1 Cross Border Merger Muzaffar Islam
1 Cross Border Merger Muzaffar Islam
1 Cross Border Merger Muzaffar Islam
He represented Pakistan in SAARCLAW INTERNATIONAL MOOT COMPETITION HELD IN NEW DELHI, INDIA.
The globalization of business over the past decade has spawned a search for competitive
advantage that is worldwide in scale. Companies have followed their customers who are going global themselves as they respond to the pressures of obtaining scale in a rapidly consolidating global economy. In combination with other trends, such as increased deregulation, privatization, and corporate restructuring, globalization has spurred an unprecedented surge in cross-border merger and acquisition activity. 1 Crossborder mergers and acquisitions are an imperative part of the accelerated economic globalization of our time. Cross-border transaction volume now accounts for almost onethird of global M&A activity and this number will only increase as business world-wide continues to expand. The complex legal issues to be handled in such transactions encompass the coordination of different concepts of corporate governance and capital market regulations in the laws involved, as mirrored by the intense debate on M&A law making within the European Union, and for example Germany. Lawyers engaged in the M&A practice will inevitably be confronted with cross-border transactions and will have to appropriately counsel their clients in the variable aspects of the law. Cross-Border Mergers and Acquisitions and the Law, a book based on an international conference held by the Law Centre for European and International Cooperation (R.I.Z.) in cooperation with the Centre of Commercial Law Studies, the Asian Institute of International Financial Law, and the SMU Institute of International Banking and Finance, provides a comprehensive exploration of the legal implications of a cross-border merger or acquisition. Applying a comparative approach, the compilation of articles by professors, practitioners and bankers provides thorough information on topics including Business Combination Agreements; Securities Regulation and Stock Exchange Listing Requirements; Tax Considerations; International M&As and International Accounting Standards; Financial Techniques and Legal Considerations in International Mergers and Hostile Take-Over; Antitrust Laws in the United States and Europe and their Extraterritorial Reach; Bank Mergers and Bank Supervisory Law.2 BOX 1.1 to (M&A) Securities Data Corporation, there than 2000 Mergers andAccording acquisitions and corporate restructuring are a big were part ofmore the corporate finance announced cross-border acquisitions in 1996 worth over $256 billion. this world. Every day, Wall Street investment bankers arrange M&A transactions, which While bring separate companies together form larger ones. When they're not creating big companies from smaller ones, represents 54%tomore acquisitions than in 1991, the increase in dollar value been even more remarkable, tripling during this time period. Clearly cross border M&As have become a fundamental characteristic of the global business landscape. .3
spin-offs, carve-outs or
tracking stocks.
BOX 1.2 One plus one makes three: this equation is the special
alchemy of a merger or an acquisition. The key principle behind buying a company is
to create shareholder value over and above that of the sum of the two companies. Two companies together are more valuable than two separate companies - at least, that's the
Mergers are generally differentiated from acquisitions partly by the way in which they are financed and partly by the relative size of the companies
reasoning behind M&A.
In a study conducted in 2000 by Lehman Brothers, it was found that, on average, large M&A deals cause the domestic currency of the target corporation to appreciate by 1% relative to the acquirer's. For every one billion dollar deal, the currency of the target corporation increased in value by 0.5%. More specifically, the report found that in the period immediately after the deal is announced, there is generally a strong upward movement in the target corporation's domestic currency (relative to the acquirer's currency). Fifty days after the announcement, the target currency is then, on average, 1% stronger. The rise of globalization has exponentially increased the market for cross border M&A. In 1996 alone there were over 2000 cross border transactions worth a total of approximately $256 billion. This rapid increase has taken many M&A firms by surprise because the majority of them never had to consider acquiring the capabilities or skills required to effectively handle this kind of transaction. In the past, the market's lack of significance and a more strictly national mindset prevented the vast majority of small and mid-sized companies from considering cross border intermediation as an option which left M&A firms inexperienced in this field. This same reason also prevented the development of any extensive academic works on the subject.
BOX 1.4 How will this merger create value, and when will this value be realized? Why are we a better parent for this company than someone else? Can this merger pass the better-off test will we be able to create more value (by being more competitive, having a stronger cost structure, gaining additional competencies that we can leverage in new ways, etc.) after the deal? 5
These are difficult questions that require careful, objective & pre-acquisition analysis. The tendency for companies in the heat of battle to overstate the real strategic benefits of a deal is a definite problem that must be guarded against pressures that arise from the desire to close a deal quickly before rival bidders appear, cultural and sometimes language barriers that create uncertainty, and the often emotionally charged atmosphere surrounding negotiations, work against this requirement of objectivity. The best solution in this case is to enter the M&A mode with a carefully developed framework that addresses the key questions, and to stick to that framework in evaluating a potential acquisition candidate even when the seemingly inevitable strains arise. Our own research and experience indicates that the highest potential cross border M&As tend to be between firms that share similar or complementary operations in such key areas as production and marketing. When two companies share similar core businesses there are often opportunities for economies of scale at various stages of the value chain (e.g., R&D, manufacturing, sales and marketing, distribution, etc.). For example, although the merger between British Telecom and MCI remains controversial and losses associated with MCIs push to enter the local telephone service market in the U.S. are not reassuring there are opportunities for value creation through common software development, shared
capital investment, and joint purchasing agreements. The strategic logic of combining complementary assets can also be compelling. These assets, which extend to complementary competencies in technology and know-how, offer great opportunities for companies to create value in the right circumstances. For example, MCI will be a much more formidable competitor in the U.S. telephone market with the backing of BT and its prodigious cash flow. Other potential complementary benefits of this deal include the positive impact of MCIs aggressive market-oriented corporate culture on the more conservative British Telecom, and the potential of the combination itself to be a wellpositioned global competitor as evolving markets in Europe and the U.S. continue to deregulate and change. Thus, what we call economies of fitness arising from complementary operations or competencies can be an important source of value creation in mergers and acquisitions.6
Legal Barriers
Legal uncertainty Opaque decision making processes 3. Legal structures 4. Limits or controls on foreign participations 5. Defense mechanisms 6. Impediments to effective control 7. Difficulties to assess the financial situation 8. Restriction on offers 1. 2.
Tax Barriers
Economic Barriers
Attitudinal Barriers
35. Political Interference 36. Employees reluctance 37. Shareholder acceptance of quotation changes 38.Shareholder and analyst apprehension of failure risk
a) Execution Risks
23. Concerns regarding financial stability 24. Misuse of supervisory Powers 25.Supervisory Approval Process
b) On-Off Costs
16. Exit tax on capital gains 17. Transferring Pricing 18. Inter-Group VAT 19. No Homogenous Loss Compensation 20. Specific Domestic Tax breaks 21.Discriminatory Tax Treatments 22. Taxation on Dividends
C) OnGoing Cost
Employment legislation 10. Accounting systems 11. Divergent consumer protection rules 12. Data protection 13. Differences in Private Law
9.
28. Fragmentation of the European Commercial Market 29. Different Product Mixes 30.NonOverlapping Fixed Costs 31. Lack of middlesize institutions 32. Absence of critical size 33.Market Power 34. Differences in Economic Cycle
communities in one enterprise and to avoid the negative influence arising from the different thinking models, behaviors, and values. Second, it should coordinate the different company cultures to eliminate the barriers in leadership styles, communication models, personnel system, performance appraisals, and social security benefits. Third, it should establish the companys core values by integrating diverse cultures to improve the companys creativity and competitiveness. Fourth, the effective integration of the companies cultures could provide conditions beneficial for the integration of operations. Therefore, cultural integration of cross-border M&A plays an important role in helping the company maximize its capital, technique, sales, and other advantages.
supervises and controls the target. As a result, the buyer can transplant its culture into the target company and gradually get the local staff to accept its culture. The third model is the cultural innovation by integration. In this model, the cultures of buyer and target companies coexist; a new culture and management pattern are formed through the integration of the two cultures. Cultural innovation can maximize the cross-cultural advantage. The fourth pattern uses evasion tactics. In this model, when there is a tremendous cultural gap between the buyer and the target, it is necessary for the manager appointed by the buyer to avoid the key cultural differences. Under this circumstance, the third party shall be asked to bridge the gap between cultures. This model does not address the problem and has considerable limitations. In general, it only can be used as a transitional method. Buyers can select one or a combination of two or more of these four patterns, taking into consideration the cultural character of themselves and their targets, to culturally integrate.10
1996
Deals Japan 3,178 Hong Kong 650 Australia 584 Malaysia 356 Korea 337 Singapore 518 China 187 Thailand 128 Taiwan 163 New Zealand Indonesia 76 India 52 Philippines 21 Brunei 8
Value
Deals
Value
Deals
Value
Deals
Value
Deals
Value
Deals
Value1
Deals
Value
Deals
Value
93,813.371 699
25,132.680 550
8,958.815 320
12,525.037 306
7,193.867 350
10,466.546
498
16,963.018
455
12,573.408
30,907.742
39
1,132.169
55
852.118
80
9,558.622 141
8,388.019 145
3,413.563
111
3,920.997
79
3,642.254
23,683.622
77
2,084.391
71
1,039.310
75
2,733.147
71
2,965.759 106
3,855.686
102
5,568.624
82
5,436.705
15,439.766
160.151
13
235.455
15
143.348
41
1,219.861
98
7,020.704
86
1,252.910
98
5,407.337
15,200.842
30
475.412
28
374.522
26
778.774
24
846.762
53
3,555.335
95
6,012.351
81
3,157.686
11,912.602
23
243.150
23
416.790
41
553.801
85
2,117.315 124
1,810.581
115
2,764.603
107
4,006.362
11,810.122
1,336.400
102.780
27
1,688.302
70
5,450.280
29
1,635.793
34
200.392
19
1,416.175
7,290.200
14.710
10
1,638.400
19
533.361
33
180.618
34
3,576.788
23
1,346.323
6,976.457
23
1,259.429
11
136.560
18
1,001.315
23
882.184
20
760.024
45
821.228
23
2,115.717
117
4,145.969
31
974.417
11
141.150
17
603.117
17
807.938
15
78.177
11
481.409
15
1,059.761
2,307.838
187.300
57.970
106.450
13
247.349
14
519.328
23
614.827
11
613.993
1,512.147
270.000
421.916
12
619.460
21
200.777
515.190
18.450
50.500
433.240
11.000
2.000
470.663
4.400
202.000
1.000
81.700
181.563
Pakistan 2
Vietnam 9 Bangladesh 1 Macau 2 Cambodia 2 7.650 1 0 1 7.650 10.000 1 10.000 1 0 11.867 1 11.867 27.060 1 0 1 0 2 19.500 3 4.500 1 1.500 1 1.560
107.206
106.667
0.539
Nepal 1 Myanmar 2 Mongolia 1 Total 6,390 226,153.71 939 32,985.50 786 12,623.03 652 31,928.90 812 30,854.70 1,010 34,372.21 1,185 42,483.99 1,006 40,964.78 0.76 1 0.76 1.020 1 0 1 1.020 3.400 1 3.400
These cross-border transactions enable clients to achieve global reach through international acquisitions, and to maximize value through the sale of their business to international strategic acquirers.
1 2 3 4 5 6 7 8 9 10
1999 1999 1998 1999 1999 1999 1999 1998 1999 1997
Vodafone AirTouch Pfizer Exxon Citicorp SBC Communication Vodafone Group Bell Atlantic BP Qwest Communication WorldCom
Mannesmann Warner-Lambert Mobil Travelers Group Ameritech Corp. AirTouch GTE Amoco US West MCI Communicarion
1
2
2000
2004
3
4
2004
2006
2001
America Online Inc. Glaxo Wellcome Royal Dutch Petroleum Co. AT&T Inc. Comcast Corporation
Time Warner SmithKline Beecham Plc. Shell Transport & Trading Co Bell South Corp. AT&T Broadband
6 7 8 9 10
Sanofi-Synthelabo Spin-off: Nortel Networks Corporation Pfizer Inc. Pharmacia Corporation JP Morgan Chase Bank One Corp & Co Fusion: America Time Warner Online Inc.
4. www.wikipedia.org
5. FDI into Pakistan jumps 180.6% in 1st 9 months of FY06 6. Pakistan News Service - PakTribune 7. Daily Times - Leading News Resource of Pakistan 8. Private Equity in Pakistan, Israel, and Egypt, by Sethi, Arjun Nov 2007, accessed December 29, 2007. 9. Macroeconomic Stability of Pakistan: The Role of the IMF and World Bank (19972003) 10. International Management Review Vol. 3 No. 2 2007 The Cultural Integration in the Process of Cross-border Mergers and Acquisitions Zhanwen Zhu, Haifeng Huang Chinas Research Center for Economic Transition, Beijing University of Technology, China 11. The role of human resource management in cross-border mergers and acquisitions Ruth V. Aguilera and John C. Dencker Int. J. of Human Resource Management 15:8 December 2004 13551370 12. Lien, Kathy (2005-10-12). Mergers And Acquisitions - Another Tool For Traders. Investopedia. Retrieved on 2007-06-17. 13. Courtesy KPMG 14. &15. Facts collected from Wikipedia
Further Notes
Ahmad, Viqar and Rashid Amjad. 1986. The Management of Pakistans Economy, 1947-82. Karachi: Oxford University Press. Ali, Imran. 1997. Telecommunications Development in Pakistan, in E.M. Noam (ed.), Telecommunications in Western Asia and the Middle East. New York: Oxford University Press. Ali, Imran. 2001a. The Historical Lineages of Poverty and Exclusion in Pakistan. Paper presented at Conference on Realm, Society and Nation in South Asia. National University of Singapore. Ali, Imran. 2001b. Business and Power in Pakistan, in A.M. Weiss and S.Z. Gilani (eds), Power and Civil Society in Pakistan. Karachi: Oxford University Press. Ali, Imran. 2002. Past and Present: The Making of the State in Pakistan, in Imran Ali, S. Mumtaz and J.L. Racine (eds), Pakistan: The Contours of State and Society. Karachi: Oxford University Press. Ali, Imran, A. Hussain. 2002. Pakistan National Human Development Report. Islamabad: UNDP. Ali, Imran, S. Mumtaz and J.L. Racine (eds). 2002. Pakistan: The Contours of State and Society. Karachi: Oxford University Press. Amjad, Rashid. 1982. Private Industrial Investment in Pakistan, 1960-70. London: Cambridge University Press. Andrus, J.R. and A.F. Mohammed. 1958. The Economy of Pakistan. Stanford: Stanford University Press. Barrier, N.G. 1966. The Punjab Alienation of Land Bill of 1900. Durham, NC: Duke University South Asia Series. Jahan, Rounaq. 1972. Pakistan: Failure in National Integration. New York: Columbia University Press. Kessinger, T.G. 1974. Vilyatpur, 1848-1968. Berkeley and Los Angeles: University of California Press. Kochanek, S.A. 1983. Interest Groups and Development: Business and Politics in Pakistan. New Delhi: Oxford University Press. LaPorte, Jr, Robert and M.B. Ahmad. 1989. Public Enterprises in Pakistan. Boulder, Colorado: Westview Press. Latif, S.M. 1892. Lahore. Lahore: New Imperial Press, reprinted 1981, Lahore: Sandhu Printers.
Low, D.A. (ed.). 1991. The Political Inheritance of Pakistan. London: Macmillan. Noman, Omar. 1988. The Political Economy of Pakistan. London: KPI. Papanek, G.F. 1967. Pakistans Development: Social Goals and Private Incentives. Cambridge, Massachusetts: Harvard University Press. Raychaudhuri, Tapan and Irfan Habib (eds). 1982. The Cambridge Economic History of India, 2 vols. Cambridge: Cambridge University Press White, L.J. 1974. Industrial Concentration and Economic Power. Princeton, N.J.: Princeton University Press. Ziring, Lawrence. 1980. Pakistan: The Enigma of Political Development. Boulder, Colorado: Folkestone. Ali, Imran. August 2002. The Historical Lineages of Poverty and Exclusion in Pakistan, South Asia, XXV(2). Ali, Imran and S. Mumtaz. 2002. Understanding PakistanThe Impact of Global, Regional, National and Local Interactions, in Imran Ali, S. Mumtaz and J.L. Racine (eds), Pakistan: the Contours of State and Society. Karachi: Oxford University Press. Hasan, Parvez. 1998. Pakistans Economy at the Crossroads: Past Policies and Present Imperatives. Karachi: Oxford University Press. Hussain, Ishrat. 1999. Pakistan: The Economy of an Elitist State. Karachi: Oxford University Press.
Straub, Thomas: Reasons for frequent failure in Mergers and Acquisitions - A comprehensive analysis, Deutscher Universittsverlag, Wiesbaden 2007. ISBN 9783835008441
Platt, Gordon. Cross-Border Mergers Show Rising Trend As Global Economy Expands. findarticles.com. Retrieved on 2007-08, www.wikipedia.org
Foreign Direct Investment Mergers and acquisitions State Bank Of Pakistan British Petroleum Microwave Communications, Inc.
SBP
BP MCI
HRM