August 04, 2016

Acquisition Finance Sources: Debt

By: Linda Curtis and Andrew Cheng , Gibson, Dunn & Crutcher LLP. THE FINANCING SOURCES FOR BUSINESS ACQUISITIONS are as varied as the structure and motivations for the acquisitions themselves. The most efficient source depends on several factors, including the cost of raising capital, prevailing interest rates, flexibility desired, and any anticipated need for future financing. Potential sources of financing generally...

August 04, 2016

Acquisition Finance Sources: Equity and Seller Financing

By: Linda Curtis and Andrew Cheng , Gibson, Dunn & Crutcher LLP. Equity Equity financing for a business acquisition can take many forms and is highly dependent on the structure of the acquisition. For example, a public or private company may purchase all or a portion of the stock of another company by issuing its own stock to the seller(s). A merger, similarly, may be funded all or in part by equity issued by...

August 04, 2016

Collateral Security and Intercreditor Issues

By: Linda Curtis and Andrew Cheng , Gibson, Dunn & Crutcher LLP. ACQUISITION FINANCINGS INVOLVE CERTAIN COLLATERAL security and intercreditor issues, including: The extent and perfection of collateral security for the borrowing The scope of guarantees (and collateral security) from multiple members of an affiliated corporate group For deals involving multiple tranches of financing, intercreditor issues regarding...

August 04, 2016

Certain Tax and Regulatory Considerations in Acquisition Financings

By: Linda Curtis and Andrew Cheng , Gibson, Dunn & Crutcher LLP. TAX CONSIDERATIONS—FEDERAL, STATE, LOCAL, AND foreign income taxes, as well as other types of taxes such as transfer and property taxes—are a major consideration when determining the optimal structure of any business acquisition. A stock purchase, asset purchase, or merger may each have different tax implications to consider in light of...

August 04, 2016

Acquisition Financing Commitment Papers

By: Linda Curtis and Andrew Cheng , Gibson, Dunn & Crutcher LLP. Acquisition Financing: Buyer and Seller General Perspectives It is understandable that before lenders will agree to lend millions, and sometimes billions, of dollars to fund an acquisition, they require satisfaction of certain closing conditions. Some of these conditions are standard and uncontroversial, such as the requirement that the closing of...

August 04, 2016

Conditionality in Acquisition Financing Commitment Papers

By: Linda Curtis and Andrew Cheng , Gibson, Dunn & Crutcher LLP. Closing on Terms of the Purchase Agreement (Amendments) Because the buyer typically chooses specific lenders with the understanding that their commitment letter will be subject to minimal conditionality, lenders should not be surprised by both the buyer’s and seller’s insistence on commitment letters with minimal closing conditions. Given...

August 04, 2016

Key Acquisition Agreement Financing Terms

By: Linda Curtis and Andrew Cheng , Gibson, Dunn & Crutcher LLP. IN RECENT YEARS, THE NEGOTIATION OF AN ACQUISITION agreement and related acquisition financing commitment has become increasingly complicated, involving multiple parties. The buyer, of course, is always intimately involved in both negotiations, with one of its main goals to make the conditionality in its financing commitments as consistent as possible...

June 04, 2016

Cybersecurity and Data Protection: Helping Healthcare Clients Protect Patient Information

By: Kimbely Metzger , Ice Miller. Medical identity theft, and incomplete patient disclosure due to cybersecurity concerns, can be dangerous—even deadly—to individuals and can compromise community wellness. Breaches of health information can have serious economic and other consequences for providers as well. This article discusses the cybersecurity landscape in health care, medical identity theft, patient...

June 03, 2016

Profiles of Lexis Practice Advisor Journal™ Advisory Board Members - Candace Choh & James G. Gatto

Candace Choh : Partner, Gibson, Dunn, & Crutcher LLP CANDICE CHOH IS A PARTNER AT Gibson, Dunn & Crutcher, Los Angeles. She is in the firm’s Corporate Transactions practice group and focuses on mergers and acquisitions, private equity and general corporate matters. Candice has represented both public and private companies as well as private equity funds in domestic and international business combination...

June 03, 2016

Trends in Securities Law and Shareholder Activism

Q&A with Keir Gumbs , Covington & Burling LLP As Special Counsel in the SEC’s Division of Corporation Finance, what were some of your major responsibilities? I was a special counsel in the Office of Chief Counsel within the Division of Corporation Finance. That office is like the general counsel‘s office for the division. We provided interpretive guidance internally to the lawyers who were reviewing...

June 03, 2016

A Briefing on Emerging Issues Impacting Transactional Practice - Summer 2016

SEVENTEEN STATE “NEW ENERGY FUTURE” COALITION FORMED GOVERNOR ANDREW M. CUOMO AND 16 OTHER GOVERNORS signed the Governors’ Accord for a New Energy Future. The accord describes six shared goals, diversification of energy generation and expansion of clean energy sources, modernization of energy infrastructure, encouragement of clean transportation options, planning for the energy transition, working...

June 03, 2016

Reverse Yankee Bonds and the New EU Market Abuse Regime

By: Matthew Merkle , Kirkland & Ellis International LLP. ON JULY 3, 2016, THE EUROPEAN UNION (EU) WILL EXTEND its new market abuse regime (MAD II) 2 to the previously unregulated Global Exchange Market of the Irish Stock Exchange (GEM) and the EuroMTF of the Luxembourg Stock Exchange. MAD II will thereafter apply to U.S.-based issuers of euro-denominated bonds that are listed on the GEM and the EuroMTF. MAD II differs...

June 03, 2016

Regulation of Self-Driving Cars Headed for the Fast Lane

By: Korey Clark Development of autonomous, or self-driving, vehicle technologies by Google, Tesla Motors, and others has been progressing rapidly in recent years. But state efforts to regulate the testing and operation of self-driving cars on public roads have been moving at a more deliberate pace. Now the Obama administration wants to fast-track the regulatory process to get autonomous cars on the road more quickly...

June 03, 2016

When Supply Exceeds Demand: Buying and Selling Oil and Gas Assets in the Current Low Price Environment

By: Ira L. Herman , Thompson & Knight LLP The price of crude oil, like the price of virtually all commodities, moves up in times of high demand and down in times of excess capacity. When a mismatch exists between supply and demand, the markets are expected to self-correct. Excess supply should result in price and production cuts, while excess demand should be met with price and production increases. DESPITE THESE...

June 03, 2016

Understanding & Drafting Internship Agreements

By: Julie Capell , Winston & Strawn LLP This article discusses how to draft effective internship agreements that comply with the U.S. Department of Labor’s (DOL’s) regulations concerning unpaid internships, as well as recent court decisions applying a new test concerning unpaid internships. WHEN THE ECONOMY IS DOWN AND BUSINESSES LOOK to cut expenses, it may seem like a good idea to hire an unpaid...

June 03, 2016

Selecting the Proper Estate Planning Device

By: Jeffrey A. Kern and Brian Goossen , Akerman. An estate plan can be described as a process to protect and maximize a person’s wealth during their lifetime, arrange for financial management and health care decision-making in the event of disability, and transfer assets to, or ensure their continued preservation for, intended beneficiaries upon death, in an orderly and cost-efficient manner. ESTATE PLANNING...

June 03, 2016

Avoid Stretching Your License Beyond Its Legal and Ethical Limits

By: Devika Kewalramani, Esq. , Moses & Singer LLP. The practice of law has no universally accepted definition, but the unauthorized practice of law is well-defined in jurisdictions around the country. Most states have an assortment of rules of professional conduct, statutes, and/or court rules that establish the territorial boundaries around unauthorized practice: who can practice, where, when, and how. THE PURPOSE...

June 03, 2016

Rights Clearance

By: Po Yi , Venable LLP. When your client plans to create new content or use existing third-party content in a new work, it must conduct a review to ensure that it is permitted to use the material. This review is known as rights clearance. UNAUTHORIZED USE OF SUCH MATERIAL COULD SUBJECT your client to liability for violating a third party’s copyright, trademark, or other intellectual property or proprietary...

June 03, 2016

Investing in U.S. Real Estate by Qualified Foreign Pension Funds

By: Scott L. Semer , Torys LLP. FOR OVER 30 YEARS, NON-U.S. INDIVIDUALS AND ENTITIES who invest in U.S. real estate have been subject to tax both on operating income and gains realized upon exiting the investment. There have been limited exceptions, primarily for gains earned by shareholders holding less than 5% of public real estate investment trusts (REITs) and shareholders of domestically controlled REITs that exit...

June 03, 2016

The Developing Law of LGBT Protections under Title VII

By: Darrell R. VanDeusen and Alexander P. Berg , Kollman & Saucier The rights of lesbian, gay, bisexual, and transgender (LGBT) individuals remain a hot topic in the American workplace. Protection under federal anti-discrimination laws has proved elusive over the years. While terms like sex, gender, sexual orientation, and gender identity are routinely used, defining these terms and addressing the ramifications...

March 12, 2016

Technology Transfer with a University or National Laboratory

By: Heather J. Meeker , O’Melveny & Myers LLP. LEXIS PRACTICE ADVISOR RESEARCH PATH: Intellectual Property & Technology > IP Licensing > Patent Licenses > Practice Notes > University Technology Transfer Technology transfer is when technology that is developed in academic institutions or national laboratories is made available for development or commercialization. (All discussion of technology...

March 11, 2016

Shareholder Proposals: Predicting the 2016 Proxy Season

By: Keir Gumbs , Covington & Burling LLP LEXIS PRACTICE ADVISOR RESEARCH PATH: Securities & Capital Markets > Proxy Statement and Annual Meeting > Shareholder Activism > Articles > Excluding Shareholder Proposals and Seeking No-Action Letters This article highlights the key shareholder proposal trends and developments to expect in the 2016 proxy season. 2015 Season Statistics This past proxy...

March 11, 2016

Increasing Regulation of Daily Fantasy Sports Games

By: Lori W. Sieron LEXIS PRACTICE ADVISOR RESEARCH PATH: Business & Commercial > E-Commerce > Social Media > Articles > Sweepstakes, Contests and Prize Promotions UNTIL RECENTLY, THE ONLINE BUSINESSES THAT ALLOW people to wager on daily and weekly fantasy sports games were operating largely under the radar. That changed at the start of the 2015 NFL season, when several daily fantasy sports (DFS) companies...

March 11, 2016

Understanding At-the-Market Offerings

By: Michael Rave , Day Pitney LLP LEXIS PRACTICE ADVISOR RESEARCH PATH: Securities & Capital Markets > Post-IPO Equity Offerings > Other Equity Offerings > Practice Notes There are various ways in which companies can attempt to raise capital in the face of liquidity and capital resource constraints. One such method is an “at-the-market” offering (ATM), which provides certain publicly traded...

March 11, 2016

Recent Trends in Incremental Loan Facilities

By: Alexandra Margolis , Nixon Peabody LLP LEXIS PRACTICE ADVISOR RESEARCH PATH: Banking & Finance > Commitment Papers and Syndicated Lending > The Commitment Letter > Articles > Trends in Acquisition Finance Incremental loan facilities (also called an accordion) afford a borrower the ability to incur additional term loans or revolving loan commitments under an existing loan agreement if current and...