Many private equity buyers decide to take on corporate carve-outs, they create
opportunities for new potential assets. They can bid for non-core assets of
large nationals and multi-nationals seeking to focus on core businesses or
hoping to raise capital with any such divestment.
However, corporate carve-outs are often quite complex and if there are global
locations and teams involved the complexity increases 10 fold. If not planned
and executed inaccurately, the buyer could lose the rights and/or assets it
needs to effectively operate the new business. Or, in some cases, it can be
left with responsibility for liabilities and obligations relating to a
business the buyer doesn’t own. Here are a few principal issues to consider as
a buyer before pursuing a corporate carve-out.
Acquiring the Right Assets
There are several key components to understand before undertaking a corporate
carve-out. For example, here are a few questions you might want to consider:
- Do you understand the business being acquired?
- Do you know how it currently operates within the existing wider business?
- How will it function after it is separated from the Group and acquired by the new buyer?
And those questions only scratch the surface. Other factors may vary depending
on the nature of the business, such as:
- Transferring of plant and machinery, other assets
- Intellectual property
- Licenses
- Stock,
- Goodwill
- Information technology, know-how and confidential information,
- Underlying contracts and debtors/creditors
- and more
These complexities can create confusion regarding whether the assets belong to
the business being retained, the business being sold, or both. In many cases,
it may be necessary to license intellectual property between businesses,
“share” or “split” contracts, or share premises and employees.
Transition Service Agreements
Acquisitions must ensure the buyer assets they need to function properly. A Transition Service Agreement
is when one or both businesses agree to provide services to the other post
completion for a set period of time. This serves to maintain business
continuity while also instituting the necessary standalone infrastructure for
itself.
This is why we mentioned the need for buyers to understand the business before
pursuing a corporate carve-out. Knowing how a business operates will help the
buyer determine how long it realistically takes to replace any services. In
the meantime, set expectations around the services that are to be provided and
the associated level of service required.
Employment Preparations and Considerations
Corporate carve-outs are much different than share purchases. During a share
purchase, all employees of a target group usually transfer with the target
group itself. However, a corporate carve-out requires consideration into which
employees of the business are part of the carve-out.
In some cases, government regulations exist and automatically transfers
employees with a business to the buyer, regardless of what the parties agree
to. The EU Transfer of Undertakings (Protection of Employment) is a prime
example of this. It’s important to take an analytical approach to determine
which employees would (or should) transfer with the business. The parties will
also need to discuss any employees that are specifically required or excluded
from the transaction.
Both parties will need to agree on sturdy procedures for dealing with
employees regarding their transfer. Indemnities may be given in respect of
claims by employees relating to their transfer or non-transfer, depending on
the allocation of risk.
There are also considerations for ensuring a smooth employment transfer
spanning:
Corporate Infrastructure Planning: Legal entity setup, professional employer
organization or employer or record (PEO/EOR) or both – what is the best option
keeping in mind short and long term goals of the organization.
HR Considerations: To ensure Day 1 readiness. These include:
- Employment Contracts (Maintaining Terms or Re-Drafting)
- International Employment Law Requirements and Ongoing Compliance
- Global Mobility (Visas, Work Permits, etc.)
- Provision and Support of Statutory and Supplemental Benefits
- Workforce Reduction/Employee Exits
Implementing Restrictive Covenants
The last thing a buyer wants to do is compete with the business from which it
was carved out. It is critical that the business transferred isn’t negatively
impacted post completion. This is a natural challenge in the carve-out process
as there will likely be overlap between the retained and the transferred
businesses.
Finding a way for the retained and transferred businesses to co-exist will
take extensive consideration. Use competition advice to assess whether the
reciprocal protections will fall foul of the prohibition on cartels and
similar arrangements.
Taxes Overview
A corporate carve-out can be structured as a sale of assets or a sale of
shares. Let’s first discuss the tax implications for carve-outs designed as a
sale of assets. For Value-Added Tax (VAT) purposes, it’s necessary for both
parties to determine if the transfer is a business as a going concern (TOGC).
The reason this matters is because a TOGC is outside the scope of VAT.
However, TOGC rules are not optional, so the requirements will need to be
considered during the early stages of the transaction.
With that being said, there is one condition particularly relevant to
corporate carve-outs. In order to qualify, there must be a transfer of a
business or part of a business as a going concern. If part of the business is
being sold, this part must be “capable of separate operations”. This doesn’t
mean the seller must use the assets in question as a separate operation, only
that it is a possibility.
Now let’s discuss if the parties structure the carve out as a share sale. Tax
charges could arise on moving unwanted assets out of the target pre-sale.
Degrouping type charges may also arise on the sale, after a transfer of assets
into the share in target pre-sale. Buyers should also have tax warranties
and/or tax indemnity to cover any historic tax liabilities inherited during
the acquisition of shares in the target.
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