Acquisitions and mergers (A&Ms)

LEGAL VIEWPOINT BY DR. ABDELGADIR WARSAMA GHALIB

Business activities, sometimes face extreme difficulties as pandemics, lockouts, Gov. restrictions, lack of logistics and many others. Such instances may affect business or hold it at stand. This de facto situation puts some businesses on the verge of collapse.

There is urgent need for brave positive actions to maintain the status quo of your entities. Stretching hands and working together could open a room for survival and sustainability. Consolidation and amalgamation of companies is a good possible opportunity to face difficulties.

As a rule, this could take place either by the process of acquisition or otherwise by merger-ship. There were good examples for acquisition in Bahrain, in the banking sector, as legally approved by CBB and without affecting the trading rules governing fair competition. Consolidation by acquisition shall be effective through certain formalities to be taken in application.

The first step is to adopt a resolution to order dissolution of the company and accordingly its non-existence as a legal entity. This is required, so as to pave the way for the new company to be incorporated.

The company, to be part in consolidation process, shall take all necessary steps for the valuation of its net assets according to the provisions in the law and to be followed as in cases regarding the valuation of shares in kind.

The acquiring company should adopt a resolution that orders for increasing its capital in accordance with the result of the valuation of the acquired company. That is to say, to increase its capital to absorb the valuation of the newly joining company.

The increase in the capital of the acquiring company shall be distributed among the partners and or shareholders proportionately to their equity shareholding. This, of course, includes all existing partners and or shareholders.

If the stocks of the company were represented by shares and two years have expired from the incorporation of the acquiring company, these shares could be negotiated immediately after their issue. A number of shares or stocks shall be allocated to each consolidating /amalgamating company equal to its share in the capital of the new company.

These shares shall be distributed between partners and or shareholders in each of the consolidating / amalgamating companies proportionately to their shares therein. There are certain legal procedures that should be followed before the intended consolidation takes place. Such as, the consolidation becomes effective only after three months from the date of registration in the commercial register.

The concerned companies, in consultation with the competent authorities, shall publish a notice in newspapers to the public informing them about the consolidation. This is so as to give any one the right to come forward and give their objections, if any?

The creditors of the consolidated company may, by registered letter, within the said period give their objection to the consolidation. In such instances the consolidation process shall be suspended unless the creditor (or creditors) waives their objection.

The court, in case of dispute, could overrule the objections raised by any creditor or otherwise the company should settle the debt if it was due, or it should provide sufficient guarantees for the settlement of such debts in the future, provided that the creditors accept such arrangement.

In case any person does not appear in time to present his objection, during the specified period, the consolidation shall be considered final and the new company shall replace the non-existing companies in all their rights and liabilities.

Suppose someone appears after the specified time, I think this should not affect the validity of the consolidation, however, the new management should settle the issues raised by him.

Normally the consolidation process takes time and the two concerned companies should discuss in details all matters regarding the goodwill of each company, all issues related to the assets and liabilities of each company, the new business name or logo to be adopted by the new company and the names of persons to manage the new company.

All such issues should be discussed in details and agreed upon before the final declaration of the “new” consolidation and formation of a new company. Such good practical legal steps could greatly help in strengthening & streamlining the livelihood of many companies to the benefit of strong capable institutions.

(The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of the Daily Tribune)