Governance & Compliance

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By GM Tan | 13.03.2019

Malaysia has chalked up a total of 233 merger and acquisitions (M&A) transactions as of June 2017. The announced total worth was, according to Duff & Phelps, a New York-based global valuation and corporate finance adviser, valued at US$11.7bil, where inbound deals accounted for about 70% of the total value in question.

The main idea behind merger and acquisitions (M&A) is about monetising more value out of two separate companies. To achieve this, M&As have been used interchangeably, based on the needs, requirements and backgrounds of the respective parties. But you shouldn’t just walk into an M&A by yourself. If you are thinking of getting involved, consult a lawyer.

A good M&A lawyer is generally a positive influence in the deal. The lawyer assists the buyer and the seller to ensure that the process is sound, that the terms are solidly recorded and the transition is smooth. For the buyer or seller, the M&A lawyer is the guide and spokesperson in the deal – someone who ensures that “all papers are in order” before the ink is dry on the final contract.   

Traditionally, an M&A lawyer assists by supporting two companies that have agreed to form a new single legal entity, as co-shareholders. In the case of Glaxo Wellcome and SmithKline Beecham, the companies’ stocks and shares are surrendered in place for a new company-issued stock. 

Without an M&A lawyer, a friendly deal can become unfriendly or “hostile”. An unfriendly M&A deal can blow up into trouble for a buyer company. This can happen if the target company in question does not want to be purchased. Such was the case of Vodafone and Germany’s Mannessmann AG when the former, a British telecommunications giant, launched a hostile takeover of the German industrial conglomerate in 2000. Mannessmann AG surrendered to the hostile takeover of Vodafone AirTouch Plc for the sum of USD 180.95 million dollars after battling for three months. 

Other M&A deals are simply called off. This can be costly for all parties. In September, Reuters reported that Axiata Group Berhad, the telecommunications giant in Malaysia, had called off a USD 940 million deal to acquire Pakistan Mobile Communications Ltd, the Pakistani telecoms tower company.  Apart from the due diligence, discovery, term negotiations and interactions, the factors that tend to destroy a M&A deal are: the tremendous of time spent, high stakes of money, expenses and costs involved, terms that cannot be met and/or ego. 

To avoid all this pain, here is a summary of some of the offerings that an M&A lawyer can provide a seller or buyer before walking into a M&A transaction or deal:
•    How to negotiate the preliminary agreements and tackle pre-contractual issues;
•    How to structure the term sheet and final purchase price; 
•    Discovery of information and provision of legal due diligence;
•    Tackling of legal issues, including intellectual property (IP) rights;
•    M&A legal documentation.

Based on the above, it is highly beneficial for you to equip yourself with an M&A lawyer when you decide to walk into a M&A transaction or deal. Having an experienced M&A lawyer on your side can result in obtaining better terms, higher valuations, and save you from irreparable mistakes and long-term wasted costs. 

When dealing with a transaction worth millions, or hundreds of thousands in costs, it is prudent to take proper measures to ensure that in matters where you have little or no familiarity, you have professionals who can act as your trusted representative. All in all, a good M&A lawyer can guide you through the worst of settings and towards the calm of smooth seas. 

 

*About the author: GM Tan is a M&A lawyer and Barrister-At-Law of England & Wales. He is the founder of GM Tan & Company in Ara Damansara, Selangor.
 

 

A report by the French Trade Commission - Business France Malaysia

A noticeable growing trend in cosmetics in Malaysia, is in the demand for halal-compliant products. According to Credence Research, the halal cosmetics market is projected to grow with a compound annual growth rate (CAGR) of 12.9% from 2017 to 2025. With good socio-economic conditions and a significant Muslim population estimated by the Pew Research Center at around 1 billion – three times more than that of the Middle East – the Asia Pacific region dominated in 2016 and was accounted for approximately 62.2% of the overall market revenue.

 

PERCEPTION OF THE HALAL LABEL

The halal label, distinguished by its high quality, safety and ethical compliance seems to appeal to Muslim and non-Muslim consumers alike. Religious ideals aside, the demand for halal products has been fueled by concerns about the presence of animal-derived ingredients and alcohol in some non-halal cosmetic products, thus expanding its audience as to include the vegetarian public along with those looking for products that are safer for the skin. The values promoted by halal certified products have become synonymous with ethical consumerism, and range from social responsibility and animal welfare, all the way but not exclusively to, religious compliance. The tedious certification process and stringent requirements has driven a wide number of diverse consumers to perceive halal cosmetic products as generally safer.

 

AN IMPORTANT MARKETING TOOL

Halal certification, though not compulsory yet in the realm of cosmetics, is a significant marketing tool. Case in point, the local brand Sugarbelle Cosmetics that markets its halal certified products as safe, effective, and of premium quality. Sugarbelle Cosmetics’ halal compliance is deemed, by the brand itself, a fundamental strength leading to its success. With the inception of its very first product, a creamy liquid lipstick, Sugarbelle Cosmetics has made halal certification its utmost priority thus carefully selecting its manufacturers based on their very ability to be halal compliant. Sugarbelle Cosmetics’ success in the decidedly competitive cosmetics field is a good indicator of the opportunities offered by halal certified products.

Another success story in the halal universe is that of the Malaysian perfumer Josh Lee. Trained at the renowned French perfumery institute, ISIPCA, Josh Lee specializes in halal certified fragrances. The perfumer’s website clearly emphasizes the value of halal certification, one that encompasses the strict quality of the ingredients, as well as the environment required for proper production. Josh Lee emphasizes the absence of harmful and unhygienic ingredients to its Muslim consumers, while pointing out to non-Muslims that the Josh Lee fragrances are produced in a safe and sanitary setting, featuring an extreme level of quality control. Another point put forward by Josh Lee pertains to the absence of animal testing.

 

THE HALAL CERTIFICATION PROCESS

In Malaysia, the department of Islamic Development (JAKIM) issues halal certification for both local and export markets. The certification is granted once JAKIM ascertains the halal status of the product at each stage involved following an official site inspection. Ranging from a rigorous making process, a
prime choice of raw materials used, a compulsory cleanliness of the factory, workers, handlers, and immediate surroundings, to a strict control of transportation; each and every one of these factors are indispensable to acquire the certification. JAKIM’s halal certification is valid for 2 years beyond which a review audit is mandatory to retain the certification.

Imported food and goods marketed in Malaysia can be labeled halal if they comply with the above listed requirements. Alternatively, imported products can be certified halal by an accredited foreign body - sanctioned by JAKIM. Currently, JAKIM recognizes halal certifications originating from 69 certification bodies from 42 countries, out of which 9 are members of the European Union.

 

OPPORTUNITIES

In a world where ethical responsibility and social accountability are key, the halal market is an evident opportunity that European beauty companies should not overlook. Another non- negligible element to keep in mind pertains to the interest in the halal industry of the Malaysian Investment Development Authority MIDA – a governmental agency aiding companies eager to invest in the manufacturing and services sectors, and facilitating the implementation of their projects.

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