None of the information contained herein is meant to constitute legal advice.
The proliferation of nonprofit organizations in recent years, combined with the current economic climate, has impacted many charities and resulted in the elimination of vital programs or the closure of operations. Specifically, the current tough economic times have come after years of continued increase in the number of nonprofit organizations in the United States – according to the Urban Institute and the National Center for Charitable Statistics, as of 2006 there were over 2.3 million 501(c)(3) nonprofit organizations in the United States (this number is up over 36 percent from the data available in 1996).
Like for profit organizations and individuals, however, nonprofits must also adapt their functioning and thought-processes to survive in these hard economic times. In a December 2009 article, the Chronicle of Philanthropy (citing a recent Bridgespan Group report surveying approximately one hundred nonprofit leaders) noted that “54 percent of respondents are scaling back or eliminating some programs to free resources for other programs, up slightly from a year ago…[and that] [n]early two-thirds of the respondents (63 percent) said they were moving staff members to support core programs.” (Ben Gose, As the Economy’s Pain Continues, More Charities Abolish Programs, THE CHRONICLE OF PHILANTHROPY, Dec. 10, 2009)
While many organizations have decided to cut back on programming, there is another viable option for charities to continue to serve their constituents while meeting the bottom line – merger or integration. Once mainly thought of as transactions reserved for the for profit community, mergers and acquisitions in the nonprofit industry are not only possible, but can be a vital element of survival. In fact, another recent research report conducted by The Bridgespan Group champions the possibility of nonprofit integrations not only as a means of survival in a tough economic climate, but also as a strategic tool for success. In its report, The Bridgespan Group cited a recent poll of nonprofit executive directors that found that nonprofit leaders consider “mergers and acquisitions (M&A) reactively, a way to shore up finances, to make their organizations appear more attractive to funders or to address a succession vacuum [but that the time] is also ripe for leaders of healthy organizations to consider M&A proactively – as a way to strengthen effectiveness, spread best practices, expand reach and – yes -t o do all of this more cost-effectively, making best use of scarce resources.” (Alexander Cortex, William Foster and Katie Smith Milway, “Nonprofit M&A: More Than a Tool for Tough Times,” The Bridgespan Group, February 2009). As such, although this article discusses the benefits of mergers in light of this difficult economy, organizations can always consider integration as a valuable tool for success.
One of the first important precursors to considering a merger is the organization understanding and appreciating that no man is an island, and in order to better the continent, you have to build bridges. This may sound obvious; however, many small nonprofits are actually limited by core groups of leaders who are passionate about their cause and the constituency they serve. While this zeal and diligence can be a true asset to a charity, it can also be a hindrance as it can potentially limit the perspective of organizational leadership. This phenomena is sometimes referred to as “founder’s syndrome,” which Wikipedia defines as “a label normally used to refer to a pattern of behavior on the part of the founder(s) of an organization that, over time, becomes maladaptive to the successful accomplishment of the organizational mission.” Accordingly, a foremost hurdle for small organizations interested in integration is overcoming the dominant voice of leadership with tunnel vision. Once this is accomplished, the organization is better-suited to approach potential relationships with an open-mind.
Another important consideration for nonprofit mergers is the culture and environment within each organization as well as the governance structure associated therewith. Although two organizations may serve nearly identical purposes, they can diverge on many governance issues, such as number of board seats, board selection process, board performance evaluations and relationships with staff. For example, an organization with sub-par board participation and low meeting attendance will likely have a remarkably different management style from an organization with fifty active and engaged board members. This variable will not only affect the corporate governance of the respective organizations, but will also have an impact on the functioning of underlying staff and programs. Similarly, the organizations must evaluate and consider their respective corporate image, core values, work environment and leadership style in deciphering the feasibility of integrating the cultures of the two organizations.
Aside from the above internal factors, program services, facilities and equipment are also vital components to the proper evaluation of a merger. Examples of these variables include the number of individuals served by the program, the geographic coverage and “client” demographic, the utilization of technology, “competitors” in the market, service locations, real property arrangements, major equipment inventory, maintenance contracts and technology systems. Moreover, one of the remaining major factors that organizations should consider in light of a potential merger is human resources, including paid staff and volunteers. The subparts to this component include salaries, benefits, expense reimbursement, professional development, liability insurance, performance evaluation, volunteer program structure and training/orientation, recruitment and evaluation/recognition.
Once the organization has determined these core issues, the remaining legal considerations concerning a merger or integration are governed by applicable state and federal law. Depending upon the structure of the transaction, i.e. a true merger versus an outsourcing of management re-composition of the board of directors or asset transfer, the organizations will likely be required to obtain certain governmental approvals before consummating the transaction. Further, in a true merger, it is advisable that the organizations engage in in-depth due diligence sufficient to satisfy themselves that they are aware of the other’s status (and in the case of the surviving corporation, that it is fully apprised of the assets and liabilities it is assuming through said merger).
In California, specifically, in order to engage in a statutory merger, the Attorney General must be notified and certain filings must be completed with the Secretary of State as further set forth in Sections 6010, et. seq. of the California Corporations Code. Under these sections, the legislature has set forth various logistical requirements that must be met in order for an organization to engage in such a transaction. Specifically, without first obtaining written consent from the California Attorney General, a public benefit corporation (which is generally how most non-religious 501(c)(3) organizations are organized in the State of California) is only permitted to merge with another public benefit or religious corporation with specific dedication of assets language in its charter. CAL. CORP. CODE §6010(a). Further, the Attorney General must be furnished with a copy of the proposed agreement of merger, which must contain specified terms and conditions, including but not limited to the general terms thereof, the amendments, if any, to the articles of incorporation and bylaws of the surviving corporation, and a detailed description of how memberships will be transferred from the disappearing corporation to the surviving entity. CAL. CORP. CODE §6010(b); CAL. CORP. CODE §6011. There are also many other provisions that should be clearly and accurately set forth in an agreement of merger between two organization, which include but are certainly not limited to the treatment of employees of the disappearing corporation (i.e. will they be hired on by the surviving corporation, and if so, what happens to accrued benefits, vacation, etc.), warranties and representations concerning the accuracy and completeness of documents provided by each respective organization during the due diligence process (for obvious reasons, this warranty will help protect an organization that is relying on documents provided to it by the other, such as financial statements and annual reports), and the obligations of the parties after the “closing” of the merger transaction. The merger agreement must then be approved by the board of each organization (as well as the members, if applicable) and the surviving corporation is required to file a copy of the agreement with an officer’s certificate.
As referenced above, with merger transactions, the amount of due diligence that is advisable to perform is increased, namely because the surviving corporation is not only acquiring the assets of the other organization, but also assuming its liabilities. It is well-established that “[w]hen a merger of nonprofit public benefit corporations becomes effective, ‘the separate existences of the disappearing parties to the merger cease and the surviving party to the merger shall succeed, without other transfer, to all the rights and property of each of the disappearing parties to the merger and shall be subject to all the debts and liabilities of each…” Catholic Healthcare West v. California Insurance Guarantee Associated, 178 Cal.App.4th 15, 28 (2009) (citing CAL. CORP. CODE §6020(a)). As such, documents and information that should be reviewed and analyzed in a merger transaction include organizational documents (e.g. articles of incorporation, bylaws, minutes, permits and list of current board members and terms), financials (e.g. balance sheets, budgetary projections, annual reports, copies of letters from auditors and list of accounts receivable and payable), tax matters (e.g. Forms 990 and 199, Attorney General registrations and renewals, copy of IRS Form 1023 and copy of IRS determination letter), donor and grant information (e.g. list of restricted donations and grants, list of pending grant applications, copies of donor materials and list of professional fundraisers), employee matters e.g. (list of all employees, documents relating to benefits, copies of personnel policies and handbooks and organizational chart), business contracts and commitments (e.g. copies of all material contracts such as leases, joint ventures, purchase agreements and equipment and merchandise contracts), insurance (e.g. list of all insurance policies with a description of risks, coverage limits and premiums and copy of directors and officers indemnity/liability insurance coverage), litigation (e.g. listing of all pending and possible litigation and contractual disputes and any memoranda of counsel with respect to pending or threatened litigation) and other information or details relating to any and all actual or possible liabilities of the dissolving entity. (Please note that this is meant to be exemplary of the documents that organizations should be reviewing and is by no means exhaustive)
In other types of integration transactions, such as an asset transfer, the assuming corporation can pick and choose the assets it is acquiring, while limiting exposure by choosing not to assume any liabilities. That being said, however, even in this type of transaction, the transferring organization is required to give written notice to the Attorney General at least twenty days before it “sells, leases, conveys, exchanges, transfers or otherwise disposes of all or substantially all of its assets unless the transaction is in the regular course of activities or unless the Attorney General has given the corporation a written waiver of this section as to the proposed transaction.” CAL. CORP. CODE §5913.
As such, care must be taken in such a transaction to ensure that each organization has a competent and knowledgeable tax and legal advisor available to answer questions and provide advice concerning the structure of the transaction and due diligence strategy and guidance, as well as counsel concerning the preparation of the necessary documents and filings with applicable state agencies.
As can be seen, although there are clearly many variables involved in a successful merger or integration, the potential benefits can be invaluable to nonprofit organizations. Not only can entities achieve economies of scale while increasing their donor bases and geographic reach, but more importantly, perhaps, they can improve the quality and efficiency of programming while also tapping into the skills and talents of a greater pool of potential board members.