Mergers & acquisitions a snapshot Changing the way you think about tomorrow s deals Stay ahead of the accounting and reporting standards for M&A 1 November 13, 2014 Companies in distress: Bankruptcy process and reporting considerations What's inside The bankruptcy process... 2 Reporting considerations during bankruptcy... 4 Conclusion... 5 Bankruptcy filings have slowed from their highs immediately after the financial crisis, but continue to be significant. While the reasons vary, the bankruptcy process may provide a valuable opportunity for a company to start fresh and reorganize in a way that is more economically feasible for future periods. But it is important to remember that a company s activities through the reorganization period, including its communication with stakeholders, will be affected by the actions of the Bankruptcy Court and no longer rest within the control of management. Those involved in this process often find it unique, challenging and time consuming to navigate. This edition of Mergers & acquisitions a snapshot, is the second in a series focused on companies in distress. The first edition focused on the leading indicators of distress and key considerations for management as they attempt to turn around the business to avoid bankruptcy. This snapshot provides an overview of the bankruptcy process and some of the key reporting considerations that companies need to be aware of when faced with a bankruptcy. 1 Accounting Standards Codification 805 is the U.S. standard on business combinations, Accounting Standards Codification 810 is the U.S. standard on consolidation (collectively the M&A Standards ), and Accounting Standards Codification 852 is the U.S. standard on reorganizations (the Reorganization Standard ). M&A snapshot 1
The bankruptcy process The term bankruptcy comes from the Latin term bankus, which means bench, and ruptus, which means broken. During the Roman empire, a vendor who did not pay his debts had his table, or bench, broken and was put out of business. In the United States, the Bankruptcy Code, which was codified as Title 11 of the United States Code in 1978, is the uniform federal law that governs all bankruptcy cases. A company files under Chapter 11 of the Bankrtupcy Code if it plans to reorganize its business and get a "fresh start" without the full burden of its pre-bankruptcy liabilities. In contrast, Chapter 7 calls for the liquidation of a business. As their plan of reorganization progresses, companies that file for Chapter 11 may find that a Chapter 7 liquidation becomes the reality. The players It is important to identify who the key players are in a Chapter 11 bankrupcy process. The debtor is the entity that will file for bankruptcy, and once the bankruptcy petition is filed, the debtor becomes a debtor-in-possession. A debtorin-possession will continue to operate the business throughout the bankruptcy proceedings, subject to approvals by the Bankruptcy Court. The creditors of a company in bankruptcy typically fall into the four main categories listed below, shown in the usual order of priority for payment: Class Secured creditor Administrative creditor Priority unsecured creditor Description Holds claims secured by validly perfected security interests in assets of the debtor to the extent of the value of the related collateral Holds claims to full payment for services provided to the debtor during the period subsequent to the bankruptcy filing. This also includes vendors that have delivered inventory to the debtor within 20 days of the bankruptcy filing Holds claims in areas specifically entitled to priority over other unsecured claims, such as wages, benefits, critical supplies, and some tax claims The different classes of creditors are important because payments generally cannot be made to a subordinate class unless the prior class has either been paid in full or otherwise settled in an equitable manner, as determined by the Bankruptcy Court. Typically, a creditors committee, consisting of representatives from each class of creditors, is formed to represent the rights of the various classes of creditors. While equity holders may hold equity in the company at the time of its bankruptcy filing and may have a residual claim to the net assets of the debtor, their interests are usually eliminated during bankruptcy proceedings. The U.S. Trustee is responsible for overseeing the process and monitoring the debtor-in-possesion s compliance with the applicable reporting requirements, bankruptcy laws, and procedures. The process A Chapter 11 case begins with the filing of a petition for bankruptcy in a Bankrupcy Court (the Court). Once the petition is filed, the debtor receives an automatic stay, which provides the debtor relief from collection efforts while it reorganizes its business affairs. After the petition is filed, the Court will set an initial bar, the by which all claims against the debtor will need to be filed by the creditors. At various times, different bar s can exist, such as a secondary bar for tax and governmental claims. Claims that are allowed by the court or undisputed by the Company become known as allowed claims, although this amount often differs from the actual settlement amount of the claim. Once its petition is filed, a debtor typically will have to file a plan of reorganization within 120 days, unless that is extended by the Court. The debtor then has another 60 days to obtain acceptance of the plan by its creditors and equity holders. After that period, other interested parties can file an alternative plan. A critical process for the debtor in reorganizing is deciding whether to assume or reject existing contracts, including leases, labor contracts, and other executory agreements. Rejected contracts are terminated once approved by the Court and any damages to the counterparty from the termination become unsecured claims. Assumed contracts will continue and the debtor must become current on all past due payments and remain current throughout the proceedings. However, assumed contracts are often renegotiated for more favorable terms during this process. General unsecured creditor Holds claims in all other areas for debts arising prior to the bankruptcy filing, such as general trade payables and other unsecured debts M&A snapshot 2
After filing the plan of reorganization with the Court, the debtor prepares a disclosure statement to provide key information to creditors so they are able to make informed decisions about whether to accept the plan of reorganization. While the Bankruptcy Code does not contain specific requirements, the disclosure statement usually includes the following: A summary of the plan of reorganization. Historical financial information, including the financial statements for at least the year before the petition was filed and the period during which the company has been in Chapter 11. Prospective financial statement information, including cash projections that will be used to calculate the reorganization value of the debtor. A pro forma balance sheet based on the reorganization value, showing the expected financial structure of the company when it emerges from Chapter 11. Information about the history of the company and the causes of its financial difficulty. Information about the current and future management of the company, including the makeup of the Board of Directors. A statement showing the amount creditors would be expected to receive if the company was liquid rather than reorganized known as the "Best Interest Test." A summary of the key points from the business plan that describes the future operations of the debtor. A liquidation value that shows an alternative to the plan being presented. Common challenges in developing the disclosure statement include determining the estimated recovery percentages, compiling and analyzing claims, and development of the future business plan. The timeline The following timeline provides some general guidance as to how a common reorganization case under Chapter 11 might move through the process. Once it determines that a bankruptcy filing is its best course of action, a company may want to consider engaging professional advisors to assist with the various filing and other legal requirements that will need to be met throughout the bankruptcy process. Petition Within 45 days after petition Bar 120 days after petition (exclusivity period) 180 days after petition Solicitation and voting Confirmation Emergence The the petition for bankruptcy is filed with the Court. First and Second Day hearings occur that set the course for the Chapter 11 process. Shortly thereafter, in most cases, the initial meeting of creditors, known as a 341 meeting (named after the applicable section of the Bankruptcy Code), will take place. The set by the Court by which all creditors that have claims against the debtor have to file information to support the validity of their claims. Multiple bar s may be assigned for different classes of claims. Unless extended by the Court, the debtor's plan of reorganization and disclosure statement must be filed by this. If the debtor's plan has not been confirmed by this (after considering any extensions for filing the plan of reorganization), its creditors, trustees or other parties of interest can file competing plans. The debtor s plan of reorganization is distributed to creditors and others, and each class of creditors votes to accept or reject the plan. The the Court approves the plan of reorganization. The on or after the confirmation that the reorganization plan becomes effective and all material conditions for emergence have been satisfied. The emergence is also referred to as the effective. M&A snapshot 3
Reporting considerations during bankruptcy Once a company files a petition for bankruptcy under Chapter 11, its accounting and financial reporting fall under the Reorganization Standard. Generally, a company s financial reporting for most items will not change as a result of the bankruptcy filing and will reflect the financial evolution of the proceedings. For example, the impairment guidance will still apply for goodwill both before and after the filing. However, certain changes in reporting practices are necessary because the needs of financial statement users change upon filing for bankrupcty. Following are some of the more unique reporting considerations. Presentation of financial statements While a company will continue to present balance sheets and statements of operations, cash flows, and changes in stockholders equity after filing a petition, the labeling of the statements will change. All financial statements should be clearly labled as Debtor-in-possession until emergence from bankruptcy. Upon emergence, and when applying fresh-start reporting, if applicable, a blackline format distinguishing the predecessor and successor periods is necessary. Balance sheet The most significant impact of the Reorganization Standard on the financial reporting of balance sheet items involves the classification and presentation of liabilities. Presentation of liabilities Liabilities are separated into obligations that were incurred prior to the filing, pre-petition liabilities, and those incurred after the filing, post-petition liabilities. Prepetition liabilities are further segregated into those that are subject to compromise (not fully secured and having the possibility of not being repaid at the full amount) and those that are not subject to compromise. Classification is initially made at the of the filing based on whether the liability is adequately secured, but the liability may change classification as the bankruptcy evolves. Liabilities subject to compromise are reported based on the company s best estimate of the expected amount of the allowed claims, which may differ from the final settlement amount. Final settlement amounts are not considered for financial reporting until the plan is confirmed by the Court. A subsequent adjustment to reflect the allowed claim at the settlement amount is recorded as a reorganization item in the statement of operations. Treatment of debt and debt issue costs Debt subject to compromise, including debt discounts, premiums and issue costs, is adjusted to the expected allowed claim and presented net as a single amount. While debt not subject to compromise is not adjusted, changes to the amortization periods and classification may need to be considered. Companies may incur professional fees in conjunction with obtaining debtor-in-possession financing while in bankruptcy. In many cases, costs related to such debt that will be paid in full prior to emergence may need to be expensed as incurred. Income statement The income statement of an entity in bankrcupty will reflect changes recorded during the evolution of the bankruptcy process. The financial statements for the period in which the petition is filed and all subsequent periods will distinguish the ongoing operations of the business from those transactions that are directly associated with the reorganziation. Reorganization items Transactions and events associated with the reorganization are distinguished from the ongoing operations of the business primarily through the use of a separate line on the statement of operations called reorganization items. This category reflects the expenses, gains and losses that are the result of the reorganization of the business. As a general rule, only incremental costs directly related to the company s bankruptcy filing should be presented as reorganization items. Impairment charges and restructuring activities would not usually be considered reorganization items because these costs are associated with the ongoing operations of the business. Expenses related to the preparation of the petition for bankruptcy might be incurred prior to the filing. These expenses should be recognized in earnings when the associated services are rendered. Classification of these expenses as a reorganization item may be appropriate in certain circumstances. Other professional fees Professional fees that become payable upon emergence from bankruptcy, often referred to as contingent fees, are typically expensed upon emergence and recorded as reorganization costs. Interest The bankruptcy code specifically limits post-petition interest on unsecured debt, but allows claims for postpetition interest on secured debt in certain instances. Interest accruing on unsecured debt subsequent to the filing will generally not be allowed as a claim unless there is surplus (a solvent debtor) and all unsecured creditors have received full payment for their claims. Accruing interest on secured debt is allowed when the collateral securing the M&A snapshot 4
claims exceeds the principal amount of the debt and any accrued interest is secured. Therefore, interest expense should be recorded if it will be paid during the proceedings or it is probable the Court will allow it as a priority, secured or unsecured claim. The contractual interest that would have accrued absent the bankruptcy filing should be disclosed. Other accounting considerations A bankruptcy filing can trigger other accounting and reporting implications such as the following: The ability to continue as a going concern should continue to be evaluated. Deconsolidation of a subsidiary filing for bankruptcy due to loss of control will likely trigger a gain or loss upon remeasurement of the parent s retained, noncontrolling interest at fair value. Held-for-sale classification for certain planned asset sales will not be appropriate until Court approval is obtained. Derivative contracts may lose their hedge effectiveness in the period leading up to bankruptcy filing and many derivative contracts are automatically terminated upon the filing of bankruptcy, triggering recognition of previously deferred amounts. Changes to assumptions underlying share-based compensation awards, such as the probability of achieving performance targets or estimating fortfeitures, will likely need to be considered. Modifications or cancellations of awards by the Court should be accounted for on the such actions become effective. Realization of deferred taxes and consideration of a valuation allowance should be assessed to reflect the changes to operational and tax planning strategies brought on by a bankruptcy filing. Stay tuned for future editions in our series on companies in distress, which will highlight considerations when emerging from a bankruptcy filing. For more information on this publication, please contact any of the following individuals: Perry Mandarino Deals Partner, Business Recovery Services Leader (646) 471-7589 perry.mandarino@us.pwc.com Steve Lilley Deals Partner, Capital Markets and Accounting Advisory Services (214) 754-4804 steve.lilley@us.pwc.com Principal Authors: Lawrence N. Dodyk Partner, U.S. Business Combinations Leader (973) 236-7213 lawrence.dodyk@us.pwc.com Sara DeSmith Partner, National Professional Services Group (973) 236-4084 sara.desmith@us.pwc.com Rajeeb Das Deals Managing Director, Capital Markets and Accounting Advisory Services (214) 754-4552 rajeeb.das@us.pwc.com John Stieg Senior Manager, National Professional Services Group (614) 225-8703 john.c.stieg@us.pwc.com Conclusion A key objective of the financial reporting of companies in bankruptcy is to reflect the financial evolution of the proceedings. The filing of the bankruptcy petition will trigger application of the Reorganization Standard, which may result in changes in the timing of accounting charges and a company s reporting practices. The actions of the Bankruptcy Court will also directly impact a company s reporting. Companies will want to be particularly mindful of the disclosures during the bankruptcy period as the needs of financial statements users change. M&A snapshot 5
PwC has developed the following publications related to business combinations and noncontrolling interests, covering topics relevant to a broad range of constituents. How timing your transactions in light of the new standards will impact your business and communication with stakeholders Goodwill impairment testing: What's old is new again Deal or no deal: Why you should care about the new M&A standards Even your tax rate will change Accounting for partial acquisitions and disposals it's not so simple! Doing a deal? Be careful about employee compensation decisions Acquired assets not intended to be used: You may need to record them, even if you don't use them! Accounting for contingent consideration Don't let earnouts lead to earnings surprises The Consolidation Standard determining who consolis is just the beginning Carve-out Financial Statements A challenging process Noncontrolling interests why minority shareholder rights matter Market participants: how their views impact your values Did I buy a group of assets or a business? Why should I care? Don't let push-down accounting push you around Financial risk management considerations in an acquisition We re in the process of acquiring a company with significant in-process research and development (IPR&D) activities. What's next? Cross-border acquisitions Due diligence and preacquisition risk considerations Cross-border acquisitions Navigating SEC reporting requirements Cross-border acquisitions Accounting considerations relating to income taxes Cross-border acquisitions Post-acquisition considerations Companies in distress: A successful turnaround requires decisive action PwC clients who would like to obtain any of these publications should contact their engagement partner. Prospective clients and friends should contact the managing partner of the nearest PwC office, which can be found at www.pwc.com. 2014 PricewaterhouseCoopers LLP, a Delaware limited liability partnership. All rights reserved. PwC refers to the United States member firm, and may sometimes refer to the PwC network. Each member firm is a separate legal entity. Please see www.pwc.com/structure for further details. This content is for general information purposes only, and should not be used as a substitute for consultation with professional advisors.