Selecting and appointing the lead consultant

Part 2 – Planning a business acquisition

Selecting the lead consultant (Lead Consultant) will again depend on the nature of the Target, the characteristics of the Acquirer and the anticipated scope of work for the Advisory Team. There are many considerations in appointing the Lead Consultant however in our view, it is critical that they be given the appropriate resources and delegated the power[1] to effectively coordinate the activities of the Advisory Team. These factors are important to minimise costs and the time taken to successfully complete the Acquisition within budget.

The Lead Consultant’s skills

Lead Consultants can come from a variety of Occupations and as a result it is important to recognise that each Lead Consultant for an Acquisition could be of a different class. As well as being delegated the power and resources to manage the acquisition process effectively, it is critical that the nominated Advisor have the following skills:

  • Project Management Skills

Nowadays it is important not only in the traditional areas of building and construction and software development for those in leadership positions to have project management skills. It has been this author’s experience that Lawyers and generally accountants are bereft of these skills.   If you are considering appointing a Lead Consultant, ask them at short notice to put together a project plan for the proposed Acquisition. If they are not able to produce a simple Gant Chart, showing an anticipated scope of work, including the anticipated dependencies, and discuss the issues impacting on the timeframe, then it’s likely they don’t have the required skills. That said, smaller Acquisitions are not likely to require a Lead Consultant or a project plan.

  • Leadership

Whilst a hackneyed concept, it is important that the Lead Consultant have experience in successfully leading teams of people. Most importantly the ability to understand the role of each Advisor in the process is necessary to effectively coordinate their efforts. Nowhere is this more important when project managing a large complex Acquisition involving multiple conditions precedent to a fixed budget.

  • Excessive Dogma

Appointing a Lead Consultant that has an excessive personal bias (Excessive Dogma) can be extremely detrimental to the Acquisition process. For example, if for some reason the Lead Consultant is an Expert Advisor, because the Acquisition has a scientific or technical due diligence requirement, then care must be taken to ensure that they do not adopt a dogmatic position which is not critical to the Acquisition, but critical in their mind. Put another way, if the Expert Advisor requires to do things a certain way, care must be taken that they do not advocate the essentiality of this to the detriment of the Acquisition as a whole.

Example

An example of this in Expert Advisor appointed to advise on the scalability and performance of certain software. The Expert Advisor adopted a dogmatic position showing a personal bias to have the code written according to their own architectural preferences overriding the goal of the Management Representative to simply determine whether the code was fit for purpose.

Who could be the Lead Consultant?

The Lead Consultant is by definition a member of the Advisory Team, and would therefore be selected from the following occupations as listed above in paragraph 2.2:

  • Accountant;
  • Corporate Advisor;
    Project Manager;
    Strategic Advisor.
  • Company Secretary;
  • Expert Advisors (Depending on the industry involved);
  • Financiers;
  • Lawyers (various specialities)
  • Management Representatives (various).

Selecting and appointing the Lead Consultant will depend on the particular Acquisition. There should be no general rule, but it will depend on nature of the Target, the characteristics of the Acquirer and the anticipated scope of work for the Advisory Team.

Case studies

For each of the scenarios below consider the Nature of the Target and the characteristics of the Acquirer and the likely Main Barrier to overcome before concluding what Advisors could be part of the Advisory Team.

  • Acquisition of smaller Target by ASX Listed Entity

In this instance, there is no need for capital raising, minimal technical review and the Management Representatives had significant history of making acquisitions. Therefore assuming that the Management Representative had the time to do so there would be no reason why the Lead Consultant could not be the In House Counsel of the Managing Director.

  • Acquisition of a large Target with significant registered intellectual property by a yet to be formed joint venture

In this case the Main Barrier was whether or not the intellectual property of the Target would stand up the rigour of legal challenge. Therefore, the involvement of an Expert Advisor in the form of a Patent Attorney was required. That said, the involvement of an Accountant to determine an appropriate rationale for the price was also critical as was the involvement of a Lawyer to document the terms of the Joint Venture so the offer could be made knowing that the finance was secure. There was no Central Hurdle however coordination of the Advisory Team was paramount.

Therefore the Lead Consultant should have been a Strategic Advisor experienced in Project Managing the activities of Advisory Teams.

  • Acquisition of a small cap public company by a similar company in the same market requiring a capital raising

In this case the following Main Barriers are to be considered:

  • the capital raising;
  • the likely cost of the Target and how the acquisition is to be financed;
  • compliance with the ASX Listing Rules and the continuous disclosure obligations;
  • whether the Acquisition has the potential to significantly lessen competition;[2]
  • the Acquirer’s experience in making acquisitions; and
  • the budget for the Acquisition team.

In the end, whilst the merits of the appointment of a Lead Consultant can be debated, it is critical to their success that they be given the resources and power to complete their role.

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice. Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

Further information

Malcolm-Burrows-15

 

 

 

 

 

 

Malcolm Burrows B.Bus.,MBA.,LL.B.,LL.M.,MQLS.
Legal Practice Director
Telephone: (07) 3221 0013
Mobile: 0419 726 535
e: mburrows@dundaslawyers.com.au


[1] Section 198D of the Corporations Act 2001 (Cth) provides inter alia that the Directors of a company may delegate their powers to a committee of Directors, a Director, an employee of the company or any other person subject to certain conditions.

[2] s50 of the Competition and Consumer Act 2010 (Cth).

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