Whilst we have seen change in the M&A market over the nine years that the report has been produced, convergence of deal terms has only been gradual and some very key differences remain between geographies, deal processes and the approach taken by trade and private equity in the market. The significant impact of COVID-19 on the M&A market for part of 2020 now looks like a footnote; during this short period both buyers and sellers became significantly more cautious, however, this was quickly reversed and in most jurisdictions M&A deal terms had bounced back strongly in favour of sellers by the end of 2020 and has continued that trajectory ever since.
The key findings of this year’s report include:
- US and European (particularly US vs UK) remain the most differentiated markets globally with very little evidence of further convergence but with a general trend in both markets of deal terms moving in favour of sellers. Global markets generally are seller friendly, although the US approach is significantly more balanced between buyers and sellers.
- The terms of large deals do differ from the terms in smaller deals: a large deal is more likely to proceed by way of auction; more likely to have a locked box mechanism and more likely to have a gap between signing and closing. Smaller deals see more earn-outs and sellers are more likely to be tied into restrictive covenants.
- A continuing trend showing sellers as the real winners on deal terms in auction processes. Sellers get shorter limitation periods, lower caps on liability, are more likely to have a certain deal from signing and are less likely to have to give restrictive covenants.
- Although deal activity has been strong over recent years, it has weakened more recently and it will be interesting to see how deal terms react to this. DLA Piper’s view is that any change will be very gradual as seller friendly deal terms have become entrenched.
- The Locked Box mechanism has become widely used in most markets but there has been very little take up of this in the US where it is used in very few deals.
Jon Kenworthy, Corporate partner at DLA Piper, said: “Boards focusing on factors such as ESG means M&A deals are looked at through a different lens, something many advisors are struggling to accommodate. In the meantime, key innovations such as the growing adoption of AI will drive significant M&A activity as step changes in technology always do. One thing the deal data consistently shows us is that while there are global trends in M&A, part of which is a convergence of deal terms, there are very distinct local market practices. The party that properly understands the local market has an advantage over its competitors.”
If you have any questions about this report, please contact James Kerrigan, Partner, Corporate – james.kerrigan@dlapiper.com.
To register for a copy of the Global M&A Intelligence Report 2023, visit dlapiper.com.
