Grifols’ Shanghai RAAS acquisition: A share swap deal first

By Tomás Dagá and Oscar Calsamiglia, Osborne Clarke; Joe Chen, JunHe
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Spanish pharmaceuticals company Grifols picked up a significant stake in Shenzhen-listed Shanghai RAAS Blood Products in an unprecedented type of cross-border share swap deal involving a privately owned overseas company and a non-state-owned listed Chinese company.

Tomás Dagá, Partner 合伙人, Osborne Clarke
Tomás Dagá
Partner
Osborne Clarke

Barcelona-based Grifols, upon clearance from regulatory authorities and completion of other closing conditions, now has a 26.2% stake in China’s Shanghai RAAS, which has in return received 45% of the economic rights and 40% of the voting rights of US-based Grifols Diagnostic Solutions (GDS), which was earlier a fully owned subsidiary of Grifols. The swap agreement was valued by the parties at about US$1.9 billion.

Osborne Clarke España and JunHe served together as legal counsel for Grifols.

Shanghai RAAS is the leading blood products manufacturer in China, with plasma collection sites and blood product manufacturing sites throughout mainland China. Grifols is a plasma-derived products manufacturer listed on the Spanish IBEX-35 and US Nasdaq, and is a leader in the collection of plasma, with plasma-derived product manufacturing sites in the US, Canada and Spain.

The deal was structured through a swap of shares by means of the execution of an assets purchase agreement by share issue (swap agreement) executed in March 2019, by and between Grifols and Shanghai RAAS. GDS is the holding company of the diagnostic division of the Grifols Group, a division that is mainly devoted to out-licensing technology and commercialising equipment and consumables for the testing of blood (for transfusions) and source plasma, with manufacturing sites in the US, Spain and Switzerland.

Oscar Calsamiglia, partner, Osborne Clarke España
Oscar Calsamiglia
Partner
Osborne Clarke

Ancillary to the swap agreement, Shanghai RAAS and Grifols, together with, among others, China-based Creat Tiancheng (a reference shareholder to Shanghai RAAS), entered into an exclusive master strategic alliance agreement, whereby Grifols would appoint Shanghai RAAS as its distributor in China for the commercialisation of its products in the bioscience field, certain quality and operation standards were to be applied and complied with in the operations of Shanghai RAAS throughout, and Grifols would license certain technology and provide certain engineering services to Shanghai RAAS.

Certain other provisions were agreed whereby Grifols and Shanghai RAAS, as shareholders of Shanghai RAAS and GDS, respectively, would have the right to appoint a certain number of directors as the board of directors of Shanghai RAAS and GDS, respectively.

In parallel, the articles of incorporation of Shanghai RAAS and those of GDS were agreed to be amended as a condition to the entry of Grifols into the shareholding of Shanghai RAAS, and that of Shanghai RAAS into the shareholding of GDS, both as minority shareholders (increase of number of directors, increase of quorums required at shareholder and board level for the proposal and/or approval of amendment of the articles of incorporation, or the approval of certain relevant business matters).Grifols’ Shanghai RAAS acquisition: A share swap deal first, 基立福与上海莱士的并购 交易:同类首例换股交易

The major challenge of the deal arose from the swap of shares of a US company (GDS), which is not owned by a Chinese shareholder, in exchange for those of a Chinese-listed company that is not state-owned (Shanghai RAAS). Among various regulatory authorities in the US and China, the consummation of the swap agreement required two regulatory hurdles that were successfully overcome by the parties:

Joe Chen 陈江, Partner 合伙人, JunHe 君合律师事务所,
Joe Chen
Partner
JunHe

(1) The deal was cleared by the China Securities Regulatory Commission and the filings of the deal were accepted respectively by the National Development and Reform Commission and the Ministry of Commerce, where Shanghai RAAS was authorised to consummate the China outbound investment in GDS by acquiring the GDS shares, and Grifols was authorised to consummate the China inbound investment in Shanghai RAAS by contributing the GDS shares, all of which was based upon the fairness of the arrangements reached between the parties, the valuations provided by the parties on the Shanghai RAAS shares and GDS shares, the fairness of the side arrangements ancillary to the swap arrangement, and also on the basis of the valuation reports and legal, financial and valuation due diligence reports prepared by various legal and financial advisers, with respect to the assets, liabilities and commercial future prospects of GDS (and those of its subsidiaries in Spain, Switzerland and Hong Kong), and of Shanghai RAAS (and its subsidiaries throughout China); and

(2) The deal was cleared by the Committee on Foreign Investments in the US (CFIUS), through the execution of a national security agreement entered into by and between Grifols, Shanghai RAAS and the US Department of Defence, and US Department of Treasury, the latter and both on behalf of the CFIUS, whereby, subject to compliance of the parties to the agreement, Shanghai RAAS, a Chinese foreign company acquiring a US-based asset (the GDS shares), was authorised to acquire a minority interest in GDS.

The swap agreement was consummated in March 2020. From the Grifols side, the transaction was led by Tomás Dagá and Oscar Calsamiglia, partners at Osborne Clarke España, and Joe Chen and Tao Xudong, partners at JunHe.

US firms Proskauer Rose (corporate counsel) and Hogan Lovells (CFIUS counsel) also provided advice to Grifols on the US aspects of the transaction.

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Tomás Dagá is a partner at Osborne Clarke. He can be contacted on +34 93 419 1818 or by email at tomas.daga@osborneclarke.com

Oscar Calsamiglia is a partner at Osborne Clarke. He can be contacted on +34 93 419 1818 or by email at oscar.calsamiglia@osborneclarke.com

Joe Chen is a partner at JunHe. He can be contacted on +86 21 2208 6245 or by email at chenjiang@junhe.com