Lexis Practice Advisor® Practice Insights—September 3, 2015

Lexis Practice Advisor® Practice Insights—September 3, 2015

LexisNexis partners with leading practitioners from across the country to develop Lexis Practice Advisor® practical guidance for transactional matters. Periodically InfoPro highlights the practical insights developed by these attorneys on specific topics in their area of expertise. These insights can be shared with your attorneys, used in your newsletters and on your intranet.  

Types of Guaranties

Banking & Finance Insights by Sherry Mitchell

Every few years, the landscape regarding the enforceability of certain types of guaranties seems to become a hot topic. However, before you can understand these nuances, you must fully comprehend the various types of guaranties that may be employed in a financing transaction. Any given transaction may have unlimited guaranties, limited guaranties, guaranties of payment, guaranties of collection, downstream guaranties, upstream guaranties and cross-stream guaranties. There are also bad acts guaranties (otherwise known as a springing guaranty). The nomenclature alone can be daunting. However, an understanding of these concepts is integral to a successful negotiation of guaranties.

Learn more about the types of guaranties:

Sherry Mitchell, Esq., head of Lexis Practice Advisor® Banking & Finance, brings eleven years of experience to LexisNexis®, joining the team from Clifford Chance U.S. LLP.

Asset Purchase Agreements
Bankruptcy Insights by Cody Tray

The approval of an asset purchase agreement by the bankruptcy court pursuant to section 363 of the Bankruptcy Code is an extremely complex matter, with all kinds of different tasks involved. In order to best assist your client, you will need to become a temporary jack of all trades, including working on establishing auction procedures, drafting the bid procedures order, conducting the auction itself, negotiating and drafting the asset purchase agreement, preparing for the sale hearing and assisting with any post-sale issues. The necessary tasks cover a broad spectrum, but the ultimate goal is always the same: to obtain approval by the bankruptcy court of the asset purchase agreement and for the 363 sale to close.

Learn more about asset purchase agreements:

Cody Tray, Esq., head of Lexis Practice Advisor® Financial Restructuring & Bankruptcy, brings nine years of bankruptcy experience to LexisNexis®, including experience at Davis Polk & Wardwell LLP and a clerkship with the Honorable Robert E. Gerber, SDNY Bankruptcy Judge.

Formation of the Florida Limited Liability Corporation

Business Insights by Eric Bourget

A limited liability company (“LLC”) combines the flexibility and tax benefits of a partnership with the limited liability attributes of a corporation. An LLC is a separate and distinct legal entity, capable of suing and being sued, and having the rights, obligations, powers and privileges accorded by Florida law. In considering whether a particular state is a suitable jurisdiction for establishing a limited liability company, counsel must check whether that state allows limited liability company status for the type of business conducted by the company. Florida does not place restrictions on the use of limited liability companies. Florida provides that an LLC has the same powers as an individual to do all things necessary to carry out its business and affairs.

Learn more about the formation of the Florida limited liability corporation:

Eric Bourget, Esq., Lexis Practice Advisor® Team Lead and Group Director of Specialized and Corporate offerings, brings ten years of both private and in-house practice experience to LexisNexis®.

Understanding and Preparing Effective Estate Plans in California

Business Insights by Eric Bourget

A “good” estate plan will combine different characteristics. It will always take into account the tax consequences of particular estate planning choices, though it will never be dominated by those consequences. It will seek to combine sound investment techniques with sound legal planning. It will keep the client’s personal needs and desires in mind, balancing them with the client’s wishes with respect to family members, friends, charitable beneficiaries and others. It will recognize opportunities for transferring part of the client’s property to other persons or entities while the client is living and seek to accomplish these transfers in the most efficient and economical method possible, consistent with respect for the client’s personal needs, investment considerations and tax-savings opportunities. It will plan for the ultimate disposition of the client’s property after the client’s death in a way that will ensure that the client’s wishes are respected and that the objects of the client’s bounty will receive the maximum benefits from the property.

Learn more about understanding and preparing effective estate plans in California:

Eric Bourget, Esq., Lexis Practice Advisor® Team Lead and Group Director of Specialized and Corporate offerings, brings ten years of both private and in-house practice experience to LexisNexis®.

Bankruptcy Concerns Related to IP Matters
IP & Technology Insights by Lindsay Bringardner

Bankruptcy filings are sometimes unexpected. Therefore, it’s a smart practice to protect clients from the potential implications and fallout from a bankruptcy filing when negotiating, drafting and entering into agreements. There are numerous potential bankruptcy risks with respect to agreements involving intellectual property that you should contemplate when drafting, including risks to both licensees and licensors, and risks faced by purchasers of IP from a debtor-in-possession or trustee, especially since trademarks, trade names, patents, copyrights and domain names can be treated differently under bankruptcy law.

Learn more about bankruptcy concerns related to IP matters:

Lindsay Bringardner, Esq., head of Lexis Practice Advisor® Intellectual Property & Technology, brings twelve years of legal experience to LexisNexis®, including experience at Latham & Watkins LLP and Pryor Cashman LLP.

Executive Compensation and Employee Benefits Issues in M&A
Labor & Employment Insights by Carrie Wright

Employment issues abound in corporate transactions, including those involving executive compensation and employee benefits. In order to ensure that the company you represent gets the benefit of its bargain and does not absorb more liabilities and risk than anticipated, you must carefully consider issues like the treatment of outstanding equity awards, liabilities in executive severance and change-in-control agreements, and employee benefit plans.

Learn more about executive compensation and employee benefits issues in M&A:

Carrie Wright, Esq., head of Lexis Practice Advisor® Labor & Employment, brings nearly fifteen years of legal experience to LexisNexis®, including experience at Epstein Becker & Green, P.C., Paul, Weiss, Rifkind, Wharton & Garrison LLP and Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C.

Spin-Offs: Legal and Regulatory Considerations
M&A Insights by Dana Hamada

A spin-off is a type of corporate divestiture in which a company distributes shares of a business division to its stockholders, creating two independent companies owned by the same stockholder base. Notable spin-offs include Time Warner’s spin-offs of AOL in 2009 and Time Inc. in 2014, Sara Lee Corporation’s spin-off of Hillshire Brands in 2010, and eBay Inc.’s spin-off of PayPal.

Spin-offs are typically conducted by large, publicly held corporations to realign corporate priorities, create better management incentives, and unlock hidden value for stockholders. They are also tax-free to both the parent corporation and its stockholders so long as certain requirements under the Internal Revenue Code are met. Spin-offs require a tremendous amount of planning, both in separating the parent and spun-off businesses and addressing the tax, securities, corporate, and other legal and regulatory issues that govern these transactions.

Learn more about spin-offs: legal and regulatory considerations:

Dana Hamada, Esq., head of Lexis Practice Advisor® Mergers & Acquisitions, brings a wealth of legal experience to LexisNexis®, joining the team from Jenner & Block LLP and Gibson, Dunn & Crutcher LLP.

Owner’s Affidavits in Real Estate Acquisition and Financing Transactions
Real Estate Insights by Richard J. Sobelsohn

In transactions involving the acquisition or financing of real property, the seller or borrower is often required to execute an owner’s affidavit, which contains representations and warranties in favor of the title insurance company. The key purpose of an owner’s affidavit is to provide the title insurance company with the information necessary to omit certain standard title insurance policy exceptions, such as those regarding tenancies at the property and construction work that might give rise to mechanic’s liens.

Learn more about owner’s affidavits in real estate acquisition and financing transactions:

Richard J. Sobelsohn, J.D., GGP, LEED Accredited Professional, Team Lead and Group Director of Lexis Practice Advisor® Financial Practice Area Modules, brings almost sixteen years of both private and in-house practice experience to LexisNexis®.

Understanding the Regulatory Scheme for Investment Advisers
Securities Insights by Ron Llewellyn

While the Investment Advisers Act of 1940 applies to registered investment advisers, portions of it apply to all investment advisers, even those not registered with the SEC. Investment Advisers are subject to additional state regulation, which may be preempted by federal regulation. Attorneys counseling investment advisers should be knowledgeable of the broad fiduciary duties applicable to all investment advisers to pursue the best interests of their clients.

Learn more about understanding the regulatory scheme for investment advisers:

Ron Llewellyn, Esq., head of Lexis Practice Advisor® Securities & Capital Markets, brings a wealth of expertise to LexisNexis®, including experience at Skadden, Arps, Slate, Meagher & Flom LLP, MasterCard Incorporated and Saks Incorporated.