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About the M&A transition services agreement blog series
In the first entry in the series, I addressed why a buyer would seek a transition service agreement (TSA):
If you’ve determined that your M&A deal requires a TSA, most often when you are buying part of a company, the next step is to draft a thorough and effective agreement with supporting schedules.
A TSA is a legal document that references the sale and purchase agreement and defines the parties and their roles as service providers and service recipients. A TSA will provide the framework under which the agreed upon services will be provided.
A TSA will reference the following:
Transaction counsel will typically take the lead on drafting a TSA. Generally, an M&A practitioner and/or functional subject matter experts will support the drafting of a TSA by providing input and reviewing interim drafts.
A TSA will also reference a schedule or schedules that document the detail of each resource, support, process or technology that the service provider will deliver to the service recipient.
It is also important to note that the buyer and the seller can be both a service provider and a service recipient, which means that there may be more than one TSA schedule.
The schedule where the buyer is the service provider and provides services to the seller is referred to as a reverse TSA (rTSA).The development of the TSA schedule typically requires M&A practitioners to take the lead, working with functional experts to define each service to be provided under the TSA.
The TSA schedule is often arranged by function and will contain the following information:
The best approach is to provide as many specific details as possible when drafting each item included in the TSA schedule(s) in order to minimize questions or concerns raised during the TSA period due to a lack of clarity or understanding.
A seller is most often the dominant service provider under a TSA. Therefore, a seller must understand the detail of each service to ensure that it can be continued. To illustrate this point, consider a service that is provided by a third-party vendor. The agreement between the seller and the third-party vendor may govern whether a contracted service can be provided to the buyer through a TSA or it may limit the duration. If the agreement is silent, the vendor’s consent may be required to proceed.
Also, there may be services that must be excluded because a seller cannot legally provide the support (i.e. accounting support for an unrelated entity in certain eastern European countries) or may not be willing to provide (i.e. legal support).
It is imperative that a seller identify or appoint the resources that will provide the TSA services and support the billing. Some serial acquirers have a team of resources that own and support TSA services, but most sellers do not.
If a TSA is not made a priority for a seller, then it is likely that the TSA services provided will be executed poorly as it is seen as a lower priority and probably given less resources than other responsibilities.
Sellers must also understand:
An additional consideration that a seller may want to explore is the use of a cost escalator. Such a provision will clearly state when costs increase at certain dates. A cost escalator can provide an incentive for the buyer to remain on track to exit the TSA in a timely fashion.
It is also important for a seller to understand the interdependencies between TSA items. A few interdependency examples include:
A buyer must understand the detail of each TSA item to ensure that there are no gaps or exclusions that prevent the business from operating during the TSA period.
The buyer also must understand the cost methodology that is applied to each TSA item and if it deviates from the approach used to charge the target business when it was part of the seller’s organization. At times, sellers will apply a costing approach that deviates from the historical cost for these services that can impact the cost structure of the target business.
Finally, the buyer needs to ensure that the timelines for its plans to exit the TSA and to set up the stand-alone infrastructure to replace the TSA services align. If these timelines are not meticulously managed it can result in the need to extend TSA services beyond the anticipated duration, which can result in negotiations where the buyer is at the mercy of the seller.
The TSA will outline many aspects of the governance process including identifying
Appointing a TSA manager is an important step to ensure that each party understands who they must coordinate with. It is critical not to underestimate the time it takes to effectively manage a TSA and the associated billing. Typically, parties to the TSA have regular communication and scheduled meetings to address questions or concerns and to proactively plan the TSA exit timing for each item.
A TSA offers both a seller and buyer the opportunity to close a deal quickly and help manage business continuity for the acquired business. The agreement and supporting schedule(s) provide the framework and document the detail of the TSA services to be provided. A robust TSA governance process ensures the provision of services, billing and exit are efficient and effective.
In the final part of this series, I will discuss possible alternatives when a TSA cannot be leveraged.
