TheCorporateCounsel.net

As I’ve spoken at a number of conferences over the past year regarding last year’s “corporate use of website” guidance from the SEC, I thought a few words about creating barriers to entry on your IR web pages would be appropriate. And by “few words,” I mean: “don’t do it.”

There is nothing more antithetical to investor relations than requiring investors to jump through unnecessary hoops in order for them to access any of the content on your IR web pages. There is no practical reason for companies to impose click-through disclaimers on their IR content any more than requiring similar disclaimers for other content on their site. Can you imagine requiring a potential customer to click on a disclaimer to get product information? It’s against the general nature of the Web (ie. simple and fast navigation on the information highway) – and severely diminishes the value of your IR web pages as investors will likely go elsewhere to seek what they want.

Luckily, this is a position that the SEC appears to agree with – in its recent interpretive release, the SEC cautions that the use of disclaimers may not be effective. In particular, the SEC says that companies can’t require investors to waive protections under the federal securities laws as a condition to accessing content (at least in the blog and e-forum context).

In fact, the Corp Fin Staff seems to be issuing comments to companies that have click-through disclaimers. For example, in comment #3 of this letter to West Bancorp (as part of a Form 10-K review), the Staff asks the company how the disclaimer – which required investors to agree to a general release of liability – “accords with your responsibilities under the federal securities laws.”

Unfortunately, the company’s response was to add a statement to the disclaimer that the agreement is not intended to limit federal securities law liability. Check out this company’s IR home page – would you bother as an investor to go further? So much for having relations with investors. [Ironically, the disclaimer is all about “we provide this site ‘as is’ and stuff like that” – but when you click the “I Agree” button, you are told you are going to a third-party provider who hosts the company’s IR web page.]

I strongly believe that the SEC needs to get into the business of imposing a few bare minimum “do’s” and “don’ts” for IR web pages since it’s much more likely that’s where investors will obtain information about an investment today compared to reviewing SEC-filed documents. In other words, the SEC needs to help save companies from themselves…

California Bylaw Provisions May Not Offend the Right to Buy Livestock

Here’s something to brighten your day from Keith Bishop: “As someone who enjoys fishing, I’ve been bemused by the fact I have a constitutional right to fish here in California (Art. I, Sec. 25 “The people shall have the right to fish upon and from the public lands of the State and in the waters thereof . . .”).

I’ve been practicing corporate law in California for more than two decades and I am ashamed to admit that I’ve been completely ignorant of the fact that this California statute specifically prohibits the directors or stockholders of a California corporation from adopting a bylaw that would prohibit any officer, stockholder or other person connected with the corporation from buying livestock in any market in California where livestock is bought and sold. This is definitely a statute to keep in mind when drafting bylaws – especially since any attempted enforcement of the proscribed bylaw would be a misdemeanor.”

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

Below is some good stuff that John Jenkins of Calfee Halter & Griswold recently blogged on the “DealLawyers.com Blog“:

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.

– Broc Romanek