Orora Australasia general counsel Jason Arnheim explained that the deal was signed in October of last year, and thus much of the completion activities, such as regulatory approvals, were able to take place prior to the global coronavirus pandemic.

However, once COVID-19 started to affect Australia and New Zealand in March of this year, there were still a large number of completion activities still in play.

Overcoming coronavirus-inspired difficulties

Once the pandemic hit, all parties involved in the deal were suddenly working from home, Mr Arnheim reflected, and – in the case of New Zealand counsel – in a significant lockdown.

“To continue to progress to completion, a number of innovative measures were necessary from all parties. This included extensive use of BM Online, Baker McKenzie’s cloud-based file-sharing software,” he said.

“As documents were concluded they were uploaded to BM Online and shared among the parties. A virtual completion was undertaken with some 20+ individuals attending via Zoom where documents were checked and released from BM Online.”

Baker McKenzie partner Peter Ickeringill noted that Orora was “very clear” when negotiating the sale agreement that there should not be a broad-based “material adverse change” (MAC) clause, but rather a specific business one.

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“As a result, there was no impact of COVID-19 impacting on the completion of the transaction and the businesses being sold as part of the deal continued to operate. As far as we know, many other deals that have failed to complete since the onset of COVID-19 have come unstuck due to MAC or force majeure clauses,” he said.

“With that not being an issue in this deal, the parties dealt cooperatively with the practical issues of COVID-19 that may impact on getting to completion and overcame them all, but we do nonetheless observe that in the case of those deals that have not proceeded to completion, this must surely have been a factor.”

When asked if completion activities on such deals will revert to being less challenging post-pandemic, Mr Arnheim said: “I think so.”

“The technology used by Baker McKenzie was excellent and the ability for the client or the firms on the buyer side of the transaction to log in and check documentation status in real-time was good.”

“Certainly, the increased use of video meetings (as opposed to physical meetings or audio phone calls) will continue from my perspective and aids in communication between the client and the firm.”

Collaboration needed to get deals done

From a client perspective, this particular deal “ran close to as a normal deal would run”, Mr Arnheim noted, notwithstanding that all parties were largely working from home.

“Certainly, there was an increase in the use of scanned documentation and digital signatures, but given the excellent communication coming from Baker McKenzie and Wynn Williams, the transaction continued to completion and any roadblocks put in place due to movement restrictions, a solution was found,” he said.

Mr Ickeringill said that material assistance from Mr Arnheim, in his capacity as senior in-house counsel – and being able to offer “in-depth knowledge of every facet of the business being sold and of every key executive within Orora” – was crucial from the firm’s perspective in getting everything done and dusted.

“As a result, his ability to obtain and give instructions, and resolve key issues, all while working remotely from home, meant that BM and WW were able to rely on him and use him as the first port of call for everything. The benefit of a senior in-house counsel who is commercial in outlook and who knows the business backwards can never be underestimated,” he mused. 

When it comes to successful collaboration between firms and legal departments on such deals, particularly in the age of coronavirus, Mr Arnheim said that communication is the key.

“Clear, concise instructions from clients to the firm are important – always. Even without the ability to meet in person, regular check-ins utilising video technology was important to keep all workstreams moving [in] the right direction,” he suggested.

“A virtual completion took place (preceded by a dry run) and once again from a client perspective ran smoothly.”

Mr Ickeringill added: “Scheduled regular catch-ups and picking up the phone ad hoc whenever necessary, between firm and senior in-house counsel, are always important in any deal, but a seamless relationship between the firm and in-house counsel where these things happen as a matter of course, [is] absolutely critical in the age of COVID-19.”