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Uncertainty will lead to M&A bear hugs: firm

Uncertainty will lead to M&A bear hugs: firm

A Clayton Utz report says uncertain market conditions this year will heavily influence bid strategies and the way M&A deals are structured.

A Clayton Utz report says uncertain market conditions this year will continue to heavily influence bid strategies and the way deals in mergers and acquisitions are structured.

Joint bids and bear hugs will feature prominently in Australian M&A this year, the new report, called The real Deal 2012, says.

The publication provides insight into public M&A deal structures, tactics adopted by targets and acquirers, and developments shaping the future of the Australian M&A market.

Officially launched last night in Sydney, The Real Deal 2012 is based on analysis by Clayton Utz's M&A team of all Australian public company deals during calendar year 2011 valued at over $50 million, with analysis of all elements of each deal from announcement until close.

Corporate and M&A partners Karen Evans-Cullen and Jonathan Algar, who were key contributors to the analysis, said the findings uncovered commercial and technical legal trends in the approach and structure of Australian M&A transactions.

Evans-Cullen said joint bids – which have not featured prominently in the past – became popular in 2011 and were used in some of the largest deals of the year.

"We expect this trend to continue as bidders seek certainty in an uncertain market, and pool their resources to secure strategic assets,” she said.

Algar said the number of bids that started with bear hug proposals was also high.

"2011 has shown that bear hug proposals have been a successful tactic for pressuring target boards to engage with a bidder who would not have otherwise been welcomed," he said.

"We expect bear hugs will continue to be used in place of the hostile takeover. It is also a tactic which will be used increasingly by private equity."

Evans-Cullen said that the survey revealed a very positive trend that challenged conventional views that it was much harder to get deals over the line in 2011.

"While it was difficult to get cautious boards to push the button on a deal, once they did they were rewarded with a high success rate: 86 per cent of the deals announced in 2011 were successful (excluding ongoing deals)."

Algar said the number of successful deals in 2011 belied the high level of conditionality most bidders insisted upon to contain transaction risks.

"Our analysis shows that target boards that did take the plunge in 2011 generally did so after negotiating objective conditions with appropriate thresholds before the bidder could walk away. So while many deals included a high number of conditions, these conditions were qualified by targets so as not to give bidders easy walk away rights," he said.

While 2011 saw a preference for cash deals, if the Australian equity market stabilises in 2012, Evans-Cullen and Algar predict an increasing number of strategic domestic mergers and scrip bids this year fuelled by Australian companies having to take steps to demonstrate opportunities for growth.

Clayton Utz national M&A practice head John Elliott said as well as revealing new insights into M&A trends and structures, The Real Deal 2012 gave Clayton Utz's M&A team ready access to a rich portfolio of market intelligence that would be invaluable in providing strategic M&A advice.


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