September 14, 2016

Understanding Real Estate Joint Ventures

By: Thomas G. Maira , Reed Smith LLP. As funds raised in the 2006–2008 heyday of private equity reach the ends of their 10 year terms, there has been a surge of restructurings of those funds utilizing a stapled secondarystructure. The widely publicized $1.2 billion restructuring in March 2016 of a 2008 vintage buyout fund managed by private equity pioneer Thomas H. Lee is the latest example of thistrend, showing...

September 14, 2016

Profiles of Lexis Practice Advisor Journal™ Advisory Board Members - Matthew Merkle & Scott Semer

Matthew Merkle : Partner, Kirkland & Ellis LLP MATTHEW MERKLE IS A CAPITAL markets partner in the London office of Kirkland & Ellis LLP. Matthew represents private equity sponsors, issuers, and investment banks in high-yield debt offerings in connection with leveraged buyouts and other complex financings in Europe, the United States, and emerging markets. Matthew has represented many private equity sponsors...

September 14, 2016

Understanding Financial Disclosure of Persuader Activities

By: Pete Lareau . THIS ARTICLE ADDRESSES THE PERSUADER REPORTING RULES under the Labor-Management Reporting and Disclosure Act (LMRDA). 1 For many years, the U.S. Department of Labor (DOL) had almost always maintained that an outside counsel’s creation or review of written content that formed the basis of subsequent communications to employees was advice that did not subject the employer and attorney to persuader...

September 14, 2016

Strategies and Opportunities in an America Invents Act World – Choices of Venue

By: Ethan Horwitz , Carlton Fields. TODAY, BOTH PATENT OWNERS AND ACCUSED INFRINGERS have multiple choices of venues in which to litigate the validity of a patent. There is the historic option of a patent infringement case in the federal courts. Increasingly, the International Trade Commission (ITC) is being chosen as a venue. And while historically there were some post-grant procedures in the United States Patent and...

September 14, 2016

EEOC'S Final Rules on Wellness Programs

By: Jonathan R. Mook , DiMuroGinsberg, P.C. Given concerns over rising health care costs and missed workdays by employees suffering from various illnesses, many employers have implemented employee wellness programs and activities to promote healthier lifestyles or to prevent disease with the expectation that such programs will reduce healthcare costs. 1 However, these programs must be appropriately designed so as not...

August 04, 2016

Trends on Acquisition Finance in the United Kingdom

By: Stephen Gillespie and Amy Kennedy , Gibson, Dunn & Crutcher. 1. What are the typical debt components of acquisition financing in the United Kingdom? Acquisitions in the United Kingdom are typically financed either by way of leveraged loan or high yield bond (or by a combination of both). In the loan market, acquisition financing generally takes the form of all-senior or senior and mezzanine/second-lien structures–in...

August 04, 2016

Opportunities in Derivatives for Community and Regional Banks

By: Juan M. Arciniegas and Daniel O’Rourke , Vedder Price. Recently, there has been a movement by larger community banks and their regional counterparts (Interested Banks) to engage in derivatives markets. Historically, this is banking space almost exclusively inhabited by the larger commercial banks and money center banks. Low interest rates and lackluster loan demand have squeezed the net interest margin of...

August 04, 2016

Changes Needed to Protect Banking and Financial Services When Dealing with the Marijuana Industry

By: Moises Gali-Velazquez. Medical marijuana is legal in 23 states and the District of Columbia. 1 Moreover, four states have legalized marijuana’s recreational use and at least 18 more states are, or have been, considering legalization of medical marijuana. 2 Puerto Rico, a U.S. territory, is in the process of legalizing medical marijuana. 3 States Legalize Marijuana and the Medical Marijuana Industry is Established...

August 04, 2016

The Impact of Dodd-Frank and Capital Requirements on Commercial Lending

By: Dwight Smith , Nelson Mullins Riley & Scarborough LLP. THE DODD-FRANK WALL STREET REFORM AND CONSUMER Protection Act (Dodd-Frank), 111 P.L. 203 , addresses commercial lending in two of its titles. First, and most prominently, Title I of the statute deals with risks to the stability of the financial system through more stringent regulation of bank holding companies with more than $50 billion in assets. As something...

August 04, 2016

Understanding, Negotiating, and Drafting Purchase Price Provisions

By: Steven I. Glober , Gibson, Dunn & Cruther LLP. The purchase price provisions are among the most critical terms of a merger agreement. The value of the consideration to be paid by the acquirer to the target’s stockholders will be affected not only by provisions setting forth the amount of consideration, but also by the form of consideration, the timing of payment, potential adjustments to the amount to...

August 04, 2016

Introduction to Acquisition Financing & Recent Trends

By: Linda Curtis and Andrew Cheng , Gibson, Dunn & Crutcher LLP. Business acquisitions vary widely in terms of size and structure, the parties involved, and the nature of the financing involved. The parties typically involve one or more buyers, one or more sellers, and one or more lenders. A STANDARD ACQUISITION STRUCTURE IS THE PURCHASE of the target company’s equity, but acquisitions by merger are also...

August 04, 2016

A Briefing on Emerging Issues Impacting Transactional Practice - Special Edition: Finance 2016

FDIC HIGHLIGHTS RESOURCES ON BANKING FOR SMALL BUSINESSES THE FEDERAL DEPOSIT INSURANCE Corporation highlighted the agency’s resources to help small businesses get the most from their banking relationships. Small businesses employ roughly half of all Americans and account for more than 60% of net new jobs, according to the U.S. Small Business Administration (SBA). Their ability to generate new jobs depends,...

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

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

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

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

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...