Recent national attention on the issue of non-competition covenants has once again highlighted the question of what criteria are necessary for a court to enforce restrictions on former employees to engage in competitive activities. Several recent news articles have detailed reactions to employers’ requiring low-level employees, who do not have the ability to take meaningful…

Post-closing disputes in private mergers and acquisitions (M&A) transactions can quickly turn what was thought to be a value creating decision into a source of frustration and value destruction. Thankfully, many post-closing disputes are due to a lack of appropriate planning and insufficient forethought prior to executing the definitive acquisition agreement, meaning they can be…

For a secured lender, cash is often the most critical piece of collateral. Borrowers generally keep cash in deposit accounts at a bank. Thus, a lender will want to obtain a perfected security interest in those deposit accounts in order to have a perfected security interest in that cash. Article 9 of the Uniform Commercial…

Scenario: You are the chief financial officer of Greater Growth Company, a privately-owned middle market company with several subsidiaries (taken together, “GGC”) that has been growing rapidly over the past few years. You believe that GGC needs additional capital to make the necessary investments in working capital, capital expenditures for plant and equipment, and acquisitions to…

This article highlights certain U.S. federal and state laws and other issues that non-U.S. individuals or companies should consider when seeking to acquire a non-public U.S. company, or a subsidiary or assets of a public or non-public U.S. company. STRUCTURE OF TRANSACTION An initial decision the parties to the transaction will have to make is…

LIBOR Phaseout Implications for Credit Agreements Few things have generated comparable levels of mental anguish and attention among investors and finance professionals as the looming phase-out of LIBOR as a benchmark interest rate, which takes place by the end of 2021. This phase-out is expected to have far-reaching consequences on corporate loans, derivatives, bonds and…

Many privately held companies do not presently need or desire an independent board of directors. Frequently, these companies are managed and owned by a small group of individuals – or even a single individual – who are wary of ceding authority. However, the CEO of a private company may find that he or she could…

Henry C. Blackiston If you are a member of the Compensation Committee of a public company, you have your work cut out for you. The passage of Sarbanes-Oxley some years ago, the passage of section 409A of the Internal Revenue Code and adoption of over 300 pages of related regulations, the SEC proposals on Proxy…

A limited liability company has historically been considered an attractive structure for an entity based upon its flexibility in organizational structure (like a corporation or partnership), its taxation as a pass-through entity (like a partnership) and the owners’ limited liability for actions and debts of the company (like a corporation). Based on two recent Delaware…

As an entrepreneur or principal of a small business, particularly a start-up company, you have probably pursued or considered pursuing funding from a variety of sources, including debt financing, equity financing from friends and family or “angel” investors, and equity financing from a venture capital (“VC”) firm. This article focuses on the myriad aspects, both…

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