Mergers, Acquisitions, and Divestments for Game Developers Part 2: Mergers and Acquisitions

Continuing from Part 1, this article addresses the concept of mergers and acquisitions, which are undoubtedly important to the smaller developer. For those outside the industry, or who don't hav a business background, the overwhelming question is probably a simple "Why?" Part of it seems to be a trend in the industry, a trend which has happened in many other industries before. Large game companies (i.e. EA, Ubisoft, Microsoft, Nintendo, Sony) like to acquire up and compning developers for a number of reasons, such as adding fresh thought to the development process, adding new intellectual property to their roster both from the standpoint of the software and the brand that accompanies it, and a broader mass appeal, not to mention the added revenue. From the standpoint of a start up developer, a big studio taking over gives you many of the perks that come with being in a big company, and may remove many of the financial concerns and burdens that occur with a smaller business. Of course, if your small business is more like, say, id software, or if you happen to have a genius like, say, Miyamoto* break off to form a small development company, then you're probably not looking into being acquired.

So, what are mergers and acquisitions? Well, it's two different means to the same ends: two companies combine to form one. A merger is where two companies come in on more equal footing, and merge into one new entity. An example would be SquareSoft and Enix becoming SquareEnix. An acquisition, on the other hand, is typically used to describe a large company absorbing a smaller company, such as when Microsoft originally acquired Bungie. In both types of transactions, the mechanism is controlled by the contract, and often times they all work about the same, other than the respective sizes and bargaining powers of the entities. Hence, Mergers and Acquisitions (or M&A, as they're often called in the legal and business worlds) are typically discussed as a single concept.

This brings us to the basic workings of the concept. Generally, this starts either by one company deciding it wants to acquire another, or two companies mutually deciding they're be better off joining forces. From there, the deal is negotiated through, once again, the contract. There may be some additional regulatory issues if there's a cross-border transaction or if both companies are publicly held, or if the new company would result in some sort of a monopolistic anti-trust monster, but generally, there won't be too much government interference to worry about, unless a location happens to require particular permits. There is also always a tax element to pay attention to, but that applies on both a local and national level (as well as a state level in many places). Once all of the details are ironed out in negotiations, there is some sort of closing to sign the documents, and then the companies are re-assembled according to the terms of the agreement. As this is such a flexible process, given the flexibility of the agreements and the dramatic differences between potential parties, this is another occasion where tips are more appropriate than a guide.

1. Keep your position in perspective. Remember that no two transactions are alike, and your place respective to the other party in the deal may reflect directly on your bargaining power. If it's a merger, you probably can't force the other party into too many different directions. In an acquisition, I tend to believe the little guy often has more power than the big guy. Typically, in an acquisition, the big guy wants the little guy, and the little guy may be able to get a few extra perks because of that desire. Of course, individual situations do vary.
2. Each side needs independent counsel. Much like I stated in the previous part, everyone needs to have their interests represented independently. More than that, independence removes the appearance of impropriety in case the deal falls apart down the road.
3. Organization is the absolute key. Negotiations in these deals can, and do, drag on for months at a time. Without a pretty thorough organization, things will be overlooked. Your legal representation should handle organizing the documents and keeping you apprised of the word for word changes in redlined versions, but checklists help with the bigger picture.
4. Remember: Contracts are flexible. When it comes right down to it, most any outcome can be written into the contract. If you want to maintain separate offices, that can be done. If you want salaries locked in for 5 years, that can be done. If your big sticking point is making sure there's a frozen yogurt machine in the breakroom, that can be addressed too.
5. Build in a mechanism to resolve future issues. As much as every attorney wants to be sure the document accounts for every contingency and every alternative, inevitably something will come up. If a way to resolve issues is built into the contract, hopefully it will keep the deal from falling apart over unresolved problems, be they with healthcare or office attire or the number of action figures allowed in a cubicle.

In the grand scheme of things, M&As are pretty routine. They have been happening in business forever, and there are plenty of professionals who have significant background in these transactions. Now that the game industry is one of the biggest kids on the block, more traditional business issues will continue to arise in the industry and be well publicized, just as the recent events noted in Part 1 were.


*Note: There's no indication this would ever happen, but he's a recognizable example of the concept. This is not meant to create some grand rumor about a new studio in the works.

Mergers, Acquisitions, and Divestments for Game Developers Part 1: Divestment

Given the recent news in the corporate realm for developers Bizarre Creations and Bungie, I thought it would be a good time to discuss some basics of corporate transactions. Accordingly, this will be the first of two articles on Mergers, Acquisitions, and Divestments. Given that today is Bungie's "independence day," I thought it would be appropriate to start with divestments, even though the industry seems to have far more mergers and acquisitions.

The basic concept is a spin off. An element of a company, for one reason or another, is pushed into an independent entity, or to another acquiring company. In the event of the latter, the points on mergers and acquisitions are equally relevant.

It would be almost impossible to outline every element of a divestment, and no two divestments are identical just based on the differences between companies. Rather than try to explain the process in depth, this article will give a short outline and some points to keep in mind if your group is being divested.

Generally, a divestment starts with a decision from some level of the corporation that the group needs to be spun off. Once the decision is ratified by the necessary people, then a new entity is set up to move the group into. The assets of the group are then sold to the new entity, and someone is appointed to be the head of the entity. The staff is then re-hired to the new entity, but typically all of this happens in a very short period of time with essentially no lag between the old and the new. Often, the original parent takes an interest in the new entity in exchange for the things being given to the new entity. The alternative is generally a promissory note of some sort, whereby the new entity will pay off the things they're getting from the old company.

Some important points to consider if your group is being divested:
1. Don't panic. Don't take it personally. Ultimately, this is just a business decision, and it's hard for a lot of people to separate "business" and "personal." If you treat it as a business decision and stay calm, it will make the transition a lot easier.
2. Get independent counsel. Odds are that a company large enough to have a divestment usually has an in house counsel or a law firm they do most of their deals with whom you've met or been used to dealing with. No matter how much you trust them, you want your own, independent counsel from an unrelated firm who has experience with transactions. When it comes right down to it, you want to have someone who is in your corner and has no possibility of having a divided interest. There is really no scenario under which this is a bad idea.
3. Make sure you get the important stuff in writing. Promises that are not in writing are generally not going to be honored. That is the unfortunate truth. However, if you took point 2 to heart, you will likely have an attorney you hired saying the same thing. If they promise you can take your really popular game series with you, from engine to trademark, make sure it's in a signed writing.
4. The whole thing is governed by the contract. This relates back to point 3. Typically, the writing in question is going to be the contract itself or an exhibit to the contract. There are really two important things to remember here:

1. If it's not in the contract, it's not going to happen.
2. A contract is an infinitely flexible document, and pretty much anything you want can be drafted into it, given a little work and, in some cases, creative thinking.

5. Make sure to resolve everything. One thing counsel should be able to offer you is experience, and that experience means most every little detail and strange contingency should be addressed in the contract. Keep in mind there is more to deal with than just the IP you created in the company. Things like what happens to employee health benefits, office furniture, parking spaces, etc. are all important. Moreover, if you're keeping the same office space, there will likely be a number of lease issues to deal with, or if the company owns the building, a lease will need to be drawn up. Even issues like interim working capital may be in the agreement, if separate funding is not occurring. Because there are so many details and contingencies, point 2 is really relevant from the time the decision is made since even the location and/or structure of the new entity can have different effects on things like taxation.

All in all, transactions like this occur daily in the corporate world, and so the basic concepts apply to all industries.

Two comments to the Bungie deal specifically:
1. If you're expecting the Bungie IPO to follow shortly, it seems unlikely in the immediate future given the choice of an LLC as an entity. Not to say it couldn't happen, but the choice of an LLC seems to suggest that isn't an immediate goal.
2. This might give more viability to the Halo DS theories.