ESOP 201 The Deeper Dive 2017 TEA New England Chapter Spring Conference March 31, 2017 Tabitha Croscut, Esq. Devine Millimet & Branch, P.A. (603) 695-8542 tcroscut@devinemillimet.com John P. Murphy, ASA, MCBA, CVA Atlantic Management Company, Inc. (603) 427-8761 jpm@atlantic-mgmt.com
Who are we? John valuation / financial advisor Tabitha ESOP lawyer 2
Topics Recycle vs Redemption Distribution Policies Determination Letters DOL Investigations / Audits Unsolicited Offers Relationship Between Valuator and Trustee Valuation Requirements for Transactions Successive Transactions (floor price protection) Management Incentive Plans / Synthetic Equity Segregation / Reshuffling 10:45 am Session Trustees Internal vs External 1:30 pm Session 3
Recycle vs Redemption Recycling Company contribution of cash to ESOP to distribute benefit in cash versus stock No impact on total shares outstanding; no change in ESOP ownership percentage Dilutes per share value over time Deductible contribution for Company Redeeming Company redeems/purchases shares from ESOP or directly from terminated participants Reduction of total shares outstanding; if ESOP owns < 100%, the ESOP ownership declines Anti-dilutive to per share value No deduction for Company May require same day valuation / update letter 4
Distribution Policies Why use one? What is it? 5
Determination Letters & Plans Do you have one? What s the future of determination letters? What s next for plan documents to maintain qualifications? 6
DOL Investigations / Audits The process Data collection Interviews Fiduciary Correction Letter / Settlement Depositions / Litigation / US Solicitor s Office EBSA Boston Office Nuances Subpoenas Strategy Go it alone? Attorney involvement? 7
Unsolicited Offers Why can they be problematic to ESOP companies? How does the Board protect itself? What is the Board s approach? What is the Trustee s role? Possible tools: Unsolicited Offer Policy Poison Pills Benefit Corporation 8
Relationship Between Valuator and Trustee Best practices Engagement Process Documentation 9
Valuation Requirements for Transactions Adequate Consideration on the date of the transaction Transaction = between fiduciary and party in interest Fairness Opinion Independence 10
Floor Price Protection Who is impacted? Partial ESOP owned company consummating a follow on transaction What is it? Greater of (i) FMV or (ii) FMV less transaction debt What is it NOT fixed dollar amount How is it administered? Company pays directly the differential, if any Difference of opinion is it rollover eligible? Negotiation points? Duration Protected Classes [Death, Disability, Retirement, Other Terminations, Diversification, Active Pay Status] 11
Management Incentive Plans / Synthetic Equity Stock Appreciation Rights Time based Performance based Phantom Stock What is it not? Incentive stock options Warrants 12
TABITHA CROSCUT, DEVINE, MILLIMET & BRANCH, PA Shareholder 603.695.8542 tcroscut@devinemillimet.com New Hampshire office: 111 Amherst Street Manchester, NH 03101 Vermont office: 77 College St., Suite 2D Burlington, VT 05401 Tabitha is an attorney with a national practice focused on Employee Stock Ownership Plans (ESOPs) as succession and employee compensation strategies. In addition to counseling clients regarding transactional, compliance and fiduciary issues with respect to their ESOPs, she has represented companies, sellers and internal and external trustees in ESOP transactions ranging from under a million dollars to over four hundred million dollars. She is a frequent speaker at ESOP conferences nationwide and presents regularly on how ESOPs can be an effective exit or transition planning tool for owners of closely held businesses. Tabitha serves as a director of the Vermont Employee Ownership Center (VEOC), is an active member of The ESOP Association and the National Center for Employee Ownership (NCEO), and serves on the Board of Trustees for the Employee Ownership Foundation. Visit our website at: TheESOPTeam.com.
JOHN P. MURPHY, ATLANTIC MANAGEMENT COMPANY, INC. John P. Murphy is President of Atlantic Management Company, Inc., and coordinates the firm s ESOP, merger and acquisition, and ownership transition activities. Mr. Murphy is instrumental in providing valuation and financial advisory services in connection with the implementation of Employee Stock Ownership Plans (ESOPs), and also represents buyers and sellers of middle market companies. 603.427.8761 jpm@atlantic-mgmt.com Orchard Park Suite A12 875 Greenland Road Portsmouth, NH 03801 www.atlantic-mgmt.com Mr. Murphy teaches courses for business owners, attorneys and accountants on business valuation and business succession issues, and is a frequent panelist at seminars sponsored by the ESOP Association. Mr. Murphy is a member of the American Society of Appraisers (ASA), Institute of Business Appraisers (IBA), National Association of Certified Valuators and Analysts (NACVA), and has been awarded the Accredited Senior Appraiser, Master Certified Business Appraiser and Certified Valuation Analyst designations from the valuation organizations. Mr. Murphy is also an active member of The ESOP Association, The National Center for Employee Ownership and the Vermont Employee Ownership Center. He is also a member of the ESOP Association s Valuation Committee, is past Chairman of the ASA s Business Valuation Committee for its Boston Chapter, is past State Director for ASA for New Hampshire, and is a past member of ASA s Board of Examiners and the Executive Committee of the ESOP Association s New England Chapter.