15 Mar 2012

A perfect combination makes The Real M&A Deal

Sydney, 15 March 2012: Joint bids and bear hugs will feature prominently in Australian M&A in 2012 as uncertain market conditions continue to heavily influence bid strategies and the way deals are structured.

These are among the findings of THE REAL DEAL 2012, a new Clayton Utz publication providing an unparalleled depth of insight and analysis into public M&A deal structures, tactics adopted by targets and acquirers, and developments shaping the future of the Australian M&A market.

To be officially launched tonight in Sydney, THE REAL DEAL 2012 is based on an in-depth 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 / M&A partners Karen Evans-Cullen and Jonathan Algar, who were key contributors to the analysis, said the findings of THE REAL DEAL 2012 uncovered both commercial and technical legal trends in the approach and structure of Australian M&A transactions. "For example, joint bids – which have not featured prominently in the past – became increasingly popular in 2011 and were used in some of the largest deals of the year," said Ms Evans-Cullen. "We expect this trend to continue as bidders seek certainty in an uncertain market, and pool their resources to secure strategic assets."

Mr 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."

Ms Evans-Cullen said that the survey revealed a very positive trend which 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% of the deals announced in 2011 were successful (excluding ongoing deals)."

Mr 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," Mr Algar said.

While 2011 saw a preference for cash deals, if the Australian equity market stabilises in 2012, Ms Evans-Cullen and Mr 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.

Ms Evans-Cullen 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 to clients. "THE REAL DEAL 2012 reflects its title. Our team has developed a fantastic analytical tool that will be of great practical use and allow us and our clients to be at the forefront of emerging trends in the market."

If you would like to request a copy of THE REAL DEAL 2012, please email us.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.