Deals Hub

The below Q+A was first published in Lawyers Weekly on 15 November 2023.

1.  What challenges did the team face in completing such an expensive acquisition, and how were these overcome?

Antonella Pacitti, Partner Corporate M&A

• There is always challenge in reconciling the requirements of different legal regimes, including the disclosure expectations and timing ask, and these are heightened when both bidder and target are listed entities.
• We do a lot of cross-border M&A work, which provided ready muscle memory and existing neural pathways (among the deal team and the broader KWM firm) to allow focus on the novel aspects of the deal and an ability to clearly pursue Newmont’s strategic objectives.
• We brought together a cross-practice team within KWM, allowing us to respond across various workstreams in parallel and in a coordinated way – making sure key team members stayed across all workstreams, providing our client and their other advisers with easy access to what they needed when they needed it (and across timezones!). Newmont is a class act as an organisation and in dealmaking, which made our job as advisers that much easier too.

2.  What does the finalisation of this deal say about the state of M&A in the Australian market at present?

Will Heath, Partner Corporate M&A

• It is very much consistent with a thriving M&A environment in mining and metals, and ongoing consolidation in the gold sector in particular. M&A in other sectors remains a bit more stop start.
• Deals are taking longer to do with regulators and shareholders taking more assertive positions. More difficult deals require bespoke structuring and balancing of a range of issues, and we were delighted to help Newmont achieve a number of firsts, including a secondary CDI listing on ASX coupled with a PDI listing on PNGX (the first of its kind).

3.  What does the finalisation of this deal say about the state of mining in the Australian market at present?

Scott Langford, Partner Energy, Resources & Infrastructure

• Mining M&A remains very strong in Australia across a range of metals including gold and lithium.  We have tier 1 assets and there are good opportunities for domestic and international acquirers who are looking to grow their asset portfolios.
• We can’t be complacent, however.  There are headwinds for investors including regulatory uncertainty and delay on mining projects, as well as increased activism.  Australian governments and regulators need to remain supportive of the metals and mining industry in order to attract and retain investment, including through M&A.
• The recent acquisitions of Oz Minerals by BHP, and now Newcrest by Newmont, where KWM in each case represented the acquirer, are nevertheless testament to the ongoing attraction of high quality complementary assets in a stable jurisdiction with low sovereign risk.

4.  Against the backdrop of current market conditions, what will constitute best practice for M&A teams moving forward if they are to best support clients in closing such deals?

Antonella Pacitti, Will Heath – Partners Corporate M&A & Scott Langford, Partner Energy, Resources & Infrastructure 

Three things come to mind.

1. First, you need a team that knows the specific sector and client, and can identify the sector-specific and niche regulatory issues that may arise on an M&A deal.  For our Newmont/Newcrest deal, Scott led our team on all mining matters and brought over three decades of mining sector experience in the relevant countries involved in this transaction including Australia, PNG and North America.  It helps to know the client really well too, and Scott’s/our relationship with Newmont also goes back to the early 90s!
2. Second, these large and complex deals require a deep bench and intense collaboration.  Antonella and Will led a large transactional team that ran with negotiations, transaction documents, disclosure documents and transaction planning for almost the entire year, and juggling across Denver, New York, London, Perth and Sydney/Melbourne time zones.
3. Third, teams need to have specialist leaders in the areas that impact transaction certainty and key deal terms.  Our KWM team included Simon Cooke, who led on global antitrust filings, Mal Brennan, who is our FIRB lead, Greg Protektor, who assisted with a range of tax structuring and transactional issues, Adrian Perkins, who brought extensive knowledge of the PNG regulatory regime, and Ruth Rosedale on employment matters. 

5.  Any other relevant comments?

Antonella Pacitti & Will Heath – Partners Corporate M&A

• The Newmont/Newcrest deal is one of a handful of cross-border ‘scrip for scrip’ (that is, share for share) acquisitions, the other key examples being Unibail’s acquisition of Westfield and Square/Block’s acquisition of Afterpay, and the proposed merger of Allkem and Livent that is ongoing.
• Our KWM team was involved in all of these transactions and we have developed strong expertise on complex legal issues involved in offering shares across borders, getting foreign companies listed on ASX and overseas exchanges, and navigating layers of regulatory approvals.