Interviewer: John when trying to organise mergers and acquisitions across different jurisdictions, what are the main challenges?
John: It’s a bit like going for a shopping trip with all your kids. It’s logistically difficult, there are many people involved on the client’s side and on the adviser’s side, different disciplines and of course different geographies. So I think there’s that. There’s the cultural issues when you’re dealing with lots of different jurisdictions and the need for consistency of approach and the structuring and tax issues particularly around the transaction that need to be addressed. Those are I think some of the key challenges and I would put logistical challenges right at the top there in planning for a deal like this and co-ordinating the different chess pieces, it’s difficult.
Interviewer: You’re making it sound that this is riskier than a single jurisdiction transaction. Is that the case?
John: I think it’s riskier partly for that reason, partly for different reasons. Inevitably when you’re working across jurisdictions with different practice and different business ethics and so on there are different issues that arise. For example in some jurisdictions there may be a higher risk of corruption and bribery. And then there’s sort of different regulations in different jurisdictions which may require a different approach, a different conditionality or even a different structure to the deal in different jurisdictions, where in some jurisdictions you might approach it as an asset deal because of certain risks in buying a company, in others you may be looking to buy the company. And then I suppose finally there’s when you’re operating across jurisdictions you do have to think about things like anti-trust and merger control regulations in different jurisdictions or even in Europe at the EU level depending on whether a transaction has an EU dimension.
Interviewer: So John right at the outset how can buyers mitigate or minimise those risks?
John: Well that’s very important and on a recent transaction for Samsonite Corporation who were doing a multi-jurisdictional deal which we were advising on, one of the key things was planning, getting together at the outset and working out what are the key assumptions, what are the key risks, what’s the propensity for risk? Which jurisdictions are important and why? And then some of the logistics around how we communicate with each other to make sure that everyone who needs to know does know, that everyone who has useful information can drop that information on everyone else in a user friendly way and making sure that we get together on a weekly basis with very structured cause and structured agendas and frankly even when it comes to closing having a very clear steps plans, closing agenda and probably even a pre-closing signing meeting where you pull together all the different strands. It’s very important at the outset to understand what the gating items are, what’s going to be a problem later on in terms of timing either regulatory conditions for example – are there formalities such as notarisations in various countries where you need signatures and the actual signatures rather than email signatures - that sort of thing.
Interviewer: Now you mention planning John but what are your other top tips for prospective buyers?
John: One of the things is co-ordination and often the role that we play in advising buyers is effectively acting as quarter back as the Americans put it; co-ordinating the different advisers in different jurisdictions, making sure there is a degree of consistency and making sure we really probe with questions which we probably ask about ten different times in different ways to make sure that we’re not
making assumptions carrying over from one jurisdiction to another jurisdiction and avoiding any surprises. One thing I haven’t spoken about of course is that probably the most important thing is the integration of the target post-closing. Now that’s actually an area where we don’t tend to get involved in the actual process but it’s something you definitely need to think about when we’re advising clients in considering what are they planning to do and how do we need to set things up so that they can achieve that? So for example if they plan to bring employment terms on to a unified platform going forward what will they need to do, whose consent will they need, who do they need to consult and when? So those are some of the key things which I think need to be thought about at the outset by buyers.
Interviewer: John, thank you.
In the second of the series, Partner John Bennett discusses the main challenges of doing M&A deals across different jurisdictions. He gives practical guidance and offers his top tips on how to mitigate the risks and complete what can be complex assignments efficiently and on time.