Monthly Archives: July 2020

July 17, 2020

Private Equity: Sponsors Preparing for Exit Window to Open

With valuations taking a big hit and the turmoil that the pandemic has created for many portfolio companies, many sponsors that might otherwise have sought an exit this year are biding their time until more favorable conditions return. This recent McKinsey report says that sponsors are using this additional time to prepare for an exit. Here’s an excerpt on some of the “hard pivots” that portfolio companies are taking to enhance their value:

As we mentioned, the recession has revealed material weaknesses in some business models, such as those of specialty retailers that mistakenly saw themselves as essential to consumers and of retailers that lack bargaining power with suppliers. After solving their immediate liquidity issues, forward-thinking sponsors are making the hard choices now to pivot to a stronger and more resilient business model.

One technology company preparing for exit sold predominantly into the real-estate and hospitality sectors. It had generally priced on a pay-per-use model, which was attractive to many customers. It had previously resisted attempts to move to a fixed-fee software-as-a-service (SaaS) model, as many similar companies have done. Although it has sufficient cash on hand to withstand a protracted downturn, it is now taking the plunge, moving many of its customers to fixed-price or take-or-pay contracts that will provide an even greater cushion in the next downturn (and will probably support better financing).

Some portfolio companies are also diversifying revenues to reduce cyclicality and improve resilience. For an infrastructure-services company focused on logistics and installation of capital equipment, this means a shift toward recurring revenues tied to services in operations and maintenance. Similarly, an industrial-equipment company shifted its mix to include more digitally enabled services.

John Jenkins

July 16, 2020

July-August Issue: Deal Lawyers Print Newsletter

This July-August Issue of the Deal Lawyers print newsletter was just posted – & also sent to the printer (try a no-risk trial). It includes articles on:

– M&A Transactions & PPP Eligibility and Forgiveness Considerations
– Strategic Acquisitions of Distressed Companies in the COVID-19 Environment
– Due Diligence: “That Deal Sounds Too Good to Be True”

Remember that – as a “thank you” to those that subscribe to both & our Deal Lawyers print newsletter – we are making all issues of the Deal Lawyers print newsletter available online. There is a big blue tab called “Back Issues” near the top of – 2nd from the end of the row of tabs. This tab leads to all of our issues, including the most recent one.

And a bonus is that even if only one person in your firm is a subscriber to the Deal Lawyers print newsletter, anyone who has access to will be able to gain access to the Deal Lawyers print newsletter. For example, if your firm has a firmwide license to – and only one person subscribes to the print newsletter – everybody in your firm will be able to access the online issues of the print newsletter. That is real value. Here are FAQs about the Deal Lawyers print newsletter including how to access the issues online.

John Jenkins

July 15, 2020

Reasons for Optimism? CFOs Bullish on M&A Prospects

There hasn’t been much for dealmakers to cheer about in recent months, but this Deloitte report suggests that there may be some reason for optimism about what lies ahead in M&A:

When the COVID-19 pandemic swept into the US, it curbed deal-making significantly. Between February and March, the number of announced deals dropped from 2,349 to 1,984, with deal value decreasing from just over $151 billion to about $130 billion.  Instead of launching new deals, the urgent priority for many finance leaders was to resolve any in-progress transactions, re-evaluating their strategic  assumptions and taking appropriate actions to safeguard their financial positions.

Now, as finance leaders move past the recovery phase of the pandemic and conceive plans for thriving in a changed economic landscape, M&A is poised to play a central role. In April, Deloitte conducted a snap poll of 2,800 US companies, and 70% of the respondents indicated they will continue with M&A and, in some cases, accelerate their deal activities over the next 12 months. In addition, 31% of the 156 CFOs who responded to Deloitte’s Q2 2020 North American CFO Signals™ survey said they expect to acquire distressed assets or businesses over the next year.

The report addresses offensives & defensive rationales for M&A activity, and notes that plenty of buyers are well positioned to move on attractive opportunities. The S&P 1200 companies have a  record $3.8 trillion in cash reserves & the wherewithal to service debt in a “dovish” monetary environment. That’s in addition to the $2.4 trillion war chest that PE firms have ready to be deployed.

John Jenkins

July 14, 2020

Transcript: “M&A Litigation in the Covid-19 Era”

We have posted the transcript for our recent webcast: “M&A Litigation in the Covid-19 Era.”

John Jenkins

July 13, 2020

Appraisal: Del. Supreme Court Upholds “Unaffected Market Price” Valuation

Remember when the Delaware Supreme Court  issued a sharply worded opinion reversing Vice Chancellor Laster’s decision to adopt an “unaffected market price” approach to fair value in his Aruba Networks appraisal decision? Well, last Thursday, in Fir Tree Value Master Fund v. Jarden, (Del.; 7/20), the Court unanimously upheld Vice Chancellor Slights’ decision to use that same valuation standard in an appraisal proceeding involving Jarden Corporation.

Chief Justice Seitz’s 43-page opinion rejected the petitioners’ argument that the Court’s decision in Aruba Networks “foreclosed as a matter of law the court’s use of unaffected market price to support fair value.”  Instead, he said that the neither Aruba nor the Supreme Court’s other recent appraisal decisions ruled out using any recognized valuation methods to support fair value:

In DFC, Dell, and Aruba we did not, as a matter of law, rule out any recognized financial measurement of fair value. Instead, we remained true to the appraisal statute’s command that the court consider “all relevant factors” in its fair value determination. Although subject to academic debate, we have also recognized the efficient capital markets hypothesis in appraisal cases. The Vice Chancellor got the “takeaway” exactly right from our recent appraisal decisions: “[w]hat is necessary in any particular [appraisal] case [] is for the Court of Chancery to explain its [fair value calculus] in a manner that is grounded in the record before it.”

So, it appears that the Court’s hostility toward the Chancery’s use of the target’s unaffected market price to determine fair value in Aruba Networks had more to do with Vice Chancellor Laster’s approach to the valuation process in that case than it did with any fundamental concerns about the use of that standard to determine fair value.

We’ll be posting memos in our “Appraisal Rights” Practice Area.  But for now, check out Prof. Ann Lipton’s analysis of the decision over on “Business Law Prof. Blog.”

John Jenkins

July 10, 2020

Activism: Investors Are Willing to Listen to the Pitch

I don’t think it will come as a surprise to many public companies to learn that their investors are becoming more open to listening to pitches from activist shareholders, but IR Magazine’s report may still raise some eyebrows with its conclusions about just how willing they are to hear activists out:

Almost two thirds of investors say they are open to talking to activist investors about a company they have a position in, according to recent research from IR Magazine. While many companies continue to experience volatile share prices and balance sheet concerns – with a significant increase in the number of companies adopting poison pills this year – investors are more likely to support an activist campaign now than they were three years ago.

This is according to IR Magazine’s Shareholder Activism research report, which was released last month. Almost two fifths (39 percent) of investor respondents say they are more likely to support an activist campaign than they were three years ago, with almost half of European and Asian respondents agreeing with this statement.

The silver lining for company boards & management is that the number of investors siding with activist investors remains relatively low. The report says that only 22% of buy-side respondents have been involved in an activist campaign since 2017, with 5% leading the campaign and 17% supporting or partnering with an activist investor.

John Jenkins

July 9, 2020

M&A Financials: SEC’s New Rules Give Carve-Outs a Break

Public companies acquiring divisions or product lines have often had to seek Corp Fin’s sign-off on the use of abbreviated acquired company financial statements in connection with those acquisitions. That process introduces an additional element of potential delay & uncertainty to these “carve-outs,” but this Cooley blog says that the SEC’s new rules on acquired company financial statements provide some real help.  This excerpt from the intro summarizes the implications of these changes for buyers:

The new rules permit buyers to file abbreviated financial statements in these types of carve-out transactions without prior SEC consent, as long as certain criteria are met. Eliminating the need to obtain this relief from the SEC will save buyers time and legal and accounting expense. More importantly, the new rules may better position a buyer in an auction process where the buyer needs to know that it will be able to satisfy its SEC filing obligations if its bid prevails.

Under the current rules, a potential buyer is often forced to choose among several less than ideal options in an auction process, whether it be (i) seeking permission from the seller to request the SEC exemption on a contingent basis during the process, (ii) including a contingency in its bid for obtaining this SEC relief or (iii) accepting the risk that it might not be able to satisfy the financial statement requirements and become non-compliant with SEC filing requirements (therefore losing S-3 eligibility).

While buyers will still need to make arrangements with sellers to prepare & audit the abbreviated financial statements, the blog notes that the new rules eliminate much of the uncertainty for many carve-outs. That’s because they provide that abbreviated financial statements may be used without prior SEC approval if certain conditions are met, including the absence of separate historical financials for the acquired business. The acquired business also must represent 20% or less of the seller’s total assets & total revenues on a consolidated basis for its most recently completed fiscal year.

John Jenkins

July 8, 2020

Earnouts: Structuring Considerations for the Covid-19 Environment

This Sidley memo (pg. 2) discusses how the implications of the Covid-19 crisis may require buyers & sellers to scrutinize earnout provisions with a “new lens,” whether they are negotiating new deals or potentially renegotiating existing ones.  This excerpt addresses some of the considerations associated with using a “sliding scale” earnout instead of the more customary all or nothing arrangement:

Earnouts are often structured with all-or-nothing payment terms such that seller receives nothing if the earnout threshold is not met. It is difficult to forecast appropriate earnout benchmarks, and, when a company is performing well or creating value but these all-or-nothing terms are still unattainable, a seller (or former equity holders of seller who are current key employees of the target) may lose motivation to drive company performance.

Further, key employees of seller may terminate their employment with buyer in the absence of other significant retention mechanisms. Thus, when a company is performing well, but below an earnout threshold, value is lost when both parties would have continued to perform if a lower payout than was previously negotiated were available. In these scenarios, making a reduced earnout payment may be less costly to buyer than the loss of aligned incentives to drive future company performance or the loss of key employees. Similarly, if a threshold for performance is set too low, for example, because the longer-term impacts of COVID-19 are overestimated, seller may take its foot off the gas when it is clear that an earnout will be achieved, even if better performance is achievable.

Given the unexpected downturn in the economy caused by the COVID-19 pandemic, earnouts that were negotiated in 2018 and 2019 assuming in-line 2020 performance may be unachievable now and, without renegotiation, can result in value loss to both buyers and sellers. In some of these situations, buyer may still want seller’s ongoing assistance to navigate the current conditions and may be willing to pay an earnout, albeit in a lesser amount than originally negotiated, or amend the earnout metrics to incentivize continued assistance driving future value.

When earnouts are structured with a sliding scale payout (i.e., setting a floor for minimum performance and a ceiling for a maximum payment, with the payment based on a performance formula) or multiple payment thresholds (i.e., setting multiple payout levels in steps based on performance), this can help preserve some of the value that would have been lost in all-or-nothing payout structures.

The memo notes that if the buyer selects an appropriate floor and ceiling for its earnout obligations, a sliding scale or multiple payment structure may increase the likelihood that the parties’ objectives remain aligned.

John Jenkins

July 7, 2020

M&A “Common Interest” Privilege Doesn’t Cover Commercial Interests

The “common interest” privilege protects privileged information that is exchanged by two parties represented by counsel concerning a legal matter in which they share a common interest. The privilege has often been asserted to protect communications between buyers & sellers during the course of a acquisition.  This Morris James blog discusses the Delaware Superior Court’s recent decision in  American Bottling Co. v. Repole, (Del. Super.; 5/20), in which the Court declined to apply the privilege to communications that it determined were predominantly commercial, not legal, in nature.

The case involved a dispute over whether a merger involving the plaintiff had terminated a distribution contract.  The plaintiff inadvertently produced materials relating to the contract that it had shared with a third party that subsequently merged with the plaintiff’s parent, and sought to claw them back based on a claim that the common interest privilege applied.  This excerpt reviews the Court’s analysis of the privilege claim:

The documents were a series of charts and other work product that described the nature of the distribution agreement between Plaintiff and Defendant and described how best to “capitalize on” it in the context of the merger. The documents were drafted and shared by the Third Party Entity’s counsel with Plaintiff’s parent after the merger agreement was executed but before the merger closed. For the documents to remain privileged, Plaintiff needed to show that a common interest applied to protect the shared documents.

The Court found that the Plaintiff and the Third Party Entity did not share a common legal interest sufficient to protect the documents from production on the basis of privilege. Following an in camera review, the Court found that the documents were shared with the Plaintiff for predominantly commercial purposes rather than to facilitate rendering legal advice.

Applicable Delaware precedent established that if the primary focus of the interest was commercial, “[i]t is of no moment that the parties may have been developing a business deal that included as a component the desire to avoid litigation,” regardless of whether legal counsel provided input on the documents. Accordingly, the Court concluded that the common interest privilege did not apply.

John Jenkins

July 6, 2020

Global M&A Had a Grim First Half of 2020

Pretty ugly numbers on global M&A for the 1st half of 2020 from this Axios Pro Rata newsletter:

– Global M&A value for the first half of the year is down 41% from 2019, while the number of deals is down 16%. In the U.S., value is down 68.8% but deal volume is up 10.6%.

– Global deal value fell 25% between Q1 2020 and Q2 2020, while U.S. deal value fell 57%.

– There were over 3,100 global private equity deals valued at around $200 billion in the first half of 2020, representing a deal number decline of 7.9% and a deal value drop of 23.6% over the same period in 2019.

Sigh.  At least baseball’s coming back. Maybe.

John Jenkins