don’t let the big event mess up your partner agreement.
clearly, in a merger, many issues must be agreed upon between the two firms.
more: 14 partner agreement issues in mergers | partner agreement issues affecting women | quick tip: partners investing in clients | non-equity partners: why have them? | why you might want an executive committee | buyout when a partner dies | why and how new partners buy in | a crash course in partner retirement/buyout plans
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merger agreement issues that may affect the buyer’s partner agreement include these:
1. protecting the seller’s clients and staff.
- the buyer must not be allowed to cherry-pick the seller’s clients (keeping only the most attractive clients while jettisoning the weaker ones). merger agreements typically require buyers to make their best efforts to retain every one of the seller’s clients.
- the buyer should not be allowed to terminate the seller’s staff within a certain period of time after the merger, usually at least one year. first, sellers are very committed to their staff and want to assure them that their jobs will be safeguarded, at least for a year or two. second, sellers rely heavily on the staff’s experience and familiarity with their clients and will suffer tremendous hardships if their staff are not retained. if sellers cannot retain their staff, client retention is jeopardized.
2. how long the seller will be allowed to work at the buyer. smart buyers do not want to be forced to retain the seller’s partners for eternity. on the flip side, sellers often wish to work at least until a certain agreed-upon age, usually 67 or 68 and sometimes 70.
in many cases, the buyer’s mandatory retirement age can be a roadblock to sellers who want to work past the buyer’s retirement age. the larger the buyer, the more common this is. top 50 firms often have mandatory retirement ages that are lower than 65, with 62 being common.
in my experience, most buyers will offer a special arrangement to the sellers to work past their mandatory retirement age.
it’s often been said that the best way to solve a problem is to never let it become a problem in the first place. in the case of the retirement age dilemma, this question should be one of the first posed to the buyer, even before the first meeting. if the seller gets a negative response, then that should be the end of that!
3. seller’s compensation. cpa firm partner agreements are intentionally short and brief on how the firm’s income is allocated to the partners. but merger agreements are usually quite specific on the compensation of the incoming partners.
4. perks. these are, of course, an integral part of the compensation of any partner of a cpa firm. larger firms generally provide far fewer perks to partners than smaller firms. the merger agreement should spell out how perks will be handled for the seller’s partners. also, perks previously enjoyed by the seller’s partners that will discontinue at buyout will have to be taken into account when the seller’s partners’ initial compensation is set.
5. handling of the seller’s wip and a/r. this relates to the capital account obligations of the seller’s partners. it is very common for the seller’s wip and a/r to be used to fund their capital contribution at the buyer.
6. equity. extent that some or all of the seller’s partners come into the buyer as equity partners.
7. management of the buyer. will any of the seller’s partners have a formal role in the buyer’s management? usually this depends on whether any of the seller’s partners will have a seat on the buyer’s executive committee.
8. liability. it’s quite standard for merger agreements to limit the buyer’s liability for the seller’s acts committed after the merger. likewise, sellers are not responsible for acts committed prior to the merger.
9. client transition. this is a crucial provision in the buyer’s retirement/buyout plan for its current partners. in a merger, the seller’s partners may be required to engage in client transition activities above and beyond those normally required in a retirement scenario.
10. de-merger clause. a de-merger clause provides either firm with the right to terminate the merger, without cause, within a prescribed period of time, usually one year.
the vast majority of buyers avoid providing a de-merger clause in merger agreements because they feel it reduces the sellers’ commitment to making the merger successful. sellers often feel they have more to lose than buyers because they are the ones who have to change and adapt. sellers reason that they should have the opportunity to opt out of the merger if they don’t like the changes.