Reviewing the Corporate Counsel’s Playbook

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Hurricanes. Hostile Mergers. Data breaches. A misconstrued comment on social media. These are a few of the real and figurative storms that companies weather regularly with the help of internal and external staff, and regular advice from their general counsel (GC).

James Barron

The National Association of Corporate Directors (NACD) recently convened its General Counsel Steering Committee. Crisis communications counsel James Barron, a managing director of the New York office of Sard Verbinnen & Co. (SVC), a specialist financial and crisis communications firm, led a discussion of more than 30 GCs from top companies in a discussion on topics that keep them awake at night, including cyberattacks, scandals, and the delicate art of communicating to stakeholders when a crisis occurs.

Barron emphasized that often times the GC plays “the role of the company quarterback,” having witnessed this many times during his tenure at SVC. Directors often turn to their GCs to understand the roles they should play during a crisis, being cautious not to open themselves to future liability. General counsel can also be instrumental in ensuring that leadership proactively creates a response plan and then follows that plan should a crisis arise.

Concepts to include in the GC’s crisis playbook follow:*

1. Create a crisis response plan that is usable. No one has time to read dense policies in a crisis. “While there are some crises that can be anticipated and materials can be prepared in advance, I don’t believe in crisis plan books that are six inches thick,” Barron said. He pointed out that companies should take the time to identify and drill on the most likely crises, then use the lessons learned to refine crisis response processes and assign senior executives and board members to appropriate tasks.

2. Drill the plan. No company can prepare for every scenario that will emerge in a crisis, Barron noted that tabletop exercises can help GCs and boards identify their blind spots and fine-tune assignments of who will be responsible for what portion of the response. One Steering Committee member also pointed out that tabletop exercises surface differing opinions about how to handle a crisis. Consider, for instance, that the GC and the director of public relations often times have very different opinions regarding messaging and speed of outreach. Hashing out disagreements before an event occurs will encourage the GC, executives, and directors to present a united front when a crisis occurs.

3. GCs are Quarterbacks. Barron said GCs often play the role of organizing the team and breaking down silos. “GCs find themselves corralling multiple groups, including senior management, the Board, operational management and communications functions. In addition, they have responsibility for outside counsel and often specialist PR firms such as Sard Verbinnen,” he said. “Their role is often to balance competing needs, particularly where there is a tension between the business needs and legal requirements.”

4. Identifying the need for public communication. Barron reminded the members of the Steering Committee that during times of peace at the company, they should consider mapping out which scenarios will need to be communicated publicly and which shouldn’t, what regulatory and legal ramifications exist for disclosing and not disclosing certain matters, and communicate the plan to the board and senior executives accordingly.

5. Understand who must be included in a crisis response plan. One Steering Committee member brought to the group’s attention that sometimes regulations demand that the CEO is involved in response to a crisis. Still another mentioned that the board at his company could not be involved in crisis response because they could not move at the speed that their senior management team could respond.

6. Seek outside counsel when a key player acts out of step with the plan. Barron pointed out that even with a plan in place, sometimes a key executive speaks out of order during a crisis, causing tension and discord between the board, and other executives. In this case, Barron notes that it’s “sometimes easier for an external legal advisor or communications group to ensure that the right decisions are made.”

7. Update your corporate contacts regularly. Several participants pointed out that having the right phone numbers for the right people is essential when management, the board, and GCs have only minutes to respond to a crisis. While this seems like a fairly simple task, Steering Committee members pointed out that having a list of who needs to be contacted immediately should exist in the crisis-response playbook—including every possible phone number or other contact needed to reach that person. Contacts should also be kept fresh for essential regulators, outside counsel, and other stakeholders who may need to be contacted.

8. Plan for the long-haul. One GC pointed out that some crises require weeks and even months of attention from top-level executives and the board. In addition to planning for immediate response, Steering Committee members agreed that a chain of assistance should be built to support the work done by responding executives and GCs. Not doing so could create undue risk within the organization caused by neglected leadership.

NACD’s General Counsel Steering Committee brings together progressive general counsel from leading companies to engage in frank, informal discussions with each other and with NACD leaders about corporate governance practices and the changing business and regulatory environment. These conversations help inform the development of NACD resources, education programs, and events with a goal of strengthening the partnership between the general counsel and the board. NACD thanks the Steering Committee for its participation, and for strengthening and supporting the work of corporate directors across the country.

*All General Counsel Steering Committee meetings are held under Chatham House Rule. The names of GCs and companies are removed accordingly.

10 Turn-Around Lessons from Zale Corp.’s Theo Killion

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Jill Griffin

When former Zale Corp. CEO Theo Killion shared his leadership lessons of turning around Zales at a recent NACD TriCities Chapter program in Austin, Texas, it jogged some childhood retail memories for me.

Growing up in the 1960’s, my small hometown of Marshville, North Carolina, boasted a thriving town square of mom-and-pop stores. Because my family’s home was a hop, skip and a jump from these businesses, they became my playground. I was their frequent visitor, and with those visits came benefits. For example:

  • Remember when white go-go boots were all the rage? Mr. Gaddy, who owned the shoe store, made sure my sister and I scored pairs from his first shipment.
  • As a child, I received a personal call from Mr. Creech, the toy store owner, when his long-awaited skateboards arrived.
  • One spring, I stood with other locals as the Chrysler dealer eagerly removed the drop cloths revealing that year’s beautiful new big-fended models. (The fact the dealership offered up lots of free doughnuts, coffee, and soft drinks didn’t hurt either.)

I was rapt throughout the program as Melissa Fruge interviewed Killion, a modern-day version of my favorite childhood shop-owners, but on a grander scale.

Zales was on the brink of bankruptcy in 2004. Something had to be done. The bold and unvarnished self-assessment undertaken by the company’s senior leadership uncovered the business’s truths. These revelations, combined with sheer perseverance not to fail, brought the national jeweler back from the edge.

Here are some of my top take-aways from Killion about what executives and boards should do to turn around a struggling business:

1. Stay humble. Killion prefaced his remarks by stating that they were his opinion, and that many of the tenets he spoke about originated from great thought leaders. A mark of a strong leader is his or her ability to acknowledge with humility the admired ideas of others.

2. Interim in any title keeps you focused. By the time Killion took the reigns, Zale Corp. had had six CEOs in 10 years. When Killion’s best friend was fired as CEO, the board needed a quick fill. Killion was named interim CEO—leaving him keenly aware that he was considered temporary. He entered the role ready to make the most of the time he had.

3. Follow the money. Zales had six short months before its cash ran out. The company was in desperate need of an equity infusion. From day one, Killion and his finance team were reaching out to possible providers.

4. Dig deep for insight. Over a three-month period, Killion and his two-member strategy team worked 12- and 14-hour days, including weekends, to put a decade of operational decisions under a microscope. They carefully ferreted out what worked, what didn’t work, and why. They then presented these findings to the board.  Killion observed and reported that management’s bad decisions were made on the board’s watch. He wanted the board to feel the same deep discomfort that the executive leadership team was feeling.

5. Detail the new strategy. Zales’ new strategy document totaled 150 pages and spelled out in clear, concise details what the company would do going forward—and why. For example, severe cost cutting had reduced the customers’ experience of buying an engagement ring into a commodity. Consider, for instance, that the customer left the store with the ring—which often times is one of the most meaningful, expensive jewelry purchases a person will make—in a plastic bag.

The new strategy brought customer emotion and meaning back to a purchase at Zales. The purchase process was no longer treated as a transaction, and store training ensued to make it a well-crafted, loving, and memorable customer experience.

6. Flip the pyramid. Before Killion stepped in, the leadership philosophy of the company placed management at the top of the pyramid. The pyramid was inverted and a customer-focused culture was born. It looked like this:

  • Top tier: customers of Zales’ 1,100 stores;
  • Middle tier: 12,000 employees; and
  • Bottom tier: corporate management.

7. Think like Jeff Bezos. Bezos has built Amazon.com to be customer-obsessed, keen on technology and analytics, and is always testing new concepts. Killion sees this as a road-map for any retailer succeeding today.

8. The nominating and governance committee is key to matching strategy to board composition. Killion pointed out that Zales needed board directors with skill sets that matched the company’s five-year plan. Retail expertise was a must, and the nominating and governance committee needed to ensure its goals matched those needs. This committee must ask itself what skill sets the business needs. In retail today, Killion advises, a board member with deep literacy in e-commerce is essential.

9. Apply lessons from Vanguard’s 2017 Open Letter. Killion admires Vanguard CEO F. William McNabb’s open letter to public company boards of directors. Vanguard has 20 million investors, and currently is the second largest fund manager in the world. McNabb is keenly aware of the responsibility boards play in the success of the companies that the fund invests in. Here are the highlights of McNabb’s message to directors that especially resounded with Killion:

  • Sell quality things.
  • Practice good governance.
  • Pay close attention to the compensation program crafted for senior management.
  • Understand the company’s risks, and especially the role of climate risks.
  • Inclusion of women and other directors from diverse backgrounds on boards is important.

10. Brick-and-mortar retail is not dying. Instead, Killion believes retail is entering its golden age partly because of the many ways today’s retailer can reach a customer and make a sale.

The program is available to view via NACD Texas TriCities Chapter’s YouTube channel. It’s a meaty discussion and well worth your viewing time.

By the way, to this day I’m a recreational bargain shopper.  Simply walking into a favorite store lifts my spirits, and I’m glad that Killion and the directors of companies are working to help the retail industry thrive in the twenty-first century marketplace.

Avoid Deal Failure: Ask These Tough Questions Before Any Acquisition

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Justin Johnson

Justin Johnson

It is easy to get caught up in the excitement of a deal—the unvarnished optimism of the corporate development team, the bullish spreadsheets from the bankers, the juicy steaks at the closing dinner. The numbers, however, don’t lie. It is estimated that at least half of all merger and acquisition (M&A) deals ultimately fail, destroying shareholder value for the acquirer instead of increasing it. A disciplined valuation analysis—ideally conducted with minimal involvement of the deal team and bankers—can help board members avoid unsuitable matches and support deals that are a good long-term fit.

A Synergistic Match

Assume your company has identified an acquisition target operating in your business and serving similar customers. Cost savings from the combination are expected as the result of an overlapping distribution network and because redundant production and administrative staff can be eliminated. This is a classic synergistic deal, where the acquirer boosts overall profit by adding the target’s revenue to its topline while eliminating many costs associated with achieving that revenue.

The first step in evaluating such a transaction is establishing the market value of the target without regard to buyer-specific synergies. While acquirers are usually most interested in the valuation of the combined company, there are good reasons for first establishing a baseline market valuation of the target on a stand-alone basis:

  • It gives the buyer insight on a valuation the target might expect to receive in the deal.
  • It provides a reference point the buyer can use to evaluate how much synergy it brings to the table.

Determining Baseline Value                             

There are several common approaches for deriving the market value of an acquisition target, and an acquirer should undertake as many of them as possible to establish a baseline valuation matrix. The two common techniques for publicly traded entities are straightforward. They entail analyzing the target’s historical stock price and the premium at which its stock trades after the deal is announced. For our purpose, assume the target is not public and review the four valuation approaches commonly applied to private companies.

  1. One of the most common techniques is by referencing the trading multiples of comparable publicly-traded companies. Care is required in the selection of comparable public companies to ensure similarity of operations, size, and growth prospects with the target company.
  2. Another common method is to consider recent M&A deal multiples for similar companies. For this approach, make sure to distinguish between financial sponsor deals and strategic deals, as strategic deals frequently pay higher multiples due to acquirer-specific synergies. Value indications from these approaches entail applying observed market multiples to the target’s standalone earnings, typically before interest, tax, depreciation, and amortization (EBITDA).
  3. If a long-term forecast is available for the target, financial advisors sometimes use a discounted cash flow (DCF) analysis. It should be stressed, however, that this analysis is only as accurate as the underlying forecast, which may be suspect. For this reason, a DCF analysis often is underweighted—and sometimes omitted altogether—from a valuation exercise. Additionally, a “haircut” may be applied to the forecast itself before it is put into the model.
  4. Finally, if the target is likely to attract financial buyers, advisors may employ a leveraged buyout (LBO) analysis. This approach values the target by establishing what a financial buyer would be willing to pay for the company under the financing structure it might be expected to use—often a combination of debt and equity. If a company is underperforming its peers, the LBO model may also include some assumptions about reorganization and/or add-on acquisitions.

Once as many of the preceding approaches as practicable have been performed, financial advisors triangulate the various pricing indications to establish a baseline market valuation range for the target.

Establishing Pro Forma Value

The next step is assessing the value of the acquirer after acquisition. This analysis is different than the market valuation analysis because it factors in synergies to show the value of the acquisition to that specific buyer. A word of caution: Board members should be wary of synergy projections from bankers or corporate development personnel who are emotionally or financially invested in the deal. Considering the stakes, engaging an outside advisor not connected to the prospective transaction to provide an independent valuation and estimate the potential synergies can be a sensible course of action.

No matter who is performing the pro forma analysis, a number of factors should be evaluated: the amount of expected synergies, the costs associated with realizing those synergies, the amount and type of purchase consideration, and the trading multiples for the acquirer’s stock.

Even for a disinterested third party, it is challenging to estimate synergies with accuracy, so it is prudent to perform a sensitivity analysis of the transaction’s impact on the acquirer’s share price. This is best revealed in a sensitivity table that varies both the amount of assumed synergies and the purchase consideration. Layering in an additional variable to the sensitivity analysis, the estimated one-time integration costs incurred to achieve synergies can further enhance precision. These costs can be just as difficult to project as synergies, so a range of estimates is appropriate.

The resulting sensitivity table can provide board members a powerful visual tool to understand how much it makes sense to pay at varying levels of synergy and costs. If the resulting analysis shows that a deal increases shareholder value—even if actual synergies realized are at the low end of expectations and one-time costs incurred to realize those synergies are at the high end—the deal likely will turn out well from the acquirer’s standpoint. An even better deal is one that increases shareholder value if synergies are below the low end of the estimated range and integration costs are above the high end.

Conversely, deals that are only accretive at or near the most favorable ends of the two ranges are likely to destroy shareholder value.

Other Impacts on Value

What about the impact of the type of purchase consideration on value? An acquisition can be financed with available cash, new debt, stock, or some combination of these. Debt financing will create a drag on future earnings in the form of interest expense, another cost of realizing synergies that must be considered. If acceptable to the seller, using stock may be advantageous to the buyer.

A final factor to consider is the valuation multiple of the acquirer. If historically it has been somewhat volatile, it is a good idea to run a sensitivity analysis on the pro forma value of the stock, assuming a range of valuation multiples for the acquirer consistent with its recent trading history. The lower the valuation multiple, the lower the increase in value from transaction synergies.

Know the Difference

Board members are unlikely to bless a strategic acquisition with the intent to destroy value. Yet, too often, that is exactly what ends up happening. A disciplined, thorough, and independent valuation analysis can make the difference in helping a board distinguish a suitable match from a bad one. After establishing both the market value of the target and its pro forma value to a particular acquirer, a buyer is well-positioned to negotiate and—if all goes well—finalize the deal.

Justin Johnson is co-CEO of Valuation Research Corp. where he sits on the firm’s board and is a member of the firm’s Private Equity Industry Group and Financial Opinions Committee. Prior to joining VRC, Johnson held positions with Arthur Andersen, Merrill Lynch, and PricewaterhouseCoopers.