Thursday, April 26, 2012

A Look at Chesapeake Energy's Sidecar Arrangement with CEO McLendon, DealBreaker Style (CHK)

Following up on this morning's "Press Release: "Chesapeake Energy Corporation's Board and CEO Aubrey K. McClendon Agree to Negotiate Early Termination of Founder Well Participation Program":
A very different tone versus the Corporate General Counsel's initial response:
Chesapeake General Counsel: "Whatcha Lookin' At?" (CHK)...
From DealBreaker:
Chesapeake’s CEO Inconvenienced By Having To Find New Creative Ways To Exploit Shareholders
You may remember that Chesapeake Energy got some bad press last week for giving its CEO interests in all of its wells, and that CEO taking hundreds of millions of dollars in loans against those interests, and Chesapeake maybe not telling shareholders about that in the most forthright conceivable way. At the time, Chesapeake’s general counsel Henry J. Hood let everyone know that everything was fine and Chesapeake’s board was on top of the situation. Today, though, we learn that Henry J. Hood’s bosses are not as supportive as, I dunno, Dan Walfish’s*:
Chesapeake also wishes to clarify a statement appearing in its April 18, 2012 press release captioned “Chesapeake Energy Corporation General Counsel Henry J. Hood Issues Statement.” The statement that “the Board of Directors is fully aware of the existence of Mr. McClendon’s financing transactions” was intended to convey the fact that the Board of Directors is generally aware that Mr. McClendon used interests acquired through his participation in the FWPP as security in personal financing transactions. The Board of Directors did not review, approve or have knowledge of the specific transactions engaged in by Mr. McClendon or the terms of those transactions.
That statement doesn’t need clarification! That statement is perfectly clear! “The Board is fully aware of the existence of the financing transactions” means “everyone on the board is aware that financing transactions exist.” If Henry J. Hood had meant “The Board is fully aware of the details and amounts of the financing transactions,” he’d have said that. Being aware of the existence of a thing is the lowest level of knowledge that you can have about that thing. I am fully aware of the existence of Pinterest. The full extent of my knowledge about Pinterest is that it exists. See? Shut up everyone who’s all “‘fully aware’ means ‘generally aware’ now HUH LAWYERS?”

THAT’S RIGHT, say lawyers. I’m going to go out on a limb here and guess that the skills that allowed Henry J. Hood to say “the board has heard of this thing you call ‘financing’” but get a bunch of people to hear “the board knows all the details of what Aubrey’s up to, and it’s fine so don’t trouble your pretty little heads about it” served him well (1) in law school (you know this) and (2) in parsing the SEC rules governing related-party transactions, which restrict pledges of stock as collateral...MORE