M & A issues raise the governance bar: board members operating in this more stringent era should apply their experience and counsel to help their companies improve the likelihood of acquisition success.

Governance responsibilities for boards of directors have expanded significantly in merger and acquisition activities--moving well beyond simply obtaining a fairness opinion to being entrusted with evaluating strategic rationales and reviewing the adequacy of post-acquisition planning.

[ILLUSTRATION OMITTED]

Directors are being held to this higher level of governance, both in the courts and by new legislation such as The Sarbanes-Oxley Act of 2002. This is a reaction to behavior at the peak of the financial cycle--the rising stock market, bursting bubble, accounting restatements and weak governance--that eventually retreated, revealing the problems.

As the level of merger and acquisition activity picks up--fueled by an increased availability of capital--the impact of these changes on the acquisition landscape is starting to be felt. In no area is the importance of an independent board arguably greater than in carefully evaluating acquisitions.

In this environment, boards should use their expanded role to not only monitor management, but also to increase the probability of successful acquisitions by adding value through their additional guidance and experienced counsel. This more rewarding position--helping to build the business and pass on lessons from their own experiences--is, after all, presumably the reason they joined the board in the first place.

History demonstrates that transformational acquisitions are almost unrivaled in their staggering ability to destroy value for shareholders--with AOL Time Warner one such example in a long list. Boards should, therefore, focus enormous attention on evaluating acquisitions, particularly addressing the reasons most commonly given for past failures.

In recent Grant Thornton LLP surveys, three reasons were most frequently cited for acquisition failures: poor integration planning, lack of strategic rationale and weak cultural fit. Conversely, the reasons most frequently cited for acquisition success include: a good match, thorough planning and effective personnel. It's clear that a comprehensive review of elements related to an acquisition success or failure is integral to the board's role.

The question then becomes: What can and should directors do in each of these areas?

* Integration. Directors should ask to review post-acquisition integration plans and determine who is accountable for its implementation. This would likely cover three areas: 1) the actions immediately necessary after the transaction closes, frequently a laundry list of housekeeping items; 2) the communication plan, covering not only short-term communication with customers, shareholders and employees but also ongoing communication to address primary concerns of key stakeholders, based on solicited feedback; and 3) the plan for delivering intended synergies, not only in regards to cost savings through consolidation, purchasing synergies, etc., but also pertaining to actions intended to expand revenue.

These plans would highlight ongoing processes to generate new performance improvement ideas as the organizations learn to work together. When realizing synergies is critical to supporting the price paid for a target, the board will want to carefully consider these synergies and understand how difficult they will be to implement, as well as their likelihood of success.

* Strategic Rationale. Directors can view several factors related to the strategic rationale. Executives will want to demonstrate to the board how the acquisition will leverage the strengths of the acquirer and/or resolve important vulnerabilities. They will also want to address the closeness of fit with the existing business, since research shows the further away the core activities of the target to those of the acquirer, the less successful the acquisition tends to be. Information and due diligence reports on the target should also be provided to the directors, so they can gain comfort the business really is what management thinks it is, rather than what they want it to be.

Sadly, there are numerous examples where the underlying economics of the target have not reflected the story of the business as it had been presented. And, just as marriages based on the premise that he or she can change the other do not have a stellar record, mergers and acquisitions based on similar reasoning also suffer.

* Culture and People. When considering the people and culture, among the questions to ask are: What is the target's current culture? How does it differ from that of the acquirer? What does that imply for how the partners must behave if the acquisition is to be successful?

The board should also view people and culture from a risk perspective. That is, if the culture and ways of doing business differ markedly or significant personnel changes are required, the risk of the transaction is far higher. In one example, an acquirer replaced the entire management team after an acquisition, which was not, in and of itself, bad; but when combined with a high purchase price, substantial financial leverage and a volatile revenue stream, the resulting disruption proved catastrophic. Where certain members of management are central to the ongoing success of the business, the board should be informed of retention and incentive plans for those key players.

Culture is a crucial element for the board to grasp, including those attributes of the target's "ways of working" that make the organization successful, as well as the specific actions that need be taken to ensure those elements are retained and built on. In one case, an acquirer changed many of the acquirer's nuances and methods of working, which had made it exceptional in the marketplace. The target's performance consequently fell back into line with industry norms--which combined with the full purchase price and debt load that came with the acquisition of an exceptional business--provided no room for error.

A lesson in both of the examples above is to understand, retain and build on the differences that led to the target's success and grasp how these components will operate with the additional risk and stress placed on a business from the acquisition. This is exactly the perspective that greater board involvement can bring.

Using More Independent Advisors

Another new development is the increased use of independent advisors--to help evaluate management's strategy, analysis and post-acquisition plans--with the advisors reporting to the board, independent of management. This helps to ensure that a greater level of thought and justification is given to spending such substantial funds and reduces the temptation to ignore the less exciting integration, cultural and key people issues after the deal is completed. It also provides a higher level of defense for board members that they acted in the exercise of their reasonable business judgment. The pursuit of the right evaluation process is a board's best defense against litigation, as it demonstrates deliberation and analysis performed by independent experts.

In the past, fairness opinions have been used as a defense to provide protection to board members regarding the price paid for an acquisition. This area is now also under review, with the National Association of Securities Dealers (NASD) conducting an inquiry into fees, methods and possible conflicts of interest, as the investment bank rendering its opinion is frequently the same one with a size-able success fee riding on the outcome of the transaction. As a result, in order to provide the protection boards are seeking, they should ensure fairness opinions are independent and addressed to the board itself.

Director Risk and Liability At Stake

Directors are expected to avoid conflicts of interest, keep themselves informed and have a reasonable analysis of a proposed transaction. In reviewing significant acquisitions, as in other material matters affecting a company, the board should always keep in mind its duty of loyalty and duty of care, comments Dennis White, an attorney with the Boston office of McDermott Will & Emery LLP.

To discharge its duty of care, a board will generally avoid being second-guessed by a court if the board members follow the so-called "business judgment rule"--that is, they follow a process that is deliberate and thoughtful and in which they ask the right questions. "One hour 'quickie' meetings are generally viewed as largely rubber-stamp exercises and can be downright dangerous for a board member," says White.

At a minimum, it is likely for defensive purposes that board members will want to document their deliberations and analyses of such areas as: strategic rationale for the transaction, other acquisition alternatives explored and why this potential target is most advantageous, due diligence process and findings, valuation and support for projections, suitability of the financing structure being adopted, post-acquisition plans to deliver intended benefits and plans to address key people and cultural issues.

The board will also want to know there are no hidden liabilities (environmental problems, ERISA noncompliance, intellectual property litigation, etc.) that could turn promise into failure.

Over and above the higher requirements of good governance, Sarbanes-Oxley legislation has heightened the level of due diligence for public companies and added certain specific due diligence requirements. Since the acquiring company's management will need to sign off personally on the financial statements of the combined entity after closing, they will want to ensure they have the same level of comfort about the target's financial information as they have of their own.

Although acquirers can gain some comfort from representations and warranties of the seller, these do not reduce management's own personal responsibilities. Audit committees are also expected to be more involved in significant transactions--gaining an understanding of the target's accounting policies and obligations (including off-balance sheet items).

In addition, heightened internal control requirements under Sarbanes-Oxley's Section 404 suggest public acquirers will also want to integrate financial reporting processes as soon as possible. Trent Gazzaway, Grant Thornton's national director of Corporate Governance, says the SEC has offered some relief on the timing of implementation of Section 404 following an acquisition. Nevertheless, developing a compliance implementation plan covering internal controls and financial reporting for after the deal closes is a step towards compliance, and is exactly the sort of planning audit committees should be asking to see.

In summary, increased board accountability and liability has raised the bar on governance--and in no area is this arguably more important than in significant acquisitions. Directors are likely to become increasingly involved in acquisitions, including evaluating transaction strategy and post-acquisition integration plans.

It is expected that board members will add considerable value to these areas and will also bring additional perspective to balancing the risks and benefits of the acquisition. With knowledge of the board's expanded role, management should consider its preparation and presentations for board meetings. The expanded role of independent advisors to the board is likely to follow suit, moving well beyond fairness opinions into these adjacent areas. If board members fail to gain sufficient comfort on these key issues, they may recall a well-worn maxim: "The best deals are frequently the ones that are not done."

RELATED ARTICLE: Boards of Directors' Key M & A Responsibilities

What are the integration plans?

* Short-term actions

* Communication plans (immediate and ongoing)

* Synergy delivery plans (and likelihood they will be achieved)

* Internal controls compliance plan

* Individuals accountable

Is strategic rationale robust?

* Closeness of fit with existing business

* Acquisition's ability to leverage strengths and resolve weaknesses

* Do economic realities match the story?

* Other targets/options explored

How will we manage implications of people and culture?

* Closeness of cultural fit

* Implications for future ways of working

* Retention and rewards for key people

* What is it that makes the business successful?

* How this will be retained and built on?

Viewing risks (above) in context of price

* Valuation, comparables, projections, revenue risk, financing structure

* Fairness opinion is independent from deal fee

* Due diligence is robust (internal and external) and directed to uncovering any significant potential liabilities

Board litigation protection

* Process, deliberations and analysis documented

* Use of independent experts

Value added by board members

* From personal experiences

* Not simply monitoring management

* Balanced perspective on weighing risks and rewards

Ian Cookson is a Corporate Finance Director at Grant Thornton LLP. He advises clients on acquisitions, capital raising and the sale of businesses, and can be reached at [e-mail] or 617.848.4982.