THREE LAW firms acted in the latest move on media interests in Australia — the consortium bid for APN News & Media.
An independent committee of the APN board approved a scheme implementation agreement with Independent News and Media (Australia) Limited (INMAL), a consortium of Irish company Independent News & Media PLC (INM), Providence Equity Partners and The Carlyle Group.
INM holds 35 per cent of the consortium, Providence 37.5 per cent and Carlyle 27.5 per cent.
The Board of APN agreed last week to an offer of $6.10 per share for all shares in APN after an initial offer of $6.05 was rejected in late January. The scheme will require approval by shareholders, a court hearing as well as Foreign Investment Review Board (FIRB) approval.
A subcommittee of the APN board, chaired by Ted Harris, was formed to negotiate with the consortium and decide on the bid as INM already holds a 41.6 per cent stake in APN.
Harris said the offer was a 21.3 per cent premium to the 30-day volume-weighted average price of APN prior to the introduction of the new cross-media ownership laws into Federal Parliament on 14 September, which caused many media stocks to rise on speculation of takeover bids.
Allens partner Ian McGill said his team negotiated the scheme implementation agreement with Blakes, acting for APN, as well as conducting due diligence on APN for the consortium and for the financiers, and helping to secure the financing package.
“The most interesting part of the transaction was working with INM’s English lawyers, Freshfields, and lawyers [for the private equity parties] Weil Gotshal, in London on the consortium agreement,” he said.
He said Allens had also worked very closely with the accountants, PricewaterhouseCoopers, who did the international structuring. McGill’s team also included partner Phillip Cornwell, Alex Elser and Michael Steel.
Blakes partner Phillip Maxwell led the firm’s team acting for APN and the subcommittee of APN Board directors.
He said the changes to the cross-media ownership laws, which include amendments to the Broadcasting Services Act 1992 (BSA), which have not yet commenced, are not “technically” required for this deal to go ahead, but under present laws, the consortium still requires foreign investment approvals.
“Technically the nature of APN’s media assets, which is primarily regional print media in Australia, and radio, are not caught by the Broadcasting Services Act amendments — those amendments are not required to effect this transaction,” he said.
“However, the Government has foreign investment policy, and it has media-specific policy, and their current limit for foreign ownership is a 50 per cent limit.”
He said the consortium needs approval from the FIRB, and the Federal Government “needs to decide how its decision on this fits within the overall framework of those [BSA] amendments”.
“So that’s a matter that the consortium is going to need to pursue with the Treasurer over the next few weeks.” He stressed, however, that once the new cross-media rules are in place, FIRB approval will not be necessary.
Corrs Chambers Westgarth acted for INMAL, a wholly owned subsidiary of INM. Lead partner Richard Lewis said his team had to advise the directors of the bidder, which included ensuring all the funding was in place before they signed the bid document.
“The bidder is committing to acquire the balance of 60 per cent of APN it does not already hold for several billions of dollars if the scheme goes through. So the directors had to be comfortable before they signed the scheme documents that the bidder could meet its obligations and in particular that both the debt funding and the equity commitments from the consortium were in place to fund the bid,” he said.
He said the deal involved some complex arrangements.
“If the scheme goes through, the consortium comprising Independent News and Media — the Irish parent company of my client controlled by Tony O’Reilly — The Carlyle Group and Providence Equity Partners will subscribe for equity in a new vehicle under a complex new structure, and that equity will be partly used to fund the bid for the balance of APN but also used to acquire control of our client and with it the existing [stake] in APN.”
Because INM already holds 41.6 per cent of APN, if the scheme is approved its holding through INMAL will drop to 35 per cent. This means INM will receive the equivalent of about $600 million if the deal goes through to reflect the reduction in its stake.
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