M&A in a Nutshell: A Presentation to the Southern Aerosol Technical Association

Transcription

1 M&A in a Nutshell: A Presentation to the Southern Aerosol Technical Association March 13, 2014 Philip A. Theodore Vice President, General Counsel Zep Inc.

2 Disclaimer The views and opinions expressed in this presentation are those of the presenter and do not necessarily reflect the views or opinions of the management or Board of Directors of Zep Inc. This presentation includes information about legal issues and legal developments. It is intended for informational purposes only and may not reflect the most current legal developments. This presentation is not intended, and should not be taken, as legal advice on any particular set of facts or circumstances. You should contact an attorney for advice on specific legal problems Zep Inc. - All rights reserved. 2

3 Presentation Overview This presentation will explain the following: The rationale for pursuing an M&A transaction The basic forms of M&A transactions The considerations that lead to the choice of form for the transaction The implications of the choice of form for the seller and the acquiror The implications of the choice of form for the compliance professional 3

4 Why M&A? Companies engage in M&A transactions for many reasons: Acquiring another business is the best (quickest or least expensive) way to grow sales. M&A may permit the acquiror to enter a new geographic market, to provide a new product or service or to sell through a new commercial channel. In the current economic environment, organic sales growth is difficult to achieve. Acquiring another business is the best (quickest or least expensive) way to create economies-of-scale in a supply chain or sourcing operation, to leverage a sales force or to leverage a corporate shared-services organization. Disposing of a business is the best way to raise cash, to improve overall performance or to create a focus on a more important business. 4

5 Terminology T = the target company. It is the company that will merge with another or sell its assets to another. It is the company the stock of which will be sold to another. It is the acquired company. P = the parent and acquiring company. It could be the company with which T merges or it could purchase the assets or stock of T. S = a subsidiary of P. Sometimes, for tax, regulatory or business reasons, P decides to structure the acquisition of T using a subsidiary. 5

6 Basic Forms of M&A Transactions One of the corporations ceases to exist it is Demand merged out of existence. Drivers The other corporation, called the surviving corporation, becomes the owner of all of the disappearing corporation s assets and liabilities. Market Examples M = Merger A merger is a transaction in which one corporation disappears into another. Ownership of the disappearing corporation s assets and liabilities happens as a matter of law, meaning that the state corporate-merger statute provides for it. 6

7 Basic Forms of M&A Transactions There are three types of mergers in common use: Direct: Forward Triangular: Reverse Triangular: T P P P T S T S P is the survivor All of T s assets and liabilities are owned by P S is the survivor All of T s assets and liabilities are owned by S T s stockholders must approve the merger T s stockholders get cash or P stock as consideration T is the survivor T is a wholly owned sub of P 7

8 Basic Forms of M&A Transactions A = Acquisition In our context, there are two types of acquisitions: Stock Purchase P or S purchases T s stock directly from T s stockholders. T becomes a wholly owned subsidiary of P or S. Asset Purchase P or S purchases T s assets directly from T. T s stockholders generally must approve the asset sale. T distributes the purchase price to its stockholders. 8

9 Structure Considerations A merger makes sense when there are so many shareholders of T that it is impractical to negotiate an acquisition with them directly. For this reason, when a public company is acquired, it almost always involves a merger. Generally, a majority of the stockholders of a public company can approve a merger with another company. From P s standpoint, finding all of T s stockholders is not important because by operation of law when the merger is closed, T s stock is converted into the right to receive the merger consideration. T s stockholders will not have to pay federal income tax on the value of the P stock they receive in a merger, if the transaction is structured correctly. Therefore, when T s stockholders will have an on-going ownership interest in the surviving corporation, a merger makes sense. 9

10 Structure Considerations All other things being equal, P would prefer to acquire T s assets because Acquiring assets has tax advantages for P step up of basis. P can leave behind assets and, more importantly liabilities that it does not want. T would prefer not to sell assets because, unless T is a disregarded entity for tax purposes or has some other way to shelter income, T s owners will pay tax twice on the proceeds of the sale. The first tax is levied on the gain on the assets inside T. The second tax is levied when T distributes the remaining proceeds to its stockholders. 10

11 Structure Considerations Asset Acquisition Steps: 1. P and T sign an asset purchase agreement. 2. T obtains the approval of its stockholders to sell its assets to P. 3. P pays the purchase price to T. T conveys its assets to P. Assets could include real property, equipment, patents, trademarks. T assigns its contracts to P. P assumes the contracts. Sometimes consent of the other party is required. T s employees remain employed by T, unless P hires them. T assigns its permits, licenses and the like to P, to the extent assignment is permitted by law. P must notify governmental authorities of the transfer and/or seek new permits and licenses. 4. T pays any liabilities that P did not assume and distributes remaining consideration to its stockholders. T terminates any employees not hired by P. 5. T remains a shell corporation owned by T s stockholders. 11

12 Structure Considerations If T and P cannot agree on an asset sale, P could decide to accomplish the acquisition by purchasing T s stock from T s stockholders. At the closing, T becomes a subsidiary of P. P does not get a stepped-up basis in T s assets. The purchase price becomes P s basis in T s stock and T s assets have a carry-over basis for P s tax purposes. The amount P pays is trapped in the basis of T s stock where it cannot be deducted. P becomes the economic owner of all of T s assets and liabilities, including contingent and undisclosed liabilities because it owns T. T s stockholders avoid double taxation on the proceeds from the sale. 12

13 Structure Considerations Stock Purchase Steps: 1. P enters into a Stock Purchase Agreement with all stockholders of T. 2. P obtains the consent of, or provides notice to, any third parties who have consent or notice rights upon the occurrence of a change of control of T. 3. P pays the consideration directly to T s stockholders. 4. T s stockholders transfer their stock certificates to P. 5. T becomes a wholly-owned subsidiary of P. 13

14 Structure Considerations Structure and form of purchase price are independent. Many mergers involving public companies involve P issuing its stock to T s stockholders. However, P could also pay cash to T s stockholders. Stock is the consideration in transactions that are mergers-of-equals. Time Warner Inc. s acquisition of AOL was a famous example. The stockholders of T accept P stock because they want to have an ongoing equity stake in the combined company. Cash is the consideration in transactions where one public company is acquiring another. Usually P is larger than T and will assimilate T. Most asset and stock acquisitions involve P paying cash to T or T s stockholders. However, P could also issue stock to T or T s stockholders. This is relatively rare. It occurs when a substantial amount of the consideration is paid to founder/managers who will remain involved going forward. P s stock serves to provide a performance incentive. 14

15 Structure Implications The implications depend on the structure. Mergers Direct and forward triangular mergers result in a change in the ownership of T s assets. After the transaction closes, a new corporate entity owns the assets formerly owned by T and T ceases to exist. Accordingly, assets must be re-titled and permits and licenses must be assigned or reissued in the name of the new entity. Reverse triangular mergers result in a change of control of T, but not a change in ownership of T s assets. After the transaction closes, a new corporate entity owns T, but T still owns its assets and its permits and licenses. P must determine what consents are required because of a change of control of T. Sometimes, when consent is not required, P must provide notice of its ownership of T to a third party. 15

16 Structure Implications The implications depend on the structure. Asset Acquisitions Always result in a change in the ownership of T s assets. After the transaction closes, a new corporate entity owns the assets formerly owned by T. Accordingly, assets must be re-titled and permits and licenses must be assigned or reissued. Stock Purchases Result in a change of control of T, but not a change in ownership of T s assets. After the transaction closes, a new corporate entity owns T, but T still owns its assets and its permits and licenses. P must determine what consents are required because of a change of control of T. Sometimes, when consent is not required, P must provide notice of its ownership of T. 16

17 Structure Implications The implications depend on the structure and the holder of the license, permit or registration. License, permit or registration issued to an entity The entity does not change following a stock purchase or a reverse triangular merger. But the owner of the entity changes. Does your license, permit or registration require consent or notification upon a change in control of the entity? The entity changes following a direct merger, a forward triangular merger or an asset sale. Your license, permit or registration must be transferred to the new entity or the new entity must reapply. 17

18 Structure Implications The implications depend on the structure and the holder of the license, permit or registration. License, permit or registration issued with respect to a facility or establishment Ownership of the facility or establishment will change following a direct merger, a forward triangular merger on an asset sale. Does your license, permit or registration require consent or notification upon a change of ownership of the facility or establishment? Ownership of the facility or establishment does not change following a stock purchase or a reverse triangular merger. But the owner of the entity changes. Does your license, permit or registration require consent or notification upon a change of ownership of the entity that owns the facility or establishment? 18

19 Questions? 19