Intellectual Property Protection in M&A Negotiations

Abstract

In this paper, I show that a major share of the value of target firm’s intellectual property can be protected from expropriation by the acquirer through negotiating a compensating bidder termination fee (BTF), which is paid to the target in case the acquirer abandons the deal. I apply a capitalization model for intangible capital stocks to proxy for the component of intellectual property in target firm’s market value. The results suggest that, on average, for every dollar of target firm’s R&D capital stock, roughly 16 cents of protective share is incorporated in the BTF. I strengthen my causal interpretation with an instrument variables approach that exploits exogenous industry-level variation in R&D worker quota. The relation between target firm’s innovation activity and BTF size is more pronounced, if the target is a pioneer in its technology sector, if the target operates in an industry that sells unique products, if the target is assigned to the high-tech or healthcare industry, and if the target mentions “trade secrets” in its 10-K report filed with the SEC prior to deal announcement. The effect is further increasing in the degree of technological proximity as well as product market rivalry between acquirer and target. Extending prior research at the intersection of innovation, law, and M&A, this paper concludes that BTFs serve as a contract mechanism that provide target firms compensation for revelation of sensitive information in M&A negotiations if acquirers terminate deals. The option to include BTFs in M&A contracts thereby increases acquirers’ incentives to close the deal and increases targets’ ex-ante incentives to reveal innovative secret information.

Keywords: Intellectual Property, Innovation, Intangible Capital, Takeovers, Mergers and Acquisitions, Product Market Competition, Industrial Organization, Bidder Termination Fees

JEL Classification: G14, G34, O34