Australian public and private M&A outlook report 2024

• Steady but insecure growth in public M&A
  Dealmakers seeking Australian targets have shown resilience and an ability to produce solid M&A activity despite challenging economic conditions, making us cautiously optimistic for continued steady growth in 2024. Despite the Santa rally in late 2023, markets are continuing to experience volatility and any emerging shock will see M&A activity plunge once again. In particular, the ongoing war in Ukraine, seemingly escalating conflicts across the Middle East and a finely balanced US presidential election all give rise to risks for Australian markets.
• Industries supporting emissions reduction and the energy transition will be in focus
  Climate scientists have reported that 2023 was the hottest year on record by a large margin, stimulating renewed focus by global governments and the private sector on the transition to clean energy and the reduction of greenhouse gas emissions. We expect industries supporting the energy transition to remain popular M&A targets in 2024. This will include metals and mining companies with assets needed for large-scale decarbonisation projects, such as iron ore, aluminium and copper. The shadow cast over lithium and nickel companies by the recent price collapse will only be fleeting if longer-term predictions about their importance are correct.
• Foreign players will continue to dominate value
  Foreign bidders eclipsed their Australian counterparts for deal value in 2023 and we expect this trend to continue in 2024 unless tempered by a rise in the Australian dollar.
  
  Despite tightening foreign investment regulation in Australia, Australia remains an attractive investment destination for North American and European dealmakers given its relative political stability and predictable regulatory landscape.
  
  The United States has continued to be a particularly important investor origin for Australian M&A, accounting for roughly one third of all deals involving a foreign bidder in 2023. We will be interested to see whether US bidding activity changes in the lead up to the upcoming US presidential election in November.
• Increased scrutiny by competition regulators
  Competition regulators worldwide have promised increased scrutiny of acquisitions and mergers in 2024. Chairwoman of the Australian Competition and Consumer Commission (ACCC), Gina Cass Gottlieb, has described Australia’s merger laws as “no longer fit for purpose” and has proposed a widening of the watch-dog’s powers in respect of proposed acquisitions. The current laws prevent mergers that are likely to result in a substantial lessening of competition but do not require parties to notify the ACCC of planned mergers or wait for clearance before completing. If the proposed reforms are passed, we expect to see a greater number of deals to be subject to competition conditions precedent or dealmakers seeking approval pre-announcement. Similar movements by competition and anti-trust regulators in foreign jurisdictions are also expected to have an impact given the number of foreign-led deals that make up the Australian public M&A landscape.
• Hard exclusivity arrangements to become more commonplace
  The Takeovers Panel updated its guidance on hard exclusivity arrangements in 2023 and we expect this will lead to more bidders seeking hard exclusivity in 2024. In line with the Panel’s revised guidance, more targets will disclose exclusivity arrangements that contain an obligation to notify a prospective bidder of the identity of a competing bidder or terms of the competing proposal. While difficult to track pre-announcement, we expect 4 weeks to become the market standard exclusive due diligence period offered by Australian targets.
• AI-related deal features will begin to emerge While the initial generative AI buzz of early 2023 has settled, we expect there to be some lingering AI-related deal features that will carry on in 2024. We expect acquirers paying high premiums for AI-backed software and technology targets to seek stronger representations and warranties regarding the development, ownership and use of AI tools in the target’s business. Talent retention will also play an important role, and we expect to see bidders paying particular attention to strategies designed to attract or retain key people in AI-backed technology targets.
• Creative funding solutions for cash offers
  While interest rates have stabilised, the combination of less aggressive funding by the banking sector and the higher cost of money will dissuade bidders from debt only funded acquisitions in 2024. Instead, we expect to see the deployment of cash reserves or unused dry powder as well as a growth in alternative funding arrangements, joint ventures and private credit for all-cash transactions. We are also expecting to see lacklustre borrowing environments trigger growth in scrip and combination/election consideration structures in 2024.   

Sector highlights

• Energy and resources companies to remain high-priority acquisition targets
  Continued pressure on global oil and gas markets is forecasted as war in the Middle East and Ukraine continues. Elevated pricing levels for oil and gas will continue to make companies with exploration, extraction and processing assets high-priority acquisition targets. The gathering pace of the global transition to renewable energy will also see solar, wind, hydrogen and battery storage targets remain attractive to investors looking to benefit from the energy transition.
• Technology
  As technology companies return from the stratospheric valuations seen in 2021 and 2022, they will continue to attract interest as investors seek opportunities to bid for businesses that were once out of reach. Ever increasing demands for data and an accelerated remote work technology uptake in response to the COVID-19 pandemic will further ensure that these companies remain desirable targets. The trend of companies seeking bolt-on capability acquisitions to accelerate speed to market also looks set to continue in 2024.
• Healthcare
  The sector’s stability and long-term growth prospects, particularly in pharmaceuticals and biotechnology, will remain attractive for investors. However, it may be difficult to reach an agreement on valuations as the impacts of expensive debt and inflation-impacted demand. 

What will 2024 bring?

• Signs of recovery
  M&A is expected to pick up in line with equity markets. When equity markets clearly signal their belief in the end of interest rate rises, sharply increased dealmaking will follow. Some positive signs in the market to look for include increasing share prices and strong financial performance of the top ASX 200 companies. A more active public M&A market will likely open the floodgates and stimulate private M&A activity.
• ESG in M&A is now business-as-usual 
  ESG considerations will take centre stage again as ESG cements itself as a mainstay of M&A transactions. Those companies that actively consider ESG issues as part of their comprehensive due diligence processes will be best placed to navigate this fast-evolving landscape.
  
  ESG played an important role in 2023 private M&A activity as ESG factors proved to be the catalyst for many major divestures, acquisitions and restructures. Investors have continued to use their shareholder rights to influence corporate decisions and business behaviours which will become more prominent.
  
  In 2024, maximising deal value while striking the right balance between ESG considerations and other metrics will become more important for buyers and sellers. 
• Data security not just a threat to large corporations
  Ransomware groups are moving beyond large ASX-listed companies and are targeting midsized companies that are subject to private acquisition. Threat actors are also targeting investors and other participants in the M&A process to obtain confidential client and market sensitive information and misdirect payments. In addition to the operational and financial consequences of a cyberattack, regulators are increasingly taking enforcement action when they identify deficient post-acquisition cyber governance practices.
  
  Buyers looking to mitigate the risk of exposure may seek greater warranty coverage in these areas or, in more drastic circumstances, seek to carve out and leave behind parts of a target’s operations that pose unacceptable data and cyber security risks. We expect to see continued use of secure data rooms and encrypted document protection during due diligence, even for small deals, to guard against unauthorised access to confidential materials.
• Increased underwriting scrutiny
  W&I insurers are increasingly seeking fulsome due diligence around the target’s key operations. Depending on the industry, insurers may refuse coverage for high risk areas, such as IT, privacy and cybersecurity. Counterparties seeking W&I coverage should engage early with potential insurers to understand the limitations of coverage and ensure that comprehensive diligence has been performed in the key warranty areas.
• A buyer’s market?
  We continued to observe a surprisingly high number of aggressive positions accepted by sellers where we found 10% of deals had no knowledge qualifier on warranties and 12% of deals had no time limit on general warranties. This was combined with frequent buyer-friendly deal protections including restraint periods of up to 5 years. These results could be due to a combination of factors such as expertise asymmetry among private M&A practitioners, and/or that the “market average” needle has moved to favour buyers in the last 12 months. Organisations thinking about selling or divesting this year could be better prepared by being informed of the standard market positions and how to negotiate and manoeuvre those positions in favour of them.