Fosfatar Mineracao Ltda German Biogas Park/ Hypo Alpe-Adria
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60 60 60 61 61 61 62 62 62 63 63 63 64 64 64 65
Groupe Eminence GV Gold IN tIME Express Logistik Intersig f LabLife Loquendo MAXAM NRAI Photonis Ridna Marka Group Tuna Park shopping centre Verdande Energy Verifimmo Volksbank International AG VBI WEMAS Absperrtechnik
66 66 66 67 67 67 68 68 68 69 69 69 65 59 65
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Sberbank's acquisition of Volksbank International
berbank of Russia (“Sberbank”) and the shareholders of Volksbank International AG (“VBI”) – Österreichische Volksbanken-AG (“VBAG”), BPCE S.A. (“BPCE”), DZ BANK AG (“DZ BANK”) and WGZ BANK AG (“WGZ BANK”) – have signed a definitive agreement for the acquisition of 100% of VBI by Sberbank. The transaction perimeter does not include VB Romania, VBI’s banking subsidiary in Romania. The agreed deal price will be 1.0x VBI book value (excluding VB Romania) of €585mln, and potential additional consideration of up to €645mln depending on business performance of VBI in 2011. The closing of the transaction is subject to satisfaction of various conditions precedent, including the carve-out of VB Romania. At closing, Sberbank will also assume from VBAG, DZ BANK, WGZ BANK and BPCE up to €2.5 billion of shareholder refinancing; also at closing, VBAG or a group of banks led by VBAG will provide Sberbank with five-year funding in an amount of €500 mln. This landmark transaction represents Sberbank’s first acquisition outside the CIS and is the latest step in its transformation from a large domestic financial institution to a leading international bank. VBI excluding VB Romania has 291 branches and over 600,000 clients. VBI’s subsidiaries are within the top 10 financial institutions in Bosnia and Herzegovina, Croatia, Czech Republic, and Slovakia, and within the top 15 financial institutions in Hungary, Serbia and Slovenia. It also has a presence in Ukraine and a banking license in Austria. VBI’s total assets excluding Romania reached €9.4 bln as of June 30th, 2011(1).
Sberbank's Acquisition of Volksbank International Financial Advisers to the Buyer
Troika Financial Advisers to the Sellers
“
Deal Diary
This is an ambitious cross-border banking transaction involving a target group operating in 9 CEE countries under an Austrian bank as holding company, and with several nationalities involved as parties (Russian purchaser, Austrian, French and German sellers). The parties came together on a number of challenging issues, and signed and announced the transaction against an increasingly unfavorable operating and market environment for banks in September 2011.
”
Ithuba Capital served as financial adviser to 3 of the 4 selling
shareholders, namely VBAG, DZ BANK and WGZ BANK (holding
together 75.5% of the share capital of VBI). With respect to VBAG
this formed part of Ithuba Capital’s comprehensive mandate to advise in the context of the repositioning and restructuring of
VBAG in the aftermath of the financial crisis and after the receipt
by VBAG in April 2009 of € 1 billion in state aid by the Republic of
“
Austria. Ithuba Capital’s team of 7 on the transaction was headed
by Willi Hemetsberger, its President, and Thomas Mayer, a managing director and the head of its corporate finance practice.
”
The transaction is a sign of the times, marking the first major financial institutions acquisition into the CEE region from the East rather than from the West Stefan Goetz, Global Head of Financial Institutions led the Societe
Generale team acting on behalf of Sberbank, together with his
colleague Stanislas Lecat. Societe Generale advised Sberbank
together with JPMorgan, led by Walter Schuster and Emre
Yildirim. Sberbank was also co-advised by its investment
banking division Troika Capital,
“
Freshfields acted as legal counsel to Sberbank, led by Willibald Plesser and
Farid Sigari.
Schönherr acted as legal advisor to the sellers VBAG, DZ BANK and WGZ BANK (representing 75.5% of VBI). Bredin Prat represented BPCE (24.5% selling shareholder of VBI) reinforcing a very long standing relationship with BPCE which they regularly represent on M&A transactions, as well as tax, antitrust and litigation matters.
”
Barthélémy Courteault, partner in the corporate department of Bredin Prat.
Legal Adviser to the Buyer
Legal Advisers to the Sellers
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Deal Diary
All Nippon and Air Asia JV Japan's All Nippon Airways and budget carrier Air Asia have agreed a joint venture to serve the Japanese market. The deal marks the first budget carrier to be based at Tokyo's Narita International Airport and is expected begin service in August 2012. Since foreign investments into the aviation business in Japan are heavily regulated and low-cost carriers are a relatively new concept introduced to the Japanese market, the deal involved a number of interesting and innovative elements. TMI Associates and Stephenson
Harwood jointly advised their client
AirAsia, the world’s premier low-cost airline, in establishing a new joint
venture with ANA Group, Japan’s largest airline, and forming the first low-cost carrier based at Narita
International Airport, near Tokyo. The TMI team was lead by corporate law partners Kunio Namekata and
Masaya Hirano, advising on Japanese legal and regulatory aspects of the transaction.
Spigraph acquires Alos Group
French Group Spigraph has acquired Alos Group, a Swiss and German value added reseller specialized in document capture and management solutions (software, hardware and services) for professional use.
Barwa Bank has acquired the retail banking business of Al Yusr, which is the Islamic Banking Window of International Bank of Qatar (IBQ).
Headquartered in Lyon, with offices in France, Scandinavia and Northern Africa, Spigraph is a leading player in the French market for document capture and a strong challenger on a European scale. Spigraph currently has 110 employees and is a fast growing company (25% internal growth rate in 2010) implementing a build up strategy. Backed by BNP Paribas Private Equity, Spigraph Group together with Alos management took over Alos Group from the founders’ families to give birth to the second largest player in the European market.
Under the terms of the agreement, the sale includes the Al Yusr retail loans and deposit account portfolios; the two branches at Al Sadd and Al Rayyan, and the transfer of Al Yusr employees to Barwa Bank.
Michel Degryck led the Capital Partner team providing financial advice to the purchaser, he commented on the deal: “Regarding Spigraph, I would say that I am very impressed by the very high level of commitment and capacity to deliver of both Spigraph and Alos teams, most of the key managers being shareholders of the Group. By acquiring Alos, Spigraph is structuring the European market and becomes the high-quality, flexible and pragmatic European partner expected by OEMS to implement their growth strategy.” Urs Niederberger and Christoph Löslein, Partners at Board Advisors AG, managed the transaction on behalf of the seller, the Kopp family.
All Nippon Airways-AirAsia Joint Venture
Joint Legal Advisers
Barwa Bank Acquisition of Al Yusr
Spigraph Acquisition Of Alos Group Financial Adviser
Legal Adviser
It is the first deal of its kind to be executed before the regulatory deadline of 31 Dec 2011.
“This was a very good transaction for Barwa Bank: we have been able to accelerate our organic growth objectives in terms of assets, liabilities, customer base and network coverage. The seller’s retail positioning and segment focus are entirely consistent with ours and, in a sense, we were the “natural” acquirer of the business.” “The principal challenges were in the acquisition of a business that was not a separate legal entity, obtaining shariah board approval and in agreeing and documenting robust transfer and transitional mechanisms. Steve Troop, Chief Executive Officer led the Barwa Bank team
We witnessed a number of challenges, in particular pertaining to valuation, transaction structuring and agreements on the key terms of the deal. Also of note were a number of legal and shariah related issues, in particular the carveout of the Islamic portfolio and subsequent transfer of assets and liabilities, as the Al Yusr business was not a separate legal entity. There were at least five rounds of negotiations though persistence as to the detail allowed us to close within a very tight schedule. Amit Tripathy, Director, Investment Banking led The First Investor (TFI) team.
Acquisition of
Financial Adviser to the Purchaser
Financial Adviser to the Vendor Financial Due Diligence Providers
Financial Due Diligence Provider Legal Advisor to the Purchaser
Financial Adviser to the Vendor
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Legal Adviser to the Vendor
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Deal Diary
Axel Tücks GmbH acquired
Marwyn Management Partners plc (“MMP”) subsidiary Marwyn European Transport plc (“MET”) has agreed to acquire all of the issued share capital of Axel Tücks GmbH (“Tücks”), the German bus operator, together with related assets and operations, for an initial consideration of €3.75m payable in cash.
Tücks currently operates more than 100 buses within the Rhine-Ruhr region of South West Germany, incorporating a diversified mix of school buses, social services transport and local public buses on behalf of a number of local authorities. In the year ended 31 December 2010, Tücks generated unaudited revenue of approximately €5.0m and EBITDA (prepared consistently with MET plc’s accounting policies) of €0.9m. Tücks’s current management team will remain in place following completion of the acquisition. Additional consideration payments of up to €1.25m in cash may become payable subject to the achievement of specific financial performance targets.
Deloitte provided financial and tax due diligence services to Marwyn European Transport, with the work being led by David Krüger (partner) and Chris Fisher (director) from the Munich Transaction Services team. Taxation services were led by Marcus Roth (partner). Deloitte leveraged its deep experience in the German transport sector to help ensure that Marwyn obtained a comprehensive understanding of the key business drivers and financial metrics within the target. Deloitte worked pragmatically with the seller’s management team to ensure Marwyn’s due diligence objectives were fully and efficiently met.
Marwyn European Transport plc Acquisition of Axel Tücks GmbH Legal Adviser to the Purchaser Financial Adviser to the Purchaser
Acquisition of Captain Tortue Group
L Capital has signed a definitive agreement to proceed with the acquisition of a 60% stake in Captain Tortue Group. L Capital becomes majority shareholder, along with the founders and managers of Captain Tortue Group. The management team of the Group, headed by M. Philippe Jacquelinet and Mrs. Lilian Jacquelinet remains in place to pursue the development strategy of the company, started a couple of years ago, and to accelerate its expansion. Captain Tortue Group shows high ambitions in the mid-term, targeting to double the sales in the next 5 years. The Group plans to strengthen its presence abroad through the development of its activities in Spain, Great-Britain and Switzerland as well as through the set-up of new branches in Europe. Captain Tortue Group also plans to continue its strong expansion on the French market by constantly increasing the number of its sales representatives, developing its main brands Capt’n Tortue and Miss Captain, boosting its recently launched and high potential brands Lady Captain and Java Lingerie and diversifying its business through targeted acquisitions or partnerships on other adjacent markets. Advention Business Partners’ team led by Alban Neveux, the Managing Director alongside Manager Nicholas Veg, conducted for L Capital the strategic review of Captain Tortue Group.
L Capital Acquisition of a 60% stake in Captain Tortue Group Debt Provider
SPIE Belgium has taken over HVAC service provider, which is based in Izegem in Belgium’s West Flanders province. Founded in 1938, Chauffage Declercq designs and builds air conditioning systems for the commercial and industrial sector for its wide-ranging portfolio of customers in variety of fields including hospitals, healthcare centres, schools and financial institutions. The company’s sales amount to about €12 million and it employs 70 people. “By acquiring Chauffage Declercq, SPIE Belgium has reinforced its geographic positioning in the north of Belgium. This is a significant step which reflects our determination to secure a position as a major player in HVAC throughout the country. We know we can rely on the expertise, the commitment and the strength of the existing management and personnel to achieve our goals,” says Johan Dekempe, managing director of SPIE Belgium. Baker Tilly Belgium provided legal
and financial advice to the vendor on the deal , with Anne Roucourt
heading the team.
www.bakertillybelgium.be
a.roucourt@bakertillybelgium.be
SPIE Belgium Acquisition of Chauffage Declercq Legal Adviser to the Purchaser
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SPIE Belgium acquires Chauffage Declercq
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Connections Education acquired Pearson, the world’s leading learning company, has acquired Connections Education from an investor group led by Apollo Management, L.P. for $400m in cash. Through its Connections Academy business, the company operates online or ‘virtual’ public schools in 21 states in the US—serving more than 40,000 students in the current school year. These virtual charter schools are accredited and funded by the relevant state and are free to parents and students who choose a virtual school in place of a traditional public institution or other schooling options. Connections Education has produced revenue growth of more than 30% in each of the past three years and expects to generate revenues of approximately $190m in 2011. Pearson expects the acquisition to enhance adjusted earnings per share from 2012, its first full year, including integration costs, and to generate a return on invested capital above Pearson’s weighted average cost of capital from 2013. The transaction is subject to a Hart-ScottRodino review. Based in Baltimore, Maryland, Connections Education is headed by cofounder Barbara Dreyer. She will stay on as CEO of Connections Education and as a senior executive at Pearson.
Pearson Acquisition Of Connections Education Legal Adviser to Pearson
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Consortium concludes Denny Mushrooms acquisition
A consortium consisting of key management members, RMB Ventures and Pan-African Private Equity Fund 1, has concluded a management buyout of Denny Mushrooms, Africa's leading producer and marketer of fresh mushrooms. RMB Ventures is the on-balance-sheet private equity arm of FirstRand Ltd. Pan-African Private Equity Fund 1 is owned by Pan-African Capital Holdings and invests in later-stage, scalable businesses with the potential to deliver superior longer-term returns. RMB, a division of FirstRand Bank, acted as senior debt provider and corporate finance advisor to the consortium. RMB Ventures. Craig Miller (Partner) and Stephan Zaaiman (Associate Director) of Ernst & Young assisted RMB Private Equity with the provision of both tax structuring advice and tax due diligence services relating to RMB’s participation in the acquisition of the Denny Mushrooms group. The assignment was, inter alia, complicated by various amendments to the tax legislation ultimately leading to interaction with the revenue authorities who approved the deduction of funding costs associated with the transaction.
RMB Ventures and Pan-African Private Equity Fund 1 Acquisition of Denny Mushrooms Debt Provider
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Equita acquires CaseTech
Equita has acquired sausage casing producer CaseTech Group from industrial holding Adcuram Group. Adcuram acquired the CaseTech Group in 2008 as part of acarve-out of The Dow Chemical Company.CaseTech produces sausage casings under the "Walsroder"brand and provides technology solutions for the productionand manufacture of sausage and meat products. Itsproduction sites are located in Bomlitz, Poland, and in the US. PricewaterhouseCoopers AG acted as commercial due diligence provider on the deal. To assure a high quality analysis, all interviews were conducted by native speakers with long-time experience in the meat processing industry. maconda, which is in the meantime one of the most active German providers for commercial due diligences, applied a mixed teamstructure with business analysts, meat processing experts, regional market insiders and an expert for sausage sales. maconda provided commercial vendor due diligence
on behalf of Adcuram on the deal. Rainer Mayer,
maconda’s project manager led the team.
R.Mayer@maconda.de
Equita Acquisition of CaseTech Debt Providers
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Ogone Payment Services Acquires EBS Ogone Payment Services, one of Europe’s leading payment platforms, has entered the rapidly expanding Indian payments market with the full acquisition of EBS (E-Billing Solutions), the second largest online payment provider in India. Financial terms of the agreement were not disclosed. This represents Ogone’s first acquisition and its first move outside the European market. EBS will continue to operate under its current management structure and market approach and will be responsible for running operations and the continued expansion of the company. EBS also retains its name and brand in the Indian market. The EBS board is supported by 3 members of the Ogone Payment Services Board. Ogone were advised on the deal by Brian, Garnier & Co, an independent pan-European investment bank focused on growth companies. EBS, meanwhile were advised by growth partnership firm IndigoEdge.
Gimv invests USD 14.5 million in Ebuzzing
Gimv, one of the main investment companies in Europe, is spearheading the second financing round to the tune of USD 25 million in Ebuzzing (www.ebuzzing.com ), formerly Wikio Group, the reference social media group in Europe. “Ebuzzing, headed by Pierre Chappaz,has an extremely experienced and broad management team, composed of successful serial entrepreneurs and experience managers. Our aim was to conduct an HR and organizational due diligence, in order to ensure that all internal conditions are met for the group to fulfill the company’s very aggressive forecast organic and external growth in the coming years. Points assessed included the alignment between Ebuzzing’s organisation and its strategy; the team’s dynamics; Measure the value created by the previous acquisitions; the capacity of Ebuzzing to carry out further acquisitions.” Neovian Partners represented GIMV with whom we have worked previously in Strategic Due Diligences and HR Due Diligences (Private Outlet in 2010). Annick Kervella, Partner led the team. Amparo SARL acted as M&A representative on behalf of WIKIO SA on the deal.
Ogone Payment Services Acquisition of EBS Legal Adviser to the Purchaser
annick.kervella@neovianpartners.com
Gimv invests USD 14.5 million in Ebuzzing Fundraising Adviser
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Elstat Investment
Environmental Technologies Fund has completed a growth capital investment into Elstat, the world's leading provider of energy management devices for commercial beverage coolers. The financing will support the company's further global expansion. Elstat commercializes intelligent refrigeration controllers for use in commercial refrigerators such as display cases and refrigerated vending machines. Elstat devices use an intelligent learning system to deliver energy savings of up to 60% at the same time maximising the consumer experience of a cold beverage. Its products have already been installed in more than 3 million coolers worldwide. The challenge was to understand the status of a key patent to which Elstat held a licence, and how the patent and licence terms mapped onto the Elstat business plan. Coller IP delivered a combination of professional patent attorney claims review, clarification of the technology differentiators and a commercial review of the terms of relevant licence agreements. Jim Asher (Chief Operations Officer) led the team in Coller IP that represented
Environmental Technologies Fund. Coller IP had worked with Fabrice
Bienfait/ETF on an IP review in a previous deal.
jim.asher@collerip.com
Environmental Technologies Fund Investment in Elstat Legal Adviser
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Genpact to Acquire EmPower Research
Genpact Limited (NYSE: G), a global leader in business process and technology management, has signed a definitive agreement to acquire EmPower Research, an integrated media and business research company with strong capabilities in social media research, media monitoring and measurement. “There were international tax and compensation structuring issues that needed to be addressed. We also had to balance SEC requirements, US tax requirements, and India tax requirements, plus legal issues in addition to the challenges of communicating in a timely manner across several time zones. We came up with creative concepts in order to change the original letter of intent without changing the underlying economics of the business transaction.” EisnerAmper represented the seller, EmPower Research on the deal. Carolyn Dolci, Tax Partner, and Jeffrey Bacsik, Audit Partner led the team. Richard Sackin, International Tax Partner, and Jim Alajbegu, International Tax Partner, were brought in due to their international tax experience, which was required for this transaction.
richard.sackin@eisneramper.com
“The Promoters having diversified residential statuses, divestment by each of the promoters entailed different tax and regulatory implications under respective jurisdictional regulations. “BMR worked with other tax and legal consultants appointed by the parties to understand the tax and regulatory implications for each of the Promoters in the US and in India and assisted the parties in arriving at an optimal structure for the subject divestment and payouts to the employees.”
BMR Advisors acted on behalf of the promoters of EmPower LLC on the deal. Kalpesh Maroo, Partner, Direct tax supported by Manoj N Kumar, Associate Director, Direct tax. kalpesh.maroo@bmradvisors.com
Genpact Acquisition of EmPower Research
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Etanco Acquisition
IK Investment Partners (“IK”) has signed an agreement to sell Etanco, the French market leader in the design, manufacturing and distribution of building fasteners and fixing systems to 3i and funds managed by 3i.
The management team remains committed to the business, with CEO Ronan Lebraut re-investing alongside 3i and retaining a 25% stake in the company. Financial terms of the transaction were not disclosed.
3i’s investment in Etanco will provide a platform to accelerate the company’s growth strategy and strengthen its market position, through consolidation of the market as well as developing new product ranges and increasing its customer base. 3i has extensive experience investing in the industrial sector and its global network will enhance Etanco’s ability to access new geographies. “There were two challenges which might have potentially jeopardized the deal: On the one hand, the balance between the divergent interests of IK and the management team. I knew Ronan Lebraut for many years, and our relations were really trustfully built. This has been of first importance in crucial moments. “On the other hand, a preemptive process requires : rapidity, confidentiality, pressure on the bidder, sense of the momentum. Thanks to a good cooperation between Rothschild and Crédit Suisse, we have been able to manage that positively. “
Rothschild acted on behalf of IK investment Partners (IK) on the disposal of Etanco.Rothschild has a longtime relationship in IK’s major past transactions (Cerba, Agronova, Ceva Sante, Animale, Consolis etc…), Also in March 2008, Rothschild acted as financial advisor to IK on the acquisition of Etanco. Richard Thil led the team alongside Romain Nourtier, managing Director and assistant director, Arnaud Petit. Advention Business Partners’ team led by Alban Neveux, the Managing Director alongside Vice President Ciril Faia, conducted for 3i the strategic review of Etanco in its key markets (France, Italy, Belgium and Poland).
3i and funds managed by 3i Acquisition of Etanco Debt Providers
FosfatarMineração acquired Rio Verde Minerals Development Corp (“Rio Verde”) completed the acquisition of a 100% operating interest in FosfatarMineração Ltda. ("Fosfatar") and its portfolio of phosphate assets in the North and Northeastern regions of Brazil. It has been reported that the deal will add immediate value to the Company by moving it from pure explorer to producer status in the short term, and by generating near-term cash flow to be used to self-fund its exploration and development plans. As counsel to Rio Verde, we provided advice on the structure of the transaction, prepared the definitive acquisition agreement and other transaction documents and worked with regulatory authorities in Canada and Brazil to ensure timely approval and completion of the transaction.” HeenanBlaikie LLP acted as lead counsel to Rio Verde in the transaction, with a team that was led by James McVicar and also included Steven Molnar and Frederico Marques.
As counsel to the Vendors, we provided advice since the beginning of negotiation, preparing the memorandum of understanding, assisting on the due diligences, advising in taxation and corporate law, reviewing and negotiating all other documents until the conclusion of the transaction. We have a long-standing relationship with the Vendors, including other similar transactions consulting Valfredo Bessa Advogados acted as lead counsel to the Vendors in the acquisition of Fosfatar, with a team that was led by Marcio Bessa and Grazziano Ceará (Partners).
Rio Verde Minerals Development Corp Acquisition of FosfatarMineração
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agri.capital Takes over Biogas Park from Hypo Alpe Adria
agri.capital GmbH has acquired Biogas Alpe Adria GmbH Germany. The plant portfolio, which previously belonged to Hypo Alpe Adria comprises of eight biogas plants in the Altmark in SaxonyAnhalt. The biogas park has a total electric connected load of 4.8 megawatts. The plants, erected in 2006 and 2007, will run exclusively on renewable raw materials from the region.
Verifimmo SA LBO An investor group, comprised of Venture SA, David Hamelin and LCV Finance SASU acquired the entire share capital of Verifimmo SA, a Guerandebased insurance agency, in a leveraged buyout transaction. Terms were not disclosed. Viducia was representing the new manager in this MBI deal, with JeanLuc Amanatian, partner.
Beside the purchase price, the agreed amount was not to be disclosed, agri.capital will continue to invest further in the biogas park. Strengthening measures, especially in logistics and operational processes, should increase the efficiency and output of the plant portfolio. The biggest challenge was to convince agri.capital of the high economic potential of the Biogas plants no matter of how bad the results were in the past. There were optimisations and investments made over the last few months resulting in a higher and more stable turnover of the plants right now. Thomas Lang led the LAP Restrukturierungs GmbH
the German Biogas Park.
Financial Adviser to the Vendor
WEMAS Absperrtechnik GmbH was founded by Mr. Kwasny in 1971 and has since evolved to become the market leader in Germany for integrated and certified solutions in highway barrier engineering. The product range mainly comprises beacons, guardrails, lighting, foot plates and traffic cones as well as other products. With approximately 100 employees at its headquarters in Gütersloh, WEMAS achieves a turnover of approximately €30 million. NORD Holding is pursuing a growth strategy with WEMAS in Germany as well as in neighbouring European markets.
Oliver Wyman Partners: Dr. Tobias Eichner, Corporate Finance Jan Sickmann, Operations
subsidiary of Hypo Alpe-Adria Bank AG and owner of
Legal Adviser to the Vendor
As part of his succession planning, the businessman Siegfried Kwasny is selling 100% of the shares in WEMAS Absperrtechnik GmbH, Gütersloh, to NORD Holding Unternehmensbeteiligungsgesellschaft mbH, Hanover. The parties have agreed not to disclose financial details. The current management has also received shares in the company as part of the transaction.
Oliver Wyman conducted a combined commercial and operational due diligence for Nordholding unveiling a value creation path for the company going forward. This proprietary approach, called “Value Due Diligence”, works for mid cap industrial assets, but also for small cap industrials like WEMAS.
team representing the Biogaspark Alpe Adria GmbH,
agri.capital GmbH Acquisition of Biogas Alpe Adria GmbH
WEMAS Absperrtechnik GmbH, Gütersloh acquired
Venture SA, David Hamelin and LCV Finance SASU Acquisition Of Verifimmo SA Legal Adviser to the Purchaser Financial Adviser to the Purchaser
NORD Holding Unternehmensbeteiligungsgesellschaft mbH Acquisition Of WEMAS Absperrtechnik GmbH, Legal Adviser to the Purchaser
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LBO France and LFPI Gestion close Eminence SBO
Orium and Pechel Industries have agreed the sale of Groupe Eminence to French private equity houses LBO France and LFPI (La Financière Patrimoniale d'Investissement, sponsored by Lazard). Groupe Eminence is a European leader in the men's underwear industry, benefiting from a portfolio of 3 complementary and differentiated brands that benefit from unique awareness, Eminence and Athena in France and Liabel in Italy. The Group offers its products through most distribution channels, including mass retail, wholesale and department stores. Groupe Eminence generated 2010 net sales of c. €108m and experienced a growth of 5.0% over its previous year. Hawkpoint was appointed as Orium and Pechel Industries’ exclusive financial advisor in relation with the contemplated transaction and ran a highly competitive auction process involving a number of private equity potential purchasers as well as strategic buyers. OC&C Strategy Consultants acted on behalf Eminence, Orium, Pechel, reinforcing a long standing relationship. Guy-Noël Chatelin and Jean Daniel Pick led the team.
LBO France and LFPI Gestion Acquisition Of Groupe Eminence M&A Adviser
EBRD acquires 5.26 per cent stake in Russia’s GV Gold
The EBRD has acquired for 1.53 billion roubles a 5.26 per cent stake in GV Gold, a privately owned mining company that is one of Russia’s top 10 gold producers. The company is based in Irkutsk and is controlled by Sergei Dokuchayev, Natalia Opaleva and Valerian Tikhonov. The investment in the company is part of an ongoing EBRD strategy to support the fragmented Russian gold mining industry’s competitive position by encouraging consolidation and backing players committed to developing their business in an environmentally and socially responsible way. “There were certain complex issues related to Russia’s strategic investments law and the structure of the transaction, but they were successfully resolved with our active participation. “This is an important transaction for Russia’s gold mining industry, for our client and for the new Moscow office of King & Spalding, which was opened in May 2011.” King & Spalding acted on behalf of GV Gold on the deal reinforcing a longstanding relationship. Sergey Komolov, Managing Partner of the Moscow office of King & Spalding, led the team advising GV Gold on legal aspects of the transaction. www.kslaw.com
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Barclays Private Equity adds Courier Company IN tIME
Barclays Private Equity has announced the secondary acquisition of a majority stake in IN tIME Express Logistik, the German courier and express service, from ECM Equity Capital Management. Headquartered in Hanover, the company was founded in 1983 and is one of the fastest growing specialists in the European logistics sector. In 2010, it generated sales of around €100m. It employs around 400 staff at over 20 sites in Germany, Romania, the Czech Republic, Hungary and Sweden. The transaction will enable the company to expand its presence in Europe and exploit growth potential through further acquisitions. Lincoln International has represented the sellers consisting of the Management-Team of IN tIME and private equity group ECM in this transaction. The deal team was led by Friedrich Bieselt, Managing Director and Partner of LI Germany together with Dirk Engelmann, Vice President. Both specialize in logistics transactions within the global Lincoln International Business Services team. Barclays has achieved to consummate the transaction despite significant competition both from strategics and other private equity groups. Barclays won the strong support of leading banks providing leverage finance. Speed played an important role in this transaction.
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IntersigSh.a acquired
Vienna Insurance Group has acquired a majority stake in Albanian insurance company IntersigSh.a, significantly expanding the group’s business base in Albania. “The deal had its up’s and down’s. The M&A activity in Albania is relatively recent and not all parties involved understand the importance of disclosures and the relevant rep’s and warranties associated with it. In addition, taking in consideration the fact that the matter of damage compensation (especially moral and immaterial damages) is also relatively new, one of the greatest challenges in the due diligence of an insurance company is to evaluate eventual outcome in court of insurance claims and potential liability related to immaterial damages.” Hoxha, Memi&Hoxha (HMH) conducted the legal due diligence of IntersigSh.a., drafting of legal due diligence report, drafting of share purchase agreement entered into on August 24, 2011 and completion of conditions precedent to closing (which includes obtainment of all necessary approvals from Albanian authorities such as the Albanian Financial Supervisory Authority and Albanian Competition Authority).The team was lead from Mr.AndiMemi, one of the partners of HMH.
Vienna Insurance Group Acquisition Of IntersigSh.a
BioData acquires LabLife
BioData Ltd. has acquired the assets of LabLife Software Inc., furthering its strategy to become the leading research and lab management software and service provider. The acquisition follows an investment in BioData by Digital Science in December 2010. Digital Science is a division of Macmillan Publishers Ltd, owners of Nature Publishing Group. BioData provides a flexible and affordable laboratory and research management service for scientists, principal investigators and lab managers. The deal was relatively complex as it included not only the usual purchase of tangible and intangibles assets, but also receiving a unique license from the seller's parent corporation (Addgene) while granting it with a different license, for certain software code embedded in the purchased assets. It also included negotiating with two different US based law firms, one for LabLife and the other for Addgene. Bar-Zvi & Ben-Dov represented BioData Ltd. and its US based subsidiary,
BioData Inc on the deal. The team was
spearheaded by Adv. (Economist) Eyal
Bar-Zvi, one of the firm's founding partners and a
holder of magna cum laude LL.B and LL.M, who
often represents both Israeli and foreign entities in
M&A and investment transactions.
eyal@bbl.co.il
BioData Acquisition Of LabLife
Nuance Communications, Inc. acquires Loquendo Nuance Communications, Inc. has acquired Loquendo, a wholly-owned subsidiary of Telecom Italia. The combination of Nuance and Loquendo’s innovations will advance the proliferation of voice-enabled solutions and accelerate the development of new capabilities that will deliver natural, conversational interactions between consumers and the contact center, automobiles, mobile phones, and other consumer devices. The M&A competitive process started in April 2011 with a limited number of selected counterparts (both strategic and financial players), that in some cases had expressed interest for the asset in the past. After the receipt of Non Binding Offers in May 2011, the process entered into its final round (i.e. due diligence phase) with a limited number of bidders and, in August 2011, Nuance finally succeeded in the acquisition of Loquendo. Following the signing of the transaction on 12 August 2011 the deal was completed on 30 September 2011. KPMG Corporate Finance, a division of KPMG Advisory S.p.A., assisted Telecom Italia S.p.A. (enhancing the existing long standing working relationship) in the M&A process finalized to the divesture of the stake (i.e. 99,98%) held in its subsidiary Loquendo S.p.A. Fabrizio Baroni, Director at KPMG Corporate Finance led the team.
Nuance Communications, Inc. Acquisition Of Loquendo
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Advent acquires stakes in MAXAM Global private equity firm Advent International has entered into a definitive agreement to acquire shares representing 49.998% of MAXAM’s share capital, from Vista Capital and Portobello Capital. The remaining 50.002% of the company’s share capital continues to be controlled by MAXAM’s management team, led by its Chairman&CEO, José F. Sánchez-Junco. The transaction is subject to regulatory approval as MAXAM operates in a regulated market. The deal value has not been disclosed. MAXAM is the European leader and one of three global leaders in the civil explosives and initiation systems industry. The company is also active in the development, manufacturing and sale of mining services for mines, quarries and infrastructure around the globe; cartridges and gunpowder for sports ammunition; and products and services for the defence industry, in particular safe decommissioning of military explosives. The group comprises over 140 companies and has over 6,000 employees worldwide, with industrial facilities in more than 40 countries and sales in over 100 countries.
Acquisition of NRAI
Wolters Kluwer Corporate Legal Services (CLS), the originator of the legal compliance services industry has completed the acquisition of the stock of National Registered Agents, Inc. ("NRAI"), which was initially announced on June 14. The terms of the acquisition were not disclosed. Through this acquisition, Wolters Kluwer CLS strengthens its position as a leading provider of legal compliance and corporate governance solutions. The Princeton, N.J.-based NRAI has a rich, 16-year history of providing registered agent services to small and mid-sized businesses and the legal community that supports them.
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AXA Private Equity, the leading European diversified private equity firm, signed an agreement to acquire a majority stake in Photonis from Astorg Partners. The acquisition has the full support of Photonis’ existing management team, headed by its CEO, Goossen Boers. The challenges have been the ones generally faced in similar acquisitions of international groups where several foreign jurisdictions are involved. In addition, the acquisition was made through a double-luxco structure which has become the standard structure for LBOs of this size in the French market. Both the complex structure of the acquisition and the international character of the transaction render the completion of the financing of the acquisition a challenging matter and require a very good knowledge of the legal issues that arise under doubleluxco structures and an on-going coordination with the different international offices of the firm. Gide represented the lenders, namely, ING Bank NV (and their Belgium counterpart, ING Belgium SA), Société Générale and IKB Deutsche Industriebank AG, Paris Branch.
Advent International will support the strategy developed by the MAXAM management team, as it pursues its national and international growth ambitions by expanding and strengthening its footprint in key markets, through both organic growth and selective acquisitions.
Advent Acquisition Of stakes in MAXAM
AXA Private Equity acquires Photonis
Fernand Arsanios led the team.
Wolters Kluwer Corporate Legal Services Acquisition Of the stock of National Registered Agents Legal Adviser to the Purchaser
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Acquisition of Radomyshl Brewery
Swedish shopping centre acquired
Oasis Group has acquired 100% of shares of Public Joint Stock Company “Radomyshl Brewery” and its trading company, Limited Liability Company “Group of Companies “Ridna Marka” (the “Group”).
Henderson Global Investors, on behalf of it’s German business WarburgHenderson, has agreed the acquisition of a prime shopping centre in Sweden from Alecta Pensionsförsäkring Ömsesidigt, for SKr558 million (€61m). The asset has been acquired for Warburg - Henderson European Core Property Fund No. 1.
The Group is one of the leading beverage producers in the Ukrainian market with the products range reaching over 100positions, in particular juice products, beer, and kvass. The Group has a portfolio of such well known trademarks as“Mriya”, “Radomyshl”, “Weissbier Etalon”, and “Kvas Drevlianskyi”. The Avellum Partners team was led by Associate, Iryna Nikolayevska, with overall supervision by Mykola Stetsenko, Managing Partner. Mykyta Nota, Associate, was responsible for the AMC filing. Golden Gate Business, a premier Ukrainian M&A advisory firm, acted as sole financial advisor to Oasis Group in connection with its acquisition of majority interest in Public Joint Stock Company “Radomyshl Brewery” and its trading company, LLC “Group of Companies “Ridna Marka” (the “Group”).
Oasis Group on Acquisition Of Radomyshl Brewery
Opened in 2005, the 16,400 sqm ‘Tuna Park Shopping Centre’ is the dominant centre within Eskilstuna and forms part of the larger Tuna Park retail area. The park also includes a hypermarket, pharmacy and several other big box retailers. Eskilstuna is located in the expanding Malarden region of Sweden, and offers extremely good connections by car and rail to Stockholm. The shopping centre comprises 55 stores and is dominated by the leading Nordic retailers including H&M, Kappahl, Lindex and InterSport. In recent years, the centre has twice been voted ‘most popular shopping centre in Sweden’ by local leading trade journal ‘Market’. Opportunities for the centre include further strengthening the tenant mix and the development of a 7,600 sq m expansion.
Warburg-Henderson Acquisition Of Tuna Park Shopping Centre Legal Adviser to the Purchaser
Legal Adviser to Oasis Group
Financial Adviser to the Purchaser
Legal Adviser to the Vendor Investment Adviser to Oasis Group
Tax Adviser
Financial Advisor to the Seller
Baker Hughes acquires Stake in Verdande Energy
Baker Hughes and Verdande Technology announced that a subsidiary of Baker Hughes has acquired a minority equity stake in Verdande Energy AS, a subsidiary of Verdande Technology AS, and will become a user of Verdande Technology's case-based reasoning (CBR) software platform for oil and gas applications. This CBR technology, called DrillEdge™, is a real-time intervention tool constructed on the principle of case-based reasoning, a problem-solving process that identifies similar issues from relevant wells drilled in the past and offers similar solutions. This immediate intervention-while-drilling response provides a thorough, fast and practical real-time bridge between past experience and current operations. Under the terms of the agreement, Baker Hughes will be involved in further developing the capabilities. Since January 2009 GJE’s team, lead by partner Peter Finnie, has worked with Verdande Technology on a commerciallyfocussed intellectual property strategy. This involved everything from an initial IP audit used to determine which aspects of the company’s inventions were most appropriate for patent protection and which should remain secret to detailed analysis of the patent landscape. The resulting strategy and international patent portfolio was at the heart of the deal, giving Baker Hughes the confidence that it was investing in robustly-protected technology. GJE worked closely with both companies on IP due diligence matters as the deal was finalised.
Baker Hughes Acquisition Of a Stake in Verdande Energy Legal Adviser to Verdande Technology AS
IPR Legal Adviser TO Baker Hughes
Tax Adviser
IP Adviser
Sixty Nine
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The Advisers How to Attract Foreign Investment Azanne Kofi Akainyah akainyah@aalawconsult.com www.aalawconsult.com T: + 233 302 760 164 Villa Almaz, 7A, Roman Road, Roman Ridge, Accra, Ghana
How to Attract Foreign Investment
Thierry Rajaona trajaona@fthm.mg fthm@moov.mg www.fthm.mg
Doing Business in the Seychelles
Joel Camille T: 00248 4325118 j.camille@alpha-offshore.com Suite No 1 Floor 2 Sound & Vision House Francis Rachel Street Victoria Mahe
How to Attract Foreign Investment
Doing Business in Mauritius
Goce Adamceski, Darko Janevski T: +38923224131 g.adamceski@act.com.mk d.janevski@act.com.mk www.act.com.mk Crvena Voda Str. 7/13, 1000 Skopje, Republic of Macedonia
Citilaw T: 00230 2137373 asha.proag@citilaw.org
How to Attract Foreign Investment
How to Attract Foreign Investment
5th Floor, Belmont House, Intendance Street Port Louis
Ajibola Olomola T: +234 1 271 8933 aolomola@kpmg.com www.kpmg.com 18A Temple Road, Ikoyi Lagos, Nigeria
AndrĂŠs L. Halvorssen T: +58-212-9520995 ahalvorssen@rdhoo.com www.rdhoo.com Torre Forum, Piso 11, Calle Guaicaipuro, El Rosal, Caracas 1060 Venezuela
How to Attract Foreign Investment
How to Attract Foreign Investment
Amira Musa amira.musa@alliedauditors.sd www.alliedauditors.sd
Suresh R.I.Perera T: +94 115 390 320 sperera@kpmg.com lk.kpmg.com 32 A, Sir Mohamed Macan Markar Mawathe, Colombo 03, Sri Lanka
Azmi Mohd Ali azmi@azmilaw.com www.azmilaw.com www.azmiandassociates.sg 14th Floor, Menara Keck Seng, 203, Jalan Bukit Bintang, 55100 Kuala Lumpur, Malaysia.
Seventy
Morris & Sojnocki
Wayne Morris T: 677 21851 wayne @msca.com.sb PO Box 70 Honiara Solomon Islands 1st Floor City Centre Building Mendana Avenue Honiara Solomon Islands
Vo Ha Duyen T: (84-8) 3827 7300 duyen@vilaf.com.vn www.vilaf.com.vn Kumho Asiana Plaza, Unit 404-406, 39 Le Duan Street, District 1, Ho Chi Minh City, Vietnam
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The Spirit of Independence