In mergers and acquisitions, the big picture includes many components, including tax obligations, valuation methods, quality of earnings — and, of course, equity. Equity is the backbone of every business, and it can be valued differently based on the equity makeup itself, the exercise rights of issued shares or the market at the time. A few key equity considerations are discussed below.
Plan Documents
Before entering into a merger or acquisition, sellers need to understand how their equity incentive plan works. When a sale occurs, how will equity owners be compensated? Will a change in ownership trigger an acceleration clause? How restrictive is the plan, and how extensive are the awards and grants?
For answers, business owners must look beyond even the plan documents. Occasionally, employment agreements or even individual grant agreements have special change of control clauses that should be reviewed and understood.
Another consideration is the timing of events. Consider incentive stock option (ISO) grants. ISOs are granted to key employees, often as part of their compensation, allowing them to purchase stock at a certain price. Whether employees exercise these options before the merger or acquisition is finalized will affect the final valuation number, so sellers should understand how these equity compensation grants work.
Buyers have similar considerations. They need to grasp the target’s plan documents and employment agreements before they proceed. When they understand the existing equity makeup, they can decide how they will take over and whether they will cancel the plan, cash it out or fully assume it. Equity dilution and key employee retention will be chief concerns during these negotiations.
Purchase Accounting Considerations
When buyer and seller work toward an agreement, they often use “purchase accounting” to value the business. Under this method, the business’s assets, liabilities and equity are adjusted to their fair values based on the assumption that the buyer follows through with the purchase. Valuing equity can prove to be tricky, though. Upon acquisition, the buyer may want to replace the equity incentives with newly issued awards, cancel them or cash them out. Each option will require a different valuation.
But not all equity options affect the purchase price. Consider scenarios where key employees can only exercise their stock options six months or a year after a change in ownership. Even though key employees are expected to exercise those options imminently, their values cannot be included in the purchase price; they are post-transaction expenses. Buyers should invest in careful deal structuring. A good deal includes as many existing equity options as possible in the purchase price.
Sellers should also invest in deal planning. Sellers receive the highest valuation when their employees remain employed with the acquiring entity. To help employees view the takeover as positive, sellers can advocate for specific awards on their behalf and carefully review change-of-control provisions. Key employees may advocate for an acceleration clause in their contract so they can cash in and get out post-acquisition, but limiting that acceleration may make sense for both them and the seller in the long run.
Employees’ Roles
Sellers must invest in employee education. Do employees understand how their equity awards work? Do they know the guidelines for exercising their options? Do they know the tax consequences of the merger or acquisition? Cash compensation may be king, but employees want to understand the role they and their options play in a merger or acquisition. ISOs, for instance, are tax-advantageous to employees who exercise them pre-acquisition, but less appealing post-acquisition.
Capitalize on the Market
In the last few years, the acquisition market has been strong and valuations have been high. To ensure your company is prepared to take advantage of these circumstances, contact our CFO Advisory team. We are ready to discuss your upcoming merger or acquisition and help you through the entire process.
March 27, 2019
