Mergers and Acquisitions

M&A in the Global Marketplace – A Complete Guide

Mergers and Acquisitions (M&A) are a quick way to enter a new market. M&A in the global marketplace is a great way to exploit the resources of another jurisdiction. M&A in the global marketplace provides opportunities to diversify and expand business operations, increase market share and acquire specific expertise from other companies which otherwise would have taken a long time. There are various stages in M&A taking place in a global marketplace and it often takes anywhere between 6 months to two years to complete. The entire process of M&A in the global marketplace requires precise timing otherwise if compliance or transactional detail do not happen on time then the company might have to face delays, fines and other issues. To mitigate the risk, it is important to develop a bulletproof M&A plan. Let’s see how to plan M&A in the global marketplace.

Process of M&A in the Global Marketplace

1. Strategy Development
   Having a good strategy for M&A helps in setting clear expectations and in understanding the purpose behind acquiring the target company. Every M&A is unique in its way therefore, a strategy formulation will help address the expectations of the company. The company intending to do M&A should consider the following points such as the purpose of the transaction, the financing mechanism to be used, etc while formulating the strategy.
2. Target Identification
   To sell or buy a business, a company must first identify the potential buyers or sellers which can include competitors, vendors or customers. At this stage, the geographical factor is considered and the legal teams evaluate the potential target companies. Having an idea about who and what is involved and how are they related helps with the due diligence process. This stage can be further categorized into the following steps:
   • Determining the constituents
     In the case of a general merger, only the target is identified however, in the case of a triangular merger, the target as well as the subsidiary is identified. 
   • Identify subsidiaries or related companies
     It is important not just to identify the subsidiary and related entities but also the industries in which they operate, where they are located and most importantly whether they are permitted to do business in other countries or not.
3. Begin Acquisition Planning
   The company intending to acquire has to contact the company(s) that meet the search criteria and seems to offer good value. The purpose of contacting such company(s) is to get more information about them and to assess the possibility of M&A of the target company.
4. Valuation Analysis
   If the initial contact and conversations go well, the company intending to acquire shall seek substantial information like financial records, products, etc from the target company. This information will enable the acquiring company to evaluate the target company as a business on its own and as a suitable target for acquisition. It will bring out the standing of the business in the market. If there are no issues then it could be a deal breaker but if there are issues then valuation analysis helps in assessing whether the issues can be resolved or not.
5. Negotiations
   Once the financial records are furnished, it becomes easy to prepare a valuation model of the target company which can be presented as an offer to initiate the negotiation and discuss the terms in more detail. 
6. Letter of Intent (LOI^[1])
   After the negotiation, the acquiring company submits a detailed document expressing its intent to acquire the company and it contains details such as price, deal structure, management compensation, escrow, etc. The LOI is a non-binding agreement but it can be denoted as binding. 
7. Conduct M&A due diligence
   This stage is the most time-consuming and critical in any M&A transaction. This stage begins after the acceptance of the offer and aims to confirm and correct the acquiring company’s value assessment of the target company. M&A due diligence requires an in-depth analysis and examination of the target company from both internal as well as external sources. This step verifies the target company’s value and its liabilities.
8. Deal Closure
   After completing due diligence, both companies have to decide whether to move forward to execute the transaction or not. At this stage, if the deal is accepted then various corporate and pre-clearance filings have to be made in advance of the closing date. These filings include merger filings, amendments, issuing bring-down letters, etc. For a proper merger to take place, payment for filing of annual franchise taxes is required to be paid.
9. Entering into a Purchase Agreement
   After the deal is accepted, a purchase agreement is entered. The Purchase Agreement supersedes the previous LOI. The Purchase Agreement states the final terms of the deal including the purchase price, a detailed list of definitions used in the agreement, the period for delivery of final statements, executive provisions, warranties, indemnifications, break-up fees, closing conditions, etc.
10. Financing and Restructuring
    Even though the financing options are explored during the M&A planning process but the final details come out only after the completion of the purchase and sale agreement. To avoid any delays and to close the deal, an independent director/manager or a special member is appointed who safeguards the assets. At this stage, UCC1 and UCC3 forms are filed and post-closing searches are conducted to ensure proper indexing of the UCCs filed.
    Structuring an M&A deal is one of the most complicated steps as many factors are considered including corporate law, antitrust laws, securities regulation, rival bidders, tax implications, accounting issues, market conditions, forms of financing, etc. 
11. Integration and back-office planning
    Both companies should work together to ensure hassle-free integration as managing the integration of a full-time job. At this stage, entity planning and compliance work in the local region starts and such compliance work includes:
    • Entity set-up and management
    • Governing structural changes
    • UBO registrations
    • KYC Compliance
    • Annual Filings
    • Registered address, etc
      A trusted agent is needed to meet the requirements of a transaction and to receive service of process and other legal documents internationally.
12. Post-Merger Compliance
    Post-merger compliance is a critical stage but is often overlooked. Post-merger compliance is required to reach the “business as usual” goal and also determines the success and failure of any deal. Not completing the post-merger compliance can pose a significant risk in short term as well as long term.
13. Business as usual
    To ensure that the business is doing good and that there are no compliance issues, it is necessary to continuously monitor the success of the resultant company.

Conclusion

M&A in the global marketplace is frequently used by international corporations who intend to enter into and explore a new market. M&A in the global marketplace can be time-consuming and tedious as many steps have to take before, during and after the M&A. Apart from compliance, the companies also have to focus on the pressure of competition existing in the global marketplace. M&A in the global marketplace leads to a great deal of industrial structuring and attracts foreign direct investment.

Also Read:
Key Stages in Merger & Acquisition Transactions
Due Diligence in Mergers and Acquisitions Transactions