Course1

Planning with Single Member LLCs, Part 2

$65.00

Single Member LLCs are among the most flexible vehicles in business and real estate transactions.  Creatures of state law, they are “nothing” for federal income tax purposes.  They can be used to minimize tax and liability with maximum organizational flexibility. They may be used in conjunction with S Corps and general partnerships in business and real estate transactions. But there are also substantial limits and traps.  Among the traps is that their limited liability can be pierced more easily through equitable doctrines to personal liability. There are also many potential tax traps.  This program will provide you with a real-world guide to organizing and using Single Member LLCs in transactions. Day 1: Classification of LLCs for income tax purposes – what does “nothing” mean? Formation and organizational issues – how they differ from multi-member LLCs Relationship to S Corps – as owners, as subsidiaries, as Single Member LLCs themselves Single Member LLCs as charities or as property of charities – and gifting issues Merger and acquisition issues involving Single Member LLCs Series LLCs as an alternative to commonly owned Single Member LLCs   Day 2: Changes in tax classification of Single Member LLCs Single Member LLCs and general partnerships – which may own which? Piercing the veil of a Single Member LLC Compensation issues and traps Use of charging orders against Single Member LLC distributions Use of SMLCCs in real estate transactions, including Like-Kind Exchanges State tax and excise tax overview   Speakers: Paul Kaplun is a partner in the Washington, D.C. office of Venable, LLP where he has an extensive corporate and business planning practice, and provides advisory services to emerging growth companies and entrepreneurs in a variety of industries. He formerly served as an Adjunct Professor of Law at Georgetown University Law Center, where he taught business planning.  Before entering private practice, he was a Certified Public Accountant with a national accounting firm, specializing in corporate and individual income tax planning and compliance.  Mr. Kaplun received his B.S.B.A., magna cum laude, from Georgetown University and J.D. from Georgetown University Law Center. Elizabeth Fialkowski Stieff is an attorney in the Baltimore, Maryland office of Venable, LLP, where her practice focuses on corporate advisory matters, including mergers, acquisitions, and joint ventures, as well as tax controversies.  Prior to joining Venable, she was an associate in corporate and securities practice at a national law firm, where she advised clients on a variety of federal and state tax issues.  Before entering private practice, she served as a judicial clerk to Judge L. Paige Marvel of the United States Tax Court.  Ms. Stieff earned her B.A. from John Hopkins University and her J.D. and LL.M. from Georgetown University Law Center.

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Course1

Planning with Single Member LLCs, Part 1

$65.00

Single Member LLCs are among the most flexible vehicles in business and real estate transactions.  Creatures of state law, they are “nothing” for federal income tax purposes.  They can be used to minimize tax and liability with maximum organizational flexibility. They may be used in conjunction with S Corps and general partnerships in business and real estate transactions. But there are also substantial limits and traps.  Among the traps is that their limited liability can be pierced more easily through equitable doctrines to personal liability. There are also many potential tax traps.  This program will provide you with a real-world guide to organizing and using Single Member LLCs in transactions. Day 1: Classification of LLCs for income tax purposes – what does “nothing” mean? Formation and organizational issues – how they differ from multi-member LLCs Relationship to S Corps – as owners, as subsidiaries, as Single Member LLCs themselves Single Member LLCs as charities or as property of charities – and gifting issues Merger and acquisition issues involving Single Member LLCs Series LLCs as an alternative to commonly owned Single Member LLCs   Day 2: Changes in tax classification of Single Member LLCs Single Member LLCs and general partnerships – which may own which? Piercing the veil of a Single Member LLC Compensation issues and traps Use of charging orders against Single Member LLC distributions Use of SMLCCs in real estate transactions, including Like-Kind Exchanges State tax and excise tax overview   Speakers: Paul Kaplun is a partner in the Washington, D.C. office of Venable, LLP where he has an extensive corporate and business planning practice, and provides advisory services to emerging growth companies and entrepreneurs in a variety of industries. He formerly served as an Adjunct Professor of Law at Georgetown University Law Center, where he taught business planning.  Before entering private practice, he was a Certified Public Accountant with a national accounting firm, specializing in corporate and individual income tax planning and compliance.  Mr. Kaplun received his B.S.B.A., magna cum laude, from Georgetown University and J.D. from Georgetown University Law Center. Elizabeth Fialkowski Stieff is an attorney in the Baltimore, Maryland office of Venable, LLP, where her practice focuses on corporate advisory matters, including mergers, acquisitions, and joint ventures, as well as tax controversies.  Prior to joining Venable, she was an associate in corporate and securities practice at a national law firm, where she advised clients on a variety of federal and state tax issues.  Before entering private practice, she served as a judicial clerk to Judge L. Paige Marvel of the United States Tax Court.  Ms. Stieff earned her B.A. from John Hopkins University and her J.D. and LL.M. from Georgetown University Law Center.

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Revenue Share Agreements in Business

$65.00

Businesses frequently pool resources – capital, intellectual property, talent, other property – to pursue certain commercial opportunities.  In these arrangements, the companies involved agree to share revenue.  The concept is straight-forward but, as whenever finance meets the law, the implementation is more complex. Successful revenue share agreements depend on carefully defining gross revenue, allocable costs, and shareable revenue.  If these and other categories are not carefully planned and drafted, clients risk losing the benefit of their bargain and that loss may result in litigation. This program will provide you with a practical guide to drafting revenue share arrangements in business transactions. How companies use revenue share arrangements in business transactions Counseling clients about the benefits and risks of revenue sharing Defining the “pie” – how references to “gross revenue” can lead drafters astray Allocation of cash and non-cash expenses for purposes of defining sharable revenue Preferential returns of capital contributions before the revenue share   Speaker: Sara Sharp is a partner in the Denver office of SK&S Law Group, where her she has an extensive business and real estate practice.  She represents companies in a variety of industries and stages of development, from early-stage startups to Fortune 500 public companies. She advises clients in commercial transactions, drafting and negotiating enterprise-level agreements, reviewing and negotiating vendor contracts, and in intellectual property matters.  Ms. Sharp received her B.A. from Northeastern State University and her J.D. from the University of Tulsa College of Law.

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Selling to Consumers: Sales, Finance, Warranty & Collection Law, Part 2

$65.00

  There is no larger market than sales of goods to consumers.  Though the opportunities for your clients are vast, selling to consumers is unlike selling to other businesses. Sales to consumers are governed by overlapping layers of regulations covering how those sales are financed, what warranties are implied by law versus expressly made by the seller, and – when need arises – debt collection of defaulted accounts. Failure to understand and comply with these layers of complexity can lead to consumer complaints and regulatory action, litigation and substantial liability. This program will provide you a framework for understanding the law of consumer sales, including financing those sales, express and implied warranties imposed by law, and debt collection from consumers.  Day 1: Essential law governing sales to consumers – sales law, finance, warranties Sales law – how consumer sales differ from commercial sales Consumer finance – securing the sales with collateral and anticipating defaults Role of the Uniform Consumer Credit Code and Reg Z Role of the new federal Consumer Financial Protection Bureau   Day 2: Understanding the role of implied and express warranties in consumer sales under federal law Limiting a seller’s exposure to warranties and otherwise managing risk Overview Fair Debt Collection Practices Act and the Consumer Credit Protection Act Permissible debt collection practices in consumer sales and potential liability Communications with debtors and third parties and required disclosures Best practices to avoid liability for businesses, lawyers, and law firms   Speakers:  Steven O. Weise is a partner in the Los Angeles office Proskauer Rose, LLP, where his practice encompasses all areas of commercial law. He has extensive experience in financings, particularly those secured by personal property.  He also handles matters involving real property anti-deficiency laws, workouts, guarantees, sales of goods, letters of credit, commercial paper and checks, and investment securities.  Mr. Weise formerly served as chair of the ABA Business Law Section. He has also served as a member of the Permanent Editorial Board of the UCC and as an Advisor to the UCC Code Article 9 Drafting Committee.  Mr. Weise received his B.A. from Yale University and his J.D. from the University of California, Berkeley, Boalt Hall School of Law    

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Course1

Selling to Consumers: Sales, Finance, Warranty & Collection Law, Part 1

$65.00

There is no larger market than sales of goods to consumers.  Though the opportunities for your clients are vast, selling to consumers is unlike selling to other businesses. Sales to consumers are governed by overlapping layers of regulations covering how those sales are financed, what warranties are implied by law versus expressly made by the seller, and – when need arises – debt collection of defaulted accounts. Failure to understand and comply with these layers of complexity can lead to consumer complaints and regulatory action, litigation and substantial liability. This program will provide you a framework for understanding the law of consumer sales, including financing those sales, express and implied warranties imposed by law, and debt collection from consumers.  Day 1: Essential law governing sales to consumers – sales law, finance, warranties Sales law – how consumer sales differ from commercial sales Consumer finance – securing the sales with collateral and anticipating defaults Role of the Uniform Consumer Credit Code and Reg Z Role of the new federal Consumer Financial Protection Bureau   Day 2: Understanding the role of implied and express warranties in consumer sales under federal law Limiting a seller’s exposure to warranties and otherwise managing risk Overview Fair Debt Collection Practices Act and the Consumer Credit Protection Act Permissible debt collection practices in consumer sales and potential liability Communications with debtors and third parties and required disclosures Best practices to avoid liability for businesses, lawyers, and law firms   Speaker: Steven O. Weise is a partner in the Los Angeles office Proskauer Rose, LLP, where his practice encompasses all areas of commercial law. He has extensive experience in financings, particularly those secured by personal property.  He also handles matters involving real property anti-deficiency laws, workouts, guarantees, sales of goods, letters of credit, commercial paper and checks, and investment securities.  Mr. Weise formerly served as chair of the ABA Business Law Section. He has also served as a member of the Permanent Editorial Board of the UCC and as an Advisor to the UCC Code Article 9 Drafting Committee.  Mr. Weise received his B.A. from Yale University and his J.D. from the University of California, Berkeley, Boalt Hall School of Law

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Joint Ventures Agreements in Business, Part 2

$65.00

  Businesses frequently pool their resources – capital, expertise, marketing, distribution – in joint ventures, leveraging their individual strengths by partnering with companies with complementary strengths. There are many types of JVs – contractual strategic alliances, entity-based ventures, and other hybrid forms – each with its tradeoffs.  JV agreements involve contributions by the parties, allocating management control, access to information, ownership of jointly developed property, dispute resolution, and transfers of interests. This program will provide you with a practical guide to planning and drafting joint ventures.  Day 1: Framework of considerations – formality, capital, tax issues, management control, exits Types of joint ventures – contractual strategic alliances v. shared entities v. hybrids Choice of entity – incorporated entities v. LPs and general partnerships v. LLCs Management, access to information, deadlocks and resolution Day 2: Contributions – capital, marketing and distribution expertise, intangible assets Economics – allocation of profits and losses, and distribution policies Transfers of JV interests – rights of first offer/refusal, restrictions on transfers, dissolution Ownership of jointly developed property – development of intellectual Speaker: Peter J. Kinsella is a partner in the Denver office of Perkins Coie, LLP, where he has an extensive technology law practice focusing on advising start-up, emerging and large companies on technology-related commercial and intellectual property transaction matters.  Prior to joining his firm, he worked for ten years in various legal capacities with Qwest Communications International, Inc. and Honeywell, Inc.  Mr. Kinsella has extensive experience structuring and negotiating data sharing agreements, complex procurement agreements, product distribution agreements, OEM agreements, marketing and advertising agreements, corporate sponsorship agreements, and various types of patent, trademark and copyright licenses.  Mr. Kinsella received his B.S. from North Dakota State University and his J.D. from the University of Minnesota Law School.    

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Joint Ventures Agreements in Business, Part 1

$65.00

Businesses frequently pool their resources – capital, expertise, marketing, distribution – in joint ventures, leveraging their individual strengths by partnering with companies with complementary strengths. There are many types of JVs – contractual strategic alliances, entity-based ventures, and other hybrid forms – each with its tradeoffs.  JV agreements involve contributions by the parties, allocating management control, access to information, ownership of jointly developed property, dispute resolution, and transfers of interests. This program will provide you with a practical guide to planning and drafting joint ventures. Day 1: Framework of considerations – formality, capital, tax issues, management control, exits Types of joint ventures – contractual strategic alliances v. shared entities v. hybrids Choice of entity – incorporated entities v. LPs and general partnerships v. LLCs Management, access to information, deadlocks and resolution Day 2:  Contributions – capital, marketing and distribution expertise, intangible assets Economics – allocation of profits and losses, and distribution policies Transfers of JV interests – rights of first offer/refusal, restrictions on transfers, dissolution Ownership of jointly developed property – development of intellectual Speaker: Peter J. Kinsella is a partner in the Denver office of Perkins Coie, LLP, where he has an extensive technology law practice focusing on advising start-up, emerging and large companies on technology-related commercial and intellectual property transaction matters.  Prior to joining his firm, he worked for ten years in various legal capacities with Qwest Communications International, Inc. and Honeywell, Inc.  Mr. Kinsella has extensive experience structuring and negotiating data sharing agreements, complex procurement agreements, product distribution agreements, OEM agreements, marketing and advertising agreements, corporate sponsorship agreements, and various types of patent, trademark and copyright licenses.  Mr. Kinsella received his B.S. from North Dakota State University and his J.D. from the University of Minnesota Law School.

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"Boilplate" Provisions in Contracts: Overlooked Traps in Every Agreement

$65.00

The “back of the book” provisions of common business, commercial and real estate agreements are often labeled “boilerplate,” copied and pasted from earlier agreements. But when disputes arise, these overlooked provisions – related to damages, choice of law and forum, notice, integration, and amendments – can determine the fate transaction. These provisions, if not closely examined in the context of every agreement, can provide grounds for litigation – or threats of litigation. This program will provide you with a practical guide to drafting essential “boilerplate” provisions with an emphasis on reducing risk. Damages – types, limitations, drafting traps Choice of law/choice of forum – what the law allows v. what parties prefer Amendments – forms of written amendments, email, and course of dealing Notice – adapting methods to digital communication, traps Integration – conversations, extraneous writings, and assumptions Speaker: Shannon M. Bell is a member with Kelly Law Partners, LLC, where she litigates a wide variety of complex business disputes, construction disputes, fiduciary claims, employment issues, and landlord/tenant issues.  Her construction experience extends from contract negotiations to defense of construction claims of owners, HOAs, contractors and tradesmen.  She also represents clients in claims of shareholder and officer liability, piercing the corporate veil, and derivative actions.  She writes and speaks on commercial litigation, employment, discovery and bankruptcy topics.  Ms. Bell earned her B.S. from the University of Iowa and her J.D. from the University of Denver.

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Course1

Ethics for Business Lawyers

$65.00

Lawyers advising businesses on transactions or negotiating on their behalf often confront a range of important ethical questions.  The biggest is, who is your client?  Often a company’s owners or managers will not understand the distinction between representing them and representing the company? There are also issues of identifying and clearing conflicts among clients when they are negotiating transaction.  And what can a lawyer say or do when negotiating for a client? Also, lawyers are sometimes confronted with issues about what to do when clients are dishonest.  This program will provide you with a real world guide to ethical issues when representing clients in business transactions.  Ethical issues in business and corporate practice Identifying your client in a variety of transactional contexts – the company v. its managers? Conflicts of interest in representing both sides of a transaction Ethical issues in transactional negotiations and communications with represented parties Representing clients you know to be dishonest and reporting wrong-doing “up and out”   Speakers: Thomas E. Spahn is a partner in the McLean, Virginia office of McGuireWoods, LLP, where he has a substantial practice advising clients on properly creating and preserving the attorney-client privilege and work product protections.  For more than 30 years he has lectured extensively on legal ethics and professionalism and has written “The Attorney-Client Privilege and the Work Product Doctrine: A Practitioner’s Guide,” a 750 page treatise published by the Virginia Law Foundation.  Mr. Spahn has served as a member of the ABA Standing Committee on Ethics and Professional Responsibility and as a member of the Virginia State Bar's Legal Ethics Committee.  He received his B.A., magna cum laude, from Yale University and his J.D. from Yale Law School. William Freivogel is the principal of Freivogel Ethics Consulting and is an independent consultant to law firms on ethics and risk management.  He was a trial lawyer for 22 years and has practiced in the areas of legal ethics and lawyer malpractice for more than 25 years.  He is chair of the Editorial Board of the ABA/BNA Lawyers’ Manual on Professional Conduct. He maintains the Web site “Freivogel on Conflicts” at www.freivogelonconflicts.com<http://www.freivogelonconflicts.com/> .Mr. Freivogel is a graduate of the University of Illinois (Champaign), where he received his B.S. and LL.B.

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Roadmap of Venture Capital and Angel Funding, Part 2

$65.00

Rapidly growing companies often raise capital in “angel” or venture capital transactions.  Investors provide capital in exchange for carefully structured equity rights and frequently some form of governance rights. Investors also often provide the company with industry expertise, contacts, and access that may be as valuable as financial capital. These funding transactions can take a startup or more mature company to higher levels of growth. But they are complex transactions that can involve a dozen or more interrelated documents. This program will provide you with a practical guide to the stages and documentation of an angel or venture capital transaction. Day 1: Current state of angel and venture capital markets & trends in deal terms Review of the suite of documents involved in most funding deals Methods of valuation and their impact on successive stages of investment Reviewing or drafting terms sheets – pitfalls and opportunities Angel investing – equity v. debt, common terms, impact on later venture capital funding   Day 2: Review of most highly negotiated terms in funding deals Investor protections – information  & veto rights, liquidity event rights Liquidation preferences, anti-dilution rights, and dividends Striking the right balance between founders/managers and investors on the board Options pools for founders, managers and employees   Speaker: Howard Bobrow is a partner in the Cleveland, Ohio office of Taft Stettinius & Hollister LLP, where he chairs the firm’s venture capital practice. He counsels private equity and venture capital firms, other institutional investors and angel investors on all aspects of acquisitions, dispositions, capital formation and private placements. He regularly represents and advises funds on their organization and formation, the fundraising process, governance matters, investments and compliance with pertinent regulations.  Mr. Bobrow earned his B.S. from Miami University and his J.D. from Case Western Reserve University School of Law.   Anthony Licata is a partner in the Chicago office of Taft Stettinius & Hollister LLP, where he formerly chaired the firm’s real estate practice.  He has an extensive practice focusing on major commercial real estate transactions, including finance, development, leasing, and land use.  He formerly served as an adjunct professor at the Kellogg Graduate School of Management at Northwestern University and at the Illinois Institute of Technology.  Mr. Licata received his B.S., summa cum laude, from MacMurray College and his J.D., cum laude, from Harvard Law School.

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Roadmap of Venture Capital and Angel Funding, Part 1

$65.00

Rapidly growing companies often raise capital in “angel” or venture capital transactions.  Investors provide capital in exchange for carefully structured equity rights and frequently some form of governance rights. Investors also often provide the company with industry expertise, contacts, and access that may be as valuable as financial capital. These funding transactions can take a startup or more mature company to higher levels of growth. But they are complex transactions that can involve a dozen or more interrelated documents. This program will provide you with a practical guide to the stages and documentation of an angel or venture capital transaction. Day 1: Current state of angel and venture capital markets & trends in deal terms Review of the suite of documents involved in most funding deals Methods of valuation and their impact on successive stages of investment Reviewing or drafting terms sheets – pitfalls and opportunities Angel investing – equity v. debt, common terms, impact on later venture capital funding   Day 2: Review of most highly negotiated terms in funding deals Investor protections – information  & veto rights, liquidity event rights Liquidation preferences, anti-dilution rights, and dividends Striking the right balance between founders/managers and investors on the board Options pools for founders, managers and employees   Speaker: Howard Bobrow is a partner in the Cleveland, Ohio office of Taft Stettinius & Hollister LLP, where he chairs the firm’s venture capital practice. He counsels private equity and venture capital firms, other institutional investors and angel investors on all aspects of acquisitions, dispositions, capital formation and private placements. He regularly represents and advises funds on their organization and formation, the fundraising process, governance matters, investments and compliance with pertinent regulations.  Mr. Bobrow earned his B.S. from Miami University and his J.D. from Case Western Reserve University School of Law.   Anthony Licata is a partner in the Chicago office of Taft Stettinius & Hollister LLP, where he formerly chaired the firm’s real estate practice.  He has an extensive practice focusing on major commercial real estate transactions, including finance, development, leasing, and land use.  He formerly served as an adjunct professor at the Kellogg Graduate School of Management at Northwestern University and at the Illinois Institute of Technology.  Mr. Licata received his B.S., summa cum laude, from MacMurray College and his J.D., cum laude, from Harvard Law School.

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Baskets and Escrow in Business Transactions

$65.00

Identifying and hedging the risk of the unknown is one of the biggest risks in business documentation.  If unknown liabilities arise – or known liabilities are greater than anticipated –parties want recourse to address the economic loss.  “Caps” and “baskets” are used to address this problem.  Caps are the the total amount for which one party may be liable to the other party post-closing. “Baskets” are the amount of loss one party must incur, if any, before seeking recourse to the other party. The variations and interplay between caps and baskets can be highly complex. This program will provide you with a practical guide to the uses, types, and drafting traps of caps and baskets in business transactions. Types of “baskets” – “tipping baskets” v. “true deductibles” v. hybrids Negotiating “caps” – aggregates limits, specific carve-outs for fraud and other bad acts Intricate relationship between baskets and caps Drafting to reduce risk of dispute and enhance collectability of claims Use of escrow to ensure payment of indemnification claims   Speaker: Steven O. Weise is a partner in the Los Angeles office Proskauer Rose, LLP, where his practice encompasses all areas of commercial law. He has extensive experience in financings, particularly those secured by personal property.He also handles matters involving real property anti-deficiency laws, workouts, guarantees, sales of goods, letters of credit, commercial paper and checks, and investment securities.Mr. Weise formerly served as chair of the ABA Business Law Section. He has also served as a member of the Permanent Editorial Board of the UCC and as an Advisor to the UCC Code Article 9 Drafting Committee.Mr. Weise received his B.A. from Yale University and his J.D. from the University of California, Berkeley, Boalt Hall School of Law.

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Earnouts: Taking a Wait and See Approach to Valuation of Closely Held Companies

$65.00

The most highly negotiated provision of most transactions is price. Sellers want to maximize the value of the deal, putting the most optimistic spin historical and forward-looking projections.  Sellers take a more skeptical view, questioning the sustainability of growth and the accuracy of forecasts.  When differences over valuation cannotbe bridged, the parties may use an earnout, which allows them to both take a wait-and-see approach and still close the transaction. Earnouts generally involve a current payment from buyer to seller together with ongoing payments to the seller if the company performs as the seller projected.  But there are many drafting and operational traps when using earnouts.  This program will provide you with a practical guide to structuring and drafting earnouts to later disputes and litigation. Most highly negotiated and litigated provisions in earnout agreements Post-closing operations – control by buyer, but informational access to seller Defining key metrics – objective, measurable and potential traps Relationship of earnouts to senior debt and other preferential returns Debt issues and how it impacts financial results – and post-closing payments How earnouts are different than escrow and holdbacks   Speakers: Frank Ciatto is a partner in the Washington, D.C. office of Venable, LLP, where he has 20 years’ experience advising clients on mergers and acquisitions, limited liability companies, tax and accounting issues, and corporate finance transactions.  He is a leader of his firm’s private equity and hedge fund groups and a member of the Mergers & Acquisitions Subcommittee of the ABA Business Law Section.  He is a Certified Public Accountant and earlier in his career worked at what is now PricewaterhouseCoopers in New York.  Mr. Ciatto earned his B.A., cum laude, at Georgetown University and his J.D. from Georgetown University Law Center. Daniel G. Straga is an attorney in the Washington, D.C. office of Venable, LLP, where he counsels companies on a wide variety of corporate and business matters across a range of industries. He advises clients on mergers and acquisitions, capital raising, venture capital, and governance matters.  Mr. Straga earned his J.D. from the George Washington University Law School and his B.A. from the University of Delaware. James DePaoli is an attorney in the Washington, D.C. office of Venable, LLP, where his practice focuses on corporate and commercial matters. He represents clients in the acquisition and disposition of assets and securities, mergers, and other business combinations and reorganizations. Mr. Paoli earned his B.S/B.A., magna cum laude, from Georgetown University and his J.D. from Duke University School of Law.

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Classes of Stock: Structuring voting and non-voting

$65.00

Crafting a corporation’s capital structure to harmonize competing economic interests is among the most challenging aspects of corporate formation. Certain investors want preferred returns of capital and “protective” rights in the form of enhanced voting rights.  They also want a senior claim to the corporation’s assets on liquidation. But common stock is often the largest tranche of a corporation’s capital structure and its claims cannot be entirely truncated in preference of preferred stock.  This program will provide you with a practical guide to drafting corporate common and preferred stock, with an emphasis on drafting preferred returns. Classes and series of sock in a closely held company’s capital structure Dividend rights – who gets what, when, and in preference to whom? Voting rights – preferential governance rights Liquidation rights – preferential claims on a company’s assets Conversion rights for preferred stock Dilution and impairment rights   Speaker: Tyler J. Sewell is n partner in the Denver office of Morrison & Foerster, LLP, where he specializes in mergers and acquisitions.  He focuses his practice on advising financial and strategic buyers and sellers in public and private M&A transactions and complex corporate transactions.  He negotiates and documents leveraged acquisitions, divestitures, asset acquisitions, stock acquisitions, mergers, auction transactions, and cross-border transactions. Mr. Sewell received his B.S., with merit, in ocean engineering from the United States Naval Academy and his J.D., magna cum laude, from the University of Pennsylvania Law School.

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Closely Held Company Merger & Acquisitions, Part 2

$65.00

Mergers or buyouts of closely held companies are a complex, multifaceted process.  Agreeing on a valuation can be very difficult because there is no regular market of buyers and sellers and information on comparable sales is scarce. Closely held companies are typically structured to benefit a few shareholders, often members of a family, and require their financial statements and distributions to be normalized. There can also be substantial issues of liability, including successor liability in asset deals, requiring carefully crafted reps and warranties. Confidentiality is often essential in these transactions as sellers try not to unsettle existing commercial relationships and employees. This program will provide you with a practical guide to major planning and drafting considerations in the mergers and buyouts of closely held companies. Day 1: Confidentiality considerations in the sale and negotiation process Due diligence – financial, operational and workforce red flags Stock v. asset transactions and forms of consideration – cash v. equity Valuation of closely held companies in an illiquid market Use or of “earnouts” to bridge the gap in valuation   Day 2: Reps, warranties, indemnity and basket issues common to closely held companies Successor liability concerns where assets are transferred Asset transfer issues – intangible assets, including intellectual property Transition issues – management, employees, business relationship, contract issues Escrow and post-closing issues   Speakers: Daniel G. Straga is an attorney in the Washington, D.C. office of Venable, LLP, where he counsels companies on a wide variety of corporate and business matters across a range of industries. He advises clients on mergers and acquisitions, capital raising, venture capital, and governance matters.  Mr. Straga earned his J.D. from the George Washington University Law School and his B.A. from the University of Delaware. Stephanie Molyneaux is an attorney in the Washington, D.C. office of Venable, LLP, where she assists clients with a wide variety of transactional matters.  Her experience includes mergers and acquisitions, corporate governance, contractual agreements, technology transactions, licensing, and intellectual property transactions.  Ms. Molyneaux received her B.A., with distinction, from American University of Beirut and her J.D., magna cum laude, from the University of Richmond School of Law.

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Closely Held Company Merger & Acquisitions, Part 1

$65.00

  Mergers or buyouts of closely held companies are a complex, multifaceted process.  Agreeing on a valuation can be very difficult because there is no regular market of buyers and sellers and information on comparable sales is scarce. Closely held companies are typically structured to benefit a few shareholders, often members of a family, and require their financial statements and distributions to be normalized. There can also be substantial issues of liability, including successor liability in asset deals, requiring carefully crafted reps and warranties. Confidentiality is often essential in these transactions as sellers try not to unsettle existing commercial relationships and employees. This program will provide you with a practical guide to major planning and drafting considerations in the mergers and buyouts of closely held companies. Day 1: Confidentiality considerations in the sale and negotiation process Due diligence – financial, operational and workforce red flags Stock v. asset transactions and forms of consideration – cash v. equity Valuation of closely held companies in an illiquid market Use or of “earnouts” to bridge the gap in valuation   Day 2 : Reps, warranties, indemnity and basket issues common to closely held companies Successor liability concerns where assets are transferred Asset transfer issues – intangible assets, including intellectual property Transition issues – management, employees, business relationship, contract issues Escrow and post-closing issues   Speakers: Daniel G. Straga is an attorney in the Washington, D.C. office of Venable, LLP, where he counsels companies on a wide variety of corporate and business matters across a range of industries. He advises clients on mergers and acquisitions, capital raising, venture capital, and governance matters.  Mr. Straga earned his J.D. from the George Washington University Law School and his B.A. from the University of Delaware.   Stephanie Molyneaux is an attorney in the Washington, D.C. office of Venable, LLP, where she assists clients with a wide variety of transactional matters.  Her experience includes mergers and acquisitions, corporate governance, contractual agreements, technology transactions, licensing, and intellectual property transactions.  Ms. Molyneaux received her B.A., with distinction, from American University of Beirut and her J.D., magna cum laude, from the University of Richmond School of Law.  

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Choice of Entity for Service Businesses

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Familiar tradeoffs in choice of entity for businesses selling goods are scrambled when it comes to service-based businesses. This is particularly true with regard to tax law and the relatively new deduction for certain types of income in pass-through businesses. Choice of entity for service businesses also differ in consideration of distributions and employment taxes, incentive compensation and vesting of restricted ownership interests, and the eventual sale, liquidation or accession of new owners.  This program will provide you with practical guide to choice of entity for service businesses with special emphasis on the new tax law.   How the new deductions for pass-through income applies to service businesses What income and types of businesses are covered or not Regulatory, industry, finance and other non-tax considerations for service businesses Using multiple entities to achieve variable ownership, management and tax goals Converting entities if a prior choice of entity is no longer sound   Speaker: Paul Kaplun is a partner in the Washington, D.C. office of Venable, LLP where he has an extensive corporate and business planning practice, and provides advisory services to emerging growth companies and entrepreneurs in a variety of industries. He formerly served as an Adjunct Professor of Law at Georgetown University Law Center, where he taught business planning.  Before entering private practice, he was a Certified Public Accountant with a national accounting firm, specializing in corporate and individual income tax planning and compliance.  Mr. Kaplun received his B.S.B.A., magna cum laude, from Georgetown University and J.D. from Georgetown University Law Center.

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Valuation of Closely Held Companies

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Virtually every transaction of a closely held company requires a valuation. The company may be selling itself or some of its assets; obtaining a loan or placing equity with new investor; or the valuation may be needed for trust and estate planning. But valuing a closely held company is much art as science because there is no regular and liquid market matching buyers and sellers. This can make valuation highly contentious as parties argue over add-backs, discounts and premiums, and how to “price” cash flow or earnings. And all the familiar calculations have been altered by recent tax law changes. This program will provide you a real-world guide to valuation methodologies, areas of common dispute, and drafting tips. Valuation methodologies depending on the type of business or asset – asset-based, cash flow, market comps, and intrinsic value Role of objective factors v. professional judgment Impact of recent tax law changes on valuation Valuation premiums and discounts – “fair market value” and “fair value” Valuation drafting issues for lawyers Costly valuation mistakes and how to reduce risk of dispute   Speaker:

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Closely Held Stock Options, Restricted Stock, Etc.

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Equity-based compensation is often essential to recruiting and retaining key employees in closely held companies.  Whether through the use of stock options, restricted stock, appreciation rights or other instruments and techniques, incentive compensation aligns the financial interests of key employees with the entity. Incentive compensation also often has the benefit of not requiring the immediately outlay of cash. Depending on the instruments used, equity-based compensation may also help defer tax recognition.  Compensation in LLCs takes on different forms but functions similarly. This program will provide you with a practical guide to equity-based incentive compensation in closely held companies. C and S Corp incentive compensation v. pass-through entity incentive compensation Eligibility for tax-favored Incentive Stock Options v. non-qualified stock options Use of restricted stock – valuation, vesting, and treatment Appreciation rights in corporate and pass-through entities Common structuring and drafting traps Tax treatment, advantages and disadvantages of incentive compensation   Speaker:

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Director and Officer Liability

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Statutory and common law impose certain fiduciary duties – of care, diligence, good faith and fair dealing – on directors and managers of corporate entities, managers of LLCs, and, in certain instances, members of LLCs. The corporate and organizational opportunity doctrines also operate to restrict the activity of closely held company stakeholders, preventing misappropriation of certain corporate or LLC opportunities.  In certain instances, the owners of the entity may want to expand, limit, or eliminate these duties.  Depending on the entity involved and the specific duty, the law may allow modification by agreement, but unintended consequences may be substantial. This program will provide you with a practical guide to fiduciary duties in corporations and LLCs, how they may be modified, and the practical consequences.  Fiduciary duties and standards of review – duty of loyalty and duty of care Conflicts of interest and self-dealing issues in closely held corporations Fiduciary duties in LLCs – standards set by contract and by law What duties may be modified or eliminated – and which may not Corporate and organizational opportunity doctrines in closely held companies   Speakers:

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Reps and Warranties in Business Transactions

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Representations and warranties are a marquee feature of virtually every significant transaction.  Parties often conduct extensive due diligence but want specific assurances about important facts about which only the company would have the best information. These facts – e.g., the absence of liabilities or the presence of certain authorizations – can be few or great in number, and they vary according to the facts of the transaction. They are essential to most transactions. This program will provide you with a real-world guide to the differences between reps and warranties, the types and their remedies, and drafting. Differences between reps and warranties, and their remedies Relationship between diligence and reps and warranties – and what the law says about how one impacts the other Reps and warranties concerning tangible and intangible property – title, taxes, transfer restrictions Provisions covering revenue projections, financial statements, and customer lists Understanding the limits of reps and warranties – what you can ask for, what you can get   Speaker:

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Drafting Business Service Agreements

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Companies are increasingly focused on their “core competencies,” outsourcing all other functions – sales, bookkeeping, IT, customer and product support, warranty work – to third party professionals and their companies.  Drafting agreements to capture this work is unlike drafting a conventional employment agreement.  It requires a sophisticated understanding of the service, benchmarks for performance and reporting, the protection of highly confidential business information, and much more. The underlying agreement must carefully create the complex interactions of all of these elements for the client to get the benefit of its bargain.  This program will provide you with a practical guide to drafting services agreements in business.  Drafting services agreements for “hard” and “soft” services Scope of services provided, modification of services, and relationship to fees Performance standards and timeliness of delivery of services Types of fee structures and common traps Ensuring ownership of key files, records, “know how,” customer lists, and trade secrets Issues related to sub-contracting, designation of agents, and assignment of the contract Conflicts of interest, limitation of liability, and indemnification    Speaker:  

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The Law of Consignments: How Selling Goods for Others Works

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In a consignment, the consignor, ships or transfers control of goods to a seller, the consignee, who agrees to market the property to buyers and pay over some portion of the sales proceeds to the consignor. The arrangement involves an intricate set of rights and obligations among the parties. There are also substantial and often overlooked risks, including that the consignee’s creditors may seek to claim a security interest in the consigned property.  If these risks are not properly understood and remedies not carefully considered, the consignor is at risk of loss. This program will provide you to the law of consignments, UCC Article 9 issues and risks, and provide practical tips for drafting consignment agreements. Structure of common consignment transactions Parties, rights and obligations – consignor as creditor, consignee as debtor, creditors Risks of loss to consignor and how it can protect itself against consignee’s creditors Consignor remedies for consignee breach Law of consignments and relationship to secured finance Circumstances when UCC Article 9 does not apply to consignments   Speaker: Steven O. Weise is a partner in the Los Angeles office Proskauer Rose, LLP, where his practice encompasses all areas of commercial law. He has extensive experience in financings, particularly those secured by personal property.  He also handles matters involving real property anti-deficiency laws, workouts, guarantees, sales of goods, letters of credit, commercial paper and checks, and investment securities.  Mr. Weise formerly served as chair of the ABA Business Law Section. He has also served as a member of the Permanent Editorial Board of the UCC and as an Advisor to the UCC Code Article 9 Drafting Committee.  Mr. Weise received his B.A. from Yale University and his J.D. from the University of California, Berkeley, Boalt Hall School of Law.

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Sophisticated Choice of Entity, Part 2

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Choosing the right entity for a closely held business is not only a choice in time but planning for long stretches of time and the likelihood of substantial change. Among those changes are changes in tax law, changes in the capital structure and ownership ranks of the company, and changes in business strategy. These and a multitude of other considerations often involve a sophisticated tradeoff of benefits and costs, balancing certainty with flexibility, in full knowledge that change is certain.  This program will provide you with a practical guide to sophisticated choice of entity considerations for closely held businesses.  Day 1: Impact of industry norms, investor expectations, and regulatory requirements Management and information rights, and the ability to restrict Fiduciary duties/liability of owners and managers, and the ability to modify these duties Economic rights – choosing among capital rights, income rights, tracking rights Special considerations for service-based businesses   Day 2: Anticipating liquidity events – sale of the company, liquidation of the company, new investors/members Planning for distributions of property When the first choice wasn’t correct – considerations when an entity needs to convert Impact of recent tax law changes, employment taxes, and SALT considerations Owner and employee fringe benefit considerations   Speaker:

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Sophisticated Choice of Entity, Part 1

$65.00

Choosing the right entity for a closely held business is not only a choice in time but planning for long stretches of time and the likelihood of substantial change. Among those changes are changes in tax law, changes in the capital structure and ownership ranks of the company, and changes in business strategy. These and a multitude of other considerations often involve a sophisticated tradeoff of benefits and costs, balancing certainty with flexibility, in full knowledge that change is certain.  This program will provide you with a practical guide to sophisticated choice of entity considerations for closely held businesses.  Day 1: Impact of industry norms, investor expectations, and regulatory requirements Management and information rights, and the ability to restrict Fiduciary duties/liability of owners and managers, and the ability to modify these duties Economic rights – choosing among capital rights, income rights, tracking rights Special considerations for service-based businesses   Day 2: Anticipating liquidity events – sale of the company, liquidation of the company, new investors/members Planning for distributions of property When the first choice wasn’t correct – considerations when an entity needs to convert Impact of recent tax law changes, employment taxes, and SALT considerations Owner and employee fringe benefit considerations   Speaker:

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LIVE REPLAY; Taxation of Settlements & Judgments in Civil Litigation

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Two of the questions clients have about settlements are: Is the settlement taxable? And if so, how?  The answers to these questions turn on the nature of the underlying claim(s) giving rise to the settlement.  Some settlements are taxed as ordinary income, subjecting income tax and employment tax withholding in certain instances.  Other types of settlements are taxable as capital gains. There are also questions related to the treatment of that portion of the settlement, if any, attributable to attorneys’ fees.  This program will provide you with a practical guide to the tax treatment of settlements in civil litigation.   How the underlying claim giving rise to a settlement determines its tax treatment Loss of income or gross business profit v. destruction of capital property Special treatment for physical injury Treatment of portion of settlement attributable to attorneys’ fees Income and employment tax withholding from settlements   Speaker: Stephen J. Turanchik is an attorney in the Los Angeles office of Paul Hastings, LLP, where his practice focuses on tax litigation at the state and federal levels as well as tax controversy work at the administrative levels. Before entering private practice, he is previously litigated for six years for the U.S. Department of Justice, Tax Division, where he litigated over 300 tax cases in federal, bankruptcy, state and probate court. He has also lectured at Loyola Law School and California State University, Fullerton on topics relating to tax litigation and is chair-elect of the executive committee of the Los Angeles Bar Association’s Tax Section. Mr. Turanchik received his B.A. from the College of the Holy Cross, his J.D. from Fordham University School of Law, and his LL.M. in Taxation from New York University School of Law.

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Piercing the Entity Veil: Individual Liability for Business Acts

$65.00

One of the bedrock principles of business law is limited liability. The individual owners of an entity – shareholders of a corporation or members of a limited liability company – cannot be held personally liable for the debts or liabilities of the entity.  But the doctrine is not absolute.  There are many common law fact patterns that allow courts to pierce the entity veil – co-mingling of funds, using an entity as an alter ego, among others – and reach an individual person’s assets. There are also several sources of statutory authority allowing veil piercing. This program will provide you with a practical guide to common law, equitable, and statutory theories of piercing entity veils. Statutory and equitable principles to pierce the entity veil Fact pattern justifying piercing limited liability to reach an owner’s personal assets Statutory sources permitting breaching the entity veil Application of veil piercing to non-corporate entities Liability for improper distributions Piercing for withheld income and employment taxes, and sales/use taxes   Speakers:

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Equipment Leases: Drafting & UCC Article 2A Issues

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  Many companies lease rather than buy computers and servers, company cars and other capital equipment.  These leases are government by UCC Article 2A, an intricate set of provisions governing their validity, treatment, and enforcement.  If the lease is not properly drafted to comply with the UCC, it risks being re-characterized as a sale or a security interest, which give rise to substantially adverse financial and tax consequences. This program will also provide you with a practical guide to reviewing equipment leases, including spotting red flags and avoiding recharacterization. Types of equipment leases – “true” leases, synthetic leases, “lease to own” arrangements, and more Spotting red flags of financeable leases – and how to ensure UCC 2A compliance Rights and obligations of the parties – manufacturer, lessor and lessee – and remedies for breach Circumstances leading to re-characterization of a “true lease” as a sale or financing Adverse financial, tax and practical ramifications of lease re-characterization   Speaker: Steven O. Weise is a partner in the Los Angeles office Proskauer Rose, LLP, where his practice encompasses all areas of commercial law. He has extensive experience in financings, particularly those secured by personal property.  He also handles matters involving real property anti-deficiency laws, workouts, guarantees, sales of goods, letters of credit, commercial paper and checks, and investment securities.  Mr. Weise formerly served as chair of the ABA Business Law Section. He has also served as a member of the Permanent Editorial Board of the UCC and as an Advisor to the UCC Code Article 9 Drafting Committee.  Mr. Weise received his B.A. from Yale University and his J.D. from the University of California, Berkeley, Boalt Hall School of Law.    

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Service Level Agreements in Technology Contracting

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In a world where every client depends on IT functions – web site hosting, e-commerce, telecom, storing files remotely in the Cloud, or on locally leased servers, e-mail and much more – and when most of these functions are outsourced or provided by vendors, Service Level Agreements (SLAs) are of paramount importance. SLAsset benchmarks forthese services – what uptime is expected and for how long, what happens when something goes down, how is service measured and reported?  The operation of every business and every law firm rests on the answer to these questions. This program will provide you a practical guide to reviewing, drafting and negotiating SLAs for client IT functions.  Purpose of SLAs – ensuring clients get benefit of bargain, incentivizing providers Types of services – locally installed v. the Cloud Service availability – uptime, guarantees, exclusions Service performance – minimum v. expected service, resolution time v. resolution goals Special considerations when drafting for the Cloud Common failures, damages, and remedies   Speaker: Peter J. Kinsella is a partner in the Denver office of Perkins Coie, LLP, where he has an extensive technology law practice focusing on advising start-up, emerging and large companies on technology-related commercial and intellectual property transaction matters.  Prior to joining his firm, he worked for ten years in various legal capacities with Qwest Communications International, Inc. and Honeywell, Inc.  Mr. Kinsella has extensive experience structuring and negotiating data sharing agreements, complex procurement agreements, product distribution agreements, OEM agreements, marketing and advertising agreements, corporate sponsorship agreements, and various types of patent, trademark and copyright licenses.  Mr. Kinsella received his B.S. from North Dakota State University and his J.D. from the University of Minnesota Law School.

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Successor Liability in Business Transactions

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It’s axiomatic that the sale of an asset does not carry with it the seller’s liabilities apart from any liability that may attach to the asset itself, such a lien. But there are substantial exceptions to this rule. In many instances, the asset buyer becomes liable, by operation of law, for the seller’s assets. If this liability arises, it can easily undo the basic economic assumptions of the parties entering the transaction. This program will provide you with a real world guide to identifying the risks of successor liability in transactions, including liability under common and statutory law, bankruptcy law, and discuss drafting techniques to reduce the risk of successor liability. Fact patterns giving rise to successor liability – business continuation, fraud, product line continuation, and more Buyer liability at UCC Article 9 foreclosure sales Successor liability under federal employment and environmental statutes and under state sales/use tax law Drafting techniques to limit or eliminate the risk of liability   Speaker: Bill Kelly is a founding member and managing partner of Kelly & Walker LLC with nearly 30 years’ experience in the areas of class action, commercial and employment litigation.  As national litigation counsel to several large companies, Bill has been lead trial counsel in over 18 states and U.S. territories.  Bill is an A/V Rated attorney in Martindale-Hubbell who has been listed as a Colorado Super Lawyer, a Top Lawyer in US News & World Report, and a leader in employment law by Chambers USA.  In a survey of Fortune 500 General Counsel, Bill has been named to BTI’s list of Client Service All Stars for 7 consecutive years.  Bill is a fellow of the Litigation Counsel of America Trial Lawyer’s Honor Society and a member of the International Association of Defense Counsel.  

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