Private Equity

As a recognised industry leader, Deacons has been advising participants in the private equity industry since inception of the industry in Australia. Our private equity practice is one of the most established in Australia and benefits from our extensive network through Asia.

We have a dedicated private equity team with in-depth industry knowledge and world class expertise gained from our extensive experience in complex and cutting edge transactions in Australia and other leading private equity markets.

Our private equity team provides a full range of services for all stages of the investment cycle, including fund establishment, investments (early stage and expansion), buyouts, portfolio transactions and exits.

Working alongside our dedicated team of private equity specialists are our many experts in areas of law relevant to private equity, including taxation, finance, competition, information technology, intellectual property, property, environmental, OHS and workplace relations.

Navigating the investment cycle

Our practical and commercially-oriented advice will guide you through the whole investment cycle:

• fund establishment - legal and regulatory aspects of fund structuring, establishment and capital raising, including the negotiation and preparation of fund documents, disclosure documents and management agreements addressing applicable tax and legal implications

• early stage, expansion and later stage capital investments - including the negotiation and preparation of subscription agreements, convertible note deeds, shareholders’ agreements and other investment documents with appropriate investor protections

• buyouts - management buy-outs, management buy-ins and other leveraged buyouts, both primary and secondary, including legal due diligence, the negotiation and preparation of shareholders’ agreements, the preparation of bidding documents and the negotiation of sale and purchase agreements and other acquisition and debt funding documents

• portfolio management - additional capital investments, roll-ups and other acquisitions and disposals, executive and employee incentive plans, capital re-organisations, re-financings, buy and build activities, consolidations and restructurings

• divestments - including trade sales, listings on the ASX and overseas stock markets (such as AIM and NASDAQ) and secondary buyouts, including conducting vendor legal due diligence, the establishment of due diligence programs and data rooms, the preparation of information memoranda and disclosure documents, the preparation and negotiation of sale and purchase agreements and other disposal documents, regulatory compliance and the negotiation of underwriting arrangements

• public to private transactions - including technical regulatory advice, preparing pre-bid agreements, implementation agreements, bidder’s statements and other bidder documents and managing regulatory compliance, including the requirements of ASIC and the Takeovers Panel

We act for all participants in the industry including investors, funds (including fund-of-funds), management teams, portfolio companies, asset consultants and advisers.

No transaction is too small or too large.

• Legal update: Capital Account Election for Managed Investment Trusts

  A welcome announcement in the May 2009 Federal Budget was to provide deemed capital account treatment for gains and losses made on disposal of investment assets by Australian managed investment trusts (MIT). The announcement goes some way to alleviating concern as to the appropriate taxation treatment on disposal of investment assets by funds and whether gains or losses should be treated on capital or revenue account.

  11 Jun 09 Fadi Khoury, Peter Norman

• Deacons in the press: Private equity: State of the market

  Law firms have observed major changes since ALB last published its Private Equity (PE) guide in 2007, reports ALB Magazine, 9 February 2009. Deacons partner Nick Humphrey says he has enjoyed a "strong calendar year", working on about 25 PE deals that ranged between A$20m and A$150m, including new MBOs, roll-ups and portfolio follow-on investments.

  10 Feb 09 Kate Alexander, Nicholas Humphrey

• Deacons in the press: Private Equity still active at mid-range, says Deacons

  While most firms have experienced very little large-end private equity work for most of the year, some firms focusing on the mid-market have enjoyed a steady workflow, reports ALB Online, 17 December 2008. Deacons partner Nick Humphrey said he has enjoyed a "strong calendar year", working on about 25 PE deals that ranged between A$20m and A$150m.

  19 Dec 08 Kate Alexander, Nicholas Humphrey

• Legal update: ASIC prohibits short selling of “borrowed” stock

  What this means for you: Both naked short selling and covered short selling (except for a limited market maker exception) are banned for the time being. ASIC will reassess this position in 30 days time; It appears that brokers could be liable for short selling by their clients, whether they know that the trade is a short sale or not. This is most likely an error in the drafting of the relevant Class Order but we are not aware of any amendments to the Class Order at this stage; In any event, brokers should seek confirmation (preferably written) from their clients before each sale that their client is the owner of the shares being sold and that their ownership is not as a result of a securities lending arrangement.

  22 Sep 08 Shane Bilardi, Ron Holzer, Robert Sultan

• Deacons in the press: Private Equity - State of the market - 6/12/2007

  Deacons receives acknowledgement as a respected name in the private equity sector in the latest edition of Australasian Legal Business, Issue 5.11.

  6 Dec 07 Nicholas Humphrey , Mary-Anne Webb

• Newsletter: Private Equity - November 2007

  Deacons national private equity team is pleased to provide you with the November edition of our private equity e-newsletter. In this edition we cover Wholesale Equity Schemes: Licensing Relief for Trustees, we discuss Recent Tax Changes: How will they affect you? And we analyse Private Equity Consortium Arrangements.

  2 Nov 07 Fadi Khoury, Peter Norman, Tim Woodforde

• Deacons in the press: Lawyers cash in on boom - 17/9/2007

  Deacons was mentioned in a recent article in the Australian Financial Review (14/9/2007) in relation to the private equity boom, which has fuelled "an unprecedented rise" in big deals and partner pay. The author noted that Deacons has been one of the biggest improvers.

  17 Sep 07

• Deacons in the press - The right mix 10/8/2007

  Deacons partner Nick Humphrey was recently interviewed in CFO magazine, about the levels of different gearing equations currently employed across various organisations and industries.

  28 Aug 07 Nicholas Humphrey

• Australian Venture Capital Journal: February 2007 - Key structuring issues in industry roll-ups

  There have been a number of high profile industry consolidations or roll-ups in recent times that have created significant shareholder value such as Fone Zone, ABC Learning Centres and Medical maging Australia. However, powerful as the strategy is, it is not suited to all industries and there are significant execution and integration risks, as demonstrated by recent failures such as Stockfords and Harts.

  15 Feb 07 Nicholas Humphrey

• Deacons in the press – Key structuring issues in industry roll ups 15/02/07

  Deacons partner Nick Humphrey recently wrote an article for Australian Venture Capital Journal (February 2007).

  15 Feb 07 Nicholas Humphrey