Mergers & Acquisitions »M&A«

We are specialised in the planning and handling of M&A transactions. We support both with the preliminary stages of a transaction and on the post-acquisitive measures such as the squeeze-out of minority shareholders. 

Planning

It is crucial that both the seller and the investor prepare transactions diligently. Accurate planning allows a detailed structure of the envisaged transaction steps to be put in place. Sellers and target companies need to be aware of the fact that there are different types of investors who have various transaction goals in mind: while strategic investors usually intend to invest long term, e.g. to strengthen their own market position or to generate synergies, financial investors commonly focus on an increase in value to achieve a maximization of profit in the short or middle term.

Transaction Structure

It is also key to choose the appropriate transaction structure. In a Share Deal the seller sells all its shares in the target company. Thus, the shares are the object of the purchase. The target company remains unaffected by the transaction. In an Asset Deal however, the company itself transfers its business to the purchaser. Hence, the assets and liabilities of the company are the object of the transaction.

Procedure 

There are no hard rules when it comes to the procedure of M&A transactions as one set of rules would never suit the variety of circumstances under which transactions take place. Nevertheless, in practice, two commonly used procedures have been established: (i) the (classical) procedure of exclusive negotiations (»One-on-One«) and the controlled or limited bidding process (»Limited Auction«). In few cases an unlimited bidding process is used. This mainly occurs in privatizations. Below please find an overview regarding the different stages of the two main procedures:

One-on-One

  • Preparation phase (e.g. vendor carries out a due diligence procedure. The preparation of teaser/information memorandum is conducted)
  • Approaching investor
  • Negotiating the letter of intent
  • Executing the letter of intent und confidentiality agreement
  • Due diligence
  • Negotiations regarding share/asset purchase agreement
  • Signing
  • Closing

Limited Auction

  • Preparation phase (e.g. vendor carries out a due diligence procedure. The preparation of teaser/information memorandum is conducted)
  • Executing the confidentiality agreements
  • Dispatch of information memorandums
  • Filing of indicative offers
  • Examination of indicative offers; admission of due diligence (including a draft share/asset purchase agreement)
  • Due diligence performed and comments on the draft share/asset purchase agreement written
  • Examination of final offers and admittance to negotiations (providing exclusivity when the appropriate circumstances arise)
  • Negotiations regarding share/asset purchase agreement (including multiple investors and/or allowing a deepening due diligence check to be performed, when the appropriate circumstances arise)
  • Signing
  • Closing 

Accompanying Measures

Shareholders' Agreements

If there is more than one shareholder remaining after the transaction, it is customary to regulate the shareholders' mutual rights and obligations in a shareholders' agreement.  

Reorganisations

In the course of a transaction, the corporate structures may change due to organisational or fiscal requirements both on the seller's and on the investor's side. See reorganisations. 

Antitrust, Public Law and Regulatory Approvals

We support our clients in obtaining necessary antitrust, public law and regulatory approvals, for example regarding merger filings (according to national and European law) or approvals under the Austrian Banking Act.

Post-Acquisitive Measures

Following a transaction, clients commonly intend to optimize the new structure from a tax point of view. Austrian tax law for example allows for losses of non-Austrian entities to be set off against profits of an Austrian entity – »Tax Group«. Furthermore, the new structure often makes it possible to squeeze out minority shareholders. Therefore, we also advise on drafting profit transfer and »Tax Group«-agreements and the squeeze out of minority shareholders.