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Understanding Fintech Partnerships in M&A

VIEWPOINT | Sponsored Thought Leadership of Banking & Governance
Robert M. Fleetwood and Justin C. Steffen

Reprinted with permission from Bank Director Magazine.

Banks have endured more than 18 months of the coronavirus pandemic. With the general strength of the broader economy, and businesses adapting to the “new reality,” we are beginning to see the resurgence of regular mergers and acquisitions activity in the industry.

As we hope this continues and the industry returns to a more “normal” level of transactions, financial institutions need to make sure that their partnerships and fintech activity don’t create speed bumps that could slow or obstruct a deal. Whether your bank is contemplating a sale or looking to be acquisitive, there are a few things to keep in mind as you develop relationships in the fintech space.

Know Your Partners

As your bank enters into relationships with fintech organizations, it is important to do your due diligence. Who are they? Who are their competitors? Does your fintech partner have relationships with your competitors? Those relationships may hurt your ability to capitalize on a transaction in the future. What will regulators think? Regulators generally don’t need to approve fintech partnerships, but they do get a bite at the apple during the examination process and the merger approval process, as we’ll see below.

Understand the Contract

We have experienced instances where a fintech offers up an agreement without fully understanding banking and its regulatory environment. It is important to evaluate each contract carefully and, if a change in control is potentially in your institution’s future, it is critical that executives negotiate breakup provisions; active acquirers likely have their own relationships that may not mesh with yours. Additionally, banks that are contemplating a sale must be able to transition customer accounts and products to an acquirer.

Focused Regulators

The Federal Reserve, Office of the Comptroller of the Currency and Federal Deposit Insurance Corp. recently published papers on community banks partnering with fintech companies. Regulators understand the need for banks to innovate, and that one of the quickest and most efficient ways to accomplish that is by partnering with technology companies. A report jointly produced by federal regulators identifies approximately 70 categories of documents and policies that a bank should review while performing its due diligence on a prospective fintech.

We believe regulators will begin to look more closely at these contractual arrangements during the normal examination cycle and during a merger or acquisition approval process. Falling short on the regulators’ expectations could land a bank in the “penalty box” and prevent or slow down a proposed transaction. Be prepared to answer questions and provide information on fintechs, what risk controls are in place and what operational systems support the product being offered. It is important that your fintech contracts are “regulatory friendly” so the approval process goes smoothly.

Own Your Data

As your bank enters into agreements, it is imperative that executives understand who owns the data that is being generated with the product. If a fintech partner will be displaced in the merger process, it is important that both the acquirer and target understand the rights to the data from the start. Coordinating the data between data processers and fintechs is crucial — and needs to be planned in advance.

Cryptocurrency: Yes or No?

While the cryptocurrency markets have been volatile over the past year, crypto remains a hot topic and an area of focus with consumers, particularly younger people establishing banking and investing relationships. Whether or not your organization is active in the crypto markets, it is important to have a thesis as you enter into negotiations. Do your customers want to have access to cryptocurrencies? Are you providing an investment opportunity for clients? If so, you probably use another company to provide backroom and custody solutions. What are the terms of those contracts? What do potential acquirers or business partners think about crypto?

Positioning your bank as an active acquirer or a potential merger target takes careful planning. Data processing contracts, employee benefits and capital issuances have always been a focus during transaction negotiations. In the race for noninterest income and technological advancements, it is imperative that banks take into account the future impacts of the contracts that they are being asked to sign today. Don’t enter into a fintech relationship without considering how it may impact your institution’s future ability to enter into a transaction, either as a buyer or a seller.

Robert M. Fleetwood is co-chair and Justin C. Steffen is a partner of the Financial Institutions Group at Barack Ferrazzano Kirschbaum & Nagelberg.

To read the article on Bank Director's site, visit: https://www.bankdirector.com/issues/strategy/dont-overlook-routine-developments-in-2020-21/

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