Buying or Selling an ESOP-Owned Company: How to Execute a Successful Transaction. The presentation includes a recent case study of the sale of a large ESOP-owned company, discussion of intricacies involved related to an ESOP, and how to execute a successful transaction.
Ins and-outs-of-buying-and-selling-an-esop-company
1. “Ins & Outs” of Buying and Selling
an ESOP Company
AM&AA 2015 Winter Conference
Las Vegas, Nevada
January 29, 2015
David
B.
Solomon
Levenfeld
Pearlstein,
LLC
2
N.
LaSalle
Street,
Suite
1300
Chicago,
Illinois
60602
P:
(312)
476-‐7526
Email:
dsolomon@lplegal.com
Alberto
Toribio
del
Pilar
ButcherJoseph
&
Co.
101
S.
Hanley
Rd.,
Suite
1450
St.
Louis,
MO
63105
P:
(314)
558-‐5116
Email:
alberto.delpilar@butcherjoseph.com
Michael
E.
Zeller
Moore
&
Van
Allen
PLLC
100
North
Tryon
Street,
Suite
4700
CharloZe,
NC
28202
P:
(704)
331-‐1064
Email:
mikezeller@mvalaw.com
ALLIANCE OF MERGER & ACQUISITION ADVISORS®
3. Why ESOP Companies Get Sold
§ Changing risk profile
§ Market conditions
§ Liquidity needs
§ Non-ESOP shareholders want an exit without selling additional
shares to the ESOP
§ Unable to re-pay debt from operating cash flows
§ Repurchase obligation issues
§ Receive an unsolicited offer
§ Need for a new capital structure
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5. Issues for an Acquirer of an ESOP-Owned Company
§ Acquirer needs to be educated as to the peculiarities of ESOP
transactions
§ There is a difference between what is customary in non-ESOP
M&A transactions and what is “allowable” under ERISA and
customary in ESOP M&A transactions
§ Acquirer will have to conduct more extensive due diligence and
rely on that due diligence as recourse usually limited to an escrow
§ Valuation/fiduciary/administrative issues relating to the ESOP will
also have to be negotiated
§ What happens with the money in the ESOP from the transaction
proceeds?
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6. Optimal ESOP Company Sale Process
§ Board of Directors Develops Policies and Procedures for Sale
Process/Hires Advisors
§ Senior Management Receives Offer/Confirms Offer is “Bona Fide”
§ ESOP Trustee and its Advisors (and in some cases ESOP
Participants) Analyze the Offer
§ Board of Directors Reviews Offer/Recommends Approval or
Disapproval
§ Buyer Due Diligence, Negotiation and Documentation of Transaction
§ Buyer, Company and ESOP Trustee Address Post-Closing Issues
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7. Board of Director Policies and Procedures Regarding the
Sale of an ESOP Company
§ Even if the Board desires not to sell an ESOP Company, there should
be a policy developed to memorialize the objectives for maintaining
ESOP ownership
§ The Board should also develop policies and procedures to address
how to handle unsolicited offers to buy the Company
§ Some offers are “too good to refuse”
§ All offers should be contextualized with the status quo and any viable
alternatives that provide liquidity to ESOP participants
§ If the Company is in the process of being sold, the Board should hire
its own independent advisors
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8. Analysis of Offers by Senior Management
§ Management should treat “real” offers seriously but no duty to inform
Board/ESOP Trustee if offer is not “bona-fide”
§ Offers to buy the Company are “bona-fide” if:
§ Proposed consideration is nominally adequate
§ Other proposed deal terms are fair and reasonable and treat all
shareholders equitably
§ Proposed purchaser has the financial ability to pay the proposed
purchase price
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9. Fiduciary Standards Applicable to Board Members in
Evaluating the Sale of the Company
§ Board subject to “Business Judgment Rule” and should take into
account:
§ Value to shareholders
§ Company culture and independence
§ Employees, employment, motivation, productivity
§ Alternative purchasers
§ Continuity of business
§ Whether purchase price is no less than fair cash value under state
corporate law
§ If the Company/Response Team decides to negotiate a transaction, is
an auction required? Is exclusivity permitted?
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10. Fiduciary Standards Applicable to ESOP Trustee in
Evaluating the Sale of the Company
§ “Exclusive Benefit Rule” requires ESOP Trustee to optimize value for
all plan participants (short vs. long-term)
§ “Kroy” standards for trustees:
§ Good faith
§ Diligent investigation
§ Independent judgment
§ Prudent expert
§ Adequate consideration rules
§ IRS Ruling 59-60
§ ERISA Section 3(18)B and proposed Reg 29 CFR 2510.3-18(b)
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11. Conflicts Between Board and ESOP Trustee Standards for
Evaluating Offers to buy the Company
§ Board of Directors:
§ Duty of good faith and reasonable standard of care (protection
under the business judgment rule)
§ ESOP Trustees/ERISA Fiduciaries:
§ Duty of good faith and a higher standard of care (no protection
under the business judgment rule)
§ Potential conflicts if board members also serve as ESOP Trustees
(Donovan v. Bierwirth and Howard v. Shay)
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12. Issues for ESOP Trustees In Evaluating the Offer
§ In evaluating an offer to sell the Company, the ESOP Trustee should
consider the following questions:
§ Does the offer equate to or exceed fair market value? (This is
Absolute Fairness)
§ Would the ESOP receive its “fair share” in the transaction relative
to other parties to the transaction? (This is Relative Fairness)
§ Was a thorough process used to reach a proposed transaction?
§ Whether the buyer is the best deal partner?
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13. Evaluating the Offer – Absolute Fairness
§ Fairness Opinion
§ Financial Point of View
§ Valuation Methods
§ ESOP-related expenses
§ Tax Benefits
§ Control premium/synergies
§ Marketability
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14. Is the Trustee Required to Sell if the Offering Price is
Greater than the Appraised Value of the Company?
§ According to a Joint DOL/IRS statement, an ESOP Trustee is NOT
obligated to sell stock in an ESOP solely because the price is at a
premium to fair market value
§ Other factors to consider:
§ Look at long-term prospects of target company and weigh an offer
against the underlying intrinsic value of the company and the
likelihood of that being realized by current management or by a
subsequent offer
§ S Corporation benefits must be considered (tax shield)
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15. Evaluating the Offer – Relative Fairness
§ ESOP treatment relative to other parties:
§ Employee contracts
§ Amount
§ Length
§ Additional incentive plans to keep executives in place post-
transaction
§ Payment to the executives for bringing about the sale
§ Other “side” deals
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16. Evaluating the Offer – Process
§ Did the Company just react?
§ Did the Board hire an investment banker?
§ Was an auction process used?
§ Was the contract with the investment banker structured to ensure the
best deal possible for the Company?
§ Are the Company decision makers motivated to get the best deal
possible or just to get a deal done?
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17. Evaluating the Offer – What About the Buyer?
§ Does the Buyer have the financial strength to carry through the
transaction, including honoring any earn outs?
§ Has the Buyer done other acquisitions and how does this one
compare?
§ What synergies is the Buyer likely to get? Is any of that shared with
the Target?
§ Where is the Buyer in its business cycle? Could it make a better offer
at a different time?
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18. Other Issues for the ESOP Trustee in a Sale Transaction
§ Can the ESOP Trustee agree to an earn out?
§ Can escrowed funds/earn outs be considered a part of the purchase
price for purposes of determining “Adequate Consideration” and
“Fairness”?
§ Can the Trustee take into consideration any other non-financial factors
in evaluating the proposed transaction?
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19. Administrative Issues in Connection with the Sale of an
ESOP Company
§ Participant voting requirements
§ Repayment of ESOP Debt/Remaining shares in suspense account
§ Plan Termination/Disposition of Plan Assets/Full Vesting
§ Other qualified plans and protected benefits
§ Triggering change in control provisions of deferred compensation
plans
§ Distribution of plan assets
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20. ESOP Participant Pass-Through Voting Requirements
§ ESOP participants only entitled to vote shares allocated to their ESOP
accounts for a merger/sale of assets
§ Stock sale transactions/tender offers do not require a pass-through
vote (unless required by plan document)
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21. What is the ESOP Participant Approval Process for an Asset
Sale or Merger?
§ Provide Disclosure Statement containing:
§ Summary of Purchase Agreement terms/related party transactions
§ Plain language explanation of transaction
§ Comply with statutory timing of pass through vote/appraisal rights
§ Meeting with participants (optional)
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22. Issues Relating to Outstanding ESOP Loan upon the Sale of
an ESOP Company
§ Outstanding ESOP-related debt will have an impact on the ESOP’s
return from the transaction
§ The obligation to repay the ESOP’s outstanding debt should be
negotiated as it may accrue to either the ESOP or the plan
sponsor/other shareholders.
§ The ESOP – related debt affects the unallocated shares of stock
held by the plan.
§ ESOP Trustee may be able to obtain a final company contribution and/
or dividend payment to pay down the remaining ESOP loan (but
issues under Section 415 may arise if the maximum limit is reached
because of prior contributions)
§ Will ESOP shares be sold for cash or shares of the buyer?
§ Participant distribution and rollover issues
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23. Alternatives for the Repayment of ESOP Loans/Disposition
of Unallocated Shares
§ Surrender of unallocated shares at deal price in exchange for
cancellation of debt and allocate proceeds from remaining unallocated
shares to ESOP participants
§ May also need to negotiate “replacement” benefits if using
unallocated share proceeds to repay ESOP debt
§ Forgiveness of all or part of debt and allocation of shares to
participants
§ Substitution of buyer stock for company stock and continuation of
ESOP
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24. Options for ESOP Post-Transaction
§ Merge ESOP into buyer’s plan
§ Terminate ESOP and distribute assets to participants (a potential risk
for the Buyer)
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25. Procedural Considerations for ESOP Plan Termination
§ Prepare a Board resolution indicating that the Company is terminating
the plan and specifying the termination date for doing so (will trigger
100% vesting)
§ Decide whether to file for an application for an IRS favorable
determination letter
§ Review the ESOP document to determine if any amendment is
needed prior to termination. Consider such things as:
§ Recent legislative changes requiring plan amendment
§ Plan termination date and freezing plan entry
§ Establish procedures for making final allocations
§ Hours and employment on allocation date requirement
§ Compensation to be used for the final allocation
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26. Considerations for Distribution of Plan Assets upon ESOP
Plan Termination
§ Any changes needed to timing, method or form?
§ Stock distributions vs. cash distributions?
§ Can a right to demand a stock distribution be eliminated?
§ Wait for favorable determination letter
§ If transferring assets to Buyer’s plan, that plan may need to be amended to accept a
transfer of assets from the terminated plan for participants who do not consent to a
distribution and the ESOP may have to be amended to allow a transfer to the other
qualified plan for participants who do not consent to a distribution.
§ Any distributions currently in process will need special attention
§ Will they be paid based on the most recent valuation or will they get paid based on
the sale price of the company?
§ What should be done regarding distributions payable after a possible sale is known
and before the transaction is completed?
§ Regarding force out distributions?
§ Regarding participant requested distributions?
§ Where an escrow is involved, distribution to ESOP participants may involve cash
payments and “scrip” payments to participants evidencing their proportional shares in
the escrow account
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27. Additional Administration Considerations upon the Sale of an
ESOP Company
§ Search for missing participants
§ Prepare distribution election forms
§ Prepare final ESOP accounting
§ Make distributions
§ Generally required within one year of the plan’s termination date. May
be delayed if waiting on a timely filed determination letter request
§ If any participants do not consent to the distribution,
§ Rollover to IRA?
§ Transfer to another plan maintained by the employer?
§ File final Form 5500 annual report and send final Summary Annual
Report to participants
§ Generally due the last day of the 7th month following the date of
final distribution (unless extension is granted)
§ Issue final Forms 1099R
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28. Concluding Observations
§ Every ESOP Company should have a policy to address the potential
sale of the Company
§ Avoid conflicts of interest between corporate fiduciaries (Board,
Officers, etc.) and ESOP fiduciaries
§ Hire experienced advisors to handle complicated legal/financial/
administrative issues involved in the sale of an ESOP Company
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