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BW Businessworld

Impact of COVID-19 on Mergers and Acquisitions

A specific degree of spontaneity will be needed in order to get through the crisis, thereby furthering out of the prospective recovery.

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The COVID-19 pandemic has affected public wellbeing, yet in addition, there lies commercial impact with respect to the worldwide business operations as well as the economic sector. The repercussions from the spread of this pandemic are being felt, all the more emphatically, in certain ventures and have therefore, infracted various facets of Mergers and Acquisitions (M&A). Organizational lockdowns and travel constraints have been hindering the mechanism of due-diligence and, now and again, have brought about deals being deferred or cancelled. Deals are generally estimated dependent upon majority of the turnover figures, which given the prevailing condition, are tough to anticipate bringing about the valuations of target organizations being antagonistically affected. We have all sooner or later been blameworthy of ignoring the particulars of legal documents. Nonetheless, the time has come that we need to consider certain clauses and provisions so as to make a sound evaluation of where we actually stand in terms of negotiating private M&A transactions.

Pricing methods/Deferred Payments 

Before COVID-19, these methods were laboriously put under negotiation, and now with this pandemic, a huge level of investigation is being undertaken. Considering Mr. A and B as a seller and buyer respectively, Mr. A is in a state of heavy bargaining, thereby favouring a price mechanism, which settles the eventual purchase price on the basis of the financial statements, with respect to the target business on a particular date before actually signing the “purchase agreement”, thereby shifting the onus to the buyers, much before than the closing date. The pandemic has led to unnatural stock levels and unexpected figures for accounts payable as well as accounts receivable. Mr. B might also recommend deferring the payment of the fraction of purchase amount with earn-outs.

Force Majeure (FM)
By law, this implies an unanticipated situation, which is outside the control of the parties, (for instance; a catastrophic event, activities relating to terrorism), which keeps somebody from executing a contract. This is an omission of what might else ways decipher into a contract breach. The classification of kinds of events which might trigger the FM provision might shift and incorporate epidemic or particularly “government-imposed lockdowns.”

A few contracts incorporate for clauses like that of pause feature, where things could be suspended until the FM phenomenon is undertaken, while a few contracts incorporate specific measure of impediments and limitations in time, post which either party could repudiate the contract after giving a notice of particular number of days.

Buyer’s financing
Obtaining the consent and financing by the third parties and the approval of the government could take a lot of time, which could make Mr. B wanting to opt for “financing out” situation, permitting to walk aside from the transaction with no fine, in cases of failure of financing. Scrutinizing Mr. B’s financial capital, and making requests regarding escrow for delayed “purchase price payments” as well as surety from the side of Mr. B’s parent will help in coping up with the situation

Material Adverse Change/ Material Adverse Effect (MAC/MAE)
This clause reiteratively administers the right of either side to adjourn the contract in instance of any event which has a prodigious negative effect on the economic vitality of the occurrence. Therefore, it is essential to reconsider the interpretation of MAC to investigate if it is wide enough to appropriate what eventuality a pandemic would carry on the representations.

Usual Course of business
With the COVID-19 crisis, corporations are taking remarkable activities which can commonly be admitted to be existing outside the usual course of business, however, such activities might also result in the company’s best interests, and differ case to case.

Indemnity, Representation or Warranties
With the emergence of this pandemic, it might be possible that certain stipulated R&W do not hold legitimate and true anymore. Thus, even if the authority of negotiation is not in favour always, it is necessary to consider some above-mentioned points so as to stand through in a good footing. Additionally, taking an example of a huge contract which will expectedly deliver in case where things do not go right- ‘Insurance’. Even though such corporations assure to safeguard us at the phase of a covered vulnerability, contravention of R&W, nonetheless, to confine its causalities, insurers have announced the supposition of omission to the cover advanced. The unpredictability of COVID-19 and the tremendous outbreak speculated across nations, industries and corporations, insurers have incorporated exceptions regarding Covid-19 in their respective policies.

Most of the omissions enclose any loss which could be with respect to the ongoing Covid-19 pandemic. The ambit of such exclusions could be hampered after negotiation, interdicting coverage of only specifically centralized R&W relying on the operational profile of the intended

In spite of the harsh angle, the pandemic might open up certain buy-side junctures, pulling on the lower assessments in the short run, so as to explore tremendous “return on capital” in the long run. An identical trend was recognized after the recession of the year 2008, when PE funds as well as MNCs with adequate “dry powder” utilized their funds in order to take up major stressed assets on the cheaper side in the eventuality of the crisis.

Various practices being taken into account, by our government as a solution to the Covid-19 pandemic, like that of allowing the system of telemedicine through the means of video and online  platforms, and expediating retail selling of drugs at consumers’ door, in addition with the technological advancements and artificial intelligence, will definitely result in another set of business opportunities, acting within the platform of ‘health-tech.’

Furthermore, examining that a huge proportion of our country’s population does not carry insurance of any type, a pandemic of this level is expected to indicate the intensity of the requirement for getting insurance, involving health insurance, therefore deriving in remarkable uptake in the insurance domain and as a consequence, expanded M&A activity. In addition, crucial sectors like FMCG, IT, pharma, etc., will also possibly to observe a boom, and, therefore M&A activity will surely supersede.

The way forward
Buyers who have got into M&A deals at pre-COVID-19 valuations might wish to put an end to such deals or re-transact the purchase price antecedent to the closing and will have to look forward for the methods to do so without actually incurring any liability. Furthermore, sellers might aspire to go ahead with the closing and consider mechanisms to compel buyers to close. Additionally, if a particular corporation has been substantially agitated by this outbreak, respective parties to related signed transactions will be required to interpret their purchase agreement in order to evaluate their propounded path as well as probable liability, with special focus on requisites and situations to closure, termination powers and fees, provisions regarding indemnity, sustainability of finance for acquisition and lastly, the insurance for R&W.

Parties should envisage postponement in securing the assent of the government and third parties, and deferment in another closing strategies. The fact that due diligence will, at present, take extensively longer because organizations remain very much precise in activity, in-person administrative presentations along with on-site visits are quite vindicating, dealing parties must accommodate expectations and agendas correspondingly.

Also, visiting court is very much exigent with court facilities been closed, delayed or validated docket timelines, hardships owing to the adjusted operations of the courts, for instance, telephonic or virtual hearings. This might affect a party’s viewpoint of the related matters and execution of countermeasures like specific performance. It could stimulate the parties to concede and negotiate a way more stabilized unravelment, instead of either putting an end to the transaction or being compelled to close it. Obtaining third-party financing so as to fund the actual purchase price will also become very tough.

Strategizing a mechanism for due diligence, (and that too without getting bewildered by any external crisis), revenue flow, risk and cyber security assessments, setting up a scheme planning to get prepared in steadily-changing circumstances, accommodating the timelines for due-diligence and meticulously assimilating goals to right away begin with value creation could pave the path to overcome with this situation  A specific degree of spontaneity will be needed in order to get through the crisis, thereby furthering out of the prospective recovery.

Disclaimer: The views expressed in the article above are those of the authors' and do not necessarily represent or reflect the views of this publishing house. Unless otherwise noted, the author is writing in his/her personal capacity. They are not intended and should not be thought to represent official ideas, attitudes, or policies of any agency or institution.

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merger and acquisitions

Navdha Maheshwari

The author is pursuing MBA (Law), Batch 2019-21, NMIMS Mumbai

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