Mergers and Acquisitions from A to Z

ISBN-13: 9780814439029

Media Type: Hardcover(Fourth Edition)

Publisher: AMACOM

Publication Date: 04-10-2018

Pages: 372

Product Dimensions: 6.30(w) x 9.10(h) x 1.20(d)

Age Range: 18 Years

ANDREW J. SHERMAN is a partner in the Washington, D.C., office of Jones Day and an internationally recognized authority on the legal and strategic issues of emerging and established companies. A top-rated adjunct professor in the MBA and Executive MBA programs at the University of Maryland and Georgetown University Law School, he is the author of Harvesting Intangible Assets, Franchising and Licensing, and Mergers Acquisitions from A to Z .

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Mergers And Acquisitions from A to Z

AMACOM BOOKS

Chapter One

There is virtually an infinite number of ways in which a corporate merger or acquisition may be structured. There are probably as many potential deal structures as there are qualified and creative transactional lawyers and investment bankers. The goal is not to create the most complex, but rather to create a structure which fairly reflects the goals and objectives of the buyer and seller. Naturally, not all of the objectives of each party will be met each time-there will almost always be a degree of negotiation and compromise. Virtually all structures, even the most complex, are at their roots basically either mergers or acquisitions, including the purchase or consolidation of either stock or assets. The creativity often comes in structuring the deal to achieve a particular tax or strategic result or to accommodate a multistep or multiparty transaction. This chapter will look at some of the typical structures as well as a few alternative types of transactions such as spin-offs, shell mergers, and ESOP's.

At the heart of each transaction are the following key issues which will affect the structure of the deal:

How will tangible and intangible assets be transferred to the purchaser from the seller?

Atwhat price and according to what terms?

What issues discovered during due diligence may affect the price, terms or structure of the deal?

What liabilities will be assumed by the purchaser? How will risks be allocated among the parties?

What are the tax implications to the buyer and seller?

What are the long-term objectives of the buyer?

What role will the seller have in the management and growth of the underlying business after closing?

To what extent will third-party consents or governmental filings/approvals be necessary?

What arrangements will be made for the key management team of the seller (who may not necessarily be among the selling owners of the company)?

Does the buyer currently have access to all of the consideration to be paid to the seller or will some of these funds need to be raised from debt or equity markets?

There is a wide variety of corporate, tax and securities law issues that affect the final decision as to the structure of any given transaction. Each issue must be carefully considered from a legal and accounting perspective. However, at the heart of each structural alternative are the following basic questions:

Will the buyer be acquiring stock or assets of the target?

In what form will the consideration from the buyer to the seller be made (e.g., cash, notes, securities, etc.)?

Will the purchase price be fixed, contingent or payable over time on an installment basis?

What are the tax consequences of the proposed structure for the acquisition (see Chapter 6)?

Stock vs. Asset Purchases

Perhaps the most fundamental issue in structuring the acquisition of a target company is whether the transaction will take the form of an asset or stock purchase. Each form has its respective advantages and disadvantages, depending on the facts and circumstances surrounding each transaction. The buyer and seller should consider the following factors in determining the ultimate form of the transaction:

Stock Purchases The Buyer's Perspective: Advantages

1. Tax attributes carryover to buyer (e.g., net operating loss and credit carryforwards).

2. Avoids many of the restrictions imposed on sales of assets in loan agreements and potential sales tax.

3. Preserves the right of the buyer to use seller's name, licenses and permits.

4. No changes in corporation's liability, unemployment or workers' compensation insurance ratings.

5. Nontransferable rights or assets (e.g., license, franchise, patent, etc.) can usually be retained by the buyer.

6. Continuity of the corporate identity, contracts and structure.

The Seller's Perspectives: Advantages

1. Taxed only on the sale of stock.

2. All obligations (i.e., disclosed, not disclosed, unknown and contingent) and nontransferable rights can be transferred to the buyer.

3. Gain/loss is usually capital in nature.

4. If stock held by individuals is IRC Section 1244 stock and is sold at a loss, the loss is generally treated as ordinary.

5. May permit sellers to report gains from sale of stock on the installment basis.

6. Does not leave the seller with the problem of disposing of assets which are not bought by the purchaser.

The Buyer's Perspective: Disadvantages

1. Less flexibility to cherry pick key assets of seller.

2. The buyer may be liable for unknown, undisclosed or contingent liabilities (unless adequately protected in the purchase agreement).

3. No step-up in basis (i.e., seller's basis is carried over to the buyer at historical tax basis).

4. Normally does not terminate existing labor union collective bargaining agreement(s) and generally results in the continuation of employee benefit plans.

5. Dissenting shareholders' have a right of appraisal for the value of their shares with the right to be paid appraised value or remain a minority shareholder.

The Seller's Perspective: Disadvantages

1. Offer and sale of the company's securities may need to be registered under certain circumstances.

2. Seller cannot pick and choose assets to be retained.

3. May not use the corporation's net operating loss and credit carryforwards to offset gain on sale.

4. Loss on sale of stock may not be recognized by corporate shareholder who included the company in its consolidated income tax return.

Asset Purchases The Buyer's Perspective: Advantages

1. The buyer can be selective as to which assets of target will be purchased.

2. The buyer is generally not liable for seller's liabilities unless specifically assumed under contract.

3. Step-up in basis of assets acquired equal to purchase price allowing higher depreciation/amortization deductions.

4. Buyers are generally free of any undisclosed or contingent liabilities.

5. Normally results in termination of labor union collective bargaining agreement(s) and employee benefit plans may be maintained or terminated.

6. Buyers may elect new accounting methods.

The Seller's Perspective: Advantages

1. Sellers maintain corporate existence.

2. Ownership of nontransferable assets or rights (e.g. licenses, franchises, patents, etc.) are usually retained.

3. Corporate name and goodwill can generally be maintained.

4. Corporation's tax attributes (e.g., net operating loss and credit carryforwards) are retained.

The Buyer's Perspective: Disadvantages

1. No carryover of seller corporation's tax attributes (e.g., net operating loss and credit carryforwards).

2. If a bargain purchase, step-down in basis of assets.

3. Nontransferable rights or assets (e.g., license, franchise, patent, etc.) cannot be transferred to buyers.

4. Transaction more complex and costly in terms of transferring specific assets/liabilities (i.e., title to each asset transferred and new title recorded; state sales tax may apply).

5. Lender's consent may be required to assume liabilities.

6. Loss of corporation's liability, unemployment or workers' compensation insurance ratings.

The Seller's Perspective: Disadvantages

1. Double taxation if the corporation also liquidates.

2. Generates various kinds of gain or loss to sellers based on the classification of each asset as capital or ordinary.

3. Transaction more complex and costly in terms of transferring specific assets/liabilities (i.e., title to each asset transferred and new title recorded; state sales tax may apply).

4. Bill of Sale must be comprehensive with exhibits attached in order to ensure that no key assets are overlooked and as a result not transferred to the buyer.

5. A variety of third-party consents will typically be required to transfer key tangible and intangible assets to the buyer.

6. Seller will be responsible for liquidation of the remaining corporate "shell" and distributing the proceeds of the assets sale to its shareholders, which may result in a double taxation unless a Section 338 election is made.

7. Asset acquisition requires compliance with applicable state bulk sales statutes, as well as state and local sales and transfer taxes.

Tax and Accounting Issues Affecting the Structure of the Transaction

In a given merger or acquisition, there is a wide variety of tax and accounting which must be considered and understood as part of the negotiation and structuring of the transaction. These issues will affect the valuation and pricing as well as the structure of the deal and may be a condition precedent to closing. This section will provide an overview of the basic tax and accounting issues to be addressed in a merger or acquisition, but will be limited to a summary because the tax laws are very complex and constantly changing. You should discuss the accounting issues with the Certified Public Accountant (CPA) who will serve as a part of the acquisition team.

Mergers and acquisitions may be completely tax-free, partially tax-free or entirely taxable to the seller. Each party and their advisors will have their own, often differing, views on how the transaction should be structured from a tax perspective, depending on the non-tax strategic objectives of both buyer and seller in the transaction and the respective tax and financial position of each party. In some cases the tax consequences will be the primary driving force in the transaction and in other cases the tax issues are secondary or even a non-issue. In addition to the taxable aspects of the structure of the transaction, there will be a wide variety of other tax issues to be considered, such as the tax basis of the assets acquired, the impact of the imputed interest rules on the transaction, and the tax aspects of any deferred consideration and/or incentive compensation to the seller.

It is relevant to highlight an example that conveys the degree to which tax can be an impediment to a transaction. In one situation the CEO of the seller had negotiated a "carve-out" with his board, and received some of the new combined company's stock as personal income. That income, however, created over a million dollars in cash tax liability. This tax liability presented a significant challenge to getting the deal done. The CEO, who deserved credit for the deal, now had a strong incentive to prevent the deal from happening. Navigating tax liability issues, like the one in this example, are critical steps to successful deal closure.

The general tax-related goals of the seller usually include:

Deferring the taxation of the gain realized on the sale of the business to a future date (such as if the seller acquires the buyer's securities, which may appreciate in value, but the seller need not generally pay taxes on these gains until these securities are sold).

Classifying the income which is recognized as capital gain and not as ordinary income.

Ensuring that cash is available to pay for taxes as they become due, and to avoid the "double tax" at both the corporate and the shareholder level.

Again, the strategic objectives must be balanced against the tax consequences. If the seller has an immediate need for liquidity or has no desire to receive the buyer's securities (the seller may not accept the buyer's post-closing vision and plans for the combined entities), then it will be difficult to achieve nontaxable status.

Over the years, the changes to the federal tax laws have chipped away at the buyer's motivations for having the transaction characterized as tax-free. The buyer's ability to "carry over" favorable tax attributes of the seller has been diminished such that the buyer's use of its own securities as consideration to pay the seller often have to do more with preservation of cash than with applicable tax laws.

If the transaction is taxable, then the "stepped-up" basis will be increased to equal to the fair market value of the consideration paid to the seller. If the transaction is non-taxable, the buyer is able to "carry over" the seller's tax basis to its own financial statements. If the buyer would prefer to carry these assets on the balance sheet at the stepped-up tax basis (such as if the buyer is paying much more than the seller's tax basis) or if the buyer would prefer not to issue securities to the seller to prevent dilution of ownership, then the buyer should opt for a taxable transaction. Based upon our experience, resolving the tax issues effectively between the parties is critically important. This issue directly impacts the price of the transaction and each party's perception of the fair value.

Taxable vs. Non-Taxable Deals Taxable

Purchase of stock for cash, promissory notes or other non-equity consideration

Purchase of assets for cash, promissory notes or other non-equity consideration

Taxable transactions generally anticipate that the seller will have little or no continuing equity participation in the acquired company.

Nontaxable

An exchange of the buyer's stock for the seller's stock.

An exchange of the buyer's stock for all or substantially all of the seller's assets

Nontaxable transactions generally anticipate a continuing, direct or indirect equity participation in the acquired company by the seller or its shareholders.

Most corporate acquisitions will be deemed to be taxable transactions if structured as either a purchase of stock or assets in exchange for cash, promissory notes or other forms of consideration. Nontaxable transactions usually fall more into the category of a merger in that they involve an exchange of the target company's stock or assets for the purchaser's equity securities or of a subsidiary created by the purchaser, coupled with some direct or indirect continuing relationship between the buyer and the seller and their respective shareholders. These nontaxable transactions must fall within one of several reorganization categories contained in IRS Code Section 368.

Tax-Free Reorganizations

If the parties choose to structure the transaction as a tax-free reorganization, then the requirements set forth below must be followed:

The three principal forms of "Tax-Free Reorganizations Under the Internal Revenue Code" are: (a) Type A Statutory Merger, (b) Type B "Stock-for-Stock" Merger, and (c) Type C "Stock-for-Assets" Merger.

"A" Reorganizations

A Type A reorganization is a statutory merger or consolidation under state law. No express limitations are imposed on the type of consideration that can be used in the transaction or on the disposition of assets prior to the merger. This is a very flexible acquisition device that permits shareholders to receive property including cash in addition to stock of the acquiring corporation.

"B" Reorganizations

Type B reorganizations are an acquisition by one corporation, in exchange solely for all or part of its voting stock or that of its controlling company. If, immediately after the acquisition, the acquiring corporation has control (at least 80 percent of the total combined with power of all classes of stock and at least 80 percent of the total number of shares of all other classes of stock) of such other corporation (whether or not the acquiring corporation had control immediately before the acquisition). Counsel to the buyer, however, must be particularly sensitive to any cash payment, such as a finder's fee or the payment of appraisal rights to dissenting shareholders.

"C" Reorganizations

Type C reorganizations are an acquisition by one corporation, in exchange solely for all or part of its voting stock (or that of its parent) and of "substantially all" of the properties of another corporation. The transferor corporation must distribute the stock, securities, and other properties it receives from the acquiring corporation, as well as any retained assets, as part of the plan of reorganization.

The tax aspects of the proposed transaction are among the most important issues to be addressed by the acquisition team. These laws are complex and are constantly changing. Therefore, knowledgeable advisors should be carefully consulted. (Continues...)

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Table of Contents

Contents

ACKNOWLEDGMENTS ix

INTRODUCTION TO THE THIRD EDI T ION xi

CHAPTER 1

The Basics of Mergers and Acquisitions 1

Understanding Key Terms 1

What’s All the Fuss About? 3

Why Bad Deals Happen to Good People 8

Why Do Buyers Buy, and Why Do Sellers Sell? 9

CHAPTER 2

Preparing for the Dance: The Seller’s Perspective 13

Conducting a Thorough EOTB Analysis 17

Preparing for the Sale of the Company 17

Common Preparation Mistakes 29

Other Considerations for the Seller 31

CHAPTER 3

Initiating the Deal: The Buyer’s Perspective 34

Assembling the Team 34

Developing an Acquisition Plan 35

Applying the Criteria: How to Narrow the Field 43

Approaching a Company That Is Not for Sale 44

Dealing with the Seller’s Management Team 45

Directory of M&A Resources for Prospective Buyers (and Sellers) 46

CHAPTER 4

The Letter of Intent and Other Preliminary Matters 51

Proposed Terms 52

Binding Terms 52

Common Reasons Why Deals Die at an Early Stage 59

Preparation of the Work Schedule 60

Another Predeal Task: The Growing Debate About the Role and

Usefulness of Fairness Opinions 61

CHAPTER 5

Due Diligence 65

Best Practices in Due Diligence in the Era of Accountability 2.0 66

Legal Due Diligence 74

Business and Strategic Due Diligence 83

Conclusion 91

Appendix to Chapter 5: Post-Sarbanes-Oxley Due Diligence

Checklist 92

The Disclosure Requirements 93

Checklist of Items Post-Sarbox 97

CHAPTER 6

An Overview of Regulatory Considerations 101

Introduction 101

Environmental Laws 102

Federal Securities Laws 103

Federal Antitrust Laws 106

Waiting Periods 109

Labor and Employment Law 113

CHAPTER 7

Structuring the Deal 120

Stock vs. Asset Purchases 122

Tax and Accounting Issues Affecting the Structure of the

Transaction 126

One-Step vs. Staged Transactions 130

Method of Payment 132

Nontraditional Structures and Strategies 135

CHAPTER 8

Valuation and Pricing of the Seller’s Company 144

A Quick Introduction to Pricing 146

Valuation Overview 147

CHAPTER 9

Financing the Acquisition 155

An Overview of Financing Sources 156

Understanding the Lender’s Perspective 159

Financing Deals in Times of Turmoil 160

Steps in the Loan Process 164

Equity Financing 168

CHAPTER 10

The Purchase Agreement and Related Legal Documents 189

Case Study: GCC Acquires TCI 191

Sample Schedule of Documents to Be Exchanged at a Typical

Closing 209

CHAPTER 11

Keeping M&A Deals on Track: Managing the Deal Killers 252

Communication and Leadership 253

Diagnosing the Source of the Problem 254

Understanding the Types of Deal Killers 254

Curing the Transactional Patient 256

Maintaining Order in the M&A Process: Simple Principles for

Keeping Deals on Track 257

Conclusion 258

CHAPTER 12

Postclosing Challenges 259

A Time of Transition 260

Staffing Levels and Related Human Resources Challenges 264

Customers 267

Vendors 268

Physical Facilities 268

Problems Involving Attitudes and Corporate Culture 269

Benefit and Compensation Plans 271

Corporate Identity 272

Legal Issues 272

Minimizing the Barriers to the Transition 273

Postmerger Integration Key Lessons and Best Practices 277

Conclusion 280

CHAPTER 13

Alternatives to Mergers and Acquisitions 281

Growth Strategy Alternative 1: Joint Ventures 282

Growth Strategy Alternative 2: Franchising 287

Growth Strategy Alternative 3: Technology and Merchandise

Licensing 299

Growth Strategy Alternative 4: Distributorships and Dealerships 306

INDEX 309