Mexico’s revision of maritime regulatory framework brings clarity in wake of energy reform

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By Benjamin Torres and Hector Medina

Baker & McKenzie México 

Mexico is restructuring its entire regulatory framework governing the energy sector, and hasn’t neglected the need to address ambiguities hindering private sector participation in linked industries governed by maritime law.

The first step in the country’s sweeping energy reform was taken by the Mexican government on 20 December, 2013, with landmark amendments to certain key articles of the Mexican Constitution related to the energy sector, including hydrocarbons and power generation. Those amendments are the legal foundation for broader participation by private entities in several activities that were previously reserved for Mexican nationals or the Mexican state.

Mexico has made several attempts to stimulate the development of its energy sector over the years, including the so-called “Energy Reform” spearheaded by former president Felipe Calderon in 2008. The truth is, none of the previous attempts had the desired effect, since any real change required a revision of the fundamental legal framework governing the energy sector in Mexico: the Constitution.

The recent constitutional reforms have led to the enactment of a new set of energy laws and regulations as well as substantive amendments to other laws and regulations to align them with the new energy reform framework. The intention is clear: to allow greater private participation in the entire Mexican energy sector, downstream, midstream and upstream, whether hydrocarbons or power.

The reform is still in its implementation phase and there are several regulations, administrative guidelines and other regulatory provisions yet to be issued. However, over the last year, the reform has achieved measurable results, particularly in the hydrocarbons sector with the publication of tenders for offshore shallow-water exploration and production and production enhancement under the Round One bidding procedure, which were published by the recently strengthened Mexican National Hydrocarbons Commission (CNH). The call for tenders has been well received by many of the relevant players in the domestic and international energy industry. Several well-known companies in the upstream sector are participating in different stages of the tender process.

There are other sectors of activity that have been realigned with the new energy policies introduced by the Mexican government as a result of the constitutional reforms. The maritime sector, which has a very close connection to the oil and gas industry in offshore exploration and production operations, is governed by the Navigation and Maritime Commerce Law enacted in June 2006 (the NMC law).

The NMC law governs the operation of vessels and other naval artifacts in Mexican waters as well as the most important agreements related to such activities including charter parties and purchase and sale agreements, among others. A naval artifact is defined as any fixed or floating structure not designed or built for navigation but that is capable of being moved on the water by itself or by another vessel, or built on the water.

Regulations for the NMC Law were published in the Federal Official Gazette on 4 March, 2015 and became effective on 4 April, 2015.

Prior to the enactment of the NMC law, two previous versions of navigation laws coexisted and remained in force: a Navigation Law enacted in 1994 as well as another Navigation Law and Maritime Commerce Law enacted in 1963. Both were repealed by the new NMC law except for certain regulations under the Navigation Law of 1994, which remained in effect. Those regulations have now been furnished by the new regulation published on 4 March, 2015, which offer new guidelines for private sector business opportunities.

Prior to the new regulations of the NMC Law, the legal standing of foreign vessels in Mexican waters operated by foreign navigation companies was not entirely clear and according to some interpretations, only Mexican navigation companies could operate foreign-flagged vessels in Mexico by securing a temporary navigation permit limited to a maximum of two years. These permits are granted for a period of three months and can be renewed up to seven times. If the vessel stays more than two years in Mexican waters, it has to be flagged as Mexican, but certain exceptions may apply for highly specialized vessels, including those dedicated to oil and gas activities.

It was, however, possible for foreign navigation companies to operate foreign-flagged naval artifacts, such as drilling rigs and production platforms under temporary authorizations. This confusing legal structure led foreigners to implement complex corporate and tax structures involving incorporation of Mexican navigation companies to hold permits to operate foreign-flagged vessels and still comply with restrictions on foreign investment provided by the law.

The new regulations to the NMC law provide a much clearer process to allow foreign entities to secure permits to operate foreign-flagged vessels and naval artifacts, such as rigs and production platforms. Although foreign navigation companies will continue to face some restrictions, these will not represent a significant obstacle to their business activities. Moreover, the new regulations provide specific treatment for vessels and naval artifacts dedicated to oil and gas activities, including its regulation of navigation and permanency in Mexican waters, safety and inspection, crew training, and prevention of pollution caused by hydrocarbons, among other matters critically important to prepare an efficient business plan.

Article 40 of the NMC law provides that “the operation and exploitation of vessels in interior and coastal navigation is reserved to Mexican navigation companies with Mexican vessels”. However, an exception is provided in case of the lack of existence of available Mexican vessels in equal technical conditions or in case of public interest, where it is possible to grant temporary permits for coastal navigation in favor of Mexican navigation companies with foreign vessels.

Moreover, Article 41 of the NMC law provides that “having conducted the bidding process with the preference provided under items I and II of the above Article, a permit may be granted for a new procedure including foreign navigation companies with foreign vessels.” It is important to mention that prior the enactment of the new regulations to the NMC law, there was no clear procedure provided to include foreign navigation companies with foreign vessels and therefore to issue temporary navigation permits in favor of foreign navigation companies with foreign vessels, as provided under Article 41.

Now, the new regulations to the NMC law, provide under Article 226 that, “the foreign navigation companies, in order to exploit and operate foreign vessels in coastal navigation, will require a temporary navigation permit according to Article 41 of the NMC law…”.

In light of the above, the possibility for a foreign navigation company to apply for a temporary navigation permit to operate foreign vessels in coastal Mexican waters has greater clarity than under the previous regulation. It is provided, however, that the Maritime Transportation Industrial Chamber must be notified as to the application of any permit, such that the chamber may indicate the availability of a Mexican vessel with the same technical capabilities. A general notice must be served to Mexican navigation companies so they can exercise their preferential right granted under Article 40 of the NMC law, as outlined above.

In conclusion, if a foreign navigation company applies for a temporary navigation permit to operate a foreign vessel in Mexican coastal waters, the procedure described above shall be conducted and all the conditions under Article 41 of the NMC law and under Article 226 of its new regulations must be complied with, so the corresponding authority can issue a navigation permit, even if it is a foreign navigation company with a foreign vessel.

OTHER OPPORTUNITIES IN MEXICO’S MARITIME SECTOR

Another important activity that is expected to be further developed in Mexico is ship building. This is also reflected in the new regulations to the NMC law, which added specific provisions and standards for such activities, including the granting of authorizations for shipyards to operate in Mexico.

The Mexican government’s effort to harmonize all sectors involved or related with the new energy industry has been remarkable, and the maritime sector constitutes clear evidence of this.

In addition to the enactment of the regulations to the NMC law, the federal government aims to foster and promote the sector. Last year, it announced a plan to update the applicable regulatory framework to increase the legal certainty in connection with the merchant marine; extend and modernize port infrastructure; and modernize the maritime fleet, focused on highly specialized equipment for the oil and gas sector. The plan also includes substantial investment.

Companies interested in participating in maritime business opportunities in Mexico will need to fully understand and be well advised of the Mexican maritime regulatory framework, including its recent developments, in order to carry out an effective business plan and implement the most efficient corporate and tax structures.

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About the authors

Benjamin Torres is a partner at Baker & McKenzie and head of the firm’s energy, mining and infrastructure practice in Mexico.

Hector Medina is an associate in the firm’s real estate group, and a member of the mining, energy and infrastructure practice group.

TTR Dealmaker Q&A – Manuel Romano (Jones Day Mexico)

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TTR Dealmaker Q&A

June, 2015

NII Holdings sells Nextel Mexico to AT&T

USD 1.88bn

Manuel Romano 
Jones Day Mexico

On 30 April, NII Holdings successfully concluded the sale of its Mexico-based subsidiary, Nextel de Mexico, to AT&T for USD 1.88bn. Manuel Romano, a partner in Jones Day’s Mexico City office who focuses his practice on mergers and acquisitions, led the local team that advised NII Holdings on the sale.
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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.

 

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TTR Dealmaker Q&A – Daniel Del Rio (Basham, Ringe & Correa)

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TTR Dealmaker Q&A

April, 2015

Crown Holdings acquires Empaque from Heineken

USD 1.23bn

Daniel Del Rio
Basham, Ringe & Correa

On 18 February Philadelphia-based Crown Holdings closed the acquisition of Empaque from Heineken’s wholly owned Mexican subsidiary, Cuauhtémoc Moctezuma. Daniel Del Rio led the legal advisory team in Mexico at Basham, Ringe & Correa that advised the buyer in this USD 1.23bn transaction.
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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.

 

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TTR Dealmaker Q&A – Carlos Chávez (Galicia Abogados)

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TTR Dealmaker Q&A

March, 2015

AT&T acquires Iusacell from Grupo Salinas

USD 2.5bn

Carlos Chávez
Galicia Abogados

A team led by Manuel Galicia, José Visoso, and Carlos Chávez , Partners at Mexico City-based Galicia Abogados, advised AT&T on its acquisition of Mexico-based Iusacell from Grupo Salinas. The deal closed on 16 January, 2015. This was the first mobile carrier acquisition resulting from the new 2014 Telecommunications and Broadcasting Act, designed to bring greater competition to the market. The Telecoms Act of 2014 came on the heels of initial constitutional changes signed into law by President Enrique Peña Nieto in mid-2013.
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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.

 

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TTR Dealmaker Q&A – Richard Hall (Cravath, Swaine & Moore)

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TTR Dealmaker Q&A

February, 2015

Cutrale-Safra Acquire Chiquita Brands International

USD 1.26bn

Richard Hall
Cravath, Swaine & Moore

On 6 January Cavendish Acquisition Corp, an investment vehicle formed by Brazil-based Cutrale and Safra Group closed the acquisition of Charlotte, North Carolina-based Chiquita Brands International (NYSE:CQB) in a deal worth USD 1.26bn, including USD 685.91m in equity and USD 582.59m in net debt. Cravath, Swaine & Moore partner Richard Hall advised the buyers on this historic deal, resulting in the delisting of one of the world’s largest banana producers.
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Q: At what stage was Cravath retained?

A: Cravath was first approached about this transaction on behalf of Cutrale-Safra in late July, 2014, referred by Michael Rubinoff who works as a full-time advisor to the Safra Group. I’d done a number of actual and potential transactions with him for Banco Santander in the 2009-2011 time frame, during the global financial crisis, in his prior life at Bank of America Merrill Lynch. Cravath had not previously done any work for the Safra Group or Cutrale.

Q: How did Cravath land the mandate?

A: From my perspective, I did not feel that we were in a process, or beauty contest of any kind. Once we cleared out conflicts we were retained immediately. It was late in their consideration to launch a bid. The way it was presented to me by Michael, they were inclined very favorably towards bidding and at this time had decided to retain financial and other advisors. They came to us and said, “we’ve decided we would like to buy this company, help us navigate the tactical and legal challenges that stand in our way of acquiring the company.”

Q: On what basis did Cutrale-Safra launch its bid?

A: Let me address that from three dimensions: First, from the perspective of the shareholders of Chiquita, we believed the Fyffes transaction undervalued Chiquita.

Second, we believed we were better owners than shareholders of Fyffes. That speaks to a view that is more strategic in nature in terms of the relative importance in the banana distribution chain of growers versus logistics versus marketing versus retailing. At Cutrale-Safra, they believed that the growers are the most important part and that logistics is the second-most important part. Fyffes broadly viewed marketing and logistics as more important than growing. For example, if you look at the percentage of Fyffes throughput that comes from Fyffes-owned or Fyffes-managed real estate, it’s much lower than for major competitors like Dole or Del Monte.

“At Cutrale-Safra, they believed that the growers are the most important part and that logistics is the second-most important part”

Fyffes has much more of a business that is a spot purchase from growers. Cutrale-Safra have a view of the industry that it’s more important for big players in the industry to have more ownership over the plantations. By and large, all the big players in the industry – they get the production either from plantations they own, plantations they have long-term contracts with, or plantations with spot or short-term contracts, re-pricing all the time to make money. If you own, you can make money a different way by running your plantations better. Fyffes sits in the camp that willl take a higher percentage of output from spot markets. Because of that disagreement, we thought we were a better owner, one that could provide more value in the long run to all the players in the banana distribution chain.

“We believe these businesses are better located in a private company or in a much larger company that has a portfolio of other related assets”

The third issue is that we believe pure-play banana companies are just not well valued in the marketplace, because the industry is very seasonal and very cyclical, it’s hard for the capital markets to value these businesses over time. We believe these businesses are better located in a private company or in a much larger company that has a portfolio of other related assets. From a capital markets perspective we’d be a better owner; we’d be able to manage the cycle. Cutrale-Safra, they’re private, and as a private company they’re able to ride out the cyclicality and seasonality of the business. From a capital markets perspective, Chiquita-Fyffes would have been a large, close to pure-play banana company.


Q: How did the debt on Chiquita’s books affect the buyers’ appetite for the deal?

A: They viewed it as undervalued regardless and they had lots of money. They will in the near term run the business less leveraged, mainly because they will be generating less free cash flow because they will be reinvesting more in growing.

Q: How close was the Fyffes-Chiquita deal to closing when Cutrale-Safra stepped in with a competing bid?

A: We announced our offer in the second week in August. Chiquita had already mailed out their proxy material for their meeting, so their meeting was originally scheduled for three weeks after our offer was submitted. This meeting was to be held for Chiquita shareholders to approve the Fyffes transaction.

Q: What made this transaction unique?

A: First, it is somewhat rare in the US for interlopers to jump agreed bids. Jumping a bid is itself somewhat rare. It is quite rare that in the context of a jumped bid, the bidder has to take it all the way to a proxy fight.

Certainly for a transaction of this size, it is extremely rare to have an interloper go all the way to a shareholder meeting and win the vote; and even more rare that, having taken it all the way to a proxy fight, the jumped bidder actually wins the proxy fight.

“It is extremely rare to have an interloper go all the way to a shareholder meeting and win the vote; and even more rare that, having taken it all the way to a proxy fight, the jumped bidder actually wins the proxy fight.”

A second very interesting feature was that it unfolded in such a short period of time. Normally proxy contests in the US are very slow and drawn out processes of months and months. A few people deserve thanks for that, but it was largely a function of the timetable set out in the proposed Chiquita-Fyffes transaction.

Q: What are the market implications of the deal?

A: The most significant market implication of this transaction gets back to strategic vision for the industry. Chiquita, under its new owners, will be looking to invest in and grow its existing plantations. This is likely to lead to more direct competition at the growing level alongside the other two big players which are focused on growing, Dole and Del Monte, at the expense of players like Fyffes, which are more focused on logistics. If Cutrale and Safra are correct, power will shift away from logistics-focused Fyffes, towards growers.

If Chiquita is successful in buying up more plantations, and entering into longer-term contracts with growers, it will put pressure on companies like Fyffes and will lead to growers being better off. Growers will be able to command better pricing, and will grow capacity, either by buying farms, buying established growers or entering into more long-term contracts. Brazil could be an opportunity; it’s wherever they can find the land.

Q: How will this transaction impact Chiquita operations, production and distribution?

A: In terms of the basic banana distribution chain, the Cutrale-Safra vision is to invest in the growing – in the farms. You can expect to see more capital expenditure, more firepower on long-term contracts for people on the ground managing the production.

There will be modest synergistic gains on the logistics side, combining the logistics, administrative costs and expertise; the nuts and bolts of how you manage ships, rather than the ships themselves. Cutrale has its own logistics business that is primarily focused on the transportation of oranges, from a variety of places, including Brazil. The actual ships that transport oranges and bananas are different, but the management is common to both.

Chiquita’s corporate headquarters will be scaled back, and with the de-listing there will no longer be a need for public reporting which will result in cost savings. Leaving aside the headquarters synergies, we weren’t anticipating great synergies.

The ultimate unknown here for Cutrale-Safra is, are they right that investing in the farms, in the growing, has a bigger payback than investing elsewhere?

Q: What practice areas at Cravath were instrumental in its work on behalf of the buyers?

A: The three big practice areas were the M&A, finance and tax. We did some amount of work on the executive compensation and benefits, and if necessary we had a litigation side ready.

Q: What opportunities does the transaction present for the growth of Chiquita and associated businesses?

A: With the private ownership and the capital available from Cutrale-Safra, there’s an opportunity for substantial investment on the grower side that Chiquita wouldn’t have made and Chiquita-Fyffes wouldn’t have made because of their different strategic vision.

“The contest in the medium term will play out between the two competing visions for the industry”

The contest in the medium term will play out between the two competing visions for the industry. Most of the production of bananas sits with independents, people who aren’t locked into long-term contracts. At the moment there’s a lot of opportunity for Fyffes to get hold of a lot of production.

Q: Will Fyffes look to another deal to lock in a significant chunk of production?

A: Based on public statements, we do not believe that Fyffes thinks they are on the wrong side of that strategic vision. If they do not change their mind, they remain comfortable with this approach to the market, they obtain most of their production on a short-term basis and they will continue to own a significantly lower percentage of their throughput than Chiquita, Dole or Del Monte.

 

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