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Negotiate A Merger or Acquisition

Mergers and acquisitions often don't go to plan, here's how to get the negotiation right and avoid hot water later.

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Mergers and acquisitions often don't go to plan, here's how to get the negotiation right and avoid hot water later.

Guides

Negotiate A Merger or Acquisition

Mergers and acquisitions often don't go to plan, here's how to get the negotiation right and avoid hot water later.

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When tech giant Uber bought driverless car firm Otto, it was strongly challenged by Google, which accused its rival of stealing trade secrets.

Eventually Uber settled the case for $245 million, with its CEO Dara Khosrowshahi admitting that the acquisition could and should have been handled differently. This case shows that even the tech giants make mistakes when it comes to M&A.

The statistics will tell you that many M&A deals do not achieve the parties’ goals and any M&A transaction will carry risks and needs to be entered into carefully.

But when you’re doing a deal with an actual or potential competitor, there can be added process risks due to the possibility of inadvertently leaking valuable information or proprietary know-how.

That kind of risk of information breach can be especially acute in IP-rich industries - such as the media or technology sectors - but could also apply to other sectors where, for example, customer lists and commercial strategies are central to the business.

This could result in serious harm to the commercial operations of the target company and/or devaluation of the price that other bidders would be prepared to pay for the target company.

So you do need to keep an eye on what would happen if the deal doesn’t go through with any given bidder, and what it would mean commercially for you if the bidder gets to know things as a result of the process that you wouldn’t have told them otherwise.

The important thing is to consider strategy and tactics from the outset. On the one hand, you need to provide bidders with enough information to provide a valuation with the minimum of accompanying caveats.

On the other hand, you don’t want the disclosure of business information to give rise to potential value leakage. It’s a balancing act but - to receive a sensible bid for the business - you will normally have to provide a certain amount of sensitive information sooner or later.

So you need a plan for managing information flows. To begin with, you may want to put together an information memorandum setting out all the key aspects of the target, but drafted in a way which is appropriate to get bidders interested without over-sharing.

In putting this together, you should consider what information to hold back on the basis that, in the wrong hands, it could seriously affect the value of the target. You should also consider what information the target holds which actually belongs to third parties - and check your contracts with them as to what can and cannot be disclosed.

Before you enter into a negotiation, the first step is to consider all information and grade it according to its sensitivity. Many companies will already have in place a systematic IP strategy designed to ensure the protection of proprietary information.

The next step is to know your counterparties. It's essential to know who you’re dealing with and what overlap there is between their business and yours - including being aware of non-public overlap or future plans that the general market isn’t aware of.

What is their business? What are their goals for the transaction? How exactly could your information be used by any given counterparty and how could this harm the target?

Then think about the transaction process. You need to adapt your process according to the transaction - think about what information to disclose and when, with a view to maximising value from the bidder, while also protecting your proprietary information.

Also consider implementing security measures. This typically means using a sophisticated data room - in other words, a platform where you exchange information securely and track usage and access to documents.

Being aware of which specific buy-side team members you deal with - and who has access to the data room - is also important. Get input from your advisors and the wider sell-side team.

Bear in mind that you can redact information to remove exceptionally sensitive information or identities of individuals. For example, in music industry transactions, while overall financials can potentially be disclosed, it would be commercially unwise to reveal details of individual artist terms to a competitor.

You can also hold back information in a unilateral deal. Don’t give away the ‘crown jewels’ to everyone who expresses an interest - wait until you have a preferred bidder. They might well need to see the most commercially sensitive and valuable information in order to close the deal - but you won’t normally need to provide this to all comers.

As you can see the steps are relatively straightforward if you are aware of the risks. With global M&A reaching new record highs in 2018 businesses of all sizes need to check their own practices to ensure they do not suffer needlessly.

By being aware of your rights and the value of your data it can help ensure that you gain the maximum value out of any deal that you enter.

Charles Fletcher is a partner at Taylor Vinters.

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Negotiate A Merger or Acquisition

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