Hi Tim,

Yes, I have.  The most complicated M&A I was involved in was the divestiture
of MLIM (Merrill Lynch's Investment/Asset Management Company) from Merrill
Lynch, and its merger into BlackRock.  It was an amazing and complex
experience from which you learn a great deal.  Before going on, let me state
that I am not a lawyer and you should get your RM facts and requirements
straight from your M&A counsel, long before starting your M&A work.
Unfortunately, nothing is perfect and you¹ll learn a lot as you go along and
through hindsight.

As far as M&A records go, there are a great deal of things to worry about.

If the Acquired (the company being taken over) is an independent entity,
with no attachments to any other entity (in other words, the "Acquired" is
its own complete and whole entity) then you have nothing more than an
"integration issue", which is the absorption of what the "Acquired" has done
and/or or is doing, into the firm that is doing the Acquiring (the
"Acquirer").  This scenario is, by far, the least complicated scenario,
since there is no original entity to which the Acquirer will have any
obligations, of the acquisition of the Acquired.  Even so, there are still
many things to worry about, such as integrating what the Acquired enterprise
was doing into how the Acquirer currently does business.  In this case,
their are usually a number of options:

1. Throw out what the Acquired was doing, altogether.  This is rarely a
viable option. 
2. Completely integrate and assimilate the Acquired into the Acquirer and
its way of doing business.  This usually takes time to merge groups
together, understand roles and responsibilities, make them consistent, merge
data and information together, etc.  The is almost always the most desirable
state.  However, it¹s not always realistically achievable.
3. Leave the Acquired entity to handle operations the way it always did, in
a sense allowing it to function independent of the Acquiring entity.  This
means that while you¹ve acquired an enterprise, it will continue to act and
function on its own.  This usually occurs in the cases where the Acquired is
too large or too complex of an entity to easily be assimilated into the
Acquirer, in a timely manner.

In the case where the Acquired was a ³piece² of a bigger entity that is
divesting it off (the ³Divestor²), as part of the M&A, the issues become far
more complex.  Some records will be whole and transferable, while others
will be vague, commingled and nontransferable.  In this case, complex
preparations must be made to be able to handle records of the Acquired that
are commingled with its parent Divestor, for the sake of the Acquirer.  This
case is more like a forced/shotgun wedding between the Divestor and the
Acquirer that must last for at least as much time as the maximum retention
requirements of the Acquirer, regardless of whether the Divestor wants to
hold onto records that long or not.  In this case, long term contractual RM
ties will almost always have to be put in place between the Acquirer and the
Divestor, because it is almost impossible to easily and cost effectively
divest all Records from the Divestor, to be provided to the Acquirer.  In
this case, the Divestor will be able to wholly divest records that stand
alone and are not commingled with the rest of its firm.  However, this is
not realistic in the case of many other records, where commingling is
unavoidable.  For example, the master firm has ³shared² Data, Information,
and Knowledge Management services (e.g. Email, Corporate Repositories,
Instant Messaging/Chat, Telephone Recordings, Documentation, Web Content,
etc.).  In these cases, it is very common for the Acquirer to put forth its
requirements to the Divestor and ensure that the Divestor can provide
records to the Acquirer, in the event of things like audits, law suits,
etc., at a price and frequency that is reasonable to both the Acquirer and
the Divestor.  NOTE: This should be turned into a formal contract that is
maintained with formal Service Level Agreements.

In this latter case, it is almost always financially infeasible to
completely divest all records from the parent Divestor.  As a result, the
two entities (the Divestor and the Acquirer) will have to work together for
a number of years, beyond the completion of the formal M&A date, to foster
healthy RM for the sake of the child (the Acquired).  When legal obligations
are at stake, there is really no other available choice.

Anyhow, I certainly hope this information helps.  If you feel you¹d like to
speak in more detail, please always feel free to contact me offline.

My Best,

FG

Frank Guerino, CEO 
TraverseIT
908-294-5191 Cell
http://www.TraverseIT.com



On 10/25/07 4:42 PM, "Tim Hughes" <[log in to unmask]> wrote:

> I'm sending this inquiry on behalf of someone not on the Listserv.
> 
> Has anyone had experience with dealing with employee records after a merger
> - specifically the records of the company that was taken over?
> 
> Thanks,
> 
> Tim
> 


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