1. Kumar Pallav
Corporate law: Policy Analysis
Paper on
“On the execution of a strategic acquisition: a comparison of
U.S. and Indian laws”
By: Kumar Pallav1
1
Candidate for LLM, class of 2010, NYU School of Law.
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2. Kumar Pallav
Corporate law: Policy Analysis
Synopsis
1) The strategic acquisition: An importance of planned company acquisition……….. 3
2) Mergers and acquisitions as a source of value creation in business………………… 4
A) Motives and sources of value in mergers and acquisition
B) Economic drivers of mergers
B.1) Horizontal merger
B.2) Vertical merger
B.3) Conglomerate merger
C) Sources of value destruction in mergers
D) Institutional protection mechanism
3) The structure for the corporate acquisition in the U.S. ……………………………… 9
A) Three ways to a acquire control
A.1) Asset acquisition
A.2) Stock acquisition
A.3) Merger
B) Triangular merger as a solution and its purpose
4) Indian laws of Merger ………………………………………………………………… 14
5) Future role of M & A in India………………………………………………………... 16
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Corporate law: Policy Analysis
1) The strategic acquisition: The importance of planned company acquisition
Merger and acquisition is one of the most important and complex corporate
transaction. Business entities make use of mergers and acquisitions for expansion of
business as well as for gaining a competitive advantage in the industry. A corporate firm
may grow its business either by internal expansion or by external expansion. In the case
of external expansion, a corporate firm acquires a running business and grows overnight
through corporate combinations. These combinations are in the form of mergers,
acquisitions, and takeovers. They play an important role in the external growth of a
number of leading companies of USA and India. Mergers & acquisitions have become
popular because of the enhanced competition, free flow of capital across countries and
globalization of businesses. In the wake of economic reforms, Indian have learnt from US
industries and also started restructuring their operations around their core business
activities through acquisition and takeovers because of their increasing exposure to
competition, both domestically and internationally. 2
Mergers and acquisitions are strategic and complex decisions in order to maximize
company's growth by enhancing its production and marketing operations. The rise of
globalization has greatly increased the market for cross border acquisition. This rapid
increase has taken many firms by surprise because the majority of them never had to
consider acquiring. However, planned company acquisition is required due to the
financial, strategic and competitive reasons.
2
See Richard G. Parker and David A. Balto, “The Merger Wave: Trends in Merger Enforcement and
Litigation,” The Business Lawyer 351 (1999).
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4. Kumar Pallav
Corporate law: Policy Analysis
2) Mergers and acquisitions as a source of value creation in business
A) Motives and sources of value in mergers and acquisitions
Merger and acquisition, generally, is a process whereby two businesses entities
combine their operating activities and may result in a new legal entity or one of the two
combining business entity remains in existence while the other does not. An acquisition
refers to the process when a company simply purchases another company where no new
company being formed. Mergers and acquisitions generally aim to generating cost
efficiency through the implementation of economies of scale. Tax gains and revenue
enhancement through market share gain are basic features of the motive behind M & A. 3
The principal benefits from mergers and acquisitions can be listed as increased
value generation, increase in cost efficiency and increase in market share. It is expected
that the shareholder value of a firm after successful mergers or acquisitions should be
greater than the sum of the shareholder values of the parent companies. An increase in
cost efficiency is affected through the procedure of mergers and acquisitions. This is
because mergers and acquisitions can lead to economies of scale. This in turn promotes
cost efficiency. As the parent firms amalgamate to form a bigger new firm the scale of
operations of the new firm increases. An increase in market share is one of the plausible
benefits of mergers and acquisitions. In case a financially strong company acquires a
relatively distressed one, generally the resultant organization can experience a substantial
increase in market share. The new firm is usually more cost-efficient and competitive as
compared to its financially weak parent organization. The Employee Retirement Income
Security Act of 1974 (ERISA), promote the employee benefit programs, which are
affecting the viability of mergers and acquisitions in the USA. Companies going for
3
William T. Allen, Reinier Kraakman, “Commentaries and cases on the law of business organization,”
423-449 (2003).
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Corporate law: Policy Analysis
mergers and acquisitions strive to iron out the internal differences to maintain a specified
level of employee satisfaction.4
In US regulation mergers began with the Sherman Act in 1890. Mergers can be
horizontal, vertical, and conglomerate. It depends on the nature of the merging
companies. Acquisitions occur between the bidding and the target company. Takeover
can be either hostile or friendly. In case of reverse takeovers, it occurs if the target firm is
larger than the bidding firm. In the course of acquisitions the bidder may purchase the
share or the assets of the target company. As seen from past experience mergers and
acquisitions are triggered by economic factors.
B) Economic drivers of mergers
B.1) Horizontal merger
Horizontal merger is a combination of two or more firms in the same area of
business. Two companies that are in direct competition and share the same product lines
and markets i.e. it results in the consolidation of firms that are direct rivals as Exxon and
Mobil. The objective behind horizontal mergers is to achieve economies of scale in the
production procedure. Horizontal merger give advantage of carrying off duplication of
installations, getting rid of competition, widening the line of products, services and
functions, decrease in working capital and fixed assets investment, minimizing the
advertising expenses, enhancing the market capability and to get more dominance on the
market. Horizontal mergers may also result in monopoly and give the economic power in
the hands of a small number of commercial entities. Generally, horizontal merger
delineates a form of proprietorship and control.5
4
See Leeth, John D. and Borg, J. Rody, “The Impact of Takeovers on Shareholder Wealth during the
1920s Merger Wave.” J. Fin. Quant. Ana. (2000).
5
Farrell, Joseph and Shapiro, Carl, “Scale Economies and Synergies in Horizontal Merger Analysis”
(October 2000). UC Berkeley, Center for Competition Policy Working Paper No. CPC00-15. Available at
SSRN: http://ssrn.com/abstract=502846 or doi:10.2139/ssrn.502846
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Corporate law: Policy Analysis
B.2) Vertical merger
Vertical merger is a combination of two or more firms involved in different stages
of production or distribution of the same product. A customer and company or a supplier
and company i.e. merger of firms that have actual or potential buyer-seller relationship as
Time Warner-TBS, falls under this type of merger.
In case of vertical merger, generally a product manufacturer merges with the
supplier of inputs. However vertical mergers may violate the competition in the markets.
Vertical merger can also block competitors from accessing the raw material source.
Vertical merger may be in the form of forward or backward merger. Generally in case of
the backward merger, a company combines with the supplier of material and when a
company combines with the customer, it is known as forward merger.
There are several reasons for the vertical integration by firms to adopt this merger.
The prime reason is reduction of uncertainty with respect to availability of quality inputs.
Generally firm enter into vertical mergers to avail the plus points of economies of
integration. This merger can convert a firm cost-efficient in terms of distribution and
production costs. This is also useful for the reduction of transactions costs like marketing
expenses and sales taxes.6 In USA, the vertical merger is governed by the „Clayton Act‟
(15 U.S.C.A. 12). A vertical merger transaction, sometimes, raise issues related to the
antitrust laws. Courts in United States has given a ruling on only in 3 cases pertaining to
vertical merger under section 7 of the Clayton as per the latest available information. In
the first case before the court, court contradicted the general assumption that section 7
was not applicable provision for vertical mergers.7 Furthermore the U. S. Supreme Court
6
Svetlicinii, Alexandr, “EU-US Merger Control Cooperation: A Model for the International Antitrust?”
(2006). Legal Life: Journal for Legal Theory and Practice of the Jurists Association of Serbia, Vol. 11,
No. III, pp. 113-126, 2006. Available at SSRN: http://ssrn.com/abstract=1325695
7
United States v. E. I. du Pont de Nemours & Co., 353 U.S. 586, 77 S. Ct. 872, 1 L. Ed. 2d 1057 (1957)
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observed in a case that the primary disadvantage of this merger falls in the throttling of
the spirit and essence of competition. The Court made its further observation that
regarding vertical mergers, two areas need close scrutiny and regulation. One prime
concern is the purpose and nature of the vertical merger arrangement.8 Additionally the
other parameter concerns that the industry concentration trend in that specific sector. In
its third judgment, Supreme Court quashed Ford's claim that its acquisition of Autolite
had made the latter a better competitor. Thus a vertical merger is a situation where a firm
acquires a product supplier or a customer. Vertical mergers may at times violate the US
federal antitrust laws.9
B.3) Conglomerate merger
Conglomerate merger is a combination of firms engaged in unrelated lines of
business activity. Generally it is a merger between companies what do not have any
common business areas or no common relationship of any kind. Consolidated firm may
sell related products or share marketing and distribution channels or production
processes.10
One of the prime aspects of the conglomerate mergers lies in the fact that it helps
the merging companies to be better than before. There are many reasons as why a
company may go for a conglomerate merger. The most important reason is that it adds
the share of the market that is owned by the company and indulges in cross selling.
Moreover, companies look to add to their overall synergy and productivity by adopting
this method of conglomerate mergers. There are several advantages of the conglomerate
mergers. One of the prime benefits is that conglomerate mergers lead the companies to
diversify. As a result, the merging companies bring down the levels of their exposure to
8
Brown Shoe Co. v. United States, 370 U.S. 294, 82 S. Ct. 1502, 8 L. Ed. 2d 510 (1962)
9
Ford Motor Co. v. United States, 405 U.S. 562, 92 S. Ct. 1142, 31 L. Ed. 2d 492 (1972)
10
Church, Jeffrey, “Conglomerate Merger: Issues in competition law and policy,” ABA Section of
Antitrust Law, 1503(2008). Available at SSRN: http://ssrn.com/abstract=1280524
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risks. On the other hand, there are several implications of conglomerate mergers. In one
case it is observed that companies prefer conglomerate mergers in order to increase their
sizes.11
C) Sources of value destruction in mergers
One way of the sources of value destruction in merger is entrenched managers.
Overpaying for low quality targets further exacerbates the losses to entrenched firm
shareholders. Study shows that bad takeover decisions are one way that entrenched
managers destroy shareholder value because of the consequent poor post-merger
operating performance, so study suggest that at least part of the lower operating returns
reported for firms in general are attributable to poor takeover decisions by entrenched
managers.12
Before the merger it should be examined first that whether merger and acquisition
create value for the shareholders or not. At present study produces little evidence that the
merger and acquisitions created long-term value for a fully diversified investor.
Furthermore, the stock price and operating performance of the acquirers underperformed
the stock price and operating performance of a control portfolio of utilities that did not
engage in merger activity.13
D) Institutional protection mechanism
Over the past decade, shareholder activists have increasingly applied pressure on
companies to restructure or seek a merger. In many cases, institutional investors cannot
11
Bauer, Joseph P., “Government Enforcement Policy of Clayton Act Section 7: Carte Blanche for
Conglomerate Mergers?” Cal. Law Rev., 348-375(1983).
12
Harford, Jarrad, Humphèry, Mark Laurence and Powell, Ronan, “The Sources of Value Destruction in
Acquisitions by Entrenched Managers” (2010). UNSW Australian School of Business Research Paper.
Available at SSRN: http://ssrn.com/abstract=1562247
13
Becker-Blease, John R., Goldberg, Lawrence G. and Kaen, Fred R., “Mergers and Acquisitions as a
Response to the Deregulation of the Electric Power Industry: Value Creation or Value Destruction?” J.
Reg. Eco. 1 (2008).
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„„exit‟‟ their investments due to the size of their holdings. As a result, institutional
investors now recognize that they can increase the returns on their investments by
actively monitoring corporate performance and communicating with the managers in
their portfolio companies. If management does not adequately respond to their concerns,
the investors often seek a change in control.
In the US, shareholder activists have used shareholder proposals and other tactics
to pressure companies to repeal classified boards, rescind poison pills, and reduce
compensatory severance packages. The mere threat of soliciting proxies by activists has
caused many companies to ease these types of acquisition roadblocks. Study reveals that
independent directors could provide an important internal governance mechanism for
protecting shareholders' interests especially in large scale transactions. On the other hand,
many studies found no effect. 14
3) The structure for the corporate acquisition in the U.S.
In the United States, public companies are regulated by both federal and state
securities laws. Companies that engage in M&A transaction, have to make certain filings
with the Securities and Exchange Commission (SEC). Securities laws require that for a
M&A of a certain size, companies must file a Form 8K before SEC. This filing contains
basic information on the transaction. The two most important securities laws are the
Securities Act of 1933 and the Securities Exchange Act of 1934.
Tender offers as an important M & A aspect, which is made directly to
shareholders of target companies, is regulated by the Williams Act of 1968 (15 U.S.C.A.
§ 78a et seq.). This act contains various sections that are relevant to the conduct of tender
14
Jagtiani, Julapa A. and Brewer, Elijah, “Target's Corporate Governance and Bank Merger Payoffs,”
(2007). Available at SSRN: http://ssrn.com/abstract=1088472
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offers. Section 13(d), which requires that if an entity, corporation, partnership, or
individuals acquire 5% or more of a company‟s outstanding shares, it must file a
Schedule 13D within 10 days of reaching the 5% threshold. In addition to this, Section
14(d) provides benefits to target company shareholders. It gives them more information
that they can use to evaluate an offer.15
Insider Trading Laws and various securities laws have been adopted to try to
prevent insider trading as one of the aspect in M & A. One important rule is 10b-5, which
prohibits the use of fraud and deceit in the trading of securities. The passage of the
Insider Trading Sanctions Act of 1984, however, specifically prevented the trading of
securities based on insider information.16
The Hart-Scott-Rodino Act, a crucial amendment to the Clayton Act, was passed
in 1976. For the first time merging parties above a certain size were required to report
their proposed transaction to the Commission and DOJ before the deal could be
consummated. Section 7A of the Clayton Act, 15 U.S.C. 18a, as added by Title II of the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, requires persons contemplating
certain mergers or acquisitions to give the Federal Trade Commission and the Assistant
Attorney General an advance notice and to wait designated periods before consummation
of such plans. Section 7A(b)(2) of the Act permits the agencies, in individual cases, to
terminate this waiting period prior to its expiration and requires that notice of this action
be published in the Federal Register.
Procedural requirements for mergers and acquisitions, includes consolidations,
statutory mergers, share exchanges, and asset transactions. These requirements are well
prescribed in state statutes. The statutory fit is not as readily apparent for virtual mergers.
In a virtual merger, the shareholders of both entities have had no change in their
15
Evenett, Simon J., “Do All Networks Facilitate International Commerce? The Case of US Law Firms
and the Mergers and Acquisitions Wave of the Late 1990s” (2001). CIES Discussion Paper No. 0146.
Available at SSRN: http://ssrn.com/abstract=293804 or doi:10.2139/ssrn.293804
16
Rose, Amanda M., “Reforming Securities Litigation Reform: Restructuring the Relationship between
Public and Private Enforcement of Rule 10b-5.” Col. Law Rev.,1301(2008). Available at SSRN:
http://ssrn.com/abstract=1096864
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Corporate law: Policy Analysis
shareholder interests. Their company's identity has not been altered. However,
shareholders continue to have the right to elect company management and to vote on
matters provided by law. Although corporate assets have been transferred to the control
of a new entity, the company's continuing managerial input into the employment of those
assets may argue against the notion that there has been a disposition of assets warranting
a shareholder vote. In short, current statutory provisions regarding mergers and asset
transactions do not explicitly fit the virtual merger mode.17
Unless the articles of incorporation provide otherwise (which they rarely do),
shareholders do not vote except on matters specifically prescribed in the statute of the
state of incorporation. Thus, unless the transaction comes within the specific purview of a
statutory provision, there is no statutory mandate for a shareholder vote. A board can
decide to present a non-mandated matter to the shareholders, but such decisions are rare.
Shareholder voting procedures trigger substantial disclosure requirements cause
significant delays and costs, and may open the door to opposition by institutional
investors and litigious shareholders. Hence, recourse to shareholder approval is usually
invoked only in statutorily required circumstances. The statutory provisions are exclusive
unless shareholder voting is otherwise provided in the articles of incorporation or
shareholder agreement. If a proposed transaction does not fit into one of the statutory
pigeonholes, no shareholder vote is required. Shareholder appraisal rights also would not
apply as appraisal rights are generally tied to voting rights.18
A) Three ways to a acquire control
17
See Edward B. Rock, “The Logic and (Uncertain) Significance of Institutional Shareholder Activism”,
79 GEO. L.J. 445, 466-67 (1991) (explaining that institutional voting power may create agency problems
for smaller shareholder similar to the lack of control over management).
18
Securities Exchange Act of 1934, 15 U.S.C. § 78n (2001) and regulations thereunder, especially
Schedule 14a, Item 14, "Mergers, Consolidations, Acquisitions and Similar Matters."
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Corporate law: Policy Analysis
There are three principal legal forms of acquisitions; asset acquisition, stock
acquisition and merger.
A.1) Asset acquisition
Generally asset acquisition requires two corporations. In this acquisition, an X
corporation purchases majority of assets from Y corporation. For an approved traction for
X corporation, if paying in cash, than only management approval is required. However Y
corporation requires approval by majority of shareholders. In terms of liability, X only
acquires liabilities that attach to the purchased assets. On the other hand, Y retains it
liabilities unless it contracts them to X corporation (with respect to appropriate creditor
approval). Generally, X shareholders have same rights as before, but hopefully they may
get a high dividend in asset acquisition .Y shareholders retain dissenter‟s appraisal rights,
and pro rata of residual of Y corporation. Relatively asset acquisition has high transaction
cost.19
A.2) Stock acquisition
In stock acquisition, X corporation buys shares in Y corporation directly from Y‟s
shareholders. Y corporation is then dissolved passing its assets to X corporation, as a
result Y corporation is merged into X corporation or is run as a subsidiary of X
corporation. For transaction, if new stock must be created, majorities of X shareholders
are required for the creation and selling of X stock only requires management approval.
However each individual Y shareholder may buy at his will. X corporation usually
conditions its offer upon obtaining a controlling percentage of Y shares. In terms of
liabilities, upon the purchase of Y shares, X corporation has limited liability in terms of Y
corporation. Y corporation is left with all its liabilities until later actions. For the
shareholders, X shareholders have same rights as before, but hopefully they may get a
19
Fotaki, Maria, Markellos, Raphael N. and Mania, Maria, “Human Resources Turnover as an Asset
Acquisition, Accumulation and Divesture Process,” (2009).
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Corporate law: Policy Analysis
high dividend. Additionally, most of Y shareholders will become X shareholders and
those who did not sell retain dissenter‟s appraisal right, and will probably be froze out in
stock acquisition.
A.3) Merger
In this transaction, one corporation purchases the other or both dissolve and
become a new corp. The law treats them as the same. In order to complete this
transaction, X and Y corporations require approval by majority of shareholders. In terms
of liability, the surviving, or new, corporation retains all rights and all liabilities
(including unknown ones) of both corporations. However, the surviving or new
corporation can reorganize the equity of the old corporation by eliminating preferred
stock and the cumulative dividends that might be owed. In this aspect of transaction, X &
Y shareholders retain dissenter‟s appraisal rights.
B) Triangular merger as a solution and its purpose
Triangular merger requires at least three corporations. In this kind of merger, an X
corporation forms X-subsidiary corporation whose only assets are X shares. X-subsidiary
then does a stock for assets or stock for stock merger with Y Corporation or Y
shareholders. As a result, Y corporation merge or dissolves. In case the target is surviving
corporations than the merger is said to be the “reverse triangular merger”. If the
acquirer‟s subsidiary is surviving, than the merger is said to be “forward triangular
merger”. Generally liabilities of new acquisition are inevitable risky step. This is the
reason that most mergers are accomplished in a way that permits two separate corporate
entities to survive the merger and triangular merger is a solution for this purpose.
The triangular merger is a prime example of the narrow application of statutory
standards. Shareholders of the parent corporation in a triangular merger have no statutory
right to vote because their corporation is technically not a party to the merger. Although
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shareholders of an acquiring corporation might have voting and appraisal rights if the
target corporation merged directly into it, no voting or appraisal rights exist if the target
merges into the acquiring corporation's subsidiary. The avoidance of a shareholder vote
through the triangular merger has resulted in both litigation and some statutory reform.
4) Indian laws of merger
The basic governing laws in use the term 'amalgamation' for merger, however
basic characteristics are the same with comparison to US laws relating to merger.20 The
Income Tax Act, 196121 defines amalgamation as merger of one or more companies with
another or the merger of two or more companies to form a new company, in such a way
that all assets and liabilities of the amalgamating companies become assets and liabilities
of the amalgamated company and shareholders not less than nine-tenths in value of the
shares in the amalgamating company or companies become shareholders of the
amalgamated company.22
The fundamental law related to mergers and acquisition is codified in the Indian
Companies Act of 1956. Section 391 to 396 of the Companies Act, 1956 deal with the
compromise and arrangement with creditors and members of a company needed for a
merger. This provision is different in United States for creditors and in case of fraudulent
transfer; such transfer is governed by Securities Exchange Act of 1934. Generally
tribunals in India control over the merger transaction. Section 392 confers the power to
the Tribunal to enforce and supervise such compromises or arrangements with creditors
and members. On the other hand, for the protection of the deal, section 395 gives power
and duty to acquire the shares of shareholders dissenting from the scheme or contract
20
MCA: notification, Available at http://www.mca.gov.in/Ministry/notification/pdf/AS_14.pdf
21
Income Tax laws, Available at http://www.taxmann.com/directtaxlaws/Income-tax-acts.aspx
22
India Code Information System, Available at http://indiacode.nic.in/
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approved by the majority. Additionally section 396 deals with the power of the central
government to provide for an amalgamation of companies in the national interest.23
The other regulations are provided in the Foreign Exchange Management Act of
1999 and the Income Tax Act of 1961. Besides, the Securities and Exchange Board of
India (SEBI)24 has issued guidelines to regulate mergers and acquisitions. The SEBI
(Substantial acquisition of Shares and Takeover) Regulations of 1997 and its subsequent
amendments aim at making the take-over process transparent, and also protect the
interests of minority shareholders, which is moreover the same protection which is
provided in the United States.25 SEBI has the same role as SEC in the United States.
Moreover the Competition Act of 200226 in India works similar to the Hart-Scott-Rodino
Antitrust Improvements Act of 1976 of USA, to regulate business combination with
respect to antitrust laws.27
The basic difference between India and US merger laws is that there are no
specific state laws to be complied within India for merger. All companies are regulated as
per the Companies Act of 1956. Basically Indian legal system is not much complex with
respect to merger and acquisition, but it needs a more regulatory reform as reflected in
the United Stated. In terms of minority shareholder‟s right, Indian laws are not effective
to protect the minority shareholder‟s right due to lack of information sharing needs.
Generally for shareholder‟s, it is hard to get proxy statement and registration document
because it is not totally available online, as it is provided online by Security Exchange
Commission in USA. On the other hand, due to the lack of awareness to the minority
shareholders for their rights, case laws have not developed up to the extent to provide a
reformative Indian legal system for merger and acquisition for shareholder‟s protection.
23
MCA report, Available at http://www.mca.gov.in/Ministry/reportonexpertcommitte/chapter10.html
24
SEBI: Gov. of India, available at http://www.sebi.gov.in/
25
“Merger and acquisition, “available at http://business.gov.in/growing_business/mergers_acq.php
26
Competition Act of 2002, at http://www.unctad.org/sections/ditc_ccpb/docs/ditc_ccpb_ncl_India_en.pdf
27
Ministry of Corporate affairs: Acts, bills and rules, at http://www.mca.gov.in/Ministry/acts_bills.html
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Corporate law: Policy Analysis
5) Future role of Mergers & Acquisitions in India
The increased competition in the global market has prompted the Indian
companies to go for mergers and acquisitions as an important strategic choice. 28 The
trends of mergers and acquisitions in India have changed over the years. Prior to
recession in year 2007, there were 287 accomplished deals from the month of January to
May in 2007. It involved monetary transaction of US $47.37 billion involving 102
countries. Vodafone‟s acquisition of a controlling interest in Hutchison Essar and Tata
Steel‟s acquisition of the European steelmaker, Corus headlined a frenzy of acquisitions
of foreign companies by Indian corporate enterprises in the past years. Indian global open
market is prime attraction for the merger and acquisition activities. The Indian buy-outs
of US companies were recorded at $2.9 billion in second quarter and $2.95 billion in first
quarter of 2007-08.29 Present globalization trends increased the merger transactions
between India and United States, and give boost to the future role of India in merger and
acquisition activities.
28
World Economic Report, available at http://www.un.org/esa/policy/wess/wesp2007files/wesp2007.pdf
29
Assocham research bureau, reports available at http://www.assocham.org/arb/aep.php
16