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COVID-19 and Material Adverse Change (MAC) Clauses in M&A Deals

What is a MAC Clause? A ‘material adverse change’ clause (a ‘MAC’ clause or sometimes called a ‘material adverse effect’ or ‘MAE’ clause) is a risk allocation provision which commonly appears in merger, stock or asset purchase agreements as part of an M&A transaction. The two primary functions of a MAC clause are to (1) provide the buyer with a costless cancellation right if during the period that occurs after Read More

Requirements for Expanded SBA 7(a) Loan Program Under the CARES Act (Paycheck Protection Program)

Many of our clients are wondering whether they are eligible for the expanded loan assistance under the recently passed Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”). The CARES Act expands the SBA’s 7(a) loan program, which is its primary small business loan program, by authorizing $349 billion for loans to small businesses impacted by the current economic conditions arising from Read More

Small Business Guidance on the SBA Economic Injury Disaster Loan Program

What It Is As part of the recently enacted Coronavirus Preparedness and Response Supplemental Appropriations Act, the SBA, through the Economic Injury Disaster Loan program, is offering low-interest disaster recovery loans to small businesses (within the meaning of SBA rules) that have been severely affected by the COVID-19 pandemic. Eligible applicants may qualify for working capital loans up to $2 million Read More

COVID-19 Guidance for Employers

COVID-19 GUIDANCE FOR EMPLOYERS 1. Can employers send or keep a sick employee home? Yes, employers can send or keep a sick employee at home. Employers should be cautious as to not discriminate against any specific group, but base decisions on a good faith belief and probable cause to determine if an individual is sick, including an employee’s own disclosure or reasonable observation. Inaction by not sending sick Read More

Profits Interests Explained

What is a Profits Interest? Profits interests are the most well-known and commonly used form of equity compensation used by partnerships and limited liability companies that are taxed as partnerships to incentivize key service providers to remain invested in the success of the company. Profits interests are granted to service providers or key employees in exchange for their contribution of services to the Read More

Key Considerations for Convertible Debt Financings

What is Convertible Debt?  Startups and entrepreneurs seek to raise early stage capital in a variety of ways, but one of the most common is through a convertible debt structure utilizing a promissory note that can be converted into equity securities of the issuing company on the occurrence of various events stated in the note.  In the last few years you may have also heard of alternatives to convertible note Read More

5 Ways You Can Help Your Business Attract Investors

Whether you’re just starting a new business or are preparing to scale your existing company to get to the next level, it’s common to seek out potential investors to provide the capital your company needs to take flight. Unfortunately, most founders can’t just make an appearance on Shark Tank and get top deep pocketed investors immersed in bidding wars over funding their companies. However, there are some practical Read More

Rollover Structures in Private Company M&A Transactions

Private equity (PE) investors often require certain founders or sellers to exchange or “rollover” a percentage of their equity into the buyer of the business (or into a fund or holding company controlled by the PE investor). A similar rollover structure might involve the sellers being required to “co-invest” with the buyer by directly reinvesting (or rolling) a portion of the cash received by the sellers into a Read More

Earnouts in Private Company M&A Transactions

Earnouts in private merger and acquisition (M&A) transactions provide for a portion of the purchase price to be paid to the Seller contingent upon the target company reaching certain financial targets or performance milestones following the closing.  Earnouts are typically among the most heavily negotiated provisions in a private company acquisition and are highly susceptible to disputes following the closing. In Read More

Practical Considerations Involving Drag-Along and Tag-Along Rights

What Are “Drag-Along” and “Tag-Along” Rights? “Drag-along” and “tag-along” provisions are staples of venture capital and other investment agreements.  They are often included in investors’ rights or shareholders’ agreements for corporations or operating agreements for limited liability companies.  The “drag-along” provision, sometimes called a “bring along,” gives a majority owner or owners the right to require the Read More