Mergers and Acquisitions Terminology

Whether it’s a first car, a first house or a first job, there is always a first.  The same holds true for mergers and acquisitions.  You will likely always remember your first M&A activity regardless of whether your company was the acquirer or the acquiree.  You might, however, remember it more fondly if you were a part of the acquirer as often job losses can occur if you were part of the aquiree company.  You will hear a number of terms tossed around that everyone in the room seems to understand.  Below are a few of the basics that are part of most M&A activities.

Acquisition of Assets– also known as an asset sale- A merger

or consolidation in which an acquirer purchases the selling firm’s assets.  The can purchase all of the assets or only a select few and are not required to accept the liabilities.

Acquisition of stock or a stock sale-A merger or consolidation in which an acquirer purchases the acquiree’s stock.  This means they purchase all of the assets and all of the liabilities

Letter of intent or Agreement in Principle–An outline of the understanding between the two companies, including the price and the major terms.

Deal Structure–The nature of the fee paid by the acquiring entity in a merger transaction. Typical deal structure may include stock, cash or other valuable.

Due Diligence–In the process of an acquisition, the acquiring firm needs to see the target firm’s internal books as well as to audit their systems, processes and salaries. The acquiring firm does an internal audit. Offers are made contingent upon the findings of the due diligence process.  Most due diligence processes go on for at least 90 days, but can last up to 6 months or more in complex situations

EBITDA–Earnings before interest, taxes, depreciation, and amortization.

Restructuring–This can be as simple as selling off an unprofitable or unwanted division or as complex as re-structuring the entire way the new entity does business and is branded.  This is especially important when there is vertical or horizontal integration required.

Synergy–When the two companies are properly integrated and functioning, an output is achieved that is greater than the output obtained when the parts function independently

Human Resources should always play and important role up front in any due diligence process, as well as in the process of the actual merger of the two entities.

HR Financial Due Diligence– assessing HR financial risks, liabilities, and plan structures of compensation, benefits, and pension plans, workforce dynamics.

Human Capital Due Diligence assessing Human Capital aspects including culture, organizational structure, performance management, and workforce development approaches

Time spent up front will ensure that there are less unpleasant or unexpected surprises as the M&A activity draws to a close.

Acquisition Considerations for Human Resources

pexels-photo (6)You have just been told that your Company will be acquiring another Company.  Although your first question could be “How will this impact me?”, your first question should be, “Is this an asset sale or a stock sale?”  There are many implications for Human Resources in any type of an acquisition, but some will depend on which type of acquisition it will be.  You and your team are likely to catch the first wave of questions and work that will follow. 


Stock Sale

Let’s talk first about the definition of a stock sale versus an asset sale.    A stock sale is when your Company is acquiring all assets and liabilities of another company.  In a Stock Purchase, all of the outstanding shares of stock of the business are transferred from the seller to the buyer. The buyer in effect steps into the shoes of the seller, and the operation of the business continues in an uninterrupted manner. Unless specifically agreed to, the seller has no continuing interest in, or obligation with respect to, the assets, liabilities or operations of the business.

Asset Sale

On the other hand, in an Asset Sale, the seller retains ownership of the shares of stock of the business. The buyer must either create a new entity or use another existing entity for the transaction. Only assets and liabilities which are specifically identified in the purchase agreement are transferred to the buyer. All of the other assets and liabilities remain with the existing business and thereby the seller.


Organizational Structure

In both cases you need to begin to build out your organizational structure of the combined entities as soon as possible.  This will act as your guidelines for interviewing and assessing employees for future roles. The employees who will be, as well as your existing employees, will be anxious to know about any changes in the organization, their positions, location of their work and/or the reporting structure. You also need to have your people, particularly the top-level of the new organization, in place quickly. Frequent and early communication from leadership will reduce anxiety on both sides. 

Policies and Procedures

In both situations you will need to figure out what the company being acquired has in place for their policies and procedures and how they align with those that you have in place.  Frequently there can be a meeting of the minds where you can take the best of both worlds and adopt new P&P’s.  Not only does this give you an advantage but is a nice show of collaboration to the employees being acquired. Especially, understanding the differences in both leave policies and having a transition plan before the close date is critical to reducing employee disruption and managing expectations.


In most cases, when it is an asset sale, you will be able to choose which liabilities to exclude from the sale, such as the 401(k) plan provided by the seller.  In a stock sale, you will be required to assume all the benefit plans, at least for a period of time, and may not exclude any up front.  

Other benefit considerations, which we will explore in more detail next time, include how to handle FSA’s, LOA’s, 401(k) account balances and outstanding loans, bonuses and medical deductibles and out of pocket maximums.

Acquisitions bring a lot of uncertainty but also a lot of excitement around the possibility of building a bigger and better entity…….. almost overnight!