San Jose Business Lawyers Blog

Articles Posted in Mergers & Acquisitions

If your company is the target of a merger or acquisition, you are undoubtedly facing a process called due diligence. Due diligence is essentially a thorough investigation into the state of the target company so that the buyer can be aware of all potential liabilities and other issues prior to the completion of the transaction. Due diligence is necessary for several reasons, including that your company is accurately valuated, that there are no major impediments to closing the deal, and to ensure all relevant documentation is properly drafted.duediligence

If you have never been involved in the due diligence process as part of a major business transaction before, you may be easily overwhelmed by the complicated and time-consuming process. However, acting appropriately during this process can help to ensure the deal is as beneficial for your company as possible. Due diligence is crucial to corporate transactions, but if handled correctly, the process can be done efficiently. Here are some steps to take. Continue Reading

Selling your business can make a good profit when sold to the right buyer. When you decide to exit the company, selling your business may be a good strategy. A business sale may not be easy, but there can be many rewards and benefits. If you’re interested in selling your business for profit, there are 3 things to keep in mind to make sure the process goes smoothly and without a legal hitch.


3 Tips for Selling Your Business

  1. Hire Counsel

You’ll need someone in your court with a background on financial and business transactions. An experienced business attorney can help you prepare necessary documents and close the sale. You’ll want to lay out all finances to see how they may impact your personal wealth. You also won’t want to let the stress of the sale process lead to missed deadlines or late filing of documents. There are a lot of planning, structural, legal, and financial issues involved with the sale of a business, so having an experienced business attorney will be critical to ensure you’re making the right decisions. Continue Reading

A merger or acquisition can be a great way to grow your business. Joining forces or purchasing another company increases your market share and potential profits. There’s no real way to know if the venture will pay off. However, the proper due diligence can provide reassurance that the move you’re making is a good one. Due diligence is a multi-step process, so in this post we’re going to focus on just one part: liabilities.


Understanding Liabilities

Any merger or acquisition comes with a degree of risk. Liabilities are the debts and obligations incurred through the course of doing business. Loans are considered a liability as are accounts payable and accrued expenses. It’s important to take a look at the total number and dollar value of all liabilities. Also, look at the company’s payment history. Are bills paid on time? Is there a record of default? These are red flags that should give you pause. Remember, once you’ve assumed liabilities the responsibility is yours.

Unrecorded Liabilities

An unrecorded liability is exactly as it sounds. This type of liability won’t show up on any records or accounting statements. Before you call off your merger or acquisition, understand that unrecorded liabilities are normal. A common example is vacation time. Let’s say an employee rolls over vacation time and, come retirement, hasn’t used it all. He or she will be owed money in exchange for the hours. This can be a substantial cost if enough employees have banked their hours. The best way to find out about a company’s unrecorded liabilities is to ask the right questions and request the relevant documents, or you can hire an experienced attorney.

Due diligence is a critical component of any merger or acquisition. Failure to do your homework can have dire financial consequences.

About Structure Law Group

Structure Law Group is a San Jose based firm that specializes in business issues including business formations, commercial contracts and litigation.

A quick scan of the headlines shows come confusion about the deal between AT&T and DirecTV. Some media outlets are calling it an acquisition while others say the 48 billion dollar purchase is a merger. Mergers and acquisitions are similar with a few important distinctions. In this post we’ll address the key differences between these two kinds of transactions.

What is a Merger?

One component of mergers and acquisitions is relational. Mergers are seen as the more friendly way of doing business. When two firms merge, both shed their old companies to form a new one. A good example is the merger between Daimler-Benz and Chrysler. In this scenario, both companies ceased to exist. They issued new stock as Daimler-Chrysler. Mergers are a common occurrence between two companies of equal size and standing.

What is an Acquisition?

An acquisition is when one company purchases another. The target company is absorbed by the purchaser and no longer exists. A recent example is the acquisition of Bell South by AT&T. AT&T bought Bell and reformed it as AT&T South.

Mergers and Acquisitions: The Benefits

There are several perceived benefits to merging or acquiring another company. A business can save money on labor and expand its reach into new markets. Also, bigger companies have more purchasing power. Finally, a target company might have a unique product or skill set that creates new revenue for the parent.

So is the deal between AT&T and DirecTV a merger or acquisition? The telecommunications giant is buying the satellite provider. However, DirectTV will still keep its name but will be operating under AT&T. Confused? You’re not alone. The media can’t seem to decide. Given the basic definitions we discussed earlier this would be an acquisition.

There are many types of mergers and acquisitions. If you’re considering either one make sure to get some assistance. Legal professionals, like the ones at Structure Law Group, are needed to sort through the mess.

About Structure Law Group

Structure Law Group is a San Jose based firm that specializes in business issues including business formations, commercial contracts and litigation.

One of my clients is a medium sized manufacturing plant here in San Jose. Although not a high-tech business, they have extensive capital assets and specialized skills. The business is being run by the second generation of family members, and the third generation is now being trained to take the reins someday. The family has recognized that many of their competitors are still being run by the first generation of owners, and it does not look like those businesses are likely to transition to other family members. As the owners of the competitive businesses age and want to retire, they will be looking to sell their manufacturing plants. My client wants to buy them. We recently sat down and discussed acquisition strategies. I explained that there are two common ways to buy a business – either you buy the stock, or you buy the assets. What most people do not realize, is that even when you are only buying the assets, you could be liable for up to three times the purchase price in state taxes that should have been paid by the seller.

Most people know that when you buy the stock of a corporation (or membership interests in an LLC), you get all of the assets as well as all of the liabilities in that company. As a result, many of my clients want to buy only the assets of a company as a strategy to avoid the liabilities (known and unknown) that come with a business with history behind it. To accomplish this, we draft an asset purchase agreement that includes lists of which assets we are buying, which liabilities we are buying, and which liabilities we are not taking on. For example, when you buy the stock of a company, you get all of its employees including their accrued and unpaid vacation time. When you buy the assets of a company, we ask the selling business to terminate all of its employees so that we can start over by hiring them in the acquiring company as new employees, without any potential claims for what came before. However, many people do not realize that certain tax liabilities may follow the business of the company rather than the company itself. So, if you buy enough of the assets to be considered as having purchased the company, you could be buying tax liabilities… even if they are on your list of items excluded from the sale.

Each of the Franchise Tax Board (state franchise and income taxes), the Board of Equalization (sales taxes) and the Employer Development Department (employment taxes) has the right to come after the buyer of a business for unpaid taxes in an amount up to the entire purchase price. So, if you pay $100,000 for the assets of a company, you could be liable for unpaid taxes of up to $100,000 to each of those three government entities. Your $100,000 purchase price just became $400,000!

Most asset purchase agreements deal with this concern in two ways: First, they request a representation and warranty from the seller that there are no unpaid taxes. Second, the agreement includes an indemnification provision whereby the seller has to indemnify the buyer if any claim for unpaid taxes is made against the buyer for the time period before the company’s assets were purchased. However, an indemnification provision is not enough protection. All it does is provide a contractual claim against the seller. The buyer still has to sue the seller and get a judgment and then collect that judgment.

A much better way to protect yourself as a buyer of a business is not to rush into things. In only 60 days, you can get tax clearance certificates from all three entities showing you exactly how much unpaid taxes, if any, are outstanding. Each agency has its own requirements for submitting such a request. If the agency does not return a tax clearance certificate within 60 days (30 days for the EDD), then the buyer may not be held liable for outstanding taxes of the seller’s business. So, take your time, open an escrow, and get tax clearance certificates prior to closing escrow on the purchase. And of course, consult with an attorney if you need help with an acquisition. Otherwise that $100,000 business may cost you $400,000 in the end.

The information appearing in this article does not constitute legal advice or opinion. Such advice and opinion are provided by the firm only upon engagement with respect to specific factual situations. Specific questions relating to this article should be addressed directly to the author.

As a business and M&A lawyer in San Jose, it is not uncommon for me to burn the midnight oil hammering out a deal for a Silicon Valley client. There is often a need to break from the perpetually connected life to recharge the lithium cells, so to speak. On a recent bike ride in Santa Clara on the local single track, it occurred to me that the life of a deal can be contained in a single mountain bike ride.

A ride starts with the first drop of a pedal. Any deal starts with the first realization that two people or groups can get together and construct a process that will create value for both of them. Whether it is a simple software license, or a complex strategic alliance and funding deal, it is that first pedal that moves everything forward.

Whether you are involved in a transaction deal or a single track mountain bike ride, you need the right tools to make it all work. For a lawyer, it is the years of learning that just begin after you leave law school. The late nights wrestling with creating a structure that will reduce risks and the time spent attending or teaching professional seminars all contribute to the base of knowledge that comes to bear in every transaction. Making sure your tires fit the trail and your derailleur is adjusted and chain oiled can make the difference between a ride and an ordeal.

Both deals and rides can vary in how they start. Sometimes, you are thrown right into the negotiations, having just met the client minutes before, like the ride that starts with a pounding incline over gravel and sharp rock. Other times, there are in depth discussions over goals and approaches, like the trail that starts level and smooth through redwood shade.

Then, there is the slog. I ride in the mountains, and it is very typical for rides to start uphill, and end downhill. Cranking slowly up a ponderous grade is not glamorous, but is critical to getting to your goal. Even a business deal built on insightful strategy needs implementation, and it is the late nights and weekends, slogging through reams of documentation and often mind-numbing minutiae that lead to success. It is sweaty ponderous work, but somebody has got to do it.

The home stretch is where things can get, shall we say, interesting. In mountain biking, the downhill is where skill is required to keep bike and body together. Any mountain biker will tell you about their last “endo,” so named because your body has just gone “end over” the handle bars. Road rash and cracked ribs are the usual result. In deals, it is the same. At some point, some new fact or number is looked at just a little bit differently, or a recalcitrant stockholder will not cooperate, or a delayed negotiation on a major issue leads to stalemate, or a lawsuit from left field hits, and you have received the legal equivalent of a body slam. Although the first few minutes may feel like it is the end of the world, most times you pick yourself up, assess the damage, figure out the fix (time to replace the rear derailleur drop out or buy out that difficult stockholder) and continue on your way. In rare circumstances (like you just snapped your collar bone or the Federal Trade Commission will not approve your deal), you lick your wounds and try again another way on another day. But this is rare.

There is an old lyric that goes “… you better watch your speed, trouble ahead trouble behind, don’t you know that notion just crossed my mind”. All parties to a deal want it done yesterday, and the business case for doing so can be convincing. Going too fast on a mountain bike, however, can lead to the dreaded endo, and a whole other parade of orthopedic and epidermal horribles. In a business deal, it can be worse. The Time Warner AOL acquisition was rumored to have been negotiated and signed under a very compressed time schedule, and is taught in business schools as one of the worst mergers in American history. Go fast, but be deliberate and do it right.

Everyone will tell you that deals are not a sprint. In any ride, you need to make sure your energy stays fueled, or you will “bonk”, hit the wall, run out of gas, or hit countless other metaphors that mean you’ve just come to a full and complete stop. In a transaction, we call it deal fatigue. Bringing up countless new issues as a deal gets closer to close, experiencing unexpected delays, or a thousand other things, can kill a deal as fast as any bonk. The cure: deal with it upfront. Before a ride I slam a peanut butter sandwich (whole grain bread, thank you very much). Before a deal, the more I know about the parties, their business, motivation, experience and interests, and the more I know about getting done the type of deal in which I am involved, the less chance my transaction will bonk.

I could go on, but the last conference call just ended, the next turn of the agreement went out the door, and it is time to go spin the local single track.

The information appearing in this article does not constitute legal advice or opinion. Such advice and opinion are provided by the firm only upon engagement with respect to specific factual situations. Specific questions relating to this article should be addressed directly to the author.

As a veteran M & A lawyer in San Jose, where deal making has never gone out of style, I have been though my share of mergers and acquisitions. For business counsel, the closing of a deal is one of the times I get to spike the ball in the end zone as I watch the cash flow to a happy (and relieved) seller. Needing only to put together a closing package, my work is done and I am off to popping the corks at the closing dinner. Or is it?

From sole proprietors and small businesses to large corporations, many business owners enter the sale process believing the closing of a deal is accompanied by a one-way ticket to paradise. They often find out, however, that the fun is just beginning. The first year after closing presents a number of challenges, all of which must be carefully managed to make sure the seller gets the full value of the business.

As I have discussed in prior blogs there are a number of adjustments, associated with audits and working capital, which occur within the first three to six months after closing, including the following:

Post-Closing Audit

The first concerns the post-closing audit. Typically, a selling company’s books will close on the actual closing date, and funds will be held back to deal with any adjustments exposed by the audit. Hopefully, the buyer and seller will have agreed in advance to the accounting procedures which must be used, i.e., how generally accepted accounting principles will be interpreted. Otherwise, the first fight will be over whose interpretation should control. This is particularly difficult, because each side may be constrained to using accounting procedures that differ from each other. Key issues in accounting procedures that can lead to disputes revolve around revenue recognition (a favorite for software companies), collectability of receivables, and valuation of hard assets.

Adjustment of Working Capital

The second concerns the working capital adjustment. This follows closely behind the audit, because it is the audit that establishes whether the working capital adjustment established in the acquisition agreement has been satisfied. I have talked before about the working capital adjustment, and like any post-closing adjustment, it is critical to ensure that the parties establish agreed upon accounting procedures to make sure they are not comparing apples to oranges.


The mother of all battles, however, usually occurs around earnouts. I have spoken about earnouts before. Earnout disputes are so pervasive in merger and acquisition deals that litigation attorneys have another word for them: inventory. This is also where the seller must be the most involved. Earnouts depend on business performance, and as much as the seller wants to start their new life, their presence and operation of the company post-closing can make a large difference in the amount ultimately received for their business. Changing business operations, sales approaches, and collection procedures are all matters the former owner needs to watch carefully. One of the biggest issues comes in the form of administrative overhead allocations, with the earnout payment being reduced due to a reduction in net earnings as a result of over allocation of administrative overhead.

Breach of Fiduciary Duty
Another fruitful area for litigation is where a representation or warranty may be breached. We discussed these in past blogs, and noted that, in most deals, funds are held back to satisfy buyer damages arising out of a breach of a representation or warranty. A seller that remains on the shop floor, so to speak, often has the institutional knowledge and relationships to prevent or minimize the acts or omissions that lead to a breach, and thereby reduce the ultimate hit against the holdback that might otherwise occur.

Resolving post-closing disputes is not easy. Most acquisition agreements will require disputes to be resolved through arbitration, which is usually faster than waiting for a court (especially here in California with our impacted court system). Arbitration, however, is not simple, fast or inexpensive. Where post-closing adjustments are involved, many of the issues revolve around accounting concepts, requiring accounting experts to be retained. These experts are not cheap. Where a seller’s representation has been breached, complex indemnification provisions are often triggered, which can muddy ultimate resolution. It is not unusual for post-closing disputes to add a year or more to ultimate payout to a seller.

For this reason, sellers should expect that their full payout from the sale of their business may require continued involvement for a year or two after the closing. Sellers may find, however, that the additional involvement is a small price to pay.

The information appearing in this article does not constitute legal advice or opinion. Such advice and opinion are provided by the firm only upon engagement with respect to specific factual situations. Specific questions relating to this article should be addressed directly to the author.

Having represented both buyers and sellers in mergers and acquisition transactions in Silicon Valley for more years than I care to admit, I have been through a number of closings. Some M&A closings that I have been involved in were smooth affairs, accomplished through an exchange of a single phone call with a confirming email, while others have stretched into all night marathons. Although it is often difficult to know whether your deal will allow you to finish at a reasonable time, there are a number of actions you can take to make sure your closing is as smooth and stress free as possible.

Obtain Third Party Consents:

The most important task for both the seller and acquirer is to plan ahead. Everything you will need, to accomplish the closing, will take longer than you think. One item which often delays a closing is getting the necessary consents to the transaction required from third parties. Certain third parties, often parties to major relationships that the acquired company, post-closing, requires for its operations, have rights under their contracts to consent to any change in control. Many of these contracts create significant value for the acquired company and their continued existence are often a key incentive for the buyer proceeding with the deal. It is best to identify these material agreements early on and plan a strategy for securing the necessary consents. Other areas where third party consents might be required are when a party, often a strategic investor, has a right of first refusal that is triggered by the transaction.

Obtain Stockholder Approval:

Stockholder approval, especially where large numbers of stockholders exist, can often be a gating item. As with third party consents, it is critical that the parties design a strategy early on for soliciting approvals from the stockholders, and, if necessary, investigate and resolve any securities compliance issues that might exist. This may require significant advance planning and document creation, particularly for securities compliance purposes.

Complete Agreements and Disclosure Schedules Before Closing:

Part of planning ahead is to front load all of the work that needs to be accomplished for the closing. For those transactions in which a closing follows sometime after the contract signing, agreements and schedules required for the closing, such as key employment agreements and disclosure schedules, should be completed and attached to the contract as part of signing. The temptation to put these types of schedules and agreements off until the closing can prove costly, as these types of documents, particularly a disclosure schedule, can raise issues which may require significant time to resolve.

Remove Contingencies:

As a closing approaches, it is critical to make sure all contingencies pertaining to the closing are removed or waived. One way to ensure this is to make sure, during contract negotiation, that contingencies are based on standards that are objective and easy to determine. One area that can be problematic is a contingency based on the occurrence of a material adverse effect. Because these tend to be very broadly and qualitatively designed, it is best to objectify them as much as possible. This can be accomplished by tying the effect to financial or other measures, or limiting it to known risk issues.

Have a Pre-Closing Review:
Expectations during this period need to be rational. If there is any deal term or contingency that is open, the transaction simply is not ready to close. For this reason, it is always a good idea for the deal team to conduct a pre-closing a few days before the planned closing date, to make sure all remaining issues and contingencies are resolved and that the documentation is sufficiently in order to close.
Be Closely Involved:

The most important task for the business executive is to understand that his or her job at this point in time is not necessarily to run the business, but to get the deal done. The executive needs to be closely involved with the transaction, and should not merely rely on his or her advisors. There is no substitute for carefully reviewing all of the documents involved in the transaction. In addition, the executive needs to ensure that the entire deal team be available for the inevitable last minute decisions.

Like many things in life, closings benefit from advanced planning and hard work early on. Save the surprises for birthdays and holidays. When it comes to closings, boring is best.

The information appearing in this article does not constitute legal advice or opinion. Such advice and opinion are provided by the firm only upon engagement with respect to specific factual situations. Specific questions relating to this article should be addressed directly to the author.

The pace of merger and acquisition activity in Silicon Valley continues unabated, and the satisfaction of conditions to make sure both parties conclude a deal with all loose ends tied up becomes critical to a final closing. In my last blog, I discussed certain standard closing conditions contained in merger and acquisition documentation, particularly the requirement of stockholder approval and the use and impact of dissenters’ rights. In this blog, I will cover some of the other commonly used conditions in acquisitions of privately held companies.

Being a technology transfer lawyer, many of my clients’ deals focus on the need to retain key employees after the company is sold. For that reason, a key closing condition included in most acquisition agreements requires that certain employees with the acquired company agree to continue working with the company for a period of time after the closing. Often this obligation is structured by requiring the employees to sign employment agreements or consulting agreements with the buyer. Managing this process can be tricky, because employees will want to agree to terms they find preferable (e.g., receiving additional options and higher salary) and some key employees may be reticent to work with a buyer they do not know. In addition, negotiations occur between the key employee and an acquirer before a deal is closed, which is sometimes an awkward process.

Covenants Not to Compete

A corollary to this condition is the buyer’s desire to have key employees sign covenants not to compete. Although generally unenforceable in California, these covenants can be enforced where the key employee holds sufficient stock, and has sufficient control, in the acquired company to warrant protection of the buyer’s interest after the sale. The covenant must also be for a reasonable time, and limited to a reasonable geographic area. Because of these somewhat vague standards, buyers often want these covenants signed by as many of the key employees/stockholders as they can. Key employees, understandingly, become very apprehensive about signing these documents, because many are not receiving enough money from the deal to be able to afford being shut out of the industry in which they have developed a substantial expertise.

Employee Releases

Where a selling company’s shares are closely held, or where a substantial percentage of the shares are held by a small group, a buyer will often want the stockholders to release the company from any claims the stockholders may have. This may present a problem if any selling company stockholder has any claims, or even hard feelings, against the selling company. Requiring them to sign a release provides them great leverage in getting their claims or concerns resolved in their favor.

Material Adverse Impact

Another key closing condition is the absence of any “material adverse impact”. It is often defined as an impact to the acquired company that is material and adverse. Helpful, huh? There lies the problem with this condition. Although it behooves parties to objectively define what is both material and adverse, too many times parties want to rely on an “I’ll know it when I see it” standard. Using objective standards here is critical, because there is precious little time to use standard dispute resolution proceedings to decide who is right or wrong when you are trying to close a deal.

Regulatory Requirements

Satisfaction of regulatory requirements is another important closing condition. Where publicly-tradable securities are being issued, acceptance of an appropriate registration statement by the SEC is often a condition. For acquired companies with a smaller stockholder group, mature buyers can often get the selling stockholders to agree that shares issued in the acquisition will be registered after the closing. Other regulatory requirements could include bulk sales filings for certain types of deals, and antitrust filings.

Legal Opinions

One of the last closing conditions, which is unfortunately one of the last to be considered, is the infamous legal opinion. This is a letter written by one party’s counsel to the other party providing certain legal conclusions, or opinions, about the state of the party and the transaction. Because legal opinions are provided, or rendered, to a non-client, attorneys are very sensitive about their content, and the opinion letter itself is an almost incomprehensible collection of jargon and assumptions. The opinion is also based on factual representations provided by management, and attorneys typically provide, right before the closing, confirmation documents concerning facts on which their opinions are based.

Because every deal is unique, other closing conditions may be present, and some of those discussed above may be absent. In any event, it is important that both attorneys and their clients work toward their completion, so that the closing a business sale can proceed with as little controversy as possible.

The information appearing in this article does not constitute legal advice or opinion. Such advice and opinion are provided by the firm only upon engagement with respect to specific factual situations. Specific questions relating to this article should be addressed directly to the author.

Whether an acquisition is in San Jose, Cupertino, San Francisco, or anywhere else in California or the United States, any corporate lawyer will tell you that a buyer will not close a deal unless certain conditions are satisfied. Fortunately, closing conditions contained in mergers and acquisitions documentation have become standardized. Exceptions, however, always arise based on the unique attributes of the transaction, and standard does not always mean simple.

Some merger or acquisition closing conditions are standard and rarely require negotiation. For example, one of the standard closing conditions is that there is no injunction, law, or court order that prevents the transaction from proceeding. Outside of an actual known threat to a transaction, these clauses are rarely negotiated in a private company acquisition transaction.

Another standard closing condition is that the requisite corporate approvals will be secured. Because the respective Board of Directors of the each company will have approved the acquisition agreement, this is usually a noncontroversial item.

Similarly, stockholder approval is a standard condition but it can derail a deal if the company does not approach it carefully. Stockholder approval adds an additional wrinkle: dissenters’ rights. These rights allow a stockholder to receive in cash the fair market value of its stockholdings, based on the value of the selling company, absent any change in value arising as a result of the acquisition. To receive this cash payment, the stockholder must vote against the acquisition. It is not sufficient for the stockholder to simply abstain from voting. To enable the stockholder to take advantage of its dissenters’ rights, the selling corporation must provide notice of the right to exercise dissenters’ rights, and the notice must contain specific provisions.

Why would the corporation want to allow one of its stockholders to have this right? To protect the transaction, that’s why. Any stockholder who had the right to exercise its dissenters’ rights, but failed to do so, can never attack the validity of the transaction. The only exception to this is if there was a problem with stockholder approval. In essence, dissenters’ rights give the stockholder the choice between selling-out or going along with the deal. From the corporation’s standpoint, it can feel comfortable that a transaction will proceed since all it has to do is buy-out its disgruntled stockholders.

Or can it? The problem with dissenters is that they have to be paid. If the deal is a cash deal, then the purchase price proceeds can be used to pay off the dissenters. If, however, the acquisition is a merger, where shares are going to be exchanged, the issue is tricky. Recall my discussion some time ago about an acquirer wanting to have working capital in the purchased company so that it can conduct business after the closing. Any payment to a dissenting stockholder will reduce the amount of the seller’s working capital (assuming that the buyer will not use its own working capital to pay the dissenter).

The reduction in working capital arising out of a payment to dissenters will lead to a closing condition limiting the number of stockholders which can dissent to the deal. Typically, this number is less than 5% of the stock entitled to vote. Sellers who find themselves faced with such a condition find that a stockholder or stockholders holding a relatively small number of shares have, essentially, a veto right on a transaction. For this reason, executives of selling companies need to review their stockholder lists carefully to determine if there is any likelihood that a stockholder will exercise its dissenters’ rights.

In my next blog, I’ll discuss some of the other conditions that might crop up in a common acquisition deal.

The information appearing in this article does not constitute legal advice or opinion. Such advice and opinion are provided by the firm only upon engagement with respect to specific factual situations. Specific questions relating to this article should be addressed directly to the author.