Originally published in Blakes Bulletin on Mergers & Acquisitions, March 2008
In today’s M&A market, developing an integration framework and plan for the entire M&A process, from deal planning to post-closing, and effectively managing the integration implementation, is key to a successful business combination and critical to achieve the full benefits and synergies of any business merger.
Good communication among all members of the deal team concerning the integration planning early in the process will help to lay a strong foundation for a successful integration. For this reason, it is important to ensure that the legal M&A team has a good understanding of the integration plans and goals. In many cases, the experience and knowledge of the legal team can make a valuable contribution to the development and implementation of the integration plan.
While it is expected that higher priority will be given to the operational challenges (such as integrating corporate cultures, merging IT systems and building solid management teams), it is also important to consider and address some of the legal issues. From a legal perspective, attention should be given to the following matters as part of the overall integration planning.
Due Diligence and Pre-Closing Period. The due diligence and pre-closing period can and should be used to assess, analyze, plan and address significant integration issues.
Exchange of Information. Competition law concerns surrounding the exchange of competitively sensitive information during the pre-closing period should be considered.
Human Resources. The retention of key employees, establishment of a key employee retention program, termination of non-essential personnel, pension plan and employee benefit harmonization and union/labour relations should also be reviewed.
Information Technology and Systems. Integrating the numerous, complex and critical information and control systems will no doubt present challenges and must be addressed as soon as possible.
Organizational and Governance Structures. Organizational design changes and corporate governance issues that best suit the combined entities should be assessed.
Tax Planning. Pre-closing reorganizations that may optimize the combined entity’s tax status, including any cross-border tax issues, should be analyzed.
Operational Matters. There are numerous operational matters that should also be analyzed to the extent applicable, including sales and marketing contracts, customer and supplier contracts, distribution and agency agreements, licenses, facility and equipment leases, transitional services agreements and shared facilities arrangements.
Due Diligence And Pre-Closing Period
Due to the competitive nature of today’s M&A market created by the proliferation of private equity firms and auctions, it is important that integration issues and planning be addressed at a very early stage of the transaction decision-making process. There seems to be general agreement that the earlier the integration planning gets underway, the better the results. The M&A team must be prepared to address how the business to be acquired will fit into the overall organization before the decision-makers (CEO, executive committee, board of directors, etc.) can be expected to give the green light to pursue the acquisition and devote the necessary resources and funds to proceed to the next stage of the acquisition process. This early integration analysis will assist in the financial modelling to arrive at a price range and will be necessary to secure management and operational buy-in for the transaction.
The extent and nature of pre-closing integration planning will vary depending on a variety of factors, including the type of M&A transaction (private versus public acquisition; whether an auction process is being used; whether it is a friendly versus unfriendly transaction; assets versus share transaction; acquisition of a division unit of a larger entity; whether the acquiror is strategic or financial). One thing that is clear, however, is that once the decision is made to proceed with the acquisition and an announcement is made, integration should be a top priority among senior management.
For this reason, issues affecting integration planning should be built into and addressed in the due diligence process by all members of the due diligence team. While using the due diligence process and investigation to extract price concessions and determining the appropriate and necessary representations, warranties, indemnities and conditions for the legal documentation is certainly worthy, it should not stop there. In addition to examining significant financial and transactional risks associated with the acquisition, the due diligence review should focus on the challenges and opportunities that will face the combined entities during integration. One way to facilitate this objective is to ensure that a member of the due diligence team is also responsible for the integration and that integration issues are addressed by the due diligence team throughout the pre-closing period on a regular basis and at a senior level.
Exchange Of Information
In Canada, there are limitations on the exchange of information between parties to proposed merger transactions, particularly those involving competitors. These limitations derive from a competition law concern that exchanges of competitively sensitive information may facilitate the coordination of business activity by the parties prior to completion of the transaction. There is also a concern that competitively sensitive information exchanged in the course of merger discussions or other pre-merger activities could be used by the parties to co-ordinate business activity if the transaction ultimately does not proceed.
The Competition Bureau states in its Merger Enforcement Guidelines that "information exchanged during merger negotiations which does not ultimately lead to a merger could raise questions which may require examination pursuant to the conspiracy provision [section 45] of the Act". The Competition Bureau has also expressed concerns with respect to the exchange of information and the co-ordination of business activity in the pre-closing phase of a proposed merger. In general, "competitively sensitive information" refers to confidential, non-public information that could be used by competitors to co-ordinate business activity for anti-competitive purposes. The crucial exercise from both a business and legal perspective is to identify that confidential information which is competitively sensitive for a particular company.
During the evaluation and negotiation of a merger, the exchange of competitively sensitive information should be limited to information which is required by the parties to evaluate the transaction and to settle its terms (i.e., in the form of a definitive merger agreement). The use of such information by the recipient party should be limited to the evaluation and negotiation of the merger, access to the information should be limited to those directors, officers and employees of the recipient party involved in evaluating and negotiating the transaction, and these persons should have access only to that information which is relevant to their specific evaluative task. The inclusion in the evaluation and negotiation process of personnel with operational responsibility (e.g., individuals responsible for marketing and sales) should be avoided to the greatest extent possible.
In all cases, the parties must exercise judgment in determining what competitively sensitive information is reasonably required for merger evaluation and negotiation purposes. For example, it is unlikely in most cases, that customer-specific information would be required by a party in order to evaluate a proposed merger. The same is often true with respect to forward-looking strategic information (e.g., future product pricing information). In appropriate circumstances, the parties may be able to avoid information exchange issues by providing for the disclosure of competitively sensitive information to an independent third party adviser whose role is to evaluate the information and report back to the parties (without disclosing the underlying information itself). Alternatively, the parties may be able to address information exchange concerns by providing "high level" information only (e.g., information with respect to a business unit's overall profitability, rather than information with respect to the cost of supplying particular products).
Once the transaction has been negotiated and its terms settled and until the parties have a high level of certainty that the transaction will proceed (i.e., once all major conditions, including regulatory approvals, have been satisfied), the exchange of competitively sensitive information should be limited to information which is required by the parties (and their advisors) to prepare the submissions, filings and other documents required to obtain regulatory and other consents and approvals (e.g., shareholder approvals). The use of such information by the recipient party should be limited to preparing the required submissions, filings and other documents, access to the information should be limited to those directors, officers and employees of the recipient party involved in preparing the submissions, filings and other documents, and these persons should have access only to that information which is relevant to their specific task. The inclusion in the regulatory approvals process of personnel with operational responsibility should again be avoided to the greatest extent possible.
Once completion of the proposed transaction becomes increasingly certain (typically, once all regulatory and other approvals have been obtained or are imminent), the scope of permitted information exchange can generally expand to include competitively sensitive information required by the parties for integration planning purposes. However, it is important to remember that until the merger is completed, the parties must remain competitors. Accordingly, the use of competitively sensitive information exchanged for integration planning purposes should be limited to that purpose, access to the information should be limited to the members of the integration team, and these persons should have access only to that information which is relevant to their specific integration task. Again, to the greatest extent possible, the information should not be made available to individuals at the operational level.
In general, the disclosure of competitively sensitive information will be less problematic during the integration phase given the strong likelihood that the transaction will proceed and the amount of time that the parties will continue to be competitors. However, there is no definitive jurisprudence regarding the scope of permitted disclosure by competitors in the course of planning the integration of their businesses and, accordingly, no definitive guidance can be given as to the circumstances under which such disclosure might be challenged by regulatory authorities. In each case, it will be necessary for the parties to assess the associated competition law risk against the business case for information disclosure and exchange.
Apart from the exchange of competitively sensitive information for the evaluation and negotiation, regulatory approvals and integration planning, during each of the three phases of the proposed transaction, the approach of the parties should be "business as usual". This includes limiting contact between the parties and their representatives to ordinary course contacts which are consistent with the past practice. The merging parties should also be in a position to demonstrate on an evidentiary basis the purpose and propriety of any extraordinary meetings of or discussions between their representatives that do occur. Absent proof to the contrary, meetings between competitors may be construed as a mechanism to facilitate the exchange of information and the co-ordination of business activity for anti-competitive purposes. For this reason, it may be advisable to have counsel present at any such meetings in order to verify the purpose of the meeting and to help guide discussions clear of sensitive areas.
Human Resources
The integration of people and the programs that compensate them is often critical to the success of a merger or acquisition. The due diligence process will determine basic factual information in terms of headcount, the existence of unions, payroll cost, and the types of benefits provided. Ideally the due diligence process should result in an integration plan for employees ready for implementation on the day the deal closes. This can’t happen without the participation of lawyers and consultants who specialize in human resources, including labour and employment law as well as pensions and employee benefits.
Lawyers who specialize in pensions should be consulted as soon as a deal is contemplated, since pension issues often comprise a significant proportion of the overall transaction value. Pensions can easily make or break a deal and cannot be left to post-closing clean up. Integrating pension plans can take more time than the acquisition itself.
In Ontario, the median period for regulatory approval of a plan merger application that is filed is currently 1,165 days! The acquiror should therefore review, especially during the due diligence stage, each separate pension plan sponsored by the vendor and at that stage develop a provisional plan for post-closing integration. Expert advice will be required to understand the full implications of each pension plan, its history, potential hidden liabilities or restrictions, its funding requirements, its impact on financial statements and whether it can be or should be assumed or merged with existing arrangements.
Obviously, understanding the legal and financial implications are important, but communication cannot be overlooked or ignored. The integration plan must deal with legally appropriate communication to plan members, as well as other stakeholders, including lenders and service providers, all of whom may have an interest in the pension arrangements. But even before that, it may be useful for legal counsel to communicate with pension regulators to reduce delay and avoid acrimony. The keys to dealing with pensions are to start early, be thorough, be prepared to communicate with plan members, and insist on open and continuing communication between your pension lawyers and your consultants throughout the integration process.
Other employee benefits should also be considered. While Canada does not generally have minimum standards laws that specifically govern plans other than pensions, many health, welfare, supplementary deferred compensation, deferred profit sharing and stock plans do enjoy special tax status that will be important to maintain. There may also be securities or other issues to consider in connection with stock or similar profit sharing pans. Legal considerations often hamper harmonization of employee benefit plans. It may not be possible to continue certain legacy benefits. The highest common denominator approach can be prohibitively expensive. Benefit reductions can lead to employee or beneficiary claims or simply a drop in productivity. Again, as with pensions, the keys to successfully dealing with other employee benefit plans are: start early, encourage open communication between your consultants and legal counsel, and develop a good communication plan that is ready for implementation at, or before, closing.
From a labour and employment standpoint, it is important that the acquisition team develop a comprehensive understanding of the nature and composition of the target’s workforce at the due diligence stage. Ideally, this would involve obtaining a breakdown of personnel by position, compensation, age, length of service and unionized or nonunionized status. With respect to non-unionized employees, a basic element of due diligence will involve a review of any written employment agreements in order to understand compensation arrangements, severance entitlements and the scope of applicable restrictive covenants. An indepth understanding of the target’s workforce will enable an acquiror to identify key individuals that it wishes to retain as well as assess potential costs associated with any contemplated post-acquisition downsizing.
Acquirors are often interested in entering into new employment arrangements with key personnel that better reflect employee functions for the combined business. This process is typically easier in the asset purchase context where the asset sale itself results in a termination of employment at common law thus requiring the buyer to make offers of employment to those employees of the vendor whom it wishes to hire and retain.
In contrast, a share purchase transaction does not result in any change in the identity of the target employer. As such, employment relationships are typically unaffected by a change in ownership. Employees have no obligation to enter into new contracts with the acquiror. In that context, if the acquiror wishes to enter into new enforceable agreements with the target’s employees, it will have to provide them with "fresh" or enhanced consideration over and above existing terms and conditions of employment.
Under Canadian employment law, continued employment alone is insufficient as consideration for a new employment agreement. The acquiror will therefore have to ensure that any enhanced consideration that it is prepared to offer will be sufficient for the purposes of inducing employees to enter into new contracts. This is especially true where the acquiror's interest is to have employees enter into agreements that limit severance entitlements and impose enforceable restrictive covenants.
Quite often, members of the target’s senior management team will have enhanced contractual severance entitlements in the event of a termination of employment following a change of control. In addition, senior executives will sometimes have the option of exercising a "single trigger" whereby they may depart voluntarily at their discretion following a change of control while remaining entitled to enhanced severance arrangements. Obviously, in these sorts of cases, where the acquiror has an interest in retaining all or part of the target’s executive team, appropriate steps will have to be taken well before closing to implement viable retention agreements. Consideration should also be given to the establishment of a key employee retention plan, which focuses on integrating and retaining the key employees to ensure that they remain with the combined entity.
In many cases, the underlying assumption that drives a prospective acquisition is that the costs of operating the targeted business might be reduced and shareholder value enhanced via post-acquisition reductions in the work force. In the Canadian context, in the event of termination of employment without cause and assuming the absence of valid contractual severance provisions, the employer must provide affected non-unionized employees with "reasonable notice" of the termination of their employment or compensation in lieu of such notice. There is no fixed formula for determining reasonable notice in any given case. There are, however, several factors that are taken into account by courts of law when determining reasonable notice, including: the employee’s age; length of service; the type of position held; and the employee’s level of compensation. In essence, the courts attempt in each case to identify the length of notice which will provide the employee with a reasonable opportunity to find alternative work of a similar nature.
Accordingly, due diligence with respect to the composition of the target’s workforce will be essential for the purposes of assessing potential financial obligations and liabilities associated with any post-acquisition restructuring. It is worth noting that special statutory obligations with respect to notice of termination of employment apply in Ontario (similar provisions exist in employment standards legislation in other Canadian jurisdictions) when the employment of 50 or more employees is terminated at any employer establishment within a four week period. This event is generally referred to as a "mass termination". Applicable notice requirements in this regard increase in accordance with the number of employees who would be affected by a potential downsizing at any given time.
In the unionized context, the basic post-acquisition scenario is fairly straightforward where the transaction proceeds as a share purchase. There is no change in the identity of the employer and therefore no impact on existing employment relationships including the operation of applicable collective bargaining agreements. In the asset purchase context, if the employees of the target company are unionized, the successorship provisions in labour relations legislation usually apply. For example, section 69(2) of the Labour Relations Act, 1995 (Ontario) states that "[w]here an employer who is bound by or is a party to a collective agreement with a trade union or council of trade unions sells his, her or its business, the person to whom the business has been sold is, until the Board otherwise declares, bound by the collective agreement... ."
The purpose of section 69 of the Act is to preserve a union’s bargaining rights with respect to an entity or corporation that is the subject of a sale transaction. Given the scope of successorship obligations under the Act and similar provisions in labour relations legislation in other Canadian jurisdictions, determining whether the transaction involves an actual sale of a business or a mere transfer of assets incidental to the business will be a critical consideration at the due diligence stage.
Once it is understood that the acquiror will be effectively "stepping into the shoes" of the vendor with respect to collective bargaining relationships, it is important for the acquiror to have a full appreciation of the scope of employer obligations under applicable collective agreements and an awareness of the history of labour relations between the vendor and the union. For example, if the acquiror plans to implement a reduction in force post-closing, it would need to be aware of provisions in the collective agreement that require the employer to consult with the union and/or provide advance notice in respect of planned cutbacks. In any case, if the term of a collective agreement is set to expire not long after the closing date, the acquiror will have to plan and prepare for collective bargaining.
A more than superficial understanding of the history of labour relations between the vendor and the union will help the purchaser prepare not only for bargaining but, perhaps more importantly, for the effective day-to-day management of its unionized workforce.
Information Technology And Systems
Information technology is at the heart of almost all modern business processes. Integrating the numerous, complex and critical information and control systems by which large businesses operate can be one of the biggest merger challenges. Even cataloguing the issues, operational and legal, is itself usually a large project, and it is easy to get bogged down in the myriad details. Executives and advisors who are experienced in mergers and acquisitions will be familiar with processes, templates and resources which organize the process, but every transaction has unique elements that resist systematization.
Often, one of the merged businesses is a division of a larger whole, and so it will not be able to continue to operate after closing without ongoing access to the vendor’s systems. The nature and scope of these IT system dependencies should be mapped out early, and provided for in a "transition services agreement". The transition services agreement is typically negotiated at the same time as the acquisition agreement, and will be a schedule to it. Usually remedies, warranties, service levels and other terms fall far short of a commercial outsourced services agreement for similar services. It will typically provide that the vendor will continue to operate information technology infrastructure (and provide other necessary services) in the same manner and to the same extent as they were made available to the purchased business prior to closing.
Of course, no vendor would want such obligations to be open-ended, and the purchaser, too, has an interest in normalizing service delivery. Accordingly, the transition services agreement will usually require the parties to cooperate promptly to develop and jointly implement a plan for the acquired business to migrate from its existing systems in a reasonable time. Transition services agreements often provide incentives, such as escalating price, to encourage the purchaser to move off of the vendor’s systems as soon as possible. Numerous problems can arise in the context of a transition services agreement including establishing adequate service levels, determining risks to confidentiality, competition law problems and others.
The vendor and the purchaser must agree on the disentangling of the IT assets and their apportionment between the purchased business and the seller. In some cases, computer software systems and all of the hardware on which they are executed will be part of a purchase. In other cases, only some assets, or some licensed computers, will be subject to the transaction, and related software or systems will not be transferred. Then, the purchaser will be required to negotiate licences anew. Rarely is there time before the signing of the acquisition agreement, and often even before closing, to have concluded agreements with the licensors of the computer software with respect to any necessary disclosures or assignments. The term of the transition services agreement provides some additional breathing space to conclude these arrangements. Licences will limit the number of persons who can use them, limit the places where the software may be used, the computers on which the software may be used, the purposes for which it may be used, and they may even limit the right to disclose the existence of the licence at all to a purchasing party. Generally speaking, licences have been drafted to place the negotiating power in the hands of the licensor. A careful game plan should be developed, with expert counsel, to categorize the licences by risk and cost and develop a game plan to notify licensors and to negotiate necessary amendments and additions of seats at the least possible cost.
In the case where an acquired computer system overlaps the functionality of an existing purchaser system, it is usually more efficient to choose between them and to migrate data and processes to a single system. Each business will have its own systems for performing certain business tasks, and a staff loyal to those systems. Jointlystaffed teams should participate in compiling lists of these applications, determining the extent of functional overlap, and applying a matrixed assessment tool for systems selection. The assessment tool will take into consideration all of the factors relevant to the choice. These will include the technological currency of the application; the availability of ongoing support; the cost and availability of the hardware platform on which it runs; the operating system on which it runs; the existing bugs and maintenance issues; legal issues; and data portability.
Usually, each business will have numerous systems ranging from off-the-shelf server and applications packages (such as Microsoft Server or Microsoft Office), to custom-developed software, which might fulfill any number of objectives, including systems control, electronic commerce, or strategic information gathering. Some choices, such as enterprise resource planning software, will have wide effects on the organization and will require detailed implementation planning as an entirely separate project, comprising data translation, custom coding, system configuration and extensive training, testing and rollout.
Such systems selection and migration is a very difficult and detailed process, and one in which the responsible CIO can be rapidly swamped with an excess of information, which, to make matters worse, is often biased by its origins from one side or the other. Consultants can provide helpful objectivity. In particular, information technology services professionals who are capable of performing an objective audit on individual systems can be invaluable decision brokers amongst competing factions. They can also dig deep enough – and dispassionately enough – to identify shoddy coding beneath apparently functioning systems. The reality of the IT industry is that such poor quality is endemic, and IT executives need to be alert to the risk of finding lemons amongst the suite of acquired applications. In addition, terms of existing software licences can have a significant bearing on the flexibility to increase the usage of existing systems, and the cost of switching systems. Counsel who are familiar with the intricacies of such licences can assist greatly in evaluating their impact.
Some systems are highly strategic and might themselves provide strong motivation for the acquisition. If the target company possesses a system of such strategic importance, then it will be important to do extensive due diligence on that system to ensure that it, and the people who operate it and know how to configure and maintain it, are acquired as a part of the transaction, and that title is clear of the claims of authors, licence breaches, patent infringement and infection by open source code.
Most businesses will have outsourced some, and often much, of their information technology services. Combining such outsourced services can create economies of scale as well as organizational transformation to drive postmerger profitability. Outsourcing agreements will often need to be terminated. Dealing with outsourcing relationships is again a separate and very significant project for the integration of information technology following a merger. Some outsourcing agreements give a provider a preferential right to new expanded business. Again, a matrixed and detailed assessment of the outsourcing arrangements, their nature and benefits, remaining terms, the adequacy of the performance of the outsourced services provider and of the existence of breaches or unpaid service level credits, of rights to terminate for convenience and the attendant costs thereon, need to be evaluated and built into the strategic plan for bringing the operations together.
Organizational And Governance Structures
While each transaction will produce a unique set of circumstances and demands, a good governance framework can play a very important role in the integration process. The parties’ existing corporate governance structures and practices and the type of transaction used to effect the combination will influence how, when and by whom governance issues will be addressed. The first step should be to review and compare the organizational structures of the combining entities.
The differences and similarities between the existing governance structures and approach to corporate governance policies will inevitably influence post-merger governance issues. It is not necessarily the case that the governance structure of any one of the merging parties will be best suited to the circumstances or business objectives of the combined entity. It stands to reason that the governance issues of the combined entity will be shaped by the nature of the transaction that is being used to effect the merger. For example, a combination where shareholder, regulatory and/or possibly judicial approvals (i.e., court-approved arrangements) are required often need more co-operation among buyer and seller and provide a longer period before closing for the parties to exchange information and to work on integration plans. Whether a transaction is friendly or hostile, private or public, or involves a strategic or financial buyer, will also present entirely different circumstances.
Regardless of the nature of the transaction, having a comprehensive governance structure available to be adopted at or very soon after completion of the transaction, can be very helpful to the integration process. A developed corporate governance structure with policies and guidelines that are well established as soon as practical following the merger will help to focus employees and management on the business objectives of the combined entity. It may, for example, be advisable for the combined entity to form a small steering committee of directors or management from each merging party to examine the existing governance structures and guidelines of the merging parties, consider the options that might be appropriate for the new combined entity and develop recommendations for consideration by the board or senior management.
Operational Matters
There are numerous operational matters that need to be addressed in the context of an integration plan, including sales and marketing contracts, customer and supplier contracts, distribution and agency agreements, licenses, facility and equipment leases, transitional services agreements and shared facilities arrangements. The degree of importance of any one of these operational issues will vary from business to business. However, the key issues should be identified early to ensure that the legal M&A team is aware of the sensitive areas for integration. In the case where a division of a company is sold, one issue which will need to be addressed is what services should be provided by the parent corporation who sold the division. The acquiring company needs to ensure that the parent will provide certain services during a transition period before the company can provide those services itself. Transitional services agreements deal with the parent company providing such services. Careful analysis and sufficient attention should be given to the creation of these agreements. If they are drafted properly, they can be used to extract a significant amount of information from the parent company which will be useful to the integration process.
Conclusion
Integration planning for merger and acquisition transactions is never easy. However, in order to maximize the results, it is important that the integration framework and plan is developed throughout the entire M&A process. The merging parties can enjoy significant competitive advantages and increased efficiency if integration planning is given a sufficiently prominent role.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.