Working as a transactional lawyer doesn’t necessarily have to be boring. Actually, it often creates new challenges and offers chances to implement unique and seemingly impossible initiatives. In this article, we will talk about the completion of several complex transactions that added up to a large reorganisation project finalised in less than… 2 months! We will also share our experiences and discuss issues that require attention prior to and during the management of a complex process of structuring of a capital group.
M&A – MOST COMMON REASONS FOR TRANSACTIONS
Undoubtedly, the Mergers & Acquisition transaction market has recently been booming (more about the records of mergers and acquisitions conducted in the past years in the article titled “Revolution on the mergers and acquisitions market“).
Essentially, while it may be tempting to create a list of the most common reasons for M&A, the way the process is implemented and managed is a different story. Each situation somewhat forces (or perhaps requires) the provision of an individual approach and optimal solutions.
This time we will focus on transactions that constitute a capital group reorganisation process and therefore on organising the structure of related entities. Let’s start with the reasons for such a reorganisation. Typically these include:
- economic crises;
- intra-corporate conflicts;
- increase in the costs of maintenance of the structure;
- management issues;
- possibility of imminent bankruptcy;
- business development;
- preparation for obtaining funds;
- organising the business and improving its image.
Evidently, for some, the decision to restructure the company is an OPPORTUNITY to grow, while for others, it is considered as the last HOPE for recovery from crisis. Although the motives of our clients to organise a group of companies are often repetitive, the arrangement of a transaction is another matter requiring careful consideration and adaptation to a specific situation.
ON RAPID REORGANISATION (CASE STUDY)
At the turn of the year 2021/2022, our team faced a real challenge. It concerned a complex business reorganisation for one of our clients. Why was it complex and how was it different from classic transactions? It wouldn’t be original to only indicate the pressure of time that accompanies the vast majority of M&A transactions. Similarly, the end of the calendar year, usually coinciding with the end of the financial year, which in accounting/bookkeeping is of a great importance. In this case (i.e., the discussed case study), apart from the aforementioned “difficulties”, we had to face the complexity of the matter, the multiplicity of entities and… legislative changes simultaneously introduced to the Polish legal order.
The reorganisation assumed ordering the business structure of a group of companies by removing redundant entities that generated high costs. From the very beginning it was obvious that the structuring required a number of transactions (the group comprised many companies). Following accurate (and complex) identification of the client’s needs as well as meticulous tax analysis, together with decision makers, we specified the transaction framework.
The plan was seemingly clear and assumed:
- the determination of two key segments of the client’s business;
- the division of the existing entities according to the defined segments and selection of redundant entities;
- the consolidation of companies and their location within the specified segments;
- the creation of an entity controlling the entire business group (holding company).
We use the word seemingly, as it turns out that the number of activities is significant when you include all of the individual elements that need to be implemented, e.g., mandatory valuation, circulation of documents, codes, synchronisation of terms of notarial acts, registration procedures. Moreover, as it happens in the law world, an increasing number of surprises start appearing when the formalities are being settled, just before the necessary arrangements are made. Every transaction of this kind is preceded by a thorough tax analysis of possible variants. Following this analysis, the legal framework of the process and the schedule for the implementation of individual works are created. However, in this case, in the face of continuously changing tax regulations, the analysis evolved several times. Each amendment was associated with the necessity to re-establish the legal framework and update the schedule and plan.
With a plan in place, at the beginning of November, we started the implementation phase. Naturally, we divided the transaction into stages and roughly estimated the deadlines for each stage. During the implementation phase, which included the preparation of documents based on the agreed plan, it was subject to constant changes and updates. Some of the changes forced us to revise the prepared documentation (sometimes at the final stage of its creation). All of this to implement optimal and, most importantly, safe solutions in relation to the client’s business needs.
We already knew then that the processing of the most important restructuring points within a timeframe expected by the client appeared to be rocket science. We were not wrong. And yet, we did it!
We successfully completed:
- 2 mergers;
- 5 transformations;
- the creation of a new entity (holding company);
- the consolidation of reorganised entities with a newly established company.
All of this in… less than 2 months!!!
BENEFITS OF THE REORGANISATION PROCESS
Thus, we managed a process, which constituted a significant milestone in the client’s business development pathway. What are the benefits of this process?
- Increase in the efficiency of business management.
We simplified the ownership structure, making it much more transparent. In addition, the business management became more efficient.
- Optimization of operations.
From an economic and administrative point of view, this change enables optimal use of the company resources.
- Cost reduction.
Removing unnecessary entities from the extended structure dramatically reduced its operational costs.
- Strengthening market position.
A transparent business structure always strengthens the position in talks and negotiations with contractors and entities financing the group’s investment activities.
HOT SPOTS, I.E. WHAT SHOULD BE PAID ATTENTION TO DURING THE COMPANY’S REORGANISATION PROCESS
As they say, the devil is in the details. Depending on whether our M&A is a single, separate transaction (one process) or it is a fragment/stage of a complex reorganisation (as in the described case), different elements require special attention.
Of course, it is impossible to list all of the critical elements here; however, we will systematise the most important ones for you in a simple way.
Reorganisation within a capital group. The key steps that we do not advise skipping:
- Tax analysis of all transactions.
From a practical point of view, it is the most important element, which should precede such a complex and multithreaded reorganisation. But not only. It should precede practically every transaction. This preparation of the concept of structuring the client’s activities in a tax-optimal manner is the basis for the safe arrangement of the legal framework for the transaction in a way that takes into account business needs, without generating risks or reducing them to a minimum.
- Laying out the transaction plan, defining its stages.
At first glance, this appears to be a simple technical and organisational activity. Step by step, it comprises the most important phases of the process and takes into account the steps/formalities concerning customer that we need to take care of. In practice, it is of great importance in the implementation phase. The plan should be detailed, but above all clear. This makes it easier to verify and modify certain parts of it when necessary during the process.
- Organisation of accounting and administrative matters.
It is another seemingly technical activity, without which it is impossible to move forward with the project, and certainly to complete it successfully. And here again – with a clear transaction plan, it is considerably easier and more efficient to determine the scope of accounting/administrative tasks that need to be carried out as well as their deadlines.
- Selection of the valuer.
The valuation process is often tedious and time consuming, which can put the execution phase on hold even for several weeks. And as you know, in this process, every day is at a premium. Hence, when planning a transaction (scheduling), one should consider the need to carry out a valuation and look for a competent expert. Similarly to the tax analysis, the valuation is a step that should absolutely not be underestimated.
- Selection of the notary.
If companies within a capital group constantly use the services of a given notary’s office or a particular notary public, it would be convenient to “conduct” the transaction in a place that is already somewhat familiar with the “history” of the companies. It is often easier to coordinate deadlines, particularly when time is pressing and the schedule is tight.
- Registration and applications.
Referred to as the “final stretch”, although it is not always the case. In the course of complex reorganisation processes involving many transactions, there are quite a few of such applications. Contrary to popular belief, the correspondence with the registry court and the submission of documents are carried out from the very beginning of the actual implementation of the project. Of course, this takes place as the documents are prepared at each stage. The final notification of changes to the registry court is not the only one that we deal with during such processes. Thus, having an experienced advisor can accelerate and facilitate the sometimes tedious and formalised procedure. In exceptional situations, it is possible to combine applications (which by definition should be carried out separately in accordance with strictly defined time intervals) and speed up the long-awaited actual closing.
Finally, it is worth emphasising that regardless of the reasons for a given transaction, the hot spots remain unchanged and equally important. As it can be seen from the example of the restructuring process recently conducted by us, sometimes a complex project that has been planned for many months can be successfully completed nearly 3 times faster. However, you need to be aware of the importance of proper analysis/es (sometimes multiple and requiring updating). Despite the widespread belief that changes in the original concept only complicate and disorganise the entire project, in transaction practice, they are an element that is necessary for the fullest possible protection of the interests of the client and their business. When selecting an advisor for the process of reorganisation consisting of many transactions, it is essential to check the genuine experience of the team conducting the process. While many of its elements can be closed with a procedure, it largely depends on the practice and “rehearsal” of many scenarios combining knowledge in the field of taxation, law and, of course, the practice of business operation.