virtual Round Table Mergers and Acquisitions 2013

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1 virtual Round Table Mergers and Acquisitions 2013

2 MEET THE EXPERTS Carol Osborne - Bryan Cave LLP T: +44 (0) E: C arol Osborne is a partner in the London office and also works regularly in our Los Angeles office. Her broad corporate practice and more than 20 years of experience serving as outside general counsel for a number of public and private companies means she provides strategic counsel to clients on complex transactional and business counseling matters. She advises clients on public and private securities offerings as well as federal securities law reporting and compliance. She also counsels boards of directors and special board committees in connection with corporate governance, significant corporate transactions and fiduciary issues. Her cross-border middlemarket mergers and acquisition experience includes advising on investments, acquisitions and divestitures (including distressed and special situations) for private equity, venture capital and strategic investors and structuring joint ventures and strategic alliances. Although her practice covers a range of industries, Ms. Osborne has particular expertise working with manufacturers, retailers and private equity investors in the consumer products industry. Mohammed Khodeir - Al Tamimi & Co T: E: B efore joining Al Tamimi & Company, Mohamed practiced law in Egypt from 1999 until 2004 with one of the oldest and leading law firms, then in Kuwait with an international law firm from 2004 until Mohamed has a diversified practice in advising and representing corporate, institutional and government GCC and international clients on different areas of law including: company, securities, banking, tax, labour, litigation (and ADRs), civil and commercial law matters, regulatory compliance, insolvency laws and settlements, in addition to being involved in legislation drafting. Mohamed has been extensively involved in major M&A and IPO deals in the UAE, which are currently his principal areas of practice along with corporate governance and family businesses. Mohamed has been consecutively selected (2008, 2009 & 2010) in the Asia Law Leading Lawyers Survey, a survey conducted by voting amongst clients and legal experts, as one of the leading lawyers in the area of General Corporate Practice. Daniel Del Rio - Basham, Ringe y Correa T: +52 (55) E: M r Del Rio is Head of the M&A/Corporate Practice of the firm; recognised by Chamber s Global as one of the leading attorneys in Mexico for M&A. Practice Areas: Corporate, M&A, foreign investment, international and financial agreements, joint-ventures, real estate, antitrust, banking securities and insurance. Professional Memberships: Latin American Forum of the IBA; ICC Mexico and Chairman of the Mexican Chapter of John Paul II s Friends Foundation. Publications: The International Financial Law Review Guide to Mexico (IFLR); Mexican chapters of the Mergers & Acquisitions, E-commerce and Corporate Governance (Getting the Deal Through). Personal: Graduated from Universidad La Salle in Master in Business Administration (MBA) from Tulane University. Simon Luk - Winston & Strawn T: E: S imon Luk, a partner in the firm s Hong Kong office, is chairman of Winston & Strawn s Asia practice. His practice focuses on international corporate securities. Mr. Luk represents multinational corporations in cross-border mergers and acquisitions, U.S. capital market fund raising, compliance with regulation of the Securities and Exchange Commission policies, and the acquisition of assets and brand names. 2 3

3 MEET THE EXPERTS Mr. Luk serves as a legal adviser to the Chamber of Listed Hong Kong Companies, the Hong Kong Electronics Association, the Toy Manufacturers Association of Hong Kong, the Hong Kong Electrical Appliances Manufacturers Association, the Hong Kong Young Industrialists Council, the Monte Jade Science and Technology Association of Hong Kong, the Hong Kong Brands Protection Alliance, and the Hong Kong Shandong Business Association. Robin Johnson - Eversheds T: +44 (0) E: R obin is co Chair of Eversheds cross border M&A team and runs a team across 30 jurisdictions of over 100 lawyers. He is also Sector Chair of Eversheds Diversified Industrials sector group. Mergermarket has placed Robin regularly in the top 10 of their Rainmaker leagues in the last 8 years. Legal Business in the UK recently voted Robin as one of the top 10 M&A lawyers in the UK. In , Robin had a secondment to Parker Hannifin to assist in a major European restructure and in 2013 spent four months as interim European and Asian GC for Archer Daniels Midland. In 2012, Robin spent 4 months researching and writing Eversheds award winning M&A Blueprint: Inception to Integration report. Robin is a frequent writer and speaker on M&A issues for publications and organisations in Europe and US, including the European Private Equity Journal and the Wall Street Journal. Alexander Katzarsky - Georgiev, Todorov & Co T: E: A lexander Katzarsky graduated from Sofia University, Faculty of Law in In 1997 he studied European company and commercial law in the University of Limerick, Ireland. During the period he conducted research on the transformation of commercial companies at the Max Plank Institute for Comparative and International Private Law - Hamburg, Germany. Since 2001 Alexander is partner in Georgiev, Todorov & Co. law offices. His experience includes participation in some of the biggest M&As in Bulgaria including Bulgarian Telecommunications Company (the national telecom), Bulgartabak Holding (tobacco processing and cigarettes Production Company) and Devin (the biggest mineral water and soft drinks bottling company). Mohamed Idwan Ganie - Lubis Ganie Surowidjojo T: E: D r. Ganie specializes in commercial transactions and commercial litigation, including alternative dispute resolution and has acted as an expert in a number court and arbitration proceedings. His expertise covers general corporate/company law, mining law, investment law, acquisitions, infrastructure projects/project finance, antitrust law, and shipping/aviation law. A particular focus of Dr. Ganie s practice is corporate governance and compliance. This includes legal compliance audits and legal ratings, which is a unique product of the firm. Dr. Ganie is the Managing Partner of Lubis, Ganie & Surowidjojo. Under his management the firm has become Indonesia s largest law firm, and has obtained its ISO certifications for (1) quality management, (2) legal services and (3) environmental quality management system (all issued by UK based Lloyd s Register Quality Assurance) which has made LGS the only Indonesian law firm that has acquired and maintains such international quality standard certifications. Dr. Ganie is an Independent Commissioner of P.T. Global Mediacom Tbk, the owner of Indonesia s largest media company (television, radio, online news and printed media). Hans Georg Wille - Ernst & Young T: E: H ans Georg Wille is a lawyer working for EY in Oslo. He is educated in law and economics and has 28 years experience of working mainly with mergers and acquisitions, financing structures, cross-border structuring, international capital markets and financial instruments. Hans Georg is lead tax advisor to some of Norway s largest groups of companies. He has assisted with a number of major transactions over the years. 4 5

4 Mergers and Acquisitions 2013 Despite a 12.5% fall in the global value of M&A during the first half of 2013 there are plenty of attractive investment opportunities to be found. In this M&A Roundtable we spoke with eight experts from around the world to discuss available financing methods, post-merger integration policies and key sectors and industries facing first time acquirers. 1. The first half of 2013 saw the global value of M&A fall 12.5% against the same period of the previous year. Can you outline what factors you believe are behind this decline? Khodeir: The key factors affecting M&A activity are mostly general global factors such as uncertainties in various economies which have caused decision makers to be cautious during the first half of In turn, this has stilted growth in the second half. However, there are positive promising signals for 2014 particularly for Qatar in respect of spending taking place in its economy in relation to infrastructure projects which would propel the cycle of the economy to move rapidly as many have predicted. Delrio: In Mexico the economy has been slowing down. At the beginning of the year we expected the economy to grow around 3.7%. Now, at the end of the year, the economic projection is an expected growth of around 1.5% for If we add these results, whereby economic growth has diminished worldwide, fewer M&A deals have come to fruition. Wille: It obviously depends on sectors and regions, but overall it s due to available financing, in combination with a challenging overall growth and uncertain market movements. For the oil, gas and oil service sector within the Nordics, we do see activities in the small and medium sized business (SMB) space, but we observe fewer deals in the larger business space ( enterprise value greater than US$500 million). Johnson: It is not due to the lack of financing. It is not due to the fact that companies have managed cash and reduced borrowings during the recession and therefore have surplus cash to spend. Instead, a lot of the larger companies have been returning cash to shareholders by way of buyback programmes which will ultimately result in higher earnings per share as the earnings go against less share capital. It is also because companies have been focusing a lot more on organic growth rather than acquisition growth. Why is this? I think it is because during the recession companies assessed the value of the acquisitions they made pre-recession and realised that the promised synergies/growth had not materialised. While companies will always do deals, as an acquisition strategy has to be a part of any growth strategy, I have heard a number of companies talk about changing their mix between the larger focus on of organic growth opportunities compared to strategic opportunities. Boards are very much more risk aware. Boards are very conscious of shareholder activism and realising that the acquisitions need to show genuine synergies via integration and genuine growth. Analysts are much more savvy at looking at the benefits of an acquisition and the benefits and return on capital of an acquisition. There is still plenty of private equity money around and financial sponsors are very much in buying-mode having disappeared for a few years. Having said that, financial sponsors will be conscious that to look for an exit they need to find a strategic that is prepared to buy a company at a more attractive multiple or look at an IPO. While IPOs have to a degree come back in fashion, the confidence in the market is very fragile. Overall the lack of confidence in acquisition growth opportunities compared to organic growth is dramatic. Katzarsky: Several factors are behind this decline. In times of the global finance crisis, government activity will continue to dictate M&A. Secondly the financing in this area is dominated by the banking sector, which balance sheets do not yet reflect the actual level of non-performing loans. Thirdly, private equity financing still needs to recycle part of their investment in the region. M&A in south-east Europe, and Europe as a whole, are in the area of restructuring and reallocation of capital. So there is a more complex process of completion which takes much longer than in the past. That is why the number of acquisitions are down. Ganie: Particularly in the natural resources sector the recovery projections were at times too optimistic, which prevented M&A activity due to a mismatch in expectations, and 6 7

5 therefore prospects and valuations between sellers and buyers. This situation is starting to correct itself and we are in fact seeing more activity, including in distressed situations. In other sectors there has been concern over potential for a more significant downturn that would also significantly affect the Indonesian market, specifically hesitation regarding the fast-approaching 2014 elections. The market is also working through these issues, except for the remaining election uncertainty, and we expect to see growth in the M&A over 2014, particularly towards the end of the year. 2. Can anything be done to stimulate more activity in terms of numbers and size of deals? Delrio: In Mexico with all the structural reforms that will include energy, and more investment on the part of the government, we expect to have a more stimulated economy. Wille: That s a difficult question most of the stimuli for deals are outside of one s control, such as credit regulation and macro and market growth. Offering advice on, and sharing knowledge of, integration and best practice in aspects of inorganic growth may encourage clients to favour acquisitions as a means of meeting strategies and growth plans. Stimulation could also be achieved by focusing on internationalisation, as acquisitions generally prove to be the least risky means of penetration outside the domestic market. Johnson: All fundamentals are right. There are low interest rates and plenty of cash. There are also assets for sale. It is however a question of confidence and one could easily see that if one company breaks out, others will follow. In some sectors there is still activity for example TMT. In other sectors such as energy and industrials, companies are much more cautious and a lot of companies believe that in particular they have over capacity of manufacturing and until such time as those companies complete their internal reviews of the efficiency of their own systems it will be difficult to see certain sectors growing by way of acquisition fast. I expect to see an upturn in beginning of 2014 as confidence grows. The truth is I think companies will only execute strategic deals rather that nice deals to do. Katzarsky: Stimulating M&A can be performed through the attraction of fresh resources. Price conditions should have a more significant weight than factors such as local presence. Attention should be laid on companies with a clear vision for growth in the next three to five years and a macroeconomic support. Funds should invest in operating companies in which they have already invested. Strategic investments should be given an advantage over financial investments. Ganie: For transactions to be successfully agreed in current circumstances, and even more importantly to be successfully implemented, it is important to design transaction structures in such a way so as to reflect the parties expectations. This may mean structuring a deal in such a way that a party with an optimistic view will be able to benefit should such hopes materialise, while the more conservative party s costs are kept low in the event that the more pessimistic view becomes the reality. Ultimately, the key is managing expectations and making sure the parties interests are accurately reflected. 3. What is the best way to finance an acquisition if a business does not have enough capital? Are you seeing borrowers move away from the core lending product and into perhaps more progressive forms of financing like debt capital markets? Khodeir: I believe there are many opportunities in the equity market that have not been utilised; partially due to regulatory barriers and also reluctance by investors in taking initiatives to conclude transactions on public markets in relation to the equity side. For example: rights issues which can be used as a source of financing expansion including M&A activity. Cave: Our middle market M&A practice has seen fairly significant changes in the ways that deals get financed since Many of our clients who are strategic buyers have sufficient cash on their balance sheet to permit a fairly low leverage acquisition. But everyone is being creative in order to win the scarce deals. In the last year, for example, one of our clients used a joint venture structure that combined the financial resources of a financial buyer (a private equity fund) and a strategic buyer for a largely equity financed deal. That approach also meant that two parties shared the win on the deal. Other clients have partnered with commercial finance companies rather than traditional bank lenders simply because the terms were generally just as favourable and the underwriting 8 9

6 process was more nimble. Wille: We do see that smaller companies have drifted towards high-yield bond markets over the last couple of years, which is assumed to be due to more constrained access to bank lending. We tend to advise caution, due to the higher volatility of future cash flows for smaller companies, which leads to a greater risk of default. Johnson: The high yield bond market has been very strong for some time and for larger PE backed companies which is an attractive option to give them an acquisition fund. The banks are lending but the banks are taking a much more conservative line than they were pre-recession. They are looking for much more security and much tighter covenants. Many companies do have cash; it s a question of whether they want to use the cash or whether they want to have appropriate leverage. In the turn around world where businesses are being bought by turn around private equity players you are seeing an increasing number of asset based lenders and there is a distinct market for alternative funding structures particularly coming out of private equity houses and insurance companies that are looking to place some of their money in alternative investments. However the truth is this is limited and is only a small part of the debt market. The fundamental acquisition facility structures of bilateral or syndicated deals still are the norm and a solid appropriate capital structure with appropriate leverage of two to two and a half times adjusted share capital and reserves up to say five times adjusted share capital and reserves is an appropriate structure. Katzarsky: The standard practice in Bulgaria (due to the legal complexity of the process and the need for EU Commission (or Bulgarian Protection of Competition Commission clearance) is to obtain the initial financing via a more or less standard banking lending. And only afterwards another form of financing, including debt capital markets is used. It is used either for ensuring additional resources or for re-financing the bank loans initially used. Ganie: Delayed payment is sufficiently common, at times linked with the transaction structures described above. As is payment in shares, which can be seen in a number of transactions. Indonesian bond markets have developed over recent years and are certainly an option, although typically for the larger players with a history of bond issuances. For new entrants it should be expected that structuring a bond transaction will take longer, and will require demonstration of significant transparency by the issuer. 4. Have there been any recent regulatory changes? If so, how will they impact M&A activity? Khodeir: There have been very few regulatory changes in Qatar. However, there have been initiatives to amend the key source of transactional activity in terms of regulation being the Companies Law. A new Companies Law is in the pipeline for the UAE and Qatar, and these are predicted to help boost the market particularly if some of the regulatory barriers are removed. Delrio: The Reform in Telecommunications, Radio Broadcasting and Antitrust matters was proposed on 12 March 2013 by the Federal Government and the coordinators of several political parties. It is intended to strengthen the rights related to freedom of expression and information; to adopt measures in order to encourage competition in open and pay television, radio, mobile and fixed telephony, data and telecommunications services in general, to ensure effective competition in all sectors, and, create conditions to increase substantially the telecommunication infrastructure and the obligation to make more efficient its use, which has a direct impact on the price decrease and increase of services quality. Moreover, this reform includes the State s obligation to ensure access to information and communication technologies, as well as broadcasting and telecommunications services, including broadband and internet. It also creates the Federal Telecommunications Institute (IFETEL) as an independent constitutional body, for the efficient development of the broadcasting and telecommunications, whose duties shall be the regulation, promotion and supervision of the use, development and exploitation of radio spectrum, networks and the provision of broadcasting and telecommunication services, as well as access to active and passive infrastructure, and other essential inputs, entitling this institute to grant, revoke and authorise concessions and grants this organism with authority in economic competition matters regarding broadcasting and telecommunications sectors. Cave: In both the U.S. and the U.K. there have been some very positive 10 11

7 changes in the way that companies can raise equity which in turn spurs strategic M&A activity especially when the lending environment remains right. In the U.K., the Seed Enterprise Investment Scheme enacted in April 2012 and the older Enterprise Investment Scheme (enacted in 1994) are specifically designed to incentivise investment into small, higher-risk companies by offering capital gain and income tax relief. We have seen that both investment techniques are getting a lot of interest from U.K. based angel and venture capital investors creating opportunities for smaller companies to access growth capital and look for tuckin acquisition opportunities. In the U.S., the newly enacted amendments to Rule 506 under Regulation D to permit general solicitation and advertising in certain private placements of securities will also create opportunities for more robust capital-raising from experienced investors and fund M&A activity. Johnson: There is a lot that depends on the market. Obviously in some markets they are more regulated and therefore understanding the regulatory environment is absolutely vital. There is an increase on a general basis in terms of cartel enforcement. A number of countries have recognised the fees that can be generated out of enforcing anti-trust laws. One area to watch is protectionism and we are seeing the use of protectionist measures in the M&A environment. For example the US have stopped a number of Chinese acquirers buying assets in the US for purely political reasons. We are also seeing other countries protecting national assets but in countries like the UK which are much more liberal in their approach this is attracting investment. Katzarsky: Currently a bill on Economic and Financial Relations with Companies Registered in Tax Preferential Jurisdictions and Their Actual Owners Law is under discussion in the Parliament and most probably will be adopted before the end of the year. Apart from the requirement for revealing the actual owners (individuals), the bill is prohibiting the direct or indirect acquisition by offshore companies of Bulgarian entities involved in the following activities: banking, insurance, pension and health assurance, financial services, concessions, telecommunications, energetics, gambling, etc. Considering that offshore companies often are used as SPV in the M&A for tax optimisation purposes, it could be expected that the new legislation will further impede the M&A activity in Bulgaria. Ganie: New regulations on bank ownership have been issued, restricting bank ownership to 20% for individuals, 30% for legal entities, and 40% for financial institutions, with above 40% ownership being permissible upon the fulfilment of certain requirements and following a certain set out period. This makes acquisitions of banks significantly more challenging, with the recent example of the acquisition by DBS of Bank Danamon that was ultimately abandoned after failing to secure regulatory approval within a reasonable time. More broadly, the regulation governing foreign investment (any shareholding and transactions by foreigners except in relation to listed companies) has been revised, slightly modifying the approval procedures that have to be carried out prior to the share transfer. Luk: New Anti-Trust Review in China: There have been some developments in the anti-trust review area which are applicable to huge mergers and acquisitions. A common criticism of the anti-trust review conducted by the PRC Ministry of Commerce ( MOFCOM ) is that it has taken more time to complete its review than similar anti-trust authorities in other countries, thus delaying the progress of major M&A activities. In April 2013, the MOFCOM released Tentative Provision on the Criteria Applicable to Simple Cases of Concentrations of Business Operation (Draft for Comments) ( Draft Provisions ) to solicit public comments. By using market share as the standard, the Draft Provisions set out the conditions for the simplification of review for (a) a horizontal merger; (b) a vertical merger; and (c) a merger that is neither horizontal nor vertical. If the conditions are met, the merger will be classified as a simple case. In addition, an acquisition of an offshore target which does not conduct business in China will be classified as a simple case. However, the MOFCOM explicitly reserves discretion to recategorise cases apparently satisfying the criteria of simple cases as nonsimple cases. Although the Draft Provisions do not explain how the simple cases will be treated, it is expected that these simple cases will be subject to a simplified and expedited review process, and consultations with other governmental authority will no longer be required or at least simplified. A fast-track review can shorten the waiting period for anti-trust regulatory clearance. The public consultation period has ended and the MOFCOM has not issued its 12 13

8 formal provisions or released more information. Another noteworthy case is Wal-Mart s proposed acquisition of shares in Yihaodian, an online supermarket in China. In the anti-trust review decision made in August 2012, the MOFCOM prohibited Wal-Mart from operating value-added telecommunication business through a variable interest entity ( VIE ) structure in China. However, the MOFCOM s decision was based on anti-competition concerns and did not draw any conclusion on the legality or validity of the VIE structure itself. It is unlikely that the Chinese government would promulgate rules or take enforcement actions banning or dismantling the VIE structures in the near future. However, the Wal- Mart case may illustrate that financial investors engaging in projects that rely on a VIE structure may wish to avoid structuring a transaction that would trigger MOFCOM s anti-trust review. 5. Five of the top six deals conducted in the first half of the year involved the TMT sector. Why do you think TMT is so appealing? What other industries currently offer good value? Delrio: Currently, telecommunications, media and technology ( TMT ) sector has expanded and evidently influences cultures worldwide. TMT sector has obtained more importance through the years since revolutionary technological changes are happening every day, and during recent decades humanity has witnessed remarkable developments in that respect, including the evolution of previously existing technologies and the emergence of new telecommunications and technologies, satellites, cable television, fibre optics, video cassettes, compacts disks, computerised image making and other computer and digital technology, among others. So far in 2013, the financial sector has been the most active in mergers and acquisitions actually closed. There have been 15 transactions; the most substantial was for a total amount of $865 million dollars in cash. Food and beverage sector has been the second most active sector, with eight transactions concluded in the first half of 2013, the most substantial of which is valuated in around $700 million dollars. Other sector most likely to engage in M&As are the automotive, industrial and health services industries, as well as manufacturing companies. Moreover, the growth of the mining industry remains active. Finally, the energy sector is an industry that could potentially be benefited by the structural reforms by the Mexico s Congress. And, while oil is subject to short-term price fluctuations, global consumption is expected to grow in the long-term, as well as its industrial use. Finally, banking and telecommunications are also areas of interest. Wille: TMT has a compelling business case combining infrastructure with high and growing content, as well as mechanisms for locking in customers. It is generally assumed that content will grow, and there is high growth in emerging markets. The oilfield services space is still vibrant due to increasing technology focus, and expected growth for oil production, particularly in shale or tight formations and deep and ultradeep waters. Johnson: The TMT sector has been ripe for consolidation over a period of time. Historically the TMT sector had operated down jurisdictional lines but now increasingly as regulation lightens global players are emerging. TMT is a growth area because of its focus on the consumers, particularly young consumers, who might have money to spend. As people come out of a recession, any improved feeling of security will increase consumer spend and TMT will become even more appealing. A number of global players will exist in TMT but with technology moving very fast smaller entrepreneurial players with intellectual property rights will be attracting significant multiples. In terms of other sectors there could be incurred deals particularly in consumer high value brands which will attract Asian money. Energy assets could become more attractive again, subject to regulation, and any industries which offer a high barrier to entry and have high intellectual property content will attract significant multiples. Traditional industries such transport and contract manufacturing however, continue to have low valuations. Ganie: The Indonesian middle class is rapidly growing, as is demand for aspirational goods and entertainment. This, combined with previous underdevelopment in this sector, has resulted in significant growth of the TMT sector, and the associated transactions. Other industries that currently have potential are those connected with consumer credit, possibly insurance in the longer term as the market develops, while consumer goods are starting to see a slow down due to concerns regarding continued economic growth and the upcoming elections

9 6. What jurisdictions currently offer interesting opportunities? Delrio: Regarding mergers and acquisitions in the first half of 2013, Mexico was the first place of Latin- American countries in the amount of transactions carried out during the year (87 operations for a total amount of approximately $39,205 million). In connection with cross border operations in the first half of the year, Mexican companies carried out nine acquisitions abroad, for a total amount over $1,200 million. In this kind of operations, Mexico is the third place in Latin-American region behind Brazil and Peru. Foreign companies carried out 20 acquisitions of Mexican companies for a total amount over $25,000 million. Johnson: There is an increasing trend towards emerging emerging markets rather than the original emerging markets which are now considered to be more mainstream. However you do need to be careful what you are looking for and what you desire here. Western Europe is still considered too high cost for doing business but some of the opportunities that have been seen, say in Latin America and Africa, have not generated returns on risk capital that were anticipated. Hidden costs particularly for example local taxation and integration costs need to be watched. Companies however want to be close to their customers and therefore watching where capital goods companies and where consumer facing companies are going results in services and support services following. South East Asian countries are still seen as exciting prospects, as is Latin America. Luk: We expect to see continuously strong M&A interest, both inside China and Hong Kong and increasing outward M&A acquisitions from Chinese and Hong Kong companies. China aims, in its 12th Five Year Plan for Renewable Energy, to generate 11.4% of total primary energy from non-fossil sources by 2015 and 15% by The country s craving for developing renewable resources will make new energy sectors in China a prime attraction for foreign investors. Contrary to the traditional energy sectors, foreign investment in new energy sectors in China is encouraged and foreign-invested high-tech companies in new energy sectors can enjoy preferential tax treatment, adding to their appeal to foreign investment. Apart from M&A into China, it is expected that outbound M&A acquisitions from China in the U.S., Canada, Australia and Latin American countries will continue to be attractive as they are rich in natural resources and energy. For countries like Sudan, Libya and Syria, although they have abundant natural resources, their volatile domestic political situations and undeveloped legal systems are the main obstacles for Chinese investors who have an interest in investing in these countries. With the further development of the China-ASEAN Free Trade Area, outbound investment from China is also increasing in Southeast Asian countries such as Malaysia, Vietnam, Indonesia and Cambodia. Ganie: Indonesia continues to be an attractive market, although considering the elections slated to take place in 2014 it requires a tolerance for a certain level of political and regulatory uncertainty. At this time no clear frontrunner has emerged, and it remains uncertain what direction policies will take after the election. Nonetheless, those with an appetite for a certain level of uncertainty will find significant growth opportunities throughout a large number of business sectors that remain relatively underdeveloped compared to Indonesia s peers. 7. What are the key risks and challenges that first time acquirers must be aware of when conducting cross-border M&A? Khodeir: The key risks and challenges include the different cultures which may seem an obvious concern that acquirers need to take note of. However in many instances these are not looked at carefully. In terms of regulatory requirements, cultural differences in relation to processes and implementation, need to be addressed and considered by potential first time acquirers. Many non-local acquirers approach on acquisition process as one similar to their home jurisdiction which is in most instances a fatal error particularly when it relates to legal and procedural requirements. Delrio: It is important to highlight that most Mexican entities are family owned corporations that are governed and managed by family members. Some of these entities are in need of capital and investment to stay afloat and overcome the crisis of the past years or for purposes of expansion. The need for alternate sources of capital means the need to obtain funds through third parties, the stock market or through other companies

10 For international buyers or investors looking at deals in Mexico, we would advise the following: Legal and accounting advisors have experience in M&A transactions, especially full services law firms that can deal with all the areas of law. This becomes important, especially in dealing with family-run businesses, not used to following normal corporate and other procedures and therefore whose records and documents may not be in order. The same applies to the tax effects of the transaction where it is important for the Mexican seller to realise the effects in advance. To prepare a complete purchase agreement that would deal with all areas of the transaction. This is often time-consuming and laborious process. Especially when dealing with Mexican parties, the issue of whether the agreement will have to be in more than one language often must be addressed. Having two-language versions of the agreement can be a very difficult and laborious process as well, and is often left to the last minute, thus jeopardising time schedules. During the transaction and when considering post-closing operating issues, cultural and legal differences between the foreign jurisdiction where the purchaser may reside and Mexico should not be over looked. For example, to change employees and appoint foreign personnel is often very different in Mexico from what applies, for example, in the United States. It is important to spend time to understand these cultural differences in order to define the best course of action to take. In addition to the foregoing, antitrust, environmental, and immigration issues should be borne in mind. Cave: The biggest challenge for clients entering a new jurisdiction is that they simply don t know what they don t know. When considering a target in another jurisdiction, the business diligence should include cultural diligence, legal diligence and financial diligence. For example, an area where we see challenges between U.S. and European deals is in the employment area. The ability of an acquirer in the U.S. to make significant changes in an employee population immediately following an acquisition is often a key part of the financial engineering for a deal but that ability simply does not exist in Europe to the same degree. That legal point has often come as a surprise to first time acquirers. Wille: Cultural issues, undoubtedly, and regulatory issues as well. These risks can be mitigated by using local advisors. Also planning for a longer integration period, allowing the target to adjust to the corporate culture. Johnson: The first time you do an M&A cross border transaction management time will be the biggest factor. Doing a cross border transaction is a lot more time consuming than doing a domestic transaction. It takes longer because all the parties are not in the right place but you still need to have physical meetings which are not easy to arrange. Time zones can be an issue as well as cultural issues. You have got to understand different laws, different regulations, different culture and different issues than you might see in a domestic transactions. While English and American English is the language of business, that does not necessarily mean that concepts easily translate. Also, the cost of advisors will be higher than a domestic deal. You really need to choose the correct advisors who have got real genuine expertise both in your sector and in the jurisdiction in which you are doing the transaction. Inevitably they will be different to your current advisors. But the biggest issue is management time. Katzarsky: When the cross-border M&A is a form of a merger (by an acquisition or a formation of a new company) the first task is to identify whether the merger is within the scope of the EU law and especially Cross-Border Mergers Directive (Directive 2005/56/EC). If so, there are rules (the Bulgarian company law is well-harmonised), although rather complicated, facilitating the merger process. If not, then we have the first legal barrier to overcome. The Bulgarian law does not provide crossborder rules out of the EU context. It does not provide cross-border transfer of seat rules as well. So in this case either an alternate form of acquisition has to be discovered or a subsidiary has to be incorporated in Bulgaria (or in another EU member state) in order to put the merger within the context either of the national or the EU law. Luk: Gaining a complete and accurate grasp of the local business environment - including its laws and labour and environmental practices, as well as understanding the value and liabilities of the target company is a major challenge for a first-time acquirer, particularly when the target company is located in a jurisdiction where its legal system is different from that of the acquirer. The acquirer may have 18 19

11 to learn new accounting standards and business practices. A comprehensive due diligence questionnaire cannot guarantee that all problems and red flags will be identified. Often, the first-time acquirer will face unknown issues after closing. In addition, an analysis of the potential risks arising from domestic corruption, bribery, money-laundering and fraud is needed to reduce exposure to reputational damage and regulatory liabilities. The first-time acquirer should be aware of foreign exchange risks associated with cross-border M&A, particularly when the acquirer or the seller is located in a jurisdiction where foreign exchange is highly regulated, such as China. It is advisable for the parties to state in the transaction documents how the foreign exchange risks should be allocated between them. Further, first-time acquirers often lack experience in managing postmerger integration, resulting in the departure of many valuable managers and employees post-merger because of differences in corporate culture, seriously undermining the synergies effect of the transaction. Ganie: Due diligence is a key concern, and requires adequate planning and timelines, which at times have to be flexible due to unforeseen delays that can often emerge in Indonesian deals. On the other hand, the certainty of any agreements, and particularly their enforceability, including posttransaction control of the target entity in cases where less than an absolute majority is acquired. Finally, administrative processes and regulatory approvals should be expected to take a substantial time, and may at times encounter unexplainable delays that it is important to budget for to prevent them from undermining the transaction. 8. How can you help to alleviate tension during cross-border M&A when companies from different cultural or corporate backgrounds merge? Khodeir: To alleviate tension during cross border M&A activity there needs to be proper orientation on cultural and legal differences which allow buyers to accustom themselves with the nature of how business is done in the targets jurisdiction. The regulatory requirements that a business must comply with and the corporate governance structures, whether voluntary or mandatory (depending on the nature of the target and its legal form), are also important factors. Frankly speaking, these issues are in many instances ignored and can be detrimental for the business. For example, if you are approaching a business that is based in the Kingdom of Saudi Arabia, it is a completely different mind-set from a business that is based in the UK as a result of different regulations, environment and requirements. Cave: The cultural aspects of a crossborder deal absolutely need to be recognised and respected deals can fail when parties aren t communicating. We have developed a few techniques to help bridge the cross-border gap for our clients. For example, we will often prepare an outline of key legal differences between the jurisdictions involved in the deal so we can get the business people talking about issues on an apples to apples basis. The outline also prepares our client in advance for issues that can have an economic impact on how they are evaluating the deal. We also try to use the format and style for documents in the target s jurisdiction so we keep the business people focused on substantive issues and not just the form. Finally, we try to staff projects with colleagues with direct experience in the jurisdictions involved so we don t make cultural mistakes. Wille: See 7. Johnson: Recognising the consequences of cultural differences is a fundamental starting point. The more you can use local people to give local support to an acquisition even if you come from a different country the more this is useful. There is no point as an overseas company going in to a situation and telling local seller how something is done or how compliance works in your country if it is not relevant to their country. The use of local people particularly local management should not be underestimated. Going forward after the deal is done turning up for a week or so and then leaving on to your next deal does not work. You need to have someone permanently based there and there is no point putting someone in from your local head office, you need again to have local talent. There are consultants out there who specialise in this interim management and they should be used but only used sparingly. Ultimately it is up to the business to get the right people in the right place. Luk: Before documentation or formal negotiation begins, we should research the cultural and corporate backgrounds of the counter party

12 Often, it will tell us the dos and don ts in the documentation and negotiation stages. Based on the research, we may predict the behaviour of the counter party during negotiation and propose solutions and avoid behaviour which could delay the overall process of the negotiation. At the beginning of negotiation, we should convey the message that both parties are here for the purpose of consummating the deal and it is necessary to make reasonable compromises to find common ground and avoid deadlock. During negotiation, it is important to listen carefully to the concerns of the other party and try to address the concerns that are least objectionable from every party s standpoint. Learning from the other party s behaviour during negotiation, we should adjust our negotiation strategy. Ganie: Good corporate governance is critical in this regard. Although different cultural and corporate backgrounds are often a reality, the key to ensuring a successful integration is to ensure that adequate systems are put in place, and are adhered to. There is typically no room for that s how we do things around here and it is important to set the correct expectations from the start, and adhere to consistent implementation of the required governance standards. Anything else is likely to result in animosity after the fact changes at best, and in unwieldy compliance-related situations as worse, which can be significantly more damaging the later after the initial transaction that they emerge. 9. When representing a business in a takeover, what ranks highest on your due diligence check-sheet? Khodeir: The prime risks to assess would include any restrictions on transfer which might affect the value of the underlying shares. In addition, regulatory compliance should also be reviewed to ensure each corporation is healthy in terms of regulatory requirements which if not assessed could potentially be fatal for a company. In addition the rules and reviewing of corporate governance practices as well as verification of legal cases to ascertain if there are any threatening litigation(s) against a company is typical in a diligence process. Cave: It depends. Our due diligence check-sheets tend to be fairly customised depending on the target s industry and also on whether the target is a public (or listed) company where there might be a lot of public information available or a private company where very little information is available apart from what the target makes available. Another consideration is where the target conducts business as certain jurisdictions have unusually high risks for corruption or sanction issues. Finally, deal structure also drives the due diligence effort to a large degree. A stock acquisition where the historical liabilities are likely to flow through to the acquirer typically requires a more thorough investigation into the target than an asset acquisition where you can pick your assets and your assumed liabilities. Because stock acquisitions are the dominant deal structure in the U.K. and much of the EU, careful development of a due diligence checklist is an essential early step. Wille: Budgets and forecasts to test quality or risk of future cash flows. Then, depending on the closing mechanism, whatever influences the price or adjustment aspects of the deal. Johnson: Again this will depend on the sector and the regulations around the sector but to me the obvious one is how you are going to integrate the business. Thinking about integration before you even start a due diligence process is absolutely vital. Who is your integration team? Who is your deal team and how are those going to work together. Is there a connective tissue? Once you have got the team right other issues will follow. Obvious areas for due diligence include anti-bribery, anti-trust compliance, permits, supply chain, local taxes contingent liabilities, intellectual property protection and routes to market as well as routes to supply. Katzarsky: The first issue is the compliance with the legal rules in respect of the legal rules applicable to the concrete form of takeover. As an EU member-state Bulgaria has a rather complex set of rules. So usually an action plan is prepared to elaborate: (1) the subsequent legal steps, (2) the timeline, and (3) the participant (and the persons within this participant) responsible. So the high-ranking issue on the check-sheet are the issues related to the corporate status of the participants as they may affect directly the legal process of the takeover. Luk: The focus of due diligence may differ according to the industry in which the target operates. For any M&A transaction, examination of the target s shareholding structure and legal title of shareholding and assets (including existing and potential encumbrances, 22 23

13 registered or otherwise), should be at the top of a legal due diligence review. If the target is a public company, efforts will be needed to clear regulatory requirements and make public disclosures. If the target is incorporated in the PRC, due to the relatively tight registration and/ or approval requirements on doing business under PRC laws, the due diligence review should aim to find out whether the target has satisfied all applicable registration or approval requirements, both local and national. A major new area of focus in the due diligence review is the potential risks and liabilities arising from anti-trust clearance, anti-corruption and antibribery. During due diligence review, the acquirer, through its legal, financial and accounting advisers, should review unusual payments and patterns of discounts to ensure that there are no money laundering and bribery problems. The parties can negotiate appropriate risk allocation, protection and compensation if the issues are not major and can be quantified. Ganie: This is highly sector specific, although certain trends span most due diligence exercises. Compliance with regulatory requirements, such as licensing, is certainly an important point to consider, especially given that Indonesia has a highly bureaucratic administrative state with at times insufficiently circulated regulatory requirements that are inconsistently enforced. Another is security of ownership of assets, this includes both movable and immovable assets (de jure and de facto, as land disputes are common while the land registry office often lacks capacity), security interests (which need to be carefully verified), and most importantly licenses (particularly in the natural resource sector). 10. What are the key issues buyers and sellers must consider when negotiating M&A insurance policies, and in what deal size and range are such policies most suitable? Johnson: The most likely scenario where an M&A insurance policy is used is where a private equity is selling a business and just simply will not give warranties. It often comes as a surprise to buyers from outside the UK where this concept is not universally accepted. However in the UK it is universally accepted that private equities do not give warranties. This lack of protection is often built into the acquisition value. However it must be understood that M&A insurance never replaces due diligence nor replaces warranties. They are not a straight swap as some people will allege. M&A insurance only covers risks that no one is aware of. Some commentators say when you are buying from a private equity seller due diligence is even more important than when you are getting warranties in a corporate deal. The truth is due diligence should always matter. Warranty and indemnity insurance these days is more generally available and at a lower cost and the insurers in the market are now very au fait with deal processes but it should always be considered as a nice added value rather than a replacement for proper due diligence or warranty protection. Most policies are buyer policies rather than seller policies but ultimately the seller will pay for the policy themselves as part of the enterprise value in the deal. Premiums rate between just under 1% to 2% of coverage sought depending on the risk profile involved. You also need to build into your timetable sufficient time for the M&A insurance providers to get up to speed with the transaction and they will expect proper and full due diligence to have been done. 11. What methods can be implemented to ensure the Post Merger Integration (PMI) transition operates smoothly? Cave: The key to Post Merger Integration is to get the business stakeholders at the acquirer involved in the transaction early so they understand what they are going to be asked to integrate. These stakeholders should always include HR and IT as the integration of people and telephone, computer and systems is a key element for the combined business operation from Day 1. We also have found it useful to have the integration team involved in the due diligence relevant to their business area so they are well educated about the issues and profile of the target. Wille: Make sure responsibility and accountability are with management, and include measurable key performance indicators (KPIs) into the bonus system. Johnson: The key issue is to get an integration team working with the deal team during the deal and not to treat it as a separate team. There has got to be connective tissue between the deal team and the integration team. The deal team however should still negotiate the deal but the integration team should be aware of the issues that are coming out of due diligence. Due diligence reports and due diligence information should be used immediately as part of 24 25

14 an integration and not be treated as a separate exercise. Integration needs to start as soon as possible and needs the buy in of target management. If target management can see the real benefits of integration and not see it as a let s see what claims can be made post deal that is what will make a massive difference. Therefore winning the hearts and minds of the employees and middle and senior management of target companies is vital. Making sure that the target understands why integration is taking place and what has to be done from a buyer perspective is also key. For example in relation to compliance explaining why compliance policies have to be introduced rather than simply imposing them on a target company is vital. Over-communication is a key asset and should not be underestimated. Luk: Preparing an integration plan: the acquirer should begin formulating a post-merger integration plan before the deal closes, taking into consideration different corporate cultures and practices. For example, if the target is less organised and more entrepreneurial, which the acquirer treasures, care must be taken to assimilate the target s practices and needs. The acquirer needs to understand the target s current operating style, determine the future operating style of the post -merger organisation and develop a plan to narrow gaps and retain valued employees and managers. Effective communications: management of the acquirer and the target often wonder how they can fit into the post-merger organisation. Communications in the forms of face-to-face meetings, regular official letters, memoranda, s and newsletters from top management to all staff are needed to help them understand the value of the merger to both the acquirer and the target and reassure them of a bright future. Someone acting as an intermediary: a senior executive should be selected as an intermediary between the acquirer and the target. Having someone to bridge the gap can help the target to understand why specific changes are adopted after the merger and can help the acquirer to phase the integration process at an appropriate pace. 12. What key trends do you expect to see over the coming year, and in an ideal world what would you like to see implemented or changed? Delrio: There have not been any recent changes in the process of how M&A transactions are conducted in Mexico; however, we consider that the current financial crisis will lead to new M&A regulations that will change some of the processes that are currently applicable. Derived from the recent change of government in Mexico, the election of new president and officers within the Mexican government and potential law enactments, we expect that the volumes and M&As, major investments, joint ventures or other operations to be higher this year. Notwithstanding the globalised markets scenario and the worldwide current economic downturn, Mexico continues to be an attractive location for investment and commercial transactions. M&A activity maintained the same level as last year and it is likely that it will continue to be on such manner for this coming With our new President Enrique Peña Nieto pushing for the structural reforms such as energy, telecommunications, tax and education, we clearly see a greater level of M&A in The Labor Reform has already been approved. In addition, Mexico has had economic stability, lower wages than in China and a strategic position in Latin America. Despite any negative predictions, Mexico remains being a resistant investment market and maintains a solid position as one of the main investment destinations in Latin America. Moreover, since our country has a close commercial relationship with the United States, it is expected that many investors will continue to invest in Mexico on an ongoing basis. Without a doubt, nowadays there is a wide range of opportunities around M&A, since many foreign companies are looking to invest in Mexico, as well as Mexican companies continue expanding abroad. Due to the foregoing, although companies forecast a slower economic recovery than expected, the positive outlook in terms of M&A in Mexico is increasing. Wille: As with Q1, it depends on sectors and geographies. For the oil and gas sector, we expect to see a further increase in cross-border deals, and we see significant consolidation opportunities in oilfield services, with respect to technology companies as well as service- or knowledge-based companies. Johnson: One should expect to see a steady increase in M&A activity. Multiples will probably rise and lenders 26 27

15 could relax some criteria so that covenants become lighter. It is a good time to do M&A as interest rates remain competitive and cashflow appears to be strong. My wish list is quite specific and one of the changes I would really like to see is the Takeover Code being eased for small cap companies. I do not think this will happen for one minute but for the smaller listed companies the take-over code is inappropriate in a lot of cases. Why should rules that apply to the largest FTSE company also apply to the smallest AIM company when on the listing side or the trading side rules are tighter for a larger company than for a smaller company. Another bugbear of mine is datarooms and dataroom redaction. I would like some rule to be introduced (although I know this would never happen) whereby sellers cannot do late disclosures and information is not as redacted in datarooms as it currently is. I often find that you go into a dataroom and that anything that is interesting is not there and what is there is redacted. You are then asked to form a view on a price and risk and of course that price and risk profile will completely change once you see all the information that should have been in there in the first place or the information that was redacted on an unrelated basis. Personally I think the system is flawed, it has been introduced by advisors that have got more and more extreme and added more and more layers of complexity and it is not helping to smooth transactions. I would also like to see people identify the need for the connective tissue between integration and deals. That is easier to achieve but again needs a mind change set. Katzarsky: From the Bulgarian perspective as an EU member state we are expecting Directive on the cross-border transfer of a company s registered office (still a draft) to be enacted. Such instrument will facilitate cross-border acquisitions allowing one or some of the participants to transfer its seat in another member state so that d more favourable acquisition regime to apply. The Bulgarian legislation implementing such a directive will make Bulgarian companies more flexible and will allow the seat of the company acquired to be transferred to a member state with a legal background preferred by the acquirer. Ganie: We expect a modest increase in M&A due to improvement in global economic conditions, although the comparative balance does appear to be shifting to the US at this time while Asian economies growth is tempering. One major area of potential improvements is in relation to the clarity and consistency of investment regulations, both between issuers and from the same issuer in terms of amendments that significantly modify policies. And in particular in terms of reconciling and coordinating the direct investment regime and the portfolio/capital market regulatory regimes and the sector specific regulations (in particular those governing natural resources)

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