The term “covenant” rarely gets used these days outside of religious circles and fantasy fiction. Despite its historical connotations, though, the term holds very different significance in the context of mergers and acquisitions (M&A).
Imagine a lengthy journey through due diligence and negotiations between a prospective buyer and seller. After that arduous process, the closing of their transaction grows ever closer. This is when the word “covenant” comes into play. It operates as an essential part of a purchase agreement designed to ensure the transition runs smoothly.
Covenants in M&A transactions serve as enforceable promises to either do something (i.e., positive covenants) or not do something (i.e., restrictive covenants) that will impact the company or the sale. These promises, typically made by the seller, protect the buyer before and after the deal closes.
Sometimes, there will be a delay between the signing of a purchase agreement and the closing requirements of the transaction. In those cases, the purchase agreement will include certain pre-closing covenants.
Most of these favor the buyer. They generally strive to assure the buyer no surprises pop up during the interim period or at closing.
The buyer may also give the seller pre-closing covenants. These usually get limited to the buyer agreeing to obtain all applicable governmental and third-party approvals and consent. They may also require the buyer to secure financing to fund the purchase price.
Some of the other most common positive and restrictive covenants made by the seller include:
Both parties will generally make several post-closing covenants. These may involve restrictive covenants made by the seller and owners in favor of the buyer. They may address the protection of confidential information of the target and non-disparagement agreements. Other examples include promises of non-competition and non-solicitation of employees and customers for a limited time. In most circumstances, that limit falls between two and five years.
The parties will also agree on how to file and pay taxes for the target. Post-closing restrictive covenants should include an agreement on handling any applicable transfer taxes. The agreement will generally waive compliance with any applicable bulk sales laws. In some situations, the buyer may still want to make any requisite filings with state and local authorities.
Through a positive covenant, the buyer may agree to offer employment to each of the target’s employees for at least the same compensation and benefits being paid by the seller. The buyer may require the seller to pay employees accrued and unpaid compensation and benefits before closing. If those amounts were included in the balance sheet calculations and already reflected in the purchase price adjustments, this may not apply.
Finally, the parties may agree that any press releases or other public statements mutually acceptable to both parties.
In some cases, the transaction gets structured as an “asset deal.” This varies from the four other types of M&A deal structures in that it does not involve the target company’s shareholders. Instead, the buyers identify specific assets they want to acquire. The seller’s company remains operational.
This deal structure often incorporates specific types of restrictive covenants and post-closing agreements. In an asset deal, they will also agree on how the assets will be allocated for tax purposes. The seller will generally prefer an allocation that emphasizes capital gain over ordinary income. In contrast, the buyer will generally prefer an allocation that allows it to maximize depreciation and amortization of the target assets.
In an asset deal, buyers generally require the seller to make filings to change the target’s name with its state of formation and wherever it qualifies to do business. This allows the buyer entity to use the same name after closing.
During closing, the execution of the purchase agreement (a “sign and close”) often occurs concurrently. In some cases, it may occur after a period of time, typically after satisfactory fulfillment of certain negotiated conditions.
Such inclusions generally protect all parties in the transaction. They may include requirements that:
To ensure closing requirements have been met, buyers and sellers may require certain deliveries. Whether the transaction takes the shape of an asset or a stock deal, the ancillary agreements and closing deliveries will usually include:
This may begin with good standing certificates for each party and certified copies of each party’s organizational documents. Requested materials may also include a certificate of the secretary or manager of each party, dated the closing date as to such party’s, often including:
Buyers often request evidence of the seller’s payoff of any loans requiring repayment at closing, too. This request could include copies of lien releases and other evidence of the release and discharge of any liens on the assets being purchased. But if previously approved by the buyer, this would exclude some liens. All consents, waivers, and approvals from government agencies and third parties required by the purchase agreement will require verification.
If the seller is acquiring equity in the buyer as part of the purchase price, then the seller will take other certain steps. This could include executing a subscription agreement. Such agreements often deal with the number of shares getting sold and the agreed-upon price.
This step may also involve other documents governing the ownership of such equity, such as an operating agreement or shareholders’ agreement. Sometimes the buyer promise to hire the owner or any of the key executives of the seller. In these cases, employment agreements for each of them will likely get required.
Different types of closing agreements may get incorporated in the transaction depending on the deal structure. In an asset deal, here are some common additional deliveries and instruments for transfer:
In a stock deal, things may get a little more complicated. Frequently required deliveries include certificates of the stock or equity being purchased. This involves proper endorsements, stock powers, or other appropriate instruments of assignment and transfer. If applicable, requisite spousal consent and release will get incorporated at this step.
Any directors, managers, members, and officers of the target from all positions of authority held by each may need to provide written resignations. These often become effective immediately after the closing. These do not necessarily serve as resignations of employment. Instead, they facilitate the buyer establishing their own slate of directors and officers after they acquire the stock.
It’s understandable if the word “covenant” conjures up memories of Bible study or Indiana Jones. But for entrepreneurs and investors, covenants operate as formal agreements critical to maintaining the value of a target company.
These restrictive and positive covenants/provisions constitute just one part of the many components that make up the purchase agreement and the M&A transaction overall. By understanding their value, you put yourself in a better position to navigate the rest.
And that’s a promise worthy of the word.
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This is an updated version of an article from 2020. ©2023. DailyDACTM, LLC d/b/a/ Financial PoiseTM. This article is subject to the disclaimers found here.
Rob is a senior associate in Levenfeld Pearlstein’s Corporate & Securities Group where he focuses on mergers and acquisitions, securities transactions, startup companies, technology agreements, and general corporate matters: M&A: Rob works with privately held businesses and investment funds across a broad range of industries in the middle market in negotiating and consummating acquisition and…
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