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As always, feel free to contact us with help looking for a specific resource or with any questions or comments.

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"I am advising on contract claims that are to be referred to ICC arbitration. Does Practical Law have any materials that cover the following aspects of the ICC Arbitration Rules (2012)?

  • How to commence the arbitration.
  • How to apply for the arbitration timetable to be expedited."

- Arbitration Practitioner

Our Response:

For basic guidance, we suggest that you refer to Practice Note, ICC Arbitration (2012 Rules): a step by step guide. This sets out the various steps that you will need to take as a claimant in order to commence the arbitration. The accompanying ICC Arbitration (2012 Rules) Flowchart should give you an overview of the procedure from start to finish; and if you need a reminder of the changes that were introduced to ICC procedure by the 2012 Rules, then you can refer to Table, Comparison between ICC Rules of Arbitration 1998 and ICC Rules of Arbitration 2012. Finally, for an illustration of the documents you will need to complete on behalf of the claimant, and guidance on when, where and how to file these, we suggest you refer to Case Study, Commencing ICC arbitration (2012 Rules).

If you are considering applying for an expedited timetable, again we would refer you to the step by step guide on the 2012 Rules, under the heading “Case management conference and procedural timetable”, where you will find some relevant guidance.

"We recently changed our PTO policy to a per hour accrual beginning April 1. We previously allocated 10 days for employment over 1 year, but did not address what would happen at termination to unused vacation. Will we need to pay employee for unused vacation since she left the day before the new policy went into effect?"

- Inside Counsel

Our Response:

Each state's different requirements with respect to payment of accrued but unused vacation is addressed in Question #7 in our Wage and Hour Laws: State Q&As. For a list of all currently available Wage and Hour Q&As, see State Q&A Guide to Wage and Hour Laws. We also offer a Wage and Hour Laws: State Q&A Tool which allows you to compare questions of interest over a number of jurisdictions.

"I'm working on a credit agreement that requires any "affected lender" to consent to an amendment to the credit agreement. I'm trying to determine who is an "affected lender." Do you have any resources that could help?"

- Associate

Our Response:

Affected lenders are discussed in Practice Note, Loan Agreement: Amendments (see "Sacred Rights": Unanimous Consent/Affected Lender Consent). It is also defined in the Standard Clause, Loan Agreement: Amendments (see, in particular, the first drafting note).

"I am looking at developing a document retention plan and for legal issues regarding implementing a destruction policy."

- General Counsel

Our Response:

The following record and document retention materials may help you:

The Drafting Note titled "Destruction" in the Standard Document, Document Retention Policy contains information on documenting the destruction of company records.

"I am working with a service provider that is being granted stock options as compensation for the services, along with a cash bonus. We are concerned about 409A issues and looking for some antidilution language for the stock options."

- Inside Counsel

Our Response:

With respect to the Section 409A issues, please refer to the following:

With respect to the anti-dilution language, please refer to the following:

"I'm working on a Form S-4 exchange offer; it's an offer to exchange unregistered notes for '33 Act registered notes with the same principal, interest rate and maturity. I would appreciate any resources relating to the structure and documentation typically involved in this kind of deal. More specifically, any resources related to Form S-4 would be great."

- Associate

Our Response:

I think you will find our Practice Note, Registration Statement: Form S-4 and Debt Exchange Offers very helpful. In addition, these Practice Notes provide background information on exchange offers, including discussions of the parties involved, the principal documents and the process of completing the exchange offer:

"I am working on a settlement agreement and would like to see a form of a general release."

- Assistant General Counsel

"I have been asked to potentially represent a client in whom a private equity firm may make a minority investment. Do you have any materials that would be helpful for me to review? For example, a primer on investments by private equity firms, or a discussion of the types of agreements that would accompany this type of investment (i.e., purchase agreement, shareholders agreement, employment agreements with key executives)?"

- Partner

Our Response:

The most helpful place to start would be our Practice Note, Minority Investments: Overview. Throughout this Practice Note, you will find links to other helpful resources for more detailed information. You should also take a look at the related content on the right-hand side of the page.

"I am working on a paper on risks and mitigation of risks in project finance. Do you have anything that could help?"

- Law Student

"I'm looking for an electronic document retention policy and procedure, something very detailed as to electronic retention policy."

- Associate General Counsel

Our Response:

The following resources should be helpful in developing your records retention plan:

In addition, these resources may also help:

You'll note that in our Practice Note, Drafting a Document Retention Policy, the following information is provided within the sub-section titled Records and Disposable Information:

In addition to drawing distinctions between information types, a DRP should reinforce the idea that records are media neutral. That is, the DRP should make clear that the definition of record includes information in paper and electronic format, and may include physical objects.

"Do you have any resources on shutting down a plant/site? Specifically in the state of California?"

- HR Director

Our Response:

We believe you will find our Reductions in Force Toolkit helpful, which contains numerous resources on layoffs and the various related issues. Our Mini-WARN Act and Employment Claims in Release Agreements State Q&A surveys will also be helpful to you, particularly those for CA:

"I am looking to hire counsel to represent my organization with respect to a Subpoena/Notice of Deposition served in litigation where a wholly-owned subsidiary is a named defendant. The firm representing the wholly-owned subsidiary is the same firm that would typically handle these types of matters for my organization. Could you suggest resources that might assist me in assessing whether using the same firm is advisable?"

- Senior Litigation Manager

Our Response:

The following resources address privilege, duty of confidentiality and duty of loyalty issues that arise when the same law firm represents multiple parties in the corporate context:

You may also find these resources helpful on issues related to subpoena responses and corporate separateness, generally:

"I'm looking for general background material on commodity contracts such as forward purchase contracts, purchase and option contracts, swap option contracts, call option contracts and put option contracts."

- Associate

Our Response:

The following Practice Notes provide background information on commodity contracts:

"Does Pennsylvania have a "ban the box" regulation prohibiting asking about arrest and conviction on employment applications?"

- Principle

Our Response:

Our State Q&A, Background Checks Law: Pennsylvania provides extensive information about use of criminal information for background check purposes.

"I am working on drafting an LLC agreement. Could you suggest what resources that would be useful?"

- Law Student

"We are planning a training session on UCC Article 9 for a class of associates. Could you suggest resources that would be useful?"

- Partner

"I am working on a stock purchase agreement from the seller’s side and need language for the sale of less than 100% of the stock. The seller will maintain a minority interest."

- Counsel

Our Response:

For our sell-side stock purchase agreement, see Standard Document, Stock Purchase Agreement (Auction Form). This form is completely annotated with drafting and negotiating tips. However, this assumes a 100% purchase. For examples of stock purchase agreements where the seller retains a minority stake, you can search Practical Law What’s Market.

You can find stock purchase agreements where the seller retains a minority stake by doing the following search:

  • Go to the Practical Law What’s Market homepage.
  • Click on "Private Acquisition Agreements."
  • Type "-"acquisition of 100%"" (i.e. the minus symbol followed by "acquisition of 100%" in quotes with NO SPACE in between the minus symbol and the quotations) into the free text search box in the middle of the page and click "Search."
  • Then use the facets on the left hand side of the page to select "Stock/equity acquisition" under Deal type.
  • Select the remaining deals by clicking "Select all results on this page" at the top of the page.
  • Click the "Compare button" at the tops of the results list.
  • Check box #13 (Basic structure) and click "Compare."
  • From the resulting comparison report, you will be able to identify those deals where the seller retains a minority stake.
  • The second to last question in each deal summary is titled "Links" and will provide you with a link directly to the SEC filings where you can look at the underlying documents.

"We are considering granting stock options to our employees in Argentina, Brazil and Mexico. Does Practical Law have anything on granting stock options in non-U.S. jurisdictions?"

- In-house Counsel

Our Response:

Our Employee Share Plans Multi-jurisdictional Guide includes country-specific Q&As on employee share plans law and practice. Our country-specific Q&As cover Argentina, Brazil, Mexico and many other jurisdictions. In each country-specific Q&A, a standard set of questions relating to employee share plans is answered by a leading law firm with expertise in that jurisdiction. The Q&As give a structured overview of key practical issues including, for example, whether different types of equity awards can be offered by foreign parent companies and the tax implications of different types of equity awards. In addition, answers can be compared across a number of jurisdictions to assist in the management of cross-border transactions.

"I am working on a credit agreement that involves multi-foreign currencies. Do you have any resources that can help in suggesting provisions or clauses to add in response to the Eurozone financial issues?"

- Associate

Our Response:

This Practice Note, The Eurozone Crisis and Loan Agreements should be helpful.

"I am looking for post-closing operational covenants to support/protect seller in connection with an earn-out."

- Partner

Our Response:

We have an example of this type of covenant in our standard clause for an earn-out (see Standard Clauses, Purchase Agreement: Earn-out with EBITDA Targets). You may also find our practice note on earn-outs helpful (see Practice Note, Earn-outs).

In addition, you can access private acquisition agreements with post-closing covenants in connection with an earn-out in Practical Law What's Market:

  • Go to the Practical Law What's Market homepage.
  • Click on "Private Acquisition Agreements."
  • Use the facets on the left hand side under Earn-out to select "Yes."
  • To view post-closing covenants in connection with an earn-out, select the deals from the results page that you would like to compare.
  • Click the "Compare" button at the top of the results list.
  • Check box #27 (Earn-out: covenants).
  • Click "Compare."
  • Note that you can review other provisions of the earn-out (including the amount, earn-out period and other mechanics) by re-running this search and selecting boxes #22 - 28 in the comparison.

"A standard provision in a lender client's Loan Agreement provides that in the event of a default, Lender may collect all income from the collateral and such income shall be applied to "repayment of the Loans in such order and in such manner as Lender shall elect." I need to understand the problems created by such vague language and would like suggested, more specific language."

- Attorney

Our Response:

The following resources should be helpful:

For further information on lenders' rights to credit bid their loans, please see:

"I am working on an irrevocable letter of credit. Do you have resources that could help?"

- In-house Counsel

Our Response:

We have the following Practice Notes on letters of credit that you may find helpful:

"I am trying to find what is the market norm for a "tail" of a break-up fee in the termination section of an agreement. I know the "What's Market" function, but I'm not sure how I could find the standard length of time that these tails (the duty to pay the break-up fee if a party enters into a similar merger X period of time after signing) last."

- Associate

Our Response:

Practical Law What's Market provides a continuously updated database of deals that allows you to analyze and compare terms or features across multiple deals and contains links to the underlying public documents. You can use our database to determine what's market for a tail transaction that triggers payment of a break-up fee.

To do so, select "Public Merger Agreements" on Practical Law What's Market. Since most public merger agreements include a break-up fee that would be triggered by a tail transaction, you may wish to narrow down your results with the categories on the left side of the page to pull up deals of specific interest. After doing so, select all relevant results, click "Compare", check #30 (Termination rights and consequences) and click compare. Our summaries of tail transactions within the Termination rights and consequences field always appears as the last romanette in the break-up fee paragraph, and always lists the applicable tail period (most commonly 12 months).

While less common, some deals in our Private Acquisition Agreements database include a break-up fee triggered by entry into a tail transaction. To search for and compare these, search for "superior proposal" on Practical Law What's Market. Select our "Private Acquisition Agreements" deal type, select all results, click "Compare", check boxes #63 (Termination rights) and #64 (Break-up fee) and click compare.

You may also find our Practice Note, Break-up or Termination Fees to be helpful.

"I am looking for any regulations or guidance issued under the general Dodd-Frank framework and addressing affiliate transactions."

- General Counsel

"I am looking for language which gives a purchaser the right to assign a purchase agreement to an affiliate after signing."

- Associate

Our Response:

The assignment provisions in our pro-buyer purchase agreements provide the buyer the right to assign the agreement to a subsidiary before the closing. See Section 10.07 in Standard Documents, Asset Purchase Agreement (Pro-buyer Long Form) and Stock Purchase Agreement (Pro-buyer Long Form).

"I am trying to find out if there are any banking regulations which affect or restrict a Canadian company from receiving loans from, or entering into transactions with, U.S. affiliate financial institutions."

- In-house Counsel

Our Response:

If the US affiliate is a bank, US banking regulations would apply to your situation. Potential restrictions on the US affiliate's ability to make loans to the Canadian company is addressed in Practice Note, Affiliate Transactions Restrictions for Banks.

You may also want to consider listening to Practical Law's November 10th webinar on that topic, as we touch on international issues. You can access the recorded webinar here (registration required to view recorded webinar).

Though not directly on point, the Practice Note, International Banking is a primer on regulation of international banking activities which you may find helpful. You may also wish to consult our primer on US banking law: Practice Note, US Banking Law: Overview.

"Do you have resources which track break-up fees and reverse break-up fees for acquisitions of public companies?"

- Partner

Our Response:

To search for break-up and reverse break-up fees in public merger agreements:

  • Go to the Practical Law What’s Market homepage.
  • Click on "Public Merger Agreements."
  • You can use the facets on the left side of the page to limit your results to deals that have a break-up fee or a reverse break-up fee within a specified percentage of deal value range.
  • You can click on a specific deal for a summary of the provisions for that specific deal, or you can compare multiple deals to get a snapshot of market practice.

To run a comparison report:

  • Check the box for "Select all results on this page."
  • Click the "Compare" button at the top of the results list.
  • Check boxes #28 (Break-up fee and fee as a % of the total deal value) and #29 (Reverse break-up fee and fee as a % of the total deal value).
  • Click "Compare."

You may also find the following resource helpful as it lists all deals from 2010 that have a reverse break-up fee and provides detailed analysis on the fees: Reverse Break-up Fees and Specific Performance: A Survey of Remedies in Public Deals (2011 Edition).

"I am trying to determine if it is market in the US for a private equity or venture capital transaction, where the investor is receiving a fixed rate of return, for the investor to also receive a compounded rate of return. We are of the opinion that a compounded rate of return is not market, but I am having trouble finding anything specific on your web site."

- Associate

Our Response:

The Practical Law resource that is best to look at as to whether it is "market" to have a compounded rate of return in a private equity/venture capital transaction is our Practice Note, Minority Investments: Overview, Dividends. Assuming by your question, you are referring to a typical preferred stock investment in a private equity/venture capital minority investment transaction, this resource indicates that the fixed rate of return (or dividend rate) on the preferred stock would "typically" compound (whether annually or quarterly), rather than earn a simple fixed rate of return. However, this does depend also on what stage of the company the investment is taking place, with later stage, growth equity minority investments more likely to have a compounded return and earlier stage, venture capital minority investments often not having a compounded return.

"I need information for a group of investors on the steps required for investing in or purchasing an existing troubled or healthy regional or community bank, most likely in California."

- Partner

Our Response:

We do not have state specific information on California, but the following Practice Notes should be helpful. Please also take a look at the Related Content panel on the right hand side of the first page of each Note for further resources that may be useful.

"I am looking for information on a "firewall" policy for use at a bank or fund to keep investment-type folks with inside information away from trader-type folks."

- Counsel

Our Response:

Practice Note, Regulation FD, Material Nonpublic Information and the Syndicated Loan Market includes strategies for complying with regulations governing material non-public information, including setting up "firewalls." You can search for "wall" in the keyword search box to find the relevant sections in the Note.

You may also find these resources helpful:

"Please let me know if you have any materials relating to credit agreements between a sovereign and a bank."

- Associate

Our Response:

The following resources discuss provisions that should be included in a credit agreement when dealing with a sovereign borrower (such as sovereign immunity, budget appropriations, full faith and credit):

You may also find Practice Note, A Primer on Foreign Sovereign Immunity to be of interest.

"I need to understand guidance on determining US Person Status under Regulation X under Fed Reserve Board Regulations."

- General Counsel

Our Response:

The Practice Note, Margin Rules for US Borrowers (Reg. X), has a discussion of US Persons under Regulation X. Click on "US Person" in the Table of Contents to go to the relevant section of the Practice Note.


Question:

"I would like to see materials, including your most recent materials, regarding the limitations imposed on board members and stockholders who agree to vote their shares in favor of a merger or sale when the selling company's board has Revlon duties and has agreed to a fiduciary out with right to terminate the deal upon a superior transaction."

- Partner

Our Response:

We have several resources that should provide you with useful background and current-market information. For background, please see the following Practice Notes:

We also have a Practice Note that we update quarterly called What’s Market: Fiduciary Out. In addition to summarizing the issues involved with fiduciary outs in public merger agreements, this resource catalogs and links directly to the fiduciary-out provisions of deals summarized in our What’s Market database.

With regard specifically to the stockholders who have agreed to vote their shares, please see our Standard Document, Voting Agreement. In particular, the Drafting Note "Agreement to Vote Shares" addresses the fiduciary-out issue.

"I'm advising our Board of Directors on the 2011 ‘say when on pay’ proxy results and how companies are responding when the shareholders’ recommendation is inconsistent with the Board’s recommendation. I’m looking for information to present to the Board on how many companies received inconsistent shareholder votes and, of those companies, how many adopted policies either in support of such votes or against them. I'm also looking for draft resolutions of the Board adopting a certain frequency for say when on pay based on shareholder voting results at the annual meeting."

- In-house Counsel

Our Response:

Our Practice Note, What's Market: Frequency of Say on Pay Results, includes links and a tabular summary of Form 8-K filings by over 140 companies listing each company’s initial board recommendation, the stockholder choice receiving the most votes and the company’s decision on how often it will hold a say on pay vote.

For draft board resolutions, see our Standard Clauses, Board Resolutions: Determining Final Say on Pay Frequency. This resource includes integrated notes with important explanations and drafting tips, including alternative language depending on whether the stockholders and directors agree or disagree. The resolutions in this Standard Clause may be inserted into board minutes or into a form of unanimous written consent.

"Do you have agreements or other resources for a shareholders agreement which will have provisions for buying out employee shareholders who leave the company, including provisions for a buy-out of the shares of a majority shareholder for fair value without discount?"

- Partner

Our Response:

We do have provisions for buying out management shares (see Standard Clauses, Stockholders Agreement: Management Stockholders Call Rights). You may also be interested in the corresponding provisions dealing with put rights of management shareholders (see Standard Clauses, Stockholders Agreement: Management Stockholders Put Rights). Although we do not have a standard clause for the buyout of a majority stockholder by the minority, the drafting notes to the deadlock provisions in our Stockholders Agreement discuss determination of fair value and several other pricing methodologies (see drafting note to Section 2.04(c). All of our standard documents and clauses include integrated drafting notes with explanations and drafting and negotiating guidance.

"I need a Pro-Seller Asset Purchase Agreement for Auction. Any thoughts on whether I should start with the Auction SPA and convert to an asset purchase agreement or start with the Pro-Buyer APA and convert to auction/pro-seller?"

- Associate

Our Response:

We currently do not have a form of pro-seller asset purchase agreement. However, as you noted we do have both a pro-buyer APA and an auction form SPA. We suggest that you use the auction form SPA as your base and convert it to an APA since the bulk of the pro-seller document will be applicable (e.g. reps & warranties, closing conditions and indemnification). You can also review the drafting notes to the pro-buyer APA which contain sell-side guidance. Please note that both our SPA and APA are drafted for the acquisition of a business. If the seller is only purchasing certain assets, there may be other modifications (such as scaling back the reps & warranties). You can also search for additional APA precedents using our What’s Market private acquisition database.

"I need to understand the new regulations impacting CLOs. Can you help me?"

- In-house Counsel

Our Response:

You will find a discussion of the Dodd-Frank regulations that impact CLOs in Practice Note, Summary of the Dodd-Frank Act: Securitization.

"I am updating my employment policy manual. What policies do you have that would be relevant?"

- In-house Counsel

Our Response:

Practical Law's Labor & Employment service currently features a number of employment policies that can be added to an employment handbook or used to update an existing handbook. They can be found under our Policies and Procedures topic.

We are constantly adding more employment policies under this topic. If there are any in particular you would like to see sooner than others, please let us know.

"I am interested in tips, checklists and other resources identifying issues for GCs to consider when building the corporate legal and compliance infrastructure in preparation for a possible IPO."

- In-house Counsel

Our Response:

We have a number of resources which identify issues for GCs to consider when preparing a company’s legal and compliance infrastructure in advance of completing an IPO:

Practical Law also has prepared forms of the charters that the board committees will need to adopt including:

We also have several memoranda which can be delivered to a company’s board of directors, board committee or senior management to explain various legal implications of being a public company including:

We also have several memoranda which can be delivered to a company’s board of directors, board committee or senior management to explain various legal implications of being a public company including:

Our Corporate Compliance and Ethics Toolkit contains a wide variety of resources across Practical Law’s topic areas to help a GC design suitable and comprehensive internal compliance and ethics programs.

"I would like a great explanation of sub-debt (Mezzanine) Financing that includes an equity stake in the form of attached warrants."

- Associate

Our Response:

We have a number of resources that should be helpful for your inquiry on mezzanine debt:

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