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Mergers, Acquisitions, and Buyouts, June 2020

By Martin D. Ginsburg, Jack S. Levin, Donald E. Rocap
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Overview

Mergers, Acquisitions, and Buyouts, June 2020

By Martin D. Ginsburg, Jack S. Levin, Donald E. Rocap

When structuring mergers and acquisitions, there's only one way to be sure that you've thought of all the tax and legal consequences: rely on Martin D. Ginsburg, Jack S. Levin and Donald E. Rocap as you plan, develop, and execute your mergers and acquisitions strategy.

In this gold-standard resource for mergers and acquisitions analysis and guidance—available as a five-volume print set, a bundle with the print and CD-ROM editions, or online—these expert practitioners offer you:

• Solutions to real-life business merger problems as they arise in negotiations
• Step-by-step analysis of typical and non-typical company buyout and company merger transactional permutations
• Checklists, flow charts, and other at-a-glance mergers practice materials

Whether you represent the buyer, the seller, or another interested party, you can go straight to a model M&A agreement that gives you:

• A complete document structured to embody your client's M&A interests
• Clauses addressing a wide variety of specific mergers and acquisitions situations
• Specific language for even the smallest mergers and acquisitions variations you're likely to encounter
• Includes CD-ROM containing Mergers, Acquisitions, and Buyouts: Sample Acquisition Agreements

When it comes to companies buying other companies—particularly public company acquisitions—seemingly every transaction raises something unique, Mergers, Acquisitions, and Buyouts is recently updated with:

• New step-by-step methods for structuring transactions, with tax, SEC, corporate, HSR, accounting and other mergers considerations
• New table summarizing and contrasting terms of pro-buyer, pro-seller, and neutral stock & asset purchase agreements
• Practical guidance based on the latest mergers and acquisition news and the most recent corporate acquisition developments
• New mergers legislation, M&A regulations, rulings, and M&A litigation outcomes impacting M&A transactions as reflected in recent mergers and acquisitions

Previous Edition: Mergers, Acquisitions, and Buyouts, November 2019: Five-Volume Print Set, ISBN : 9781543811384¿

Frequently asked questions covered in Mergers, Acquisitions, and Buyouts:

• What are the tax considerations in our M&A transaction?
• Are there recent deals or developments affecting our M&A transaction?
• How do we handle unwanted assets?
• How do we handle reorganizations that are “solely for voting stock”?
• What are the tax aspects of LBO structuring and financing?
• What should we be taking into consideration regarding management compensation?
• How do you execute a mergers and acquisitions strategy using Partnership, LLC, or REIT?

Pages 4888
Last Updated 06/24/2020
Update Frequency Semi-annually
Product Line Wolters Kluwer Legal & Regulatory U.S.
ISBN 9781543821512
SKU 10045579-0007
Last Updated 07/15/2020
Update Frequency Semi-annually
Product Line Wolters Kluwer Legal & Regulatory U.S.
ISBN 9781543821550
SKU 10064932-0005
Publish Frequency Semi-annually
Product Line Wolters Kluwer Legal & Regulatory U.S.
SKU 000000000010015175
Table of Contents

Summary Table of Contents with Highlights of Key Topics

Mergers, Acquisitions and Buyouts deals not only with the federal income tax aspects of acquisitions, but also (although somewhat more briefly) with many of the other aspects of acquisitions, including state corporate law, securities law, accounting, fraudulent conveyance law, antitrust reporting, and contract terms that are important in negotiating, structuring, and effectuating an acquisition.

Volumes 1 - 4: Transactional Analysis
1. Introduction, Overview and Definitions
2. Taxable Purchase of Target’s Stock and Taxable Reverse Subsidiary Merger
Chapter 2 deals with Purchaser's taxable purchase of Target’s stock, including Purchaser's acquisition of Target through a taxable reverse subsidiary merger.

3. Taxable Purchase of Target’s Assets and Taxable Forward Merger
Chapter 3 deals with Purchaser's taxable purchase of Target’s assets, including Purchaser's acquisition of Target through a taxable forward merger.

4. Taxable Acquisitions: Acquisition Expenses, Stepped-Up Basis Allocation, Intangibles, Amortization, Non-Compete Covenant, Tax Receivable Agreement, etc.
Chapter 4 deals with many of the collateral issues in a taxable acquisition, including deductibility of Target’s and Purchaser's expenses of the acquisition, determining whether to structure the acquisition for asset SUB or asset COB, allocating the purchase price among the acquired assets in an SUB transaction, amortization of SUB intangible assets, consulting payments, non-compete covenants, §1253 franchise payments, contingent-interest debt, tax receivable agreements, and the risk of inadvertent asset COB, and zero basis problems where Purchaser stock is delivered by a Purchaser subsidiary.

5. Unwanted Assets
Chapter 5 deals with unwanted Target assets.

6. Tax-Free Reorganization Basic Principles
7. "Solely for Voting Stock" Reorganizations
8. Reorganizations Not "Solely for Voting Stock"
Chapters 6 through 8 deal with acquisitions intended to qualify as tax-free corporate reorganizations.

9. Code § 351 Acquisitions and Dispositions
Chapter 9 deals with the creative use of Code §351 (COB asset transfer to an 80% controlled corporation partly or entirely in exchange for stock).

10. Tax-Free Spin-Offs
Chapter 10 deals with Code §355 spin-offs.

11. Taxable and Tax-Free S Corp Acquisitions
Chapter 11 deals with the additional acquisition issues presented where either Purchaser or Target or both is an S corp.

12. Acquiring or Restructuring Distressed Company, Including Debt Cancellation Income and NOLs
Chapter 12 deals with the acquisition or restructuring of a financially distressed C corp, S corp, partnership or LLC, including consequences to LossCo and its creditors from a restructuring and effects of an acquisition on LossCo's NOLs and other tax attributes.

13. Tax Aspects of LBO Financing--Debt and Preferred Stock
14. Tax Aspects of LBO Structuring
Chapters 13 and 14 deal with a number of the issues that arise most often in LBOs, but also in other acquisitions, including the deductibility of interest on money borrowed to make the acquisition or on debt securities issued in the acquisition, the tax treatment of original issue discount on debt and preferred stock issued to finance the acquisition, the tax consequences when such preferred stock is redeemed, and alternative approaches to structuring an LBO.

15. Management Compensation
Chapter 15 deals with the tax and accounting aspects of compensating Target’s, Purchaser's, or Newco's management (including ISOs, NQOs, SARs, deferred compensation, vested or unvested stock or deferred compensation, and golden parachute tax rules).

16. Acquisitions and Dispositions Using Partnership, LLC, or REIT
Chapter 16 deals with the use of partnerships, LLCs, and REITs in acquisitions and dispositions (including state partnership and LLC laws).
17. Non-Tax Acquisition Issues, Including SEC, State Entity Law, ERISA Group Liability, Accounting, Fraudulent Conveyance, and Antitrust Reporting
Chapter 17 deals with non-tax issues in acquisitions (although many non-tax structuring issues are also dealt with in Chapters 1 through 16), including state corporate, partnership, and LLC laws, Purchaser's 's and Target’s deal protective measures, federal securities law, stock exchange rules, purchase accounting, fraudulent conveyances, Hart-Scott-Rodino antitrust reporting rules, ERISA group liability, and general structuring considerations.

18-20  Reserved.

Table of Internal Revenue Code Sections
Table of Treasury Regulations
Table of Treasury Rulings
Table of Securities Laws
Table of FASB Statements
Table of Cases
Index

Volume 5: Sample Acquisition Agreements with Tax and Legal Analysis
21. Introduction to and Explanation of Sample Acquisition Agreements
22. Taxable Purchase of Stock
23. Taxable Purchase of Assets
24. Taxable Purchase of Divisional Business
25. Taxable Reverse Subsidiary Merger
26. Tax-Free Merger
Volume 5 contains sample acquisition agreements and commentary on the tax and other aspects of those sample agreements, including sample agreements for:
• Taxable stock purchase
• Taxable asset purchase
• Taxable divisional purchase
• Taxable reverse subsidiary merger
• Tax-free merger (including pro-buyer, pro-seller, and neutral versions of the stock purchase, asset purchase, and divisional purchase agreements) 
as well as additional terms that can be incorporated where Target is a subsidiary in a consolidated group of corporations, Target is an S corp, and/or there is a purchase price adjustment based on Target’s closing date balance sheet.

 

 

 

 

Testimonials

See what our clients are saying:

"…the best work of its kind I have ever used. This should be the first reference book for anyone with a transactional practice." 

— Mark L. Yecies, former Director of Ernst & Young LLP's National M&A Tax Department, and former Chairman of ABA Tax Section's Corporate Tax Committee

Highlights

Highlights in the June 2020 Edition of Mergers, Acquisitions, and Buyouts include:

  • 2020 CARES Act expands LossCorp's ability to utilize 2018 through 2020 NOLs by carrying them back for 5 years and forward forever (although NOLs generated after 2017 and used after 2020 cannot offset more than 80% of carryforward year's taxable income).
  • 2020 CARES Act expands Code §163(j)'s business interest deduction for C corp, partnership, LLC, or (apparently) S corp by (a) increasing 30%-of-adjusted-taxable-income limitation on entity's business interest deduction to 50% for 2019 and 2020, (b) permitting election to calculate 2020 limitation based on entity's 2019 adjusted taxable income, and (c) creating a 2019-2020 pro-taxpayer silo rule adjustment for a partnership's or LLC's equity owners.
  • 2020 CCM takes questionable position that sole shareholder's contribution of cash or property to corporation, with no additional shares received in exchange by sole shareholder, creates split basis and holding period in the shares previously held by the sole shareholder (partially reflecting the basis and holding period of the original shares and partially reflecting the basis and holding period of the newly contributed cash or property).
  • Extensive 12/19 proposed regulations (implementing anti-taxpayer 2017 legislative changes) substantially expand scope of Code §162(m)'s $1 million deduction cap on publicly held corporation's compensation to each of its top executives and add significant complexity:
  • Taking position that where publicly held corporation is partner in a partnership (or LLC), Code §162(m) applies to corporation's distributive share of partnership's compensation paid to covered employee of publicly held corporation.
  • Treating S corp as publicly held and thus subject to §162(m) if it issues debt securities registered under 1933 Act §15(d).
  • Treating corporate parent of disregarded entity (e.g., single member LLC or qualified S subsidiary) as publicly held if disregarded entity obligated to file reports under 1934 Act §15(d).
  • Providing detailed rules for applying §162(m) deduction limitation where 1 or more members of affiliated corporate group is publicly held and covered employee of publicly held group member receives compensation from 1 or more of other group members.
  • Taking position that individual who was covered employee of publicly held corporation after 2016 is forever "covered employee" of such publicly held corporation, even after ceases to be employee.
  • Providing guidance on meaning of "predecessor" and "successor" publicly held corporation in applying once-covered-post-2016-always-covered rule.
  • Eliminating prior §162(m) exception for compensation paid under plan or agreement existing before corporation became publicly held.
  • Code §355(e) -- which provides tax-free treatment for certain distributions by corporation ("D") of stock in its controlled subsidiary ("C") -- triggers corporate-level gain recognition if D's otherwise tax-free §355 distribution of C's stock is part of plan to acquire 50% or greater interest in D (or predecessor) or C (or predecessor). Complex 2019 final regulations define "predecessor" and "successor."
  • Size standards (as well as filing fees and daily non-compliance penalty, now $43,280) for required Hart-Scott-Rodino filing with FTC/DOJ covering acquisition or investment were updated in 2/20.
Volumes