The Closely Held and Growing Business Enterprises Committee's first virtual retreat
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Report on the Committee’s first Virtual Retreat
Giuseppe Coco
Ughi e Nunziante, Milan; Young Lawyers Committee Liaison Officer, IBA Closely Held and Growing Business Enterprises Committee
g.coco@unlaw.it
Miami: a fancy hotel right on the South Beach strip, a pieds dans l’eau dinner, a catamaran excursion and a salsa party in one of the city’s coolest clubs on the Halloween night. These were going to be the highlights of this year’s CHAGBE retreat. At CHAGBE, we like to raise the bar year after year, and it looked like this was going to be the best retreat ever.
Then Covid-19 came and the entire world abruptly changed, along with our beloved Annual Conference that was transformed into a virtual gathering.
There was little discouragement within the Committee. After years discussing closely held businesses facing disrupting innovation, we must have absorbed a bit of that entrepreneurial spirit, because not even this unusual year made us consider skipping the retreat. On the contrary, we decided to organise a virtual retreat.
We had already converted the yearly CHAGBE Conference – that was scheduled in May 2020 in Amsterdam – into a virtual event and it worked out well. But a retreat is something different: people want to mingle, catch up with old friends and make new connections. CHAGBE’s relaxed and friendly atmosphere usually provides the perfect environment to do so, but it is not so easy to replicate all this online.
Anyway, the die was cast, and we had a program: an online meeting, with a plenary session and breakout rooms. The plenary session was aimed at giving general information about the Committee’s upcoming event and – above all – to get ideas and proposals from the attendees on how to revamp the Committee’s activities during these no-travel times. The breakout rooms were aimed at letting participants chat in smaller groups (with a pre-set topic – M&A in times of Covid-19 – serving more as a conversation starter than as a strict topic). Two sessions were organised to accommodate most time zones. I joined the Tokyo-time session from my home in Milan in the middle of the night.
If someone told me that participating in an online meeting would be a great experience, I would have hardly believed it. But when you put together the right ingredients, something special happens. CHAGBE members really like to get together and you could tell that all the participants were missing each other and were happy to at least be able to share a screen. Just add the easy-going attitude, the friendly chats, the smiling faces, the great ideas for the future (not to mention the traditional face-book, with informal and funny pictures this year) and you’re done!
This virtual retreat brought several good results: the common willingness to do more similar events, including a virtual holiday toast in December, a strengthened sense of belonging and the certainty that, no matter what happens in the future, the connections made within the Committee will never be lost.
Plus, last but not least, the common impression that M&A – which is an important area of practice for many of us – is still alive and kicking!
Summary of discussions during the breakout sessions in the virtual retreat
Richard Spink
Burges Salmon, Bristol
Richard.spink@burger-salmon.com
Market conditions
Italy
The second wave has impacted what was an improving position, and decision makers are now postponing investment and strategic decisions. Notaries and public offices are not functioning normally. Increasing numbers of clients’ offices are closed and that is impacting activity.
Luxembourg
The focus is moving to local transactions given the disruption to international transactions. Again decisions are being deferred, a real sense of ‘wait and see’ on the part of clients and the government. Even technology and fintech investment is slowing down.
United Kingdom
Caterina noted the psychological impact on people, reflecting some of the above but also some strategic decision making continuing (also reflected by Nigel and Richard below), though M&A is definitely slower. Nigel sees opportunities in mergers by necessity and noted the concept of ‘Covid discount’ on deals, as did Alessandro, and noted the further impact of Brexit. Richard noted that there has been good activity in some sectors, including financial services, energy (renewables) and technology, and a return of private equity investors.
Spain
Many decisions have been put on hold. We have seen softer M&A, positives in litigation, employment and re-financings (consistent themes for all of the group). More advisory roles on corporate to balance quieter M&A, again deals in energy, telecoms, infrastructure and financial services.
Other issues
People
Pierre-Alexandre touched on prospects for juniors and challenges in training people, and Nigel mentioned possible reductions medium term in headcount.
Payment
Mixed views on recoveries, some issues in Europe but not so much in UK.
Prospects
All were positive about M&A in 2021. There is a sense that people want to push on and money to invest though variations across sectors. This was countered by some concern (particularly from Italy) that next year could be more challenging (this year having been better than expected).
And a final tribute to Nigel, who on this morning’s performance would win the British radio programme ‘Just a Minute’. The aim is to speak continuously for a minute and be speaking at the end to win the point. He very generously handed me the baton with a mere seven seconds to go of which I took four to unmute!
Ivan Delgado
Conference Quality Officer, IBA Closely Held and Growing Business Enterprises Committee
idelgado@perezllorca.com
Market trends: M&A activity and other areas of work
We started the conversation talking about how the M&A activity and deals in our jurisdictions have been affected. We all concluded that, even though in the United States there is still a lot of M&A activity, in general terms, the M&A activity in all the jurisdictions has declined compared to last year. However, all of us have seen an increase in other areas of work, such as advisory, refinancing and restructuring work.
Venture Capital has been, and is still, very active. There is a lot of liquidity in the market and Venture Capital funds have to invest the money. Sectors like technology and healthcare have been the focus of many investments in almost every single jurisdiction during the pandemic.
Issues: material adverse change, representations and warranties, and valuations
Interesting discussions took place when we talked about the transactions that were able to be signed during the pandemic. The participants had experienced certain additional difficulties for closing the transactions already signed. Some of them experienced difficulties due to the authorities not being able to give the greenlight (antitrust and other governmental authorisations needed for closing), others due to breach of certain rights and warranties between signing and closing, and others because one party was trying to apply a material adverse change (MAC) clause for not closing the transaction.
The issue about how to valuate a company is a hot one and all M&A clients are dealing with it. The gap in valuations between buyers and sellers is now bigger and lawyers have to start thinking about different alternatives for deal structuring and different mechanisms that allow the gap on valuation to become less risky for the parties (ie, earn-out mechanisms and others).
What is coming and what is next – year 2021
We are all very optimistic for 2021. There was a general impression around the group that more distressed M&A and bankruptcy work is coming. We all agreed that if a vaccine is finally announced, more deals will come because there will be a lot of money and appetite in the market. We finally concluded that there will be more M&A activity next year.
Marco A Rizzi
Chair, IBA Closely Held and Growing Business Enterprises Committee
marco.rizzi@bratschi.ch
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There is a lot of domestic M&A going on. International M&A is quite slow/reduced and big deals are at a standstill
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‘Hot’ sectors are pharma/life-sciences, e-commerce, e-healthcare, tech, infrastructure and logistics. ‘Flop’ sectors are manufacturing, retail, entertainment, sports and automotive
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Prices and deal-sizes are generally smaller
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The pandemic had, and continues to have, a certain effect on due diligence questions and representations and warranties, as well as on MAC-clauses. However, there was not an actual shift in terms. Covid-19 is now being factored into deals and the situation is being addressed early. It is less and less seen as a general case for MAC, but, rather addressed in a much more specific way
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In terms of pricing mechanisms, there is an increased tendency towards completion accounts. In turn, no actual shift towards earn-outs can be seen. Where earn-outs were traditionally used this continues to be the case, but it is not the ‘normal’
Giuseppe Coco
Young Lawyers’ Committee Liaison Officer, IBA Closely Held and Growing Business Enterprises Committee
g.coco@unlaw.it
Nigeria
Oluwabukola Iji, Diversity and Inclusion Officer, IBA Closely Held and Growing Business Enterprises Committee
Most of the transactions were slowed down due to the difficulties linked to state approval, which became increasingly difficult to obtain. As a consequence, completion dates had to be postponed with an impact on price mechanisms. Furthermore, sellers were requested to issue new MAC clauses.
However, through flexibility and remote working, it was still possible to take deals home.
Hungary
Gábor Damjanovic, Forgó, Damjanovic & Partners
In some cases, transactions where just aborted. For the other deals that managed to go on, an intense renegotiation on several clauses was necessary, including on pricing. Force majeure clauses were redrafted as well, but in most cases they did not include references to the pandemic. Another important aspect was the ministerial veto in strategic sectors. As the definition of ‘strategic’ is very broad, virtually any transaction could be affected. This is something that may become permanent even after Covid-19.
On the other hand, several business opportunities are arising, such as in the dispute resolution field.
France
Frédéric Cohen, Foley Hoag
There has been a trend of targets being on the market due to Covid-19. Some sectors, like tourism, were hit heavily. Physical due diligence could not be made during the lockdown. Other sectors, for which physical meetings were unnecessary, like technology and biotech, carried on unaffected.
In general, transactions are still happening and, with the right degree of flexibility, it is possible to continue working.
Denmark
Christian Gregersen, Horten
There have been three major phases: in March/April deals dropped and were abandoned; then during the summer the M&A market slowly started to recover; it eventually got momentum and it is now close to normal again. It looks like there will be several consolidations, especially in the financial sector. Litigations on price are to be expected. Earn out clauses are not very popular in Denmark, all the more so during a pandemic. Founders prefer to wait and see how the next coming months will look like.
Germany
Michael Schmidt, Schmidt Taxlaw
The German economy and one of its most prominent sectors, the automotive sector, was under a lot of pressure even before Covid-19. Now the situation is even more difficult to read and all satellite activities are struggling, with a consequential decrease of the selling prices. Even though finance is widely available, uncertainty as to the business models of the targets makes it hard to use it.
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