Mergers and Acquisitions from A to Z
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Mergers and Acquisitions from A to Z

by Andrew J. SHERMAN

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Mergers and acquisitions represent a successful growth strategy for many companies, but, while potentially profitable, M&A transactions are complex and often risky. Covering the latest trends, developments, and best practices for the post-Madoff era, this comprehensive, hands-on resource walks readers through every step of the process, offering practical advice for


Mergers and acquisitions represent a successful growth strategy for many companies, but, while potentially profitable, M&A transactions are complex and often risky. Covering the latest trends, developments, and best practices for the post-Madoff era, this comprehensive, hands-on resource walks readers through every step of the process, offering practical advice for keeping deals on track and ensuring postclosing integration success. Filled with case studies and war stories illustrating what works and why, the third edition of Mergers and Acquisitions from A to Z offers valuable tools, checklists, and sample documents, providing crucial guidance on: preparing for and initiating the deal; regulatory considerations; due diligence; deal structure; valuation and pricing; and financing even during turbulent market conditions. M&A transactions can quickly spell a company’s doom if they are not conceived and executed carefully, legally, and sensibly. This is the classic guide to mergers and acquisitions, now completely updated for today’s market.

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Mergers & Acquisitions From A to Z

By Andrew J. Sherman


Copyright © 2011 Andrew J. Sherman
All right reserved.

ISBN: 978-0-8144-1384-5

Chapter One

The Basics of Mergers and Acquisitions

Over the past few decades, we have seen countless examples of companies, such as General Electric, Google, and Cisco, that have grown dramatically and built revenues through aggressive acquisition programs. Seasoned executives and entrepreneurs have always searched for efficient and profitable ways to increase revenues and gain market share. The typical strategic growth options are as follows: organic, inorganic, or by external means. Examples of organic growth are hiring additional salespeople, developing new products, and expanding geographically. The best example of inorganic growth is an acquisition of another firm, something that is often done to gain access to a new product line, customer segment, or geography. Finally, external revenue growth opportunities are franchising, licensing, joint ventures, strategic alliances, and the appointment of overseas distributors, which are available to growing companies as an alternative to mergers and acquisitions as a growth engine. Figure 1-1 discusses the benefits of organic versus other forms of growth.

This book focuses primarily on mergers and acquisitions (M&A) as a means of growing, although toward the end of the book certain external means are explored as well.

Understanding Key Terms

The terms merger and acquisition are often confused or used interchangeably. It is important to understand the difference between the two. A technical definition of the words from David L. Scott in Wall Street Words: An A to Z Guide to Investment Terms for Today's Investor is as follows:


A combination of two or more companies in which the assets and liabilities of the selling firm(s) are absorbed by the buying firm. Although the buying firm may be a considerably different organization after the merger, it retains its original identity. The merger of equals between XM and Sirius to form Sirius XM is an example.


The purchase of an asset such as a plant, a division, or even an entire company. For example, Oracle's acquisition of Sun Microsystems was a significant technology transaction in 2009.

On the surface, this distinction may not really matter, since the net result is often the same: Two companies (or more) that had separate ownership are now operating under the same roof, usually to obtain some strategic or financial objective. Yet the strategic, financial, tax, and even cultural impact of a deal may be very different, depending on the type of transaction. A merger typically refers to two companies joining together (usually through the exchange of shares) as peers to become one. An acquisition typically has one company, the buyer, that purchases the assets or shares of another, the seller, with the form of payment being cash, the securities of the buyer, or other assets that are of value to the seller. In a stock purchase transaction the seller's shares are not necessarily combined with the buyer's existing company, but are often kept separate as a new subsidiary or operating division. In an asset purchase transaction the assets conveyed by the seller to the buyer become additional assets of the buyer's company, with the hope and expectation that over time, the value of the assets purchased will exceed the price paid, thereby enhancing shareholder value as a result of the strategic or financial benefits of the transaction.

What's All the Fuss About?

The global reach of the recent credit crisis has led to a marked crawl rather than a sprint in M&A deals as a result of a widespread credit squeeze. The pace of deals has slowed and transactions are taking longer to close. This scenario is diametrically opposite to the situation that existed at the time of the previous edition of this book, when M&A activity was booming. Sources of debt finance are looking at the M&A market differently today from the way they did until 2006. The value of deals has decreased, with conservative and tight valuation of target companies along with a decrease in the volume of transactions. The so-called megaprivate equity deals that reached astounding levels in the early part of 2007, such as Cerberus's purchase of Chrysler, are rare occurrences today, and many earlier ones are being unwound. Furthermore, more transactions are derailing today, with buyers developing cold feet, sellers being in remorse, valuation numbers tending to disappoint, and an overall "transactional fatigue" setting in, indicated by a loss of momentum among the parties. The value of canceled merger deals in mid-2009 is closing in on the value of deals actually completed, and the two measures will draw level if the mammoth takeover of Canadian telecommunications group BCE falls through. With BHP Billiton dropping its bid for Rio Tinto in 2009, the dollar value of merger deals canceled so far this quarter rose to $322 billion compared with $362 billion in completed M&A transactions, data from Thomson Reuters show. The last time the value of completed deals was so low in comparison with that of canceled deals was in the first quarter of 1987, and late 2008 was even worse. The state of the current market is that players seem more content with being on the bench rather than on the playing field. The market has a "sky is falling"/"boy who cried wolf" mind-set and was just starting to show signs of life as this third edition was going to the printer.

However, it is not as if M&A deals are unheard of in today's context. Big corporations are beginning to acquire strategic targets with the aim of attaining goals that they could not have achieved prior to the credit crisis and the resulting lower valuations; it was an opportune moment for Bank of America to acquire Countrywide for a significantly low value and increase its market share in the mortgage industry. A few of the Wall Street banks were acquired in 2008 on fears of impending liquidation or bankruptcy. However, the essential characteristic of these deals, which have attracted extensive media coverage, is that the target entities would ideally have preferred not to be so. Protection-driven and risk allocation–driven deal terms are more hotly contested. A notable trend has emerged in recent times where the participants in the "voluntary," if you will, deals are mainly midsize businesses. These so-called middle-market transactions utilize bank debt, which is available, although at a higher cost and in tougher circumstances. Thomson Financial reports that there were more than $6 billion in U.S. midcap private equity deals in the early part of 2008. Efficient companies that have not been exposed to the subprime hullabaloo are preferred targets for financiers, perhaps also because they have simpler balance sheets and a realistic revenue stream. Indeed, the circumstances under which banks are willing to provide debt financing are tougher than have been seen in a long time—most banks were exposed not only to subprime mortgage loans, but also to different layers of securities and derivatives backed by these subprime mortgages that are now standing still in an illiquid market, and the banks holding them are unsure of what their value actually is today.

The major criteria that banks are looking at today are:

* Banks are more likely than not to lend to buyers who are not highly leveraged and whose balance sheets reflect a sound financial position. * Post-2008, the potential for earnings, reflected in earning ratios, is the make-or-break factor for a deal. Banks are assuring themselves of the earnings capability of buyers in the event of a further economic slowdown and a possible double-dip recession in 2010. * Banks are likely to take a less active role in the syndication process; and, therefore, other participants in the deal may have to step up their involvement in this process. * Banks are likely to demand, on average, a greater equity contribution by the buyer than was previously required to be assured of the sponsoring capacity of equity participants.

What factors have led to this sizable halt in the frenzied M&A market seen until the first half of 2008?

* A housing-led U.S. recession (that spilled over into global markets) * Overleveraged financial institutions * Falling asset prices (equities, real estate, commodities, and resources)

* Frozen credit markets (interbank, consumer, and business)

* Weak consumer household balance sheets

* Forces of inflation versus forces of deflation

* Global synchronization and interconnectivity exacerbating all of these factors

The forecast for the next few years can be broadly positioned as follows:

* It is (and will be for some time) a buyer's market in global M&A after years of sellers calling the shots. * Cash is king, and genuine postclosing synergy is queen. As Mark G. Shafir, Citigroup's global head of M&A, said in late 2008 when forecasting the M&A marketplace in 2009, "Companies that have access to cash will clearly have the opportunity to buy things for what look like once-in-a-generation prices." * The conventional wisdom is that in such an environment, buyers are likely to turn to stock-for-stock deals, as this minimizes their cash outlays. But these deals are difficult to pull off because a corporate sale often triggers covenants in the seller's credit agreements, forcing debt repayment. Under normal circumstances, the buyer would refinance the debt. That has become a tough task, with the high-yield debt and investment-grade markets largely shut to new issues. * The "buy and flip" model is dead (or at least hibernating) for a while—the focus is on deal flow with medium- and long-term value creation (the window for exit strategies is narrow). * Look for pockets of opportunity in growing/needed sectors, regions, and technologies.

In view of this unexpected crisis situation that businesses find themselves in, the ten key reasons for deals that are likely to take place in the coming months are as follows:

1. Mergers are the most effective and efficient way to enter a new market, add a new product line, or increase distribution reach, such as Disney's late 2009 acquisition of Marvel, which gave it access to new contact channels and product development. The classic example is Bank of America acquiring Countrywide Financial, a company that was severely hit by the subprime mortgage crisis, and Merrill Lynch as a way to offer a much broader spectrum of financial services.

2. In many cases, mergers and acquisitions are being driven by a key trend within a given industry, such as:

a. Rapidly changing technology, which is driving many of the deals in high technology b. Fierce competition, which is driving many of the deals in the telecommunications and banking industries

c. Changing consumer preferences, which is driving many of the deals in the food and beverage industry d. The pressure to control costs, which is driving many of the deals in the health-care industry e. A reduction in demand, such as the shrinking federal defense budget, which is driving the consolidation in the aerospace and defense contractor industries

3. Some transactions are motivated by the need to transform a firm's corporate identity or even to be transformative for the buyer overall, where the target company may lead the buyer in a new direction or add significant new capability. In 2003, the video game company Infogrames, for example, gained instant worldwide recognition by acquiring and adopting the old but famous Atari brand. Similarly, First Union adopted the brand of acquisition target Wachovia in hopes of benefiting from Wachovia's reputation for high quality and customer service; the firm was subsequently acquired by Wells Fargo but not rebranded. Another example of this is Google's $1.65 billion acquisition of YouTube in 2006, which continues to retain its own brand.

4. Many deals are fueled by the need to spread the risk and cost of:

a. Developing new technologies, such as in the communications and aerospace industries b. Research into new medical discoveries, such as in the medical device and pharmaceutical industries c. Gaining access to new sources of energy, such as in the oil and gas exploration and drilling industries

5. The global village has forced many companies to explore mergers and acquisitions as a means of developing an international presence and expanding their market share. This market penetration strategy is often more cost-effective than trying to build an overseas operation from scratch.

6. Many recent mergers and acquisitions have come about from the recognition that a complete product or service line may be necessary if a firm is to remain competitive or to balance seasonal or cyclical market trends. Transactions in the retail, hospitality, food and beverage, entertainment, and financial services industries have been in response to consumer demand for "one-stop shopping," despite the slowdown in consumer demand overall.

7. Many deals are driven by the premise that it is less expensive to buy brand loyalty and customer relationships than it is to build them. Buyers are paying a premium for this intangible asset on the balance sheet, which is often referred to as goodwill. In today's economy, goodwill represents an asset that is very important but that is not adequately reflected on the seller's balance sheet. Veteran buyers know that long-standing customer and other strategic relationships that will be conveyed with the deal have far greater value than machinery and inventory.

8. Some acquisitions happen as a result of competitive necessity. If the owner of a business decides to sell that business, every potential buyer realizes that its competitors may buy the target, and therefore must evaluate whether it would prefer to be the owner of the business that is for sale than to have a competitor acquire it.

9. In 2009, during the peak of the weak economy, some M&A deals were driven more by survival than by growth. In these types of transactions, companies need to merge in order to survive and cut costs efficiently; an example was the merger in July of 2009 between Towers Perrin and Watson Wyatt or the need to refocus on the core, such as eBay's sale of Skype.

10. Some transactions are taking a new twist to an old page in the M&A playbook. Years ago, IBM transformed itself into a consulting-driven, value-added services business. In 2009, three similarly situated companies followed the same path, with Xerox merging with ACS, Hewlett-Packard buying EDS, and Dell Computer purchasing Perot Systems, all in an attempt to diversify and refocus on higher-margin and value-added revenue streams.

Why Bad Deals Happen to Good People

Nobody ever plans to enter into a bad deal. But many well-intentioned entrepreneurs and business executives enter into mergers and acquisitions that they later regret. Classic mistakes include a lack of adequate planning, an overly aggressive timetable to closing, a failure to really look at possible postclosing integration problems, and, worst of all, projecting synergies to be achieved that turn out to be illusory. As is evident in the ten key drivers just discussed above for today's deals, the underlying theme is the goal of postclosing synergy. What is synergy, and how can you be sure to get some?

The key premise of synergy is that "the whole will be greater than the sum of its parts." But the quest for synergy can be deceptive, especially if there is inadequate communication between buyer and seller, a situation that usually leads to a misunderstanding regarding what the buyer is really buying and what the seller is really selling. Every company says that it wants synergy when doing a deal, but few take the time to develop a transactional team, draw up a joint mission statement of the objectives of the deal, or solve postclosing operating or financial problems on a timely basis. We must work hard to improve M&A failures to create postclosing value rates estimated as high as 80 percent.


Excerpted from Mergers & Acquisitions From A to Z by Andrew J. Sherman Copyright © 2011 by Andrew J. Sherman. Excerpted by permission of AMACOM. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

Meet the Author

ANDREW J. SHERMAN is a partner in the office of Jones Day and an internationally recognized authority on the legal and strategic issues of emerging and established companies. He has been interviewed by The Wall Street Journal, USA Today, Forbes, Time, and countless other publications and is the author of several books, including Raising Capital and Franchising and Licensing.

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