Sponsored firm profile: Long term ambition trumps short term reaction

Sponsored firm profile: Long term ambition trumps short term reaction

Eversheds Sutherland’s Richard Moulton on why 2022’s market dip hasn’t dampened the desire to become a leading global M&A powerhouse

Faced with the headwinds seen in 2022, it would be tempting for any corporate practice to pause its investment plans. However, the long-term ambition that Eversheds has for its M&A team is such that this was never an option. As Richard Moulton, the firm’s global co-head of corporate puts it: ‘Pausing investment would have been the easy option, but would have missed the opportunity to continue to build in line with our strategic plans for the global M&A team.’

The fundamentals of the firm’s ambitions for the M&A practice go beyond simply wanting to be a bigger practice, so the slowdown in M&A activity experienced in the second half of 2022 was no reason for them to change course. Indeed being larger is a bi-product of what Moulton and the corporate partners are aiming to achieve. ‘It is our aim to become the strategic partner for our clients on their M&A transactions, regardless of size, location or complexity – if it’s important to them, it’s vital for us. If we had stopped our investment, we would have wasted a lot of time, effort and money. It was never really an option for us.’

The firm has continued to transform its corporate business over the last 12 months, with some significant developments both in personnel and deal execution. In May it welcomed city veteran Roger Barron into its ranks as a senior M&A adviser. Barron comes with a lot of pedigree having been a leading M&A lawyer for over 30 years, 27 of which were with Linklaters. Until recently he was a partner at the US headquartered law firm, Paul Hastings, where he was appointed global vice chair of its M&A practice. On his arrival, Moulton adds: ‘Roger has come in to help us get to the next level, in terms of our relationships across the M&A market, and also our approach to positioning ourselves for strategic deals from blue-chip clients. They don’t come more experienced than Roger in that sense.’

Barron’s arrival was not the only significant hire the practice has made recently, with big names appearing across the network in the last 12 months. In Paris, partners Jean-Robert Bousquet and Alexandre Morel joined as part of a seven-strong team making the short journey across the Parc de Bagatelle from CMS Francis Lefebvre Avocats. This was followed by Steffen Schneipp from PwC, whose arrival spearheaded the opening of its much-anticipated Frankfurt office. On Eversheds’ enhanced bench in Europe, Moulton comments: ‘For our strategy to come alive, we need to make sure we have leading practitioners in every key M&A market delivering consistent excellence for our clients. The hires we have made over the past 12 months have sought to deepen and strengthen our existing bench and add a wider range of sector expertise’.

The strengthening of the bench of corporate partners has not been limited to Europe. The practice in the US has also seen some major names added over the last 12 months, with the additions of Craig Alcorn in Chicago and Baird Fogel, who like Schniepp in Frankfurt, has been brought in as part of the office expansion in San Francisco.

Alcorn’s arrival from Skadden in mid-2022 further strengthens the firm’s M&A capabilities in Chicago, which has already seen major corporate investment in the form of Stacey Kern and Lance Philips. Alcorn’s hire also adds much needed public company M&A expertise to the US team’s bench. Fogel’s arrival adds transactional capabilities to an office opened to put a physical presence in a market where the firm already has an impressive client roster.

As Moulton is keen to point out, this is not simply a headcount exercise: ‘It’s important we add the right people with the right expertise to the practice, however what really counts is their fit with how we want to help our clients do deals and the culture of our teams.’

Moulton is keen that the practice continues with the wider firm’s tradition of focusing on relationships as its foundation. The firm has always been noted for the strength of its relationships with clients and the resource put into ensuring clients receive market leading service on transactions and that they are in constant communication inside, and outside of a project. ‘It’s important as we grow, we continue to live by the principles that have stood us in good stead over the years. We are adding quality lawyers who buy into our platform and the way we want to support our clients to execute their deals. Cultural fit is a
non-negotiable’.

One of the aspects Moulton specifically draws out to when he refers to their principles, is the focus on delivering service excellence that sparks into life whenever they are instructed on a deal. This focus on the client’s key aims is essentially how the corporate partners bring in the full strength of the firm to deliver a great experience for the client, particularly when a deal involves multiple jurisdictions (and almost two thirds of their deals do). Moulton adds: ‘On every transaction we do a detailed debrief with the client to understand what we did well and where we can make improvements’. The intelligence that is gained from these debriefs is used to inform how the team works behind the scenes on a deal. There is a mix of putting the right people, at the right level on deals, utilising specialists, including project managers, and lawyers from other legal disciplines, such as merger control and data as well as utilising the latest technologies. ‘We’re creating a proposition whereby the client experiences the best legal minds, the most efficient use of our resource and information flows and ensuring this is to the same high standard regardless of which lawyers are working on the deal and which country the deal is being led from.’

As a full-service law firm, you would expect the practice to be able to call upon lawyers from around the firm to advise on regulatory aspects of the firm, but as Moulton is keen to point out, the way the firm has developed puts the corporate practice in an advantageous position compared to many of its peers. ‘Whilst other firms see practices like employment and competition as corporate support, we don’t. They are practices in their own right and, as such, are run that way; focusing on having the best lawyers who are immersed in the law. As you would expect, it’s a real benefit to have this specific expertise on a deal, but we also use it to stay ahead of legal developments and knowledge share so that clients are aware of issues before deals start. The UK’s NS&I Act was a great example of this in practice. We were all fully briefed on its implications well in advance, and so were talking to our clients about it – even when no deals were on the horizon. I’m proud of the fact we are able to bring this perspective to clients.’

Investment is also being made in these areas and sector regulatory expertise, with the hire of Martin Sandler from EY who joined the firm’s London financial services regulatory team in October 2022 and Washington-based competition partner, Josh Shapiro who joined from Thompson Hine in January this year.

With the M&A market expected to gradually improve from 2022’s slowdown, Eversheds Sutherland’s corporate practice is well positioned to continue on its trajectory to becoming a practice that competes with the biggest and best in the market.

Author:


Richard Moulton
Global co-head of corporate
T: +44 20 7919 4593
M: +44 771 733 6327
E: richardmoulton@eversheds-sutherland.com

1 Wood Street
London
EC2V 7WS
T: +44 (0)20 7919 4500
www.eversheds-sutherland.com

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Sponsored briefing: Navigating Romania’s dynamic energy landscape: an overview of M&A activity and trends

Sponsored briefing: Navigating Romania’s dynamic energy landscape: an overview of M&A activity and trends

Lawyers from Suciu Popa (SPA) provide an overview of the energy M&A market in Romania

Market overview

Romania’s energy sectors have experienced significant growth and transformation in recent years, driven by a combination of technological advancements, policy changes, and geopolitical factors.

This dynamic landscape has given rise to numerous M&A transactions, with both domestic and international players eager to participate in the country’s burgeoning energy market. As a leading Romanian law firm, Suciu Popa has been at the forefront of these developments, providing expert legal advice and assistance in a part of such high-profile deals.

According to the most recent public data, the total value of M&A transactions in Romania in 2022 reached a record high of €5.5bn, despite a slowdown in activity during the latter part of the year. The energy, oil and gas, and renewables sectors were among the most active, accounting for a substantial portion of the market value.

Key deals

In the oil and gas sector, the most significant deal was the acquisition of ExxonMobil’s 50% stake in the Neptun Deep offshore gas project by SNGN ROMGAZ SA. This deal, worth approximately $1bn, is expected to significantly increase Romania’s domestic gas production and reduce its reliance on gas imports. Suciu Popa provided legal assistance to SNGN ROMGAZ SA in this transaction, advising on various aspects of the deal, including regulatory and environmental issues.

In the renewables sector, one of the most significant deals was the acquisition of by Rezolv Energy of a 1,000 MW solar park in Arad from Monsson Group. The project is planned to be the largest of this kind in Europe. It is emphasised that construction works will begin by June 2023, and the photovoltaic park will start producing in 2025 when it is planned to cover the energy needs of some 1 million people.

In addition to these primary deals, several other noteworthy M&A transactions occurred in Romania’s energy sector in 2022. These include Mass Global Energy’s acquisition of the Mintia thermal power plant and acquisitions made by Enel Green Power and Premier Energy in the renewables sector. Furthermore, Enel, a major player in Romania’s energy sector, recently agreed to sell its Romanian operations to PPC. The agreement entails the sale of Enel Group’s equity stakes in Romania to PPC for a total consideration of around €1,260m.

These deals demonstrate the increasing interest of investors in Romania’s energy sector, which is expected to grow significantly in the coming years.

Legislation and policy changes

The Romanian legislator introduced several significant legislative and policy changes in the energy and renewables sectors during 2022-2023, including:

  • The adoption of a new energy strategy for 2022-2030, aimed at increasing energy efficiency, reducing greenhouse gas emissions, and promoting renewable energy sources.
  • The implementation of the offshore law, which regulates the exploration and production of oil and gas resources in Romania’s exclusive economic zone in the Black Sea.
  • The introduction of a revised support scheme for renewable energy, providing more incentives for the development of solar and wind projects.

Geopolitical trends influencing the M&A sector

Several geopolitical trends have influenced the M&A sector in Romania in 2022 and are expected to continue shaping the landscape in 2023. These include:

  • European Green Deal: EU climate goals drive M&A activity towards renewable energy and sustainable technologies, making Romania’s wind, solar, and hydropower sectors attractive targets.
  • Supply chain resilience: global trade tensions and pandemic-related disruptions have increased interest in regional self-sufficiency, boosting M&A opportunities in Romania’s manufacturing and logistics industries.
  • Digitalisation and technology adoption: the growing tech sector and skilled IT talent in Romania make it an appealing market for investors pursuing innovative tech companies through M&A.
  • Energy diversification and security: given the ongoing geopolitical tensions surrounding energy supplies, particularly in the wake of the Russia-Ukraine crisis, European countries are seeking greater energy diversification and security. Romania’s domestic resources and its strategic location make it a potential energy hub, attracting M&A interest in the oil and gas sector, as well as investments in infrastructure projects.

These geopolitical trends will continue to shape the M&A sector in Romania in 2023, presenting opportunities for businesses and investors across various industries, particularly in the energy, technology, and manufacturing sectors.

Looking forward

It is challenging to forecast how the macroeconomic trends will unfold in 2023 however, we envisage that the importance of implementing an energy transition shall persist as a crucial agenda item for investors and management teams not just in the immediate future, but for a considerable duration thereafter. As a result, we anticipate that there shall be a notable deployment of capital towards M&A activity and other capital projects focused on Romania’s energy, renewables, and critical minerals sectors. Thus, it is an opportune time for interested parties to consider investment opportunities in these areas.

About us

At Suciu Popa, we have significant experience advising clients on M&A transactions in a variety of sectors with a focus on energy sector. Our team of lawyers has a deep understanding of the legal and regulatory framework governing the sector and can provide clients with the advice and support they need to navigate complex transactions. We have advised on several high-profile deals in the sector, including some of the ones highlighted above, and are well-positioned to help clients take advantage of the opportunities presented by Romania’s rapidly evolving energy landscape.

Authors


Miruna Suciu
Managing partner
E: miruna.suciu@suciupopa.ro


Luminita Popa
Managing partner
E: luminita.popa@suciupopa.ro


Cleopatra Leahu
Partner
E: cleopatra.leahu@suciupopa.ro


DAN Ciobanu
Partner
E: dan.ciobanu@suciupopa.ro

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Sponsored briefing: Evaluating sustainable investments in India: mitigating ESG risks through due diligence

Sponsored briefing: Evaluating sustainable investments in India: mitigating ESG risks through due diligence

Justin Bharucha and Vandana Pai examine how due diligence can be used to identify and address risks of non-compliance with ESG regulations

Investors the world over are increasingly structuring investments with lower environmental, social and governance (ESG) risks. One of the reasons for this is the growing regulatory scrutiny on ESG-related non-compliance. For instance, recently, the Securities and Exchange Commission fined BNY Mellon Investment Adviser for claiming that it had met all compliance requirements despite having failed to undertake an ESG quality review.

ESG is not an entirely new concept in India. There have been statutes on the books and bodies regulating ESG issues in India for decades – for instance, various environmental regulations, labour codes, corporate social responsibility (CSR) rules implemented in 20141 and quasi-judicial authorities like the National Green Tribunal.

Even the 2021 business responsibility and sustainability reporting (BRSR) issued by the Securities and Exchange Board of India (SEBI), India’s securities market regulator, is based on the principles set out in the National Voluntary Guidelines on Social, Environmental and Economic Responsibilities of Business issued by the Ministry of Corporate Affairs (MCA) in 2011 (and updated in 2019), and has replaced the business responsibility report first introduced by the SEBI in 2012.

In the past, Indian regulators have taken enforcement action against companies for failing to comply with regulatory ESG requirements. For instance, the National Green Tribunal, by its order dated 10 September 2020, directed the Central Pollution Control Board to undertake an environmental audit of Amazon Retail India Private Ltd due to its excessive use of plastic as packaging material.

Similar scrutiny may also be expected from other Indian regulators in the coming years given India’s target of net zero greenhouse gas emissions by 2070.

ESG reporting metrics and scope of diligence

In India, ESG reporting is neither objective nor standardised. As of 1 April 2023, the SEBI’s BRSR requires the top 1,000 listed companies by market capitalisation to make ESG-related disclosures in their annual reports against nine principles, including accountability and transparency, provision of sustainable goods and services, and responsiveness to stakeholders. However, BRSR compliance is not mandated for unlisted entities or smaller listed companies, and there is no format for ESG reporting in India for such entities. The only guidance available is the BRSR lite version of the reporting format suggested by the MCA in the Report of the Committee on Business Responsibility Reporting, which recommended changes to the MCA’s National Voluntary Guidelines on Social, Environmental and Economic Responsibilities of Business.

Given the above, diligence undertaken by the investors becomes a key measure to evaluate target companies’ ESG compliance and commitment. Akin to a legal due diligence, an ESG due diligence should be structured based on the sector in which the target is engaged, and involves the assessment of compliance and liability. For instance, a plastics manufacturer would be more susceptible to risks associated with waste management, as opposed to a target in the IT/ITES sector where risks pertaining to data protection norms may be more relevant. Additionally, the ESG due diligence may also take into account: (i) whether the target has a dedicated ESG policy; (ii) how the target chooses to respond to ESG-related risks; (iii) the target’s governance structure, including decision making at the board and shareholder levels; (iv) oversight models adopted by the target; (v) evaluation of the target’s supply chain, and, to the extent possible, whether the target’s suppliers are compliant with ESG requirements; and (vi) the energy sources used by the target.

Mitigating ESG risks and next steps

Fundamental ESG risks identified through due diligence must be addressed either through pre-closing conditions or conditions subsequent. ESG compliance is increasingly likely to be an extremely important issue that may impact whether a transaction will actually progress.

Investors may also consider including tailored representations and warranties in the transaction documents. These may include representations and warranties pertaining to compliance with regulatory disclosure requirements – including compliance by the target’s suppliers, maintaining adequate sectoral licences, and incorporating a defined metric to measure future ESG goals. To address the adverse impact of issues such as greenwashing and social-washing (essentially, artificially inflating ESG compliance or portraying a higher level of compliance), investors may consider building specific indemnities into the deal documentation. To that end, market practice has been to either negotiate to hold back a portion of the investment amount – which can then be set off against any losses arising from known ESG risks – or deferring that portion of the payment until ESG compliance requirements have been met.

Globally, insurance providers are coming up with assessment tools for ESG risks that can measure a target’s ESG performance in accordance with internationally recognised methodologies and provide a score based on 18 ESG themes. Essentially, these ESG scores allow underwriters to make decisions on whether there can be any incentives or dynamic pricing on insurance products, depending upon contingent events, for eg, installation of solar energy panels. Once these products and services – tailored to the nine principles under the BRSR and the MCA’s guidelines – are available in India, investors may opt for the same to measure the target’s ESG performance and manage risks2.

Post closing, investors may require the target to build and follow voluntary industry group standards and best practices, undergo voluntary social audits and assurance from time to time, and benchmark its ESG performance against its competitors.

Given the rise in ESG concerns and the lack of objective regulations, ESG-based due diligence has become an essential tool for investors to unlock value and protect themselves against potential risks. Targets that embrace regular ESG due diligence and take proactive initiatives are better positioned to build trust with their potential investors and adapt to the expectations of sustainability.

Authors


JUSTIN BHARUCHA
Managing partner
E: justin.bharucha@bharucha.in


VANDANA PAI
Partner, head – investment funds practice
E: vandana.pai@bharucha.in

  1. India was the first country to legislate mandatory CSR requirements and compliance, and penalties for failure to comply. A company that fails to make the mandatory CSR contribution is liable to a penalty of twice the amount that was not contributed for CSR purposes, and its officers in default are liable to a penalty of one tenth of the CSR amount that was not contributed or INR 10m, whichever is lower.
  2. Although ESG ratings services are available in India, the ratings are usually restricted to entities whose securities are listed on a stock exchange as the ratings providers rely on publicly available information to evaluate these entities.

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Sponsored briefing: Key indemnification concerns in M&A transactions in Brazil

Sponsored briefing: Key indemnification concerns in M&A transactions in Brazil

Machado Meyer’s Guilherme Bueno Malouf and Paulo Henrique Carvalho Pinto on the key points to consider when engaging with the Brazilian M&A market

Brazil has been in the spotlight for foreign investment for a while. Although the political scenario and global headwinds continue to affect our economy, Brazil has remained an attractive place to invest for a number of reasons, including its large internal market (size of its population), the need of enhancement of its infrastructure system and the scalability of its agricultural sector.

When investing into Brazil, foreign investors need to address the specificities of our legal framework. Key examples of challenges imposed on investors are as follows:

  1. The Brazilian tax system is very complex with different laws (including procedural laws) being imposed on taxpayers, a relatively unstable jurisprudence on tax disputes and a dispute among Brazilian states on tax holidays granted to taxpayers – thus it is not uncommon for Brazilian companies to be subject to continuous tax liabilities.
  2. Brazilian labour courts still apply interpretations of our labour laws that are protective to the employees, notwithstanding the fact that a recent labour reform was passed, which turned the labour relationships for dynamic and less subject to unfair litigation.
  3. Due to some particular features of Brazilian laws, it is not unusual to identify certain inconsistencies or restrictions relating to the registration of ownership/occupation of real properties, which may include (a) lack of certain licences; and (b) the existence of ‘permanent preservation areas’, ‘indigenous areas’ and/or ‘quilombola areas’, or (c) restrictions on acquisition of control of large rural areas, which in sum create excessive burdens on companies so they can develop their activities.
  4. Despite lack of express reference in applicable laws, environmental damage remediation in Brazil is not subject to statute of limitation, pursuant to scholars’ understandings and court decisions (including decisions rendered by the Supreme Court). Courts have also been consistent in considering environmental civil liability as propter rem which means that it is connected to the ownership or possession of a real estate, regardless of fault. In this sense, the owner and those who economically benefit from use of a land automatically assume liability for pre-existing environmental damages, even if the party did not actually cause them. On top of that, environmental laws set forth joint liability among polluting agents – a victim affected by an environmental damage shall not be required to sue all polluting agents in a single action (a certain company may be chosen out of all polluting agents).

The facts outlined above play an important role in M&A transactions in Brazil. Investors need to carefully evaluate tax and labour exposures (including materialised and non-materialised contingencies) of the relevant company, as well as the potential restrictions on the use of real property and related environmental risks.

Notwithstanding the fact that the due diligence is instrumental for the negotiation of the purchase agreement, mainly in so far as representations and warranties (R&Ws), indemnification and collateral provisions are concerned, it is worth pointing out that most of the M&A transactions in Brazil1 adopt the so-called ‘my watch-your watch’ clause, whereby sellers or issuers agree to indemnify the purchaser for losses deriving from acts, facts or omissions taking place at any time prior to the closing of the transaction, regardless of whether such events have a link to a breach of a specific R&W.

In light of the above, the question that rises is: if purchase agreements usually provide for a ‘catch all’ provision whereby purchasers have recourse against sellers and issuers for any pre-closing liability, why should purchasers need a robust set of R&Ws?

The answer is three-fold: (i) firstly, the R&Ws are informational, in the sense that they provide a relatively wide view on the company and its activities and serve as rule-book for purchasers post-closing; (ii) secondly, the R&W are also an important condition precedent to closing; ie, to the extent a R&W is not accurate at closing, a purchaser shall have the right to terminate the purchase agreement and (iii) thirdly and perhaps more importantly, not all R&Ws are covered or superseded by the ‘my watch-your watch’ clause, mainly those where a judgment is provided; eg, a R&W on the fact that the relevant company has sufficient insurance coverage in comparison with players in the same sector and of equal size, or a R&W that the company has all IP rights to develop its activities. Thus, if these R&Ws are incorrect and the company suffers a loss (spends money on buying new insurance or suffers monetary damage because of the lack of adequate coverage, for example), the purchaser will be entitled to claim indemnification based on the breach of the relevant R&W.

Also, one should also pay attention to these other very specific features of the indemnification package usually seen in Brazil:

  1. Time limitation: general statutes of limitation are three years, but certain matters have longer terms, such as taxes and labour (five or six years, depending on whether there is a discussion on the occurrence of tax fraud) and environmental (no limitation). Therefore, the negotiation of the time limitation for the indemnity will depend greatly on the findings of the due diligence, the sector in which the target company operates and the exposure that the target company bears across such various types of contingencies.
  2. Amount limitation: it is common practice for Brazilian purchase agreements to include amount limitations on the indemnification, including caps, de minimis, tipping basket and, in certain cases, a deductible. The negotiation of such limitations is also linked to the findings of the due diligence and the sector in which the target company operates.
  3. Indirect or consequential loss: Definition of loss tends to be one of the most relevant features when negotiating a purchase agreement governed by Brazilian law, as sellers want to exclude indemnification for indirect or consequential loss (eg, lost profits, loss of opportunities) to have a better estimate of the amount that they may have to disburse if the purchaser incurs any loss deriving from past liabilities. Although full indemnification for such losses is not standard, we have seen provisions whereby sellers agree that indirect or consequential losses are indemnifiable for specific events (eg, if the target company does not hold any specific licence to operate its business, for environmental and anti-corruption matters).

In light of the above, a thorough due diligence investigation is extremely relevant, so that purchasers have a full picture of materialised and contingent liabilities of the target company in order to properly negotiate an indemnification package from sellers.

Authors


Guilherme Bueno Malouf
Partner
E: gmalouf@machadomeyer.com.br


Paulo Henrique Carvalho Pinto
Partner
E: ppinto@machadomeyer.com.br

  1. Mainly regarding private companies, as the pattern for listed companies is quite different, with purchasers relying on a representation and warranty on the public filings of the relevant company (under the assumption that the “market” prices the legal issues disclosed in such filings.

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