Baker McKenzie Continues to Grow California Transactional Practice

Global law firm Baker McKenzie announced today that Aarthi Belani has joined the Transactional practice as a partner in the Firm’s Palo Alto office, bringing experience advising technology and life sciences companies on M&A and venture capital transactions. Aarthi joins the Firm from Jones Day, where she was a partner.

Aarthi represents strategic acquirers, especially in cross-border deals, emerging growth technology companies, venture capital funds, and corporate venture capital. She has also represented the sell-side and advised on digital health, financial services, and impact investment deals. Recent major transactions she has worked on include representing Uniphore Technologies in its Series D fundraising, acquisitions for Five9, a provider of cloud contact-centre solutions, AbbVie in its acquisition of Mavupharma, SAP in its $8 billion acquisition of Qualtrics, and Oclaro in its $1.8 billion sale to Lumentum.

Previously, Aarthi was on the in-house strategy M&A legal team at Credit Suisse in New York, where she was also a member of the Sustainability Network, a Credit Suisse OneBank (cross-divisional) initiative to develop impact investment products. She started her legal career at Cleary Gottlieb Steen & Hamilton in New York, where she worked on complex strategic M&A, especially cross-border M&A. In 2018, she was recognised as a “40 Under 40” honouree by the Silicon Valley Business Journal.

“The addition of Aarthi to our California Transactional Team demonstrates our commitment to building a destination practice for technology M&A. Aarthi is well-known as a trusted business adviser to leading Silicon Valley companies and is sought after for her deal-making advice, particularly for cross-border transactions,” said Leif King, head of Baker McKenzie’s California Transactional practice.

“Aarthi is another excellent addition to our growing California team, bringing outstanding credentials and advising on transformative deals in Silicon Valley. Since Leif King joined us in 2019, we’ve added 11 market-leading transactional lawyers, and we are delighted to add Aarthi to the team,” said Colin Murray, Baker McKenzie’s North America chief executive officer. “Not only is Aarthi a star M&A practitioner, she also brings a commitment to furthering diversity and inclusion efforts in the industry — which is core to our Firm’s strategy and a key objective for us in North America.”

She is a mentor for the Unreasonable Group (a program for entrepreneurs) and a Leadership Committee member of How Women Lead, which is part of the campaign to increase the representation of women on corporate boards.

Our California M&A team has advised on some of the largest and most complex transactions in Silicon Valley, helping clients seize opportunities, mitigate risk, make judgment calls and achieve their goals. With locally trained lawyers around the globe, we serve as a “one-stop shop” for acquisitions, providing a consistent approach and quality, supported by in-depth local knowledge and a global perspective.

“I’m excited to join the Baker McKenzie team. I look forward to working with my new colleagues as we build something enduring here,” Aarthi said.

Aarthi received her LL.M. and J.D. from New York University and her B.A. from Stanford University.

Transfer pricing considerations in your post M&A integration

By Samuel Kisuu, Director at Africa Law Partners.

At the core of any M&A transaction is the fundamental scaling and growth of the integrated business unit at a macro level or tapping into and accessing the potential of the economies of scale of the target entity at a micro level.

As such, parties to the M&A transaction often spend a bulk of the transaction phase considering and negotiating the post-transaction integration of the transacting entities with respect to matters around optimising human resource, fine-tuning management and management functions, shareholder rights (typically when there is an acquisition of minority control), exploitation of intangibles (such as intellectual property and goodwill) and a business growth strategy.

It is common that the acquiring parties to M&A transactions in Sub-Saharan Africa be entities controlled and managed from different jurisdictions. M&A transactions in Sub-Saharan Africa generally involve off-shore domiciled private equity funds or multinational entities as the acquirers and a local entity as the target. The outcome of these transactions bring the integrated unit or group within the purview of transfer pricing.

Transfer Pricing Basics

The concept of transfer pricing under Kenyan law is provided for under:

  1. the Income Tax Act (Cap 470) (the Income Tax Act);
  2. the Income Tax (Transfer Pricing) Rules, 2006; and
  3. the respective double tax treaties that Kenya is a party to.

In addition to these laws, the OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations (the OECD Guidelines) provide persuasive guidance on the application of transfer pricing principles in:

  1. the preparation of transfer pricing policies for taxpayers;
  2. which jurisdiction taxing rights lie; and
  3. dispute resolution between taxpayers and tax authorities.

At its most basic, transfer pricing may be defined as the concept whereby a fair price (the transfer price) is determined for transactions amongst related entities of different tax residency. From a taxation context, the transfer price will affect the accounting profits of the respective entities and subsequently the taxable profits of each single entity. Section 18 (3) of the Income Tax Act provides the basis for transfer pricing as follows:

“Where a non-resident person carries on business with a related resident person or through its permanent establishment and the course of that business is such that it produces to the resident person or through its permanent establishment either no profits or less than the ordinary profits which might be expected to accrue from that business if there had been no such relationship, then the gains or profits of that resident person or through its permanent establishment or from that business shall be deemed to be the amount that might have been expected to accrue if the course of that business had been conducted by independent persons dealing at arm’s length.”

For ease of explanation:

The transfer price set for the transfer of products from Entity 1 to Entity 2 will not affect the group’s overall/combined profit but will affect the taxable profit of Entity 1. Therefore, where Entity 1 is located in a relatively higher tax jurisdiction, there is incentive within the group to reduce the transfer price in order to decrease Entity 1’s taxable profit in that high tax jurisdiction.

M&A Context

Following an M&A transaction the following factors (list not being exhaustive) tend to materialise within the integrated entities:

  1. The adoption of minority rights by the acquirer. This typically occurs where an acquirer acquires a significant minority of the target entity and obtains control in the target business and is a common acquisition strategy adopted in private equity transactions.
  2. The integration of intangibles such as intellectual property rights and goodwill. Intellectual property rights of the integrated group may be farmed out from one jurisdiction to another or assigned over various jurisdictions.
  3. The post-transaction financing of the integrated group taking the form of shareholder loans spread across multiple jurisdictions.
  4. The integration of a new management group or the involvement of the acquiring entity’s management group in the affairs of the target entities and the centralisation of certain functions such as procurement.

Inter-company agreements from the legal and commercial foundations of these post-transaction matters and relationships. Consequently, there is the natural possibility of complex financial flows between these group entities which would affect the tax base in each respective jurisdiction. A post-transaction transfer pricing analysis allows for the optimisation of the group’s tax strategy to achieve the most efficient and fair tax structure and is achievable by taking the following steps:

  1. Preparation of the inter-company agreements: being the core document establishing the legal and commercial relationship between related entities, it is vital that these agreements clearly define the roles of each party and delineate the respective group transactions.
  2. Internal restructuring: this involves the reallocation of group entity roles, the movement of real and intellectual property ownership and reorganisation of senior management.
  3. Reallocation of commercial risk: this involves the identification of economically significant risks (strategic, marketplace operational, financial and transactional risks) and the contractual or transactional reallocation of these risks to group entities that are able to absorb the risk for the benefit of the integrated group.

Together, these steps would provide for a conclusive functional analysis (the foundation of a transfer pricing policy) of the group and subsequently provide an opportunity to adopt the most appropriate transfer pricing methods with a view towards tax optimisation of the entire group.

Whereas this write-up provides a brief overview of the salient issues to consider in your post M&A transfer pricing considerations, parties to M&A transactions ought to keep these factors as talking points at the negotiation stage of the M&A transaction on a specific and case-by-case basis.

Should you require any more information or assistance kindly contact Samuel Kisuu or your relationship partner at Africa Law Partners

This alert is for general use only and should not be relied upon without seeking specific legal or tax advice on any matter.

Dentons advises on GEM Capital Holdings’ all cash offer for Volga Gas

Dentons has advised GEM Capital Holdings on its all cash offer for the entire issued and to be issued ordinary share capital of Volga Gas plc, an AIM listed independent oil and gas exploration and production group operating in the Volga Region of Russia, which has now been declared wholly unconditional.

GEM is a private limited liability company incorporated in Cyprus wholly owned by Anatoly Paliy which makes investments directly and through its subsidiaries in, inter alia, specialised chemicals, nanomaterials and technology companies. In addition, Anatoly Paliy holds interests in several oil and gas assets. The takeover was noteworthy in that it was not recommended by Volga Gas’ Board but was structured such that the offer was not opposed by the Volga Gas Board either.

Thomas Keane, Director of GEM, said: “We are grateful to Dentons for their very helpful and pragmatic advice and hard work on the transaction”.

Neil Nicholson, partner in Dentons’ UK Corporate team who led on the deal, said, “We were pleased to support the GEM Capital Holdings team to help deliver a successful transaction in less than straightforward circumstances.”

Alongside Neil Nicholson, the Dentons team in London included Corporate senior associate Simon Mitchell, Corporate associates Joe Collingwood and Charlotte Uden and Corporate trainee Andrew Gallagher.

Pinsent Masons advises Teva Pharmaceuticals on €84mn sale

Multinational law firm Pinsent Masons has advised Teva Pharmaceuticals’ subsidiary, Actavis Group PTC, on the successful €84m sale of a suite of consumer healthcare products to Karo Pharma AB (Karo).

The transaction transfers ownership of the brand portfolio, comprised of Flux®, Decubal®, Lactocare®, Apobase®, Dailycare® and Fludent® from Teva to Karo. The transaction is is expected to close on April 1.

The Pinsent Masons team was jointly led by partners Allistair Booth and Thilo Schneider and included senior associate Ciaran Wilkinson.

Commenting on the transaction Thilo Schneider said: “I am so pleased that we have been able to support Teva and to have brought this transaction to a successful conclusion. The sale is significant for both parties and we are proud to have achieved a successful outcome for Teva. We worked closely with them to understand what they wanted to achieve and helped to determine the best options available to them.”

Hogan Lovells advises Shaftesbury on its £300m equity capital raising

International law firm Hogan Lovells have advised Shaftesbury on its equity capital raising which intends to raise gross proceeds of approximately £297 million by way of a fully underwritten firm placing and placing and open offer. Up to a further approximately £10 million in gross proceeds may also be raised by way of an offer for subscription which is not underwritten.

Shaftesbury is a real estate investment trust with a portfolio that extends to 16 acres in the heart of London’s west end, where the COVID-19 pandemic and the measures to contain it have had, and continue to have, a material adverse effect on normal patterns of activity and business. In light of the COVID-19 pandemic, Shaftesbury are carrying out the capital raising to help ensure its group maintains a strong financial base, is positioned to return to long-term growth as pandemic issues recede and, should conditions improve, is able to invest further in its exceptional portfolio.

The Hogan Lovells team was led by Corporate & Finance partners Nicola Evans and Raj S. Panasar with support from partners Jonathan Baird, Gill McGreevy (Real Estate) and Elliot Weston (Tax).

Commenting on the transaction, partner Nicola Evans said: “We are delighted to have partnered with Shaftesbury on this significant transaction which ensures Shaftesbury is in a stronger position to deal with the continuing impact of COVID-19. Agility in helping companies with the optimal type of capital raise for the circumstances is key at the moment, as the business environment can change daily.”

Kirkland advises Gordon Brothers on €100M ABL facility

Kirkland & Ellis has advised Gordon Brothers on an Asset Based Lending (ABL) facility in the amount of €100 million to a leading German hypermarket store chain. B. Riley Financial is participating in the loan as a minority partner.

The advice provided by a team of Kirkland lawyers from Munich and London included the comprehensive structuring of the transaction from a financial, contract and insolvency law perspective as well as its documentation and implementation.

Gordon Brothers is a global consultancy and investment company which provides customised liquidity solutions in the retail, commercial and industrial, and finance sectors.

The Kirkland team was led by Munich-based restructuring partner Sacha Lürken, debt finance partner Dr Alexander M.H. Längsfeld and restructuring partner Dr Bernd Meyer-Löwy; and also included London-based debt finance partners Evgeny Zborovsky and Karen Ford and associates Oliver Trotman and Adebayo Lanlokun.