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
- 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.
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.
About Global Upside
Trends are showing that business rationalizations and sales of non-core assets will become much more prevalent in the future. Today’s business environments are so complex that companies often spend a bulk of their time managing compliance and keeping pace with day-to-day accounting, tax, legal, HR, payroll, and talent acquisition challenges.
At Global Upside, we are shifting the balance. Our integrated services, delivered via a single point of contact, help simplify your day-to-day operations so you can free up time and resources to focus on your most important work. If you have any questions regarding carve-outs or our other business services, contact us today.