Olisa Agbakoba Legal (OAL)
Mergers and acquisitions (M&A) can be a powerful tool for businesses looking to expand their operations, enter new markets, and achieve economies of scale. However, M&A transactions are complex and involve significant risks and challenges. These challenges could be due to a variety of factors, including strategic, financial, and legal issues, which can derail the success of the deal if they are not adequately managed. In this article, we will discuss some common pitfalls that companies should avoid when engaging in M&A, with an emphasis on poor legal due diligence.
COMMON PITFALLS IN MERGERS AND ACQUISITION.
1. OVERVALUATION OF THE TARGET COMPANY
One of the most common pitfalls in M&A strategy is overvaluing the target company. This may occur due to a number of factors, including unrealistic growth progression, emotional tie to the deal, or being overly optimistic about prospective synergies and the financial benefit that might result from the deal. Overvaluing the target company can lead to paying too much for the acquisition, which can result in reduced returns, financial strain, or even bankruptcy.
Hence, it is important to conduct a thorough assessment of the target company. This would aid in detecting potential issues and provide the opportunity to address any discrepancies early in the process. This typically involves conducting a careful analysis of the company’s financial statements, market position and growth prospects.
2. INCOMPATIBLE CULTURES AND MANAGEMENT STYLE.
Corporate acquisitions often involve combining two or more companies with different cultures and management styles. Incompatible cultures and management styles can lead to significant challenges, such as employee turnover, resistance to change, reduced productivity, cost overruns, and reduced synergies.
To avoid this pitfall, it is essential to consider cultural and management compatibility early in the acquisition process. This should involve a thorough assessment of the two companies’ cultures, values, communication strategies and management styles, as well as a plan for addressing any differences or challenges. It is also important to involve key stakeholders from both companies in the integration planning process, to ensure a smooth and successful integration.
3. POOR FINANCIAL DUE DILIGENCE:
The valuation of the target company cannot be done without proper financial due diligence. Financial due diligence is a detailed investigation of the targeted company’s financials and accounting policies so as to understand its business and financial health as well as identify factors that could affect its business and investment risk. It provides valuable information to support a fair purchase price and ensures the appropriate warranties and representations are included in the purchase agreement.
Avoiding or conducting poor financial due diligence can result in being financially liable for the past non-compliance of the target company under applicable laws. It can also lead to other unexpected surprises that can derail the success of the M&A as all financial risks of the target company are passed to the acquiring company after a successful merger or acquisition process.
4. POOR LEGAL DUE DILIGENCE
M&A deals are subject to various regulatory and legal considerations, depending on the specific industry and state. Legal due diligence typically covers a wide range of legal areas, including but not limited to corporate and business structure, review of contracts and agreements, intellectual property, taxation, employment and labour matters, legal disputes and insurance coverage.
Legal due diligence can help identify past or potential legal risks and liabilities, allowing the acquiring company to negotiate appropriate indemnification clauses, representations, and warranties, or even reconsider the decision to proceed with the transaction altogether. Additionally, it identifies elements that may impact the acquiring company’s operations, reputation, and financials after the transaction is completed. For example, regulatory compliance issues may arise if the target company has not been thoroughly assessed for compliance with applicable laws and regulations. This can result in regulatory penalties, fines, and other legal consequences for the acquiring company, affecting its reputation and financial performance.
Further to the above, issues such as undisclosed litigation, pending regulatory investigations, or contractual breaches can come to light after the transaction is completed resulting in unexpected legal disputes, financial losses, reduced returns on investment and reputational damage that could have been avoided with proper legal due diligence.
The legal concept of “caveat emptor,” which means let the buyer beware, dominates M&A transactions. Hence, an acquiring company needs to have a thorough understanding of the target company and must not stop at the surface. Due to the technicalities involved in mergers and acquisitions, it is important that an acquiring company engage qualified professionals with expertise in the relevant areas to conduct comprehensive and accurate research on target companies before the acquisition takes place. The correct data and insights can help all parties make better decisions based on a thorough understanding of the full range of risks and opportunities.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.