Mergers & Acquisitions

RLI Design ProfessionalsDesign Professionals Learning Event

DPLE 169April 18, 2018

RLI Design Professionals is a Registered Provider with The American Institute of Architects Continuing Education Systems. Credit earned on completion of this program will be reported to CES Records for AIA members. Certificates of Completion for non-AIA members are available on request.

This program is registered with the AIA/CES for continuing professional education. As such, it does not include content that may be deemed or construed to be an approval or endorsement by the AIA of any material of construction or any method or manner of handling, using, distributing, or dealing in any material or product. Questions related to specific materials, methods, and services will be addressed at the conclusion of this presentation.

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Course Description

A recent major study found that 68% of design firms have strategic plans

for a merger or acquisition in the next five years.

This presentation will cover important considerations for firms

undertaking merger or acquisition activity.

Learning Objectives

PART ONE: Understand how

M&A transactions are impacting the

A&E space

PART TWO: Develop a

framework for understanding

common transactional

issues

PART THREE: Evaluate and

discuss important tools and concepts

to promote a successful

transaction

PART FOUR: Evaluate risk

allocation in the context of M&A

transactions

Participants in this session will:

Underlying Theme

M&A = Transition of ownership in an entity throughsome sort of transaction structure.

Underlying Theme: How professional service firms can manage transitions in management and ownership through a merger or acquisition.

PART ONE – A HYPOTHETICAL

Departure Options

The Offer

MEGA FIRM

The Transaction

MEGA FIRM (“Parent”)

100%

Before After

STAR ARCHITECTS

2.0 (“Subsidiary”)

STAR ARCHITECTS

MEGA FIRM (“Parent”)

STAR ARCHITECTS

2.0 (“Subsidiary”)

The Agreement

M&A Activity in ReviewTwo major reasons for increase in M&A transactions

(1) Disconnect between “Generation Xers” and “Baby Boomers”

(2) Larger firms seeking to advance presence in specialized areas

M&A Activity in Review

Source: http://www.morrisseygoodale.com/2015-Mid-Year-Review.html

Asset Only Purchase

• Only the valuable assets of the acquireeare purchased.

• No past liabilities are acquired.

• Avoids uncertainty and risk associated with past liabilities of the acquiree.

Purchase of all stock/partnership

interest

• Includes purchase of all assets and liabilities.

• Allows perpetuation of ongoing work, retention of staff, and rights to predecessor firms’ entire portfolio of work.

Preferred in A&E space

M&A Activity in Review

Source: http://www.morrisseygoodale.com/2015-Mid-Year-Review.html

Median Sized Buyer (like “Mega Firm”)

• Average $53.3 million in revenue

• Approximately 450 employees

Median Sized Seller (like “Star Architects”)

• Average $2.7 million in revenue

• Approximately 22 employees

Median Buyer

Median Seller

*Median revenue of buyer and seller drawn to scale

PART TWOBUILDING A FRAMEWORK

Relationship between transaction-related issues and claims-related issues

Likelihood that a claim will arise

Likelihood of a transaction-related issue

Relationship between transaction-related issues and claims-related issues

Merger takes place

Increased chance of key employee

departing

Decreased chance of successful M&A

transactionIncreased risk of

claims arising

When can things go wrong?

Relationship Building Period

Buyer develops

M&A strategy

Merger Period

Integration Period

Buyer approaches candidate

Tentative agreement –

letters of intent signed

Formal Agreement with Board

Final Approval

Due Diligence Period

Information integration

Finance & accounting

Employee Management

StructureMarketing

PART THREETOOLS FOR A SMOOTH TRANSITION

Problems on the horizon…

Mr. Badguy v…• Star Architects• Star Architects 2.0• Mega Firm• Mr. Goodguy

100%

MEGA FIRM (“Parent”)

STAR ARCHITECTS

2.0 (“Subsidiary”)

Tools for a “Smoother Transition”

Avoiding Potential Contract Issues

Integration Plan

Duty of Cooperation

Duty of Cooperation

Star Architects / Mr. Goodguy

CooperationMega Firm /Star Architects

2.0 Cooperation

Duty of Cooperation

Star Architects

Mr. Goodguy

Where Mr. Goodguy has ownership in Star Architects and/or is an employee of Star Architects, Star Architects will defend and indemnify him against lawsuits.

Star Architects 2.0

Mr. Badguy

V.

Where Mr. Goodguy has NO ownership in Star Architects 2.0 and/or is NO LONGER an employee of Star Architects, Star Architects 2.0 has no reason to defend and indemnify him against lawsuits.

V.

Mr. Goodguy Mr. Badguy

No protection!Protected

Integration

Health PlansGeography

Vacation Policies

Employee Benefits

New MgmtStructure

Creativity Concerns

Integration

Health PlansGeography

Vacation Policies

Employee Benefits

New MgmtStructure

Creativity Concerns

STAR ARCHITECTS: 25 employees prides itself on“creative and innovative work”

v.

MEGA FIRM: 450 employees and considered “one of the largest firms in the land”

Integration

Successful Integration

Vision

Valuable Client

Relationships

Talent Retention

Integration

Mega FirmStar Architects

Mega Star

Figure 1

Mega Firm

Subsidiary

Mega Firm

Star Architects 2.0

Figure 2

Star Architects

Assignment of Contracts

“Freely Assignable” = one party to the contract can assign, or “transfer,” the contract to a third party without obtaining the express consent of the other original party to the contract.

General Rule Regarding Assignability: Contracts are freely assignable unless the contract itself, a statute, or public policy dictates otherwise.

Assignment of Contracts

Example of a “Simple Anti-Assignment Clause” (AIA 101)

• “The owner and architect, respectively, bind themselves, their agents, successors, assigns and legal representatives to this agreement. Neither the Owner nor the Architect shall assignthis Agreement without the written consent of the other, except that the Owner may assign this Agreement to a lender providing financing for the Project if the lender agrees to assume the Owner’s rights and obligations under this Agreement.”

Additional Contract Issues

PART FOURALLOCATING RISK

Allocating Risk

Year 1Life of Star Architects Life of Star Architects 2.0

Negligent Act Occurs

Negligent Act Occurs

Life of Star Architects Life of Star Architects 2.0

Duration of Project

Allocating Risk: Insurance Coverage – the “Tail” Policy

Original Policy

Policy Termination

Tail PolicyYear 1 Year 5

Allocating Risk: Insurance Coverage – Prior Acts Coverage

Year 1 Year 5

Original Coverage Effective Date

Future ActsPrior Acts

Allocating Risk: Insurance Coverage – Who bears the cost?

Mega Firm

Star Architects

2.0

Subsidiary A

Subsidiary B

Allocating Risk: Asset-only purchases and indemnification

Indemnification = (1) Holding harmless, (2) paying on behalf of and (3) making whole.

Assets

Current AssetsCash…………………10Acc. Rec…………...50Prepaid Ins……….40

PropertyLand…………………..5Buildings…………..10Equipment…………7

Liabilities

CurrentNotes payable………2Accounts payable…3Unearned rev……….4

Stockholders’ Equity

Common stock………5Retained earnings…5

Allocating Risk: Indemnity and Financial Guarantees

Consider important tools for promoting successful transactions

Understand how M&A

transactions are impacting the A&E space

Develop a framework for understanding

common transactional

issues

Consider important tools for

promoting successful

transactions

Evaluate risk allocation in

the context of M&A

transactions

Consider important tools for promoting successful transactions

This concludes The American Institute of Architects Continuing Education Systems Program