The document discusses key considerations for drafting enforceable and helpful teaming agreements, including joint ventures and prime/subcontractor agreements, for government contracts. It provides an overview of the differences between joint ventures and prime/subcontractor relationships. It also summarizes the Cyberlock court case, which established that a detailed teaming agreement with agreed upon terms is needed before parties can jointly pursue a government contract, or the agreement may not be enforceable.
Government contractors use different teaming arrangements to best position themselves for a future award. Frequently a key element should be a clear appreciation of the relationship between the teaming arrangement and the desired business outcome. The best approach is to put “a planning team” in place (lawyers and CPAs) before putting “your business team” in place for a proposal. Join us as we help you understand:
•JV’s versus teaming agreement – which is preferable—and when?
•Small business set aside concerns
•Pitfalls – poorly written or nonspecific agreements
•To consolidate or not to consolidate – a look at the financial statement impact
With good planning, you can position yourself to respond to RFP’s effectively, create a positive business relationship, and know what to expect at year-end.
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This presentation looks at the executive compensation provisions (Sections 951-957) and corporate governance provisions (Sections 971-972) of the Dodd-Frank Wall Street Reform and Consumer Protection Act.
September 2011 - Business Law & Order - Douglas S. ParkerAnnArborSPARK
When forming a business one of the first decisions an entrepreneur will make is choice of entity. This session will cover the possible legal structures for your business activities, including the advantages and disadvantages of each type of entity in terms of limited liability, management of the business, employee compensation and tax matters. Learn the basics of Corporate Formation and understand the pros and cons of incorporating in Michigan and Delaware.
Compliance issues are at the front of every manager's and fiduciary’s mind these days. It used to be that all the worry came from a creative plaintiffs’ bar calling a business's conduct into question, but those days are long gone. Public and private companies are investigated by not only the United States federal government, but also local, state, and foreign governments. Self-regulating entities also add a layer of scrutiny. Under the insulation of the attorney-client privilege, an effective internal investigation can help marshal the facts to inform corporate decisions about past or existing violations and prevent potential future violations. An internal investigation can protect management from the violation and records the company's response to an incident or violation. However, most importantly, it serves to send a clear message that the company is serious about compliance and that it sets transparency as a priority. This webinar surveys recent compliance trends and discusses best practices regarding the attorney-client privilege, joint defense agreements, the use of experts, witness interviews, the consequences of self-disclosure and how to control the impact on the company.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/internal-investigations-101-2021/
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Who decides what products a company should sell, what prices it should charge, and so on? Is it the board of directors, the top management team, or the shareholders? In large corporations, of course, the answer is the top management team operating under the supervision of the board. As for the shareholders, they traditionally have had no role in these sort of operational decisions. In recent years, however, shareholders have increasingly used SEC Exchange Act Rule 14a-8 (the so-called shareholder proposal rule), to not just manage but even micromanage corporate decisions.
The rule permits a qualifying shareholder of a public corporation registered with the SEC to force the company to include a resolution and supporting statement in the company’s proxy materials for its annual meeting. In theory, Rule 14a-8 contains limits on shareholder micro-management. The rule permits management to exclude proposals on a number of both technical and substantive bases, of which the exclusion in Rule 14a-8(i)(7) of proposals relating to ordinary business operations is the most pertinent for present purposes. Rule 14a-8(i)(7) is intended to permit exclusion of a proposal that “seeks to ‘micro-manage’ the company by probing too deeply into matters of a complex nature upon which shareholders, as a group, would not be in a position to make an informed judgment.”
Unfortunately, court decisions have largely eviscerated the ordinary business operations exclusion. Corporate decisions involving “matters which have significant policy, economic or other implications inherent in them” may not be excluded as ordinary business matters, for example, which creates a gap through which countless proposals have made it onto corporate proxy statements.
Government contractors use different teaming arrangements to best position themselves for a future award. Frequently a key element should be a clear appreciation of the relationship between the teaming arrangement and the desired business outcome. The best approach is to put “a planning team” in place (lawyers and CPAs) before putting “your business team” in place for a proposal. Join us as we help you understand:
•JV’s versus teaming agreement – which is preferable—and when?
•Small business set aside concerns
•Pitfalls – poorly written or nonspecific agreements
•To consolidate or not to consolidate – a look at the financial statement impact
With good planning, you can position yourself to respond to RFP’s effectively, create a positive business relationship, and know what to expect at year-end.
Dodd-Frank Wall Street Reform and Consumer Protection Act, Executive Compensa...Edward Hauder
This presentation looks at the executive compensation provisions (Sections 951-957) and corporate governance provisions (Sections 971-972) of the Dodd-Frank Wall Street Reform and Consumer Protection Act.
September 2011 - Business Law & Order - Douglas S. ParkerAnnArborSPARK
When forming a business one of the first decisions an entrepreneur will make is choice of entity. This session will cover the possible legal structures for your business activities, including the advantages and disadvantages of each type of entity in terms of limited liability, management of the business, employee compensation and tax matters. Learn the basics of Corporate Formation and understand the pros and cons of incorporating in Michigan and Delaware.
Compliance issues are at the front of every manager's and fiduciary’s mind these days. It used to be that all the worry came from a creative plaintiffs’ bar calling a business's conduct into question, but those days are long gone. Public and private companies are investigated by not only the United States federal government, but also local, state, and foreign governments. Self-regulating entities also add a layer of scrutiny. Under the insulation of the attorney-client privilege, an effective internal investigation can help marshal the facts to inform corporate decisions about past or existing violations and prevent potential future violations. An internal investigation can protect management from the violation and records the company's response to an incident or violation. However, most importantly, it serves to send a clear message that the company is serious about compliance and that it sets transparency as a priority. This webinar surveys recent compliance trends and discusses best practices regarding the attorney-client privilege, joint defense agreements, the use of experts, witness interviews, the consequences of self-disclosure and how to control the impact on the company.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/internal-investigations-101-2021/
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Who decides what products a company should sell, what prices it should charge, and so on? Is it the board of directors, the top management team, or the shareholders? In large corporations, of course, the answer is the top management team operating under the supervision of the board. As for the shareholders, they traditionally have had no role in these sort of operational decisions. In recent years, however, shareholders have increasingly used SEC Exchange Act Rule 14a-8 (the so-called shareholder proposal rule), to not just manage but even micromanage corporate decisions.
The rule permits a qualifying shareholder of a public corporation registered with the SEC to force the company to include a resolution and supporting statement in the company’s proxy materials for its annual meeting. In theory, Rule 14a-8 contains limits on shareholder micro-management. The rule permits management to exclude proposals on a number of both technical and substantive bases, of which the exclusion in Rule 14a-8(i)(7) of proposals relating to ordinary business operations is the most pertinent for present purposes. Rule 14a-8(i)(7) is intended to permit exclusion of a proposal that “seeks to ‘micro-manage’ the company by probing too deeply into matters of a complex nature upon which shareholders, as a group, would not be in a position to make an informed judgment.”
Unfortunately, court decisions have largely eviscerated the ordinary business operations exclusion. Corporate decisions involving “matters which have significant policy, economic or other implications inherent in them” may not be excluded as ordinary business matters, for example, which creates a gap through which countless proposals have made it onto corporate proxy statements.
A Quick Comparison of USA Corporate Law and New Zealand Company LawStephen Bainbridge
This presentation offers a quick comparison of USA corporate law and New Zealand company law, focusing on the role of the board of directors and its powers as compared to the role and powers of the shareholders.
Presentation given to the National Association of Stock Plan Professionals' Chicago Chapter on the Executive Compensation and Corporate Governance provisions of the Dodd-Frank Act, which was signed into law by President Obama on July 21, 2010.
The Securities and Exchange Commission has been entrusted with a significant corporate compliance regulatory function, which has been expanded by seminal legislation in the recent past such as the Sarbanes-Oxley (“SOX”) and Dodd-Frank Acts. This webinar discusses board fiduciary duties and the tension between state corporate law standards and federal law. Board composition, independence, structure and processes (including best practices in regard to committees) are analyzed. Specifically, director independence is discussed as is audit committees and related requirements, regulations and exemptions. NASDAQ and the NYSE also have similar requirements for director independence and those are also discussed. The webinar also covers disclosure matters related to SOX compliance, including timing and content of an issuer's periodic disclosures. Both the legal requirements and best practices related to disclosure procedures and internal controls under SOX are examined. Means of controlling the costs of SOX, especially for smaller public companies, are also discussed, including trends in the industry related to high regulatory compliance costs. Finally, the applicability and best practices for privately held companies and SOX are considered…
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/securities-law-compliance-2019/
This webinar is critical for entrepreneurs who will be raising a preferred round in the near future. This webinar is designed to teach you what to expect when your company sells preferred stock in a venture round.
During this webinar, veteran Silicon Valley venture capital attorney Jason Putnam Gordon will cover the following topics:
· What venture capitalists are looking for when they invest in a company
· What makes a company a potential investment for a venture capital fund
· Pre-round issues
· What makes a good investor and how to find them
· How to negotiate a term sheet
· The deal documentation
· The diligence process
· Closing issues
· Post-closing issues
· Common pitfalls when raising venture capital
· And much, much more
US/ Canada cross-border tax planning could be impacted by the recent finalization of Section 385 regulations by the IRS and Treasury Department. Because most of these new rules apply with an effective date reaching back to April 5, 2016, it is imperative that Canadian companies with U.S. activities assess their potential impact and develop a strategy for managing their exposure to these rules.
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Join us for this interactive session where we will discuss the top employee benefits changes in 2018 and provide a preview of what to expect in 2019. We will discuss:
- Based on recent case law, should your plans contain a "choice of law" or "mandatory arbitration" provision?
- What retirement plan amendments must you do—and which are optional?
- New health plan changes, including the new proposed HRA rules.
Corporations, Module III: Entrepreneurship, Lesson 1: Organizational ChoicesDuquesne University
The first step in business planning for lawyers is often deciding which legal entity to form. Common choices include partnerships, corporations, and limited liability companies. Sole proprietorships, professional corporations, and limited liability partnerships also play a role in this "alphabet soup" of organizational choices.
"Non-Qualified Deferred Compensation Plans" was presented by Tom Sigmund on December 18, 2014, at the CPA Mega Tax Conference.
Tom discussed the details of non-qualified deferred compensation plans, including social security taxes, informal funding and penalties.
The fourth webinar presentation in the M&A Litigation Series examines claims and other rights of action asserted by stockholders in connection with M&A transactions. Various types of claims and proceedings – ranging from fiduciary duty to federal securities to statutory appraisal – are discussed. Director and Officer indemnity and advancement obligations likewise are addressed.
On our agenda:
-Fiduciary Duty and Disclosure Claims
-Federal Securities Claims
-Statutory Appraisal
-Books and Records Inspection Rights
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There are some special rules for single asset real estate cases in the Bankruptcy Code but even without those special rules, such chapter 11 cases proceed quite differently than other cases. Motion to dismiss or convert early in the case, and motions to lift the automatic stay to permit a single lender to foreclose on all of the debtor’s assets, are common. More generally, single asset real estate cases are far more likely to be dominated by litigation early as compared to other chapter 11 cases. Plan confirmation issues tend to focus on claim classification issues. This webinar addresses these issues.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/single-asset-real-estate-2019/
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As the cost and duration of litigation continue to increase, clients have begun demanding fee arrangements that deliver maximum value and best mitigate risk. This webinar explores the mechanics and pros and cons of various fee arrangements, from hourly to contingent to mixtures of the two. We also discuss the increasingly popular option of third-party litigation finance.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/paying-for-litigation-hourly-contingency-third-party-financing-more-2021/
Financial distress and your safety net during COVID-19Redchip
Temporary changes to insolvency laws mean businesses have a safety net so they can resume normal operations once the crisis has passed. This includes an increase to the statutory demand limit (to $20,000), and extended protections for directors against personal liability for trading whilst insolvent.
This safety net, however, is due to expire on 24 September 2020 and businesses can then expect sudden and aggressive debt recovery measures from creditors including the ATO.
Please join our webinar with insolvency experts Robert Champney and
Rebecca Forsyth who will discuss with you:
Changes to occur from 25 September - statutory demands, bankruptcy notices, and obligations as a director;
Debt recovery options available to your clients to improve cash flow; and
“Red flags” that determine financial distress, what options are available to restructure, and the need for proactive conversations with your client and legal advisors
A Quick Comparison of USA Corporate Law and New Zealand Company LawStephen Bainbridge
This presentation offers a quick comparison of USA corporate law and New Zealand company law, focusing on the role of the board of directors and its powers as compared to the role and powers of the shareholders.
Presentation given to the National Association of Stock Plan Professionals' Chicago Chapter on the Executive Compensation and Corporate Governance provisions of the Dodd-Frank Act, which was signed into law by President Obama on July 21, 2010.
The Securities and Exchange Commission has been entrusted with a significant corporate compliance regulatory function, which has been expanded by seminal legislation in the recent past such as the Sarbanes-Oxley (“SOX”) and Dodd-Frank Acts. This webinar discusses board fiduciary duties and the tension between state corporate law standards and federal law. Board composition, independence, structure and processes (including best practices in regard to committees) are analyzed. Specifically, director independence is discussed as is audit committees and related requirements, regulations and exemptions. NASDAQ and the NYSE also have similar requirements for director independence and those are also discussed. The webinar also covers disclosure matters related to SOX compliance, including timing and content of an issuer's periodic disclosures. Both the legal requirements and best practices related to disclosure procedures and internal controls under SOX are examined. Means of controlling the costs of SOX, especially for smaller public companies, are also discussed, including trends in the industry related to high regulatory compliance costs. Finally, the applicability and best practices for privately held companies and SOX are considered…
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/securities-law-compliance-2019/
This webinar is critical for entrepreneurs who will be raising a preferred round in the near future. This webinar is designed to teach you what to expect when your company sells preferred stock in a venture round.
During this webinar, veteran Silicon Valley venture capital attorney Jason Putnam Gordon will cover the following topics:
· What venture capitalists are looking for when they invest in a company
· What makes a company a potential investment for a venture capital fund
· Pre-round issues
· What makes a good investor and how to find them
· How to negotiate a term sheet
· The deal documentation
· The diligence process
· Closing issues
· Post-closing issues
· Common pitfalls when raising venture capital
· And much, much more
US/ Canada cross-border tax planning could be impacted by the recent finalization of Section 385 regulations by the IRS and Treasury Department. Because most of these new rules apply with an effective date reaching back to April 5, 2016, it is imperative that Canadian companies with U.S. activities assess their potential impact and develop a strategy for managing their exposure to these rules.
That's a Wrap! Employee Benefits Year-End Reminders (and a Preview of 2019 Ch...Quarles & Brady
Join us for this interactive session where we will discuss the top employee benefits changes in 2018 and provide a preview of what to expect in 2019. We will discuss:
- Based on recent case law, should your plans contain a "choice of law" or "mandatory arbitration" provision?
- What retirement plan amendments must you do—and which are optional?
- New health plan changes, including the new proposed HRA rules.
Corporations, Module III: Entrepreneurship, Lesson 1: Organizational ChoicesDuquesne University
The first step in business planning for lawyers is often deciding which legal entity to form. Common choices include partnerships, corporations, and limited liability companies. Sole proprietorships, professional corporations, and limited liability partnerships also play a role in this "alphabet soup" of organizational choices.
"Non-Qualified Deferred Compensation Plans" was presented by Tom Sigmund on December 18, 2014, at the CPA Mega Tax Conference.
Tom discussed the details of non-qualified deferred compensation plans, including social security taxes, informal funding and penalties.
The fourth webinar presentation in the M&A Litigation Series examines claims and other rights of action asserted by stockholders in connection with M&A transactions. Various types of claims and proceedings – ranging from fiduciary duty to federal securities to statutory appraisal – are discussed. Director and Officer indemnity and advancement obligations likewise are addressed.
On our agenda:
-Fiduciary Duty and Disclosure Claims
-Federal Securities Claims
-Statutory Appraisal
-Books and Records Inspection Rights
-D&O Insurance and Indemnity and Advancement Obligations
Focus on Single Asset Real Estate (Series: Chapter 11 Special Issues)Financial Poise
There are some special rules for single asset real estate cases in the Bankruptcy Code but even without those special rules, such chapter 11 cases proceed quite differently than other cases. Motion to dismiss or convert early in the case, and motions to lift the automatic stay to permit a single lender to foreclose on all of the debtor’s assets, are common. More generally, single asset real estate cases are far more likely to be dominated by litigation early as compared to other chapter 11 cases. Plan confirmation issues tend to focus on claim classification issues. This webinar addresses these issues.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/single-asset-real-estate-2019/
Paying for Litigation- Hourly, Contingency, Third Party Financing & More (Ser...Financial Poise
As the cost and duration of litigation continue to increase, clients have begun demanding fee arrangements that deliver maximum value and best mitigate risk. This webinar explores the mechanics and pros and cons of various fee arrangements, from hourly to contingent to mixtures of the two. We also discuss the increasingly popular option of third-party litigation finance.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/paying-for-litigation-hourly-contingency-third-party-financing-more-2021/
Financial distress and your safety net during COVID-19Redchip
Temporary changes to insolvency laws mean businesses have a safety net so they can resume normal operations once the crisis has passed. This includes an increase to the statutory demand limit (to $20,000), and extended protections for directors against personal liability for trading whilst insolvent.
This safety net, however, is due to expire on 24 September 2020 and businesses can then expect sudden and aggressive debt recovery measures from creditors including the ATO.
Please join our webinar with insolvency experts Robert Champney and
Rebecca Forsyth who will discuss with you:
Changes to occur from 25 September - statutory demands, bankruptcy notices, and obligations as a director;
Debt recovery options available to your clients to improve cash flow; and
“Red flags” that determine financial distress, what options are available to restructure, and the need for proactive conversations with your client and legal advisors
Incorporation Stage Issues and Seed Financings Overview w/ Kristine Di BaccoStanford Venture Studio
Which legal entity is best for your startup company? How should you deal with founder stock and other incorporation issues? How should you structure a seed investment? Kristine Di Bacco, Partner at Fenwick & West, will help you answer these important questions, and others, as you think about the process of incorporating and raising seed financing.
Assurance Principal Jennifer Goodman presented "What Was the FASB Thinking?," a discussion and examples of unusual accounting rules, at the 2013 Decosimo Accounting Forum hosted by the University of North Alabama on July 19.
7.23.20 How to Raise Seed Funding for Your Startup: Convertible Notes and S...ideatoipo
Seed financings enable a startup to put together its initial team, build a working prototype, and begin to test the market. Often these investments are made via convertible debt or SAFEs. Veteran Silicon Valley startup and corporate attorney Jason Putnam Gordon will cover the following topics:
1. Required corporate structure
2. Legal considerations when pitching investors for seed financing
3. Differences between using convertible debt and SAFEs
4. Key terms and considerations when raising seed funding
5. Common mistakes and pitfalls that companies make when raising seed funding via convertible debt and SAFEs
6. How to close your seed financing
7. Important post-closing tasks
8. And much, much more
Come with your questions and get ready to be excited about seed financings!
.
About the Speaker
Jason Putnam Gordon is a results-oriented corporate attorney practicing in the Venture Capital and Emerging Growth Companies group in Polsinelli’s San Francisco office. Jason has a passion for working with experienced entrepreneurs and executives to make their vision a reality.
In his practice, he regularly represents companies throughout their life cycle in matters related to venture capital financing, strategic corporate relationships, corporate formation, complex mergers and acquisitions, sales, and divestitures. With industry focuses on consumer goods and technology, because of his broad skill set and deep network, Jason regularly works in wide array of verticals including artificial intelligence, virtual reality, augmented reality, video games, software, hardware, life sciences, the internet of things and agricultural technology.
Jason works with companies based locally, elsewhere in the U.S. and internationally. Jason brings a unique skill set to the negotiating table and to litigation-minimization strategies in the board room. He started his career as a federal law clerk in the United States District Court for the Eastern District of Pennsylvania and then continued as a litigator handling corporate, securities, intellectual property, and commercial litigation before establishing a transactional practice.
Outside of the office, Jason is dedicated to his family and has a passion for skydiving and indoor body flight.
If you have any questions regarding the content of this presentation, you can reach Jason at:
JGordon@polsinelli.com
The leveraged lending market has developed its own set of market terms and conventions, many of which do not exist outside of this market. This webinar gives a basic overview of leveraged finance credit agreements and the legal issues that arise when working on leveraged loans.
Part of the webinar series: LEVERAGED FINANCE 2021
See more at https://www.financialpoise.com/webinars/
The deal is complete, and the parties have finished the hard work. Or have they? Integration planning turns to execution as people, process, and technology are combined once the deal is legally closed. The buyer will need to consider the purchased business or assets from the standpoint of employees, IT, customers, suppliers, and a multitude of other areas. In addition, numerous post-closing legal issues may arise, including purchase price adjustments, breaches of representations and warranties, enforcement of key negative employment-related covenants and restrictive covenants, collection of pre-closing accounts receivable, and true-ups of final financials. This episode guides listeners through the process, timing, and issues which most commonly arise after the closing of deals.
Part of the webinar series:
M&A BOOT CAMP - 2022
See more at https://www.financialpoise.com/webinars/
Similar to FEDCON Summit: Teaming Arrangements (20)
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Memorandum Of Association Constitution of Company.pptseri bangash
www.seribangash.com
A Memorandum of Association (MOA) is a legal document that outlines the fundamental principles and objectives upon which a company operates. It serves as the company's charter or constitution and defines the scope of its activities. Here's a detailed note on the MOA:
Contents of Memorandum of Association:
Name Clause: This clause states the name of the company, which should end with words like "Limited" or "Ltd." for a public limited company and "Private Limited" or "Pvt. Ltd." for a private limited company.
https://seribangash.com/article-of-association-is-legal-doc-of-company/
Registered Office Clause: It specifies the location where the company's registered office is situated. This office is where all official communications and notices are sent.
Objective Clause: This clause delineates the main objectives for which the company is formed. It's important to define these objectives clearly, as the company cannot undertake activities beyond those mentioned in this clause.
www.seribangash.com
Liability Clause: It outlines the extent of liability of the company's members. In the case of companies limited by shares, the liability of members is limited to the amount unpaid on their shares. For companies limited by guarantee, members' liability is limited to the amount they undertake to contribute if the company is wound up.
https://seribangash.com/promotors-is-person-conceived-formation-company/
Capital Clause: This clause specifies the authorized capital of the company, i.e., the maximum amount of share capital the company is authorized to issue. It also mentions the division of this capital into shares and their respective nominal value.
Association Clause: It simply states that the subscribers wish to form a company and agree to become members of it, in accordance with the terms of the MOA.
Importance of Memorandum of Association:
Legal Requirement: The MOA is a legal requirement for the formation of a company. It must be filed with the Registrar of Companies during the incorporation process.
Constitutional Document: It serves as the company's constitutional document, defining its scope, powers, and limitations.
Protection of Members: It protects the interests of the company's members by clearly defining the objectives and limiting their liability.
External Communication: It provides clarity to external parties, such as investors, creditors, and regulatory authorities, regarding the company's objectives and powers.
https://seribangash.com/difference-public-and-private-company-law/
Binding Authority: The company and its members are bound by the provisions of the MOA. Any action taken beyond its scope may be considered ultra vires (beyond the powers) of the company and therefore void.
Amendment of MOA:
While the MOA lays down the company's fundamental principles, it is not entirely immutable. It can be amended, but only under specific circumstances and in compliance with legal procedures. Amendments typically require shareholder
Memorandum Of Association Constitution of Company.ppt
FEDCON Summit: Teaming Arrangements
1. Dra$ing
Enforceable
and
Helpful
Teaming
Arrangements
Presented
By:
Jackson
W.
Moore
Smith,
Anderson,
Blount,
Dorse=,
Mitchell
&
Jernigan,
LLP
www.smithlaw.com
jmoore@smithlaw.com
(919)
821-‐6688
2. Outline
I. Teaming
Agreement
Basics:
JV’s,
TA’s
and
SubK’s
II. Cyberlock
and
Teaming
Agreement
Enforceability
III. Key
ConsideraUons
in
DraVing
a
JV
IV. Key
ConsideraUons
in
DraVing
a
SubK
V. QuesUons
2
4. Teaming
Arrangements
Joint Venture (JV)
FAR 9.601(1)
Teaming Agreement
Prime / Subcontract
(SubK)
FAR 9.601(2)
4
5. Teaming
Agreements:
Joint
Ventures
&
Contracts/Subcontracts
• Joint
Venture
vs.
contractor/subcontractor
– JV:
“Two
or
more
companies
form
a
partnership
or
joint
venture
to
act
as
a
potenUal
prime
contractor”
FAR
9.601(1).
This
includes
mentor-‐protégé
joint
venture
agreements.
– Contractor/Subcontractor:
“A
potenUal
prime
contractor
agrees
with
one
or
more
other
companies
to
have
them
act
as
its
subcontractors
under
a
specified
Government
contract
or
acquisiUon
program”
FAR
9.601(2).
5
6. Teaming
Agreements:
Why
the
Government
Cares
• Groupings
to
compete
for
a
government
contract.
FAR
9.602.
– “[c]omplement
unique
capabiliUes”
– “[o]ffer
the
Government
the
best
combinaUon
of
performance,
cost,
and
delivery
for
the
system
or
product
being
acquired”
• Government
allows
teaming
agreements,
so
long
as
they
follow
government
regulaUons.
FAR
9.603.
• Versus
tradiUonal
B2B
world,
where
joint
ventures
and
prime/subcontract
relaUonships
are:
– Less
regulated
– Without
size
standards
– Without
governmental
oversight.
6
7. Joint
Ventures
• “[C]ompanies
form
a
partnership
or
joint
venture
to
act
as
a
potenUal
prime
contractor”
• Key
Word:
Partnership
• Members
share
profits
and
losses
• Each
Member
has
authority
to:
– make
decisions
that
bind
the
joint
venture
– interact
with
government
• Joint
Venture
has
the
contract
with
the
government
– not
each
member
7
8. Pros
&
Cons
of
a
Joint
Venture
• Pros
– JV
member
has
increased
stature
(vs.
SubK)
– Shared
control
– Individual
firms
can
stay
smaller
longer
• Cons
– Joint
responsibility
for
performance
(vs.
SubK)
– Shared
control
– Lead/Larger
team
member
gives
up
some
control
to
other
team
member
– TerminaUon/unwinding
JV
more
complicated
8
9. Contractor/Subcontractor
• Prime
contractor
enters
into
contract
with
government
– Prime
subcontracts
with
other
team
member
– No
“privity”
between
the
government
and
subcontractor
• Only
Prime
interfaces
with
government
– Prime
controls
contract
– DuUes
are
defined
in
SubK
• No
sharing
of
profits
and
losses
• Subcontractor
paid
according
to
SubK
only
9
10. Requirements
for
Joint
Ventures
• Requirements
Vary
by
Type
of
Team
– SBC/SBC
JV
for
SBC
set
aside.
13
CFR
§
121.103(h)
(3)
– 8(a)/non-‐8(a)
JV
for
8(a)
set-‐aside.
13
CFR
§
124.513
– SDVOSB/SBC
JV
-‐
13
CFR
§
125.15(b)
– WOSB/SBC
JV
-‐
13
CFR
§
127.506
– HUBZone/HUBZone
JV
-‐
13
CFR
§
126.616
10
11. More
Joint
Venture
Requirements
• Generally:
– “Managing
venturer”
must
be
the
small
business.
– “Project
manager”
must
be
the
small
business.
– Small
business
must
perform
percentage
of
the
work
(not
including
administraUve
funcUons).
– A
certain
%
of
profits
may
need
to
go
to
small
business.
– JV
agreement
may
need
to
include
certain
terms.
– JV
may
need
to
show
benefit
to
small
business.
– There
may
be
registraUon
and
reporUng
requirements.
• In
some
cases,
SBA
pre-‐approval
required
for
JV
agreement
11
13. Cyberlock
• A
Detailed
Teaming
Agreement,
and
Not
a
Generic
One,
Is
Needed
Before
the
ParUes
Can
Chase
a
Government
Contract.
• Lawsuit:
Team
members
agreed,
in
wriUng,
that
if
the
prime
bidder
was
awarded
a
contract,
51%
percent
would
be
performed
by
the
prime
and
49%
by
the
teammate
as
a
subcontractor.
Team
members
did
not:
– Agree
how
the
scope
of
work
would
be
divided.
– A=ach
terms
of
subcontract
that
would
be
executed.
• Agreement
noted
that
it
was
possible
parUes
would
not
be
able
to
agree
on
the
terms
of
a
subcontract.
13
14. Cyberlock
• Teammates
prepared
proposal
together.
Prime
won
the
contract
but
teammates
could
not
agree
on
terms
of
the
subcontract.
• Decision:
– No
contract,
an
“agreement
to
agree”
only.
– Teaming
agreement
too
indefinite
to
enforce.
•
Virginia
law
applied,
might
be
appealed
to
Fourth
Circuit.
14
16. IdenVfy
the
Purpose
and
Scope
of
the
JV
• IdenUfy
the
specific
contracts
or
projects
the
JV
is
pursuing
• What
do
you
intend
to
do
and
not
do
• Is
this
a
“Preference”
JV
with
specific
requirements
• Number
of
parUes
• Individuals
vs.
enUUes
• What
tax
and
other
regulatory
issues
will
be
impacted
• Is
this
an
InternaUonal
JV
–
what
local
laws
are
implicated
16
17. IdenVfy
the
Form
of
the
JV
•
•
•
•
•
Populated
vs.
Unpopulated
Jointly
owned
corporaUon
or
group
of
corporaUons
Partnership
LLC
Contractual
(non-‐equity)
JV
–
Informal
and
less
structure
Ø Note:
Issues
affecUng
determinaUon
will
include
tax,
liability,
regulatory,
acquisiUon
strategy,
IP
ownership,
exit
strategies,
etc.
Ø Interim
Le=er
of
Intent
(binding
or
non
binding)
17
18. Governance
of
the
JV
• How
will
be
the
JV
be
managed
(manager
managed,
joint
venturer
managed,
officers,
board
of
directors,
commi=ee)
• Authority
of
the
manager
–
business
decisions,
personnel
decisions,
investment,
distribuUons,
etc.
• Authority
of
the
co-‐venturers
(Members)
–
replace
managers,
individual
vs
consensus
powers,
Ue
breaker,
• MeeUngs
–
frequency,
quorum,
iniUaUon,
locaUon,
etc.
• IdenUfy
acUons
requiring
majority
or
unanimity
approval
of
the
members
or
a
board
18
19. Financial
Decisions
of
the
JV
• How
will
the
JV
be
financed
–
venturer
financed,
3d
party,
credit
line,
venture
capital,
etc.
• AccounUng
pracUces
and
accounts
• DistribuUons
of
profits
and
investment
of
profits
• Responsibility
for
debt
• Who
signs
the
checks
• Audit
procedures
• Financial
reports
–
format,
responsibility,
frequency,
etc.
19
20. Business
Decisions
of
the
JV
•
•
•
•
•
•
Bid
and
Proposal
responsibiliUes
Who
brings
what
to
the
table
Who
makes
the
criUcal
decisions
Who
prepares
and
who
approves
the
budget
Who
prepares
and
who
approves
business
plans
Insurance
for
the
JV
(separate
policy)
20
21. Share
and
Interest
Transfer
RestricVons
of
the
JV
• Normally
no
transfers
permi=ed
except
as
provided
in
agreement
• Transfers
to
affiliates
–
subject
to
agreement,
joint
and
several
• Call
rights
• First
Offer/First
Refusal
• Tag-‐along/drag-‐along
rights
• Buy-‐sell
rights
21
23. IndemnificaVon
&
Insurance
• Mutually
focused
provisions
and
protecUons
• What
should
be
covered
under
insurance
23
24. NonsolicitaVon
and
Noncompete
• Most
complicated
and
sensiUve
to
negoUate
• Address
exposure
of
your
greatest
assets
–
employees
• Exposure
to
compeUUon
• Are
restricUons
reasonable
• DissoluUon
24
25. Exit
and/or
TerminaVon
Rights
• Triggering
Events:
ü Default
–
Material
breaches,
change
of
control,
suspension,
debarment,
etc.
ü No-‐default
–
Deadlocks,
3d
party
offers,
frustraUon
of
business
intent
• ProtecUon
for
Minority
Member(s)
• Treatment
of
JV
debt
• Ongoing
performance
of
contracts
• ValuaUon
of
Exit
Share
25
26. Closing
Process
of
the
JV
•
•
•
•
•
Clearly
define
rights
and
obligaUons
ResignaUon
of
seller’s
representaUves
Guarantees
and
Covenants
of
seller/co-‐venturer
Guarantees
and
Covenants
of
3d
party/buyer
Survival
of
key
terms
in
agreement
26
27.
V.
Dra$ing
a
Teaming
and
SubK
Agreement
(Key
ConsideraVons)
27
28. Teaming
Agreements
• Set
condiUons
for
SubK
• Exclusivity
• Define
contribuUons,
responsibiliUes
and
obligaUons
• Bid
&
Proposal
costs
• AffiliaUon
• Good
faith
and
Ume
limits
for
creaUng
a
SubK
• NDA
and
confidenUality
provisions
• Non-‐compete
&
non-‐solicitaUon
clauses
28
29. Subcontract
Agreements
I
• Ensure
it
tracks
prime
contract
(compliance
term,
period
of
performance,
OCI
plans,
etc.)
• Flow
down
provisions
(term
for
convenience,
term
for
cause,
etc.)
• Approval
of
2nd
Uer
Subcontractors
• RelaUonships
with
the
client
• IP
&
Technology
protecUons
(old
vs.
created)
29
30. Subcontract
Agreements
II
•
•
•
•
•
Breaches
NoUces
to
parUes
TerminaUon
(voluntary
and
involuntary)
Venue
–
will
it
be
exclusive
Choice
of
Law
–
what
law
se=les
disputes
30
32. IndemnificaVon
&
Insurance
• Mutually
focused
provisions
and
protecUons
• What
should
be
covered
under
insurance
32
33. NonsolicitaVon
and
Noncompete
• Most
complicated
and
sensiUve
to
negoUate
• Address
exposure
of
your
greatest
assets
–
employees
• Exposure
to
compeUUon
• Are
restricUons
reasonable
33