Upturn leading to rise in corporate predators

Jun 30 2009 by Nic Paton Print This Article

A sharp rise in unsolicited takeover offers in the past few months may well be one of the most concrete sign that the economy is recovering and we really are heading into an upturn.

But that doesn't mean it's exactly going to be welcomed in boardrooms up and down the land, for whom the distraction of a fist-fight over ownership is probably the last thing they feel they will need.

Research by the Conference Board's Governance Center in the U.S has suggested that the upturn will bring with an increase in unsolicited takeover offers, and that managers need to be prepared for what this mean for their organisations, including disruption and distraction from the day to day.

Hostile offers have accounted for almost half – 47 per cent – of M&A transactions that took place in the U.S during the first few months of 2009, it has found.

This compared with barely a quarter in all of last year and just seven per cent in 2004.

The reasons for this are clear enough – it's a combination of more organisations now starting to feel confident in the future as well as seeing the possibility of bargains to be picked up among their weaker rivals and competitors.

"Today's market conditions permit some companies to be 'put in play' more easily than before," said Frederick H Alexander, a partner at law firm Morris, Nichols, Arsht & Tunnell in Wilmington, Delaware and author of the report.

Companies with undervalued stock prices, surplus assets or constrained performance – often resulting from short-term liquidity issues – are more likely to invite bargain hunting by more aggressive, and less cash constrained, acquirers, he argued.

Directors therefore needed to become familiar with their organisation's governance profile and the tactics they might be able to use to protect themselves and their shareholders from opportunistic assaults.

But this was not always about thwarting unsolicited offers, he emphasised. "They are about ensuring that directors are given enough time to fulfill their fiduciary obligations and obtain the information necessary to make a rational business decision with respect to the offer, as well as to explore all alternatives," he explained.

Recommendations included: reviewing the existing organisational provisions, including its charter and byelaws, monitoring the shareholder base and intentions, maintaining proactive external relations and understanding how investors and "gatekeepers" (such as advisors and governance rating agencies) could perceive and react to possible amendments to an organisation's governance profile.

Even if the M&A approach does come, there's no guarantee that either side will get it right, it is also increasingly clear.

Research by HR consultancy Hewitt Associates in May argued that people management is one of things that most commonly goes wrong when it comes to M&As – despite also being one of the challenges most regularly highlighted by observers and consultancies.

Failing to stop key talent from leaving and failing to maintain commitment, morale and engagement on both sides were common failings, with some eight out of 10 European businesses failing to get what they wanted from their M&A, it found.

And as far back as last November, consultancy Deloitte had identified aggressive M&A activity as being a possible by-product of the slump, with companies prepared to hold thjeir nerve and take the risk in a downturn often doubling their shareholder return when the upturn came.