NSTITUTE VENTURE DRAFTING AGREEMENTS Joint Venture Agreements - 04.21.15.pdfDrafting Joint Venture Agreements Carolyn J. Vardi PowerPoint Construction Joint Venture Agreements George

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    DRAFTING JOINT

    VENTURE AGREEMENTS Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers Association, 14 Vesey Street, New York, NY

    scheduled for April 21, 2015

    Faculty:

    Program co-sponsors: NYCLAs Construction Law Committee and Entertainment

    Intellectual property & Sports Section

    Program Chair: Joel Sciascia, Pavanni McGovern

    Faculty: George Meyer, Carlton Fields/Jorden Burt; Jose Pienknagura, AECOM; Richard Raysman, Holland & Knight; Carolyn Vardi, White & Case

    This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 2 Transitional and Non-Transitional credit hours: 2 Skills.

    This program has been approved by the Board of Continuing Legal education of the Supreme Court of New Jersey for 2 hours of total CLE credits. Of these, 0 qualify as hours of credit for ethics/professionalism, and 0 qualify as hours of credit toward certification in civil trial law, criminal law, workers compensation law and/or matrimonial law.

    ACCREDITED PROVIDER STATUS: NYCLAs CLE Institute is currently certified as an Accredited Provider of continuing legal education in the States of New York and New Jersey.

  • Information Regarding CLE Credits and Certification

    Drafting Joint Venture Agreements April 21, 2015; 6:00 PM to 8:00 PM

    The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution.

    i. You must sign-in and note the time of arrival to receive your

    course materials and receive MCLE credit. The time will be verified by the Program Assistant.

    ii. You will receive your MCLE certificate as you exit the room at

    the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium.

    iii. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate.

    iv. Please note: We can only certify MCLE credit for the actual time

    you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week.

    v. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week.

    Thank you for choosing NYCLA as your CLE provider!

  • New York County Lawyers Association

    Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 (212) 267-6646

    Drafting Joint Venture Agreements Tuesday, April 21, 2015 6:00 PM to 8:00 PM

    Program Co-sponsors: NYCLAs Construction Law Committee and Entertainment Intellectual Property & Sports Section

    Program Chair: Joel Sciascia, Pavanni McGovern

    Faculty: George Meyer, Carlton Fields/Jorden Burt; Jose Pienknagura,

    AECOM; Richard Raysman, Holland & Knight; Carolyn Vardi, White & Case

    AGENDA

    5:30 PM 6:00 PM Registration 6:00 PM 6:10 PM Introductions and Announcements. 6:10 PM 8:00 PM Presentation and Discussion

  • Drafting Joint Venture Agreements

    Tuesday, April 21, 2015 6:00pm-8:00pm

    2 NY MCLE Credits: 2 Skills; Transitional and Non-transitional

    2 NJ Credits: 2 General

    14 Vesey Street

    New York County Lawyers Association

    Panel

    Joel Sciascia, Pavarini McGovern

    George Meyer, Carlton Fields/Jorden Burt

    Jose Pienknagura, AECOM

    Richard Raysman, Holland & Knight

    Carolyn Vardi, White & Case

    Title Author Type

    Drafting Joint Venture Agreements Carolyn J. Vardi PowerPoint

    Construction Joint Venture Agreements George J. Meyer, Jose Pienknagura, and Carlton Fields Jorden Burt , P.A.

    PowerPoint

    Technology and Joint Venture Agreements Richard Raysman PowerPoint

    Negotiating Joint-Venture Management Provisions: A Primer

    Rashida La Lande Article

    The Key Benefits Of Forming A Joint Venture Rashida La Lande Article

    Business Divorces Plan Ahead - Article Mark Rosencrantz Article

    Recent Disputes between Parties to Joint Ventures Richard Raysman and Peter Brown

    Article

    AIA-C101 - 1993 Joint Ventures AIA Sample Agreement

    Strategic Alliance Software Development And Distribution Master Agreement

    Richard Raysman Sample Agreement

  • Drafting Joint Venture Agreements New York County Lawyers Association- April 21, 2015

    Carolyn J. Vardi

  • White & Case 1

    Why a Joint Venture?

    Strategic Joint Ventures Sharing costs and risks Accessing new markets and/or new technology Pooling resources

    Financial Investors Joint Ventures Sponsor/Lead investor Minority financial investors Management Debt holders who receive equity kicker

  • White & Case

    Initial Considerations

    Due Diligence Business Issues Capital Contributions Ownership/Governance (i.e., Control) Opportunities/Non-Compete Agreements Going-Forward Support Monetization/Liquidity Events Minority Protections Information rights/board observer Corporate governance protection Veto rights over significant transactions

    Legal Issues Tax Planning and Type of Entity (Inc./LLC/LP) IP Considerations (protecting a partners IP and how to deal with jointly developed IP) Antitrust concerns Jurisdiction of Formation

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  • White & Case

    Who Has the Control?-Corporate Governance

    Board of Directors Equityholders agree to allocate Board seats usually based on ownership

    percentage When there is a Sponsor/Lead Investor, equityholders generally agree to elect a

    majority of directors nominated by the Sponsor/Lead Investor Minority financial investors may be entitled to nominate a director Equityholders often agree to elect the chief executive officer of the operating

    company to the Board In lieu of a Board seat, some minority investors may seek Board observer

    Receives same meeting materials as Board members The Company is permitted to exclude information which may raise a conflict or

    jeopardize attorney/client privilege

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  • White & Case

    Who Has the Control-Corporate Governance (Contd)

    Veto Rights On some occasions, minority investors may be entitled to veto certain major

    transactions Major acquisitions or dispositions The Companys initial public offering Declaring bankruptcy Declaring dividends Incurring debt above a pre-approved limit Amendment of material agreements Amendment of the Companys organizational documents Other material actions or transactions

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  • White & Case

    Who Has the Control-Corporate Governance (Contd)

    Affiliate Transactions The Company is prohibited from entering into transactions with Affiliates (e.g., the

    Sponsor/Lead Investor) without the approval of the disinterested directors or a majority of disinterested stockholders

    Information Rights Equityholders entitled to receive quarterly and annual financial statements Certain VCOC investors may require additional rights (e.g., right to consult with

    management)

    5

  • White & Case 6

    Keeping Partners Locked In - Transfer Restrictions

    Transfer Restrictions Strategic JV Approach Right of First Refusal Right of First Offer Limited Permitted Transfers

    Financial Investor/Lead Investor Approach Control of the Investor Group is Key No transfer permitted other than Permitted Transfers such as: Basic wills and trusts transfersallows estate planning for management Transfers to affiliates (other than competitors) Transfers expressly permitted by the Equityholders Agreement Drag-Along rights Tag-Along rights Registration rights

    Transfers in connection with transfers of related debt Transfers approved by disinterested directors

  • White & Case

    Keeping Partners Locked In - Transfer Restrictions (contd)

    Right of First Refusal Equityholder may sell to Third Party if the other Equityholders refuse to exercise right

    to repurchase Selling Equityholder Must Identify Third Party and Terms of Proposed Sale to the

    Company and Other Equityholders (chills Third Party sale) The other Equityholders have the right to purchase some or all of the shares on

    the terms offered to the Third Party If the other Equityholders fail to purchase all the shares proposed for sale, the

    Selling Equityholder may sell all shares to the Third Party Right of First Offer

    Selling Equityholder offers shares to the other Equityholders first, then finds a third-party Buyer

    7

  • White & Case

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