Japan-Australia M&A Year in Review 2015 - ANZCCJ · Real Estate • MIRAITTechnologies Corporation's acquisition of 51% of CCTS ... • It is important for the government to strengthen

Japan-Australia M&AYear in Review 201518 NOVEMBER 2015

Agenda

Session 1:Overall trends in Japan Australia

cross-border M&A

Session 2:

Key legal updates

Session 3:

2016 M&Apredictions and

deal opportunities

Japan-Australia M&A Year in Review 20152

Session 1OVERALL TRENDS IN AUSTRALIA JAPAN CROSS-BORDER M&A


Image taken from http://www.dfat.gov.au/fta/jaepa/snapshot/ on 10 November 2014

2015 M&A trends in Japan


Source: Thomson Reuters, 2015.

Highlights of 2015

15 Jan•JAEPA commences•JAEPA commences

28 May• Japan Post acquisition of Toll Holdings completes (announced 18 February 2015)• Japan Post acquisition of Toll Holdings completes (announced 18 February 2015)

May• Bald Hills Wind Farm commences operations• Bald Hills Wind Farm commences operations

16 Jul• All Nippon Airways announces resumption of flights to Australia from December 2015• All Nippon Airways announces resumption of flights to Australia from December 2015

4 Aug•BTMU celebrates 30th anniversary of banking operations in Australia•BTMU celebrates 30th anniversary of banking operations in Australia

5 Oct•TPP is agreed•TPP is agreed

28 Oct• Nippon Life announces acquisition of 80% of Australian life insurer MLC• Nippon Life announces acquisition of 80% of Australian life insurer MLC


Commencement of JAEPA


Previous thresholds

• $248 million for business investments

• $54 million for developed non-residential commercial real estate (not heritage listed)

• $5 million for developed non-residential commercial real estate (heritage listed)

Previous thresholds

• $248 million for business investments

• $54 million for developed non-residential commercial real estate (not heritage listed)

• $5 million for developed non-residential commercial real estate (heritage listed)

Current thresholds under JAEPA

(commenced 15 January 2015)

• $1,094 million for business investments

• $252 million for business investments involving prescribed sensitive sectors

• $1,094 million for developed non-residential commercial real estate

Current thresholds under JAEPA

(commenced 15 January 2015)

• $1,094 million for business investments

• $252 million for business investments involving prescribed sensitive sectors

• $1,094 million for developed non-residential commercial real estate

Signed on 8 July 2014 – commenced 15 January 2015

JAEPA is the first comprehensive EPA between Japan and a major trading partner – including in-roads in to Japan's protected agriculture sector.

Japan Australia M&A deals in past 12 months


Sector Deal Date

Business & professional services

• Recruit Holdings Co.'s acquisition of PeopleBank• Recruit Holdings Co.'s acquisition of Chandlers Macleod• Nikken Sekkei's global business alliance with the Buchan Group architectural

practice

• January 2015• April 2015• September 2015

Finance / Insurance

• Mitsui & Co., Ltd's acquisition of a 20% interest in Westbourne Capital Management Ltd

• Nippon Life's acquisition of an 80% shareholding in MLC, National Australia Bank's life insurance business announced

• May 2015• October 2015

Construction / Real Estate

• MIRAIT Technologies Corporation's acquisition of 51% of CCTSTelecommunications Construction Pty Ltd

• November 2014

Power / Energy and Resources

• Eurus Energy Holding's acquisitions of a majority interest in CBWF Holdings which is developing the Coonooner Bridge Wind Farm and of an interest in Kennedy Windfarm

• Mitsui & Co., Ltd's acquisition of Kipper field from Santos

• April 2015

• November 2015

Transport & Logistics

• Japan Post's acquisition of Toll Holdings Ltd • May 2015

Food and Beverage / Agriculture

• Warrnambool Cheese & Butter's acquisition of Lion Dairy's everyday cheese business

• Murray Goulburn's acquisition of Mitsubishi's 24.1% interest in Tasmanian Dairy Products

• March 2015• October 2015

Automotive • VT Holdings Co Ltd's acquisition of Scotts Motors Artarmon from Marubeni

Automotive Holdings

• November 2014

Manufacturing • Fujikura's acquisition (through AFL) of AFC Group a manufacturer of fibre

optic cabling

• May 2015

Notable trends in Japan-Australia M&A

Shift in sector focus

Acquisition of mature businesses

Australia as a profitable

market

Strategic alliances

Mega-deals in developed economies

Asset recycling


Session 2KEY LEGAL UPDATES

FIRB - Agribusiness

February 2015 announcement

Increased scrutiny of foreign investments in Agricultural Land and Agribusiness outlined

Permitted by JAEPA under a carve out

$15M "Rural Land" screening threshold now in place but likely to be amended to refer to "Agricultural Land" which will have a broader application

$55M "Agribusiness" screening process was also flagged by the Government

Foreign ownership register for Agricultural Land to commence in 1 July 2015


JAEPA

Community concerns


• While the Government welcomes foreign investment because it plays an important and beneficial role in the Australian economy, there are community concerns regarding foreign direct investment in agriculture in Australia.

• It is important for the government to strengthen scrutiny, accountability and transparency around foreign investment in agriculture and protect Australia’s interests and providing assurance to the community.

Welcoming foreign

investment in agriculture

Community concerns

ADM bid for Graincorp


• On 29 Nov 2013, the Australian Treasurer blocked a proposed acquisition by ADM of GrainCorp, an Australian grain business with a network of storage and port facilities in Australia

• “Australians can have confidence that investments into agriculture will be scrutinised to ensure that they are not contrary to the national interest,” : Treasurer Joe Hockey in Parliament on 20 Aug 2015

What's new?


• New "significant action" and "notifiable action" regimes

• Some new key definitions

• Fees

• Penalties – strengthening enforcement

• New "significant action" and "notifiable action" regimes

• Some new key definitions

• Fees

• Penalties – strengthening enforcement

Foreign Acquisitions and Takeovers Legislation Amendment Bill and Regulation 2015

• Registration system under which ATO collects information

• Obligation to notify

• Registration system under which ATO collects information

• Obligation to notify

Register of Foreign Ownership of Agricultural Land Bill and Regulation 2015

"Significant Action"

• An action to acquire interests in securities, assets or Australian land, or otherwise take action in relation to entities and businesses, that have a connection to Australia (broad meaning)

• Change in control (agriculture – not required)

• The threshold test

• A foreign person is not obliged to inform the Treasurer that they are proposing to take a significant action unless the action is also a notifiable action(that is, only certain significant actions are also notifiable actions)

• However, the Treasurer has power to make a broad range of orders in relation to a ‘significant action’

• Significant actions may be notified to give investor certainty


"Notifiable action" - Conditions


• Kinds of action (any of the following)

(a) to acquire a direct interest in an Australian entity or Australian business that is an agribusiness;

(b) to acquire a 20% (up from 15% in the current Act) (=substantial interest in) of an Australian entity;

(c) to acquire an interest in Australian land (which includes residential, commercial or agricultural land or a mining or production tenement).

• The threshold test

• kinds of entities covered

– an Australian corporation that carries on an Australian business, whether alone or together with one or more other persons; or

– an Australian unit trust; or

– an Australian entity that is the holding entity of an entity mentioned first and second

• action taken by a foreign person

"Notifiable action" - Obligations


• A foreign person who proposes to enter an agreement to take a notifiable action must give a notice to the Treasurer before entering the agreement.

• A foreign person who gives a notice above must not enter the agreement mentioned above before the earliest of the following days:

– the day that is 10 days after the end of the decision period (that is, 30 days after the day the Treasurer receives a notice from the person about the proposed significant action which is a notifiable action unless the person requests in writing that the Treasurer extends the period);

– if an interim order is given to the person—the day specified in the order;

– the day a no objection notification is given to the person.

Key thresholds – entity/business


Action Value Threshold test

Acquisition of a substantial interest in an Australian entity (not agribusiness) through share acquisition

The higher of:• total asset value for the entity

or • the total issued security value

$1.094 million

Acquisition of a substantial interest in the assets of an Australian entity (not agribusiness)

The value of the consideration for the acquisition

$1.094 million

Acquisition of a direct interest in an Australian entity that is an agribusiness

The total of the following:• the value of the consideration

for the acquisition;• the total value of the other

interests held by the person, alone or together with one or more associates

$55 million(except for investors from USA, New Zealand, Chile)

Key thresholds - land


Action Value Threshold test

Acquisition of an interest in prescribed land – eg residential, vacant commercial, mining or production tenements

N/A No threshold

Acquisition of an interest in agricultural land

The total value of land held by the foreign person in aggregate

$15 million (except for investors from USA, New Zealand, Chile or an enterprise or national of Singapore or Thailand)

Acquisition of an interest in any other land

The value of the interest in the land

To be prescribed

Associate


Relevant to:

• "substantial interest"

• "direct interest"

• value threshold for acquisition of Agribusiness

• "foreign person"

• "foreign government"

Broad definition BUT an associate of a person will no longer be an associate of that person's associates

Person

Acting in concert

Associated formally or informally

Business partner

A holding entity

A corporation in which the person holds

20%

A corporation

in which holds 20%

in the person

Scheme of avoidance

"Foreign person"


Individual non-resident

Corporation in which non-resident individual, foreign corporation,

foreign government holds substantial interest

Corporation in which 2 or more persons, each of

non-resident individual, a foreign corporation or

government, hold an aggregate substantial

interest

A foreign government

"Direct interest"


Interest of >10%

Interest of >5% plus legal arrangement relating to the business

Interest of >1% where > 5% already held (12 month period)

Interest of any percentage if acquirer has influence, participation, control

"Agribusiness"


Division A

All agriculture

All forestry

All fishing

Division C

All food manufacturing

Specific exceptions

• Will be prescribed in regulations. Likely to be a business that carried on wholly or partly in the following classes of the Australian and New Zealand Standard Industrial Classification Code:

• Diversified businesses are agribusinesses if value of assets or revenue/profits derived from agribusiness > 25% of the total

Beef/chicken/dairy production and manufacture

• Agribusiness

– cattle farming

– poultry farming

– meat processing (eg abattoir)

– poultry processing

– milk and cream processing

– cheese and other dairy product manufacturing

• Not agribusiness – manufacturing:

– cured meat and smallgoods

– ice cream

– cereal, pasta and baking mix

– bakery product

– confectionery

– potato, corn and other crisps

– prepared animal and bird feed


Forestry

• Agribusiness

– Forestry

– Logging (including hewing or rough shaping timber or cutting firewood in forests)

– Forestry Support Services


• Not agribusiness

– Log Sawmilling and timber dressing (wood chipping, or timber re-sawmilling and dressing)

– Investing in any of the above activities

– Distilling eucalyptus oil

– Other wood product manufacturing (Prefabricated Wooden Building Manufacturing, Wooden Structural Fitting and Component Manufacturing, Veneer and Plywood Manufacturing, Reconstituted Wood Product Manufacturing, Other Wood Product Manufacturing)

"Agricultural land" vs "Australian rural land"


Agricultural land

Land in Australia that is used, or that could reasonably be used, for a primary production business

Australian rural land

Land situated in Australia that is used wholly and exclusively for carrying on a business of primary production

"Primary Production Business"


"Primary production business" in the definition of Agribusiness has the meaning in the Income Tax Assessment Act 1997 (ITAA)

Cultivating/propagating plants

Maintaining animals for sale or for meat

Manufacturing dairy produce

Felling trees in plantation or forest

Transporting trees to mill

Agricultural land – "could reasonably be used"


The facts and circumstances

of the land

The primary uses allowed on the land under its zoning

Land use history

Land characteristics

Lease or licence

conditions or limitations

Case studies

• Windfarms are often located in rural areas or on properties which are zoned for primary production – high likelihood that that land will be considered to be Agricultural Land


• Forestry – squatter example – under previous definition, where there was a mixed use, the land would not be "rural" but for Agricultural Land, no longer relevant since it is sufficient if part of the land can be used for primary production

Fees


Fees for giving notice of notifiable actions

If the notifiable action is… the amount of the fee is…

a) to acquire a direct interest in an Australian entity or Australian business that is an agribusiness

b) to acquire a substantial interest in an Australian entity

a) if the consideration for the acquisition is $1 billion or less—$25,000; and

b) otherwise—$100,000.

to acquire an interest in agricultural land

Purchase price number x $10 000purchase price number is the amount worked out using the following formula, rounded down to the nearest whole number:

The proposed consideration for the proposed acquisition1 000 000

a) if the consideration for the acquisition is $1,000,000 or less—$5,000; and

b) otherwise—worked out in accordance with the formula.

Penalties


Amendment

Divestment orders

Criminal penalties

Civil penalty

Current law

Divestment orders Criminal penalties

Register of Foreign Ownership of Agricultural Land Bill 2015


A foreign person who hold, at the start of 1 July 2015:

(a) a freehold interest in agricultural land; or

(b) a right to occupy agricultural land under a lease or licence whose remaining term (including any extension or renewal) was (at the start of 1 July 2015) reasonably likely to exceed 5 years

MUST• give notice of the holding to the Commissioner • in the approved form (www.ato.gov.au/aglandregister)• before the end of 30 days starting on the day the law commences

(December 31st 2015)

Initial issues


•Stocktake of current holdings of Agricultural land

•What land interests are held?

•Are the interests held through a company?

•Which entity holds them?

Understanding current land interests

•Who is responsible for ensuring that proper records are maintained of land interests?

•Who is responsible for reporting to the ATO?

•Centralised system or divisional?Reporting obligations

•Are the types of businesses in which you will invest agribusinesses? Do they involve the acquisition of an interest in Agricultural Land?

•Can you take advantage of FTAs which are more favorable for investors?

•Can you overcome the $15 million cumulative threshold for Agricultural Land by acquiring through new subsidiaries?

Approach for future investments

•Should you also apply where there is a significant action but it is not notifiable?

•When should you apply? Proposed transaction or signed?

Application process strategy

Session 32016 M&A PREDICTIONS AND DEAL OPPORTUNITIES

2015FY M&A Results


2016 M&A: on the way up


Low $A

Low inflation and interest rates

Global recovery (led by US and Europe)

FTAs/ EPAsand TPPsigned with key trading partners

Energy & Resources – Asset divestment in the Australian coal sector

• Continued depressed coal prices

• Major players looking to sell-down or exit coal portfolios in Aus: Rio Tinto, Vale, Peabody and Anglo American

• Medium players struggling for survival

• End user opportunities: steel makers and power companies



Australian Agribusiness

Inputs

•Seed, Fertiliser & Spray

•Machinery & Equipment•Research & Development

•Financing

Logistics

•Roads, Rail & Ports

•Upcountry Storage •Trading & Futures

•Shipping & Export

Processing

•Grain Milling

•Dairy Processing•Fibre & Textile

•Food Processing

Agricultural Competiveness White Paper

• Road and Rail Infrastructure – efficient and cost-effective transport infrastructure

• Reduced Regulation – streamline regulation (reduce "red" & "green" tape)

• Foreign Investment – increasing transparency

• Education & Labour – strengthening education and labour availability

• Water – development of water infrastructure projects

• R&D – supporting and improving R&D and implementation

• International markets – improving systems and market efforts


Policy objective – improve competitiveness in the Australian agriculture sector and its supply chain

Opportunities – Pre-Farm Gate


•Succession planning

•Need for capital to support growth

•Consolidation and efficiencyFamily Farm

•A$15 million thresholdFIRB

•Existing stations or holdings

•Consolidation Opportunity?

Opportunities - Processing


•Capital investment

•Creation of "export" commodity

Food & Processing

•A$55 million thresholdFIRB

•Strategic stakes

•Greenfields with local partnerOpportunity?

Opportunities - Infrastructure


•Efficient and effective transport

•Storage

•Sustainable water managementProjects

•Access regime

•Possible higher FIRB threshold Legal issues

•Regional corridors

• Ports – stakes & purpose built

•Northern AustraliaOpportunity?

Other


•Trucks, Tractors and Headers

•Product storage

Plant & Equipment

•Traditional "Stock & Station Agents"

•Contract servicesAg services

•Net importer of fertiliser

• Pesticides & Veterinary products

• Fuel Other Inputs

Natsuko [email protected]+61 3 9679 3833

Arabella [email protected] +61 3 9679 3012

Geread DooleySenior [email protected]+61 2 9258 6625

237392054

© Ashurst 2015

These materials are for training purposes only

and are not intended to be a comprehensive

review of all developments in the law and

practice, or to cover all aspects of those

referred to. Please take legal advice before

applying anything contained in these materials

to specific issues or transactions. For more

information please contact the presenters or

your usual contact.

Documents

Japan-Australia M&A Year in Review 2015 - ANZCCJ · Real Estate • MIRAITTechnologies Corporation's acquisition of 51% of CCTS ... • It is important for the government to strengthen