October 24th, 2013

Recent developments in respect of the Foreign Corrupt Practices Act (FCPA) and its enforcement have given tech companies more cause for concern in M&A due diligence than ever before. Once a prominent consideration for companies operating in the defense, pharmaceuticals, and financial services sectors, targeted enforcement of the FCPA by the United States Department of Justice (DoJ) and the Securities and Exchange Commission (SEC) in unconventional industries like private equity, insurance, retail, and technology, have prompted such companies to subject themselves to greater internal scrutiny and create risk management strategies that account for the prevailing FCPA-enforcement climate.

Tech-sector businesses are particularly vulnerable to the enforcement drive, ostensibly because of the excessive reliance they place on third-party resellers, distributors, agents and consultants to transact on their behalf in foreign markets. Indeed, the mere existence of clauses in third-party agreements that include “vaguely described services,” or engaging with a third party “closely associated with a foreign official” may attract the application of the FCPA. After Microsoft and IBM, Hewlett-Packard (specifically its Polish division) is the latest big name in the tech industry to be investigated by the DoJ and SEC, as well as the Polish Central Anti-Corruption Bureau, for alleged bribes paid to officials for public sector transactions in Poland, in addition to various other Eastern European countries since 2010.

Since its enactment in 1977 in the wake of the Lockheed and Bananagate bribery scandals, the FCPA has served as a means of regulating the conduct of (1) companies incorporated in the Unites States, (2) companies (including foreign companies) listed on a United States stock exchange, and (3) United States citizens and residents, regardless of their physical presence in the United States – prohibiting the bribing (ambiguously defined as “paying or offering to pay anything of value”) of foreign officials, candidates, and political parties (or any other recipient who can be traced to one of the aforementioned types of entities) with a view to gaining a competitive advantage in foreign markets.

At the same time however, the Act affords little by way of certainty and predictability as to its application, and the issuance of A Resource Guide to the U.S. Foreign Corrupt Practices Act by the DoJ and SEC in late 2012 has done little to remedy the situation at hand. Indeed, clarity on basic concepts such as the scope of the term “foreign official” and more intricate ones such as the recognition of a category of legal “grease payments” specifically designed to expedite the performance of an official’s duties is crucial to avoiding the consequences of a violation, which, once proved, can be crippling – note that the DoJ has, in the past, imposed penalties of up to $450 million for a single violation of the FCPA, and collected over $1 billion in 2010 in FCPA fines and penalties alone.

Moreover, while the FCPA does not envisage private claims, it is not difficult to envision the myriad causes of action that may arise on account of a violation of this enactment – by competitors who have suffered harm as a result of corrupt practices of the company or shareholders who may bring a derivative claim against the management. Indeed, the shift in surveillance and enforcement policy of the authorities responsible for the implementation of the FCPA is understandable, given that despite operating in the same corrupt markets, tech-sector businesses have thus far failed to be held accountable for FCPA violations. Understanding the policy and scheme of the Act, as well as international legal instruments such as the OECD’s Anti-Bribery Convention, coupled with greater due diligence on third-party agents is thus vital for such companies to reduce exposure and remain compliant with anti-bribery legislation in a stagnating global market.

Are Construction Attorneys necessary for a Real Estate Project?

September 26th, 2013

Unfortunately, many things can go wrong in a construction project and proper counseling is necessary to avoid expensive litigation problems. Most common problems that occur in a construction project are to do with payment disputes. Some common aspects where a good Real Estate Attorney can help in the initial process of a construction project are:

–          Initial Contracting

–          Financing

–          Land Use

–          Development Issues

–          Post-Construction Performance

–          Payment and related disputes

Construction disputes can be a long and painful process and you can avoid all this by contacting a good attorney before your start the construction process.

The following is a handy list before you start your construction project. Talk to your attorney regarding the following items ahead of time:

Issues and agreement which may be required for your construction projects

  • Land use and zoning agreements with government entities
  • Eviction and lease agreements if needed
  • Landlord-tenant agreements if needed
  • Water rights agreements
  • Land use permits, including building and development permits
  • Easements
  • Boundary line agreements if needed

Construction projects should be a positive project fostering growth. Litigation is  the last thing you should have to  deal with. Advance consultation with your real estate attorney will ensure your project will be performed and completed in a manner which minimizes your risks and maximizes your return.


September 16th, 2013

As a Silicon Valley law firm specializing in areas which include Mergers and Acquisitions, we come across a lot of real-world situations that small businesses face during the process of merging with/acquiring others. And we thought it would be good to put together this M&A Process so it will be useful for many business owners. This list is not all inclusive, but gives business owners some major points to consider.

12 Step Process for M&A

Any business merger and acquisition can be an aggravating and stressful process. Being organized and having a check list of things to do will help in staying calm and less stressed.

1. List all your potential contacts interested in the business

You can’t buy or sell a business unless you have a list of suitable Sellers or Buyers.

2. Marketing to the Contacts

Connect with the Contacts on Social Media sites like LinkedIn. Setup email blasts in programs like MailChimp and send out targeted campaigns to the potential buyers of the business.

3. Put some thought into the Marketing Email Blasts

Never give the name of the company away. The content should describe the business in such a way so that the potential buyer will be curious to know more.

4. Make sure you sign an NDA

Make sure both the parties involved sign an NDA.

5. Confidential Information Memorandum (CIM) should be prepared

This memorandum should contain all the company information and should be presented to the buyer.

6. Indication of interest (IOI) document must be prepared

This IOI is prepared by the buyer with an approximate quote for the business after valuation.

7. Face to Face Meeting

Seller meets with the Buyer and explains and educates the Buyer on all aspects of the business.

8. Letter of Intent and Offer Letter

Buyer to submit a Letter of Intent and Offer Letter with a firm price and major deal points to the Seller after evaluating all aspects of the business.

9. Business Audit

Buyer should conduct an Audit of the business and make sure all the facts given by the Seller is accurate.

10. Purchase Agreement

A purchase agreement addressing all the legalities that will protect the Buyer and Seller must be written and reviewed by both parties. Do not forget covenants not to compete and non-solicitation provisions!

11. Title Transfer

After signing all the legal documents required, buyer writes a check directly to the seller or deposits it in an escrow account and acquires the company.

12. Closing Business Acquisition

Make sure the Buyer and Seller are still in touch with the business transfer of technology and accounting transfers smoothly until the seller is slowly weaned away.

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