Management Wants It When?! Accessing Key Documents and Responding In A Flash

Transcription

1 ACC NCR Corporate Law Forum Management Wants It When?! Accessing Key Documents and Responding In A Flash Michael Hawthorne Partner Thompson Coburn LLP Nick Wittich Corporate Counsel & Director EchoStar Corporation Renata Baker Associate General Counsel for Corporate Transactions Lockheed Martin

2 Michael de Leon Hawthorne Michael, a partner at Thompson Coburn LLP, helps public and private companies successfully implement corporate structures that allow them to grow their business organically through capital formation, mergers and acquisitions, and joint venturing with potential business partners. He advises startups and companies preparing for a public or private offering, ensuring these companies are structured properly in all stages of their development. He has represented seed, venture, and private equity investment funds worth more than $6 billion. Michael also regularly represents private investment firms seeking investment opportunities and companies raising capital. On either side of these transactions, he taps his extensive knowledge of complex securities and financial instruments to discover, document, and close deals that achieve, and frequently exceed, his client's goals. Michael has handled more than 50 private placements, more than 25 public offerings, and hundreds of M&A deals and has restructured numerous domestic and international companies. 2

3 Nicholas (Nick) Wittich Nick serves as Corporate Counsel & Director of EchoStar Corporation (NASDAQ: SATS). His practice encompasses general corporate and securities representation and business counseling of EchoStar Corporation and its subsidiaries in connection with mergers and acquisitions, debt and equity securities offerings, joint ventures and other financing related transactions. Prior to joining EchoStar Corporation, Nick worked as an associate at the international law firms of Hogan Lovells and Jones Day, where he focused on corporate and securities transactions. 3

4 Renata Baker Renata is an Associate General Counsel for Corporate Transactions at Lockheed Martin. Her responsibilities include serving as the lead attorney providing legal advice and assistance related to all aspects of the Corporation s domestic and international business transactions, divestitures, acquisitions, mergers, equity investments and joint ventures, including matters related to negotiations, due diligence, securities regulation, corporate governance, anti-trust filings, novations, financings, guarantees, foreign, ownership, interest and control filings and post-closing indemnification matters. In addition, she is responsible for providing legal advice with respect to matters involving antitrust, general corporate law, treasury, risk management and bankruptcy. With more than 20 years of experience, Renata has completed over 35 successful acquisitions, divestitures, equity investments and joint ventures for the Corporation, including the $9 Billion acquisition of Sikorsky Aircraft Corporation and the sale of the Corporation's SAVI, PAE and EIG businesses. 4

5 Has this ever happened to you? Your company is conducting due diligence related to a potential merger It s Friday afternoon. Your boss walks into your office and says, I need copies of every material contract we ve entered into over the past ten years. And I need them by 9:00 a.m. Monday. Where do you begin?! Data management 5

6 What did we do in the old days? 6

7 and now? The Company Company A legal dept Outside accountants Virtual data room Company B legal dept Other vendors/ consultants Outside counsel 7

8 Agenda What is a virtual data room? What are the benefits? What are the risks of not having virtual data rooms? What should be included? Who should have access? How do I set up and maintain them? What are the requirements? Panel discussion Q&A 8

9 What is a virtual data room? An electronic repository of information used for document storage and distribution; often used in due diligence for M&A transactions, general corporate purposes, and other matters Enables both parties to share and review essential documents in a secure environment Organized Helps improve control issues Better legal compliance and consistency 9

10 What are the benefits? Provides an organized and secure filing system that is easily accessible avoids ing 10 Double verification and passwords; security issues Audit log/reporting can be used to support negotiations Increases communication efficiency 24/7 access to secured documents Value-added features such as calendars and closing checklists Increases collaboration Provides automatic notifications (e.g., documents added or updated) Reduces usage/rejection of s due to large attachments

11 What are the benefits? Allows full text search Ability to build custom lists, such as closing checklists or M&A task lists Information Rights Management to prevent copying and printing and to discourage screenshots by using watermarks Review who looks at the documents Quick access Vendor assistance 24/7 Uploading documents Software help Scanning Proofing Saves trees (and the need for filing cabinets) 11

12 What are the risks of not having virtual data rooms set up in advance? Information not all in one place Losing control of versions Remembering key contracts Not getting the work done in a timely manner Likelihood of providing out-of-date information increases if set up in a rush or crisis mode Lack of collaboration Easier to hack individual accounts 12

13 What are the risks to address? Consider a vendor IT audit well in advance of selection of the vendor Consider export control compliance issues created by the use of an electronic data room Consider privacy laws of various countries and internal company policies Consider whether a clean team approach is appropriate and at what level 13

14 What should be included? Charter documents Key contracts material items Privacy and export control issues Security clearance considerations and background checks Company diagrams, financials, projections, budgets Contact names with contact information Different layers of access Think it through! 14

15 Who should have access? Access internally only? Externally? Example: WarGames movie Need someone to manage and keep track of people who leave or should no longer have access 15

16 How do I set up and maintain them? Office of general counsel Internal or external Law firms Financial printers Dropbox, Google Other vendors 16

17 What are the requirements? Criteria/Terms Audit log/reporting Backup & restore Custom branding and design Customization File sharing Information Rights Mgmt. Integration Mobility Notifications Q&A/Discussions Security Surveys Description Ability to see who viewed, edited, deleted, or sent a link to a document Frequency options; local backups Option to brand the site with company logo Ability to create templates Sharing files within the virtual data room or copying and pasting a link Ability to set restrictions, such as the prevention of copying, editing, and printing, for documents shared with outside parties; watermarks are used to obstruct screen capturing and to track documents The ability to send a file from your document management system to the virtual data rooms; bidirectional integration adds the capability for external users to update documents and, with appropriate approval, add as new versions Mobile device compatibility (iphones, ipads, Androids) Ability to receive notifications as frequently as needed: immediate, daily, weekly Ability to initiate discussion forums among users Ability to meet cloud security requirements; cybersecurity issues Ability to survey users 17

18 Conduct features analysis (example) Criteria Vendor A Vendor B Integration Bi-Directional w/approval One-way publication Notifications Immediate; Daily; Weekly Immediate; Daily Mobility Mobile web; iphone App by September Security Meets requirements Still investigating Mobile web; iphone and Android app Information Rights Mgmt. Yes with link expiration Yes w/o link expiration Customization isheets; API AppBuilder; API; Templates Custom branding and design Branding Branding; Site Layout File sharing On document menu Get link and copy Backup & restore 30 days; trash bin 2 weeks; 24 hour file restore Surveys Not Available Yes Q&A/discussions Yes, with response Yes, no response 18

19 Vendors Vendor Website Profile Box Virtual Data Room Brainloop Secure Dataroom Dropbox HighQ ideals Virtual Data Room Intralinks Dealspace Law firms Legal Anywhere n/a Merrill Datasite RR Donnelley ShareDrive (internal to the company) SmartRoom VDR Watchdox by Blackberry 19 n/a irtual-data-room/ ducts/watchdox.html

20 Cloud services Be careful 20

21 And beware Keep a disc of materials and logs for each deal for the virtual data room proof of what was reviewed Consider getting a representation and warranty on the virtual data room and attach a disc to the agreement In deals with large companies, request a disc with all of the terms and conditions of their website Have a plan for handling size limitations for ing attachments Security multi-factor authentication; encryption 21

22 ABA Model Rule 1.1 Client-Lawyer Relationship Rule 1.1 Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. 22

23 Don t forget the disclaimer! All content contained in this virtual data room site is owned or controlled by (the Company ) and is protected by copyright laws and other agreements. You hereby agree to keep all information contained in this virtual data room confidential. In addition,. You may download content and use any such information only for your personal use and in accordance with the Confidentiality Agreement, if any. The content may otherwise not be copied or used in any other way or manner. The Company makes no representations, warranties, or assurances as to the accuracy, currency, or completeness of the information provided herein. The Company shall not be liable for. WARNING NOTICE: You are about to enter a private website that is restricted. The actual or attempted unauthorized access, use, or modification of this website or its contents is strictly prohibited by the Company. Unauthorized users. 23

24 Organizing the data room Folders Index Security levels Logs Process 24

25 Panel discussion How to get your team ready Stockholders relationship/transfer of shares Internal review and use Sale of a company Acquisition of a company Offsite access Responding to 220 requests Supplements to Virtual Data Room and Responses to Q&A 25

26 Panel discussion What happens when the deal is over? Automatic renewal of the virtual data room and costs Top 10 virtual data room tips Handouts Top 10 virtual data room tips Sample disclaimer Sample diligence request chart Articles 26

27 Q&A Michael de Leon Hawthorne Nick Wittich Renata Baker