Merger and Acquisition in the Information Technology Industry
ABSTRACT- Mergers and acquisitions are strategic decisions taken for maximisation of a company's growth by enhancing its production and marketing operations. They are being used in a wide array of fields such as information technology, telecommunications, and business process outsourcing as well as in traditional businesses in order to gain strength, expand the customer base, cut competition or enter into a new market or product segment. Main agenda behind Merger and acquisitions are:
(1) Selling existing products to a wider body of consumers.
(2) Product line extensions, geographic extensions, redeploy brands
(3) Redeploying technology/patents of one firm to improve the products of the other
Technology companies, in search of new ideas, new products, trained knowledge workers, strategic relationships and additional market share, have been the most acquisitive. The sector is highly innovative and subject to constant technological development. It is also the source of dramatic changes in business practices in all other industrial sectors. Over the past few years, India‟s top software companies have acquired foreign firms to increase their local presence in the US and Europe, their main markets, or to acquire employees with a specific skill set or strengthen their capability in a particular sector. In calendar year 2012, the IT and IT-enabled services sector saw cross-border merger and acquisition transactions worth $1.4 billion (around Rs. 7,630 crore today) with a bulk of the deals happening in Europe ($640.4 million) and North America ($591 million Indian IT companies have thoroughly realized the value of making strategic cross-border acquisitions as demonstrated by Infosys Ltd‟s acquisition of Lodestone, MphasiS Ltd‟s acquisition of Digital Risk Llc and Wipro Ltd‟s acquisitions of Promax.
Taking two illustration- Dell Inc has struck a deal to acquire technology services provider Perot Systems Inc in a cash transaction valued at $3.9 billion. The deal has been in the works from 2007. The move will help Dell diversify from its core hardware business, which has become a commodity business with lower margins. The acquisition will give Dell more headroom to compete with the likes of IBM, Accenture, HP and Indian IT and ITeS services providers, such as TCS, Infosys and Wipro.
Twitter‟s acquisition of Madbits, an artificial intelligence company that has developed technology which recognises digital images using deep learning, highlights the level of interest in artificial intelligence (AI) in the aftermath of Google's purchase of Deep Mind in January. The technology acquired by Twitter will assist it build an image search system. Twitter will also be aiming to analyse the images users post to enhance user experience and provide targeted adverting for businesses.
In this paper the author will broadly elaborate the role of merger and acquisition in the information technology industry, its contribution to the country‟s GDP and the challenges faced during the process.
Mergers & Acquisitions- An Introduction The term „merger‟ is not defined under the Companies Act, 1956 (the “Companies Act”), the Income Tax Act, 1961 (the “ITA”) or any other Indian law. Simply put a merger is a combination of two or more businesses into one business. Laws in India use the term „amalgamation‟ for merger. The Income tax act, 1961 [section 2(1A)] defines amalgamation as the merger of one or more companies with another or the merger of two or more companies to form a new company, in such a way that all assets and liabilities of the amalgamating companies become assets and liabilities of the amalgamated company and shareholders not less than nine-tenths in value of the shares in the amalgamating company or companies become shareholders of the amalgamated company.
3 Mergers and acquisitions are strategic decisions taken for maximisation of a company's growth by enhancing its production and marketing operations. They are being used in a wide array of fields such as information technology, telecommunications, and business process outsourcing as well as in traditional businesses in order to gain strength, expand the customer base, cut competition or enter into a new market or product segment.
Thus, mergers or amalgamations may take two forms:-
§ Merger through Absorption: An absorption is a combination of two or more companies into an 'existing company'. All companies except one lose their identity in such a merger. For example, absorption of Tata Fertilisers Ltd (TFL) by Tata Chemicals Ltd. (TCL). TCL, an acquiring company (a buyer), survived after merger while TFL, an acquired company (a seller), ceased to exist. TFL transferred its assets, liabilities and shares to TCL.
§ Merger through Consolidation: A consolidation is a combination of two or more companies into a 'new company'. In this form of merger, all companies are legally dissolved and a new entity is created. Here, the acquired company transfers its assets, liabilities and shares to the acquiring company for cash or exchange of shares. For example, merger of Hindustan Computers Ltd, Hindustan Instruments Ltd, Indian Software Company Ltd and Indian Reprographics Ltd into an entirely new company called HCL Ltd.
A fundamental characteristic of merger (either through absorption or consolidation) is that the acquiring company (existing or new) takes over the ownership of other companies and combines their operations with its own operations.
Besides, there are three major types of mergers:-
§ Horizontal merger: It is a combination of two or more firms in the same area of business. For example, combining of two book publishers or two luggage manufacturing companies to gain dominant market share.
§ Vertical merger:- is a combination of two or more firms involved in different stages of production or distribution of the same product. For example, joining of a TV manufacturing (assembling) company and a TV marketing company or joining of a spinning company and a weaving company. Vertical merger may take the form of forward or backward merger. When a company combines with the supplier of material, it is called backward merger and when it combines with the customer, it is known as forward merger.
§ Conglomerate merger:- is a combination of firms engaged in unrelated lines of business activity. For example, merging of different businesses like manufacturing of cement products, fertilizer products, electronic products, insurance investment and advertising agencies. L&T and Voltas Ltd are examples of such mergers.
Scope of Merger & Acquisition
Mergers and Acquisition have gained popularity throughout the world in the recent times. These have become popular due to globalization, liberalization, and technological developments & intensely competitive business environment. Mergers and acquisitions are a big part of the corporate finance world. This process is extensively used for restructuring the business organization. In India, the concept of mergers and acquisition was initiated by the government bodies. The Indian economic reform since 1991 has opened up a lot of challenges both in the domestic and international spheres. The increased competition in the global market has prompted the Indian companies to go for mergers and acquisitions as an important strategic choice. The trends of mergers and acquisitions in India have changed over the years. The immediate effects of the mergers and acquisitions have also been diverse across the various sectors of the Indian economy. Mergers and Acquisitions have been around for a long time and has experienced waves of popularity during these times and they are very much an important part of today‟s business world. They have also become increasingly international which can be due to the rising global competition. 4 The popularity of crossborder M&A‟s makes it important to look at them from an international perspective.
Reasons for Merger & Acquisition
The dominant rationale used to explain M&A activity is that acquiring firms seek improved financial performance through synergy. Some of the motives are:
Economy of scale: The combined company can reduce its fixed costs by removing duplicate departments or operations, thus increasing profit margins. For example, HP merged with Compaq to cut costs.
Economy of scope: This refers to the efficiencies primarily associated with demand-side changes, such as increasing or decreasing the scope of marketing and distribution, of different types of products.
Reduction of competition: This assumes that the buyer will be absorbing a major competitor and thus increase its market power to set prices. For example: the merger of GlaxoSmithKline.
Add a new product line: The classic example is Bank of America acquiring Merrill Lynch as a way to offer a much broader spectrum of financial services, and Tata‟s acquisition of Jaquar Land Rover and Tetley Tea.
Taxation benefits: A profitable company can buy a loss maker to use the target's loss as their advantage by reducing their tax liability. For example: Ashok Leyland Information Technologies merger with Hinduja Finance.
Geographical penetration: It may be cheaper to acquire companies that are already doing business in a target market than to create market diversification from scratch. In 2008, InBev acquired Anheuser-Busch creating the world‟s largest brewer. Anheuser-Busch controlled nearly half of the American beer market, and In Bev had strong market share in Europe and Latin America.
Adding new capability: Some transactions are motivated by the need to transform a firm‟s corporate identity or even to be transformative for the buyer overall, where the target company may lead the buyer in a new direction or add significant new capability. An example of this is Google‟s acquisition of YouTube in 2006.
Obtain the rights to develop products and services: In 2008 Nokia acquired Symbian Limited to gain access to Symbian‟s open platform for mobile devices, which was the key to Nokia‟s survival against Sony Ericsson. Acquire patents, copyrights, trade secrets, or other intangible assets that are available only by means of an acquisition: For example, Google‟s acquisition of Motorola for its patents.
Competitive necessity: If the owner of a business decides to sell that business, every potential buyer realizes that its competitors may buy the target, and therefore must evaluate whether it would prefer to be the owner of the business that is for sale than to have a competitor acquire it.
Survival: Following the global recession of 2008, some M&A deals were driven more by survival than by growth. An example was the merger of Towers Perrin and Watson Wyatt in 2009.
Industrial trends: In many cases, mergers and acquisitions are being driven by a key trend within a given industry, such as:
a. Rapidly changing technology, which is driving deals in high technology industry
b. Fierce competition, which is driving deals in the telecom and banking
c. Changing consumer preferences, which is driving deals in the food and beverage industry
d. The pressure to control costs, which is driving deals in the health-care industry
Take advantage of a bargain: The target company may be available at a distressed price, which tends to pique the interest of growing companies even if they are not necessarily looking for acquisition candidates. This situation often comes about because of a death or divorce affecting the company‟s founders. In 2008, Bank of America acquired Countrywide at a bargain price because of the distress caused by increasing delinquencies on mortgage
IN INFORMATION TECHNOLOGY SECTOR
Different companies have different strategic goals and different approaches to M&A. Alignment with the strategy of the company is clearly important but transactions can be justified as well. For example, transactions make sense in expanding geographic coverage, broadening a product line, entering an adjacent market, or acquiring management or technology expertise. Some acquisitions occur because they represent a window on a new or emerging market and technology and the objective is not developing synergies, but learning—so the purchaser can avoid surprises and move quickly to invest as the market emerges.
In India, Mergers and acquisitions have been more in number and value in the last decade or so. The total number of mergers and acquisitions in 1999-2000 was 1068 and the value of acquisitions was Rs.32,012 crores. In 2000-01 the total number was 1215 and value of acquisitions being Rs.29,218 crores. In 2006-07 the number increased to 1418 and the value of acquisitions to Rs.2,38,191 crores. In 2009-10 the number of deals were 823 and the value of acquisitions was Rs.1,39,921 crores and in 2010-11 till February the number of deals were 733 and the value of acquisitions amounted to Rs. 1,78,154 crores. Thus Mergers and Acquisitions, the way in which they are understood in the Western countries, have started taking place in India in the last decade.
Indian IT companies have thoroughly realized the value of making strategic cross-border acquisitions as demonstrated by Infosys Ltd‟s acquisition of Lodestone, MphasiS Ltd‟s acquisition of Digital Risk Llc and Wipro Ltd‟s acquisitions of Promax.
Global Mega Deals
Recently, Dell Inc has struck a deal to acquire technology services provider Perot Systems Inc in a cash transaction valued at $3.9 billion, as the world‟s No 2 maker of personal computer looks to take on rivals Hewlett Packard (HP) and IBM in the lucrative software solutions and services domain. The deal has been in the works from 2007. The move will help Dell diversify from its core hardware business, which has become a commodity business with lower margins. The acquisition will give Dell more headroom to compete with the likes of IBM, Accenture, HP and Indian IT and ITeS services providers, such as TCS, Infosys and Wipro. Post acquisition Dell‟s revenues will be around $7.7 billion, about 25% higher than the top Indian services firm TCS.
Table 1: Company-wise Revenues and Total Employees
||Revenues (US$ billion)
||Total No of Employees
||Number of Employees in India
|Combined Services Company
Source: The Economic Times, September 21, 2009
Perot has about 8,000 staff in India, its largest outside the US. The deal will give Dell, a foothold in the healthcare IT market in India as well. Recently, Perot Systems Inc has signed a 10-year deal, valued at around Rs 90 crore, with Max Healthcare to provide IT outsourcing and electronic health records service. In the longer run the Indian IT players, which are now competing to the likes of IBM and HP will have to contend with one more competitor which offers integrated hardware and software solutions.
In another mega deal Xerox Corp is acquiring Affiliated Computer Services Inc (ACS) for $6.4 billion, its biggest purchase, signaling a shift to computer services, as sales of its traditional printing equipment decline. Interestingly, Xerox is moving away from a pure play photocopier and document management provider to a more holistic IT services provider to compete more effectively in an enterprise services space currently dominated by IBM‟s Global Services Division. Terming the transaction as a „game-changer for Xerox‟, the company‟s Chief Executive Officer said that by combining its strengths in document technology with ACS‟s expertise in managing and automating work processes, they would be creating a new class of solution provider. The transaction will help Xerox triple sales from services to about $10 billion.
The total price of the cash-and-stock deal is about 34% more than Dallas-based ACS‟ closing price on September 25. Xerox Corp has been in India for over 25 years and is a wellestablished brand. Thus, it will be a good opportunity for the company to combine the ACS offering and provide more value-added services to its customers. ACS employs about 74,000 persons globally, and India is among its largest centres outside the US.
Table 2: Company-wise Revenues and Total Employees
||Revenues (US$ billion)
(Revenues are for Quarter ended June 2009)
Source: Financial Express, September 29, 2009. 34
TCS Acquisition- India‟s largest software services company by revenue Tata Consultancy Services Ltd (TCS) acquired French information technology (IT) services firm Alti SA for €75 million (around Rs.530 crore).
TCS, has made 14 acquisitions till date, the largest being its purchase of Citigroup Global Services Ltd for $512 million in December 2008 to strengthen its business in the banking and financial services sector. In October 2005, it bought the life and pension underwriting operations of the UK-based Pearl Group for around $95 million.
A list of acquisition by the top 5 IT companies in the past
|COGNIZANT- Fathom solutions, AimNet
solutions, C1,Corelogic, Galileo Performance, Ygyan Consulting, Zaffera, UBIS India Captive Unit
|WIPRO- American Management System Global Utilities service, Citi Technology Service(India), Spectramind e-Services, Saraware Oy, Promax Application Group
|HCL Tech- UCS Group, Axon Group, Capital, Stream, Control Port Solutions, HCL EAJ Services, Liberta Financial Services
||INFOSYS- Expert Information Services, Lodestone Holding, McCamish Systems, Portland Group, Unza Holdings
|TCS- Citigroup Global services, Comicrom, Computational Research Laboratories, Financial Network Services, Supervalu, TCS Management, TKS- Teknosoft
Regulations for Mergers & Acquisitions
These governing legislations mainly include the Indian Companies Act, 2013, The Income Tax Act 1961, the Securities and Exchange Board of India Act (SEBI) 1992, SEBI (Substantial Acquisitions of Shares and Takeovers) Regulations, 2011, Reserve Bank Of India Act, 1935, The Competition Act, 2002, The Foreign Exchange Management Act, 1999.
The major objectives of any framework of regulations governing M&A‟s are
(a) protection of shareholders‟ rights and interests,
(b) adequate compensation for shareholders in open offers,
(c) allowing a free, fair, transparent and equitable market for corporate control,
(d) allowing a honorable exit option for shareholders in case of buy-back schemes and
(e) curbing malpractices in such transactions.
1) Companies Act, 2013
Sections 230 to 235 (the “Merger Provisions”) of the Companies Act govern a merger oftwo or more companies under Indian law. The Merger Provisions are in fact worded so widely, that they would provide for and regulate all kinds of corporate restructuring that a company may possibly undertake; such as mergers, amalgamations, demergers, spin-off /hive off, and every other compromise, settlement, agreement or arrangement between a company and its members and / or its creditors.
Since a merger essentially involves an arrangement between the merging companies and the irrespective shareholders, each of the companies proposing to merge with the other(s) must make an application to the NCLT (the “tribunal”) having jurisdiction over such company for calling meetings of its respective shareholders and/or creditors. The tribunal may then order a meeting of the creditors/shareholders of the company. If the majority in number representing 9/10th in value of the creditors/shareholders present and voting at such meeting agrees to the merger, then the merger, if sanctioned by the tribunal, is binding on all creditors/shareholders of the company. The tribunal will not approve a merger or any other corporate restructuring, unless it is satisfied that all material facts have been disclosed by the company.
The order of the tribunal approving a merger does not take effect until a certified copy of the same is filed by the company with the Registrar of Companies.
2) Competition Act, 2002
The main provisions related to the four components of Competition Act, 2002 are anticompetitive agreement, abuse of dominance, combination regulation and competition advocacy. The companies always use merger, a type of combination, as a business strategy to grow and consolidate and to eliminate competition.
Enterprises intending to enter into a combination may give notice to the Commission, but this notification is voluntary. Scrutinization of all combination needs to be done. The Commission while regulating a 'combination' shall consider the following factors:-
§ Actual and potential competition through imports;
§ Extent of entry barriers into the market;
§ Level of combination in the market;
§ Degree of countervailing power in the market
§ Possibility of the combination to significantly and substantially increase prices or profits;
§ Extent of effective competition likely to sustain in a market;
§ Availability of substitutes before and after the combination;
§ Market share of the parties to the combination individually and as a combination;
§ Possibility of the combination to remove the vigorous and effective competitor or competition in the market;
§ Nature and extent of vertical integration in the market;
§ Nature and extent of innovation;
§ Whether the benefits of the combinations outweigh the adverse impact of the combination.
3) SEBI Takeover Code
The Securities and Exchange Board of India (the “SEBI”) is the nodal authority regulating entities that are listed on stock exchanges in India. The Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 1997 has been repealed by the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 2011 (the “Takeover Code”) with effect from October 23, 2011.
The Takeover Code restricts and regulates the acquisition of shares, voting rights and control in listed companies. Acquisition of shares or voting rights of a listed company, entitling the acquirer to exercise 25% or more of the voting rights in the target company, obligates the acquirer to make an offer to the remaining shareholders of the target company to further acquire at least 26% of the voting capital of the company
However, this obligation is subject to the exemptions provided under the Takeover Code.
4) Income Tax Act, 1961
Provision for tax allowances for mergers or de-mergers between two business identities is allocated under the Indian Income tax Act. To qualify the allocation, these mergers or demergers are required to full the requirements related to section 2(19AA) and section 2(1B) of the Indian Income Tax Act as per the pertinent state of affairs.
· Under the “Indian I-T tax Act”, the firm, either Indian or foreign, qualifies for certain tax exemptions from the capital profits during the transfers of shares.
· In case of “foreign company mergers”, a situation where two foreign firms are merged and the new formed identity is owned by an Indian firm, a different set of guidelines are allotted. Hence the share allocation in the targeted foreign business identity would be acknowledged as a transfer and would be chargeable under the Indian tax law.
· As per the clauses mentioned under section 5(1) of the Indian Income Tax Act, the international earnings by an Indian firm would fall under the category of 'scope of income' for the Indian firm.8
5) Foreign Exchange Management Act, 1999
The foreign exchange laws relating to issuance and allotment of shares to foreign entities are contained in The Foreign Exchange Management (Transfer or Issue of Security by a person residing out of India) Regulation, 2000 issued by RBI vide GSR no. 406(E) dated 3rd May, 2000. These regulations provide general guidelines on issuance of shares or securities by an Indian entity to a person residing outside India or recording in its books any transfer of security from or to such person. RBI has issued detailed guidelines on foreign investment in India vide “Foreign Direct Investment Scheme” contained in Schedule 1 of said regulation.
Legal Procedure For Bringing About Merger of Companies
(1) Examination of object clauses: The MOA of both the companies should be examined to check the power to amalgamate is available. Further, the object clause of the merging company should permit it to carry on the business of the merged company. If such clauses do not exist, necessary approvals of the share holders, board of directors, and company law board are required.
(2) Intimation to stock exchanges: the stock exchanges where merging and merged companies are listed should be informed about the merger proposal. From time to time, copies of all notices, resolutions, and orders should be mailed to the concerned stock exchanges.
(3) Approval of the draft merger proposal by the respective boards: The draft merger proposal should be approved by the respective BOD‟s. The board of each company should pass a resolution authorizing its directors/executives to pursue the matter further.
(4) Application to NCLT: Once the drafts of merger proposal is approved by the respective boards, each company should make an application to the tribunal of the state where its registered office is situated so that it can convene the meetings of share holders and creditors for passing the merger proposal.
(5) Dispatch of notice to share holders and creditors: In order to convene the meetings of share holders and creditors, a notice and an explanatory statement of the meeting, as approved by the tribunal, should be dispatched by each company to its shareholders and creditors so that they get 21 days advance intimation. The notice of the meetings should also be published in two news papers.
(6) Holding of meetings of share holders and creditors: A meeting of share holders should be held by each company for passing the scheme of mergers at least 75% of shareholders who vote either in person or by proxy must approve the scheme of merger. Same applies to creditors also.
(7) Petition to tribunal for confirmation and passing of its orders: Once the mergers scheme is passed by the share holders and creditors, the companies involved in the merger should present a petition to the tribunal for confirming the scheme of merger. A notice about the same has to be published in 2 newspapers.
(8) Filing the order with the registrar: Certified true copies of the Tribunal order must be filed with the registrar of companies within the time limit specified by the court.
1 Kai Taraporevala, James Winterbotham (2005) "India Inc high on Mergers and Acquisitions", India AdvisoryPartners. www.businessline.english.indiapress.info
2 Merger and acquisitionwww.businessline.english.indiapress.info
3 Merger And Acquisitions - http://business.gov.in/growing_business/mergers_acq.php
5 Impact of Domestic and Cross-Border Acquisitions on Acquirer Shareholders' Wealth: Empirical Evidence from Indian Corporate. Rani, Neelam; Yadav, Surendra S.; Jain, P. K. // International Journal of Business &
Management;2014, Vol. 9 Issue 3, p88
6 Merger Strategies, Economic Cycles, and Stockholder Value. Lubatkin, Michael; O'Neill, Hugh // Interfaces;Nov/Dec88, Vol. 18 Issue 6, p65
7 Regulation 3 read with Regulation 7 of the Takeover Code