1 1 Syed Naved Andrabi April 16, 2008 Syed Naved Andrabi April 16, 2008 Taxation Aspects of International Mergers & Acquisitions. Andrabi & Gabriel Advocates Solicitors & Tax Attorneys’

22 Areas of Interest Visited. Why Merge? Why Merge? Mergers & Acquisition. Mergers & Acquisition. Strategic Management Process. Strategic Management Process. Global Mergers & Pakistan Mergers. Global Mergers & Pakistan Mergers. Historical Trends. Historical Trends. Mergers & Acquisition Pakistan Legislation. Mergers & Acquisition Pakistan Legislation. Stakeholders’ Point of view. Stakeholders’ Point of view. Tax Consequences.. Acquirer & Acquire. Tax Consequences.. Acquirer & Acquire. Role of Tax Advisors. Role of Tax Advisors. Going Forward. Going Forward.

33 Merger & Acquisition. The significant corporate activity has made the market truly global. Once the preserve of local deals, the mid-market is now the source for growth in cross border transactions that are increasingly the norm in both acquisition and disposals activity. Entrepreneurial businesses have ever higher expectations of their advisers, demanding the ability to deliver ideas, expertise, relationships and resources in a seamless manner throughout the world’s major corporate centers.

44 Why Merge? Financial Motives: to reduce risk (the portfolio effect). to reduce risk (the portfolio effect). to increase operating efficiency. to increase operating efficiency. to improve access to financial markets. to improve access to financial markets. to obtain a tax carry-forward benefit. to obtain a tax carry-forward benefit. to eliminate competition & enhance profitability. to eliminate competition & enhance profitability. Other Motives: to expand marketing and management capabilities. to expand marketing and management capabilities. to allow for new product development through R & D. to allow for new product development through R & D. to provide synergistic benefits (the “2+2=5” effect). to provide synergistic benefits (the “2+2=5” effect). To revive sick industry and render accelerated economic growth. To revive sick industry and render accelerated economic growth.

55 Types of Merger  Horizontal – between business competitors.  Vertical – Moving up or down the value chain.  Conglomerate – Unrelated sectors.  Forward – Merger of target into the acquirer.  Reverse – Merger of acquirer into the target.  Triangular – Use of an SPV for undertaking.  Demerger – Hive-off of an undertaking into a separate company.

66 Modes of Mergers & Acquisitions. M&A Amalgamations MergerDe-merger Acquisitions Asset Purchase Stock Purchase Slump Sale Itemized Sale

77 Mergers & Acquisitions Defined. AcquisitionsMergers One firm buys another firm. Two firms are combined on a relatively co-equal basis.  Parent stocks are usually retired and new stock issued.  Name may be the original or a combination.  One of the partners take over the dominant management  Can be by means of controlling share, a majority, or all of the target firm’s stock.  Can be friendly or hostile.  Usually done through a tender offer.

88 Business Combinations. Business Combinations. According to International Financial Reporting Standard 3 (IAS 22-Withdrawn) Business Combination. “The bringing together of separate entities or businesses into one reporting entity.” Where the result of business combination is that one entity, the acquirer, obtains control of one or more other businesses, the acquiree. Where the result of business combination is that one entity, the acquirer, obtains control of one or more other businesses, the acquiree. Business Combination Involving entities or businesses under common control. “A business Combination in which all of the combining entities or businesses ultimately are controlled by the same party or parties both before and after the combination, and that control is not transitory.”

99 Direct Stakeholders.  Enterprises / Companies. Shareholders. Other Stakeholders.  Customers.  Creditors/Suppliers.  Employees.  Government Authorities, e.g., Tax Authorities. Corporate Mergers & Acquisition.

10 The Strategic Management Process. Objectives InternalAnalysis Mission ExternalAnalysis Strategic Choice Strategy Implementation Competitive Advantages Which Business to Enter 1) Vertical Integration 2) Diversification Strategic Alliances Merger & Acquisitions Mode of Entry Corporate Level Strategy

11 Top Ten Mergers-2008 Target Name Acquirer Name Deal Date $ Value of Deal (M) Yahoo! Inc (YHOO) Microsoft Corp (MSFT) , Inmobiliaria Colonial SA Investment Corp of Dubai {ICD} , Rio Tinto PLC Shining Prospect Pte Ltd , Alcon Inc (ACL) Novartis AG , Bolsa de Valores de Sao Paulo {Bovespa} Bolsa Brasileira de Mercadorias {BM&F} , Millennium Pharmaceuticals Inc (MLNM) Mahogany Acquisition Corp , Citigroup Inc (C) Government of Singapore Investment Corp Pte Ltd {GIC} , Weyerhaeuser Co-Containerboard Packaging & Recycling Business International Paper Co (IP) , MMX Mineracao e Metalicos SA-Certain Assets Anglo American PLC , Scania AB Volkswagen AG ,377.50

12 Deal Wise Mergers.

13 Prominent Mergers in Pakistan Sr. No Name of Company New name of the company/merged with Date of Merger Paidup Capital Ratio 1 Second Tri Star Modaraba First Tri Star Modaraba 10/04/ [ 1.817:1 ] 2 ABAMCO Growth Fund UTP Growth Fund 06/06/ [ :1 ] 3 ABAMCO Stock Market Fund UTP Growth Fund 06/06/ [ :1 ] 4 ABAMCO Capital Fund UTP Growth Fund 06/06/20062, [ :1 ] 5 WORLDCALL Multimedia Ltd WORLDCALL Telecom Ltd 09/06/ [ 1 : 1.27 ] 6 WORLDCALL Broadband Ltd WORLDCALL Telecom Ltd 09/06/20061, [ 1 : 1.09 ] 7 WORLDCALL Communication Ltd WORLDCALL Telecom Ltd 09/06/20061, [ 1 : 1.42 ] 8 Modaraba A1-Tijarah Modaraba A1-Mali 11/07/ Certificate [ 91 : 2 ] [ 91 : 2 ] 9 Atlas Investment Bank Limited Atlas Bank Limited 26/07/ [ 1 : 3.14 ] 10 Pakistan Papersack Corporation Ltd Thal Limited 04/08/ [ 3.07 : 1 ] 11 First Allied Bank Modaraba Allied Bank Limited 25/08/ [ 1 : 024 ] 12 Colony Textile Mills Limited Colony Mills Limited 28/08/ [ 1 : 9.50 ] 13 Union Bank Limited Standard Chartered Bank Ltd 29/12/20063, [ 1 : 2.50 ] 14 Jahangir Siddiqui Inv.Bank Ltd JS Bank Limited 30/12/ [ 1 : 3.24 ]

14 Prominent Mergers in Pakistan Sr. No Name of Company New name of the company/merged with Date of Merger Paidup Capital Ratio 1 PICIC Commercial Bank Limited NIB Bank Limited 01/01/ , [ 1 : 2.27 ] 2 Pakistan Industrial Credit & Investment Corp. Ltd (PICIC) NIB Bank Limited 01/01/ , [ 1 : 3.18 ] 2007 Sr. No Name of Company New name of the company/merged with Date of Merger Paidup Capital Ratio 1 Guardian Modaraba B.R.R. International Modaraba 25/05/ [ 1 : 1.22 ] 2 Crescent Standard Investment Bank Ltd Innovative Housing Finance Limited 20/07/ , [ : 1 ] 3 Dewan Hatter Cement Limited Dewan Cement Limited 22/10/ , [ 1 : 0.75 ] 4 Suzuki Motorcycles Pakistan Ltd Pak Suzuki Motor Company Ltd 29/10/ [ 21 : 1 ] 5 International Housing Finance Ltd KASB Bank Limited 22/11/ [ 1 : 1.30 ]

15 India France

16 United Kingdom. United States of America.

17 Historical Trends. FIRST WAVE ( ). Time of the major horizontal mergers. Time of the major horizontal mergers. Major mergers were in Steel, Telephone, Oil, Mining, Railroad etc. Major mergers were in Steel, Telephone, Oil, Mining, Railroad etc. The First World War caused end of the first wave. The First World War caused end of the first wave. SECOND WAVE ( ). The period in which vertical integration started. The period in which vertical integration started. The major automobile manufacturers emerged in this period. For example, FORD. The major automobile manufacturers emerged in this period. For example, FORD. The 1929 Crash and the Great Depression ended this wave. The 1929 Crash and the Great Depression ended this wave. THIRD WAVE ( ). In this period the conglomerate concept took hold. In this period the conglomerate concept took hold. Major conglomerates were IT&T (Harold Geneen) LTV (Jimmy Ling) Teledyne (Henry Singleton) Litton (Tex Thornton). Major conglomerates were IT&T (Harold Geneen) LTV (Jimmy Ling) Teledyne (Henry Singleton) Litton (Tex Thornton). The conglomerate stocks crashed in The conglomerate stocks crashed in

18 Historical Trends. Historical Trends. FOURTH WAVE ( ). Generally referred to as the merger wave, or takeover wave. Generally referred to as the merger wave, or takeover wave. It ended in with the collapse of the junk bond market, along with the collapse of the savings and loan banks and the serious loan portfolio and capital problems of the commercial banks. It ended in with the collapse of the junk bond market, along with the collapse of the savings and loan banks and the serious loan portfolio and capital problems of the commercial banks. FIFTH WAVE ( ). This was the era of the mega-deal. Mergers of Citibank and Travelers. Mergers of Citibank and Travelers. Chrysler and Daimler Benz. Chrysler and Daimler Benz. AOL and Time Warner. AOL and Time Warner. Vodafone and Mannesmann. Vodafone and Mannesmann. It ended with the bursting of the Millennium Bubble and the great scandals, like Enron, which gave rise to the revolution in corporate governance.

19 Historical Trends. SIXTH WAVE (2002 Onwards). Principle factors are: Globalization. Globalization. Encouragement by the governments of some countries (e.g., France, Italy and Russia) to create strong national or global champions. Encouragement by the governments of some countries (e.g., France, Italy and Russia) to create strong national or global champions. The rise in commodity prices. The rise in commodity prices. The availability of low-interest financing. The availability of low-interest financing. Hedge fund and other shareholder activism. Hedge fund and other shareholder activism. Tremendous growth of private equity funds. Tremendous growth of private equity funds.

20 Controlling Authorities. NBFI’s SECP BanksSBP OtherHigh Court The Competition Commission of Pakistan (CCP-Monopoly Control Authorities) has oversight in respect of all mergers.

21 Legislation Dealing Mergers in a Particular Sector. Section 48 of the Banking Companies Ordinance, L of Companies Ordinance, 1984 Section 67 to 71 of the Insurance Ordinance, 2000 and application to High Court For Banking Companies. For N.B.F.Cs For Insurance Companies.

22 Specific Laws Dealing Mergers. Section 287 to 289 read with Section 282L & 284 of the Companies Ordinance, 1984 applies to mergers involving companies incorporated under the laws of Pakistan. Section 2 (1A); 20 (3); 57A, 97; 97A & Clause 62 of Part IV of Second Schedule to the Income Tax Ordinance, Section 11 of Competition Ordinance, 2007.

23 Legislation on Foreign Investment. Board of Investment and Foreign Exchange Regulation contain certain exceptions and restrictions for non-residents for which general or special permission is required.

24 Section 2 (1A) of the Income Tax Ordinance, 2001 Amalgamation means the merger of one or more 1.banking companies or 2.non-banking financial institutions, or 3.insurance companies, or 4.companies owning and managing industrial undertakings or 5.companies engaged in providing services and not being a trading company or companies. In such manner that – The assets of the amalgamating company or companies immediately before the amalgamation become the assets of the amalgamated company by virtue of the amalgamation, otherwise than by purchase of such assets by the amalgamated company or as a result of distribution of such assets to the amalgamated company after the winding up of the amalgamating company or companies; and

25 Section 2 (1A) of the Income Tax Ordinance, 2001 The liabilities of the amalgamating company or companies immediately before the amalgamation become the liabilities of the amalgamated company by virtue of the amalgamation Requisite criterion One company must be a public company or A company incorporated under Companies Ordinance,1984 or under any other law for the time being in force, Requisite criterion One company must be a public company or A company incorporated under Companies Ordinance,1984 or under any other law for the time being in force,

26 Merger/Amalgamation. From Members/Shareholders Point of View From the Point of View of Company to be Merged/Amalgamating. From the Point of View of Amalgamated Company.

27 From Members/Shareholders Point of View [S. 2(19)(a)] - “Dividend” includes distribution of accumulated profit entailing release of assets of the company possessing profit. [S. 2(19)(c)&(d)] - Distribution on liquidation or reduction of capital In merger / amalgamation, no distribution of accumulated profit takes place thus no release of asset. Is exchange of shares treated as Dividend? Section 37 (5) - Shares are Capital Asset No “Disposal” i.e. sale / transfer / exchange / relinquishment etc. involved. If exchange / relinquishment is treated as “Disposal” even then no gain / loss arises Taxability regarding exchange of shares?

28 From the Point of View of Company to be Merged/Amalgamated. S 97 & 97A - No gain or loss is taxable subject to certain conditions. Amalgamating companies are resident and belong to wholly owned group. In case of Section 97 the condition of both companies to be resident shall not apply in light of clause 62 of Part IV of 2nd Schedule. Gain of amalgamating companies are taxable if the above criteria is not fulfilled under the Income Tax Ordinance, 2001 Taxability of gain on transfer of assets and liabilities?

29 From Amalgamated Company Point of View. S 76 - Relating to cost of purchase. S 98C, concerning succession. The tax value of assets in the hands of amalgamating company (immediately before amalgamation) shall be taken as the tax value for amalgamated company Tax value of assets / liabilities acquired?

30 From Amalgamated Company’s Point of View. Goodwill an intangible or capital asset – a dilemma? Treatment of goodwill? Difference between ‘Tax-value’ and ‘Accounting value’ of assets? What about goodwill taxation?

31 From the Amalgamated Company’s Point of View. S 20(3) - Only expenditures incurred under following heads are tax deductible – Legal Advisory Services Financial Advisory Services Administrative expenses – Planning and Implementation of amalgamation What is the treatment of merger related expenses? What about carry forward and set-off of losses sustained by the amalgamating company ? S. 57A - In the year of amalgamation only assessed loss of the amalgamating companies for the tax year is available for the set off. The facility to set off accumulated losses of amalgamating companies has been taken away from July 01, 2007.

32 Tax Consequence in Case of Acquisitions. Acquirer point of view Acquiree point of view

33 Acquirer Point of View. In case of non-arm’s length transaction the fair market value may be treated as consideration as cost of acquisition [S. 76 & 78] Tax treatment for payment of goodwill. Tax deductibility of consideration paid under restrictive covenants ?

34 Acquiree Point of View. Transfer of assets and liabilities have tax implications depending on the basis of nature of asset. Consideration may be taken at higher of the actual selling price or Fair Market Value [S. 77] Slump sale principle – Applicability ? [S. 77] Consideration under restrictive covenant – whether capital or revenue?

35 Role of tax Advisor in Mergers & Acquisitions. International mergers and acquisitions require appropriate planning. International mergers and acquisitions require appropriate planning. Planning will end after consideration of domestic laws effect on home country & other country laws. Planning will end after consideration of domestic laws effect on home country & other country laws. Effective consideration will be whether to merge or acquire. Effective consideration will be whether to merge or acquire. If to acquire consideration to be given to manner of acquisition. If to acquire consideration to be given to manner of acquisition. To acquire the business as a whole, slump transaction or through shares or as an asset purchase. To acquire the business as a whole, slump transaction or through shares or as an asset purchase.

36 Going Forward. Consistency in Policies. Consistency in Policies. Facilitate & Encourage Regional Mergers. Facilitate & Encourage Regional Mergers. Level Playing Field. Level Playing Field. Conducive Industrial Environment for Intra Regional Investment. Conducive Industrial Environment for Intra Regional Investment. Common Legislation. Common Legislation. Removal of Trade Barriers. Removal of Trade Barriers.

37 Thank You