A two-hour presentation on the role of the lawyer in the M&A team, the place of legal due diligence in the overall buyer side's due diligence process, and a review of recent Delaware M&A legal developments. I'm available to give it to your law firm, company, or group.
Legal Due Diligence: Integrating the Legal and Business Parts of the ProcessNow Dentons
This presentation gives an overall look at the due diligence process. It examines the key details of the process and why it is critical for any transactions as well as covers topics including: how a business deal guides the process, the transaction structure, and identifying risks.
Due Diligence - What You Don’t Find Out Will Hurt YouNow Dentons
This presentation focuses on the details of the due dilligence process. It covers the definition and role of due dilligence, provides a legal due diligence checklist and gives an overview of key due dilligence points and mining considerations.
Significance of due diligence as a procedure reportRuchita Sangare
This is my Final Year project for Distance Post Graduation in Finance from Welingkar Institute of Management.
It helps understand Due Diligence with case studys.
Due Diligence - Looking for Gold in the PaperNow Dentons
This presentation focuses on the details of the due dilligence process. It covers the definition and role of due dilligence, provides a legal due diligence checklist and gives an overview of key due dilligence points and mining considerations.
Legal Due Diligence: Integrating the Legal and Business Parts of the ProcessNow Dentons
This presentation gives an overall look at the due diligence process. It examines the key details of the process and why it is critical for any transactions as well as covers topics including: how a business deal guides the process, the transaction structure, and identifying risks.
Due Diligence - What You Don’t Find Out Will Hurt YouNow Dentons
This presentation focuses on the details of the due dilligence process. It covers the definition and role of due dilligence, provides a legal due diligence checklist and gives an overview of key due dilligence points and mining considerations.
Significance of due diligence as a procedure reportRuchita Sangare
This is my Final Year project for Distance Post Graduation in Finance from Welingkar Institute of Management.
It helps understand Due Diligence with case studys.
Due Diligence - Looking for Gold in the PaperNow Dentons
This presentation focuses on the details of the due dilligence process. It covers the definition and role of due dilligence, provides a legal due diligence checklist and gives an overview of key due dilligence points and mining considerations.
This presentation gives an in-depth look at the comprehensive due diligence process. It covers the framework for due diligence, its purpose, and types. This presentation is incrediably valuable for anyone doing or looking to do transactional work.
Learn the best way to start managing commercial contracts. Go from contract files and spreadsheets to an effective, efficient, and profitable contract management system.
Topics covered include:
- What is a contract?
- Why contract management matters
- Turn text to data
- Deal with documents
- Contract portfolio management
- Contract management systems
Clear, practical recommendations to get you started.
Basic Procurement Principle is the module taught at College of Business and Management (CBM-TZ) to all scholars undertaking Basic Technician Certificate in Procurement and Supplies Management
- Why benchmark - and why can it be useful?
- What can we benchmark against, and who can help with the process?
- Benchmarking processes and techniques
- Pros and cons of different benchmarking options
- A suggested model for benchmarking the procurement function
- Developing improvement plans
ESG is best characterized as a framework that helps stakeholders understand how an organization is managing risks and opportunities related to environmental, social, and governance criteria.
This presentation gives an in-depth look at the comprehensive due diligence process. It covers the framework for due diligence, its purpose, and types. This presentation is incrediably valuable for anyone doing or looking to do transactional work.
Learn the best way to start managing commercial contracts. Go from contract files and spreadsheets to an effective, efficient, and profitable contract management system.
Topics covered include:
- What is a contract?
- Why contract management matters
- Turn text to data
- Deal with documents
- Contract portfolio management
- Contract management systems
Clear, practical recommendations to get you started.
Basic Procurement Principle is the module taught at College of Business and Management (CBM-TZ) to all scholars undertaking Basic Technician Certificate in Procurement and Supplies Management
- Why benchmark - and why can it be useful?
- What can we benchmark against, and who can help with the process?
- Benchmarking processes and techniques
- Pros and cons of different benchmarking options
- A suggested model for benchmarking the procurement function
- Developing improvement plans
ESG is best characterized as a framework that helps stakeholders understand how an organization is managing risks and opportunities related to environmental, social, and governance criteria.
Blockchain in capital markets and structured financeEY
The blockchain concept has generated a considerable amount of attention within capital markets, with discussions expanding into practical applications in securitization. Explore considerations around the application of blockchain in capital markets and the proposed applications of blockchain in structured finance.
Materi Workshop Legal Due Diligence (LDD) yang di selenggarakan oleh EMLI Training. Materi di sampaikan oleh Bapak Dendi Adisuryo, beliau adalah Partner at ADCO Attorneys at Law.
Third Party Due Diligence - Know Your Third Party - EY IndiaErnst & Young
Third party due diligence, forensic data analytics and frequent compliance audits form the basis of a strong monitoring system. For more details, visit http://bit.ly/1RQuEGB.
European Banking Barometer – 2016: Seeking stability in an uncertain worldEY
The European Banking Barometer provides an overview of European banking industry, as well as the priorities banks will focus on over in 2016.
Now in its seventh edition, the latest survey consists of 250 interviews with senior bankers across 12 European markets.
Overall, the study shows that the European banking industry is taking measures to reposition for a long-term environment of low growth. But they mustn’t take their focus off the innovation agenda, if they want to lay the foundations for delivering sustainable returns in the years to come.
To find out more please visit http://www.ey.com/ebb.
Unclaimed property historic litigation and legislation May 8, 2017Debera Salam, CPP
Here's the presentation handout and replay link to the Ernst & Young LLP webcast on May 8 about the current legislative and litigation environment affecting unclaimed property.
Alliance One Detectives And Private InvestigatorsAlliance One
Alliance One Detectives is the best agency for corporate investigation in Mumbai. We provide the necessary data to give you the edge in your business dealings and investments.
Our investigations can assist in cases of:
Acquisitions and Mergers
A due diligence report can be produced to investigate the validity of a business aquisition or merger price.
Arbitration Proceedings
Alliance One Detectives can provide information to help settle arbitration proceedings quickly.
Competitive Intelligence
Our due diligence reports can provide you with competitive intelligence allowing you to make more accurate strategic decisions
Civil and Criminal Litigation
Alliance One Detectives can provide detailed information to assist in Civil and Criminal cases.
Corporate and Financial Transactions
Alliance One Detectives’ financial due diligence checks can ensure peace of mind to potential buyers by analysing and validating all the financial, commercial, operational and strategic assumptions being made.
Potential Employee Checks
Alliance One Detectives’s potential employee checks give you all the information you need before bringing someone new into your team.
Financial Information including CCJ’s, Bankruptcy and Credit Checks
Alliance One Detectives can provide comprehensive information on a person’s credit history and assets.
Fraud Prevention and Detection
Alliance One Detectives’ Fraud Prevention checks include confidential investigation of suspicious activities by employees, management, suppliers and clients.
Investments (Business and Personal)
Alliance One Detectives aim to enhance our clients’ investment success by providing intelligence on key risks and benefits associated with each investment.
Pre-sue Reports
If all other possible payment arrangements have been exhausted, bringing a debtor to court may be the only remaining option – in such cases as these, a pre-sue report can provide details to clients as to whether or not a debtor is able to pay.
Tracing Debtors
Alliance One Detectives offer an efficient debtor tracing service, tracking down individuals and companies which have moved premises and changed trading names.
Material Contracts and Agreements
A due diligence report examine the quality of the assets and potential buyer/seller to ensure a safe transaction
Asset Tracing
Alliance One Detectives’ asset tracing reports can uncover someone’s hidden assets, however hard they may try to hide them. These may be in the form of corporate investments, shares, trust funds, undisclosed accounts or loans, possibly abroad.
Best Fraud Investigation Detectives in Mumbai
Alliance One Detectives‘ Insurance fraud investigation team are highly trained at detecting and preventing insurance fraud. We have been involved in many high profile and complex investigations in the past from exaggerating claims to deliberately causing accidents or damage.
Dealing in a digital world - strategies to future-proof your businessEY
As the world goes digital, developing innovation in-house is no longer enough, according to a new study from EY. Instead, with constraints around time and capital, non-tech firms are turning to mergers and acquisitions (M&A), joint ventures and alliances to acquire the innovation they need.
M&A activity in 2014 was dynamic, with more in vitro diagnostics (IVD) transactions compared to the previous two years combined. For 2015 to date, Worldwide IVD transactions (including instrument/reagent manufacturers, genome informatics and reference labs) are on par with 2014 activity although there has been a sharp decline in acquisitions in China. Also, EY’s Medtech Firepower Index shows steady growth in “firepower” – which EY defines as a company’s ability to do M&A based on the strength of its balance sheet -- since 2011, indicating high borrowing capacity and the potential for future transaction execution. In particular, the diagnostics market has seen an emergence of creative deal making between nontraditional partners specifically within oncology, NIPT and MRSA.
EY Valuation & Business Modelling - Luxembourg officeeyluxembourg
The need for transparent and robust valuations to support corporate transactions and to meet regulatory requirements has increased. Justifying the value of assets and liabilities has grown more complex and is increasingly critical for businesses. Our experienced valuation professionals ask the right questions and help you find the right answers.
Die DAX-Konzerne mussten 2016 24 mal ihre Prognosen korrigieren - Rekord. Welche Folgen das für die Unternehmen hat und warum es so schwer geworden ist, genaue Prognosen zu liefern, lesen Sie in einer neuen EY-Studie. Erfahren Sie auch, wie sich die Korrekturen an Gewinn- und Umsatzprognosen der 302 im Prime Standard notierten Unternehmen entwickelt haben.
Watch full webinar here: http://www.firmex.com/Due-Diligence-Best-Practices-and-Pitfalls-sign-up/
LOIs and NDAs signed. Now art meets science with the legal, financial and strategic review of the business. How do you test the value proposition and identify potential risks? Select the best tools to streamline the process? And prepare for regulatory and legal compliance issues arising from legislation like FCPA? Learn what it takes to avoid pitfalls that plague even the most experienced due diligence experts.
EMLI Training-Legal Due Diligence for Acquisition Deal in Indonesian Mining P...EMLI Indonesia
Materi Legal Due Diligence untuk perusahan tambang di Indonesia yang disampaikan oleh Bapak Dendi Adisuryo dalam acara Kursus Intensif Hukum Pertambangan. Acara tersebut di selenggarakan oleh EMLI Trainig, yang hingga saat ini telah memiliki 1000 Alumini dari berbagai jenis latar belakang.
The Six Highest Performing B2B Blog Post FormatsBarry Feldman
If your B2B blogging goals include earning social media shares and backlinks to boost your search rankings, this infographic lists the size best approaches.
Our latest #EY CFO study, Partnering for performance Part 5: the CFO and the chief executive officer (CEO), examines how the CFO’s relationship with their CEO has changed, and joint commitments required to strengthen their alliance. The study is based on a survey of 652 CFOs and interviews with CFOs and CEOs, and covers how leading CFOs and CEOs are partnering together on digital, M&A decisions, performance measurement and operating model redesign. To learn more visit: http://goo.gl/7dnWi6
Three Case Studies (Series: Commercial Litigation Funding 101) Financial Poise
As the legal funding market evolves, so too do the legal/ethical jurisprudence, strategic decisions inherent in utilizing funding, financial instruments used for funding, and nature of funder/funded relationship. In this webinar, a panel of experienced litigation funding professionals examine three live legal funding deals, and discuss how they impact considerations of (i) disclosure of litigation funding, (ii) fee-splitting and non-attorney ownership of law firms, and (iii) financial engineering of innovative funding deals.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/three-case-studies-2020/
"Cross-Border Transactions from a US Perspective” was presented by Martijn Steger on September 12, 2008, to Deutscher Handels-und Gesellschaftsrechtstag in Berlin Germany.
Martijn discussed the attorney/client relationship, due diligence, break-up fees and selected German law provisions that U.S. clients have trouble understanding or accepting.
BUSINESS LAW REVIEW- 2022: Defending White Collar Crime-101Financial Poise
While white collar crimes don’t usually carry the same stigma or penalties as violent crime, the consequences of a conviction, or even an allegation can be devastating. Leaving prison time aside, the business may also face investigation, prosecution and possibly, the risk of reputational damage, financial loss and unwanted exposure.
As governmental enforcement of laws against those accused of white collar crime increases, companies need to understand how to avoid unknowingly acting in ways that may be unlawful, how to prevent and detect potential employee misconduct, and how to react if misconduct does occur.
Part of the webinar series: Business Law Review 2022
See more at https://www.financialpoise.com/webinars/
LEGAL ETHICS – BEST PRACTICES 2022 - How to Avoid Malpractice & Disciplinary ...Financial Poise
This webinar presents basic practice pointers to avoid malpractice and disciplinary actions, and how to respond to claims of malpractice or unethical behavior if they arise. The panel also discusses the role that malpractice insurance plays in these situations and the ramifications of a malpractice judgment or disciplinary action. Model Rules addressed may include: those that govern the client-lawyer relationship (Rules 1.1 through 1.10; 1.13; and 1.16); those that that speak to transactions with persons other than clients (Rules 4.1 through 4.4); those that govern the responsibilities of managing and supervisory lawyers, subordinate lawyers, non-lawyer assistance, independence, unauthorized practice of law, and multijurisdictional practice (Rules 5.1 through 5.5); and those that govern communication, including advertising and solicitation of clients (Rules 7.1 through 7.5).
Part of the webinar series: LEGAL ETHICS – BEST PRACTICES 2022
See more at https://www.financialpoise.com/webinars/
Insider Lease Agreements (Series: Fairness Issues in Real Estate-Based Bankru...Financial Poise
It is a common play in real estate to create a separate operating entity to serve as a tenant and execute a lease between the owner of the property and himself. Typically, this happens in assets which serve as a real estate-based business, such as a retail property. The structured enables the operator to reduce the taxable income of the business and also provide a liability shield for the property owner.
This arrangement can lead to some ethical issues, should the property owner become distressed. For example, is the lease amount above market and therefore being used to inflate the property valuation? Is rent actually being paid? Is there a proper lease in place or just an internal handshake? Attorneys need to understand the set-up in order to know what is in bounds and what is outside the lines.
To view the accompanying webinar, go to:https://www.financialpoise.com/financial-poise-webinars/insider-lease-agreements-2021/
Common Issues and Strategies in Business Breakups (Series: Complex Financial ...Financial Poise
As any entrepreneur will attest, starting and operating a business comes with unique challenges. These challenges are a key reason that, by some estimates, half of the companies that are founded today will not exist four years from now. It can be argued that the effort and attention needed to find success precludes business owners from planning for failure. This webinar focuses on the realities of a failing business from the owners’ perspective. Join our panel of experts as they discuss the various considerations that should be given at the outset of start-up negotiations and through business breakup, including dispute negotiation and litigation.
To listen to this webinar on-demand, go to: https://www.financialpoise.com/financial-poise-webinars/common-issues-strategies-business-breakups-2020/
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/
While some people know a little about the litigation finance industry, few have an in-depth understanding of the industry, the different ways that litigation finance can benefit attorneys and their clients, and the process of securing financing. This webinar focuses on the different aspects of the commercial litigation finance industry, the different uses of litigation funding, different types of investment structures and the documents used for litigation finance arrangements, and the key provisions in the agreements.
Part of the webinar series: Commercial Litigation Funding 2022.
See more at https://www.financialpoise.com/webinars/
It is a common play in real estate to create a separate operating entity to serve as a tenant and execute a lease between the owner of the property and himself. Typically, this happens in assets which serve as a real estate-based business, such as a retail property. The structured enables the operator to reduce the taxable income of the business and also provide a liability shield for the property owner. However, this arrangement can easily lead to some ethical issues, should the property owner become distressed. Where is the line between a savvy real estate strategy and unethical behavior? This webinar presents practice pointers on how to use the ABA Model Rules as a guide to navigating ethical issues in Insider Lease Agreements. Model Rules addressed include those that govern the client-lawyer relationship (Rule 1.7: Conflict of Interest: Current Clients); those that speak to the need for candor toward the tribunal and fairness to an opposing party and counsel (Rule 3.3 through 3.4); and the necessity for truthfulness in statements to others and issues surrounding unrepresented persons (i.e. Rule 4.3).
Part of the webinar series: ETHICAL ISSUES IN REAL ESTATE-BASED BANKRUPTCIES 2022
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.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/post-closing-issues-integration-potential-buyer-seller-disputes-2021/
The engagement involved a dispute between a ceding company and a reinsurer over final balances due between them in an effort to commute a book of business.
Although the prohibition on taking of organizational opportunities is well established, the standards applied to this problem in corporate law disputes are vague and imprecise. Corporate directors and officers lack clear guidance as to when a business venture may be taken for themselves or must first be offered to the corporation. This article reviews the relevant Delaware case law, focusing on the ambiguities inherent therein. It then offers a proposed alternative regime, providing greater certainty and predictability.
The article then turns the question of why Delaware courts have resisted adopting a more determinate standard, such as the one offered here. It argues that — at least in this context — Delaware judges are concerned neither with maximizing the number of Delaware incorporations or promoting the interests of the Delaware bar. Instead, mandatory indeterminacy with respect to corporate opportunities is driven by the Delaware courts’ self-interest in maximizing their reputation.
In the Parable of the Talents, neither the master nor any of the servants make any appeal to legal standards, but it seems improbable that there was no background set of rules against which the story played out. To the legal mind, the Parable thus raises some interesting questions: What was the relationship between the master and the servant? What were the servants’ duties? How do the likely answers to those questions map to modern relations, such as those of principal and agent? Curiously, however, there are almost no detailed analyses of these questions in Anglo-American legal scholarship.
Revitalizing Rule 14a-8's ordinary business exclusion for shareholder proposalsStephen Bainbridge
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.
This deck presents an introduction and overview of the so-called Benefit Corporation (a.k.a. the Public Benefit Corporation). It contrasts benefit corporations to related entities such as B Corps, flexible purpose corporations, non-profit corporations, and traditional business corporations.
This presentation provides an overview of several perspectives on corporate social responsibility, including a review of the famous Berle-Dodd debate of the 1930s and Milton Friedman's very famous NY Times article.
I've put together a report for a family meeting to choose our next car. We want a compact SUV that can be flat towed behind our Itasca Navion motorhome. When various other filters are applied we ended up with four choices: Chevrolet Equinox, GMC Terrain, Jeep Cherokee, and Jeep Wrangler. This report provides an overview of the pros and cons of the various cars.
I'm giving a talk today at the 2014 National Business Law Scholars Conference on the pending Supreme Court decision in Halliburton Co. v. Erica P. John Fund, Inc. It would have been easier, of course, if the Supreme Court had decided the case by now, but ....
Director versus Shareholder Primacy in New Zealand Company Law as Compared to...Stephen Bainbridge
Any model of corporate governance must answer two basic sets of questions: (1) Who decides? In other words, when push comes to shove, who has ultimate control? (2) Whose interests prevail? When the ultimate decision maker is presented with a zero sum game, in which it must prefer the interests of one constituency class over those of all others, whose interests prevail?
On the means question, prior scholarship has almost uniformly favored either shareholder primacy or managerialism. On the ends question, prior scholarship has tended to favor either shareholder primacy or various stakeholder theories. In contrast, this author has proposed a “director primacy” model in which the board of directors is the ultimate decision maker but is required to evaluate decisions using shareholder wealth maximization as the governing normative rule.
Shareholder primacy is widely assumed to be a defining characteristic of New Zealand company law. In assessing that assumption, it is essential to distinguish between the means and ends of corporate governance. As to the latter, New Zealand law does establish shareholder wealth maximization as the corporate objective. As to the former, despite assigning managerial authority to the board of directors, New Zealand company law gives shareholders significant control rights.
Comparing New Zealand company law to the considerably more board-centric regime of U.S. corporate law raises a critical policy issue. If the separation of ownership and control mandated by the latter has significant efficiency advantages, as this article has argued, why has New Zealand opted for a more shareholder-centric model? The most plausible explanation focuses on domain issues, which suggest that there are a small number of New Zealand firms for which director primacy would be optimal. The unitary nature of the New Zealand government may also be a factor, because the competitive federalism inherent in the U.S. system of government promotes a race to the top in which efficient corporate law rules are favored.
New Zealand Takeovers Code versus USA Williams Act and Delaware Corporate LawStephen Bainbridge
I was privileged to guest lecture the Takeovers course at the University of Auckland Faculty of Law on May 22, 2014. This presentation provides an overview of some key differences between the New Zealand Takeovers Code and US law.
Shareholder Activism in the United States: Managing Shareholder InterventionsStephen Bainbridge
This is a presentation I gave at the University of Auckland Faculty of Law on May 19, 2014. It is based on my paper Preserving Director Primacy by Managing Shareholder Interventions (August 27, 2013), which is available at SSRN: http://ssrn.com/abstract=2298415.
Even though the primacy of the board of director primacy is deeply embedded in state corporate law, shareholder activism nevertheless has become an increasingly important feature of corporate governance in the United States. The financial crisis of 2008 and the ascendancy of the Democratic Party in Washington created an environment in which activists were able to considerably advance their agenda via the political process. At the same time, changes in managerial compensation, shareholder concentration, and board composition, outlook, and ideology, have also empowered activist shareholders.
There are strong normative arguments for disempowering shareholders and, accordingly, for rolling back the gains shareholder activists have made. Whether that will prove possible in the long run or not, however, in the near term attention must be paid to the problem of managing shareholder interventions.
This problem arises because not all shareholder interventions are created equally. Some are legitimately designed to improve corporate efficiency and performance, especially by holding poorly performing boards of directors and top management teams to account. But others are motivated by an activist’s belief that he or she has better ideas about how to run the company than the incumbents, which may be true sometimes but often seems dubious. Worse yet, some interventions are intended to advance an activist’s agenda that is not shared by other investors.
This paper proposes managing shareholder interventions through changes to the federal proxy rules designed to make it more difficult for activists to effect operational changes, while encouraging shareholder efforts to hold directors and managers accountable.
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.
Studying law in the united states-A guide for foreign LLM candidatesStephen Bainbridge
This is a brief overview for foreign law graduates considering pursuing an LLM degree at a U.S. law school, with specific application to the UCLA School of Law.
A review of insider trading law, with emphasis on its application to recent cases involving hedge funds. Reviews Preet Bharara’s scorecard, the Galleon case, materiality and the “Mosaic Theory," and tipping chains.
Defending the Board Centric Model of Corporate GovernanceStephen Bainbridge
All organizations must have some mechanism for aggregating the preferences of the organization’s constituencies and converting them into collective decisions. As Kenneth Arrow explained in work that provided the foundation on which the director primacy model was constructed, such mechanisms fall out on a spectrum between “consensus” and “authority.” Consensus-based structures are designed to allow all of a firm’s stakeholders to participate in decision making. Authority-based decision-making structures are characterized by the existence of a central decision maker to whom all firm employees ultimately report and which is empowered to make decisions unilaterally without approval of other firm constituencies. Such structures are best suited for firms whose constituencies face information asymmetries and have differing interests. It is because the corporation demonstrably satisfies those conditions that vesting the power of fiat in a central decision maker—i.e., the board of directors—is the essential characteristic of its governance.
Shareholders have widely divergent interests and distinctly different access to information. To be sure, most shareholders invest in a corporation expecting financial gains, but once uncertainty is introduced shareholder opinions on which course will maximize share value are likely to vary widely. In addition, shareholder investment time horizons vary from short-term speculation to long-term buy-and-hold strategies, which in turn is likely to result in disagreements about corporate strategy. Likewise, shareholders in different tax brackets are likely to disagree about such matters as dividend policy, as are shareholders who disagree about the merits of allowing management to invest the firm’s free cash flow in new projects.
As to Arrow’s information condition, shareholders lack incentives to gather the information necessary to actively participate in decision making. A rational shareholder will expend the effort necessary to make informed decisions only if the expected benefits outweigh the costs of doing so. Given the length and complexity of corporate disclosure documents, the opportunity cost entailed in making informed decisions is both high and apparent. In contrast, the expected benefits of becoming informed are quite low, as most shareholders’ holdings are too small to have significant effect on the vote’s outcome. Accordingly, corporate shareholders are rationally apathetic.
In sum, it would be surprising if the modern public corporation’s governance arrangements attempted to make use of consensus-based decision making anywhere except perhaps within the central decision-making body at the apex of a branching hierarchy. Given the collective action problems inherent with such a large number of potential decision makers, the differing interests of shareholders, and their varying levels of knowledge about the firm, it is “cheaper and more efficient to transmit all the pieces of information to a central place.
How to Obtain Permanent Residency in the NetherlandsBridgeWest.eu
You can rely on our assistance if you are ready to apply for permanent residency. Find out more at: https://immigration-netherlands.com/obtain-a-permanent-residence-permit-in-the-netherlands/.
WINDING UP of COMPANY, Modes of DissolutionKHURRAMWALI
Winding up, also known as liquidation, refers to the legal and financial process of dissolving a company. It involves ceasing operations, selling assets, settling debts, and ultimately removing the company from the official business registry.
Here's a breakdown of the key aspects of winding up:
Reasons for Winding Up:
Insolvency: This is the most common reason, where the company cannot pay its debts. Creditors may initiate a compulsory winding up to recover their dues.
Voluntary Closure: The owners may decide to close the company due to reasons like reaching business goals, facing losses, or merging with another company.
Deadlock: If shareholders or directors cannot agree on how to run the company, a court may order a winding up.
Types of Winding Up:
Voluntary Winding Up: This is initiated by the company's shareholders through a resolution passed by a majority vote. There are two main types:
Members' Voluntary Winding Up: The company is solvent (has enough assets to pay off its debts) and shareholders will receive any remaining assets after debts are settled.
Creditors' Voluntary Winding Up: The company is insolvent and creditors will be prioritized in receiving payment from the sale of assets.
Compulsory Winding Up: This is initiated by a court order, typically at the request of creditors, government agencies, or even by the company itself if it's insolvent.
Process of Winding Up:
Appointment of Liquidator: A qualified professional is appointed to oversee the winding-up process. They are responsible for selling assets, paying off debts, and distributing any remaining funds.
Cease Trading: The company stops its regular business operations.
Notification of Creditors: Creditors are informed about the winding up and invited to submit their claims.
Sale of Assets: The company's assets are sold to generate cash to pay off creditors.
Payment of Debts: Creditors are paid according to a set order of priority, with secured creditors receiving payment before unsecured creditors.
Distribution to Shareholders: If there are any remaining funds after all debts are settled, they are distributed to shareholders according to their ownership stake.
Dissolution: Once all claims are settled and distributions made, the company is officially dissolved and removed from the business register.
Impact of Winding Up:
Employees: Employees will likely lose their jobs during the winding-up process.
Creditors: Creditors may not recover their debts in full, especially if the company is insolvent.
Shareholders: Shareholders may not receive any payout if the company's debts exceed its assets.
Winding up is a complex legal and financial process that can have significant consequences for all parties involved. It's important to seek professional legal and financial advice when considering winding up a company.
Responsibilities of the office bearers while registering multi-state cooperat...Finlaw Consultancy Pvt Ltd
Introduction-
The process of register multi-state cooperative society in India is governed by the Multi-State Co-operative Societies Act, 2002. This process requires the office bearers to undertake several crucial responsibilities to ensure compliance with legal and regulatory frameworks. The key office bearers typically include the President, Secretary, and Treasurer, along with other elected members of the managing committee. Their responsibilities encompass administrative, legal, and financial duties essential for the successful registration and operation of the society.
Military Commissions details LtCol Thomas Jasper as Detailed Defense CounselThomas (Tom) Jasper
Military Commissions Trial Judiciary, Guantanamo Bay, Cuba. Notice of the Chief Defense Counsel's detailing of LtCol Thomas F. Jasper, Jr. USMC, as Detailed Defense Counsel for Abd Al Hadi Al-Iraqi on 6 August 2014 in the case of United States v. Hadi al Iraqi (10026)
NATURE, ORIGIN AND DEVELOPMENT OF INTERNATIONAL LAW.pptxanvithaav
These slides helps the student of international law to understand what is the nature of international law? and how international law was originated and developed?.
The slides was well structured along with the highlighted points for better understanding .
M&A Law: The Lawyer's Role; Recent Delaware Developments
1. UCLA Anderson Executive Education present:
MERGERS & ACQUISITIONS:
DUE DILIGENCE AND LEGAL
ISSUES
Professor Stephen M. Bainbridge
UCLA School of Law
Thursday, April 14, 2016
7. WHAT NON-LEGAL ISSUES SHOULD
MY COUNSEL RAISE WITH ME?
» What happens if XYZ happens?
» Loss of key customers
» Loss of key suppliers
» Loss of key employees (including the
seller)
» Litigation
» What happens if XYZ does not happen?
» Approval of the transaction
» Approval needed for the business
8. WHAT NON-LEGAL ISSUES SHOULD
MY COUNSEL RAISE WITH ME?
» Rep and warranty insurance
» Insurance impact
» Employment agreements/policies
» Benefit plans
9. WHAT NON-LEGAL ISSUES SHOULD
MY COUNSEL RAISE WITH ME?
» IT
» How does this effect your loan
covenants?
» SEC reporting requirements?
» Third party shareholder representative
» Escrow provider
15. PERSONNEL INTERVIEWS
» Identify the right people to be
interviewed:
Rights and PermissionsContracts Department
MIS/Technology Officer
Senior Executives
Inside & Outside
Counsel
Charged with web site
development/sales/subscriptions?
CFO (liens, security interest)
Licensing
Litigation
Company Policy
People
22. DUE DILIGENCE PROCESS
OVERVIEW
A- Preparation:
Research,
understand,
value and help
the company
avoid or
minimize risks
B- Focus: (1)-
contingent
liabilities (2)-
material
contracts of the
target (3)-
employee (4)-
restrictions on
the conduct of
target business
C-Data
Collection:
-gathering
data,
-interviews
D-Assessing
Data (1)-
Check all
relevant
regulatory
filings
documents,
(2)-Check
press reports,
(3)-Check
company and
affiliates
websites, (4)-
talk or
interview
former
employee,
directors,…
(5) watch
everything
about the
company
E-Data
Analysis
techniques:
coding,
identify
pattern for
comparisons
purpose,
codes can be
based on:
themes,
ideas,
concepts,
terms,
phrases or
keywords
F-Data
Reporting:
very well
written,
organized and
detailed
documents:
memo style,
working
paper style,
book style,
news articles
style or
teaching
materials
style.
2 2
28. Standards of Review
Chen v. Howard Anderson (Del. 2014)
BJR
BoD were disinterested and
independent
E.g., Arms-length mergers with
no deal protection devices
Enhanced Scrutiny
BoD faced “potential conflicts of interest because of the decisional
dynamics present in particular recurring and recognizable situation”
E.g., Takeover defenses, sales of control, deal protection devices
Unocal
{Blasius)
Revlon
Fairness
BOD confronted actual conflicts
of interest such that the
directors making the decision did
not comprise a disinterested and
independent board majority
E.g., Freeze-outs and other COI
transactions
33. LAWYER’S ROLE
» Leo Herzel & Leo Katz, Smith v. Van Gorkom: The
Business of Judging Business Judgment, 41 Bus.
Law. 1187, 1191 (1986)
» Van Gorkom resulted in “greater formalism on the
part of the board, as it goes about the business of
cultivating an aura of care, diligence, thoroughness,
and circumspection,” and this meant “more reliance
on and more fees for lawyers, investment bankers,
accountants,” and other advisors.
» Attorneys explain the Van Gorkom decision itself and its
interpretation of “due care.”
» Attorneys provide counsel to corporate directors and
officers in the construction and maintenance of an
acceptable takeover process.
» Due diligence and output memo/board briefing key
elements
S t e p h e n M .
B a i n b r i d g e ( c )
2 0 1 5
3 3
34. MARKET TEST
Revlon TriggeredRevlon Not Triggered
Duty of Care (duty to be
fully informed)
Duty of Loyalty (duty of
good faith)
Duty of Complete
Disclosure (Delaware)
Generally, Business
Judgment Rule Review
General Fiduciary Duties
(Care, Loyalty, Disclosure)
Duty to seek “the highest
value reasonably
obtainable for
stockholders”
Enhanced Scrutiny
Duty to “act in a
fully informed
manner, and in
good faith, to
obtain the best
deal available”
S T E P H E N M . B A I N B R I D G E ( C )
2 0 1 5
3 4
35. THE BORDERS OF REVLON-LAND
» Arnold v. Society for Sav. Bancorp, Inc., 650 A.2d
1270 (Del. 1994) :
» The directors of a corporation “have the obligation of
acting reasonably to seek the transaction offering the
best value reasonably available to the stockholders,”
in at least the following three scenarios:
» “when a corporation initiates an active bidding process
seeking to sell itself or to effect a business reorganization
involving a clear break-up of the company”;
» “where, in response to a bidder’s offer, a target abandons
its long-term strategy and seeks an alternative transaction
involving the break-up of the company”; or
» when approval of a transaction results in a “sale or change
of control.” In the latter situation, there is no “sale or
change in control” when “‘[c]ontrol of both [companies]
remain[s] in a large, fluid, changeable and changing
market.’”
3 5
36. CHANCERY THINKS FORM OF
CONSIDERATION MATTERS
All stock
• No change of
control
• No Revlon
duties
Mixed stock (67%)
and cash (33%)
• No change of
control per
Santa Fe (Del
1995)
• No Revlon
duties
Mixed stock (50%)
and cash (50%)
• Change of
control per
Smurfit-Stone
(Del Ch 2011)
• Revlon duties
All Cash
• Change of
control per
Nymex (Del Ch
2009) dicta
• Revlon duties
3 6
38. GO SHOP CLAUSES
» A “go-shop” is a provision in a merger agreement
that allows a target to solicit interest from potential
buyers of the company for a limited period of time
(typically between 20-55 days) after signing a
definitive agreement with an initial buyer.
» The right to solicit includes the ability to exchange
confidential information about the target with a
potential buyer so long as the potential buyer signs a
confidentiality agreement that is substantially on the
same terms as the confidentiality agreement signed
with the initial buyer.
» Once the go-shop period ends, the target typically is
subject to the customary “no-shop” prohibitions
against soliciting other bidders or engaging in
negotiations except in response to an unsolicited offer
that could reasonably be expected to lead to a
superior transaction.
S T E P H E N M . B A I N B R I D G E ( C )
2 0 1 5
3 8
39. IMPACT OF GO SHOP CLAUSES
» Typically used where target initially
negotiates with single bidder rather than
conducting an auction
» Provides a “market check” on price
adequacy
» More common where (1) a financial
buyer (2) uses all cash financing and (3)
the target has low valuation uncertainty
» Typically result in significant price
improvement even if no competing
bidder emerges
S T E P H E N M . B A I N B R I D G E ( C )
2 0 1 5
3 9
The goal is to find the bugs before the buyer's counsel discovers them for you (which would be embarrassing as well as costly from a negotiating perspective) and to get as many of the bugs out as possible before the first buyer is considered. For example, now may be the time to resolve any disputes with minority shareholders, complete the registration of copyrights and trademarks, deal with open issues in your stock option plan, or renew or extend your favorable commercial leases.
It may also be a good time to set the stage for the prompt response of those third parties whose consent may be necessary to close the transaction, such as landlords, bankers, key customers, suppliers, or venture capitalists. In many cases, there are contractual provisions that can prevent an attempted change in control without such consent. For those bugs that can't be exterminated, don't try to hide them under the carpet. Explain the status of any remaining problems to the prospective buyers and negotiate and structure the ultimate deal accordingly.
In any significant merger or acquisition, the buyer gathers information about what it is buying before making a commitment. The buyer uses this information to decide whether the proposed acquisition would make a sound commercial investment and to determine the issues relevant to the merger.
In an extreme case, a buyer can decide to abandon the transaction after performing due diligence, but more commonly (in a negotiated deal) a buyer uses the information to negotiate certain contractual provisions (such as conditions to closing) or to adjust the merger consideration.
Generally, the representations and warranties do not survive the closing in public mergers and a buyer is not protected against losses through indemnification provisions. As a result, completing a thorough due diligence investigation is of critical importance since the buyer cannot recover losses after closing.
Because of the SEC's disclosure requirements, a significant amount of information about potential target companies is freely available to the public . Consequently, public company due diligence reviews usually proceed at a much quicker pace than that of a private company.
Deal structure. For example, in a reverse triangular merger, anti-assignment clauses pose no concern for the buyer (although change of control clauses are a concern).
Industry. The industry of the target company can influence what areas of due diligence you concentrate on. For example, acquisition of a pharmaceutical company requires extensive intellectual property due diligence by the buyer.
Global presence. If the target business has global operations, it is important to assess its compliance with the requirements of the Foreign Corrupt Practices Act of 1977 (see Practice Note, M&A Due Diligence: Assessing Compliance and Corruption Risk).
Competition. If the buyer and target company compete with each other, they may want to (or be required by antitrust laws) keep certain information confidential (such as, pricing) until after the transaction is consummated (see Box, Competitively Sensitive Information).
It is helpful to develop a system for organizing the materials at the outset. A common way to organize materials is to place all due diligence items in folders with labels indicating the name of the document and index reference. Often a paralegal can help with this process.
Some information is difficult to learn from just reading documents. The buyer often asks to visit the target company site and talk with members of management. It can be helpful for some members of the legal team to participate in these meetings with management (sometimes called management presentations) to understand the operations of the business.
For more insight into the target's legal framework and existing issues, buyer's counsel should meet, or hold a teleconference, with the target company's general counsel or other in-house legal staff at the outset of the due diligence review.
A final meeting or teleconference allows you to ask follow-up questions concerning due diligence materials and to receive complete answers based on your questions.
Common issues to consider include:
Capitalization and equity ownership. Is there a stockholder or group of stockholders that has control of, or a significant stake in, the target company? Are there any subsidiaries? What equity is outstanding? How much equity is authorized? Is there room for further issuances?
Consent issues. Are any votes or consents required in connection with the transaction? What actions require consent of stockholders or the board of directors?
Special rights of stockholders. Is there a poison pill? What are the triggering events? What is required to amend the plan or redeem the rights?
Dividends. What is the dividend policy? Can the board of directors change this policy without a vote?
Unusual provisions. Look for any provisions that could impact the transaction or future operation of the target company. For example, you should note if a stockholder is guaranteed representation on the board of directors.
Minutes of meetings of board of directors and committees of the board. Common issues to consider include:
Contingent liabilities. Look for any discussions regarding claims against the target company or its management, defaults under agreements, threatened litigation, labor or employment concerns, and investigations involving the target company or its employees.
Parties. Who are the parties to the contract?
Change of control. Is there a change of control provision? Does this transaction constitute a change of control? See Box, Assignment and Change of Control.
Assignment. Is the contract assignable? Is consent required? How is an assignment defined? Does the transaction structure require an assignment? Does a change of control constitute an assignment? See Box, Assignment and Change of Control.
Termination. When does the contract terminate? Is there an automatic renewal provision? Can either party terminate without consent? Does a change of control give either party a right to terminate the contract?
Unusual provisions. Look for any provisions that could impact the transaction or future operation of the target company. Are there any provisions restricting the target company or provide benefits to the other party? For example, you should note a most favored nation provision, non-compete provision or exclusivity provision.
Contingent obligations. It is important to note any contingent obligations such as guarantees. It is also important to note if any debt is guaranteed by third parties (for example, a parent company guaranty).
Restrictive covenants. Look for any restrictive covenants impacting the transaction or future operation of the target company.
Sarbanes-Oxley compliance. Consider:
Certifications. What is the process for the CEO and CFO certifications?
Control procedures. What are the internal control and disclosure control procedures?
Auditor independence. How is auditor independence established? Are there any non-audit services provided by the company's independent auditors?
Committees. What is the composition for the various committees (audit, compensation, and nominating)? Are the charters consistent with the Sarbanes-Oxley requirements?
Focus:
(1)- contingent liabilities (pending litigation, environmental unresolved cases or other problems
(2)-material contracts of the target (contingent contracts)
(3)-employee issues (union contracts, executive compensation contracts,…)
(4)- restrictions on the conduct of target business (Div’d…)
2015 amendments to the DGCL added new Section 115 to the DGCL authorizing the certificate of incorporation or bylaws of a Delaware corporation to include a forum selection clause requiring that lawsuits asserting “internal corporate claims,” including derivative actions, be brought solely and exclusively in the Delaware courts (including the federal court). Internal corporate claims are claims based on a violation of a duty by a current or former director or officer or stockholder in such capacity, and other claims as to which the DGCL confers jurisdiction upon the Delaware Court of Chancery.
QVC-Paramount and Barkan line of cases makes clear that an auction is not necessary to satisfy duty to be informed
But deal protection measures adopted without a market test must not unduly inhibit the ability of the board of a target company to negotiate with other potential bidders to obtain the highest possible value for the target’s stock