Thoits attorney Erin L. McDermit just returned from the 26th annual Northern California Human Resources Association annual conference in South San Francisco where thought leaders and experts led sessions on Global Employment Law Compliance, the Pitfalls of Document Retention Policies, Employment Leave in California: Navigating the Minefield, Wage and Hour Violations and Class Action lawsuits, Investigations and Workplace Violence, Implementing Ethics Programs, and 10 Ways to Make your Defense Attorney Cry.
In January of this year, Judge Shira Sheindlin of the Southern District of New York issued a decision reaffirming and expanding on crucial electronic discovery issues she highlighted six years earlier, in her groundbreaking “Zubulake” case. The new case, The Pension Committee of the University of Montreal Pension Plan v. Banc of America Sec., LLC ((2010) No. 05 Civ. 9016) provided Judge Sheindlin the opportunity to more fully examine the duties of parties to litigation to preserve information, and provide guidance on when sanctions should be imposed for misconduct during the discovery process.
California has revived and expanded the homebuyer tax credit program that ended last July. For transactions that close escrow on or after May 1, 2010, Californians who are first-time homebuyers or who purchase a newly-constructed home are in line for a significant credit on their upcoming State income tax returns.
In my previous post on Letters of Intent, I posed the question: Is using a letter of intent for a sale or acquisition of a business, or other M&A transaction, worth it? To answer that question, I offered benefits to both a seller or target company on the one hand, and a buyer or acquiring company on the other. I hope I convinced you that, in most if not all cases, there are significant enough benefits for both sides in a potential acquisition or merger transaction to merit the use of a LOI (also sometimes called a memorandum of understanding, a term sheet, a summary of principal terms, or heads of agreement).
As promised in my previous post, in this post I will tackle the rationale and reasons behind some of the more common LOI terms. In a future post I will discuss why some atypical or uncommon terms may be appropriate for a particular potential M&A deal. The sample LOI that I'll refer to in this post is available here.
First, the structure of the proposed transaction should be identified early (e.g., a stock sale or exchange, an asset sale or exchange, or a statutory merger). In the sample LOI, the introductory paragraph identifies the asset sale structure. In addition, in the Summary of Terms attached to the LOI as Exhibit A, the structure is reiterated and the assets to be purchased are described in more detail (and depending on the extent of excluded assets, even more detail may be needed). Second, the consideration to be paid by the buyer for the assets also should be addressed upfront, and is described in the third item in Exhibit A.
The structure of the proposed transaction and the proposed form of deal consideration (e.g., cash, stock or other form of equity of the buyer, or debt, such as buyer’s promissory note, or combination of those forms of payment) will drive many important potential considerations in evaluating the desirability of the deal from the seller’s perspective. Those considerations include income tax consequences, any necessary shareholder or other owner approvals, possible consents or approvals of third parties for a transfer of assets or a change in control that may be required by various agreements the seller has entered into with those third parties (including real estate and equipment leases and vendor or customer contracts), whether employees will need to be terminated prior to the closing (and potential minimum advance notice of such terminations under federal and state plant closure or similar laws), and post-closing actions of seller such as the liquidation or other disposal of any assets not sold and the dissolution of the seller in the case of an asset sale.
The purchase price section of Exhibit A identifies who is responsible for paying any sales or transfer taxes. In an acquisition structured as an asset sale, this can be an important issue if there are significant items of personal property besides inventory that will be transferred and California’s occasional sale rule will not apply to exempt the transfer of those items from sales tax. The sales tax rates in California currently range from between 8.25% and 10.25%, with many counties at the 9.75% rate. Depending on the fair value of the those items when transferred from the seller to the buyer, the total amount of sales tax payable can either reduce the net proceeds to the seller or increase the effective purchase price paid by the buyer in a significant manner.
My next post will review the conditions to closing that are listed under Exhibit A of the sample LOI. Future editions will review the remaining terms of the sample LOI and its Exhibit A, as well as more uncommon terms.
On March 18, 2010, President Obama signed the Hiring Incentives to Restore Employment Act, known as the “HIRE Act” into law. The HIRE Act contains a number of provisions related to disclosure of foreign assets, a topic that has recently received a lot of focus by the Internal Revenue Service. The most touted provisions of the law, however, are designed to encourage business investment and hiring.The IRS has posted resources and forms to assist employers who seek to take advantage of the law.
A new decision of a California Court of Appeal has clarified the right of a co-owner to seek partition of the co-tenancy when the other co-owners don’t want to sell, and the agreement between them provides that each has a right of first refusal if the other tries to sell.
Palo Alto’s Mandatory Mediation Ordinance is premised on the notion that fostering communication between landlords and tenants is key to a positive residential housing environment. The highlight of the Ordinance is the requirement that all landlords and tenants of covered properties (most residential rental properties are covered) must participate in the conciliation and mediation process outlined in the Ordinance.