One of the key considerations in structuring merger and acquisition (M&A) transactions is determining which contracts of the target company, if any, will remain in effect for the acquiror following closing. This post will briefly outline: (1) the general rules of contract assignment; (2) the effect of anti-assignment clauses and other exceptions to the general rule of assignability; and (3) the effect of four common M&A structures on contract assignment.
General Rule: Contracts are Freely Assignable
The general rule is that contracts are freely assignable unless the contract itself, a statute, or public policy dictates otherwise. This is true in Washington State, where courts have found that contractual rights are generally transferable unless the contract expressly prohibits assignment in “very specific” and “unmistakable terms.”
Exceptions to the General Assignability Rule
The exceptions to the general rule of free assignability fall into two broad categories: (1) contractual prohibitions on free assignability (“anti-assignment clauses”) and (2) case law prohibitions on free assignability of certain types of contracts that arise out of public policy concerns.
In light of the general rule of free assignability, most business contracts contain a clause – commonly referred to as an “anti-assignment clause” – that expressly prohibits the assignment of contractual rights without the consent of the other party to the contract. These anti-assignment clauses typically take one of two forms. The first, which we will call “simple” anti-assignment clauses, simply prohibit the contractual right from being assigned without the consent of the other party to the contract. For example, a simple anti-assignment clause might state:
This contract shall not be assigned or transferred by Party X without first obtaining the consent of Party Y.
While simple anti-assignment clauses are generally enforceable, certain types of M&A deal structures effectively circumvent such provisions and, accordingly, the necessity of third-party consents (see the discussion below regarding the impact of M&A deal structures on contract assignment for more detail).
Comprehensive Anti-Assignment Provisions
In response to the inability of “simple” anti-assignment clauses to protect contractual rights in certain M&A contexts, many contracts include more robust anti-assignment provisions designed to require third party consent prior to an M&A event, even where the content itself will not be transferred. For example, a comprehensive anti-assignment clause might state:
Party X shall not assign this Agreement in whole or in part without Party Y’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Any change in control of Party X resulting from a merger, consolidation, stock transfer or asset sale shall be deemed an assignment or transfer for purposes of this Agreement that requires Party Y’s prior written consent.
Courts will generally enforce these types of comprehensive anti-assignment clauses and conclude that consummation of a change of control transaction without consent is a breach of contract. Accordingly, to assign contracts with comprehensive anti-assignment provisions, the target must seek the consent of the counterparties to each such contract. Obtaining third party consents in connection with M&A transactions may create sticky situations or cause costly delays. The target company may not want their customers, suppliers or others to know that they are going through an M&A event, while the acquiror may want assurances that important contracts will remain in place. What is more, certain contract counterparties may use the leverage of their consent to renegotiate the terms of the contract or extract concessions from the target company. Accordingly, it is important that the parties identify and address comprehensive anti-assignment clauses early in the process – particularly where the contracts to be acquired make up a large portion of a target company’s value.
Contracts That Involve a “Personal” Right
Contracts involving “personal rights” or contracts deemed “personal” by contractual recital or federal law are considered non-assignable or non-transferable unless specific consent is given by the non-assigning party. Generally, “personal” contracts are those that contemplate personal services, skills or performance from the non-assigning party, such as employment, consulting, and partnership agreements. Courts have found that these types of agreements are not freely assignable as a matter of public policy because assigning personal contracts may result in materially adverse consequences (e.g., a material change in duty, risk, or burden) to the non-assigning party. In addition to general contracts for personal services discussed above, courts have also found many types of intellectual property (IP) licenses to be “personal” in nature due to the profound importance of an IP holder’s right to choose who may use the protected IP. Accordingly, non-exclusive IP license rights pertaining to copyright, trademark, and patent licenses are generally considered non-assignable, unless specific consent is given by the non-assigning party. Personal contracts are also treated differently from other types of contracts in the context of M&A events (see the discussion below regarding the impact of M&A deal structures on contract assignment for more detail). Each of the types of “personal” contracts described above should receive heightened contract-by-contract due diligence to ensure that assignment does not violate applicable law.
Courts may also consider the subject matter of the contract and the material risks associated with transferring those rights to the acquiror. For example, where the non-merging entity is a competitor to the acquiring entity, courts may find that given the high risk and burden to the non-merging party, the assignment is ineffective on equitable grounds.
The Effect of the Four Most Common M&A Structures on the Assignment of the Target’s Contracts
The structure employed in a given M&A transaction is critical to determining the treatment of the target company’s various contractual rights. This section will examine the treatment of contractual rights in connection with four common M&A structures: (i) reverse triangular mergers, (ii) forward-triangular mergers, (iii) stock purchases, and (iv) asset purchases. For more information regarding M&A deal structures, please see here and here. While reviewing each of the deal structures that follow, please note that each of the general rules are subject to the exceptions discussed above.
Reverse Triangular Merger
A reverse triangular merger occurs when an acquiror forms a subsidiary and the newly created subsidiary merges with and into the target company. The target survives as a wholly-owned subsidiary of the acquiror following the merger, and continues to own its assets, owe its liabilities, and be party to its contracts.
In a reverse triangular merger, simple anti-assignment clauses generally are not triggered because, as a matter of law, no assignment of the contract has occurred (the target company survives and is the same legal entity as the original contracting party). Accordingly, the contracts of the target remain with the surviving entity without the need to obtain third party consents or take other action. Despite the general rule that no assignment occurs in connection with a reverse triangular merger, thorough contract-by-contract due diligence is still required to identify all contracts that include comprehensive anti-assignment provisions and/or may be deemed to be contracts for personal services (and therefore require consent) under applicable law.
Forward Triangular Merger
In a forward triangular merger, the acquiring entity forms a subsidiary corporation and the target corporation merges directly with and into the newly created subsidiary. As a result, the subsidiary survives the merger. Under this structure, the subsidiary obtains all of the target company’s assets and liabilities by operation of law.
Simple anti-assignment clauses are generally not triggered in a forward triangular merger because the rights are vested, and not assigned, by operation of law. Therefore, the target’s contracts generally transfer automatically to the acquiror without the need to obtain third party consents. However, courts have created considerable ambiguity around the applicability of this general rule in the context of forward triangular mergers. Accordingly, acquirors frequently require target companies to obtain third party consent as a matter of risk allocation and to create certainty that important contracts will remain in place after the merger. As with the above, contract-by-contract due diligence is required to identify contracts that contain anti-assignment language or may be considered to be “personal.”
Direct Stock Purchase
In a direct stock purchase, the acquiror purchases all the outstanding shares of the target directly from its stockholders. Instead of owning certain assets and related liabilities, the acquiror owns the entire selling company. The selling company continues to exist as a separate legal entity and wholly-owned subsidiary of the acquiror (assuming 100% of the outstanding stock is purchased).
In a sale of the target company through a direct stock purchase, the individual assets of the target company (including its material contracts) need not be separately assigned because only the ownership rights of the target are being transferred. Like a reverse triangular merger, a direct stock purchase generally does not trigger a simple anti-assignment provision because the assets are not conveyed to a different entity. Accordingly, the contracts of the selling company remain entirely in place without the need to obtain third party consents. However, contract-by-contract due diligence is required to identify any contracts that contain comprehensive anti-assignment language that would be triggered by the change of control that occurs upon consummation of a stock sale and contracts that may be considered “personal” under applicable law.
The sale of some or all of the assets of a company is one method of transferring part or full ownership in the underlying business. In an asset purchase, the acquiror purchases certain enumerated assets and liabilities of the target in exchange for the cash, the acquiror’s stock, or other consideration.
In an asset purchase transaction, the acquiror is only responsible for the assets and liabilities specifically enumerated in the purchase agreement. All other assets and liabilities remain with the target. Without the protection of a merger statute, the purchaser of contractual assets will need to become a party to the purchased contracts through the general rule of assignability (and the absence of any exceptions). Therefore, if a contract purchased as part of an asset sale contains an anti-assignment provision (whether “simple” or “comprehensive”) or may be considered “personal”, then the target company must obtain the consent of the counter party in order to convey the contract to the acquiror. In the event that neither of the exceptions to the general rule apply, then the contract is generally assignable to the acquiror.
Although contracts are generally freely assignable, in the context of any M&A transaction or other proposed contract assignment, careful consideration should be given to: (1) whether the contract in question includes an anti-assignment provision and, if so, whether the provision is “comprehensive” (i.e., applies to change of control transactions even where, by operation of law, no assignment would be deemed to occur); (2) whether the contract is “personal” in nature; and (3) how the proposed deal structure impacts the treatment of the target’s contractual rights. Given the fact-specific standards for assignment, each of the target’s contracts should be carefully reviewed during the due diligence phase of an M&A transaction to ensure that they are assigned in compliance with applicable law.
When two companies are considering an M&A transaction, an important initial consideration is the legal structure that the transaction will take. Determining the transaction structure may be challenging as the buyer and target often have competing interests and different perspectives. The following explains some of the differences among the three most common transaction structures—asset purchases, stock purchases, and mergers.
In an asset purchase, the buyer purchases only those tangible and intangible assets—and assumes only those liabilities—that are specifically identified in the purchase agreement. Buyers often favor this structure for its flexibility. They can pick and choose the assets they wish to acquire and the liabilities they wish to assume, and leave the rest behind. Because the liabilities assumed by the buyer are specifically identified in the purchase agreement, this structure may allow a buyer to avoid contingent or unknown liabilities, although some laws (for example, environmental and tax) and certain doctrines (successor liability) may nonetheless impose liability on the buyer.
The asset purchase structure is often used when the buyer is looking to acquire a single division or business unit within a company. It can be complex and time consuming, however, due to the extra effort required to identify and transfer every important asset. While some assets, such as equipment, may easily be transferred by a bill of sale or other instrument of title, other assets, such as intellectual property or real estate, require a separate assignment or deed with different mechanics and formalities. Some assets, including many permits, are not transferable at all.
Third-party consents will often be required in order to transfer certain contracts from seller to buyer, as many contracts specifically state they are not assignable or require consent to assign. Since the process of identifying and obtaining consents may take considerable time, the parties should identify all required third-party consents at an early stage of the transaction to avoid delay at closing.
In a stock acquisition, the buyer acquires the target company’s stock from its stockholders. The target company stays exactly the same—its assets and liabilities unchanged—but with new ownership. It is critically important in a stock purchase transaction that the buyer negotiate representations and warranties concerning the target’s business, assets, and liabilities so that it has a complete and accurate understanding of the target company.
One consideration for the buyer is that it will not get 100 percent control unless all stockholders agree to sell their stock. A high number of stockholders increases the risk of hold-outs, protracted negotiations, and other complications. A buyer unable to acquire 100 percent of the stock will be left with minority stockholders who may prove difficult. To combat this risk, a buyer may condition the transaction on 100 percent participation by the stockholders, or on at least 90 percent participation and undertake a statutory “short-form merger,” a state law mechanism that allows a buyer to acquire the remaining minority interest in an expeditious manner and without a stockholder vote.
Since the target company is simply moving to a new owner, the assets of the target remain unchanged in a stock purchase, and most of the assignment and third-party consent procedures that can cause complications or delays in an asset purchase may be avoided. A stock purchase does, however, involve a “change of control,” so the buyer must identify contracts that require consent. For example, many real estate leases contain “change of control” provisions requiring landlord consent.
In a merger, two companies combine to form one legal entity, with the stockholders of the target company receiving stock of the buyer, cash, or a combination of both. The surviving entity assumes all the assets, rights, and liabilities of the extinguished entity by operation of law. Mergers are often structured as “triangular,” where the buyer uses a subsidiary (typically one that is newly formed) that will be merged into the target company (a reverse triangular merger) or into which the target company will merge (a forward triangular merger). An advantage of the triangular merger structure is that the buyer is able to shield itself from the liabilities of the target company.
A merger transaction is similar to a stock purchase in that the buyer will acquire all of the target company’s assets, rights, and liabilities (known and unknown) and will be unable to specifically identify which assets and liabilities it wishes to assume. Similarly, third-party consents are required only for those agreements requiring consent upon a “change of control.”
One key advantage of a merger is that it typically requires consent of only a majority of the target company’s stockholders (subject to any additional requirements existing in a target’s organizational documents). This makes merger a good choice (and often the only practical choice) where the target company has numerous stockholders or has stockholders opposed to the transaction. Under state laws, target company stockholders who are opposed to a transaction may have the right to dissent and exercise appraisal rights to receive “fair value” for their stock as determined by a court. Most public company acquisitions are effectuated through a merger.
Selecting the best structure to effectuate an M&A transaction is critical to the success of any acquisition. Transaction structure may be complicated, and the benefits of a structure for one party may work to the disadvantage of the other party. Therefore, both the parties and their attorneys must weigh the competing legal, tax, and business considerations and creatively construct the most mutually advantageous transaction structure.