As a result of the COVID-19 pandemic, the M&A market in Mexico, like most others, suffered a significant slowdown in both the volume and value of deals completed. This impact continues to affect the market and will continue to do so as long as there is no clear outlook for economic recovery, and until financing, which was put on hold by some financial institutions, is back to pre-pandemic levels.
According to information published by M&A Mexico, the leading sector in the domestic market for M&A transactions during 2020 was the mining industry, followed by the industrial, financial and insurance, information technology, real estate, consumer, healthcare (where a lot of activity is expected during 2021) and, finally, the infrastructure sectors. The sectors most affected by the pandemic were the tourism, automotive, construction and entertainment industries.
The crisis caused by the pandemic, quarantines and various operational and mobility limitations – together with other factors highlighted by experts, such as the absence of financial measures by the Mexican government, legislative reform initiatives (which create uncertainty) such as energy reforms, the decrease in foreign investment, and variations in the price of oil – motivated some market players to make acquisitions in search of an expansion of their economic activities and others to enter into mergers to obtain liquidity or sales as part of a divestment strategy.
Because of the crisis generated by COVID-19 and the uncertainty it caused, various players wanted to pull out of deals that were already negotiated and executed by arguing force majeure and material adverse change.
The main trends in Mexican M&A in 2020 related to efforts to ensure that market players remained solvent, including the study of M&A transactions that sought to provide liquidity to companies, as well as financing and refinancing transactions derived from the efforts made by credit institutions to ensure that borrowers met their financial obligations and survived the economic crisis that characterised 2020.
Another legal trend has been the extensive negotiation of force majeure and material adverse change provisions, to include pandemics, and to be able (or not able) to walk away from the transaction.
According to information published by M&A Mexico, the leading sector in the domestic market in M&A transactions during 2020 was the mining industry, followed by the industrial, financial and insurance, information technology, real estate, consumer, healthcare and, finally, infrastructure sectors. Some of the most notable M&A transactions in Mexico during 2020 were related to highways, telecommunications, mining, travel agencies, financial companies, fashion, metallurgy, energy, transportation and the advertising industry. The sectors most affected by the pandemic were the tourism, automotive, construction and entertainment industries.
The main techniques or legal mechanisms for acquiring a private company in Mexico are:
The acquisition of publicly traded companies is carried out through a takeover or sale bid (OPA).
As in other jurisdictions, the regulation applicable to M&A depends on the industry where the target company develops its activity. In some industries, apart from the provisions that apply to all industries, there are certain aspects which need to be reviewed from a regulatory point of view, such as in the oil, gas, telecoms, infrastructure, financial, insurance and healthcare markets.
In general terms, the primary regulator for M&A activity in Mexico is the Federal Economic Competition Commission (Comisión Federal de Competencia Económica or COFECE), an autonomous body whose purpose is to guarantee free economic competition, as well as to prevent, investigate and combat monopolies, monopolistic practices, market concentrations and other restrictions to the efficient operation of the markets, and the Federal Telecommunications Institute (Instituto Federal de Telecomunicaciones or IFT) for the telecommunications sectors. These authorities operate at the federal level, that is, regardless of the domicile of the legal entity relevant to the M&A transaction.
In connection with M&A transactions involving publicly traded companies, the responsible authorities, also at the federal level, are the National Banking and Securities Commission (Comisión Nacional Bancaria y de Valores or CNBV) and the Mexican Stock Exchange (Bolsa Mexicana de Valores or BMV). Likewise, as mentioned above, in cases of specific industries, other authorities may be involved, such as the National Insurance and Bonding Commission (Comisión Nacional de Seguros y Fianzas or CNSF) in the event that the relevant transaction is related to the insurance and bonding sector.
From the local point of view – ie, of the states into which the country is divided – the authorities that are usually involved in M&A transactions are the Public Registries of Property (Legal Entities Section) in the case of civil entities such as corporations or civil associations, or the Public Registry of Commerce in the case of commercial entities in each state.
Mexico is an open country where foreign investments are authorised in most industries and, therefore, foreign investors may participate in any proportion in the capital stock of Mexican companies. The Foreign Investment Law (Ley de Inversión Extranjera or LIE) defines foreign investment as the participation of foreign investors in the capital stock of Mexican companies and said law provides the rules regarding the participation of foreign investors in various aspects of the Mexican economy and the industries where there are limitations. By way of example, we highlight below some of the limitations provided by the law.
It should be noted that for purposes of determining the percentage of foreign investment in economic activity subject to maximum participation limits, foreign investment that is indirectly made through Mexican companies with a majority of Mexican capital is not computed, provided that these companies are not controlled by the foreign investment.
Likewise, it is worth mentioning that, notwithstanding the limitations, the Foreign Investment Law authorises in certain areas, having limitations or maximum limits, “neutral investment”, where the limitation or maximum limit of foreign investment may be exceeded in Mexican companies or in authorised trusts, through regulator authorisation, in which case the foreign investors will own neutral shares, meaning those with limited voting/control rights.
The antitrust regulations that apply to business combinations in Mexico are composed of:
The Federal Antitrust Law sets forth which mergers – ie, those mergers, acquisitions of control or acts by virtue of which companies, associations, shares, social parts, trusts or assets in general between competitors, suppliers, clients or any other economic agents are joined – shall be notified or, as the case may be, authorised by the COFECE.
M&A transactions are primarily structured through the acquisition of shares, assets or mergers and, depending on the structure of the transaction, in labour matters, acquirers should primarily be concerned with the provisions applicable to employer substitution, when a transaction is structured as the acquisition of the assets.
In terms of the provisions of the Social Security Law (Ley del Seguro Social), it is considered that there is a substitution of employer when there is a transfer, by any title, between the substituted employer and the new employer of the essential assets related to the operation, with the intention of continuing it, and when the partners or shareholders of the substituted employer are, for the most part, the same as those of the new employer and it is the same line of business.
It should be noted that in the event of employer substitution, the substituted employer will be considered jointly and severally liable with the new employer for labour obligations to the employees that originated prior to the date on which the Mexican Social Security Institute (Instituto Mexicano del Seguro Social or IMSS) was notified of the substitution, for up to six months, at the end of which time all liabilities are attributable to the new employer. In terms of the Federal Labour Law (Ley Federal del Trabajo), the six-month term starts on the date on which notice of the substitution was given to the union or to the employees.
It should be noted that the updating of the employer substitution can be overcome in the event that the original employer terminates the labour relations in legal terms and that, subsequently, the acquirer enters into new employment relations with the employees and, if applicable, with the respective labour union.
It is also important to consider from a labour perspective, when the transaction is structured as a merger between two or more entities, that they will probably have different unions, even when it is the same industry and it is therefore important to negotiate with the unions before the transaction is closed.
Finally, it is important to consider that subcontracting is common in Mexico and that most companies in the country either have a subcontract agreement for all of their employees or for a significant part of the work force. Currently, the Mexican congress is discussing the Federal Labour Law and considering limiting or restricting all subcontracting structures. This will affect the way traditional Mexican companies operate and should be considered in acquisition/M&A transactions.
In Mexico there are no national security review processes that need to be cleared for transactions to be completed, as is the case for example, in the USA with FIRRMA or the European Union. As mentioned in 2.3 Restrictions on Foreign Investments, Mexico’s market is generally open to foreign investment, however, due to Mexico’s proximity to the USA and its close relationship and market integration resulting from the United States–Mexico–Canada Agreement (USMCA), it is probable that in the case of certain industries similar to those protected in the USA, there will be the need to get a national security authorisation for the transaction to be authorised.
Opening New Markets
Notable recent legal developments relevant to the M&A transactions market in Mexico include those that involved the opening of various markets or industries at the national level. For example, the energy reform approved in 2013 that allowed the entry or development of energy, electricity and oil and gas companies in Mexico. In 2018 the Law to Regulate Financial Technology Institutions (Ley para Regular las Instituciones de Tecnología Financiera) was approved, which opened the market to financial technology institutions, including crowdfunding and electronic payment fund institutions and, in general, other players in the fintech ecosystem, such as insurtech and regtech.
Another relevant legislative amendment that impacted the M&A market was the amendment to the General Law of Commercial Companies (Ley General de Sociedades Mercantiles or LGSM) in June 2014, which allowed, among other things, shareholders of corporations to make agreements that, previously, were reserved exclusively to the shareholders of a stock investment promotion corporation (sociedad anónima promotora de inversión or SAPI) under the Securities Market Law (Ley del Mercado de Valores or LMV).
Thus, for example, under this reform, shareholders are entitled to agree on mechanisms that alter voting rights. Accordingly, corporations may:
In addition, under the reform, shareholders may agree drag-along and tag-along rights, calls and put options, subscription obligations and forced payments, restrictions on the transfer of shares, mechanisms to be followed in the event that shareholders do not reach agreements on specific matters, and limit liability for damages caused by their directors and officers, etc.
Supreme Court Decisions
There are few judicial decisions that have been resolved and that have had an impact on M&A transactions. In the last three years there is only one decision that has been issued by the Mexican courts in this regard, namely the jurisprudence with digital registry number 2004913 dated 2018 regarding the moment in which the merger of commercial companies takes place with regard to tax matters. This decision sets forth that the merger as a complex and contractual corporate business, developed in several successive stages and producing tax effects, among which are the early termination of the merged companies' fiscal year, does not depend on the registration of the merger agreement in the Public Registry of Commerce but is complete from the moment the merger contract or agreement is signed (except when there has been judicial opposition in the summary proceeding by any creditor, provided that it has been declared founded).
Originally, takeover law for private companies was provided for in the Securities Market Law applicable to SAPIs; however, the amended LGSM includes provisions that grant shareholders the possibility of agreeing, among themselves, rights and obligations that set forth purchase or sale options of the shares representing the capital stock of the company. These include:
The aforementioned provisions have not been modified in the last twelve months and no significant changes are expected in the short term.
It is common for a bidder to build a stake in the target prior to launching an offer. In this case, the applicable provisions of the target company's articles of incorporation and by-laws, the disclosure obligations under the Securities Market Law and the general provisions issued by the CNBV for takeover bids, that will be explained throughout this guide, must be taken into consideration.
In Mexico there are different material shareholding disclosure thresholds and filing obligations which are included below for explanatory purposes but should not be considered as the only disclosure or notification obligations under Mexican law.
It will also be important to consider the obligation of the persons or group of persons who intend to acquire or attain by any means, directly or indirectly, the ownership of 30% or more of the common stock of a corporation, registered in the National Securities Registry, inside or outside any stock exchange, through one or several simultaneous or successive transactions of any nature, of performing such acquisition through a public offer.
In private companies, it is relevant to consider that in June 2018 a second paragraph was added to Articles 73 and 129 of the LGSM, which sets forth that the entries in the special partners book and in the shares registry book shall be published in the electronic system managed by the Ministry of Economy, it being the obligation of that authority to ensure that the information is kept confidential.
In Mexico, it is possible to include in by-laws, or in private agreements entered into by and between shareholders, reporting thresholds different from those provided for in the law in such a way that more restrictive obligations are imposed and that, therefore, at least the minimum requirements provided for in the applicable legislation are complied with.
Dealing in derivatives is allowed under Mexican laws, such as the Securities Market Law and the provisions issued by the Ministry of Finance and Pubic Credit (Secretaría de Hacienda y Crédito Público or SHCP) and the CNBV, which have allowed the development and operation of a derivatives market in Mexico. Under Mexican law, derivative financial instruments include securities, contracts or any other legal act whose valuation is derived from one or more underlying assets, securities, rates or indices.
Reporting obligations applicable under Mexican laws are no different in the case of dealings in derivatives.
Pursuant to the terms of the General Provisions Applicable to Securities Issuers and Other Securities Market Participants (Disposiciones de Carácter General Aplicables a las Emisoras de Valores y a Otros Participantes del Mercado de Valores or the Issuers Provisions), particularly Exhibit K regarding the instructions for drafting the prospectuses for tender offers, the documents that need to be filed to the CNBV jointly with the applications to obtain authorisation for a voluntary or mandatory tender offer, include, among other elements, the intention and justification of the transaction as well as the purposes, plans and the consequences of the offer.
In order to know the stage when, and the authorities before which, a deal shall be disclosed, it will be necessary to consider the type of industry involved as well as to determine whether it will require authorisation from the COFECE (the antitrust authority).
In general terms, the obligation to notify or obtain authorisation from the COFECE, if required, must be made before the consummation of the deal. If the notice is submitted later, it is considered untimely and COFECE will be authorised to impose sanctions, without prejudice to the administrative, civil and criminal liability of the economic agents and of the persons who ordered or assisted in the execution.
In the case of deals involving public companies, there are two types of disclosure events, those that must be made at the time of the closing of the respective deal and the disclosure of subsequent relevant events. Thus, for example, as indicated in 4.2 Material Shareholding Disclosure Threshold, the disclosure of an acquisition of certain percentages must be made no later than the business day following the closing of the deal. On the other hand, in terms of the provisions of Mexican stock exchange legislation, issuers must disclose through the stock exchange where their securities are listed, for immediate dissemination to the public, the relevant events defined by the law itself at the time they become aware of them together with all the relevant information in connection with such events.
For private companies, the obligation to give notice to the Ministry of Economy of the execution of a deal, in terms of the provisions of the LGSM and before the tax authority, in accordance with Article 27 of the Federal Tax Code, arises once the deal has been performed.
Market practices regarding disclosure do not usually differ from legal requirements.
In the matter of disclosure before the COFECE, it is possible and common for the parties to agree (i) that the consummation of the transaction is subject to the condition precedent of obtaining the authorisation of the COFECE, or (ii) that a fictive affirmative in the sense that it is understood that there is no objection to the transaction and the respective certificate is issued.
Due diligence is usually conducted in Mexico for M&A transactions. For negotiated business combinations, its scope usually involves the areas mentioned below.
It is important to note that the following describes the due diligence that would be practised in any M&A transaction regardless of the industry involved. Thus, once the industry of the transaction is determined, it will be necessary to add additional areas, information and documents, such as certain types of contracts, concessions, trade mark registrations and specific authorisations. Due diligence typically involves the following.
Impact of COVID-19
Of the aforementioned aspects, some were impacted by the sanitary and administrative measures imposed by both federal and local governments as a result of the COVID-19 pandemic, for example, the closing or limited operation of certain public offices that issue documents such as the Public Registries of Commerce in charge of issuing mercantile folios. This, together with the closing of several private offices, limited or delayed the possibility of proceeding with the review of several documents, such as agreements, corporate books and share certificates.
In addition, as a result of the pandemic, the reviews performed as part of the due diligence process have emphasised the terms and conditions set forth in the contracts, policies and agreements entered into by the target company with respect to the consequences that could arise from force majeure, material adverse changes, material adverse effect provisions or clauses, the application of the theory of unforeseeability, etc.
Both, standstill and exclusivity arrangements or provisions are usually included in M&A transactions in Mexico. Rather than contracts, in practice they are included as clauses or provisions in letters of intent and term sheets or other documents setting forth exclusivity until the contract is signed, authorisations are obtained and standstills restricting certain activities – such as sale of assets, salary increases and sales promotion – are agreed.
Mexican laws allow for tender offer terms and conditions to be documented in a definitive agreement.
There is no defined timeframe for a sale and purchase process but, depending on the complexity of the negotiation and the need to obtain governmental authorisations to carry it out, it could take months.
A merger authorisation process before the COFECE or the IFT, depending on the relevant industry, may take more than six months if the relevant authority considers that it is a complex case.
In the case of transactions in regulated sectors, the time it takes for the corresponding regulatory authority to authorise the transaction must be taken into account. For example, in the banking sector, authorisation must be obtained from the CNBV, which must hear the opinion of Banco de México to authorise an acquisition of shares.
Although the pandemic led to the closure of several government offices, some of the regulators accelerated the implementation of online procedures that were in the development or testing stages. This is the case of the COFECE, which made use of its electronic procedures system, which allows the filing of merger notifications electronically and has an official electronic official office.
One of the most significant effects of the closures due to the pandemic was the reduction of personnel in the public notary offices, such that the processes of notarisation of documents suffered some not very significant delays and some registry offices had to close or limit their operations. This led to delays in terms of the necessary formalities in relation to the acquisition of a business.
In the case of private companies, there is no threshold determined by law that requires an offer to be made for a certain number of shares.
However, in the case of public companies, and as discussed in 6.4 Common Conditions for a Takeover Offer, if there is an intention to acquire 30% or more of the ordinary shares of a company registered in the Register, a mandatory takeover bid must be made, which is subject to the following terms and conditions.
The payment of the consideration for the acquisition of shares or equity securities with cash is more common in Mexico than swaps for other shares or equity securities, a combination of shares and cash or a merger. The most common practice in the market is to obtain financing.
Deposit or escrow agreements subject to certain conditions are commonly used to bridge value gaps between the parties in a deal environment or industry with high valuation uncertainty. Also, depending on the industry involved in the M&A transaction, formulas can be determined so that, at the closing date, the final amount of the consideration to be paid can be determined, for example, in transactions related to the electricity industry or the financial market.
The Issuers Provisions, in the case of tender offers, allow the prospectus to be filed to the CNBV to set forth the consideration to be paid in terms of the type of securities offered in exchange (instead of a consideration in cash), as well as the procedure for calculating the exchange value. Said provisions also set forth that the public offering notice submitted to the CNBV for its authorisation may omit information regarding the definitive price and amount, as well as the information that can only be known up to the day prior to the beginning of the public offering.
Voluntary Tender Offer
Voluntary tender offers are subject to the following terms and conditions determined by the regulator.
Mandatory Tender Offer
If the intention is to acquire 30% or more of the common shares of a company registered in the RNV, a mandatory tender offer must be made, which is subject to the following terms and conditions.
Mexican law permits any condition if it is not contrary to or prohibitive of public interest laws. The Issuers Provisions provide that the prospectus to be filed with the CNBV must indicate whether there are any conditions to which the offer is subject. The most common condition in Mexico for takeover offers is the authorisation of the transaction by the COFECE and the CNBV in the case of acquisitions of public companies.
The control threshold in Mexico applicable to tender offers is that the person or group of bidders seeking to obtain control of an issuer by means of a tender offer for less than 100% of the capital stock when the bidder intends to obtain control of the company, must complete its application to obtain the corresponding authorisation from the CNBV.
On the other hand, those who, by making a tender offer for less than 100% of the capital stock, cause less than 12% of the paid-in capital stock of the issuer to remain among the investing public, are required to extend the offer or to make a second tender offer within 30 days for up to 100% of the capital stock of the issuer under the same conditions on which the original tender offer was made.
Pursuant to Mexican laws, business combination may be conditional on the bidder obtaining financing, since it is a legal condition that is not prohibited by Mexican laws.
From a general perspective, there are no limitations with respect to the kind of deal security measures that a bidder may request, including break-up fees, match rights, force-the-vote provisions and non-solicitation provisions. However, there may be internal limitations provided in the by-laws of the target entity or legal limitations inherent to the security measures, for example, the impossibility of break-up fees that are established as a conventional penalty exceeding the value and amount of the main obligation.
The Issuers Provisions provide that the prospectus to be filed with the CNBV may include a mention of the right to decline the offer in the event of amendments to the offer that are relevant in the opinion of the CNBV.
In connection to new contractual considerations or tools for managing pandemic risk in the interim period, there have been certain changes, for instance in relation to the interpretation of certain provisions, particularly with regard to material adverse changes, material adverse effects, force majeure, etc. As a result of the pandemic caused by the SARS-CoV-2 virus, we have tried to make the wording as concise and clear as possible in order to be able to identify precisely whether one of the cases listed therein applies in a given case.
If a bidder does not seek to acquire 100% ownership of a company, it may agree on the governance rights that work best for it to be included in the target entity’s by-laws. For example, veto power in certain matters, the need for its vote with respect to certain resolutions to be taken by the general shareholders' meeting, or the special right to appoint members of the board of directors or officers of the company.
The representation of the shareholders or partners of any company is possible and common through a power of attorney granted before two witnesses. No notarisation or legalisation is usually required. Usually, the representation or the form of representation is regulated by the provisions of the by-laws of the company.
It is important to consider that, unlike in other jurisdictions, the general rule is that the granting of a specific power of attorney is required for the representative to act on behalf of the partner or shareholder – ie, the mere appointment as an officer or director of the shareholder does not automatically imply the authorisation to act on its behalf.
In the case of public companies, shareholders may be represented by persons who can prove their faculties of representation by means of proxy forms drafted by the company and made available to them through stock market intermediaries or the company itself, at least fifteen calendar days prior to the date of the meeting. In addition, in order to participate in the relevant meetings, the share certificates must be deposited with Indeval Institución para el Depósito de Valores, S.A. de C.V., which will issue a certificate of deposit evidencing said situation.
Some squeeze-out mechanisms used in Mexico are strategies to modify the capital stock of companies or agreements related to the purchase of shares that companies may foresee in their articles of incorporation and by-laws or even in agreements between shareholders. As of the 2014 reform, the LGSM provides that the by-laws may include grounds for exclusion of partners or grounds to exercise separation rights, withdrawal rights, or to redeem shares, as well as the price or the basis for its determination.
It is possible but not common to obtain both irrevocable and revocable offer or voting commitments from major shareholders of the target company. Negotiations with shareholders can be conducted at any stages of the deal. For the fulfilment of this type of commitment, it would be possible to grant irrevocable powers of attorney of the obligor allowing the attorney-in-fact to exercise voting rights. This type of commitment and the granting of such irrevocable powers of attorney allowing the voting of shares are particularly common in M&A transactions involving financing and the granting of collateral.
A distinction must be made between private and public transactions, since in the first case there is no regulation that obliges the parties to disclose a transaction publicly; the parties involved are free to decide whether to make the transaction public and, if so, at what time. Usually, a press release is made for significant transactions, once they have been authorised by all the corresponding regulatory authorities.
In the case of public companies, they have an obligation to disclose any relevant event that may affect the value of their shares, so the confidentiality of the negotiations must be handled carefully until a takeover bid is carried out. The relevant information and documentation related to the request for authorisation of the tender offer must be disclosed to the public on the day of the commencement of the tender offer. In the event of relevant changes with respect to the information disclosed, the same must be substituted.
For the issuance of shares of a private company, it is not necessary to make any kind of prior disclosure for a business combination to take place. If the combination is carried out through a merger, the merger agreements must be published in the Public Registry of Commerce and in the electronic system set forth by the Ministry of Economy, along with the last balance sheet of the companies involved and the system set forth for the extinction of the liabilities of the company or companies that will cease to exist.
In the case of issuers of securities registered in the National Securities Registry, they are required to submit, to the CNBV and the stock exchange on which their securities are listed, relevant information for immediate dissemination to the general public, through various reports, including reports on corporate restructurings such as mergers, spin-offs, acquisitions or sales of assets.
Finally, according to the Issuers Provisions, specifically those regarding the instructions for drafting prospectuses, these must contain the purposes and plans of the offeror after the public offering – ie, once it has been approved.
In general terms, bidders do not need to produce financial statements in their disclosure documents.
Private companies are not required to disclose transaction documents in full. In the case of public companies, the Issuers Provisions do provide for the delivery of copies of contracts, acts or prior agreements with other buyers, shareholders and directors of the issuer, that are related to the issuer, its shares or the purchase offer, including the existence of facts or verbal agreements and their result and the draft brokerage agreement to be entered into by the offeror and the intermediary and through which the purchase offer will be made.
The main responsibilities or duties of directors in the event of a business combination of private companies will derive from the LGSM, the by-laws of each of the companies involved, the meetings at which each of them agrees to merge and the respective merger agreement.
Public companies, both investment promotion corporations (sociedades anónimas promotoras de inversión) and stock exchange corporations (sociedades anónimas bursátiles) may adopt for their administration and supervision the same or a different regime regarding their integration, organisation and operation. The directors (who must act in good faith and in the best interests of the company and the legal entities it controls, and must not fail in their duty of diligence) and the chief executive officer of the company may be subject to the provisions relating to the organisation, functions and responsibilities set forth in the Securities Market Law; otherwise, they will be subject to the regime of organisation, functions and responsibilities set forth in the LGSM.
In accordance with stock exchange legislation, the members of the board of directors shall perform their duties in such a way as to create value for the benefit of the company without favouring a particular shareholder or group of shareholders.
It is common for boards of directors to set forth special ad hoc committees in business combinations, including those that may be used when one or more directors have a conflict of interest. In the latter case, additionally, the members of the board of directors who have a conflict of interest in any matter must abstain from participating in the deliberation and voting of the respective matters.
In the case of public companies, the Mexican courts assume that the members and secretary of the board of directors of publicly traded companies, who have a conflict of interest in any matter, will abstain from participating in the deliberation and voting on such matters.
The same happens in the case of private companies, where the law presumes that the directors who have an interest opposed to that of the company must declare it to the other directors and abstain from all deliberations and resolutions, considering that the director who contravenes this provision will be liable for the damages caused to the company.
In the case of private companies in Mexico, external auditors are usually a form of independent outside advice, while in the case of public companies, the external auditor of the company may also be called to the meetings of the board of directors, as a guest with a voice but without a vote. Auditors must abstain from being present with respect to those matters on the agenda in which they have a conflict of interest or that may compromise their independence, and in many contexts an opinion issued by them will be required.
Likewise, it will be important to consider the requirements set forth by the stock exchange legislation regarding the members of the board of directors who must comply with the "independence” requirement and who must be selected for their experience, capacity and professional prestige, also considering that, due to their characteristics, they may perform their functions free of conflicts of interest and without being subject to personal, patrimonial or economic interests.
The courts in Mexico have not produced many significant precedents with respect to conflicts of interest of directors, managers, shareholders or advisors; however, the legislation on the matter is extensive and quite complete.
The Securities Market Law does not prohibit hostile takeovers and even recognises the right of companies to agree mechanisms in their by-laws that allow them to defend themselves against this type of operation.
Notwithstanding the above, it is important to mention that the securities market is very small in comparison with those of other jurisdictions such as the USA, which has a large number of listed companies and a very dynamic market. The only case in which a hostile takeover was intended to take place was in 2015 and the target company had a mechanism to prevent a hostile takeover of the company that was declared valid by the Mexican Supreme Court.
The directors may use defensive measures against a takeover if these faculties are provided for in the by-laws of the target company, since neither the Securities Market Law nor the LGSM provide – in the catalogue of powers of attorney of the board of directors – for the use of defensive measures before a takeover. In general, this power of attorney is provided for in the shareholders' meeting.
In the event that such a power of attorney for the directors is not provided for in the by-laws, the participation of the board of directors could occur as long as they present to the meeting the information to which they have had access, or on the basis of which they consider it appropriate to reject a transaction and therefore make use of the defensive measures available to the company.
The by-laws may include clauses setting forth measures to prevent the acquisition of shares that grant control of the company to third parties or to the shareholders themselves, either directly or indirectly, provided that such clauses:
The hostile takeover prevention measure provided for in the by-laws of a target company, mentioned in 9.1 Hostile Tender Offers, was a 10% shareholding limit scheme. The company that wanted to carry out the hostile takeover reached a stake of almost 25% of the target company's capital. The Mexican Supreme Court of Justice, in ruling on the validity of the defence mechanism of the target company, obliged the purchaser to reduce its equity interest to the limit established in the by-laws of 10%.
There is no evidence that the hostile takeover defence measures have changed as a result of the pandemic.
Directors must generally comply with the duties of diligence and loyalty to the company and its shareholders, which translates into acting in good faith and in the best interest of the company, specifically:
These duties are applicable to a possible acquisition, the decision to carry out a transaction or not must be based on relevant and sufficient information to identify whether the transaction involves a benefit for the company and without there being a conflict of interest. When determining the use of defensive measures to prevent a transaction, the directors should evaluate whether they are not causing harm to the company and consequently failing to comply with their fiduciary duties.
The faculties of directors are usually provided for and delimited in the by-laws of the companies; their authority to oppose a transaction must be provided for in such by-laws or in the law. In any case, the directors must act in accordance with their duties of diligence and loyalty, even in the case of private companies to which the LGSM applies. Although the LGSM does not expressly provide for such duties – whereas the Securities Market Law does – it does consider the exercise of a liability action against the directors in the event of damage being done to the company, which occurs when the aforementioned fiduciary duties are not complied with.
In the case of public companies, it should be noted that, according to the Securities Market Law, the possibility of implementing measures to prevent a takeover of a company is subject to certain requirements and conditions (as mentioned in 9.3 Common Defensive Measures) that the directors must consider and comply with if they consider that it is necessary to make use of such mechanisms.
M&A litigation is still uncommon in Mexico.
Most of the litigation that exists in this area is related to agreements between shareholders and general agreements regarding the exercise of voting rights, compulsory purchases of shares, options, the tax effects of mergers and acquisitions, etc. As noted, M&A litigation is still uncommon in Mexico.
Although there are few jurisdictional controversies on the subject, from recent transactions related to the matter we can infer the clear relevance of an in-depth analysis of defence mechanisms in hostile takeovers, and the compliance of such mechanisms with the applicable provisions.
Shareholder activism in Mexico in an attempt to provoke a change within the company or in the favour of the activists is considered an important force when the relevant shareholder has control or a significant percentage of the capital stock of public or private companies,. Likewise, shareholders may play an important role in the decision-making process by being part of committees or even on the boards of directors of such companies. It will be important to consider the existence of minority rights provided for in the relevant legislation.
Activist shareholders are usually encouraging mergers and acquisitions, spin-offs or major divestitures through the exercise of their rights at shareholders' meetings, board of directors' meetings, committees or the exercise of special rights granted in their favour by the by-laws or by shareholder agreements.
In Mexico, interference by activists to interfere with announced transactions is not common, except through the aforementioned mechanisms for exercising shareholding rights.
The long-term repercussions of 2020 are difficult to digest from many perspectives. The costs to, among others, society at large, individuals, public health, the global economy, commercial and business activity, and financial conditions, are almost impossible to quantify. A pandemic event not seen in a century brought every individual and enterprise in the world to the ground, and has made us rethink our own condition as human beings, our social interactions, lifestyles, business and professional objectives, and the tools and capabilities required to achieve them. And yet, notwithstanding the extraordinary circumstances, it is one more worldwide crisis from which we will move forward, as we have done on prior occasions.
Markets, and the corporate and financial world in which we live, eventually find their way out of the most severe storms. The social turmoil, the collapse of the economy, the colossal failure of public and private institutions to tackle unexpected events; all will be followed by a “recovery” period. A period which, unavoidably, will eventually create other imbalances in the economic and social spheres that will bring us, eventually, to yet another crisis.
In the midst of it all, even when the economy seemed to stop altogether last year, the intricacies and interconnectivity that bind us all (as individuals, countries, regions and businesses) kept the ball rolling in the M&A sector. Although outcomes were impossible to predict, Mexican M&A witnessed (considering the circumstances) an extraordinary degree of activity, with new markets being opened and developed and new trends being established.
As a result, we are now immersed in the legacy of corporate finance transactions left behind by the crisis, just as we start working on the new deals that a reshaped economy brings about. In the end, no state of chaos is permanent, nor are periods of stability or growth, and in both we have to continue moving the economic machinery onwards.
A Year in Review
Mexican economic suffering and the USMCA
Aside from the pandemic, Mexico continued to experience major public shifts in its economic, political, social and legal landscape over the last year. Even given the global crisis of 2020, with a historical decrease in GDP of 8.5% (not seen since the Great Depression), the Mexican federal government continued to focus on its main objectives: reducing government spending, promoting social programmes and attempting to stimulate state-owned energy and electricity agencies. No significant programme has been launched to date to foster economic growth and employment, procure consumer acquisition power, develop feasible infrastructure projects or provide specific stimulus for local and foreign private investment.
The federal government has remained focused on its landmark infrastructure projects, these include:
Meanwhile, Mexico, the USA and Canada commenced work under their new trade agreement (USMCA), which is expected to provide for, among other matters:
The slowdown in the economy in 2020 was dramatic. The impact on certain business sectors was destructive to their cores. The manufacturing, export, retail, food, restaurant, hospitality, real estate and entertainment sectors, among many others, were devastated. Furthermore, in the particular case of Mexico, the impasse over private investment in the oil and gas sectors continued and has now also extended to the electricity sector. The federal government has launched initiatives to protect the Federal Electricity Commission (Comisión Federal de Electricidad) and severely impair private investment in the electricity industry, including through renewables and clean energy. The only industry that did not suffer a decrease in its growth in Mexico during 2020 was agribusiness.
Consolidation and private equity
The financial conditions experienced in 2020 prompted consolidation in several industries, including real estate and banking and finance. The need to operate remotely in all aspects of our lives has created a rush to afford individuals and companies the tools that permit them to carry out their work – and their social lives – through electronic devices and digital means. Of particular relevance is what has happened with the fintech/banking industry which saw increasing M&A activity during 2020. Fintech start-ups are being acquired by larger companies, or are expanding their presence in Mexico by entering into a variety of different arrangements with financial service providers (eg, collaboration agreements, mergers, services agreements). Joint-ventures, associations or combinations of fintech companies with Mexican financial intermediaries, as well as with telecom and IT companies are no longer merely a trend but a consolidated reality.
Private equity, although cautious, has maintained its presence and growth in the Mexican market. The main sectors that were subject to meaningful acquisitions, joint ventures, mergers or combinations in 2020, included banking, finance, pharmaceuticals, information technology, agribusiness, and real estate.
What Lies Ahead...
Global growth and increasing M&A
As we emerge from the 2020 crisis, the OECD has projected growth in global GDP of 5.6%. The USA is expected to grow its GDP by 6.5%. Such growth would contribute more to global GDP than China (something that has not been seen in 15 years). This is the result, among other factors, of the recently approved stimulus package for USD1.9 trillion. Mexico, in turn, is expected to grow its GDP by 4.5% during 2021. The US stimulus package will contribute significantly to this growth.
Factoring in the above-mentioned conditions, and as consumer acquisition power is regained, a few sectors expected to increase their M&A and commercial activity include:
The stimulus may even reach construction of residential and commercial real estate projects.
Forms of financing
Traditional financing as well as structured finance transactions are emerging to fund projects, private equity investments and financial institutions. This will certainly boost the M&A market significantly. Private securitisations, asset-backed lending and issuance of bonds, both in Mexico and abroad, are all currently seen in the market.
Labour regulation, antitrust and insolvency
Other factors (which may not necessarily be positive) may also bring about mergers, spin-offs and corporate reorganisations. Such is the case of the proposed initiative to regulate labour outsourcing and insourcing in Mexico. This could have a negative effect on a vast number of companies which may need to undergo corporate restructuring to comply with the new regulations.
Antitrust will remain a key factor to watch in M&A activity. The Mexican Antitrust Commission continues to pursue investigations, including in the telecoms, real estate and banking industries. The Mexican Antitrust Commission has also been active in different markets, including energy, transportation, agro-foods, finance, health, digital platforms and government procurement. The Commission continues to push forward on its initiatives regarding transparency, public bids, and better and unified regulations.
A word regarding insolvencies and workouts: during 2020, the National Banking and Securities Commission (Comisión Nacional Bancaria y de Valores) launched a programme to provide regulatory relief to Mexican banks in order to permit them to extend or modify the credit facilities of borrowers in financial distress. The measure worked only as a palliative for some borrowers, which have not yet been able to improve their financial condition. In addition, certain sectors, including those affected by regulatory measures (eg, electricity and renewables) have found themselves in financial distress. Sectors including entertainment, restaurants, construction, development, infrastructure and aviation may need to restructure both their financial and commercial arrangements, prompting a variety of corporate affairs and issues, and eventually face workouts or bankruptcy scenarios.
The stage is set for a productive M&A environment in 2021. As previously mentioned a number of sectors may benefit from joint ventures and strategic alliances with new partners, both foreign and local. There is also significant potential for sales or divestitures of assets or business divisions, including for publicly traded companies and regulated entities (such as financial, telecom, oil and gas, mining, agricultural, infrastructure and real estate companies). Attracting foreign investment is key; Mexico must remain attractive for investment from foreign participants. The opportunities are there but we have to manage the expectations with respect to the rule of law and the enforceability of projects, business plans and corporate governance arrangements.