TTR Dealmaker Q&A
Telefónica acquires GVT from Vivendi
Machado, Meyer, Sendacz e Opice Advogados
Q: Why was your firm selected to act on behalf of Telefónica in this transaction?
A: It was a natural selection because we have been assisting the Telefónica Group since the privatization of Telebras in 1996-1997. We’ve been assisting Telefónica in all the transactions it carries out in Brazil, including when it competed for GVT and lost to Vivendi in 2009.
Q: What expertise did Machado, Meyer, Sendacz e Opice bring to the table?
A: The deal required expertise in various areas, with one of the most challenging being regulatory. Our capital markets practice played an important role in a follow-on issuance involved in the GVT deal in the amount of USD 5bn in shares, which was entirely subscribed. This was an overwhelming success at a difficult time in Brazil’s capital market. It was a very complex deal for the firm’s M&A practice, as Vivendi received part of the purchase price in cash, and part in shares of Telefônica Brasil through the merger of GVT’s shares into Telefônica Brasil; a portion of Telefônica Brasil shares thus received by Vivendi were subsequently exchanged by Vivendi with Telefónica for shares held by Telefónica in Telecom Italia, thus allowing Telefónica to begin exiting its investment in Telecom Italia and its indirect ownership in TIM Brasil. Our tax team also played an important role in solving, in an efficient manner, several tax issues faced in all aspects of the deal. The simultaneous closing in São Paulo, Paris, Milan and Madrid contributed to the complexity of the deal.
“It was a very complex deal for the firm’s M&A practice, as Vivendi received part of the purchase price in cash, and part in shares of Telefônica Brasil through the merger of GVT’s shares into Telefônica Brasil”
Q: What concerns did the regulators raise?
A: The Brazilian regulators forced Telefónica to exit its stake in Telecom Italia because of the condition barring it from indirectly holding shares in two competing operators in Brazil, namely Telecom Italia’s subsidiary TIM Brasil, the country’s number two player in mobile with 27.1% market share, and Telefônica Brasil, the market leader with 28.5% market share in mobile services. The Brazilian regulators were also concerned about that portion of the deal that would result in Vivendi receiving, as part of the GVT purchase price, shares of Telefônica Brasil, thus becoming a direct shareholder in Telefônica Brasil and an indirect shareholder in TIM Brasil as a result of the swap of shares between Telefónica and Vivendi. These two main issues required a complex negotiation with Brazilian antitrust authorities and telecom regulator, Anatel.
Q: How long did the negotiations with regulators take to conclude?
A: We started to approach the local authorities immediately after the execution of the SPA in September, 2014, and before making any required filings. Negotiations with the regulators commenced in October, 2014 and concluded in March, 2015.
Q: Telefónica had been the expected buyer of GVT in 2009. What went wrong then?
A: The seller decided to accept Vivendi’s offer for the controlling shares, and Telefónica gave up on the public tender offer it had launched to acquire GVT. In 2014 Vivendi manifested its desire to exit Brazil and Telefónica decided to present an offer for GVT. Vivendi also received an offer from Telecom Italia for the same asset. Telefónica’s offer conditions were much more attractive, and Vivendi decided to proceed with Telefónica. The purchase agreement was negotiated in record time in just two weeks: one week in São Paulo and one week in Paris, concluding with the signing on 18 September, 2014.
“The purchase agreement was negotiated in record time in just two weeks: one week in São Paulo and one week in Paris”
Q: What prompted Vivendi to sell GVT?
A: Telecom is a very capital-intensive business; it needs investment all the time. Vivendi was small relative to other players in the market to compete effectively and the company required more capital to grow the business.
Q: Apart from being extremely profitable, what made this asset so attractive for Telefónica?
A: It would complement geographically and also GVT is very strong in broadband. It has a very attractive fiber network and a strong presence in the corporate market.
Q: Why is GVT so profitable?
A: It was very well structured and managed by its CEO, Amos Genish, one of the founding shareholders of GVT. He’s now the top telecom guy in Brazil and has accepted the position of CEO at Telefônica Brasil. He is the leading executive at Telefónica Group in the country, which GVT is now part of.
Q: How was a multiple of 14.86x on 2013 EBITDA arrived at?
A: The telecom market is undergoing consolidation in Brazil. GVT was at the point where it would start to lose market share, but it represented synergies for the buyer. It was one of the few assets in play in a consolidated market; there’s a price in that. There was virtually no geographical overlap. The regulatory issue was in the crossed ownership of Telefónica and Telecom Italia and Vivendi and Telefônica Brasil. The antitrust and telecom authorities approved the merger of operations with no relevant objections, and more importantly, the price paid by Telefônica Brasil to Vivendi was supported by appraisals and opinions prepared by investment banks by using criteria typically adopted in deals of this nature.
Q: What does this transaction represent for the telecom sector in Brazil?
A: Telefônica has now improved its offering mainly in Internet and data services thanks to GVT’s strong fiber network. It’s a strong and solid company. It was already the largest telecom operator in Brasil. GVT was not a competitor. In fact, one of the issues raised during the negotiations with the regulatory authorities was that it could become a good competitor, because it was growing, but it was not the intent of Vivendi to invest heavily to realize that growth, so essentially the competitive landscape remains the same after the deal. The telecom market is dominated by Telefônica, TIM Brasil, Claro and Oi, which together control around 95% of the market. I believe there is no room for more operators. The transaction won’t impact pricing for consumers, but Telefônica can now compete in areas where it was not a major player previously.
Q: What made this transaction unique among deals your firm has advised on?
A: First, for the consideration involved. This was the biggest M&A transaction in Brazil, in terms of price, of the past 35 years. Secondly, owing to the complexity of the transaction, it was important for the firm to be involved. It was very important for the firm to strengthen its professional relationship with Telefónica and build on the confidence the country’s largest telecom has in us so that we can continue assisting the company in the years ahead.
“This was the biggest M&A transaction in Brazil, in terms of price, of the past 35 years”
Q: How did the firm celebrate the closing?
TTR Dealmaker Q&A
NII Holdings sells Nextel Mexico to AT&T
Jones Day Mexico
Q: How did Jones Day land the mandate?
A: NII Holdings, the parent of Nextel Mexico, has been a longstanding client of the firm in the US. We have advised the company in various countries in Latin America and due to our deep experience in handling this type of cross-border transaction and the strength of our US-Mexico footprint, there was no beauty contest. We had helped them a few years ago with the sale and lease back of towers, so we were known by the Mexican subsidiary, and that made things easier.
Q: At what stage in the negotiations was Jones Day’s Mexico City office retained?
A: We were retained right after the bidding process was concluded, in November, 2014. To clarify, it was the firm that was retained, with lawyers in the US involved as well, not just our Mexico City office.
Q: What changes in the market paved the way for this transaction?
A: This deal happened because of the telecom reform – because the sector became clearly opened, so the dominant player is now induced not to be dominant, and in that sense, it has to divest certain assets and or share certain infrastructure, as we all know. I think we have to look at this from a federal administration standpoint. It took only one-and-a-half to two years to pass since the PRI took office and began waving the flag of telecom reform. Of course these reforms are hard to pass; they impact very important sectors and very important entities. América Móvil and or Telmex, was the most affected. Two years was not a long time to get it through the two chambers in Mexico.
Q: What were the most challenging aspects of the transaction from the Mexico perspective and for the lawyers from Jones Day in Mexico City?
A: They were two large entities. AT&T didn’t have a large presence before, but Nextel was obviously a large, complex entity. In general the regulatory aspects of Nextel were a challenge; this company had so many concessions that had to be looked at closely to see if authorization was required or a simple notice was required to the Instituto Federal de Telecomunicaciones (IFT). The sheer number of retail outlets was also a challenge. These were small stores that each had their own lease agreements. They topped 700, easily, and each had its difficulties being transferred. We had to identify which ones were important, and a lot of information had to go through the purchaser. The regulatory issues and volume of information presented a challenge.
Q: Were there any competition concerns surrounding the deal?
A: Our firm didn’t handle the antitrust process, but the hurdles with Iusacell when that deal took place were less than when the Nextel transaction happened. The conditions were very light, however; It’s hard to argue against a transaction where your competitor has 70% of the market. That was still the case when the Nextel sale unfolded.
“It’s hard to argue against a transaction where your competitor has 70% of the market.”
Q: What are some of the challenges in representing a sell-side client like NII in this deal?
A: The way that agreements are drafted on the sell side, the seller is responsible for any or most information that’s provided to the purchaser. It’s a challenge with companies and transactions of this size, to be exhaustive in providing information to the purchaser.
Q: How does this transaction reshape the playing field?
A: It definitely reshapes the market. For many, many years there was one huge player: América Móvil, Telmex and then Telefónica, Iusacell and Nextel; more than 70% of the market was dominated by Telmex. Iusacell and Nextel together will be a 15% player with deep pockets, and in this telecom market, a lot of money is required to invest, and that’s what you have with AT&T. You have a competitor with 15% of the market planning to invest its money in México.
Q: Where does this leave Telefónica/Movistar?
A: It leaves it in a better position. Now you have two big competitors against a huge giant; it’s a better position to have. Plus, the reform gives it access to infrastructure of the dominant player.
Q: How did this transaction demonstrate the capacities of Jones Day’s Mexico City office?
A: First because it was a big deal in the market given the value, in a sector where deals are big but deals are few, and second because our substantial capabilities in Mexico are part of an integrated law firm working collaboratively to advise clients on complex matters. In this case, the sale agreement is governed by New York law and our colleagues in the US were equally important to the deal’s success. With lawyers in Mexico City, New York, and several more Spanish-speaking lawyers in our Miami office on the team, we worked as a single firm. It’s a much more efficient and effective approach than information flowing between cooperating but distinct firms.
Q: Will your firm’s performance in this deal encourage other Mexican firms to merge with peers from the US?
A: I’m the biggest advocate of that concept. In the past year or two, many Mexican firms have merged. The rationale? From the US partner’s perspective, it’s a big market down there, what better way to serve our clients than to have a presence in Mexico?
Q: Have you found that Mexican corporates favor a local firm over a foreign firm that can provide the same service, or vice versa?
A: I don’t think Mexican corporates are enemies of their money – so they go for the best regardless of where the firm is from. Our approach to serving clients as one firm worldwide is a terrific fit for Mexican corporates.
Q: Is Mexico’s legal market ripe for consolidation?
A: We have a big economy by LatAm standards, and we’re the country with the smaller firms regionally. It will happen in Mexico and between Mexican firms and peers from abroad; internal consolidation doesn’t necessarily clash with cross-border deals. If you’re a smaller Mexican firm, you better do something; you cannot remain a five-lawyer firm.
Q: How does the firm split its work between buy-side and sell-side mandates?
A: I would say that we are 60-70% more on the buyer side, just because the US origin of the firm, and it’s more common for US entities to come and purchase businesses down here than for Mexican companies to go and buy.
Q: What’s your outlook for M&A activity in Mexico for the next 18 months?
A: It’s looking a lot better than 2008, about the time when we joined Jones Day, which opened in Mexico in 2009. Our side of the market, which is serving our global clients in Mexico, and mostly US clients because that’s where the firm comes from, is pretty simple: the US is doing better, interest rates are low, and lately, with the devaluation of the Mexican peso, we have richer clients to purchase those cheaper assets – it’s a good time and a good outlook as long as the US economy is doing well.
TTR Dealmaker Q&A
Crown Holdings acquires Empaque from Heineken
Daniel Del Rio
Basham, Ringe & Correa
Q: Clearly this was an attractive asset that generated healthy cash flow. Why sell it?
A: The strategy for Heineken was to focus more on the main activity of selling beer, and that’s the reason for disposing of this asset, even though according to the strategy of the previous owners, it made sense to have the containers within the production lines. Though it was a good company, Heineken preferred to have someone else supply the cans and bottles rather than continuing to manage this kind of operation.
“Though it was a good company, Heineken preferred to have someone else supply the cans and bottles rather than continuing to manage this kind of operation”
Q: Were there other suitors in the sale process?
A: We know there were several people interested. That aspect of the deal was managed directly and very confidentially by the people representing Heineken.
Q: Why was Crown Holdings the best buyer for this asset?
A: Crown was looking to position itself better in the Mexican market and saw a very good opportunity. Crown has been in Mexico for a long time and I have been representing the company for the past 25 years. It’s an excellent company, they’ve had good market share, and this was a good opportunity to increase that participation within the Mexican market. Crown has worldwide operations, but it is very much interested in Latin America. Crown is very forward looking and committed for the long-term. It has been an excellent client for us and takes many things into consideration, including the labor force, which they try to maintain. These kind of projects are the ones we like in Mexico, where people are very much committed to good projects, to continue to maintain or increase jobs in Mexico, to continue to make investments.
Q: Why was this asset an attractive acquisition for Crown?
A: You have the asset and you also have the client. This is a product that Heineken requires. When you’re talking about cans and bottles, you can ship them, but it’s much better and more economical to have manufacturing facilities next to your customers rather than having to ship those products, which at the end of the day is burdensome economically. These Heineken companies held under Empaque were producing basically for Heineken production. By buying these assets you have the opportunity to continue to supply these products to the customer and also the customer was very much interested in selling to someone that would continue supplying, because this is a very important asset in order for them to produce and sell beer.
Q: Is there any restriction that would prevent Crown from supplying other clients?
A: No. There are no restrictions on Crown that would prevent it from selling to other customers. Crown will continue to supply Heineken. Actually Crown is going to be building a new manufacturing facility in Monterrey. It’s more or less associated with this transaction, and it sees an opportunity to increase market share in Mexico generally. Crown’s products are not aimed specifically at brewers, it sells cans used for soda and food products, and closures also. I know the new plant is going to be a major investment, but so far I haven’t seen figures.
Q: What synergies did Crown have with other assets in Mexico?
A: It goes in line with what it had been doing in Mexico. The only difference is that Crown had been focusing on aluminum cans. With this acquisition it acquired SIVESA, a manufacturing facility for glass bottles in Veracruz, in addition to FAMOSA, the can and closures plants in Monterrey, Toluca and Ensenada. The glass business is new for Crown. It also acquired SISA, a silica mine in Veracruz that supplies the raw material for the glass as part of the package. This was also very interesting.
Q: How did Basham land this mandate?
A: We have been working for Crown for many, many years. When this deal arose, it turned to Dechert, its legal advisor in NY and Philadelphia, and to us. We have been working together with Dechert attorneys for many years on behalf of Crown.
“The glass business is new for Crown. It also acquired SISA, a silica mine in Veracruz that supplies the raw material for the glass as part of the package”
Q: In what areas did Basham demonstrate its strengths in this transaction?
A: Since this was a Mexican transaction, Dechert was bringing most of its experience in these kind of cross-border transactions, and Basham contributed also with this kind of experience as well as with all the details related to Mexican law. The most difficult part was trying to get authorization from Mexico’s antitrust regulators.
Q: What antitrust issues came into play?
A: Crown already had operations in Mexico, and Heineken also had significant market share in Mexico. We had to wait for antitrust approval, and especially for the can business, it required a very deep analysis of the market.
Q: What convinced regulators that the deal didn’t present a threat to competition?
A: This is not a business where if you have major market share you can impose your conditions. The conditions are established by the market. You have other big players in the field and your clients are big players, not just in the beer, so we’re not talking about small, vulnerable companies that would be subject to uncompetitive conditions.
TTR Dealmaker Q&A
AT&T acquires Iusacell from Grupo Salinas
Q: At what stage in the negotiations was Galicia retained?
A: We were retained in the early stages of the process. We were referred by AT&T’s US counsel, Sullivan & Cromwell, a firm we’ve worked closely with on a number of complex M&A transactions. We were selected for our M&A experience and for our strength in antitrust law. Our strength in telecom regulation also contributed to Sullivan’s recommendation. From management presentations to the deal close it only took four months. We had at least 15 fee earners involved, including six partners and we feel it was a good demonstration of our capacity to navigate complex regulatory terrain in a highly dynamic market.
Q: What market conditions set the stage for this transaction?
A: The Mexican mobile market is dominated by America Movil’s Telcel. Telefonica’s Movistar and Nextel are the other mobile carriers. What changed under the telecom reform law? It introduced the concepts of preponderance and asymmetric regulation, which requires the preponderant agent to share certain infrastructure and limits its ability to charge termination fees to other carriers and enter into exclusive dealing arrangements, among others. Together, these measures are designed to create a more competitive landscape and limit the power of the preponderant player.
Q: Why did it take so long for Mexico to legislate for greater competition?
A: The Telecom reform was one of the promises of the new Peña Nieto administration, along with certain tax, political and energy reforms. Many concepts in the new telecom act had been discussed since 2006, but did not become law as a consenus was not reached at the time. Telecommunications are a fundamental part of the development of an economy and Mexico is no exception. Market conditions at the time of the reform featured dominant players and no strong competitors. The will, the consensus to do something about it, finally allowed the 2013 amendments and the 2014 enactment of the Telecoms law.
“One thing that had an immediate impact was the elimination of restrictions on foreign investment in the sector”
Two new regulatory bodies were created, the Federal Telecommunications Institute (IFT) and the Federal Economic Competition Commission (COFECE), while the previous telecoms regulator, the Federal Telecommunications Commission (COFETEL), was dismantled. The result is a clear demarcation between general market-oriented regulation aimed at promoting competition and efficiency across all economic sectors in the case of COFECE, and oversight specific to the telecom and broadcasting industry by the IFT.
Q: How is the 50% market share threshold defining a dominant player measured?
A: This is part of what was left somehow open in the amendments. The 50% threshold is assessed on a national basis in the telecoms or broadcast services, based on number of users, subscribers, audience or on-network traffic. The position of the regulator has been that if an economic agent controls 50% or more of the entire market, using data from the main services comprising this market, such agent is a preponderant agent within the meaning of the constitutional amendments and the Telecoms Act.
Q: How was your client able to take advantage of the telecom reforms in this transaction?
A: While the main aspects of the reforms are yet to be applied, this transaction benefited from the changes relating to the new telecom regulator, IFT, and its jurisdiction. IFT is now a one-stop regulator with powers to review and clear a transaction like this, both from a regulatory and a competition perspective. We were able to file for clearance and obtain the same in an expeditious fashion, benefiting from the new rules in the Telecoms Act.
“IFT is now a one-stop regulator with powers to review and clear a transaction like this, both from a regulatory and a competition perspective”
Q: What antitrust considerations came into play in this transaction and how were these issues resolved?
A: We believe that the deal was seen favorably given everything established in the new law. One thing that the regulator did address was the historical relationship between Telcel and AT&T, which had been a minority shareholder of the Mexican company. The regulator made clear that there should be no ties between the two companies going forward. On the other hand, Totalplay Telecomunicaciones, a triple play subsidiary of Iusacell, had to be separated from the entities that AT&T acquired. IFT reviewed this separation prior to the closing and was satisfied with the result.
Q: What does AT&T’s acquisition imply for Mexico’s telecom market?
A: It’s a great prospect for the mobile market specifically to have a global competitor with a significant presence and an impeccable track record as a world-class operator.
Q: What other transactions could result from the telecom reforms of the past two years?
A: The first thing the market is waiting to see is what America Movil will do. Another pending issue is what will happen with Nextel, which AT&T has also bid for but has yet to close. Another important theme will be the tender of new public television channels. While public TV stations might have a limited lifespan ahead in more mature markets, in Mexico they are still important and the prospect of a third national network is still relevant. Another issue to consider is the impact of the reform for mobile virtual network operators.
Q: What will be the challenges for telecom operators competing under the new regulatory regime?
A: The first challenge, apart from the implementation of the reforms, is that there still is a preponderant player in the market. Also, it’s a challenge to have two new regulatory bodies with few precedents, few rules. There’s been enormous effort made to arrive here. The telecom market now requires a high level of sophistication from a regulatory and competition perspective.
“The telecom market now requires a high level of sophistication from a regulatory and competition perspective”
Q: What opportunities still remain in the telecom market and which companies are in the best position to take advantage of them?
A: Obviously under the new laws there will be opportunities. Despite the fact that there’s still a preponderant player, this is clearly a very interesting market. The penetration of smart phones is high and as broadband penetration increases, there’ll be more opportunities for additional service offerings.