Monthly Archives: May 2009

May 28, 2009

Target’s Annual Meeting Campaign: “Bringing It” Online

Some interesting news comes courtesy of Target, whose annual meeting is being held today. This will be no “regular” annual meeting as William Ackman, whose Pershing Square Capital Management owns a 7.8% stake, is seeking a seat for himself and four other nominees on Target’s board (as noted in this article) as well is seeking the company to use a “universal ballot” (as noted in The Corporate Library blog).

Although it’s become fairly common for dissidents in the throes of a proxy fight to leverage the Web (see this list of examples I have collected), it’s still fairly rare for companies to do the same. That’s why it’s worth noting Target’s annual meeting page to point out how they “get it” when it comes to campaigning online in their defense.

A number of the items posted on the company’s annual meeting home page were recommended in my article from the Spring ’08 issue entitled “The Coming Online IR Campaigns: The Future of Director Elections” (which is still available for free). To begin with, Target bothered to create an annual meeting home page. That’s a critical first step. They highlight endorsements from proxy advisors. They even post a white paper making their argument why they think one proxy advisor’s report is flawed (as noted in this article).

Have a good look. I predict these types of shareholder meeting sites will become more of the norm for IR departments/corporate secretaries when we live in a proxy access world without broker non-votes (ie. next year)…

You want further proof that the Web is changing the job of a corporate secretary? How about when a shareholder proponent posts a transcript of his remarks from the annual meeting? Governance guru Bob Monks did just that yesterday on his blog, right after he presented five proposals at Exxon-Mobil’s annual meeting.

Deal Protection: The Latest Developments in an Economic Tsunami

We have posted the transcript from our recent webcast: “Deal Protection: The Latest Developments in an Economic Tsunami.”

May 26, 2009

Corp Fin Grants General Motors Relief for Debt Exchange Offers

Last week, Corp Fin granted General Motors exemptive relief so that GM can move fast and exchange its debt. The relief is highly unusual, but certainly seems merited under the circumstances. GM has something like 26 series of debt outstanding, the federal government has lent the company billions under the TARP/TALF program – and pursuant to the terms of those loans, the company must restructure its debt (and operations) within a limited time period.

Therefore, GM had to commence its exchange offers immediately and begin soliciting consents to postpone the maturity dates. The two primary forms of relief granted by the Staff to GM include:

– Ability to solicit consents before a definitive proxy statement has been filed; and
– Ability to cut off withdrawal rights after 20 business days, but before the exchange offers necessarily expire.

I believe similar relief was granted to Chrysler back in the early ’80s under similar circumstances…

May 20, 2009

Due Diligence: Aim Before You Fire

– by John Jenkins, Calfee Halter & Griswold

Spearheading the legal due diligence investigation of a potential acquisition target is a big part of a deal lawyer’s job. With the possible exception of preparing disclosure schedules, due diligence usually is the most tedious part of the transaction, but it is also among the most important. That’s why the “ready…FIRE!!!…aim” mindset that a deal’s time pressure sometimes causes lawyers to adopt when it comes to due diligence is almost always counterproductive.

Time is invariably of the essence in a transaction, so there is great pressure on everyone to get moving – particularly if you’re talking about a big deal with a mountain of paper to review and little time to do it. There’s an overwhelming temptation to wade into the pile and start reviewing things before you’ve figured out what the deal is about. This leads to a disorganized process that produces incomplete or incoherent results. That can make it very difficult for your client to make decisions about valuation in a timely fashion, and in a competitive situation, can be fatal to its efforts to acquire the target.

UCLA’s legendary basketball coach John Wooden had what I think is the best advice for anyone dealing with time pressure situations – “be quick, but don’t hurry.” What he meant by this is that when the pressure is on, you’ve got to move fast, but you’ve also got to remain in control of your situation. I think the best way to apply Coach Wooden’s advice to a deal with a short fuse is not to start your due diligence before you’ve done some due diligence.

No, I’m not trying to follow up John Wooden with advice that sounds like its coming from the mouth of Lakers’ coach Phil Jackson. What I’m talking about is spending some time at the front end to convert a scatter-shot approach to due diligence into a more disciplined preliminary assessment of the issues you’re likely to encounter. Investing time in laying the groundwork for your due diligence can make the investigation more efficient, less burdensome to both sides, and more effective overall.

How do you go about doing this? If you’re dealing with a public company target, then the first step should be to spend some time with the target’s SEC filings. Many of the documents that you’re going to want to review are going to be in those filings, but more importantly, a company’s SEC filings contain a wealth of other legal, financial and business information about the target that will be very useful to you in mapping out a strategy for approaching due diligence.

If you’re not dealing with a public company, chances are still pretty good that it competes with companies that are public, and their filings may provide you with a lot of help in focusing your initial due diligence efforts. SEC filings are also a good place to start if you’re not buying the company itself, but only a subsidiary or a division. If the business is large enough or represents a reportable segment, those filings will contain a remarkable amount of financial and other information about the business your client is looking to buy.

Chances are also pretty good that your client has managed to get a copy of an investment banker’s book on the target or some other form of offering document. That usually has lots of useful information about the business, although in order to get at it, you usually have to wade through a mountain of marketing spin and banker-speak (e.g., “management has proactively leveraged the company’s market leadership and value-added manufacturing expertise to position its new proprietary product to capitalize on the anticipated explosive growth in demand for…blah, blah, blah”). Research analyst reports on the target or its industry can also provide a wealth of information on the financial, business and even the legal issues confronting industry participants, and contain a lot less spin than the marketing materials typically do.

A lot of deal lawyers do everything I’ve just described as a matter of course, but sometimes what ends up happening due to the press of time is that the SEC filings, research reports and banker’s books end up getting thrown on the junior lawyers desks as “background” for that person to read as they wade through the data room. Most younger lawyers are smart people, but it isn’t reasonable to assume that they will necessarily pick up on the critical issues in the deal without some additional guidance. If you don’t give them that, you can almost count on them mindlessly regurgitating lease terms into a dictaphone without giving any thought to what they are doing. This is how useless 250 page due diligence memos are born.

I think a much better practice is to sit down with the legal due diligence team, the business people and the client’s financial advisor before turning the junior people loose on the data room. That way, you’ve got a shot at making sure that the people who will be reviewing the documents are aware of what the deal is all about, and what the critical legal issues that might affect valuation or the ability to complete the transaction are likely to be.

This effort to plan out due diligence may take a little more time than simply tossing a handful of associates into the deep end of the virtual data room, but it is guaranteed to produce a more efficient process in the long run and to generate results that are going to add a lot more value to the client.

May 15, 2009

New DOJ Antitrust Chief Announces Aggressive Enforcement Philosophy

In her first major public speech, new Assistant Attorney General for Antitrust Christine Varney announced last week that difficult economic times call for more aggressive – not less – antitrust enforcement and pledged the DOJ’s cooperation with other parts of the Executive Branch in pursuing reforms of numerous industries, including banking, healthcare, energy, telecommunications and transportation.

In addition, she announced that the DOJ’s Antitrust Division has withdrawn a controversial report issued last September under the Bush administration. The Report addressed single-firm conduct under Section 2 of the Sherman Act and has been widely viewed as applying legal standards that would make it difficult for the DOJ to bring new cases involving monopolization or predatory practices. Plenty of antitrust blogs have addressed this important speech; we have a list of those blogs in our “Antitrust” Practice Area.

May 13, 2009

May-June Issue: Deal Lawyers Print Newsletter

This May-June issue of the Deal Lawyers print newsletter was just sent to the printer and includes articles on:

– Reversing Course: Delaware’s Supreme Court Provides Comfort to Directors Regarding Revlon Process and Bad Faith
– Going In-House: Stewart Landefeld On His Time at Washington Mutual
– The Shareholder Activist Corner: Mario Gabelli’s GAMCO
– Are We There Yet? Issuer Debt Tender Offers and Offering Period Requirements
– Private Equity in 2009: “Back to Basics” Practice Tips

If you’re not yet a subscriber, try a no-risk trial to get a non-blurred version of this issue for free.

May 12, 2009

A Little “Deal Tact” Goes a Long Way

– by John Jenkins, Calfee Halter & Griswold

In my last blog, I talked about some advice given to our firm’s associates during a training session on becoming a seasoned business lawyer conducted by two senior investment bankers from one of our firm’s clients. The first thing they mentioned was the importance of avoiding boorish first drafts. That piece of advice, together with many of the other suggestions they made about things that young lawyers should do or avoid doing, falls under the general heading of the need to be sensitive to the messages that your actions are going to send to the other people involved in the transaction.

You might think that a lot of this stuff would be intuitive, but it doesn’t appear to be that way for lawyers. For instance, one of the specific “don’ts” that our investment banker friends mentioned in their presentation was the seemingly obvious point of not making critical remarks to the client concerning its other advisors. Apparently, that’s something that some lawyers are notorious for doing. Unless your client’s retained Patrick Bateman as its financial advisor, that’s a very bad idea, if for no other reason than what goes around, comes around. Besides, while “plays well with other children” may not be a line item that appears on most law firm or corporate law department evaluation forms, it’s on most clients’ short list of the qualities that they look for in a deal lawyer.

Deal making by its very nature is a group effort, and the ability to work effectively in a transactional setting requires a skill that might be called “deal tact.” The best deal lawyers use this skill not only in their dealings with their own client and fellow advisors, but also in their dealings with those on the other side of the table, and particularly the lawyers who are representing the other side in the deal.

From time to time, I have had a chance to work on transactions with lawyers who have national reputations as M&A advisors. Although their styles differ markedly, deal tact is one quality that they have all shared in common. Let me give you an example of this that I’ve seen many times. During the early stages of the deal, draft documents are often hacked-up pretty significantly by the lawyers receiving them because, well, they sometimes just don’t make any sense. Incompetence or inexperience may be part of the reason for this, but far more frequently, it’s attributable at least in part to an unreasonable time schedule that requires somebody to generate a document before they know what the deal is about.

When this happens, there’s usually a younger lawyer on the deal team who is chomping at the bit to highlight each and every flaw in the document during the course of a negotiation session. This is understandable, since that kid pulled at least one all-nighter finding and correcting every last one of them. The superstar generally doesn’t let this happen. Instead, that lawyer typically will focus his or her attention on the major deal issues while clients are present. When the meeting is about to break-up, the mark-up will be passed on to the other side’s lawyers, usually accompanied by a statement noting that the mark-up includes some “lawyer comments” that aren’t worth wasting the group’s time on. That may be followed up with some sidebar discussions, but the important thing is that nobody loses face in front of their clients.

Now if you know anything about your fellow M&A practitioners, you know that it isn’t a saintly sense of humility that motivates this kind of conduct. Instead, it’s an appreciation for the fact that if you put somebody on the defensive, they’re going to do a couple of things. First, they’re going to try to defend themselves by quibbling with every point you make. Second, they will look for opportunities to stick it to you– and chances are pretty good that they’ll find at least one during the course of the transaction. Neither of these things moves the ball forward.

I’m not suggesting that deal lawyers should always act like Clark Kent — possessing a little deal tact doesn’t mean you shouldn’t play hard ball when appropriate. I’m just saying that Conan the Barbarian shouldn’t be our role model either. I mean, if you really believe that what is best in life is “to crush your enemies, to see them driven before you, and to hear the lamentation of their women,” you’d probably be much happier as a litigator anyway.

Every deal presents opportunities for a knowledgeable and experienced deal lawyer to grandstand in front of the client or make somebody on the other side look foolish in front of their client. One of the big things that separates the pros from the pretenders is the ability to resist that temptation in order to move the transaction forward.

May 11, 2009

Deal Protection: The Latest Developments in an Economic Tsunami

Tune into our webcast tomorrow – “Deal Protection: The Latest Developments in an Economic Tsunami” – to hear these experts analyze the latest Delaware law developments in deal protection:

Clifford Neimeth, Partner, Greenberg Traurig
William Haubert, Director, Richards, Layton & Finger
Ray DiCamillo, Director, Richards, Layton & Finger

May 6, 2009

First Drafts: On the Two Yard Line or Closer to Midfield?

– by John Jenkins, Calfee Halter & Griswold

A few months ago, our law firm had one of its periodic training sessions for our associate attorneys. The topic for this particular session was making the transition from junior associate to seasoned business lawyer, and the presenters were two investment bankers from one of our firm’s clients.

Lawyers have an obligation to zealously represent clients and protect their legal interests in a transaction, and that may cause lawyers to butt heads with bankers from time to time. But when bankers speak about the things lawyers do that drive them nuts or impress the heck out of them, it’s worth listening to them, because I think you can pretty much count on their position being consistent with that of the typical corporate client.

After all, when it comes to what an M&A client wants to accomplish – getting the deal done as quickly and efficiently as possible – there’s nobody in the transaction whose interests are more closely aligned with the client’s than its investment banker. That’s because bankers eat what they kill: they only get paid for their efforts if the deal closes.

The bankers who spoke to our associates shared a lot of insights about good and bad lawyering, and I’ll talk about more of them in later posts, but at the very top of their list of bad habits was something that anybody who has worked on a deal has experienced – namely, receiving a first draft of a purchase agreement that is so aggressively one-sided that it’s like starting a drive from your own two yard line.

They pointed out that this bit of grandstanding usually ingratiates you to absolutely nobody, including your own client. The first draft of a deal document sets the tone for the entire transaction. When you start out with one that’s burdensome and oppressive, the recipient’s legal and financial advisors immediately let their client know that the document is over the top. That means that not only does the draft usually get flyspecked, but each succeeding draft, along with just about every request made by the other side during the course of negotiations, gets looked at with a jaundiced eye.

Instead, the bankers suggested that a more balanced first draft is a much better way to approach a deal. If you start out with a document that puts the ball on the 35 yard line, you not only create an atmosphere that suggests your side wants to do business, but ironically, you’ll probably be more successful in your efforts to win on the handful of important deal points that you’ve drafted in your favor. When it comes to doing deals, it’s usually the reasonable people who can get away with murder.

From my perspective, I’ll concede that there are circumstances where it makes sense to be pretty aggressive in documentation. For example, if you’ve got a very hot commodity or a buyer that’s drooling all over the conference room table, then a little documentary boorishness is probably in order. But most deals don’t fall into that category, and most experienced business people don’t view an acquisition or a divestiture as a zero sum game. A first draft that suggests otherwise is usually a bad idea if your client’s primary objective is to get a deal done quickly and efficiently.

May 4, 2009

The “Deal Cube” Chronicles: Part 3

Following up on Part 2, Charles Vaughn of Nelson Mullins Riley & Scarborough provides us some fodder for the latest installment of the “Deal Cube Chronicles”:

“In my office at home is a beautiful deal cube for a follow on offering led by a bulge bracket firm in 2001. The cube refers to an offering of “Commom” Stock. When I pointed this out to the analyst at the firm who approved the toy, his face lost all color, and soon we had panicked emails from the higher ups requesting all of the toys. I have kept mine as an example to my sons, now 15 and 20, of how important it is to proofread carefully.”

Those jonesing for their deal toys might want to know they can pick up some Lehman swag – cheap – as noted in this article from The Deal. There’s a certain cachet about owning branded merchandise for a company that no longer exists. Too bad I didn’t score a sock puppet when I had the chance.

And as a follow-up to John Jenkins recent musings on closings generally, Chris Parrott, VP and Senior Counsel, Unum Group gives us his nostalgic memories:

“I am an in-house counsel who worked on my first transaction of any size in 1987. I lived out of state more or less for two months, working late into every night with outside counsel, ordering dinner from the Pacific Dining Car like it was McDonald’s, watching similarly hard-working litigators recreating automobile accidents with toy cars.

The last night of work, before heading to closing in another city put me in the sellers’ offices, putting documents to bed, until about 4 am when I hurried to catch a plane. At the closing itself, there was all of the tedium and boredom, with the occasional excitement of counting pages in copies, related in this space by others on this subject.

Eventually, funds were received and we made a mad dash to the airport in limos (which added to a sense of living, at least for a while, among the masters of the universe) only to find we had missed our flight, in spite of every flight having been rain delayed. When I finally arrived late that evening at a connecting airport, there were no more connections to be made. I ultimately arrived at the office by the middle of the next morning.

The point of this recitation is not to bemoan the loss of the glamour of preparation, closing and celebration of a deal as it was done in the last century, but to say that hindsight suggests that the perception of such glamour may have been self-delusion. Today’s process of emails and telephone calls along with one or two all-hands meetings is certainly more efficient but it leaves little room for war stories that prove to younger generations how tough the practice of law was in the ‘old days.'”