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REITs: Mergers and Acquisitions.
ALM Media, LLC, May 2013, Pages: 808
Since the early 1990s, the market capitalization of REITs has increased from about $10 billion to over $330 billion, and M&A transactions involving REITs and UPREITs have changed the corporate and real estate landscape. REITs: Mergers and Acquisitions is a new and important guide to this growing area of law.
Covering both fundamental and advanced issues, the authors discuss: structural considerations, directors' duties, documenting the deal, financing, tax considerations, friendly and hostile transactions, defensive techniques and the processes for selling or taking REITs private. REITs: Mergers and Acquisitions provides essential discussion of how the customs of corporate and real estate transactions differ and how conflicts involving letters of intent, due diligence, exclusivity periods and contingencies to the deal can be resolved.
At a time of dynamic deal activity in the REIT industry, corporate and real estate lawyers, REIT CEOs and CFOs, investment bankers, analysts, accountants and other professionals will all benefit from the strategic guidance this new book offers.
CHAPTER 1
Introduction
- 1.01 Introduction—Real Estate Meets M&Amp;A
- 1.02 The REIT Revolution—Background
- 1.03 Trends
- 1.04 REIT, UPREIT and DownREIT Basics
- 1.05 Clashes of Culture, Custom and Deal Structures at the Crest of the Revolution
[1] Cultural Differences
[2] Structural Differences
CHAPTER 2
Structural Considerations in Consensual REIT M&Amp;A Transactions
- 2.01 Overview
- 2.02 Transaction Structures
[1] Conventional REIT Combinations
[2] UPREIT Combinations
[3] Mismatch Combinations—Combining a REIT with an UPREIT or Non-REIT Real Estate Operating Company
- 2.03 Unique Structural Considerations in REIT M&A Transactions
[1] Overview
[2] A REIT Cannot Be Closely Held—The Five/Fifty Rule
[3] A REIT Must Be Owned by 100 or More Persons
[4] Charter Restrictions that Preserve a REIT's Status as a “Domestically Controlled” REIT
[5] Charter Restrictions that Prevent Related Tenant Rent Income
[6] How Far Can a REIT Go in Limiting Share Ownership?—Transferability Issues
- 2.04 Gremlins in REIT Transactions
- 2.05 Issues Relating to Tax Indemnities in Favor of OP Unitholders
CHAPTER 3
Directors' Duties in REIT and UPREIT M&A Transactions
- 3.01 Introduction
- 3.02 Basic Duties of Directors of Corporate REITs
[1] Traditional Business Judgment Rule
[2] Enhanced Scrutiny
[3] Entire Fairness
[4] Duties in Change of Control Transactions
- 3.03 Duties to OP Unitholders and Other REIT Complications
[1] Resolving Conflicts of Interests Between REIT Shareholders and Unitholders
[2] Dealing with Potential Internal Board Conflicts Arising from Board Composition in UPREITs and DownREITs
[3] Negotiating with OP Unitholders in Structuring Deals
[4] Potential Anti-Takeover Effects of the Operating Partnership Structure
[5] Fiduciary Duties and Charter Ownership Limitations
- 3.04 The Use of Special Committees in REIT and UPREIT Sale of Control Transactions
[1] When Should a Special Committee Be Formed?
[2] Workings of a Special Committee
- 3.05 Principles of Good Governance in REITs
[1] General Considerations
[2] Special REIT Considerations
CHAPTER 4
Selling a REIT
- 4.01 Deciding to Sell
[1] When to Sell
[2] Whom to Consult
[3] Takeover Preparedness
- 4.02 Legal Considerations
[1] Directors' Fiduciary Duties
[2] The Importance of Informed, Good-Faith Decision Making
[3] The Use of a Special Committee
[4] Applicable State Statutory Provisions
[5] Antitrust Laws
[6] Applicable Stock Exchange Requirements
- 4.03 The Auction Process
[1] Preparing to Sell
[2] Techniques for a Public Sale
[3] Valuing Stock Considerations in Acquisition Proposals
[4] Protecting the Deal
[5] Preemptive Bids and Attempts to Derail a Process
[6] Timing
- 4.04 Confidentiality
[1] Secrets and Leaks
[2] Duty to Disclose
- 4.05 The Role of Advisors
[1] Financial Fairness Opinions
[2] Advice of Legal Counsel
- 4.06 The Art of Running and Winning an Auction
CHAPTER 5
Acquisition Agreements
- 5.01 Introduction
- 5.02 Structure and Pricing
[1] Types of Structures; Key Advantages and Disadvantage
[2] Pricing
- 5.03 Representations and Warranties
- 5.04 Covenants
[1] Conduct of Business Covenants
[2] Covenants Necessary to Effect Closing
[3] Covenants Relating to Post-Closing Actions
- 5.05 Closing Conditions
[1] General Closing Conditions
[2] REIT Qualification Opinion
[3] Due Diligence Out
- 5.06 Indemnification and Termination Provisions
[1] Indemnification
[2] Termination
- 5.07 Miscellaneous Provisions
[1] Anti-Assignment
[2] Exclusivity, No Shops and Fiduciary Outs
[3] Break-Up Fees
[4] Material Adverse Change
[5] Transactions in Stock by Affiliates
[6] Management/Shareholder Support Agreements
[7] Confidentiality Agreements
CHAPTER 6
Tax Considerations in REIT Mergers and Acquisitions
- 6.01 REITs: Background and Qualification Issues
[1] Asset Requirements
[2] Income Tests
[3] Distribution Requirement
- 6.02 M&A Tax Considerations—Introduction
- 6.03 Acquisition Structures—General Considerations
[1] Tax-Free Reorganizations
[2] Transactions that Are Wholly or Partly Taxable
[3] Taxable Acquisitions
[4] Net Operating Losses and Other Carryovers
- 6.04 UPREIT Mergers and Related Partnership Issues
[1] UPREITs—General Background
[2] Overview of UPREIT Mergers
[3] Disposition of Partnership Properties and Section 704(c) Issues
[4] Debt Pay Down and Reallocation of Partnership Liabilities
[5] Disguised Sales Issues
- 6.05 Tax Issues If the Target Is a C Corporation
CHAPTER 6A
Cross-Border Acquisitions by REITs
- 6A.01 General Background
[1] Characterization of a Subsidiary as a Taxable REIT Subsidiary
[2] Characterization of a Subsidiary as a Qualified REIT Subsidiary (or Other Disregarded Entity)
- 6A.02 Acquisition Structures
[1] Taxable Asset Purchase
[2] Taxable Stock Purchase
[3] Tax-Free Reorganizations
- 6A.03 Post-Acquisition Structure and Operations
[1] Characterization of a Foreign Target Corporation as a Taxable REIT Subsidiary
[2] Characterization of a Foreign Target Corporation as a Qualified REIT Subsidiary
[3] Ancillary Considerations
CHAPTER 6B
Cross-Border Acquisitions of REITs: Selected U.S. Federal Income Tax Issues Arising From Foreign Acquisition of REITs or Interests in REITs
- 6B.01 Introduction
- 6B.02 Acquisition Structures
[1] Overview of Code Section 367 as Applicable to Stock Transfers
[2] Overview of FIRPTA as Applicable to Nonrecognition Transactions Involving United States Real Property Interests
- 6B.03 Special Tax Considerations Regarding the Ownership and Disposition of REIT Shares
[1] Overview of the U.S. Federal Income Tax Regimes Applicable to Foreign Persons
[2] Sale of REIT Shares by Foreign Shareholders
[3] Distributions by REITs to Foreign Shareholders
CHAPTER 6C
Cross-Border Acquisitions Involving REITs: Selected Corporate and Regulatory Issues
- 6C.01 Overview
- 6C.02 Completing a Cross-Border Deal
[1] Political Considerations
[2] Antitrust/Competition Review
[3] Deal Consideration and Transaction Structures
[4] Takeover Regulation
[5] Litigation
- 6C.03 Special Considerations Post-Consummation
[1] Securities Laws Applicable to the Surviving Entity
[2] Stock Exchange Listing Requirements
[3] Integration of Accounting Standards
[4] Integration Planning
CHAPTER 6D
Special Tax Considerations Regarding the Acquisition, Ownership and Disposition of REIT Shares by Foreign Gov-ernments and Their Sovereign Wealth Funds
- 6D.01 Introduction
- 6D.02 Sovereign Wealth Funds
- 6D.03 Overview of the U.S. Federal Income Tax Regime Applica-ble to Foreign Governments and Their Sovereign Wealth Funds
[1] Advantages of Code Section 892
[2] Foreign Governments
[3] Types of Exempt Income
[4] Commercial Activities Exception
- 6D.04 Special Structuring Considerations for the Acquisitions of REIT Shares by Foreign Governments and Their Sovereign Wealth Funds
[1] General Structuring Considerations
[2] Special U.S. Real Property Holding Corporation Structuring Considerations
- 6D.05 Special Tax Considerations Regarding the Ownership and Disposition of REIT Shares by Foreign Governments and Their Sovereign Wealth Funds
[1] Sale of REIT Shares by Foreign Governments
[2] Distributions by REITs to Foreign Governments
CHAPTER 7
Enforcing Ownership Limits and Excess Share Provisions as Defensive Measures; Poison Pills
- 7.01 Introduction
- 7.02 Ownership Limitation Provisions and Excess Share Provisions as Defensive Measures
- 7.03 The Uncertainties Surrounding Enforcement of Ownership Limitation and Excess Share Provisions in REIT Charters as Defensive Measures
- 7.04 Shareholders' Rights Plans and Excess Share Provisions Compared
[1] Prevalence of Poison Pills
[2] The Advantages of Poison Pills Over Ownership Limitations and Excess Share Provisions
[3] Tension Between the REIT Rules and the Mechanics of Poison Pills
CHAPTER 8
Taking REITs Private
By Laura A. McIntosh Wachtell, Lipton, Rosen & Katz
- 8.01 Overview
[1] Why Go Private?
[2] Structuring the Transaction
- 8.02 Financial Considerations
[1] Pricing
[2] Source of Funds
- 8.03 Managing Conflicts of Interest
- 8.04 Other Considerations
[1] Market Checks
[2] Executive Compensation and Retention
[3] Change of Control Employment Arrangements
[4] Club Deals
[5] Reverse Break Fees and Capped Guarantees
[6] Strategic vs. Financial Bidders
- 8.05 Treatment of Unitholders in UPREIT Going Private Transactions
[1] The Hometown-Chateau Transaction
[2] The Arden-GE-Trizec Transaction
- 8.06 Implications of the REIT Rules
- 8.07 Applicable Federal and State Law
[1] Federal Securities Law
[2] State Law
CHAPTER 9
Financing the Deal
By Chetan Gulati Wachtell, Lipton, Rosen & Katz
- 9.01 Introduction
- 9.02 Financing Options
- 9.03 Due Diligence
- 9.04 Dealing with Conditionality (The “Financing Contingency”)
- 9.05 Establishing a Debt Strategy and Making a “Wish List”
- 9.06 Securing a Commitment Letter
- 9.07 Closing the Deal
CHAPTER 10
Spin-Offs of REITs by Operating Businesses
- 10.01 Overview
- 10.02 Formation of “Linked” REITs
- 10.03 Addressing Conflicts of Interest
- 10.04 Tax-Free Spin-Offs of REITs
[1] In General
[2] REIT Specific Spin-Off Issues
CHAPTER 11
Compensation Issues in REIT Mergers and Acquisitions
By David Kahan Wachtell, Lipton, Rosen & Katz
- 11.01 In General
- 11.02 Change of Control Definitions
[1] Triggering Events
[2] Objective Criteria
- 11.03 “Golden Parachute” Arrangements
[1] Adoption of Golden Parachute Arrangements
[2] Structure of Golden Parachute Arrangements
- 11.04 Stock-Based and Other Incentive Compensation Plans
[1] Treatment of Equity Awards
[2] Accelerated Vesting
[3] Performance-Based Awards
[4] Annual Bonuses
- 11.05 Broad-Based Employee Benefit Plans
[1] “Full-Company” Transactions vs. Asset/Subsidiary Transactions
[2] Employee Treatment Covenants
[3] Qualified Retirement Plans
[4] Deferred Compensation and Other Nonqualified Arrangements
[5] Welfare Plans
[6] Labor Issues
CHAPTER 12
Antitrust Issues in REIT/REAL Estate Transactions
By Joseph D. Larson Wachtell, Lipton, Rosen & Katz
- 12.01 Overview
- 12.02 Procedural Rules: Hart-Scott-Rodino Act
[1] Reportable Transactions and Information Required
[2] Waiting Periods and Second Requests
[3] REIT Exemption
[4] Explicit Exemptions from the HSR Act
[5] Gun Jumping Issues
- 12.03 Substantive Antitrust Standards
[1] Clayton Act Section 7
[2] State Antitrust Laws
APPENDICES
INDEX
David M. Einhorn
David M. Einhorn has been a partner in the Tax Department at Wachtell, Lipton, Rosen & Katz since 1982. He specializes in the tax aspects of partnerships, bankruptcy reorganizations and mergers and acquisitions, with an emphasis on transactions involving Real Estate Investment Trusts (REITs).
Mr. Einhorn is a member of the Tax Sections of the New York State and American Bar Associations and has lectured and written about tax matters relating to REITs, bankruptcies and mergers and acquisitions. He received a J.D. degree from Fordham University in 1976 and an LL.M. from New York University in 1979. He is admitted to practice in the New York State courts and in the Southern and Eastern Districts of New York, as well as the U.S. Tax Court and U.S. Court of Federal Claims.
Adam O. Emmerich
Adam O. Emmerich is a partner Wachtell Lipton's Corporate Department. He has extensive experience handling mergers and acquisitions, divestitures, spin-offs, joint ventures, and financing transactions, as well as takeover defense and corporate governance issues. He is a frequent speaker at bar and professional conferences on topics relating to mergers and acquisitions.
Mr. Emmerich attended Swarthmore College and The University of Chicago, from which he received his Juris Doctor degree with honors. While at the University of Chicago, Mr. Emmerich served as Topics and Comments Editor of The University of Chicago Law Review, was elected to the Order of the Coif, and received an Olin Fellowship in law and economics. Following law school, he served as law clerk to Judge Abner J. Mikva, of the United States Court of Appeals for the District of Columbia Circuit.
Robin Panovka
Robin Panovka is a partner at Wachtell, Lipton, Rosen & Katz specializing in mergers and acquisitions, strategic transactions and corporate governance, principally in the real estate, REIT and hospitality sectors. He is a frequent speaker and author on topics involving mergers and acquisitions, REITs and commercial real estate. Mr. Panovka is co-chair of the advisory board of New York University's REIT Center for the study of Public Real Estate Companies, and serves on the advisory board of NYU's Real Estate Institute. He is also a member of the American College of Real Estate Lawyers and serves on the boards of Duke University School of Law and the Harlem Educational Activities Fund.
Mr. Panovka was born in Johannesburg, South Africa and lived in Israel for eleven years. He earned his bachelor's degree cum laude from Cornell University and received his J.D. (with honors) from Duke University. He is a member of the New York and Georgia Bars.
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