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PURCHASE PRICE ADJUSTMENTS, EARNOUTS AND OTHER PURCHASE PRICE PROVISIONS

Leigh Walton Bass, Berry & Sims PLC Nashville, Tennessee Kevin D. Kreb PricewaterhouseCoopers LLP Chicago, Illinois

December 2007

Table of Contents I.

II.

III.

IV.

FORMS OF CONSIDERATION ........................................................................................1 A. In General.................................................................................................................1 B. Cash Payment...........................................................................................................2 C. Payment by Stock ....................................................................................................2 1. Valuation Issues ..............................................................................................2 2. Restrictions on Resale .....................................................................................4 3. Shareholder Approval .....................................................................................4 4. Tax Considerations .........................................................................................5 D. Payment by Promissory Note...................................................................................6 1. Set-Off Rights .................................................................................................6 2. Tax Benefits ....................................................................................................6 3. Security for Payment of the Notes ..................................................................6 HOLDBACKS OF PURCHASE PRICE IN ESCROW ....................................................7 A. Overview ..................................................................................................................7 B. Benefits and Risks....................................................................................................7 C. Tax Treatment ..........................................................................................................7 PURCHASE PRICE ADJUSTMENTS ..............................................................................8 A. Overview ..................................................................................................................8 B. Construction of the Post-Closing Adjustment .........................................................9 C. Typical Mechanics .................................................................................................10 D. Drafting Considerations .........................................................................................11 1. Amount Paid at Closing ................................................................................11 2. Accounting Specifications ............................................................................12 a. “Preferable” versus “Acceptable” GAAP .........................................12 b. GAAP versus Consistency. ...............................................................13 c. Interim versus Year-End Reporting. .................................................13 d. Errors or Irregularities Discovered after Closing..............................14 e. Materiality. ........................................................................................14 f. Changes in Accounting Policies or Practices....................................15 g. Hindsight. ..........................................................................................17 h. Right to Offset...................................................................................17 3. Issues of Control ...........................................................................................18 4. Caps and Floors.............................................................................................19 5. Interplay Between the Post-Closing Adjustment and Indemnification.........20 6. Dispute Resolution: Designation of Independent Accountants ....................20 7. Mechanisms to Ensure Payment of the Adjustment Amount .......................21 EARNOUTS ........................................................................................................................22 A. Overview ................................................................................................................22 B. Some Risks Associated with the Use of Earnout Provisions .................................23 C. Drafting Issues .......................................................................................................23 1. Establishing the Earnout Benchmark; Types of Possible Benchmarks ........23 a. Financial Benchmarks .......................................................................24

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V.

b. Non-Financial Benchmarks ..............................................................24 2. The Formula for Calculating the Payment Amount ......................................25 3. The Length of the Earnout Period .................................................................26 4. Determination of Whether the Threshold Has Been Satisfied ......................26 a. Determination of the Earnout............................................................26 b. Accounting Issues .............................................................................27 (1) Consistency of Practice in Post-closing Accounting .............. 27 (2) Potential Exclusions in Calculating the Payout and Other Possible Adjustments ....................................................................... 28 (3) Payments Pursuant to Tax-sharing Agreements ..................... 29 (4) Accounting Treatment of the Contingent Consideration When Linked with Future Employment ..................................................... 30 (5) Other Issues to be Considered................................................. 32 5. Form of Payment of Earnout Obligation ......................................................32 a. Valuation Issues ................................................................................33 b. Securities Issues ................................................................................33 c. Related Tax Questions ......................................................................34 6. Operation of the Acquired Business During the Earnout Period ..................34 a. Operation by the Buyer Post-closing ................................................35 b. Operation by the Seller’s Management Team Post-closing ..............36 c. Protection Placed in the Acquisition Agreement ..............................36 7. Payment of Earnouts to Public Shareholders ................................................42 8. Shareholders Designated to Act for the Seller ..............................................42 9. Sale of the Target or the Buyer During the Earnout Period ..........................42 10. Integration of the Target into the Buyer’s Other Businesses ........................43 11. Averaging Periods of Strong Performance With Weak Performance ..........44 12. Dispute Resolution ........................................................................................44 13. Registration Issues for Earnout Rights .........................................................44 14. Special Industry Limitations .........................................................................45 CONCLUSION ...................................................................................................................47

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PURCHASE PRICE ADJUSTMENTS, EARNOUTS AND OTHER PURCHASE PRICE PROVISIONS by Leigh Walton Bass, Berry & Sims PLC Kevin D. Kreb PriceWaterhouseCoopers LLP

December 2007

This article considers the various ways in which payment of the purchase price in an acquisition can be structured. Variations can occur in the types of consideration payable at the closing, and many acquisitions provide for a post-closing adjustment or true-up. Further, the acquisition may include an earnout payable over a considerable period of time after the closing. Each of these purchase price provisions significantly impacts the leverages of the parties, the tax and accounting treatment of the transaction, the securities laws ramifications of the acquisition and the relationship of the buyer and seller after the closing.

I.

FORMS OF CONSIDERATION A.

In General The purchase price in an acquisition is typically paid by cash, stock of the acquiring entity, installment notes, the assumption of indebtedness or some combination thereof. Factors that affect the way the purchase price is paid include: • • • • • •

the buyer’s access to cash; the seller’s desire or willingness to invest in the buyer’s business; the seller’s desire for a tax-free transaction; the structure of the transaction as a stock purchase, merger or asset acquisition; the buyer’s desire to extend payments past closing, creating a source to satisfy indemnification claims; and the regulatory environment of the industry in which the target operates.

___________________ ©2007 Leigh Walton and Kevin D. Kreb. The views expressed are solely those of the authors and do not necessarily represent the views of their respective firms or the firms’ clients. The authors express their appreciation to Bryan Metcalf, Laura Brothers, Angela Humphreys and Krista Thornton of Bass, Berry & Sims PLC for their assistance with this article. The authors wish to thank William B. Payne of Dorsey & Whitney LLP for his 1

B.

Cash Payment Payment by cash is appealing in its simplicity and because (absent a holdback to secure post-closing claims) it will largely terminate the relationship between the buyer and the seller at the closing. A cash payment, however, will result in the seller realizing an immediate gain for tax purposes on the transaction. The Financial Accounting Standards Board (“FASB”) issued Statement of Financial Accounting Standards (“SFAS”) No. 141, Business Combinations, in 2001. SFAS No. 141 eliminated the pooling of interests method of accounting for transactions initiated after June 30, 2001. SFAS No. 141 requires all business combinations initiated after June 30, 2001 to be accounted for using the purchase method of accounting. See Jan R. Williams, 2004 Miller GAAP Guide, at 4.0. With the elimination of pooling of interests, cash-based transactions have increased, with cash being used as the sole consideration for the transaction or in combination with stock. Cash payment, when chosen, may be made by bank cashier’s check, certified check or wire transfer. The seller generally will insist on same day funds through a wire transfer.

C.

Payment by Stock In transactions in which equity securities are used as consideration, complex issues of valuation are presented. Further, the securities issued in the transaction must be registered under the Securities Act of 1933, as amended (the “Securities Act”), or an exemption from registration must be available. 1.

Valuation Issues Once the parties agree to use stock as consideration and a purchase price has been determined, the parties must value the stock to be transferred. They may agree that the stock is to be valued at the market price as of the moment of their agreement on the price, as of the date the acquisition agreement is signed, as of the closing date or at or during some other time period. If the stock is not registered under the Securities Act, or if the transfer of the stock is otherwise restricted, the seller may demand a discount from market price. If the buyer’s stock will be registered under the Securities Act, the Securities and Exchange Commission (“SEC”) will insist that the number of shares to be issued to the seller’s shareholders be clearly indicated in the proxy statement for the meeting at which the transaction is approved, or be ascertainable from external sources at that time. To avoid the obvious risk posed by using a single day’s stock price in the valuation, the parties typically choose to use an average market price of the buyer’s stock over some specified period of time, for example, the 10 trading days immediately preceding the third business day prior to the 2

closing. To protect against extreme fluctuations in price, the parties will may place an upper and lower limit – a collar – on the range within which the stock price may vary for the purposes of valuation. The collar may be defined by either share price or shares issuable in the transaction: for example, no greater than 1,500,000 shares to be issued but no fewer than 1,350,000; or a share price of no greater than $55, but no less than $45. Although it is most common for both components of the collar to be present in a transaction, occasionally deals are structured having only one component, the upper limit or the lower limit, depending upon the bargaining power and strategic positioning of the parties. In a stock purchase price formula using both a collar and an average closing price to value a listed security, the parties might agree to the following provision: “The aggregate number of shares of Buyer Common Stock issuable to Seller shall equal that number of whole shares of Buyer Common Stock equal to the quotient of (a) $100,000,000, divided by (b) the average of the closing prices of Buyer Common Stock as reported on the New York Stock Exchange for the 10 trading days ending on the date that is three Business Days prior to the Closing Date (the “Average Price”); provided, however, if the Average Price is less than $45, the calculation shall be made as if the Average Price were $45, and if the Average Price is greater than $55, the calculation shall be made as if the Average Price were $55.” The parties also may agree that there is a right to terminate the contract if the price extends beyond the collar limits. For example, the definitive agreement may provide that in the event the purchase price falls below the lower limit, the buyer may, but is not required to, provide additional consideration, in cash or stock, to bring the purchase price up to the lower limit. If the buyer is unwilling to provide such additional consideration, the seller may terminate the agreement if it is unwilling to accept the lower purchase price. In drafting provisions of this type, it is important to consider the notification requirements of the parties. Once it is determined that the lower limit of the collar will not be met, must the buyer first notify the seller whether it is willing to provide additional consideration to increase the purchase price to the lower limit, or must the seller notify the buyer whether it will terminate the agreement if the purchase price is not increased to the lower limit? Such provisions should be clearly addressed in order to avoid uncertainties and will be subject to negotiation.

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Finally, as is discussed later in this article, many acquisition agreements contemplate a post-closing adjustment that can result in the buyer paying additional consideration, or the seller in effect refunding previously paid consideration to the buyer. If a portion of the consideration involved in the post-closing adjustment is stock, the mechanism for valuing the stock delivered in the adjustment should be specified. 2.

Restrictions on Resale Securities issued in an acquisition (like any other type of securities issuance) must be registered under the Securities Act, or an exemption from registration must be available. Typically Form S-4 is used for registration (although the use of Form S-1 or S-3 may be mandated if no shareholder approval is required or if a majority shareholder of the seller has agreed to support the transaction, thus assuring shareholder approval). If the seller agrees to accept unregistered securities, a private placement exemption through Section 4(2) or Regulation D under the Securities Act is the typical route to securities laws compliance. When the seller’s shareholders receive stock that is issued under an exemption, they must hold the stock until it can be sold publicly under Rule 144 (typically a minimum one year holding period), another exemption from registration is available or the stock is registered. Even if received in a registered transaction, securities held by affiliates of a seller prior to the acquisition will, pursuant to Rule 145, be subject to the resale limitations of Rule 144 (other than the holding period limitations). The seller may demand registration rights that obligate the buyer to register the seller’s resale of the stock. This provision may be constructed as a “demand registration right,” whereby the seller may require the buyer to register the securities upon demand, or a “piggyback registration right,” whereby the securities are registered as an add-on to another registration statement being filed by the buyer. Faced with the prospective expense of filing a registration statement for the stock, the buyer may resist this type of a provision or may seek to limit it. The buyer may limit the number of registrations that will be effected, may place time limits on the rights or may require that a minimum number of shares from the seller’s shareholders be available for sale. The seller may insist that no other registration rights be granted that are on terms more favorable than those granted to the seller’s shareholders and that the buyer pay all expenses (to the extent allowable under NASD regulations) of the registration.

3.

Shareholder Approval Approval of the buyer’s shareholders may be required for the issuance of the buyer’s stock as consideration for the acquisition. Approval of the buyer’s shareholders is necessary when the stock issued in the transaction is in excess of the buyer’s authorized shares or, in some instances, when 4

the buyer’s shares are listed on the New York Stock Exchange (“NYSE”), the American Stock Exchange (“AMEX”) or the Nasdaq National Market (“Nasdaq”). The requirements for shareholder approval vary, but generally approval is necessary for transactions in which the buyer is issuing (or in the case of AMEX and Nasdaq, has the potential to issue) 20% or more of its outstanding common stock, or if the issuance will for some other reason impact control of the buyer. The NYSE, AMEX and Nasdaq each have specific rules in effect in this regard. Of course, state law also may require that the buyer’s shareholders approve the transaction. For example, under Section 6.21(f) of the Model Business Corporation Act, action by the shareholders of the surviving corporation in a merger is required if, among other conditions, the voting power of shares that are issued and issuable as a result of the merger will comprise more than 20% of the voting power of the shares of the corporation that were outstanding immediately before the transaction. It is important to monitor a fluctuating purchase price involving the issuance of stock to determine if approval of the buyer’s shareholders is required. Upon execution of a definitive agreement including a purchase price based upon a fluctuating per share price, it may be anticipated that the price will remain high enough that the number of shares of buyer stock to be issued at closing will not reach the threshold requiring shareholder approval. However, if the buyer’s stock price drops, assuming the number of shares to be issued at closing is not first capped by the lower limit of the collar, the number of shares of buyer stock to be issued at closing could reach the threshold requiring shareholder approval. If obtaining shareholder approval is a concern, one alternative may be to pay the balance of the purchase price in cash. 4.

Tax Considerations In order to minimize the tax consequences of a transaction, an all stock transaction typically is structured as a reverse triangular merger. That is, the acquiring entity will form a merger subsidiary that merges into the target. If a combination of cash and stock is used, a reverse triangular merger typically will be tax-free if the stock constitutes at least 80% of the aggregate consideration for the transaction. Because the value of the stock is determined on the closing date, parties intending their transactions to be tax-free under these provisions should provide some adjustment mechanism in the contract if market fluctuations cause the value of the stock in the deal to dip below 80% of the aggregate consideration. If the stock involved is less than 80% of the aggregate consideration, a forward triangular merger often will afford partially tax-free treatment. That is, the acquiring entity will set up a merger subsidiary and the target will merge into the merger subsidiary. If the stock involved falls below 40% of the aggregate consideration, the stock component of the transaction generally

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will be taxable unless a complex structure is used. In determining this 40% threshold, however, Treasury Regulations require the stock to be valued on the date of signing the definitive contract if the contract provides for “fixed consideration.” In any reorganization, shareholders will pay tax on the lesser of their gain realized and the cash received; thus, it may not be worthwhile to structure a tax-free transaction with respect to the stock being issued if cash comprises a large portion of the deal consideration. D.

Payment by Promissory Note Use of promissory notes as consideration can be attractive for several reasons. The buyer may wish to pay by note if it is cash-constrained or for some other reason wishes to lower its original cash outlay. By retaining a portion of the purchase price, the buyer retains leverage with the seller for payment of indemnification claims. Payment by note may also be beneficial to the seller for tax reasons. 1.

Set-Off Rights The buyer may desire to use non-negotiable installment notes as part of the consideration to create a source against which indemnification claims can be offset. Although the right of offset is automatic under most state laws, the buyer’s counsel is well advised to clearly establish the right in the promissory note.

2.

Tax Benefits If payment is made by note, the seller will generally report any gain from the sale on the installment method under §453 of the Internal Revenue Code of 1986, as amended. Reporting on the installment method permits the seller to defer a portion of its tax liability until it receives installment payments on the note. The note cannot be secured by cash or certain cash equivalents. Furthermore, the seller must make interest payments to the government on the deferred tax liability on installment obligations generally to the extent they exceed $5,000,000 in the year they arose.

3.

Security for Payment of the Notes The seller may wish to negotiate security for payment of the note accepted in the acquisition. The seller may demand a security interest in the buyer’s assets, a letter of credit or a guarantee by a third party. The seller also may accept a pledge of the target’s stock acquired by buyer. If this last technique is used, the seller should negotiate protections to ensure that the business, if returned in the event of default, has not been stripped of all of its value by the buyer. Provisions to protect against such a possibility include stipulating a minimum level of working capital to be 6

maintained until the note is paid, prohibiting the buyer from engaging in the target’s line of business except through the target, restrictions on the sale of certain assets, restrictions on dividends from the target to the buyer and requiring the business of the target to be maintained in a separate entity.

II.

HOLDBACKS OF PURCHASE PRICE IN ESCROW A.

Overview The buyer may demand a readily accessible pool of money to cover post-closing indemnification claims and other specified contingencies. One common way to provide such a pool is an escrow arrangement providing that a part of the purchase price be placed in escrow, usually with an independent escrow agent, for a specified period of time after the closing. With the elimination of pooling transactions, restrictions regarding the types of contingencies and number of shares (previously, no more than 10%) with respect to which an escrow may be established have been eliminated.

B.

Benefits and Risks The escrow fund established will provide greater ease of recovery for the buyer in the event of indemnification claims, alleviating concerns about the seller’s ongoing solvency and potential problems in locating the seller’s assets for executing judgments. Buyers should be aware that the seller will likely propose that the escrow fund be the sole remedy for the buyer’s post-closing claims. Sellers should realize that the existence of the escrow fund significantly changes the leverages for the post-closing resolution of disputes.

C.

Tax Treatment Funds paid into escrow and later paid to the seller generally will be taxed under the installment method described in I.D.2. above. In most escrow situations, the tax on payments received from escrow will be based on the presumption that all of the escrow amount will be paid to the Seller. Adjustments are made in the subsequent year if the seller receives less than the full amount.

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III.

PURCHASE PRICE ADJUSTMENTS A.

Overview Purchase price adjustments (as contrasted to earnouts, discussed later) are used when there is a fundamental agreement between the parties as to the value of the target, but when there is a period of time between the signing and closing of the acquisition. A target’s value is usually determined on the basis of the most recent financial information available at the time of pricing. Generally, the purpose of a purchase price adjustment provision is to reflect changes in certain values of the target between the signing of the acquisition agreement and the closing date. This period can be significant for a variety of reasons, including: •

a Hart-Scott-Rodino filing or other regulatory approvals are required;

•

third party consents must be gathered;

•

the buyer requires time to finance the transaction;

•

securities are to be registered; and

•

shareholders’ approval must be sought.

The length of the pre-closing period varies, but is often one to three months. Even in circumstances in which none of these factors is present, there is typically a gap in time between the latest available financial statements and the closing date, which may cause the parties to consider a post-closing adjustment. Further, in seasonal businesses, there are often large fluctuations in working capital balances that lead to the use of a post-closing adjustment. These circumstances provide the primary rationale for the use of a post-closing adjustment: it bridges the gap between the financial condition of the seller at the time of signing the definitive purchase agreement and its condition as of the closing date. Thus the buyer receives the benefit of its bargain by receiving the agreed upon balance sheet (or an adjustment in the purchase price). An additional rationale for use of a post-closing adjustment is that it effectively allocates the economic risks and profits of continued operations during the preclosing period (at least in transactions other than asset purchases). During the pre-closing period, the seller typically manages the business being sold. The post-closing adjustment usually (but not always) allocates to the seller the economic risks and profits of continued operation of the target during this period. If a purchase price adjustment is not used, the earnings generated by the target between the signing and the closing would accrue to the benefit of the buyer, since most acquisition agreements prohibit the seller from making distributions during this period. Conversely, losses would be borne by the buyer absent a post-closing adjustment. A post-closing adjustment may also be structured to

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protect the buyer against potential seller abuses, such as selling inventory without replacement, accelerating the collection of accounts receivable, stretching payables and other manipulative practices. A post-closing adjustment is not a substitute for a “material adverse change” closing condition, which allows the buyer to refuse to close if the target’s financial results have materially deteriorated. The adjustment only becomes operative if in fact the transaction closes; it allows the parties to fine tune the purchase price after the transaction has been consummated. B.

Construction of the Post-Closing Adjustment A post-closing adjustment can be constructed in a variety of ways. The structure of the post-closing adjustment often varies depending on the theory under which the entire transaction is valued. These theories include applying a multiple of earnings or cash flows, measuring the fair value of assets, estimating the value based on amounts paid in other comparable transactions and calculating a value or adjusting the value based on information regarding potential synergies with the buyer’s existing businesses. Regardless of the theory used, the buyer will typically arrive at a purchase price based, in large measure, on information in the latest available financial statements and the earnings trend reflected therein. Thus a properly constructed post-closing adjustment assures that the business the buyer pays for is the business it ultimately receives at the closing. And regardless of the theory under which the business of the target is valued, cash is generally paid for on a dollar-for-dollar basis (or excluded from the acquisition in an asset deal and left with the seller). Thus an adjustment that takes into account the target’s current assets and its current liabilities at closing assures that the closing working capital is accounted for. Common post-closing adjustments compare working capital, net asset value or net worth variances between the most recent financial statements available at signing and the closing date financial statements. The Market Trends Subcommittee of the American Bar Association’s Negotiated Acquisitions Committee studies the prevalence of selected provisions in publicly available acquisition agreements. The Subcommittee’s survey of purchase price adjustments in acquisitions of private companies by public corporations analyzed 143 publicly filed purchase agreements entered into in 2006 with a transaction value range between $25-500 million. W. Chu and L. Glasgow, “2007 Private Target M&A Deal Points Study” (the “Survey”). The Survey found that 69% of surveyed transactions included purchase price adjustments. The most common purchase price adjustment identified in the surveyed transactions was the net working capital adjustment, which is intended to reflect the change in the current assets and current liabilities from the signing date to the closing date. Working capital adjustments were used in more than 69% of the transactions reviewed. Other than working capital, the purchase price adjustment mechanism identified in the Survey as most heavily utilized was change in net debt. Many other

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matrices can be compared, however, such as net book value, tax liabilities, shareholders’ equity, cash expenditures, net worth, capital expenditures and number of customers. Commonly, post-closing adjustment clauses call for a dollar-for-dollar adjustment to reflect changes in the net working capital, net debt, net asset value or other measured financial data point between the pre-closing balance sheet and the closing date balance sheet. C.

Typical Mechanics The essential concept of most post-closing adjustments is to compare a specified financial measure taken from the pre-execution financial statements (often referred to as a “reference balance sheet”) of the target to the same measure in the financial statements of the target prepared as of the closing date. The comparison can be made between balances in the reference balance sheet and the closing date balance sheet or the comparison can be made between a specified amount and the closing date balance sheet amount. In a transaction with a post-closing adjustment, the closing is often scheduled for a month-end (or, even better, a fiscal quarter-end) to avoid difficult cut-off issues. The closing date financials are then prepared as of this date so that the comparison to the reference balance sheet amount can be made. If a period end closing is not feasible, special procedures should be agreed to that deal with the cut-off issues. A critical issue relating to the mechanics of the post-closing adjustment is the decision as to which party is charged with the preparation of the closing date financial statements. The buyer and its accountants often contend that they should prepare the closing date financial statements, since the buyer has assumed control of the business. The seller may argue that it should prepare the closing date financial statements since consistency with the pre-closing financials is of paramount importance. According to the Survey, in 79% of the agreements analyzed, the buyer was assigned the task of producing the post closing calculation. In 13% of the agreements, the seller was responsible and in 7%, the parties relied on financials prepared by an independent accounting firm. Within a specified time period after the closing, usually between 30 and 90 days, the responsible party delivers the closing date financial statements (often only a balance sheet) to the other party, along with the preparer’s initial determination of the purchase price adjustment amount. Most disputes arising out of acquisitions and divestitures that involve accounting and financial reporting issues result from the buyer’s preparation or review of the closing date balance sheet and its divergent presentation of the way the seller accounted for (or did not account for) items in the balance sheet. The buyer has increased opportunity after the closing to understand these issues because it now controls and operates the company it has purchased, thus allowing it access to information that it may not have had before closing. The buyer can examine the financial statements in more detail and use the knowledge of company personnel 10

who are familiar with the company’s accounting systems, practices and procedures. In the presentation of a closing date balance sheet it prepares or by objecting to certain amounts or balances in the seller’s closing date balance sheet, the buyer is, in effect, proposing adjustments that, if proper, would reduce the purchase price. Notice of Objection. Under most agreements, the party not responsible for preparing the closing date balance sheet has a specified period – often 30 to 60 days – during which it can object to items in the closing date balance sheet and propose an alternative purchase price adjustment. If objectionable items are discovered, the reviewing party generally must file a notice of objection within this time. For example, a contract may state, “the Seller may dispute any amounts reflected on the closing date balance sheet or the net asset value reflected thereon, provided that the Seller shall notify Buyer in writing of each disputed item, and specify the amount thereof in dispute, within 30 days of receipt of the Buyer’s proposed closing date balance sheet.” Some agreements set forth the required form and scope of response and mandate that the notice of objection be specific, whereas some contracts have more general terms. Specific notices usually must identify and explain the item in dispute and require the objecting party to state the individual dollar amounts of all of its objections at that time. Some general clauses require only that the notice identify the objection, without disclosing details until a later date. Parties often dispute whether the objecting party can submit new items after the initial objection and whether it can revise items included in the initial notice, and to what extent. In situations in which the contract is ambiguous, an independent trier of fact must decide the issue, reducing the predictability of outcome on this issue. Preparers of closing date balance sheets have incentives to carefully define the parameters for the notice of objection, allow a short time period between the presentation of the closing date balance sheet and the required objection cut-off date, mandate complete and specific disclosure of the disputed items by the deadline, and allow little flexibility for changing the basic theory or amount of the buyer’s position. Parties who receive and review the closing date balance sheet generally prefer the opposite. D.

Drafting Considerations 1.

Amount Paid at Closing In many transactions, the buyer pays the fixed amount of the purchase price at closing, not reflecting any purchase price adjustment. Another possibility is for the buyer to pay at closing the fixed amount plus or minus an estimate of the purchase price adjustment, as determined by the seller employing the post-closing adjustment procedure to pre-closing financials that are more current than those available at signing. In either 11

case, one party will have to settle with the other when the closing date financial statements are finalized and the purchase price adjustment is calculated. As discussed below, the mechanics of the payment at closing includes a consideration of whether a portion of the purchase price should be paid into escrow to ensure the expedited payment of the adjustment amount. 2.

Accounting Specifications The parties should be wary of merely stipulating that the adjustment amount will be determined in accordance with generally accepted accounting principles (“GAAP”) consistently applied with past practice. GAAP embraces a wide range of acceptable accounting practices. GAAP is also constantly in flux, with FASB bulletins presenting new guidelines on an ongoing basis. Described below are many of the accounting issues that are implicated in drafting a quality post-closing adjustment. a.

“Preferable” versus “Acceptable” GAAP Most post-closing adjustments contain a clause requiring that the closing date balance sheet conform to GAAP consistently applied over a relevant period that predates the sale. As noted above, parties involved in transactions often mistakenly believe that GAAP clearly defines one right number, and that little or no disagreement can arise. Arguments often ensue as to whether the method the seller used is more appropriate than the method the buyer prefers. Such disputes may arise in at least two situations. First, the buyer may propose an adjustment to the closing date balance sheet based on an accounting method different from that applied by the seller. Second, the seller may have prepared the financial statements used in negotiating and executing the purchase agreement according to one accounting method and subsequently may have switched, often subtly, to a method more favorable to the seller before the closing. This would arguably result in a closing date balance sheet prepared using a different accounting method than the historical information provided to the buyer, although both may be acceptable methods under GAAP. Obviously, these differences have the potential to significantly affect the final purchase price. In these scenarios, each party may make a reasonable argument for its case. The consistent use of an acceptable accounting method, however, usually will prevail over a claim to change to a preferable accounting method. If the financial statements’ preparer has consistently applied an accounting principle that is in accordance with GAAP, an accountant would not normally take exception. Accountants know that GAAP provides little, if any, guidance

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regarding more acceptable or preferable methods in the application of GAAP. Much uncertainty can be removed by specifying which among the various acceptable GAAP approaches is to be utilized. b.

GAAP versus Consistency. Another common issue involves the concepts of GAAP and consistency. Conflicts often arise regarding whether GAAP or consistency takes precedence in applying an accounting method to a particular transaction or a particular account balance. When GAAP and consistency requirements appear to conflict, experts usually designate GAAP as the higher and controlling standard. Though important, consistency normally is a secondary consideration to the use of GAAP. For example, a seller may have used consistent, non-GAAP accounting. In that case, absent other pertinent, contractual provisions or intent of the parties, appropriate adjustments should be made to conform the financial statements with GAAP if GAAP is the agreed upon standard. In some instances, an agreement may specify consistency with respect to certain items. In such a case, consistency may prevail over GAAP, especially if the agreement clearly specifies a nonGAAP presentation of such items. In addition, disputes may arise over the application of the term consistent. For example, consider the following language: the company “consistently provides an allowance for bad debts,” versus “provides an allowance using a consistent calculation methodology,” versus “provides a consistent amount in the allowance.” Careful drafting is thus required to capture the parties’ intent.

c.

Interim versus Year-End Reporting. The acquisition agreement may mandate consistency between the pre-closing financial statements used in negotiations and the final financial statements at closing. Because most companies apply more rigorous and in-depth closing procedures at year-end, questions may arise regarding which procedures the preparer of the closing date balance sheet should apply. The interpretation of such an issue may differ depending on whether the closing date balance sheet or the financial statements used in negotiations were monthor period-end, but not regular reporting year-end. For example, if the financial statements used in negotiations were for an interim month-end, and the agreement calls for consistently applied accounting principles, on what basis should the closing date balance sheet be prepared if the closing date falls at year-end? Conversely, if the financial statements used in negotiations were 13

the last year’s audited financial statements and the closing date is an interim date, on what basis should the closing date balance sheet be prepared? If these timing issues are present in the acquisition, the drafter should specify the degree of rigor to be used in the preparation of the financial statements forming the basis of the post-closing adjustment. d.

Errors or Irregularities Discovered after Closing Sometimes disputes arise as a result of information that becomes available after the closing date, such as the discovery of previously unknown errors, irregularities or material departures from GAAP. Because parties usually do not anticipate errors in the financial statements, most agreements do not address the treatment of such issues. The handling of this situation depends on the circumstances of the error and its discovery. For example, if the financial statements used in the negotiation process contained the error, but the seller corrected it to its benefit in the closing date balance sheet, the buyer will object by arguing that the seller should not benefit from its own errors. If the buyer, however, detects an error detrimental to it in the closing date balance sheet and this error was not present in the financial statements used in the negotiations, the buyer generally should receive a purchase price adjustment. The circumstances surrounding the error – when it occurred, when it became known, when the seller corrected it – will influence how it should be treated in the purchase price adjustment, or whether it should be treated as a matter more appropriately dealt with as a indemnification matter.

e.

Materiality. Interpreting and applying the accounting concept of materiality to individual items, transactions, balance sheet or income statement line items, or the financial statements taken as a whole can result in dispute. In purchase price disputes, the buyer usually will claim that all purchase price adjustments, if deemed proper, should be awarded to it regardless of materiality, unless the contract contains a threshold, basket or other similar clause. Agreements occasionally contain clauses indicating that postclosing adjustments will be made only if they exceed a specified dollar amount in the aggregate – a materiality threshold. The contract clause may provide that once the adjustments exceed such levels, the benefiting party receives the entire amount; or the clause may read that such party will receive only the amount by which the adjustments exceed the specified level (a basket or deductible limitation). A materiality level may also be implied

14

through contract clauses. For instance, a contract may read that no post-closing adjustment is necessary if the net asset value changes less than 5% from the net asset value in the financial statements used in the negotiations process. This implies that the parties agreed upon a materiality level of 5% of the net asset value. In many true-up formulations, however, the purchase price is adjusted upward or downward based on the precise result of the postclosing adjustment. Accountants have traditionally evaluated materiality with respect to the financial statements taken as a whole. Occasionally, however, a purchase agreement indicates that materiality applies on a line-item basis, thereby lowering the materiality threshold. If the agreement does not address materiality in any context, either party may have a difficult time arguing that a materiality threshold should apply to proposed purchase price adjustments. The seller may argue that it represented that the financial statements would be prepared in accordance with GAAP, which contains the concept of materiality. Therefore, to the extent that the buyer proposes adjustments that are immaterial, either individually or in the aggregate, the seller may successfully argue that it did not violate the representations made in the purchase agreement. In contrast, the buyer will argue that material for financial statements of a going concern business means something different from material for balance sheets closing a purchase transaction. For the going concern, an item can be in error, but the same error occurring year after year will not significantly affect recurring operating income numbers and computations made on them. For a buyer, an upward change in purchase price of $250,000, for example, may be worth arguing about even though the amount would not be material to the financials as a whole. Carefully drawn purchase agreements will address the materiality standards to be used in balance sheets closing a purchase transaction. f.

Changes in Accounting Policies or Practices. Buyers often will argue that sellers have changed their accounting policies or practices in preparing the closing financial statements, and that this change violates representations or covenants in the agreement. The following list includes common arguments with respect to balance sheet allowance or valuation accounts: •

inventory obsolescence or excess inventory;

•

doubtful accounts receivable;

15

•

returns and allowances; or

•

estimated liability amounts.

The process of deriving the balances in these accounts involve judgments that the seller may not closely review and adjust during interim periods. Examples of common disputes include a downward adjustment to an accrued liability by the seller in preparing the closing date balance sheet, or reducing a general portion of the allowance for doubtful accounts. Again, these disputes raise consistency issues. The seller may indicate that it reviews such accounts only periodically and at year-end, so that presenting a balance sheet in accordance with GAAP required the adjustment. The buyer may contend that the seller did not consistently apply the accounting practices because the seller did not adjust the accruals downward when it prepared the pre-closing financial statements used in negotiations. These issues arise so often that parties should anticipate them in drafting contracts. The following chart indicates the most common sources of controversy for major balance sheet items. BALANCE SHEET ITEMS AND ISSUES OFTEN INVOLVED IN DISPUTES Accounts Receivable Allowances • • •

Adequacy of Allowances Consistency of Allowances (methodology and amount) Hindsight Issues

Contingencies • • •

Inventory • • • •

Allowances for Obsolescence Excess Inventory Interim versus Year-End Count Valuation Procedures Application of Standard Costs

and

Revenue Recognition •

Accounts Payable • • •

•

Complete Recording Cut-Off Procedures and Consistency Materiality

• •

Accruals • • •

Management Judgment Issues Corporate Provisions Statement of Financial Accounting Standards No. 5 – Accounting for Contingencies

Interim versus Year-End Recording Procedures Materiality, Consistency Recognition and Treatment of Interim “Smoothing” of Accruals for Annual Expenditures

Deliveries under Long-Term Production Contracts Recording of Revenue under Government, Construction or Other Long-Term Contracts Recording of Revenue and Amortization of Cost Relating to Intangibles Deferral and Subsequent Recognition of Income

Capitalization Issues • • •

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Capitalization of Development Costs Deferral and Subsequent Recognition of Income Capitalization of Tangible and Intangible Assets: Amortization Periods Consistency

g.

Hindsight. Often, a buyer may contend that allowances reflected in the closing date balance sheet (such as those for bad debts) are inadequate and were therefore not stated in accordance with GAAP. For example, a buyer may argue that a seller’s $100,000 bad debt allowance was inadequate because the buyer has learned post-closing that $200,000 of accounts receivable are uncollectible. The buyer may have a valid argument if it can prove that information justifying a $200,000 allowance was available to the seller when it prepared and finalized the closing date balance sheet. For instance, the auditors may have identified this exposure and recommended an allowance of $200,000. If the buyer does not have reasonable evidentiary indications that information or knowledge existed prior to the preparation of the closing date balance sheet, it will likely rely on hindsight. Generally, the buyer’s use of hindsight beyond the issuance date of the financial statements is not persuasive, especially if the seller’s method to calculate the amount prospectively conforms with GAAP and the seller’s historical practices.

h.

Right to Offset. Though not written into purchase agreements, sellers often claim a right to offset as a defense against paying purchase price adjustments proposed by a buyer that has objected to balances or items in a closing date balance sheet prepared by the seller. Buyers typically will review the closing date balance sheet and identify areas or accounts that contain, in their view, overstated assets or understated liabilities. Acceptance of these adjustments would result in purchase price adjustments favorable to the buyer. Because buyers seek to reduce the purchase price, they may identify only those items favorable to them, even though they may be aware of contractually required adjustments that would be unfavorable to them. For example, in its post-closing review of a closing date balance sheet prepared by a seller, a buyer might note that the vacation liability is under-accrued by $300,000 and that the worker’s compensation liability is over-accrued by $300,000. The buyer may ignore the over-accrual and claim $300,000 in a purchase price adjustment relating to the under-accrual 17

associated with the vacation liability. This may lead the seller to claim the right to offset an under-accrual by a corresponding over-accrual. The seller may argue that this right to offset must exist to prevent the buyer from selectively objecting to the closing date balance sheet. In some instances, the seller may have been aware of both the over-accrual and under-accrual, but chose not to record the offsetting adjustment. The seller, additionally, may claim that the financial statements, taken as a whole, accord with GAAP, because the items offset each other. Because agreements seldom provide for rights to offset, it may be difficult for the trier of fact to ascertain the intent of the parties and decide whether to adjust the purchase price in the event the parties do not settle the issue. Careful drafting can reduce uncertainty with regard to offsets. 3.

Issues of Control Issues of control arise in situations in which the party in control of the operations can potentially manipulate accounting and financial reporting to its benefit through the post-closing adjustment process. For example, in a management buyout, the buyer in effect runs the company during the period between signing the agreement and the post-closing adjustment. This time period presents an opportunity (whether exercised consciously or subconsciously) for management to manipulate the accounting and financial reporting to benefit its members through the post-closing adjustment. Alternatively, when a seller operates the company during the stub period between the date of signing the agreement and the closing date, it may take advantage of its control and clean up the balance sheet to the buyer’s detriment. Buyers recognize this potential and therefore require several provisions in the form of representations, warranties or covenants in the contract to prevent the sellers from doing so. Buyers are cautioned not to place undue reliance on general covenants, such as the requirement that the seller operate the target in the ordinary course of business between the signing and the closing. First, this provision at best protects against manipulation after the signing (and not before). Second, proving that a practice does not comport with the seller’s ordinary course of business is difficult. If a particular form of manipulation is feared, carefully crafted restrictive covenants should be considered. Further, these carefully crafted representations should

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be bolstered with a post-closing adjustment that reflects changes occurring in the stub period, regardless whether they occur in the ordinary course or are the result of manipulation. Conversely, it should be noted that the post-closing adjustment is not a substitute for thoughtful representations and warranties. If the seller generates or preserves cash by cutting back on discretionary expenses, the result will be an increase in cash but not necessarily an offsetting increase in accounts payable. Thus for example, the seller might decide to cut back on advertising expenses resulting in a short-term increase in cash but no change in accounts payable. Under a working capital post-closing adjustment, the purchase price will increase even though the business is arguably worse off and in fact may suffer lower revenues in the future because of the failure to advertise. Thus, the manipulation is rewarded by the post-closing adjustment. Only a representation can provide the buyer with a remedy in this situation. See M. Tresnowski, “Working Capital Purchase Price Adjustments – How to Avoid Getting Burned,” The M&A Lawyer, Oct. 2004. Issues of control are almost inevitably present when the target is a division or subsidiary of the seller. In this context, working capital is managed centrally and thus not part of a “closed system.” Thus the opportunity for significant movements in working capital is present and should be anticipated by careful drafting. Similarly, in this situation, the buyer should guard against disappearing intercompany assets, such as deferred tax assets. 4.

Caps and Floors Although relatively uncommon, the purchase price adjustment provision may contain a provision for a “cap,” which is an upper limit on the adjustment amount that may be paid out by the buyer and a “floor” that limits the adjustment amount that may be refunded by the seller. Some risks are inherent in employing caps and floors. Parties should consider whether the use of a cap or a floor will grossly disadvantage one party if no other contractual remedies are provided. Employment of a cap or a floor may give rise to a risk that the party thus constrained will turn instead to contractual remedies in “unwind” provisions, deferred payment provisions and indemnity provisions.

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5.

Interplay Between the Post-Closing Adjustment and Indemnification Carefully crafted acquisition agreements will explicitly deal with the impact that the post-closing adjustment has on the indemnification provisions of the agreement. Sellers should insist that buyers not be allowed to “double dip” by a recovery first under the post-closing adjustment and then again as indemnification. For example, if an error in the pre-closing date balance sheet line items of inventory or accounts receivable causes a net working capital post-closing adjustment, the seller should stipulate that this error should not also give rise to indemnification for a breach of the representation that these line items are stated in accordance with GAAP. The buyer should be allowed to recover the damage only once. The buyer may respond, however, that its loss from the inaccurate inventory or accounts receivable line item is greater that the mere impact on the post-closing adjustment, and insist upon collection the full loss, offset by the amount of the post-closing adjustment. 6.

Dispute Resolution: Designation of Independent Accountants Because it is not uncommon for disagreements to arise in the determination of the post-closing adjustment, the parties often agree upon a dispute resolution mechanism in the acquisition agreement rather than forcing the parties to resort to litigation. A common provision for dispute resolution is to designate a firm of independent accountants to review the closing date financial statements. These accountants may act as auditors (who review the financial data and provide an audit of the information) or as arbitrators (who make a determination as to the proper resolution of the disputes that have arisen regarding the closing date financials). If the identity of the independent accountants is not stipulated by the parties, the parties should specify the procedure for their selection. The lawyers drafting the provision should state whether the independent accountants are to examine only the disputed line items, or whether they may review the entire closing financial statements. The Model Stock Purchase Agreement with Commentary, published in 1995 by the Committee on Negotiated Acquisitions, Section of Business Law of the American Bar Association (the “Committee”), provides for submission only of the “issues in dispute” to the independent accountants, effectively

20

eliminating this uncertainty. Model Stock Purchase Agreement, § 2.6(a). Likewise, the Model Asset Purchase Agreement with Commentary, published in 2001 by the Committee, provides only for the submission of “issues remaining in dispute” after negotiations between the parties to the independent accountants. Model Asset Purchase Agreement, § 2.9(d). To avoid the cost of third-party accountants’ fees on smaller issues, the parties may set financial limits on the issues that may be submitted to the third-party accountants for review. They may provide that they will split the amount in dispute or ignore those smaller issues. Other issues to be considered in drafting the dispute resolution provision include: •

Should the arbitrator be required to have industry experience?

•

Will the arbitration process include discovery and written submissions:?

•

Will the arbitration be final and binding?

•

What time frame allowing for negotiations should precede the arbitration and how long should the arbitration process take?

•

Will interest accrue during the arbitration period?

•

What rules should apply to the arbitration process?

In any event the dispute resolution provisions should clearly designate the party who is responsible for the payment of the expenses of the dispute resolution. Typically the costs are split, or the non-prevailing party is held responsible. 7.

Mechanisms to Ensure Payment of the Adjustment Amount The parties may place part of the purchase price in escrow to ensure expedited payment of an adjustment amount. If a promissory note has been used to finance the sale, the parties may agree to increase or decrease, as appropriate, the payments under the note to reflect the results of the purchase price adjustment.

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IV.

EARNOUTS A.

Overview An earnout provision makes a portion of the purchase price contingent upon the acquired company reaching certain milestones during a specified period after the closing. The benchmarks used are typically financial, such as net revenues, net income, a cash flow measure or earnings per share. Non-financial benchmarks are appropriate in some circumstances. When the benchmark being measured reaches a negotiated threshold, an earnout payment is triggered. Earnouts (as opposed to typical post-closing purchase price adjustments) are most often utilized when the buyer and seller cannot agree on the value of the target. They are particularly useful in dynamic or volatile industries, or when the buyer’s projections for the target are fundamentally more pessimistic than those of the seller. An earnout arrangement rewards the seller if its projections are accurate, while protecting the buyer from overpaying if they are not. Buyers can use earnouts as a source from which they can offset indemnification claims. An earnout also may be attractive to a buyer desiring to bridge a financing gap. In situations in which the seller’s management will continue to run the target after the closing, an earnout arrangement may be used by the buyer to motivate management with performance incentives. If the earnout is used in this context, however, it may be characterized as compensation rather than payment for the business and, as discussed later in this article, there may be accounting implications for the buyer. This use of earnouts as a performance incentive could have unanticipated impacts in some areas. In particular, such incentives in the healthcare industry may raise significant regulatory concerns, as addressed later in this article. Earnouts are used in transactions large and small, involving acquisitions of private and, to a lesser extent, public companies. While less common, recent large public transactions have utilized earnouts. For example, the $2.6 billion acquisition by eBay Inc. of Skype Technologies SA, consummated in 2005, contained a complex earnout keyed off gross profit and net revenue targets, as well as benchmarks based on the number of users of the target’s technology. A review of the terms of this publicly available earnout agreement provides meaningful direction on the degree of specificity required in a sophisticated earnout arrangement. The previously-referenced Survey of 143 publicly filed purchase agreements involving private targets found that approximately 19% of

22

analyzed transactions included earnout provisions. Earnouts are most likely to be used when the target is private since market valuations assist in the valuation of the public target. If an earnout is used to compensate public company shareholders, logistical problems will ensue unless careful planning is employed. To facilitate payments, a paying agent should be employed to disburse payments when received by the buyer. As discussed below under “Registration Issues for Earnout Rights” and to minimize logistical issues, typically earnout rights are structured so as to be nontransferable (except under the laws of descent and distribution). B.

Some Risks Associated with the Use of Earnout Provisions If inappropriately drafted, an earnout can hinder a purchaser’s efforts to reorient or restructure the target, misappropriate future value to the wrong party or motivate the earnout recipients to focus on short-term goals that will maximize the earnout. Further, earnouts have great potential for engendering later disputes about the contingent payment. Disputes often arise when the seller suspects that the buyer is using different accounting techniques during the post-closing period to diminish the payout, or is artificially depressing or diverting revenues or earnings during the earnout period. The seller also fears that the buyer simply will not run the business successfully. Buyers face the risk that the payout formula will overcompensate the seller in some unforeseen way, due to other acquisitions or a change in the buyer’s post-acquisition business plan that essentially has nothing to do with the target. These fears, many legitimate, should cause counsel for the buyer and the seller to carefully craft the earnout provisions. The Model Asset Purchase Agreement with Commentary contains as an attachment a separate earnout agreement that provides drafting guidance. Since each earnout is unique, reliance on forms must be measured.

C.

Drafting Issues 1.

Establishing the Earnout Benchmark; Types of Possible Benchmarks Earnout benchmarks may be financial or non-financial in nature, or both. In choosing milestones, and in drafting the acquisition agreement, the parties should identify and deal with any post-closing contingencies that could potentially alter the target’s ability to meet the earnout benchmarks.

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a.

Financial Benchmarks Common financial benchmarks include the target’s net revenue; net income; cash flow; earnings before interest and taxes or “EBIT”; earnings before interest, taxes, depreciation and amortization or “EBITDA”; earnings per share; and net equity benchmarks. Revenue-based benchmarks are often thought to be more attractive to sellers, since they will not be affected by operating expenses or acquisitions. The buyer’s post-closing accounting practices will likely have less impact on revenue than other items. Buyers are more likely to agree to a revenue–based benchmarks if costs of goods sold and overhead have little variability. Generally, however, buyers oppose revenue-based benchmarks and favor net income benchmarks on the ground that they are the best indicator of the target’s success. Parties often use EBIT or EBITDA measures as milestones in order to allay sellers’ concerns about net income measures. EBIT and EBITDA reflect the cost of goods and services, selling expenses and general and administrative expenses, and thus are more difficult to manipulate. They are additionally desirable because they exclude interest, taxes, depreciation and amortization, which may vary based on the buyer’s capital structure or the way in which the acquisition is financed. Finally, for a transaction that is initially valued using a multiple of post-closing cash flow, the use of EBIT or EBITDA for the earnout is logical to determine what is in essence deferred purchase price. Regardless of the financial benchmark chosen, the parties should carefully analyze the potential of the earnout to distort the incentive for producing long-term, sustainable growth.

b.

Non-Financial Benchmarks Non-financial benchmarks often are used in acquisitions of development-stage companies. These companies may be difficult to value, due in part to their high growth rates, and are particularly suited to the use of non-financial milestones. In some industries, non-financial milestones

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may be the best indicator of fair value. Non-financial benchmarks may also serve the purpose of giving operational focus to the target. A non-financial benchmark could be the introduction by the company of a new product, inclusion of a favorable article in a publication that meets specific criteria or the receipt of a “best technology” or “best in show” award for the company’s technology or product. See Spencer G. Feldman, The Use of Performance (Non Economic) Earnouts in Computer Company Acquisitions, INSIGHTS, August 1996. 2.

The Formula for Calculating the Payment Amount For financial benchmarks, the parties may stipulate the flat amount of consideration to be paid if the threshold is met. More typically, the buyer will pay the seller a specified percentage of the amount by which the target’s performance surpasses the threshold. For example, the buyer may make an annual payment to the seller equal to a percentage by which the target’s EBITDA for the year exceeds the threshold EBITDA agreed to by the parties. The payment also may be adjusted so that any shortfall in EBITDA for a previous year will reduce the payment otherwise due for the current year. An often difficult negotiation ensues regarding whether payments are prorated if the threshold is only partially achieved. This negotiation is sometimes settled by establishing a minimum hurdle before any payment will be made and providing a sliding scale or proration after that hurdle is achieved. For non-financial thresholds, the parties must agree upon an amount of cash consideration or a number of shares of stock that will be delivered for each milestone that is met. In any event, the payout is often capped at a specified amount. Care must be taken to specify with particularity the source of the earnout –whether the threshold is to be applied to a product line, the entire target, the division into which the target is absorbed or some other source. Lenders will often consider the recipient of an earnout an equity holder and seek to subordinate the payment to the lender's unsecured obligations, including seeking to limit payments while the lender's debt is outstanding. The seller will object strenuously to such a limitation, likely making its objection known early in the

25

negotiation. On the other end of the spectrum, the seller may demand credit enhancement (for example a letter of credit) for the earnout. These negotiations will turn on the leverage of the parties and the financial position of the buyer.

3.

The Length of the Earnout Period Most earnout periods conclude after the expiration of a specified length of time – generally between two and five years after the closing. The appropriate length will be determined based on how long it will take to measure the projected value of the target or the period during which the buyer desires to incentivize the former owners. On occasion the earnout is payable upon the occurrence of a specific event, such as the sale of the target, a change in control of the buyer or the termination of the earnout recipient's employment. Because earnouts may affect the flexibility of the post-closing operation of the target, and few subsequent purchasers of a business will accept assets burdened by an earnout, it is usually advisable to the purchaser to have a buyout option for the earnout. Crafting the valuation of the earnout buyout is generally difficult. Often parties rely on a multiple of historic payments or an expert valuation of the target.

4.

Determination of Whether the Threshold Has Been Satisfied a.

Determination of the Earnout The seller should insist that the buyer maintain separate books and records for the target, division or other source of the earnout throughout the earnout period. The buyer should covenant that these financial records will be made available for review upon reasonable notice. The buyer and its accountants typically will make the initial determination of whether the milestones have been reached. The seller then will review the calculations and challenge them if necessary. In certain situations, it may be appropriate to require that the results of the earnout period be audited. The parties should consider requiring quarterly or some other periodic reporting of the results of the benchmarks used in the measurement of the earnout. This early exchange of information can highlight disagreements in calculation methodologies at a time when their resolution 26

can possibly avoid later disputes. The potential earnout recipient should demand access to information sufficient to verify the underlying data critical to the earnout calculation. b.

Accounting Issues For financial milestones, the parties should stipulate with as much detail as possible the accounting principles that will be used to calculate whether the thresholds have been met. As noted above, GAAP embraces a wide range of acceptable accounting practices, and is consistently in a state of flux. The ability to manipulate the results of an earnout through adjustment to GAAP is often legitimately of great concern to the seller. Particular care in delineating the calculation principles should be used if the threshold is a non-GAAP financial measure, such as EBIT or EBITDA. The parties thus should incorporate into the acquisition agreement a description of the accounting principles to be employed. Listed below are specific accounting issues that may arise: (1)

Consistency Accounting

of

Practice

in

Post-closing

A problem may arise in the form of movement of revenue and expenses by the party in control of the target after closing. The lawyers drafting the earnout provision should address this possibility and stipulate that post-closing accounting in this regard should not vary from prior practice. Special care must be taken, however, if the target was fundamentally different in the hands of the seller than the way it will be treated by the buyer (e.g., if the seller was an S corporation or compensation expense of the target as a C corporation was artificially high). Diligence into the pre-sale accounting policies of the seller will clarify past practice and reveal any areas of potential dispute. The parties should consider specifying whether changes in GAAP promulgated by the FASB after closing will affect the determination of the earnout.

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(2)

Potential Exclusions in Calculating the Payout and Other Possible Adjustments •

The seller should seek to exclude all transaction, restructuring and integration related expenses that are charged against the earnings upon which the earnout is calculated.

•

When net income is used as the performance yardstick, parties almost always adjust for heightened depreciation caused by a write-up in assets obtained in the acquisition. Prior to the FASB’s adoption of SFAS No. 142, Goodwill and Other Intangible Assets, required to be applied starting with fiscal years beginning after December 15, 2001 (provided that goodwill and intangible assets acquired after June 30, 2001 became subject to the amortization and nonamortization provisions after June 30, 2001), parties also almost always added back goodwill amortization in calculating an earnout based on net income. SFAS No. 142 eliminates the amortization of goodwill for calendar year companies for (a) goodwill acquired after June 30, 2001, and (b) for goodwill existing on June 30, 2001, after December 31, 2001. Instead, SFAS No. 142 requires an annual impairment test based on a comparison of the fair value of each reporting unit that houses goodwill acquired to the carrying amount of the reporting unit’s assets, including goodwill. Parties should consider the impact of the annual impairment tests in determining the earnout with respect to a transaction.

•

When net income, EBIT or EBITDA are used as the performance measures, the seller should ascertain what administrative or general overhead expenses the buyer will allocate to the target after closing and determine how those expenses will impact the post-closing figures. For example, the allocation of corporate headquarters’ expenses and services allocated among affiliates should be carefully considered.

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(3)

•

The seller will likely attempt to exclude executive compensation expense allocated to the target.

•

The seller’s counsel also may argue that indebtedness resulting from the acquisition allotted to the target after closing should be excluded when calculating the earnout. If interest is excluded, care should be taken to exclude expenses associated with financings and prepayment penalties. The exclusion that covers the initial acquisition indebtedness should also cover subsequent refinancings.

•

The parties also may desire to exclude extraordinary gains and losses.

•

Intercompany transactions between the target and the buyer or its affiliates also require adjustment to reflect the amounts that the target would have realized or paid if dealing with an independent third party on an arm’s length basis. If an intercompany charge from the parent (even if characterized as a management fee) is actually a distribution of profits, the payment should not be treated as an expense in the calculation of the earnout.

•

While most exclusions from the earnout calculation are demanded by the seller, the purchaser should consider whether exclusions are appropriate. In some situations it may be appropriate for synergies arising out of the combination to be excluded from the earnout. Particularly if the buyer intends to use the target as a platform for future acquisitions, revenue, income or cash flow from these acquisitions may need to be excluded in the earnout calculation.

Payments Pursuant to Tax-sharing Agreements In most situations the target, once acquired, will become a party to a tax-sharing agreement with the

29

buyer’s taxpayer group, or become a part of the buyer’s consolidated tax reporting group. The seller’s counsel should assure that payments made by the target pursuant to the agreement or as a member of the group do not have unanticipated effects on the attainment of the earnout thresholds. (4)

Accounting Treatment of the Contingent Consideration When Linked with Future Employment A difficult accounting issue arises in those transactions in which contingent consideration is linked with the continued employment of the seller’s management. In transactions in which the contingency is based on the future earnings of the seller and the management of the seller enters into employment contracts with the new entity, the question arises whether the substance of the additional payments is truly a payment for the seller or rather a salary expense in the form of bonuses based on production. The issue is particularly relevant to acquisitions of small businesses. In 1995, the FASB’s Emerging Issues Task Force reached a consensus on this issue in EITF 95-8, Accounting for Contingent Consideration Paid to the Shareholders of an Acquired Enterprise in a Purchase Business Combination. The consensus opinion notes that the following factors should be considered when evaluating the propriety of accounting for contingent consideration based on earnings: • • • •

30

reasons for contingent payment provisions; the formula for determining contingent consideration; treatment of the contingent payment for tax purposes; linkage of payment of contingent consideration with continued employment;

• •

a composition of the shareholder group; and other arrangements with shareholders, such as noncompetes, consulting agreements and leases.

The determination as to whether payment of contingent consideration represents purchase price or compensation is based on facts and circumstances. The EITF notes that if a contingent payment arrangement is automatically forfeited if employment terminates, a strong indicator exists that the arrangement is, in substance, compensation. The EITF goes on to note, however, that the absence of linkage between continued employment and payment of contingent consideration does not necessarily imply that the payment of a contingency represents purchase price. Another factor is the proportionality of the seller’s right to receive earnout payment compared to the seller’s ownership interest. If proportionality exists, the earnout is more likely to be characterized as a deferred payment. If proportionality is lacking, then the earnout is more likely to be compensatory in nature. See Kimberly Blanchard, The Taxman Cometh, BUSINESS LAW TODAY, May/June 1997, at 61. It is important to note that an earnout must be treated consistently as to avoid re-characterization. “As a threshold manner, an earnout should be treated as compensatory only if the seller actually performs services for the buyer after the sale or gives an economically meaningful covenant not to compete.” Kimberly Blanchard, The Taxman Cometh, supra, at 60. The same principles that are relevant for the accounting characterization of the earnout payment apply to the tax treatment of the payments. Earnout payments to sellers who participate in running the business of the target during the earnout period may be treated, not as a capital gains, but as ordinary income.

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(5)

Other Issues to be Considered Other potential areas for variation that should be addressed include inventory valuation methods (LIFO versus FIFO, as well as the manner of treating inventory as obsolete), depreciation schedules, accounting for retirement and welfare benefits and reserves for bad debts. The parties should carefully consider whether there are matters of heightened concern or specific to the target's industry, often mandating that the parties specify the accounting methodology to be used. A recent federal court decision, Didion Milling, Inc. v. Agro Distribution, LLC, No. 05-C-227, 2007 WL 702808 (E.D. Wis. March 2, 2007), highlights the perils of imprecise drafting, especially when an earnout is based on a financial measure other than revenues. In this case, the earnout was pegged to changes in net cash flow, with the agreement specifying that the calculation would be made in accordance with GAAP and on an after-tax basis. Difficulties arose when the earnout agreement was assigned from a corporation to a limited liability company, making the after-tax calculation subject to ambiguity since the LLC is a pass-through entity. Further there was disagreement as to the appropriate interest deduction against the earnout calculation, including whether the buyer’s overall cost of capital could be used to apply across the board. Both of these issues deserved more precise treatment in the merger agreement.

5.

Form of Payment of Earnout Obligation Cash is often used as the earnout payment, but not infrequently the contingent consideration is stock. Another variation is to allow the buyer the option to pay in stock or cash. The use of cash may be a problem when the target is thriving and the buyer’s other businesses are performing poorly. On the other hand, the use of stock to satisfy the earnout may dilute the buyer’s earnings per share. Additionally, the use of stock raises various valuation, securities and tax issues. The purchaser may be required to specify

32

the maximum number of shares that will be issued as part of the earnout arrangement for securities and tax reasons that are detailed below. a.

Valuation Issues The parties to the acquisition agreement must determine the date as of which the stock used in the earnout will be valued, which will likely be at either the time of the closing or the time of issuance. If the time of the closing is selected, the buyer likely risks an increase in the acquisition price caused by a run-up in the stock price between closing and the issuance. The seller runs the risk that the buyer will issue additional common stock during the earnout period that is priced lower than the market price or the per share value assigned in the acquisition. Counsel for the seller may suggest a provision designed to protect against dilution of the shares that are earned but have not yet been distributed.

b.

Securities Issues The stock that is issued in an earnout must, of course, be registered or exempt from registration. Affiliates of the target who receive stock and affiliates of the buyer must abide by the selling restrictions of Rules 145(d) and 144, respectively, of the Securities Act. Practitioners should examine Rule 144(d)(3)(iii), under which the earnout stock may be deemed to have been acquired at the time of the transaction’s closing for purposes of calculating the holding periods of Rule 144 if the issuer or affiliate was then committed to issue the securities subject only to conditions other than the payment of further consideration for such securities. An agreement to remain employed or not to compete entered into in connection with a transaction, or services performed pursuant to such an agreement, are not deemed payment of further consideration. See also Medeva PLC, 1993 SEC No-Act LEXIS 1145 (concluding that the holding period for shares issued as deferred consideration commenced on the date the target shareholders elected to receive payment in shares rather than cash).

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Additionally, in connection with the listing of the buyer’s stock at the time of the acquisition, a securities exchange will likely require that the buyer specify a limit on the number of its shares to be issued as contingent consideration. c.

Related Tax Questions If the acquisition is structured as a tax-free reorganization, the use of contingent consideration may cause difficulties for the parties. In all types of tax-free reorganizations, there are limits on the amount of cash or other property (other than stock) that can pass as consideration. The permissible amounts vary by transaction form. Care must be taken to limit cash earnout payments to that allowed under the applicable reorganization type or to pay the earnout in additional stock that meets the applicable requirements. Similar to escrow payments, amounts paid to the seller in years following the year of sale generally will be taxed on the installment method described above. The specific treatment will depend on whether there is a stated maximum earnout amount or simply a period over which the earnout payments will be made. With respect to otherwise tax-free transactions, the Original Issue Discount Rules of Section 483 of the Internal Revenue Code require that some portion of the deferred consideration, if made in stock, must be allocated to interest, reportable as such by the seller and deductible as such by the buyer. The remaining portion of the stock is generally treated as additional tax-free consideration emanating from the original purchase. The IRS has issued ruling guidelines relating to the treatment of this contingent stock in Rev. Proc. 84-42, 1984-1 C.B. 52.

6.

Operation of the Acquired Business During the Earnout Period Both the buyer and the seller may fear mismanagement during the earnout period that could affect the payout.

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a.

Operation by the Buyer Post-closing The seller typically has concerns that the target will not be properly managed after the closing. The seller may require that the buyer operate the target in the ordinary course of business consistent with past practice, and may attempt to reserve, through contractual covenants, some authority regarding major decisions made during the earnout period. The seller will likely demand that the target be operated as a distinct business entity or division so that its results can be verified. The seller may require that the buyer adequately fund the target during the earnout period so that it will be able to capitalize on opportunities presented to it. For example, the target may negotiate that the buyer provide, post-closing, minimum absolute funding levels or cash sufficient to meet the external cash needs contemplated by annual budgets after they are adopted. The agreement may be so specific as to provide that the cash will be provided as an equity contribution, or if provided as an intercompany loan, that the loan will be subordinate to other indebtedness and that no payments in respect of the loan will be made (or accrued to affect the earnout) until after the earnout period (and payment of the earnout if due). Earnout agreements often contain generalized “good faith” clauses. The agreement may require, during the earnout period, that the parties act in good faith and in a spirit of fair dealing or may require that the buyer refrain from any transactions, the purpose of which, or one purpose of which, is to undermine the ability of the target to achieve the earnout. The earnout may be crafted to acknowledge the parties’ agreement or intent to exploit specified opportunities or to promote the target products or services generally. The earnout will often provide that the buyer will not compete with the target’s business during the earnout period. In many earnout agreements, the target demands a role in the oversight or management of the buyer or the division that is operating the target after the closing. For example, the potential earnout recipients may demand seats on the parent’s board, quorum requirements, super-majority votes,

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specified management roles, designated incentive packages for management, rights with respect to the termination of employees or a role in the development of operating plans or capital budgets. Critically, the well drafted earnout provision specifies in detail the consequences of the breach of any of the governance or other provisions. Any limitation of the buyer’s freedom to run the target as circumstances require should be carefully analyzed by the buyer. b.

Operation by Post-closing

the

Seller’s

Management

Team

Less commonly, the seller’s management will continue to operate the target post-closing. In this situation, the buyer’s risk is that the seller’s management team will operate the business so as to unfairly maximize the payout amount. Counsel for the buyer should attempt to provide appropriate controls over the target, including a mechanism for reviewing decisions that can affect the payout.

c.

Protection Placed in the Acquisition Agreement The parties also may wish to include detailed post-closing operational procedures in the acquisition agreement in order to avoid uncertainty. For example, the buyer might covenant to operate the company consistent with past practice subject to certain exceptions, or the buyer might agree to restrictive covenants that prevent the target from taking specified actions (such as making large expenditures) during the earnout period. Recent case law explores the performance of the parties to the earnout arrangement, in light of provisions contained in the acquisition agreement and principles of good faith and fair dealing. The Survey found that 63% of analyzed transactions contained neither a covenant to run the business consistent with past practice nor a covenant to run the business in order to maximize the earnout.

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Several recent decisions have addressed the issue of the operation of the acquired business during the earnout period. In Horizon Holdings, LLC v. Genmar Holdings, Inc., 244 F. Supp. 2d 1250, 1257-58 (D. Kan. 2003), the trial court held that when evaluating the principles of good faith and fair dealing, a court may imply terms to honor the parties reasonable expectations. In Horizon, the seller had remained employed as president of the new entity in an attempt to realize the $5.2 million earnout. The earnout was defined in the agreement as part of the purchase price. The seller had been assured that he would be given autonomy as president and that he had a realistic opportunity to receive the earnout. However, upon acquiring Horizon, the seller alleged that the buyer interfered with business operations and prevented the seller from meeting the earnout threshold. In sweeping language, the court held that it could imply terms in an agreement to honor the parties reasonable expectations when those obligations were omitted from the text of the contract. In determining whether to imply terms in an agreement, the court noted that the proper focus was on “what the parties likely would have done if they had considered the issue involved.” Using language unusual in contract interpretation cases, the court stated that the jury could have readily concluded that the parties would have agreed, had they thought about it, that the buyer would not be permitted to undermine the president’s authority, to abandon the companies brand name or to mandate production of a rival product thereby impairing the realization of the earnout. The jury award of $2.5 million was upheld. The buyer appealed the District Court’s decision, arguing that the “implied covenant claim…fails because there is no evidence the parties would have agreed to the obligations the District Court imposed by implication.” O’Tool v. Genmar Holdings, Inc., 387 F.3d 1188 (10th Cir. 2004). The argument was rejected by the court, which stated that such an argument “ignore[s] the spirit of the parties’ agreement.” Rather, the appellate court found that the inclusion of the earnout provision as part of the purchase price of the business necessarily implies that the seller “would be given a fair opportunity to operate the company

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in such a fashion as to maximize the earnout consideration available under the agreement.” Id. at 1196-97. The court in Rumis v. Brady Worldwide, Inc., 2007 U.S. Dist. LEXIS 37190 (S.D. Cal., May 21, 2007), granted the buyer’s motion for summary judgment using the same analysis as the District Court in the Horizon Holdings case. In attempting to determine to what the parties would have agreed, had they thought about it, the judge found no evidence that the agreement would have affirmatively required the buyer to market the target's products through its various distribution channels, even though the agreement included an earnout based on the sales of the target’s products. Further, the court found that, lacking some clear evidence of ulterior motives on the part of the buyer, there was no violation of the implied duty of good faith and fair dealing. Rather, in this case the court found that a general reorganization of the buyer was undertaken for valid business reasons, and the seller’s failure to achieve the earnout was the result of a valid shift of focus. The United States District Court for the Southern District of New York, in Woods v. Boston Scientific Corporation, 2006 U.S. Dist. LEXIS 96050 (S.D.N.Y., Nov. 1, 2006) also analyzed the requirements of good faith and fair dealing in the context of an earnout provision. In this case, Boston Scientific negotiated a merger with Advanced Bionics Corporation (“ABC”), a medical products company that focused on cochlear devises and neural electrical stimulation systems to treat chronic pain. During negotiations, the parties agreed upon certain acquisition terms, including a $742 million payment to ABC shareholders as well as the opportunity to receive additional consideration through earnout payments based on ABC’s post-merger sales growth in four specified products. The earnout payments were to be based on revenues, rather than profits, which were projected to be at least $3.2 billion. In addition, Boston Scientific agreed to provide cash in an amount “reasonably sufficient” to meet the cash flow needs of ABC, up to $100 million of which would be provided without additional approval. The merger agreement, under which ABC would become a wholly owned subsidiary of Boston Scientific, provided for

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a system of joint control of the ABC subsidiary. The dayto-day management was to be conducted by its co-CEOs, Alfred Mann and Jeffrey Greiner, employees associated with the target pre-closing, who reported to an executive board comprised of three ABC subsidiary members and three members designated by Boston Scientific. As the ABC subsidiary’s performance fell short of expectations, Boston Scientific attempted to replace Mann and Greiner without using the procedures enumerated in the merger agreement. ABC’s shareholders sought temporary injunctive relief, claiming that Boston Scientific’s plans to replace the current management and reorganize the business structure would permanently and adversely affect the shareholders’ bargained-for right of joint control with the Boston Scientific, putting the earnout payments at risk. After analyzing the merger agreement and facts of the case in detail, the court found the evidence of the ABC subsidiary’s lapses in quality control and poor financial performance to be inconclusive, but stated that Boston Scientific appeared to have a valid cause for concern. The court further indicated that Boston Scientific’s executives appeared to genuinely believe that their concerns merited the replacement of Mann and Greiner. However, the court stated, “Nevertheless, no matter how legitimate the reasons are for firing Mann and Greiner, they do not justify the means by which Boston Scientific has proceeded.” Id. at 70. Further, “Defendant must proceed in good faith under the joint management structure of the Merger Agreement.” Id. at 71. The court related, “consider[ing] the overall thrust of the Merger Agreement, which provides for the Earn Out Recipients ongoing involvement in the management of Bionics, and various safeguards for the protection of their interests,” Boston Scientifics’ interpretation of the merger agreement “frustrates those purposes.” 1 The court recommended the issuance of a preliminary injunction enjoining Boston Scientific from dismissing Mann and Greiner until the parties completed the dispute resolution process in good faith. The injunction was thereafter upheld

1

Id. at 39

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on the same grounds. 2 This decision highlights the difficulties of negotiating and operating under complex provisions that give the sellers’ representatives joint control over the target post closing. A recent ruling by the Delaware Court of Chancery contains strong admonitions to lawyers writing earnout provisions that imprecise drafting can undercut potential earnout recipients’ chances of a favorable outcome. The case further highlights the difficulty faced by the earnout recipient of proving damages even if it can establish that the purchaser breached its post-closing obligations. In LaPoint v. AmerisourceBergen Corp. (Del. Ch., No 327CC, decided Sept. 4, 2007), former shareholders of Bridge Medical, Inc. (“Bridge”), the developer of a bar-code enabled bedside point-of-care solution for use in the healthcare services industry, sued Bridge’s buyer, AmerisourceBergen Corporation, over an earnout. As is often the case, the earnout was crafted to bridge the optimism in the startup technology company’s forecasts and the buyer’s valuation, more grounded in its historical results. As part of the earnout, which was based on achieving EBITDA targets, the buyer agreed to exclusively and actively promote Bridge’s products. The merger agreement required the buyer to act in good faith during the earnout period, and prohibited it from taking any actions any purpose of which was to impede the ability of the Bridge shareholders to achieve the earnout. Chancellor Chandler described these provisions as “aspirational statements,” “gossamer definitions” and “nebulous requirements.” Nonetheless, the court found that Bridge’s shareholders were validly aggrieved by the behavior of the buyer during the earnout period. Chancellor Chandler also wrote that Bridges was not without fault, noting that considerable evidence was presented that Bridge’s management was pre-occupied with maximizing short-term EBITDA, which led it to cut marketing and R&D spending at the expense of long-term growth. Despite the court’s finding that the buyer failed to promote Bridge’s products as contractually required, Bridge was 2

See Woods v. Boston Sci. Corp., 2007 U.S. Dist. LEXIS 20056 (S.D.N.Y., Feb. 20, 2007).

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largely unable to demonstrate that the buyer’s general failure to promote Bridge during the earnout period led to damages that could be established with a reasonable degree of certainty. The court noted that the buyer produced convincing evidence to suggest that even had it acted in complete good faith, Bridge was unlikely to have achieved considerably greater success. This recent case shows the precision that courts expect in the crafting of earnouts, as well as the difficulty of establishing damages when enforceable contract provisions are breached. In addition to contract provisions and implied duties of good faith, at least one case analyzes whether a seller could establish that buyer breached a fiduciary duty in connection with an earnout. In Richmond v. Peters, 155 F.3d 1215 (6th Cir. 1998), plaintiff sold his business to defendant with the price and payments to be determined, in substantial part, by reference to the profits of the continuing business in excess of an agreed upon base-level amount. The agreement between them provided that the business was to be managed in accordance with “sound business practices.” Plaintiff claimed that defendant breached their agreement and further breached a fiduciary duty owed by defendant to the seller. On motion for judgment as a matter of law after plaintiff presented his case, the trial court ruled that Ohio law imposed no fiduciary duty upon defendant and that plaintiff had presented no evidence that defendant had breached any provision of the agreement. The court held that the facts of the case should be reviewed with respect to the contract claim. It is significant, however, that the trial court found, and the appellate court agreed, that under Ohio law, the earnout agreement created no fiduciary duty between the parties. A key lesson to be learned from the above-referenced cases is that the parties should be explicit in crafting the expectations for the post-closing conduct of the parties to circumvent a court setting the ground rules.

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7.

Payment of Earnouts to Public Shareholders Payment of earnouts to public shareholders of a seller that does not survive the transaction can be a logistical problem. One common solution is to establish a paying agent to disburse earnout payments to the seller’s former shareholders. This paying agent may handle any disputes with the buyer during the earnout period as well.

8.

Shareholders Designated to Act for the Seller In situations in which the entire seller is sold to a buyer in a transaction with an earnout, the parties should consider establishing a committee to act on behalf of the persons who were shareholders of the seller at the closing. The committee would speak for the shareholders on matters relating to the earnout and indemnification. The provisions establishing the committee should delineate its powers and how it can act. Funds should be set aside to cover the expenses of the committee and its counsel. Often, the acquisition agreement simply will specify that the buyer will communicate with the committee, or shareholders’ representative, post-closing. In such case, the obligations of the committee to the shareholders will be addressed in a separate shareholders’ representative agreement.

9.

Sale of the Target or the Buyer During the Earnout Period The parties should determine whether the target or a portion thereof may be sold to a third party during the earnout period, and the effect of such a sale should it take place. A similar problem arises when a third party acquires the buyer during the earnout period. As suggested above, the lawyers for the seller may suggest that the third party buyer be obligated to pay off some or all of the earnout amount at the time of the second sale. A similar concern arises when a seller desires to liquidate or completely close down the operations of the target during the earnout period. In a February 2007 case, Chabria v. EDO Western Corp., No. 2:06-CV-00543, 2007 WL 582293 (S.D. Ohio Feb. 20, 2007), the agreement between the parties included a provision that the purchase price for the target would be $669,107.85, with an additional royalty to be paid to the sellers in the amount of five percent of the gross sales from the target’s product line. When the buyer quickly shut down operations of the target, but enforced a six-year non-compete agreement, the seller sued claiming fraud,

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breach of contract and breach of duty to act in good faith. The court found that the fraud action could not be maintained, but based on the implied covenant of good faith and fair dealing, the promise to pay royalties necessarily implies a promise to use reasonable efforts to sell the product line. 10.

Integration of the Target into the Buyer’s Other Businesses The parties must decide how to calculate the earnout if the target should be merged into similar entities owned by the buyer. The difficulty of measuring performance in this case may make buyers reluctant to fully integrate the acquired business into the rest of the buyer’s business. A parallel difficulty arises when the buyer acquires additional, similar businesses during the earnout period. In these situations, the buyer and seller must work with accountants to formulate a plan for segregating the financial statements that form the basis of the target’s earnout thresholds. This segregation can preclude the buyer from achieving the economies of scale and synergies it anticipated in consummating the acquisitions. One solution is to assess the financial performance of the whole group and, for purposes of calculating the earnout, assign to the target its pro rata share of the overall amount. Alternatively, some buyers pay off the sellers during the earnout period to end the arrangement early. A recent earnout case, Vaughan v. Recall Total Information Management, Inc., 217 Fed App. 211, 217 (C.A.4 2007), underscores how important this concept can be, particularly to buyers. In this case, the part-owner and general manager of the target was hired by the buyers as the Executive Vice President in charge of sales after the acquisition. The earnout payments were based upon the target meeting certain sales revenues requirements. While the general manager and the target did not meet the sales revenues requirements independently, the court agreed that the term “Sales Revenues,” which was defined in the agreement to be, “All gross revenue generated by the Company from new contracts or agreements from any source,” included revenue generated due to the buyer’s acquisition of additional businesses that it merged with the target. Therefore, the target’s former owners were able to collect a significantly higher earnout due to the buyer’s subsequent acquisitions. Careful drafting of the earnout provision or different structuring of the buyer’s acquisitions could have altered this outcome.

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11.

Averaging Periods of Strong Performance With Weak Performance The parties must decide whether performance well above threshold levels in one part of the earnout period may be applied to supplement a lesser performance during another part of the earnout period.

12.

Dispute Resolution Disputes regarding earnouts are commonplace, and the lawyers drafting the earnout provision are well advised to consider the appropriate form of dispute resolution under the circumstances. Many earnouts require binding arbitration of disagreements that the parties cannot resolve within a brief period of time. Arbitration is favored over litigation because the former generally is faster, less expensive and a better forum within which to deal with complex financial issues. However, the growing perception that arbitrators render “split the baby” decisions that attempt to satisfy both sides has caused some advisors to favor litigation as a more predictable source of appropriate outcome. If litigation is favored, jurisdiction and venue should be specified. All provisions regarding dispute resolution should be detailed and carefully crafted anticipating all plausible scenarios.

13.

Registration Issues for Earnout Rights Under certain circumstances earnout rights may be deemed securities under the Securities Act. To prevent the necessity of registration, acquisition agreements usually prohibit any transfer of the right to the earnout payment and assert that the right is not an investment contract or other type of security. In a series of no-action letters, the SEC evaluated whether or not specific earnout agreements constitute a security. 3 The SEC emphasized that the facts of any particular situation must be evaluated closely, but it concentrated on the following factors when deciding that a particular earnout did not constitute a security:

3

For further information, refer to Great Western Financial Corp., SEC No-Action Letter, No. 042583014 (April 4, 1983); Northwestern Mutual Life Insurance Co., SEC No-Action Letter, No. 030783002 (March 3, 1983); Lifemark Corp., SEC No-Action Letter, No. 112381006 (November 17, 1981); and Kaiser Aetna, SEC No-Action Letter, No. CCH19730730010 (July 30, 1973).

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14.

•

The earnout right was granted to the sellers as part of the consideration for the sale of their business and neither the purchasers nor the sellers viewed the right as involving an “investment” by the sellers;

•

The earnout right did not represent an ownership interest in the purchaser and was not evidenced by any certificates;

•

The earnout right could not be transferred except by operation of law; and

•

The earnout right did not entitle the owner to voting or dividend rights.

Special Industry Limitations Advisors to parties desiring to structure post-closing adjustments and earnouts are cautioned to ascertain the legality of the arrangement under the regulatory laws applicable to the parties to the transaction. Certain industries have laws that may impact the structure of post-closing adjustments in unique ways. For example, healthcare transactions are heavily regulated by federal law. Two federal statutes, commonly known as the Anti-Kickback Statute 4 and the Stark Statute 5, may impact the use of earnout provisions in healthcare transactions, particularly when the sellers are parties with the potential to refer business to the buyer postclosing. The Preamble to the Stark Phase II regulations specifically indicates that post-closing adjustments that are commercially reasonable and not dependant on referrals or other business generated by the referring physician are permitted if made with six months of the purchase or sale transaction, and the transaction otherwise complies with the isolated transaction exception, the analysis does not necessarily end there. Earnouts in the healthcare industry raise thornier issues. While earnouts are not per se illegal in the healthcare industry, an earnout payment may be suspect and raise potential issues under the AntiKickback Statute. The Office of Inspector General of the Department of Health and Human Services (“OIG”) has indicated that earnout arrangements may violate federal anti-kickback laws if

4 5

42 U.S.C. §1320a-7b(b). Social Security Act § 1877; 42 U.S.C. § 1395nn.

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the earnout payment is tied to the volume or value of federal or state healthcare program referrals or business directly or indirectly made, influenced, generated or arranged for by the seller. For example, if an earnout will be paid only if the seller continues to refer patients to the facility post-closing, the earnout payment may be viewed as potentially problematic by the OIG. Whether these arrangements are direct (for example, the parties explicitly know that referrals must be made in order to receive earnouts) or indirect (for example, the physician knows that referring many patients will maximize profits for the facility and therefore the earnout), the earnout payment might be deemed as impermissible remuneration in return for or to induce referrals or the arranging of business to the facility post-closing. Additionally, under the Stark Statute, a hospital likely may not pay for a physician practice it acquires in installments or through an earnout (assuming the physicians will refer to the hospital after the transaction). The rationale for these regulatory restrictions is to eliminate the motivation for improper referrals to the facility, which could otherwise benefit the referring practitioner by enhancing the financial strength of the buyer so it can pay the earnout. Moreover, the statute has been interpreted to indicate that such improper remuneration is illegal if only one purpose of the remuneration is to induce referrals, even when such compensation is paid as legitimate consideration in a sale of assets. 6 Finally, the use of earnouts in the healthcare industry could prompt a regulator to carefully scrutinize all earnout-period reimbursement requests that are presented to Medicare or Medicaid, especially if the regulator considered the earnout to provide an incentive to bill Medicare or Medicaid more than what the facility is owed under the Medicare and Medicaid regulations. An earnout could be of particular concern to a regulator if part of the earnout is tied to financial performance that is directly or indirectly related to the receipt of payments by Medicare or Medicaid. Such concerns should be fully vetted prior to utilizing an earnout provision in a healthcare acquisition. Other industry-specific requirements may affect the ability to structure acquisitions with earnouts.

6

United States v. Kats, 871 F.2d 105 (9th Cir. 1989); United States v. Greber, 760 F.2d 68 (3rd Cir.), cert. denied, 474 U.S 988 (1985).

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V.

CONCLUSION There are many forms of consideration paid in acquisitions, all with their own advantages and disadvantages. The most common forms of payment are cash, stocks, promissory notes, the assumption of indebtedness or some combination thereof. The parties should pay close attention to the accounting, tax, securities laws, industry-specific regulations and practical consequences of each form of consideration. Importantly, the chosen form of consideration may affect the leverage between the parties after the closing. In many transactions, some form of purchase price adjustment is appropriate. Even when there is fundamental agreement between the parties as to the purchase price, if there is lag time between the pricing and closing, some form of “true-up” may be appropriate. Earnouts are usually employed when there is a disagreement as to the value of the target, but may also be useful in other scenarios such as a performance incentive. Parties should take great care in crafting the earnout. They should specify, in detail, the nature of the hurdle giving rise to the earnout obligation, the accounting methods that will be used in ascertaining whether the earnout has been achieved, the inclusions and exclusions from the earnout calculation, the specific obligations each party must undertake in order to reach the hurdle or prevent improper barriers, and who will determine whether the earnout threshold had been met. It is essential that all possible scenarios be explored as the earnout is crafted to avoid future conflict. Industry-specific regulations can implicate the legality of both post-closing adjustments and earnouts.

2539570

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