20140127-NEWS--29-NAT-CCI-CL_--
1/22/2014
2:21 PM
Page 1
Advertisement
CORPORATE GROWTH & M&A
JANUARY 27 – FEBRUARY 2, 2014
S-19
BEST PRACTICES
Hiring counsel with good judgment is key to dealmaking success BY CHRISTOPHER J. HEWITT
A
client once asked me, “How would you choose transaction counsel?â€? I responded that I would hire someone with whom I thought I would connect on a personal level — someone I liked and that I could trust. Let’s face LW WKHUH DUH PDQ\ 0 $ ODZ Ă€ UPV and lawyers with the technical skills to close a deal. Possessing that core competency is the ante to play the game. What sets one attorney apart from another is the ability to connect with the client on both a professional and personal level. When you spend every waking HEWITT hour with your attorney for days or weeks on end to close a deal, you want to work with someone you like almost as much as your family. 8SRQ IXUWKHU UHĂ HFWLRQ , LGHQWL Ă€ HG DQRWKHU HTXDOO\ LPSRUWDQW criterion. If I were hiring M&A counsel, I would also want someone who understands my business, knows my motivation for buying RU VHOOLQJ D SDUWLFXODU DVVHW DS SUHFLDWHV KRZ WKH GHDO Ă€ WV LQWR P\ corporate strategy, and can discern which issues are important—and more importantly, which are not— to close my deal. In short, someone who demonstrates good judgment. 7RR RIWHQ , HQFRXQWHU RSSRV ing counsel who, while technically SURĂ€ FLHQW DW JULQGLQJ WUDQVDFWLRQ documents, lose sight of the bigger picture. These “checklist attorneysâ€? catalogue every possible issue that may arise and/or every document that may be needed to complete a deal. Over time, this approach leads them to believe that every issue on the checklist needs to be
Privileged communications need parameters continued from Page S-10
WKDW IROORZLQJ D PHUJHU ´DOO SURS erty, rights, privileges, powers and franchises, and all and every other interest shall thereafter ... be the SURSHUW\ RI WKH VXUYLYLQJ FRUSRUD tion.� The sellers in the Great Hill (TXLW\ VXLW FRQWHQGHG WKDW WKH
statutory term “all ... privileges� ZDV LQWHQGHG WR RQO\ LQFOXGH FHU tain property rights and that it did not extend to privileges established E\ D UXOH RI HYLGHQFH 7KH &KDQ cery Court disagreed and stated WKDW 6HFWLRQ ZDV ´QRW DPELJX
Value should be based on need and not desire continued from Page S-11
addressed and/or every document on the checklist needs to be used in every deal. They tend to use the same documents with the same SURYLVLRQV IRU HYHU\ GHDO UHJDUG less of whether that document or that provision applies to the deal at hand. This mentality leads to ineffective transaction documents and, more importantly, higher legal fees. In a deal we recently closed, RSSRVLQJ FRXQVHO LQVLVWHG RQ D SUR vision that was inappropriate for the business our client was selling. ,Q WU\LQJ WR UHVROYH WKH LVVXH RS posing counsel said he didn’t need WR XQGHUVWDQG RXU FOLHQW¡V EXVL ness—he included this provision in every transaction. When the issue was escalated to his client, who did understand our client’s business, he immediately conceded the point. This attorney’s unwillingness to understand the business his client ZDV EX\LQJ OHG WR LQHIÀ FLHQW DQG expensive negotiations. I would hire counsel with better Q judgment.
Christopher J. Hewitt is a Partner with Tucker Ellis LLP. Contact him at (216) 696-2691 or christopher. hewitt@tuckerellis.com.
a sale than what was thought, and anything above that needed value is a bonus. In other instances, we have determined the needed value exceeds the desired value and have, therefore, concluded the timing may not be right for a sale. This leads to a separate discussion on how to achieve the needed value over the next several years. Once comfortable with a needed
value, a more mentally prepared business owner can proceed with the various other aspects of proper preparation for a sales process. Q
Ross Vozar is Associate Director of Transaction Advisory Services, for SS&G. Contact him at SS&G’s KV^U[V^U *SL]LSHUK Vɉ JL H[ 325-1700 or rvozar@ssandg.com.
ousâ€? and that “all means all.â€? For sellers and their counsel, WKH SDWK LV FOHDU %H VSHFLĂ€ F LQ the transaction document and expressly exclude from the assets being transferred in a merger WUDQVDFWLRQ DQ\ SUH PHUJHU DWWRUQH\ FOLHQW SULYLOHJHG FRPPX nications. In addition, make sure parameters are set at the outset of any transaction regarding how communications are made so that the privileged communications can be removed from, or better yet, are not part of, computers and email accounts that are otherwise being transferred to the buyer. Careful drafting, good legal counsel and practical implementation of steps necessary to exclude privileged assets will prevent the unintended FRQVHTXHQFHV RI WKH *UHDW +LOO Q case.
Jennifer L. Vergilii is a Partner in Calfee, Halter & Griswold LLP’s 4 ( WYHJ[PJL NYV\W *VU[HJ[ OLY 216-622-8568 or jvergilii@calfee. com.
Congratulations KeyBanc Capital MarketsÂŽ congratulates Zev Weiss, the Weiss family and American Greetings on receiving the ACG Cleveland 2014 Deal Maker Award. Thank you for your trust and the opportunity to help you advance your business goals. To learn more: Visit key.com/corporate
Incentives integral to success continued from Page S-18
accelerated in the event of a sale or change of control of the company. 5LJKWV RQ WHUPLQDWLRQ RI HPSOR\ ment also are negotiable, although it is common for the company to have a right to “callâ€? or purchase YHVWHG HTXLW\ RQ WHUPLQDWLRQ RI HP ployment, especially in situations where the employee is terminated IRU FDXVH RU TXLWV ZLWKRXW JRRG UHDVRQ 8QYHVWHG HTXLW\ LV XVXDOO\ forfeited, regardless of the reason IRU WHUPLQDWLRQ $ WHUPLQDWHG HP ployee’s right to cause the company WR UHSXUFKDVH KLV YHVWHG HTXLW\ after termination of employment (a ´SXWÂľ RFFXUV OHVV IUHTXHQWO\ 7KH repurchase price is often tied to the UHDVRQ IRU WHUPLQDWLRQ ,I WHUPL QDWHG IRU FDXVH RU D TXLW ZLWKRXW good reason, the price might be the
lesser of cost or fair market value. (TXLW\ LQFHQWLYHV IRU PDQDJH ment of portfolio companies will FRQWLQXH WR EH LQWHJUDO WR VXFFHVV IXO LQYHVWLQJ 3UDFWLFHV Ă XFWXDWH DQG WHUPV FDQ EH FRPSOLFDWHG &RQ sult an experienced advisor on how EHVW WR VWUXFWXUH DQ HIIHFWLYH LQFHQ WLYH HTXLW\ SODQ DQG WR GHWHUPLQH whether proposed incentives are in line with what a manager should expect. Q
4LNHU 3 4LOHSRV PZ *OHPY Corporate and Securities Practice Group. Contact her at (216) 363-4487 or mmehalko@beneschlaw.com. Ira C. 2HWSHU PZ 4HUHNPUN 7HY[ULY *VU[HJ[ him at (216) 363-4567 or ikaplan@ beneschlaw.com
KeyBanc Capital Markets is a trade name under which corporate and investment banking products and services of KeyCorp and its subsidiaries, KeyBanc Capital Markets Inc., Member NYSE/FINRA/SIPC, and KeyBank National Association (“KeyBank N.A.�), are marketed. Key.com is a federally registered service mark of KeyCorp. Š2014 KeyCorp. ADL6867
Crain’s Cleveland Business Custom Publishing