M&A Disputes

M&A Disputes takes you inside the dispute resolution process to help you put together the many "moving parts" necessary to obtain a successful outcome. With deep insight from experts in the field—including valuable advice from the arbitrator's perspective—this book guides you through the entire process to explore the variables at work. The high volume of M&A transactions makes post-closing price adjustment provisions and accounting arbitrations a critical part of doing business. Yet, the field is opaque to non-practitioners and important issues can be easily misunderstood without specific knowledge and experience. A resulting award can make or break a transaction; an intimate understanding of the process's inner working can help you plan your position to the greatest advantage. This book explores the many factors that that contribute to a successful resolution across the entire transaction life cycle from contract negotiation through the dispute phase including due diligence, determination of the target net working capital, conception and closing of the purchase agreement, post-closing negotiation and dispute resolution, the impact of accounting practices, guidance, and documentation as well as relevant auditing concepts, and various facts and circumstances surrounding the target business and the transaction that need to be considered.

M&A volume remains high and continues to result in large numbers of current and future post-closing M&A disputes. Clients rely on their attorneys and advisers to guide them through the process and counsel them toward a positive outcome. Those professionals will find that M&A accounting arbitrations carry a range of distinctions that require a specialized knowledge base to navigate correctly. This book provides real-world guidance from experts in the field, with invaluable insight for every stage of the process.

• Walk through the entire dispute resolution process from arbitrator selection through final award
• Understand how M&A agreement provisions impact the awarded amount as well as the options available to limit the scope of potential disputes and the "gaming" of the post-closing process by the counterparty
• Understand the nature of accounting estimates and guidance, their interaction with accounting arbitrations, and how to synthesize facts, circumstances, and GAAP into a persuasive argument to present to the accounting arbitrator
• Get situation-specific advice for different types of transactions
• Learn practitioner "dos" and "don'ts" from the arbitrator's perspective

M&A Disputes provides transaction parties and their representatives an inside view at the transaction and commonly disputed items through the eyes of the arbitrator to provide them with uniquely valuable insight.

In addition to being an invaluable tool for practitioners appearing before an accounting arbitrator, M&A Disputes also provides advice to would-be and experienced arbitrators alike to successfully resolve disputes that can be significant and complex.

Preface xi

Acknowledgments xv

About the Authors xvii

PART ONE The M&A Dispute Framework 1

CHAPTER 1 Introduction to M&A Disputes 3

CHAPTER 2 The Post-Closing Adjustment and Dispute Process 14

CHAPTER 3 Post-Closing Net Working Capital Adjustments 26

PART TWO Core Concepts and Issues 41

CHAPTER 4 The Nature of GAAP 43

CHAPTER 5 Past Practices in Accordance with GAAP 54

CHAPTER 6 Target Net Working Capital 81

CHAPTER 7 Transaction-Specific Adjustments 92

CHAPTER 8 Audited Financial Statements and Auditing Concepts 106

CHAPTER 9 Subsequent Events, New Positions, and New Information 117

PART THREE The Accounting Arbitration 133

CHAPTER 10 Mitigation of Post-Closing Purchase Price Disputes 135

CHAPTER 11 Selection and Retention of an Accounting Arbitrator 148

CHAPTER 12 The Parties’ Initial Submissions 158

CHAPTER 13 Further Submissions, Proceedings, and Considerations 175

CHAPTER 14 The Arbitration Award 188

PART FOUR The Disputed Items 203

CHAPTER 15 Overview of Disputed Items 205

CHAPTER 16 Inventory 221

CHAPTER 17 Accounts Receivable 247

CHAPTER 18 Contingent Liabilities 267

CHAPTER 19 Revenue Recognition and Expense Accruals 278

PART FIVE Other Topics 289

CHAPTER 20 Governing Agreements and Contractual Choices 291

CHAPTER 21 Interaction with Indemnification Provisions 306

CHAPTER 22 Other Mechanisms, Earn-Outs, and Locked Boxes 317

CHAPTER 23 International Considerations 337

Index 347

VINCENT BIEMANS and JERRY HANSEN are managing directors of Berkeley Research Group. They assist U.S. and European clients with their M&A disputes. They serve as accounting arbitrators retained jointly by buyers and sellers. They also advise individual parties, whether buyer or seller, during the post-closing negotiation and dispute phases. Their experience spans a wide range of transactions, industries, and deal and dispute sizes.

Merger and acquisition (M&A) transactions commonly incorporate contractual post-­closing purchase price adjustment mechanisms. In many instances the post-closing purchase price ­adjustment process is completed smoothly and collaboratively. In other cases, the post-­closing purchase price finalization can lead to disputes between the buyer and the seller that can involve substantial amounts and potentially make or break the deal. Those disputes are often brought before independent accountants for resolution.

M&A Disputes allows you to confidently navigate the post-closing purchase price adjustment landscape with firsthand insights from two highly experienced M&A dispute professionals. The combined expertise of the authorial team quickly brings you up to speed on the post-closing adjustment mechanisms and the dispute resolution process with an easy-to-understand framework before engaging in an in-depth discussion of the various facets of M&A disputes.

M&A Disputes provides a comprehensive walkthrough of the entire M&A dispute resolution process, from selecting an accounting arbitrator through final award. It also provides helpful tips to pre-emptively mitigate and possibly avoid costly breakdowns during the post-closing purchase price adjustment process. Whether you are working in-house or at a professional services firm, its in-depth coverage serves as a road map for achieving optimal results.

This go-to reference will remain close at hand because it:

• Brings clarity to core concepts and issues underpinning purchase price adjustment mechanisms and disputes, including the nature of GAAP, the consistent application of historical accounting practices, target net working capital, transaction-specific adjustments, and more
• Goes in-depth to demystify what drives disputes in general and provides detailed discussions on common categories of disputes, including inventory, accounts receivable, contingent liabilities, and revenue recognition
• Provides practical guidelines for preparing and presenting submissions to the accounting arbitrator, along with an insider’s look at the resolution of such disputes from the arbitrator’s perspective

M&A Disputes provides the advice, tools, and in-depth coverage that will prove invaluable to the transaction parties, legal counsel, accounting advisors, and would-be or experienced accounting arbitrators.